Using habitat conservation plans to implement the Endangered Species Act in Pacific Coast forests: common problems and promising precedents.

I. INTRODUCTION

A. The ESA and Biodiversity on State and Private Lands

Since being drafted in its modem form in 1973, the Federal Endangered Species Act (ESA) has remained our chief law for protecting imperiled animal and plant species, their habitats, and their ecological, economic, and social values.(4) In addition to guiding federal agency actions and enabling cooperative federal-state conservation programs, the ESA is intended to protect threatened and endangered species regardless of whether they inhabit public or privately-owned lands. The importance of both state and private lands to species conservation is likely to remain significant over time, as many of the threatened and endangered species found nationwide depend primarily on these lands.(5) The situation is no different in the Pacific Northwest, where private landowners and the states manage some of the most productive forestlands and habitats.

The ESA generally prohibits public and private persons from harming or otherwise "taking" a species officially listed as threatened or endangered pursuant to the Act.(6) The ESA's take prohibitions have been further defined through the Act's administrative regulations, which define "harm" as including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(7) Until recently, these "take" prohibitions comprised the principal regulatory incentive for private and state landowners to cooperate with the United States Fish and Wildlife Service (USFWS) and other federal agencies to protect and recover threatened and endangered species.(8)

B. The Policy Impetus for HCPs

In 1982, Congress amended the ESA to allow private, state, and other non-federal landowners to develop habitat conservation plans (HCPs) as an alternate means of complying with the ESA.(9) Section 10(a) was added to the ESA to allow landowners to harm or otherwise "take" listed species and their habitats through land management, resource extraction, development, or other activities, provided that the landowner's primary intent is not to harm the species per se.(10) Interested landowners may apply to the USFWS or the National Marine Fisheries Service (NMFS) (collectively, the Services) for a section 10(a)(1)(B) incidental take permit (ITP). To qualify for an ITP, landowners must develop an HCP that minimizes and mitigates the "take" to the "maximum extent practicable."(11)

HCPs are one of the present Administration's favored means of implementing the ESA, and the Department of Interior s No Surprises Policy has been particularly instrumental in encouraging state and private landowners to develop HCPs.(12) Put most simply, the No Surprises Policy assures landowners that once they agree to a mitigation strategy as part of an HCP, they will not normally be liable for providing additional mitigation at a later date should the species listing status or other circumstances change. The scope of these assurances is quite broad, and can cover species which are not yet listed under the ESA.

While landowner interest in HCPs was originally slow to develop, a substantial percentage of industry and state-owned forestlands in the Pacific Coast states are now, or will soon be, covered by mS and their underlying HCPs. HCPs, which would provide blanket coverage for groups of smaller landowners, are also being explored by some organizations. Given the impending listing of several species of salmon and other anadromous fish,(13) it is not surprising that many recent HCPs give particular attention to providing enhanced stream and riparian area protections. Several recent HCPs also claim to address hundreds of species or, in some cases, all species which might ever reside On the property.(14) If the Services continue to determine that these listed and unlisted species are adequately addressed by these HCPs, then the landowners will in effect receive an extremely broad exemption from the ESAs take prohibitions and habitat protections.

C. Overview of Forestland HCPs

The tables following this article in the Appendix provide summary information on the thirteen HCPs which were reviewed for this paper. Table A-1 indicates the scope of each HCP, including the species which were explicitly addressed by the landowners.(15) Tables A-2 and A-3, provide information including the level of take and habitat impacts that are allowed to the species most commonly addressed by forestland HCPs--the northern spotted owl--and the impact minimization and mitigation measures provided for spotted owl and other species.(16)

D. HCPs--Opportunities and Realities

Arguably, ESA section 10(a) and the No Surprises Policy should be used for three purposes: 1) to provide some flexibility for landowners who are faced with exceptional species protection responsibilities, 2) to encourage landowners to conserve entire ecosystems and habitat for species which are not yet listed, thereby reducing the need for listings and more stringent "take" prohibitions, and 3) to help reward landowners who contribute towards the recovery of threatened and endangered species.(17) Certainly it will be in the public interest if HCPs can provide landowners with a reasonable level of regulatory certainty while also furthering the goals of protecting, recovering, and sustaining species and ecosystems.

Are HCPs actually meeting these goals? A close reading of the HCPs developed for private and state-owned forestlands in Washington, Oregon, and California leaves substantial room for doubt. Indeed, HCPs often appear as though they were designed primarily to provide regulatory certainty at the expense of other goals. Problems with addressing as-yet-unlisted species in multispecies HCPs are also becoming more significant over time as landowners seek to gain No Surprises assurances for an increasing number of species.

This article outlines and documents some of the questions and fundamental problems raised by thirteen finalized and pending forestland HCPs, along with their Environmental Assessments (EAs) and Implementation Agreements (IAs).(18) Together, these HCPs cover over 3,000,000 acres of private and state lands in the tri-state region of Oregon, Washington, and California. The article also highlights cases where some HCPs utilized specific conservation measures which went beyond the norm, and which illustrate the feasibility of developing HCPs that are more likely to achieve key conservation goals. Finally, the article identifies the structural problems with HCP policies, and recommends several new approaches which would be more consistent with the ESA's conservation goals.

The discussion regarding HCPs is organized around four major issues. First, are HCPs using credible approaches to mitigate impacts to species' habitats? This analysis addresses the internal adequacy of mitigation measures developed for listed species, and whether those measures are logical, consistent, and biologically sufficient. An independent scientific review of one of the more recent forestland HCPs found, for example, that there was little biological rationale for the plan, and that protections for listed species were not adequate.(19) One very basic yardstick is whether mitigation measures are providing habitat values that are closely related to the habitat values being impacted, or values which are at least equally important to the species' survival. Another basic question is whether the mitigation measures provide a net gain in suitable habitat for the species in question over time and whether credible baselines are being used to measure these net benefits. Also of concern is whether an HCP's mitigation measures will occur in a time frame which is sufficient to offset early impacts to species' habitats.

Second, are HCPs adequately addressing unlisted species in return for agreements limiting landowners' obligations to protect those species if they are listed? HCPs and policies similar to the No Surprises Policy are potentially useful ways to encourage landowners to protect unlisted species before their habitats are degraded enough to ensure an official ESA listing. However, the attempt to address unlisted species can also exacerbate questions and problems with the adequacy of HCPs' impact minimization and mitigation measures.(20) While the conservation needs of unlisted species are often not well known, the oversimplified habitat models being used to address them are nevertheless unnecessarily inaccurate.

Third, do the Implementation Agreements (IAs) for HCPs include adequate implementation and enforcement mechanisms? IAs are, in short, contracts between the landowners and the Services which govern implementation and enforcement of the landowners' respective HCPs. It is not clear whether existing IAs provide the Services and the public with sufficient powers to enforce HCPs, including the cases when the landowners terminate the HCP prior to completion of important mitigation measures. The application of the No Surprises Policy is also placing the risk involved with HCPs solely on the shoulders of the Services and the public.

Finally, are HCPs supporting regional conservation plans and other policies that are designed to provide for survival and recovery of species across their normal ranges? One of the most fundamental questions to be asked is whether forestland HCPs, when viewed collectively and in conjunction with other public and private actions across the forest landscape, will contribute to the survival and recovery of listed and unlisted species.

Information provided in some HCPs and regional land management plans raises these and other questions about both HCPs and the species protection measures required by section 9 and section 4 of the ESA. Unfortunately, neither the HCPs nor their environmental analyses seriously address the question of cumulative effects.

II. ISSUE ONE: ARE HCPs USING CREDIBLE APPROACHES TO MINIMIZE AND MITIGATE IMPACTS TO LISTED SPECIES' HABITATS?

A. Mitigation Requirements for HCPs

The ultimate goal of the Endangered Species Act (ESA) is to help populations of threatened and endangered species recover to the point where listings and more inflexible habitat protections are no longer necessary.(21) In writing section 10(a) of the ESA, Congress arguably sought to reduce landowners' burden under the ESA, while consulting that landowners would contribute to species' overall habitat needs and chances for survival and recovery.(22) This is perhaps the most constructive way to interpret the requirement in ESA section 10(a)(2)(B)(ii) that, in order to receive an incidental take permit (ITP), landowners need only minimize and mitigate their impacts to listed species to the maximum extent practicable.(23) The ESA's maximum extent practicable standard can easily be understood as requiring, at the very least, no net loss of habitat for listed species, except where available technology or excessive costs are a limiting factor.

Most forestland habitat conservation plans (HCPs) are based on entirely different premises. For example, the United States Fish and Wildlife Service (USFWS) simply stated with regard to the Plum Creek HCP that "`practicability' refers to economic and operational feasibility for the Applicant in the context of the activities it proposes under the requested Permit."(24) These problems are also exacerbated by the tendency of the United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services) to under utilize their authority to require measures beyond the landowners' initial requirement to minimize and mitigate their impacts.(25) This situation increases the likelihood that HCPs will provide a haphazard and minimal approach to ensuring that species and their habitats will be protected.

In accordance with the Act's recovery goal, ESA section 10(a)(2)(B)(ii) also precludes the Services from approving HCPs which would appreciably reduce a listed species' chances of survival and recovery in the wild.(26) However, the Services appear, for all practical purposes, to be interpreting this standard as simply requiring that HCPs not lead to extinction of a species.(27)

B. Impact Minimization Versus Mitigation

Until very recently, the Simpson HCP was the only spotted owl HCP for private lands which was designed to maintain a population of spotted owls on the property.(28) Strictly speaking, Simpson's provision of a spotted owl reserve area should be defined as impact minimization, not mitigation. The reserve essentially maintains a portion of the existing spotted owl habitat and owl population; it does not necessarily replace other owl nest sites and habitat that are being taken. This distinction highlights serious deficiencies in the dominant approach to forestland HCPs.

In most cases, especially for species other than spotted owe forestland HCPs are simply providing short-term reductions in the intensity of impacts to species' habitats. By themselves, such approaches are likely to result in a decline in species' sites and populations over time. The Weyerhaeuser Willamette and Murray Pacific Amended HCPs, for example, ostensibly address listed and candidate species such as the bald eagle, golden eagle, osprey, northern goshawk grizzly, gray wolf, wolverine, Vaux's swift, and Pacific fisher.(29) The HCPs largely focus on protecting these species' nest and den sites during the nesting or denning season, and only then if the sites are occupied.(30) In most cases, the sites may be logged or otherwise modified once they are deemed unoccupied.(31) This approach is commonly used for forests harboring marbled murrelet or the spotted owl.(32)

One partial exception is where HCPs for northern spotted owl are increasing the amount of dispersal habitat in return for taking primary old growth, stands of old growth which have been selectively harvested, late successional forest, and other sources of nesting, roosting, and feeding habitat for the owls. This is the prevailing approach used to address spotted owls on private lands. To the extent that the HCPs adequately define dispersal habitat in terms of forest stand structure and landscape patterns, it could be argued that some impact mitigation is occurring. However, many HCPs fail to require the landowners to manage their forests for specific stand conditions.(33) This approach also assumes that federal lands will provide a sufficient number of nest sites for owl survival and recovery, and that most private lands need only to enable owls to migrate between federal holdings. This assumption is highly questionable, returning us to the question of whether providing dispersal habitat does, in fact, provide adequate mitigation for taking higher quality nesting, roosting, and feeding habitat.

C. Arbitrary Protection Levels and Misleading Analyses

Put most simply, forestland HCPs often rely upon conservation measures which lack credibility, which are arbitrary, or which simply do not appear sufficient to offset the impacts of timber operations and other land management activities. A study of spotted owls' habitat use patterns also described HCPs as using biologically arbitrary mitigation measures to offset impacts to listed species and their habitats.(34) Ironically, the Simpson HCP,(35) which the study cites as an example of such arbitrariness,(36) is one of the more thoroughly researched HCPs for northern spotted owls.

The approach of focusing on dispersal habitat for spotted owl, for example, ignores the fate of other species which may have been relying upon the older, more complex forest stands and individual old trees that are being reduced or eliminated pursuant to these HCPs. For example, before the HCP, Murray Pacific had 4,478 acres of nesting, roosting, and feeding habitat for northern spotted owl, and 4,900 acres of suitable nesting habitat for goshawk including 581 acres of virgin old growth forest, 665 acres of primary, old growth forest which was selectively harvested 80 years ago, and 2,834 acres of stands over 100 years old.(37) Most of these older stands will now be harvested under a forty-five to sixty-five year rotation cycle. Forestland HCPs do not generally examine whether such old growth sites are being used by different old growth-dependent species.

Some HCPs, such as the Washington DNR,(38) Murray Pacific,(39) and Weyerhaeuser Willamette HCPs,(40) do begin to provide older forest types in the riparian buffers being provided for larger, fish-bearing streams. In some cases, the innermost portion of these riparian buffers are off-limits to timber operations. However, these HCPs, which run for 100 years at the most, will expire before, or concurrently with the stands' development of an older tree component in these riparian buffers. The Weyerhaeuser Willamette HCP, for example, tested its stream protection standards by applying them to a neighboring Bureau of Land Management (BLM) property. The results indicate that desired conditions for medium and small streams will not be reached for eighty years. However, the HCP will expire at year forty unless Weyerhaeuser chooses to renew it, meaning that mitigation may never really occur.(41) As the Murray Pacific HCP also acknowledged. riparian reserves will also provide little interior forest habitat, because of their narrow, linear shape.(42)

Overall, species other than spotted owl receive very cursory treatment by forestland HCPs. HCPs which claim to address a multitude of listed and unlisted species often do little more for those species than HCPs which only address spotted owl. Indeed, forestland HCPs commonly claim to address species other than spotted owl and marbled murrelets simply by arguing that 1) the species either is not currently using the property, or not really dependent upon the property, 2) an insignificant portion of the species' range will be affected, 3) the species is adequately protected by state Forest Practice Act (FPA) rules, or 4) the species will be covered by mitigation measures provided for the spotted owl or murrelet.(43)

Such approaches might be more credible if the landowners or the Services had actually surveyed for the species in question. However, landowners typically only survey for a few high-profile listed or candidate species, such as spotted owl, marbled murrelets, and some salmon species. Otherwise, HCPs are usually based upon a review of the state's natural heritage database. These databases commonly rely on data that is incomplete, particularly for private lands.

State FPA rules also do not have the same goals as the ESA. Even in cases where states are supposed to develop FPA rules to protect federally listed species, as in Oregon, the resulting rules are not necessarily sufficient to serve as surrogates for conservation plans and impact mitigation measures required by the ESA.(44) There is also no guarantee that these and other state rules will continue to be operative over time, as groups favoring deregulation continue to pressure state legislatures and administrative agencies.(45)

Most HCPs also ignore the fate of habitats and species should the property be developed for nonforest uses. One of the most recent HCPs, Weyerhaeuser Willamette, goes a step further by explicitly allowing "take" that may result from subdivision, housing construction, and other development activities permitted by local land use laws.(46) Yet the HCP neither assesses the likely impacts of development activities, nor does it mitigate these activities should they occur.(47)

D. Net Benefits and Baseline Resource Assessments

Most private forestland HCPs are approved with the understanding that they provide a net benefit to species when compared with `no action' alternatives. HCPs should, arguably, provide a net benefit to the species being addressed. However, net benefits analyses are being substituted for analyses of whether the HCPs sufficiently minimize and mitigate the take of and harm to species habitats. Such comparisons fail to address whether the HCPs minimized and mitigated impacts to the extent practicable, whether they addressed unlisted species as if they were listed, and whether they support species recovery.

The no action scenarios identified by most HCPs also provide an inaccurate and inappropriate baseline for net benefits analyses. Absent an incidental take permit (ITP), the ESA generally prohibits landowners from harming listed species and key habitat areas Nevertheless, the HCPs' no action alternatives often significantly downplay the landowners' duty to protect listed species habitats in lieu of the HCPs. More specifically, the HCPs often assume that species would not be protected on private land. Consequently, they claim credit for mitigation measures that may not even be as rigorous as the habitat protections that would otherwise be required by the ESA.

The new Weyerhaeuser Willamette HCP provides an excellent example of this common problem. The HCP's IA states that the provision of an overall net benefit to species habitats is the primary mitigation for incidental take of listed and unlisted species.(48)

In addition to assuming that most remaining spotted owl habitat could be removed under the no action alternative, and that sedimentation of salmon spawning beds could continue without an ITP, Weyerhaeuser also assumes that none of the listed, candidate, proposed-listed, and other unlisted species would be elevated to a higher protective status over time.(49) A more credible "no action" scenario would include listings and habitat protections for some of these species. Weyerhaeuser's skewed no action alternative also ignores watershed analyses and other voluntary measures that the company was already undertaking prior to the HCP.(50)

The scope of these problems grows rapidly as HCPs are expanded to cover unlisted species. As with the Washington DNR, Plum Creek, Port Blakely, and Murray Pacific Amended HCPs, the Weyerhaeuser Willamette HCP included specific, supplemental habitat mitigation measures in the HCP for several listed and candidate species because the HCP's generic conservation measures did not adequately address their needs. This raises a basic question that these HCPs never answer if the HCPs' basic forest management approach is inadequate for these listed and candidate species, why should we assume that it will suffice for other unlisted species that do not fare well under intensive industrial forest management practices?(51)

Several forestland HCPs, including Plum Creek and Weyerhaeuser Willamette, also failed to account for how various exceptions to their conservation measures may reduce the efficacy of those measures and the HCPs' purported net benefits. The Weyerhaeuser Willamette HCP, for example, allows the company to modify the prescriptions up to fifteen percent for riparian areas and biotopes within the area before notifying the Services.(52)

E. Positive Precedents

The Simpson HCP(53) demonstrates the feasibility of maintaining reserve areas of late-successional, old-growth, and mixed-age forest stands on industrial ownerships, above and beyond riparian buffer strips. More recent private land HCPs have not generally followed Simpson's lead. However, three other private land HCPs take significant steps beyond the norm. The new Ribar Timberlands HCP, for example, involves an agreement to maintain the landowner's existing spotted owl nest site, or a replacement site, throughout the HCP's duration.(54) Port Blakely will also survey for and protect all spotted owl nest sites over time.(55) This sharply contrasts with the more common approach, where only existing spotted owl sites are protected, and only then until the nesting season is over or, depending upon the HCP, until the site fails due to a lack of habitat. It is not clear, however, whether spotted owls are likely to colonize the younger stands that will be produced under Port Blakely's HCP. Port Blakely will provide habitat for three breeding pairs of goshawk, even though there was only one active nest site at the beginning of the HCP.(56)

The Scofield Corporation HCP also set a valuable precedent by limiting timber operations to a selective harvest.(57) The harvested stands should provide suitable habitat again for the spotted owl relatively soon, given that the harvest affected only part of the periphery of one spotted owl home range, a significant amount of timber volume was retained, including some large trees and most snags and down logs, and future harvests will be permanently limited on the site.(58)

Of all the forestland HCPs, the Elliot State Forest HCP probably takes the most thorough approach to reducing and mitigating impacts to listed species.(59) This public land HCP retains a population of spotted owls and marbled murrelets, uses 80 to 240 year timber rotations, maintains late successional reserves in areas outside of the riparian protection corridors, retains murrelet habitat beyond the core portion of the nest sites, and begins to replace most of the spotted owl nesting, roosting, and feeding habitat that will be harvested.(60) The HCP also does not claim that this approach will necessarily be sufficient to increase the resident spotted owl and murrelet population, nor does it claim that its various conservation measures have adequately addressed unlisted species. Consequently, the regulatory assurances being given to the State of Oregon are more congruent with the conservation benefits provided by the HCP.

F. Defining "Maximum Extent Practicable"

Landowners are being given substantial discretion to decide what conservation strategies and mitigation measures are economically practicable. As the positive examples set by Ribar and Port Blakely illustrate,(61) most forestland HCPs failed to adopt alternate forest management regimes which could help meet the needs of listed and unlisted species, while still returning income to the landowners. Measures that would involve a short-term reduction in landowners' income from forest management are being defined as impracticable without any discussion of the measures' actual cost, of whether the measures are technologically and ecologically feasible, or of whether the measures might also be of longterm economic benefit to the landowner and others.

The Coast Range Conifers HCP, for example, rejected all harvesting methods other than clearcutting as simply being economically and silviculturally impractical.(62) The Weyerhaeuser Millacoma HCP rejected an alternative that would have maintained a minimal population of seven spotted owl pairs because it would require the company to manage for more mature forests, and would have unspecified and undocumented "short-term and long-term economic impacts."(63) Apparently, the Company did not wish to consider the economic benefits of managing the property for the higher quality sawtimber and other forest products yielded by older forest stands. The Regli Estate HCP, for its park adopted an internally contradictory analysis of the landowners' estate tax liabilities to justify their intensive timber harvests, which netted the Estate far more income than they needed to pay the taxes.(64)

The Services have also accepted unsustainable forest management strategies as a reason for private landowners to harvest their remaining late successional and old growth timber. Murray Pacific, for example, indicated that 42% of its merchantable timber was within the home range of three to four northern spotted owls, even though this habitat accounted for only 8.6% of the ownership. Not surprisingly, the Company felt it had no choice but to harvest this remaining owl habitat.(65) The Coast Range Conifers HCP documented a similar situation. Here the landowners stated that they needed to harvest the site in question because the remaining 96% of their 2,850 acre ownership was in young stands not yet suitable for harvest.(66)

These last two examples suggest that the current approach to forestland HCPs may tend to unduly reward landowners who have already converted most of their ownerships to less biologically diverse, more intensively managed timber stands. Private forestland HCPs typically involve situations where the current or previous landowners have liquidated most of their older stands, and where the current landowners are interested in harvesting those older stands which still remain. Landowners who are managing their land for older, more diverse stands are generally not developing HCPs--even though these are the very landowners who should be rewarded for helping to further the ESA's habitat conservation and restoration goals.

Judging from forestland HCPs and their associated documents, the Services do not appear to be evaluating or second-guessing landowners' claims about economic practicability. The Services' HCP Handbook now states that landowners must provide supporting data if reasonably available and nonproprietary.(67) Unfortunately, the new Weyerhaeuser Willamette HCP, as submitted to the Services, indicates that the Services have yet to internalize this new standard.

The Weyerhaeuser Willamette HCP also includes a clause which may allow the company to back out of its mitigation commitments should these commitments become "impracticable" at some later time.(68) Indeed, Weyerhaeuser is not required to improve its mitigation measures if this becomes more practicable over time. There is no limitation on the types of situations this provision coves. Weyerhaeuser's earlier Millacoma HCP included similar language.(69) These escape clauses further upset the quid pro quo between private landowners and the public.

G. Public Acquisition as Mitigation

The Coast Range Conifers HCP raises the question of whether purchasing a portion of a privately-owned habitat area mitigates for impacts to the remaining area Here, the landowners sold forty nine acres of northern spotted owl and marbled murrelet habitat to the United States Forest Service in return for an ITP that allowed them to log the remaining sixty acres of habitat.(70) Because habitat on the transferred parcel should have already been largely protected under the take prohibitions of ESA section 9, protecting it twice does nothing to mitigate for impacts to other parcels.(71) This also raises the question of whether the Forest Service financially compensated Coast Range Conifers for complying with the ESA.

H. Is There Life After HCPs?

Some HCPs have also utilized questionable assumptions about how the property will be managed once the HCP expires. The Regli Estate HCP, for example, claims that spotted owl sites that are being partially and, in one case, heavily logged under the HCP are likely to be repopulated by spotted owls once the stands reach maturity again.(72) However, the HCP does not consider whether the landowners are likely to harvest the stands once the HCP expires in twenty years, before the stands are repopulated by the owl. The Murray Pacific HCP also indicates at one point that its riparian area "reserves" will be permanent, even though the landowner has not made any commitments beyond the HCP's one hundred year life-span.(73) In fact, the Scofield HCP is the only HCP which incorporates mechanisms that may provide long-term mitigation.(74)

III. Issue Two: Are HCPs Adequately Addressing Unlisted Species in Return for Agreement Limiting Landowner's Obligations to protect The species if Listed?

Under the No Surprises Policy, landowners who address the needs of unlisted species through their habitat conservation plans (HCPs) will be exempted from providing additional mitigation measures should those species be listed in the future. Not surprisingly, a number of HCPs have begun to address significant numbers of unlisted species. The Washington Department of Natural Resources (DNR) and Murray Pacific Amended HCP even claim to minimize and mitigate impacts to all unlisted species which might ever use the property, including species which are not yet known.(75) However, as recognized by the Services, it is difficult to address a species' conservation needs if the species has not been well-studied, as is the case with most unlisted species.(76)

A. Whether Unlisted Species Are Addressed As If They Were Listed

As with listed species, it is doubtful that most forestland HCPs minimize and mitigate impacts to species' habitats to the maximum extent practicable. This issue is particularly important when HCPs address unlisted species that are candidates for federal listing, are proposed for federal listing, or are otherwise in decline. However, since the definition of "practicable" is itself in dispute, it may be more straightforward to simply ask whether the HCPs address unlisted species as if they were listed, as is required by the Services' HCP Handbook, and the No Surprises Policy.(77)

The answer generally appears to be no. The Regli Estate HCP and Coast Range Conifers HCPs, for example, addresses several species which are sensitive, but currently unlisted, by simply identifying the species in the HCP, briefly discussing their general habitat needs, indicating whether suitable habitat is likely to be found on the property, or by consulting natural heritage databases to determine whether the species are likely to be found on the property.(78) In cases where species were considered likely to be present, both HCPs often claimed that the state Forest Practice Act (FPA) rules provided adequate protection. Neither HCP included any monitoring provisions for unlisted species.

As discussed earlier, most forestland HCPs allow landowners to harvest much, if not all, of their residual old growth and late successional forest stands.(79) These older forest stands are likely to harbor a variety of unlisted species that depend in varying degrees on late successional and old growth forests. However, the HCPs usually only compensate for this loss of older forest habitats by deferring timber harvest in riparian buffer zones and inoperable sites (i.e., extremely steep or unstable slopes) for the limited life-span of the HCPs. Some HCPs, such as the Coast Range Conifers, Regli Estate, and Weyerhaeuser Millacoma HCPs, do not even do this.

The amendment to the Murray Pacific HCP, for example, notes that goshawk are one of the candidate species on the site, and that the site encompasses 4,900 acres of suitable nesting habitat, including 2,834 acres of stands over 100 years old.(80) While most of the site's older forest stands will be harvested under the HCP, the HCP does not include any mitigation measures that are identified as benefiting goshawk specifically. Nor does the HCP indicate how rare lichens, bryophytes, plants, and other species which may depend upon older trees, stands, and ecosystems, but which have very slow migration rates, will become established in Murray Pacific's new riparian reserves.(81)

In most cases, neither the landowners nor the Services surveyed for many of the unlisted plant and animal species covered by the HCPs, including species listed as federal candidates or state "rare" or "sensitive" species.(82) Not surprisingly, Coast Range Conifers did not even know whether some unlisted species use the property.(83) The Washington DNR HCP, for example, simply states that the DNR "shall not be required to survey for nests, dens, roosts, or individual occurrences of unlisted species."(84) Nevertheless, species surveys are needed to establish a credible baseline for No Surprises agreements and to determine whether an HCP has maintained a species' habitat viability and survival.(85) Simply consulting a state natural heritage database is not adequate for this purpose.

The Weyerhaeuser Willamette and Port Blakely HCPs also state that the landowners are not required to mitigate for impacts to unlisted species that occur prior to their listing.(86) This directly contradicts the purpose of the No Surprises Policy, which is to encourage landowners to protect species habitats before the species are listed. Likewise, the Weyerhaeuser Willamette HCP and Implementation Agreement (IA) state that the Services will discount the need to mitigate impacts to unlisted species if the HCP produced unspecified "desirable habitats" for other species.(87) HCP should not only provide a net benefit to species, but should also benefit the same species being impacted.

B. Using Timber Inventories to Model Habitat Trends

Two recent, large HCPs--Plum Creek and Weyerhaeuser Willamette--use simplified timber stand inventories to model habitat trends for listed and unlisted species. These models are of questionable ecological accuracy, and fail to account for basic habitat and silvicultural variables.

The Plum Creek HCP claims to address roughly 300 vertebrate species, including 4 listed species, 21 federal candidate species, 11 other federal and state listed and special-status species, and 249 unlisted species, as well as any unnamed vertebrates in the area(88) Plum Creek addressed most of these species by: 1) placing them into habitat guilds, 2) associating these guilds with seven simple timber stand categories, and 3) predicting the amount of land that will be in the stand categories over time.(89) The HCP then requires Plum Creek to come within 20% of these projected inventory figures.(90)

Even assuming that Plum Creek identified a sufficient diversity of stand categories and distributed them properly across space and time, there are virtually no requirements for the company to maintain the understory, medium and fine woody debris, and other habitat components which might be associated with those stands under idealized conditions. In short, Plum Creek's approach provides a single, simplified wildlife habitat indicator--a generalized seral stage category. This approach largely fails to address habitat quality, and additionally, does not distinguish between the presence of habitat and whether the habitat can be used by a species. Not surprisingly, the amount of habitat considered primary habitat for unlisted species is often expected to decline significantly under the HCP.(91)

The timber inventory used by the Weyerhaeuser Willamette HCP suffers from most of the problems found with Plum Creek's model, and highlights a few more.(92) As with Plum Creek's HCP, likely changes in Weyerhaeuser's silvicultural practices will undermine assumptions about the types of habitats provided by different timber stands. Weyerhaeuser is, for example, moving towards management of the property as a fiber plantation.(93) Some habitat conditions commonly associated with the later years of a forty-five to fifty-five year timber rotation--including the condition of overall stand structure, understory vegetation, and medium and fine woody debris component--will not occur if Weyerhaeuser moves towards shorter rotations or increases the use of whole tree logging.(94) Nevertheless, these shorter rotations and biomass harvests could conceivably still meet the HCP'S oversimplified timber inventory targets.(95)

C. The Timing of Habitat Benefits

The Weyerhaeuser Willamette HCP also provides a clear example of a common problem with the timing of habitat benefits. Like Plum Creek, Washington DNR, and other HCPS, the Willamette HCP claims broad credit for habitat benefits which will actually be quite limited in time and space. As noted above, some of the habitat benefits claimed by the HCP will only be realized towards the very end of the company's forty-five to fifty-five year timber rotations--assuming that Weyerhaeuser continues to use more typical silvicultural practices. Even the seventy-year timber rotations used by the Port Blakely HCP may only provide some basic habitat components towards the end of each rotation. Consequently, the benefits claimed by such HCPs Will never persist across a significant portion of the properties.

Some of Weyerhaeuser's purported habitat benefits also do not appear until eighty or one hundred years down the road, well after the HCP'S initial expiration date.(96) While the HCPs IA states that overall benefits for species will result regardless of when the HCP is terminated, the Services found that the HCP must run for at least eighty years to help species whose habitats are currently degraded.(97)

D. The No Surprises Policy and Listing Previously Unlisted Species

Under section 10(a)(2)(B)(ii) of the Endangered Species Act (ESA), one might expect the Services to reconsider whether an HCP adequately addresses an unlisted species when the species is officially listed.(98) At that time, the Services should, arguably, determine whether allowing ongoing impacts to the newly listed species appreciably reduce the species likelihood of survival and recovery in the wild.

However, it is more likely that the No Surprises Policy will continue creating a presumption that the HCPs' mitigation measures are sufficient for the newly-listed species. Most IAs for unlisted species HCPs explicitly state that the HCPs adequately address the unlisted species. Moreover, the same political pressures and conditions which are leading the Services to approve HCPs in their current form will most likely encourage the Services to uphold these HCPs over time.

Landowners may also successfully avoid protecting unlisted species and their habitats for another reason. It is possible that the Services will only consider activities occurring after a species' listing when deciding if HCPs jeopardize a newly listed species' survival and recovery.(99) Since HCPs often allow significant impacts to unlisted species' habitats, the species or their habitat may no longer exist on HCP sites by the time listing occurs. Couple these possibilities with the Services' practice of only protecting habitat areas which are actively being used by listed species, and the landowners will have successfully avoided protecting both the species and its habitat.

E. Important Steps Forward

Three HCPs have included specific impact minimization measures which are worth noting as positive examples. The Amended Murray Pacific HCP limits the use of broadcast burning to protect soils and down woody debris.(100) This is important because providing additional downed logs and snags is one of the few mitigation measures commonly provided for unlisted species. Unlike most other HCPs, the Port Blakely and Elliot State Forest HCPs are also fairly specific about the types of silvicultural methods that will be followed on the properties to meet the plans' goals.(101)

Overall, a number of more recent HCPs, including Washington DNR, Port Blakely, Murray Pacific, Elliot State Forest, Plum Creek and Weyerhaeuser Willamette, protected fish-bearing streams above and beyond levels required by state Forest Practices Act rules.(102) The Washington DNR HCP goes the furthest by reducing timber harvests within 100 to 150-foot buffers along Type 1 to 4 waters, and by largely precluding logging within a smaller 25-foot buffer.(103), The Weyerhaeuser Willamette and Elliot State Forest HCPs also begin to provide specific protections for intermittent 

streams.(104) The Weyerhaeuser Willamette HCP, for example, requires the company to distribute a few of their leaf trees along non-fish-bearing streams, and to begin limiting impacts from log skidding in the stream channel.(105) Port Blakely, in turn, agreed to limit ground-based logging on slopes over 30% within riparian zones, and explicitly agreed to bring all existing roads up to current Washington FPA design standards for fish passage and erosion control.(106)

Given the impending listing of several species of anadromous fish it is not surprising that many of the HCPs' mitigation provisions focus heavily on enhanced stream and riparian area protections, along with some measures for spotted owl and a few other high-profile species. While these stream protections are often limited to buffers along fish-bearing streams and stream segments, and are not necessarily sufficient for salmonids and other aquatic species, they are nevertheless a significant step forward.(107)

Four recent HCPs also make some notable progress in terms of modeling species' habitat needs. The Port Blakely HCP uses a United States Forest Service habitat model to determine how many snags of different sizes need to be retained for unlisted cavity nesters. Equally important, the Port Blakely HCP agrees to retain the full range of snags needed to provide for the different cavity nesters.(108) The Murray Pacific HCP Amendment, for its part, utilizes a relatively thorough analysis of the types of streams which are likely to be used by sensitive fish species, and whether these streams run through the property.(109)

The new Ribar Timberlands HCP also uses an enhanced version of the California Wildlife Habitat Relationship (WHR) system to assess spotted owl habitat.(110) Compared with the timber inventories used by Plum Creek and Weyerhaeuser Willamette to evaluate wildlife habitat trends, the WHR system utilizes a more detailed set of timber stand classifications to account for variations in forest type, seral stage, stand structure, and other variables, and yet is still workable from a silvicultural perspective.(111) Even so, the WHR system does not include sufficient information to rate wildlife habitats at the stand level leading Ribar's consultants to supplement the system with additional spotted owl habitat attributes.(112)

The Services have also taken a critical step forward with the Weyerhaeuser Willamette HCP by providing a lower level of No Surprises assurances for some of the species that will not benefit from the HCP. The HCP indicates that the Services feel Weyerhaeuser will need to provide additional mitigation for unlisted species that depend upon older, interior, non-riparian forests, since the HCP does not provide for this habitat type.(113) This approach should have been used with Plum Creek and the other multispecies HCPs as well.

Ironically, the Simpson HCP, which was one of the earliest HCPs, and which focuses solely on spotted owl, contains one of the stronger precedents for unlisted species. The Environmental Assessment for the HCP states that Simpson considered doing a multispecies HCP, but rejected the idea because it "would require data on each of the other species equivalent to the level collected on the [northern spotted] owl."(114) As noted above,(115) the Simpson HCP relies upon relatively thorough research into local spotted owl populations, ecology, and habitat relationships.(116)

IV. ISSUE THREE: ARE THE IMPLEMENTATION AGREEMENTS FOR HCPs INCLUDING ADEQUATE IMPLEMENTATION AND ENFORCEMENT MECHANISMS?

A. Basic Enforcement Provisions

Most implementation agreements (IAs) fail to provide the Services with clear authority to require restoration or other remedies, or to otherwise hold the landowners liable should they violate the terms of their habitat conservation plans (HCPs) and IAs. Some IAs go a step further by explicitly indemnifying the landowner from liability. The Plum Creek IA, for example, states that "no party shall be liable in damages to another party . . . for any breach [of the HCP or IA] . . . or failure to perform."(117) The Coast Range Conifers IA, on the other hand, simply failed to incorporate any enforcement language.(118)

The Weyerhaeuser Willamette IA, for its part, largely substitutes a dispute resolution process for the simple "remedies and redress" language found in most IAs.(119) While the Weyerhaeuser Willamette IA states that the parties may seek legal remedies,(120) the effect of mandatory dispute resolution will be to introduce delay into situations where ongoing activities may be harming species and their habitats. The IA also restricts the Services' actions to cases where a species' chances of survival and recovery would otherwise be jeopardized.(121)

It is also unclear whether most IAs provide the public with any rights or powers to enforce the provisions of forestland HCPs. The public is not generally included as parties to the IAs, nor as express beneficiaries of the HCPs or the IAs.

B. Requiring Ongoing Mitigation

Most forestland HCPs allow the landowners to impact or eliminate species habitats during the early years of the HCP in return for providing some limited mitigation during later years. As discussed earlier, key mitigation measures are often not expected to benefit the species in question until near the end of the HCP's lifespan.(122) Consequently, it is important that the landowners be required to fully implement their HCPs' mitigation measures over time.

However, most IAs rely upon minimal provisions for injunctive and temporary relief, as well as suspension, revocation, or termination of the incidental take permit (ITP). These provisions probably do not provide the Services with sufficient leverage to compel ongoing implementation of an HCP's mitigation requirements, such as provisions of riparian reserves or dispersal habitat, after habitat for listed species has already been impacted and the landowner no longer needs the ITP.

The Services have begun to take some small steps to remedy this problem. The IAs for the Plum Creek Weyerhaeuser Millacoma, and Washington State Department of Natural Resources (DNR) HCPs include some basic language stating that "take" must still be mitigated should the HCP be terminated early.(123) However, the more recent Weyerhaeuser Willamette HCP appears to reverse this trend.(124)

C. Further Upsetting the Quid Pro Quo

Some recent IAs also tip the scales in the landowners' favor, above and beyond assurances provided to the landowners by the No Surprises Policy. The Weyerhaeuser Willamette HCP, for example, contains a number of provisions which allow the company to modify the HCP.(125) These changes will become automatic unless the Services can document problems with the proposals within a short time period. Meanwhile, the Services are given little power to request changes to the HCP.(126)

The IA for the Weyerhaeuser Willamette HCP also specifically states that Weyerhaeuser will not be liable for damages for failure to implement the HCP. At the same time, the IA states that the Company can recover costs associated with any failure by the Services to make a "good faith effort" at dispute resolution.(127) The Weyerhaeuser Millacoma HCP and IA also stated that Weyerhaeuser may harvest timber which was identified for wildlife habitat by the HCP if the Company is enjoined by court actions.(128)

D. Implementation Agreements--Positive Precedents

Two aspects of the Regli Estate HCP warrant further attention. First, the IA grants the United States Fish and Wildlife Service (USFWS) the right to require restoration of any habitat values that are impacted in violation of the HCP. While the landowners are given a reasonable amount of time to correct violations on their own, the Services retain clear authority to require remediation. Second, the IA gives the Services the right to seek damages for some types of violations. These provisions were included as part of a conservation covenant and restriction that was attached to the property's deed, which has the added benefit of ensuring that future landowners must also comply with the HCP should the property be sold during the HCP's lifespan.(129)

The Scofield Corporation HCP is the only HCP that begins to consider whether permanent mitigation should be required for what would otherwise be the permanent loss of old growth stands, spotted owl habitat, and other key resources.(130) This HCP uses a deed restriction to ban all future timber operations on a forty-acre parcel, in return for a one-time permit to harvest mature timber within the median home range of a spotted owl site on neighboring federal land.(131) According to the IA for the Amended Murray Pacific HCP, the HCP's terms will also be placed as a covenant on Murray Pacific's deed to ensure that the HCP will remain operative for the remainder of the HCP's hundred-year life span, should the land be sold.(132) Unfortunately, the Scofield and Murray Pacific deed restrictions may be somewhat toothless.(133) Perpetual mitigation would be achieved more credibly through conservation easements that permanently dedicate specific rights and remedies to a private land trust or other qualified third party.

Finally, it is worth noting that the Port Blakely IA imposes more reasonable limits on adding new lands to the HCP than do other IAs.(134) Port Blakely's approach, while still somewhat lacking, does limit additions to lands which have similar habitats to those originally covered by the HCP.

E. Monitoring and Adaptive Management 

Many HCPs allow the landowners, rather than the USFWS or a third-party, to monitor their own activities and performance under their HCPs. Monitoring is, of course, an essential part of any implementation and enforcement system.(135) While these HCPs usually give the USFWS authority to verify the landowners' compliance with the terms of their HCPs, this does not necessarily enable the USFWS to determine whether the HCPs' conservation strategies and mitigation measures are proving sufficient to offset incidental take and to promote survival and recovery of species over time.

Landowners' monitoring reports are often limited to general and partial indicators, such as timber stocking in different age classes.(136) While some HCPs include monitoring of habitat use by specific species, such as spotted owl or marbled murrelets, this is often designed simply to confirm when nest sites or other habitat areas have been abandoned, making them available for timber harvest.

These problems increase greatly with HCPs that address large numbers of unlisted species. The monitoring programs for the Plum Creek and Weyerhaeuser Willamette HCPs, for example, are largely focused on demonstrating whether the companies have met their timber inventory targets, as well as their requirements for leave trees, snags, and down logs.(137)

This relative lack of performance indicators also affects the HCPs' adaptive management provisions. Without a richer set of indicators and goals, it will be impossible for the landowners and the Services to determine when management changes are warranted--assuming that the HCPs and IAs provide the Services with sufficient authority to require management changes. The No Surprises Policy also severely limits the Services' ability to request additional or improved mitigation measures from landowners. Such limitations are reflected in adaptive management plans like Plum Creek's which precludes any management changes that might result in additional costs to the company.

F. Positive Precedents for Monitoring and Adaptive Management

A few HCPs do include somewhat stronger monitoring and adaptive management provisions. Simpson, for example, will continue studying spotted owl reproduction on its property.(138) Port Blakely has agreed to monitor the growth and survival of leave trees, to determine whether they will provide a sufficient distribution of snags for the future.(139) Port Blakely also agreed to provide long-term monitoring of stream conditions, including substrate character, large woody debris, and channel character.(140) Weyerhaeuser has also agreed to monitor stream conditions as a follow-up to its watershed analyses on the Willamette property.(141) Finally, the Washington DNR HCP adaptive management plan identifies several potential management changes that DNR will undertake should they become necessary, even if they involve additional costs.(142)

V. ISSUE FOUR ARE HCPs SUPPORTING REGIONAL CONSERVATION PLANS AND POLICIES DESIGNED TO PROVIDE SURVIVAL AND RECOVERY OF SPECIES ACROSS THEIR NORMAL RANGES?

The conservation measures employed by habitat conservation plans (HCPs) often appear to be based on regional species and ecosystem conservation plans and policies that are not fully adequate for the survival and recovery of listed and de facto threatened and endangered species. This likelihood is not always immediately evident from the HCPs themselves, since most HCPs and their environmental assessments (EAs) fail to seriously address the HCPs' contributions to overall trends in species' habitats and viability.

A. Planning Context for HCPs

While one might expect the species recovery plans required by the Endangered Species Act (ESA) to provide the official planning context for HCPs, section 10(a) of the Act does not explicitly require this. Moreover, the Services are not requiring landowners to actively support recovery of listed and de facto threatened and endangered species through their HCPs. The significance of this problem will only increase as HCPs are approved across ever-increasing portions of endangered and threatened species' ranges.

Forestland HCPs also tend to be based upon the Services' tacit decision to locate much of the responsibility for protecting and recovering threatened and endangered species to lands managed by the United States Forest Service, the Bureau of Land Management (BLM), and other federal agencies. Many HCPs addressing the northern spotted owl's presence on private lands, for example, only provide dispersal habitat for the owl, under the assumption that the Northwest Forest Plan for Federal Forestlands can and will be managed to provide sufficient nesting, roosting, and feeding habitat for the owl.(143) HCPs are not generally requiring landowners to move beyond the fifty-year timber rotations which are typical for western Oregon and other parts of the region.(144) On the other hand, the Services have generally been requiring landowners to begin coordinating the provision of dispersal habitat for spotted owl with the location of late successional reserves on neighboring federal lands.

However, there is substantial uncertainty as to whether these federal lands can maintain sufficient spotted owl nest sites and nesting, roosting, and feeding habitat. The Northwest Forest Plan was expected to have only an 83% chance of resulting in well distributed spotted owl populations on Forest Service and BLM lands.(145) Whether this 83% probability is, in turn, sufficient to support the longterm survival and recovery of resilient spotted owl populations across a range which includes major tracts of private lands is yet another question.(146) Recent experience with the timber salvage rider to the Recissions Act of 1995(147) also indicates that both Congress and the Administration are likely to plan timber operations which significantly impact remaining old growth forests, late successional reserves, and other areas officially designated for protection under the Northwest Forest Plan.

It is also unclear whether HCPs for spotted owl are implementing policies which specifically address the role of nonfederal lands in conserving spotted owls and other species. As noted above, many threatened and endangered species also depend heavily upon habitats found primarily on private lands. The environmental assessment for the Weyerhaeuser Willamette HCP, for example, cites the Draft Recovery Plan for spotted owls as recommending that higher quality habitats be maintained to support spotted owl pairs on land between federal reserves within a coast to Cascades owl habitat corridor.(148) However, the HCP does not meet this goal of providing "supplemental" owl nest sites on private lands.(149) At the same time, it should be noted that the Simpson, Ribar, Elliot State Forest, and Washington Department of Natural Resources (DNR) HCPs are also providing some spotted owl nest sites in areas where there are few federal late successional reserves, or where owl sites in existing reserves need to be augmented.(150)

B. Relationship With Other ESA Provisions

The Services' tacit decision to effectively absolve private forestland owners of responsibility for maintaining habitats for threatened and endangered species, and for species associated with older forests, is reflected in the implementation of ESA section 9 and section 4. Again, the approach taken with spotted owls provides an interesting indicator of this problem. In Washington and California, the on-the-ground policy for protecting spotted owls is found in ESA section 4(d).(151) Section 4(d) essentially requires landowners to maintain owl habitat within the core portion of owl nest sites. In Washington, these nest circles are generally seventy acres in size. Larger landowners within special emphasis areas may also be required to maintain some additional suitable habitat, unless they agree to increase the amount of dispersal habitat on their lands, or unless they develop an HCP. In Oregon, the State FPA Rules simply require protection of seventy-acre nest sites, though the United States Fish and Wildlife Service (USFWS) is beginning to require some protection for additional portions of each owl's home range.(152)

A number of spotted owl HCPs explicitly state that section 4(d) and state policies fail to maintain viable spotted owl habitats and populations. The Washington DNR HCP states, for example, that twenty-seven to thirty-one spotted owl sites on DNR lands would fail due to poor habitat conditions and isolation under the "no action" alternative.(153) The Ribar Timberlands HCP also notes that it is "common for landowners to include [spotted owl] activity centers in Timber Harvest Plans, and later clear-cut those areas once northern spotted owls have remained absent for three years."(154) Over evaluations of section 4(d) and overall owl conservation strategy have reached similar conclusions.(155)

This problem most likely extends to other species. The Weyerhaeuser Willamette HCP's EA, for example, indicates that the Oregon FPA Rules do not provide adequate protections for cavity-nesters.(156) Nevertheless, the USFWS does not appear to be requiring landowners to go beyond the FPA Rules except, in some cases, when developing HCPs. Likewise, the Services and the States of Washington, Oregon, and California generally do not require landowners to survey their property for listed species unless there is already evidence that the species may be using the property.

Even when listed species are known to be in the general area, forestland HCPs sometimes simply state that their habitat will not be found in the HCP project area per se, given past forest management practices or other factors.(157)

C. Inadequate Analysis of Cumulative Effects

Most HCPs and their EAs fail to address cumulative impacts to the species and habitats in question. Cumulative effects analyses are needed to determine whether individual HCPs are contributing to, or impeding, species' conservation and recovery by permitting landowners to continue eliminating older, more diverse forest stands and their associated habitats across a large percentage of the region's private and state forestlands.(158) One might well ask whether this is a sufficient basis for providing landowners with assurances of the No Surprises Policy.

Rather than asking how the HCPs' effects contribute to larger trends across different species' ranges, forestland HCPs and their EAs usually only consider lands within a few minutes of the project site. Virtually none of the EAs consider the effects of other HCPs, much less other private and public actions. Likewise, few of the HCPs put the landowners' proposed incidental take and mitigation measures in the context of cumulative habitat trends over time.(159)

While the more recent Weyerhaeuser Willamette HCP provides one of the more complex cumulative effects analyses,(160) it still fails to assess cumulative effects per se. The analysis for this multispecies HCP focuses solely on spotted owe and simply compares the effects of the HCP with the `no action' alternative within the HCP's immediate planning area.(161) A more credible, albeit still insufficient approach was taken by the environmental assessment for the Simpson and Ribar HCPs, which calculated the percentage of region-wide spotted owl populations that would be "taken" pursuant to the HCPs.(162)

D. The Elliot State Forest HCP--An Exception to the Rule?

The Elliot State Forest HCP contains the only environmental assessment which attempts to seriously discuss cumulative effects.(163) The discussion provides individual analyses of cumulative effects for spotted owl, marbled murrelet, anadromous fish, water quality, and air quality. These analyses, in turn, consider species populations across the Oregon Coast Range province, as well as management trends on federal lands, the neighboring Weyerhaeuser Millacoma Tree Farm, and other private lands. Unfortunately, the analysis of net cumulative effects to spotted owl simply refers back to the ISC Thomas Report,(164) the Draft Recovery Plan for spotted owl,(165) and the FEMAT Report.(166)

VI. CONCLUSION--DISCUSSION AND RECOMMENDATIONS

Clearly, most forestland habitat conservation plans (HCPs) do not meet the basic policy behind HCPs and are of debatable biological value. The HCPs begin to minimize some of the impacts from industrial timber operations and other activities, provide some limited monitoring, and coordinate management with neighboring federal lands. However, they largely fail to provide mitigation for the old growth, late successional, and other older and more diverse forest habitats which will be eliminated pursuant to the HCPs. Many HCPs' minimization and mitigation measures also lack a basic level of internal credibility.

The level of impact minimization and mitigation being provided for listed and unlisted species is also disproportionate with the level of assurances provided to landowners by the Clinton Administration's No Surprises Policy. Although the Weyerhaeuser Willamette HCP provided a reduced level of No Surprises assurances for some species not expected to benefit from the HCP, problems with unlisted species and HCPs are not generally decreasing. In most cases, landowners are only providing generic impact minimization measures which may not even benefit the same unlisted species that will ultimately be added to the landowners' incidental take permits (ITPs). The gap between regulatory assurances provided to landowners and the development of credible conservation measures for species is only widening as major landowners seek to gain No Surprises assurances for many, if not all, unlisted species.

Consequently, major landowners may ultimately evade responsibility for providing habitat for a large number of species that are de facto threatened and endangered. In a sense, the No Surprises Policy is aptly named, but for the wrong reason. As the Policy is being implemented, it should be very clear to the public that we will not be seeing significant conservation, much less recovery, of threatened and endangered species on private lands.

If we continue to focus our conservation efforts on federal lands, then perhaps state and private landowners should actively contribute towards increased protection for these federal lands, and towards public acquisition of high-priority habitat areas on private lands, in return for receiving ITPs. However, it is highly unlikely that improved management of federal lands will be sufficient for the conservation and recovery of species which have large ranges, which need to migrate between federal ownerships, and which depend more on habitats found primarily in areas managed by other landowners.

Clearly, the No Surprises Policy, and other approaches to implementing the HCP provisions of the Endangered Species Act (ESA) do not give the Services a sufficient foundation from which to work cooperatively with private and state landowners to conserve and recover species and ecosystems. Landowners are largely justifying their failure to provide greater amounts or qualities of habitats through their HCPs by arguing that species' habitats are already highly fragmented and degraded, or soon will be under status quo implementation of the ESA. Some multispecies HCPs also explicitly limit the landowners' responsibility for minimizing and mitigating impacts to unlisted species prior to their potential listing under the ESA. This directly contradicts the No Surprises Policy's stated goal of encouraging landowners to conserve species' habitats before the species are listed.

The structure of ESA section 10(a) also deserves closer attention. Arguably, section 10(a) could have supported the ESA's basic intent by incorporating mechanisms to encourage landowners to conserve and recover species and their habitats beyond the basic levels otherwise required by the ESA. Habitat conservation plans could then be used as a means of providing landowners with some site-specific flexibility in achieving these goals. However, section 10(a) reversed the incentive structure of the ESA by first giving landowners a process for obtaining exemptions from the ESA's take prohibitions, and by then requiring landowners to reduce the impact of these exemptions.

Likewise, the definitions of "take" and "harm" used by the ESA and its administrative rules would provide a stronger basis for developing HCPs if they more directly protected habitat needed for species recovery.(167) Currently, the Services are interpreting the ESA as only prohibiting private parties from impacting habitat areas that may be essential to a species' long-term survival and recovery if those areas currently used by the species.

Another unresolved issue with the policy behind HCPs is the status of the property once the HCP has ended. Forestland HCPs tend to have a lifespan of 20 to 100 years. What happens to the mitigation (or impact minimization) habitat being provided for listed and unlisted species once the HCP expires? Since the HCPs and their implementation agreements usually do not address this issue, one might assume that the mitigation habitat can be harvested or otherwise impacted. However, it could also be argued under the rationale adopted by the Services in approving the HCPs, that this mitigation habitat is essential to the listed species' survival and recovery, and is therefore still protected under the ESA. Unfortunately, it is not clear who will actually enforce the long-term protection of such mitigation habitat.

The Administration could also take steps to help offset section 10(a)'s structural problems. Along with the United States Fish and Wildlife Service's safe harbors policy,(168) HCPs might be a constructive way of working with those non-industrial forestland owners who are actively managing for older, more diverse forests, and who are concerned that the ESA's habitat protections will prohibit them from continuing to manage their land. Indeed, one important goal for forestland HCPs would be to encourage landowners to provide a net increase in habitat for imperiled species in return for ITPs that provide the landowners the option to log or otherwise impact some of the habitat over time, including habitat areas which might be located in more advantageous locations for the landowner.

Certainly, the No Surprises Policy should be revised to require landowners to actively support species recovery in return for the increased regulatory certainty provided by No Surprises assurances. This would be consistent with the understanding that HCPs should not jeopardize a species' chances of survival or recovery in the wild. It could also be argued that, given the current structure of section 10(a), HCPs which do not actively contribute to recovery should only be used more for extreme situations, such as when landowners would otherwise be completely unable to use substantial portions of their property.

The Administration could also improve implementation of ESA section 10(a) by making better use of the ESA requirement that landowners minimize and mitigate incidental take to the maximum extent practicable. Not surprisingly, most landowners who are developing forestland HCPs appear to be doing as little as possible to contribute to species' survival and recovery. Given this tendency, it is incumbent upon the Services to utilize more objective standards for evaluating landowners' conservation contributions. Alternatively, the Services should utilize their authority under ESA section 10(a)(2)(A)(iv) and section 10(a)(2)(B)(v) to require additional measures to conserve and recover species through HCPs.(169)

Making No Surprises prelisting agreements with landowners could also be an interesting and potentially valuable experiment in encouraging landowners to conserve species habitats before those species are listed. The importance of such experiments stems partly from the basic structure of the ESA, which is commonly understood as only enabling the Services to protect species and their habitats after they have become imperiled. However, prelisting agreements should only be made provided either that the conservation needs of unlisted species are adequately met in the HCPs, or that the Services are given sufficient authority to require additional mitigation measures over time. Likewise, the number of years over which landowners are given No Surprises regulatory assurances for a given species or group of species should be proportionate both to the probability that the landowners' conservation strategy will meet the species' needs over time, and to the efficacy of the HCPs' monitoring and adaptive management provisions.

For its part, Congress could work both to improve the design of section 10(a) and to fund additional incentives for landowners to engage in species conservation and recovery. While incentives cannot substitute for basic regulatory programs to protect threatened and endangered species and their habitats, well-designed incentives that augment regulatory programs are an important part of any conservation strategy.(170)

The most balanced and effective legislation introduced to date is Congressman George Miller's (D-Cal.) Endangered Species Recovery Act (ESRA).(171) ESRA makes some of the necessary improvements to the policies behind HCPs, while also providing new incentives for landowners to improve habitat conditions on their property. The bill ensures that HCPs supporting the ESA goal of species recovery are adequately monitored, and utilizing adaptive management plans. Performance bonds must also be posted to help cover the costs of additional mitigation measures which might be required over time, provided the measures were reasonably foreseeable. ESRA also provides improved public review of HCP applications, sets standards for low effect HCPs that can be given expedited review by the Services, and improves HCP enforcement. Finally, ESRA provides new estate tax and income tax credits for landowners who undertake conservation agreements to improve habitat conditions above and beyond levels otherwise required by the ESA.

It will not be easy to transform HCPs and ITPs from regulatory loopholes to constructive land management plans that meet the goals of the ESA while also providing landowners with some site-specific flexibility and regulatory certainty. This objective inherently involves a difficult political, economic, and biological balance. However, some forestland HCPs have already demonstrated the practicability of balancing species' needs with other land management goals. The Simpson and Port Blakely HCPs, for example, included commitments to maintain a portion of the property's spotted owl sites, or to provide habitat for a greater number of goshawk than are currently found on the property.(172)

The Ribar Timberlands Partnership, which considers it reasonable for private landowners to maintain spotted owl populations at current densities, is also minimizing the net loss of spotted owl habitat on the Ribar industrial timberlands.(173) This is the type of activity that the Services' should be focusing on rewarding with No Surprises assurances. The Elliott State Forest HCP, which was perhaps the most progressive large forestland HCP reviewed for this analysis, also demonstrates that landowners can use older timber rotations, maintain basic levels of habitat for spotted owl and marbled murrelet, and still derive a reasonable income from forest management.(174) These and other positive precedents can and should be emulated.

Persons concerned with the effective and fair implementation of the ESA should, of course, also ask what happens in cases where HCPs are not being developed. For example, forestland HCPs indicate that landowners are not generally being required to protect sufficient amounts of high-quality spotted owl habitat. Judging from these HCPs, it is also doubtful whether the Services are actively requiring protection of habitat for other listed species except those species which have received greater public attention, such as marbled murrelet and some anadromous fish species.

More thorough enforcement of ESA section 9 and section 4, and other regulatory protections for species' habitats may encourage landowners to develop more credible HCPs provided that the Services take some of the steps recommended above.(175) Indeed, the progress made in securing the upcoming protection of several species of fish in the Pacific Northwest appears to have motivated a number of landowners to improve stream protections along fish-bearing streams and, in a few limited cases, their non-fishbearing tributaries and intermittent streams. This relationship between species listings and the development of credible HCP mitigation measures also illustrates the importance of providing threatened and endangered species with official listed status, regardless of whether some landowners have already mentioned the species in their HCPs.(176)

Finally, discussions on reforming the ESA and other HCP policies should also consider the equity issues between different landowners and between different generations.(177) Currently, HCPs are exacerbating two of the more serious inequities in ESA implementation. As previously noted, the Services have limited legal foundations and financial resources for working with landowners to protect species before their habitats are greatly reduced. Likewise, the Services are not generally requiring landowners to protect or restore habitats not currently used by listed species. Consequently, some of the landowners who maximized their economic gains by eliminating or degrading species' habitats prior to their listing may evade their share of the responsibility for protecting and recovering those species.(178)

Implementation of the ESA also often fails to fully consider the rights and needs of future generations to natural resources and environs which are ecologically and economically rich. The No Surprises Policy, for example, is heavily biased towards current landowners. When discussing how to take a more proactive, yet fair approach to implementing the ESA, we should make sure that our children are part of the equation.

APPENDIX A

Supplemental Information on Forestland HCPs.

The following tables provide additional summary information on the 13 HCPs reviewed for this paper. Table A-1 indicates the scope of the HCPs discussed in the article, including the species which were explicitly addressed by the landowners involved. Table A-2 indicates the direct impacts to northern spotted owl and spotted owl habitat that are authorized by these HCPs and their ITPs.(179) Nesting, roosting, and feeding habitat for owls often receives close attention, as it is associated with late successional and old growth forest stands, particularly in Oregon and Washington, and is now quite limited in extent. While other listed and unlisted species and their habitats will often be impacted under these HCPs, the HCPs and environmental assessments rarely quantified these impacts. Table A-3 lists the primary impact minimization and mitigation measures used for spotted owl, including the number of spotted owl sites which are to be retained or provided or time by some HCPs. Table A-3 also summarizes the impact minimization and mitigation measures that were provided for other species.(180)

(1) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(2) The Department of the Interior announced its "No Surprises" Policy in August, 1994. Office of the Secretary, U.S. Dept. of the Interior, Administration's New Assurance Policy Tells Landowners: "No Surprises" in Endangered Species Planning, News Release, Aug. 11, 1994, available in 1194 WL 440313.

(3) Forest Biodiversity program, western Ancient forest campaign, Draft forest HCP inventory (1997).

(4) See 16 U.S.C. [subsections] 1531(b) (1994) (stating the Act's intent to protect habitats and ecosystems, and to "take such steps as may be appropriate to achieve [these] purposes").

(5) 16 U.S.C. [subsections] 1538(a) (1994); see also Announcement of Draft Safe Harbor Policy, 62 Fed. Reg. 32,178 (proposed June 12, 1997); Announcement of Draft Policy for Candidate Conservation Agreements, 62 Fed. Reg. 32,183 (proposed June 12. 1997).

(6.) 16 U.S.C. [subsections] 1538(a) (1994).

(7) 50 C.F.R. [subsections] 17.3 (1994). These regulations were recently upheld by the U.S. Supreme Court in Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995)

(8) Voluntary conservation programs administered by the USFWS and other federal and state agencies under the ESA's auspices have, presumably, also played an important role when they received sufficient funding.

(9) Endangered Species Act Amendments of 1982, Pub. L. No. 97 304, 96 Stat. 1411. 1422 (codified at 16 U.S.C. [subsections] 1539(a)(1)(b) (1994)).

(10) 16 U.S.C. [sections] 1539(a)(1)(B) (1994).

(11) Id. [sections] 1539(a)(2)(B)(ii).

(12) While the No Surprises Policy has been in effect as an administrative policy for several years, the Administration recently agreed to accept public comment on a codified version of the policy that includes some new provisions that limit legal challenges to HCPs. See No Surprises Policy, 62 Fed Reg. 29,091 (May 29, 1997) (to be codified at 50 C.F.R. pt. 222) (proposed May 29, 1997) [hereinafter No Surprises Policy].

(13) See Threatened Status for Southern Oregon/Northern California Coast Evolutionary Significant Unit (ESU) of Coho Salmon, Final Rule, National Marine Fisheries Service, National Oceanic & Atmospheric Administration, Department of Commerce, 62 Fed. Reg. 24,588 (1997) (to be codified at 50 C.F.R pt. 227).

(14) See, e.g., Plum Creek Timber Company, L.P. Cascades multi-species habitat conservation plan [sections] 1,2-4 (1996) [hereinafter Plum Creek HCP].

(15) Information in Table 1 is based upon the HCPs and their respective Environmental Assessments (EAs), Environmental Impact Statements (EISs), and Implementation Agreements (IAs), which are all on file with the author.

(16) These are species that may be "taken," including through habitat destruction or modification, pursuant to the HCPs and ITPs. The Amended Murray Pacific HCP, infra note 28, and the Washington DNR Draft HCP, infra note 33, simply use the terms "all species." which may well include both wildlife and plants. The Ribar HCP, infra note 28, is still being negotiated, and is subject to some changes.

(17) An earlier review of HCPs for different habitat types noted the importance, for example, of using HCPs to enhance a species' chances for survival and recovery. Michael J. Bean et al., Reconciling conflicts under the endangered species Act: The habitat conservation planning experience (World Wildlife Fund 1991).

(18) However, this paper does not generally attempt to address problems with--or positive aspects of the process used to develop HCPs Some have called for an enhanced public participation process for HCP development, and for independent technical panels that would review HCPs performance over time. See John Applegarth et al., A Peer review of the weyerhaeuser Willamette habitat Conservation plan and environmental analysis, Portland Audubon Society (Chris Beckwith et. ed., 1997) [hereinafter Weyerhaeuser Willamette Peer Review]; see also Bean et al., supra note 16.

(19) Weyerhaeuser Willamette Peer Review, supra note 18.

(20) The Service recognized the potential difficulties with unlisted species in their draft HCP Handbook. United States Fish and Wildlife Service & National Marine Fisheries Service, Preliminary Draft Handbook for habitat Conservation Planning and Incidental Take Permit Processing (1994) [hereinafter Draft HCP Handbook].

(21) 16 U.S.C. [sub sections] 1531(b), 1532(3) (1994); see also Melinda Taylor, Promoting Recovery or Hedging a Bet Against Extinction: Austin, Texas' Risky Approach to Ensuring Endangered Species Survival in Texas Hill Country, 24 Envtl. L. 581 (1994).

(22) 16 U.S.C. [sections] 1539(a)(2)(ii) (1994).

(24) Raedke Associates, Inc., Final Environmental Impact Statement for the Proposed Issuance of a Permit to allow Incidental take of threatened and Endangered Species, Plum Creek Timber Company LP, Lands in the I-90 Corridor, King and Kittitas Counties, Washington 9, A132 (1995) [hereinafter Plum Creek Final EIS].

(25) See 16 U.S.C. [sections] 1539(a)(2) (1994).

(26) Id. 51539(a)(2)(B)(ii).

(27) Proposed Special Rule for the Conservation of the Northern Spotted Owl on NonFederal Lands, 60 Fed. Reg. 9484 (Feb. 17, 1995) (to be codified at 50 C.F.R pt. 17); The HCP Handbook recommends, but does not require, that HCPs help implement recovery plans. United States Fish and Wildlife Service & National Marine Fisheries Service, Endangered Species Habitat Conservation Planning Handbook 3-10 (1996) [hereinafter HCP Handbook]. The USFWS approach to the survival and recovery standard mirrors the agency's regulations for the ESA [sections] 7 jeopardy standard, which states that jeopardy only occurs when both survival and recovery are the threatened. 16 U.S.C. [section] 1536 (1994). It is also worth noting that ESA [sections] 10(a)(2)(B)(ii) does not include the term "both." 16 U.S.C. [sections] 1539 (1997); see also Daniel Rohlf, Remarks at the Western Environmental Habitat Conservation Plan Workshop, Molalla, Oregon (Nov. 23 1996).

(28) The new Ribar Timberlands HCP, which is still in negotiation, also requires that a viable spotted owl nest site be maintained at all times on the property. Natural Resources Management Corp., Habitat Conservation Plan for the Northern Spotted OWL on Ribar Timberlands, L.P., Humboldt Country, California (1997) [hereinafter Ribar HCP].

(29.) Weyerhaeuser Co., Multispecies Habitat Conservation Plan for the Willamette Timberlands, Benton, Douglas, Lane, & Linn Counties, Oregon (1996) [hereinafter Weyerhaeuser Willamette HCP]; Beak Consultants, Inc., Amendment to the Habitat Conservation Plan and Incidental Take Permit PRT-777837 for the Northern Spotted OWL on Timberlands Owned by the Murray Pacific Corp., Lewis Country, Washington (1995) [hereinafter Murray Pacific Amended HCP].

(30) Id.

(31) Id

(32) See Murray Pacific Amended HCP, supra note 29.

(33) Partial exceptions include the Washington Department of Natural Resources Draft HCP, which begins to specify the components of dispersal habitat. See Washington State Dep't of Natural Resources, Draft Habitat Conservation Plan (1996) [hereinafter Washington DNR Draft HCP].

(34) Bruce Bingham & Barry Noon, Mitigation of Habitat `Take:' Application to Habitat Conservation Planning, 11 Conservation Biology 1 (1997).

(35) Simpson Timber Co. Habitat Conservation Plan for the Northern Spotted Owl on The California Timberlands of Simpson Timber Co. (1992) [hereinafter Simpson HCP].

(36) See Bingham & Noon, supra note 34, at 128.

(37) The extent to which the spotted owl habitat overlaps with the goshawk habitat is unclear, based upon both the original and amended HCPs. Murray Pacific Amended HCP, supra note 28; Beak Consultants, Inc., Habitat Conservation Plan For The Northern Spotted Owl on Timberlands Owned by the Murray Pacific Corp., Lewis County, Washington (1993) [hereinafter Murray Pacific HCP.]

(38) Washington DNR Draft HCP, supra note 33.

(39) Murray Pacific HCP, supra note 37.

(40) Weyerhaeuser Willamette, supra note 29

(41) Id. Given that stocking on the Weyerhaeuser timberlands is significantly lower than stocking on the BLM land, it may also take longer than 80 years to reach target conditions on the Weyerhaeuser property.

(42) Murray Pacific HCP, supra note 37 at 2-13 to 2-15.

(43) See, e.g., U.S. Fish and Wildlife Service U.S. Dep't. of Interior Final Environmental Assessment, Proposed Issuance of a Section 10(A) Permit to Allow Incidental Take of the Northern Spotted Owl and Marbled Murrelet On Coast Range Conifers Land in Lincoln County, Oregon (1994) [hereinafter Coast Range Confers EA]; Washington DNR Draft HCP, supra note 33; Washington State Dep't of Natural Resources, Draft Environmental Impact Statement for the Habitat Conservation Plan (1996) [hereinafter Weyerhaeuser Willamette EA].

(44) NMFS acknowledged this problem with the California and Oregon FPAs in its final rule for coastal coho salmon. NMFS's decision to delay the coho listing across much of Oregon, for example, was contingent partly upon the State's agreement to improve protections for intermittent streams, non-fish-bearing streams, and erosion prone sites, and to address cumulative impacts. Threatened Status for Southern Oregon/Northern California Coast Evolutionary Significant Unit (ESU) of Coho Salmon, Final Rule, National Marine Fisheries Service, National Oceanic & Administration, Department of Commerce, 62 Fed. Reg. 24,588 (May 6, 1997) (to be codified at 50 C.F.R pt. 2Z7); Memorandum of Agreement Between the State of Oregon and the National Marine Fisheries Service (Apr. 1997).

(45) The Washington Legislature recently passed a bill exempting Murray Pacific from the Washington FPA based on the company's development of its HCP. H.R. 1259, 55th Leg., 1997 Regular Session (Wash. 1997). See Murray Pacific Amended HCP, supra note 29.

(46) Weyerhaeuser Willamette HCP, supra note 29.

(47) Id.

(48) Implementation Agreement for the

(49) Similarly, Weyerhaeuser assumed that none of the tasted or sensitive species found in its biotope areas would be protected under the no action alternative. Weyerhaeuser Willamette EA, supra note 43.

(50) Id.

(51) Not surprisingly, the Weyerhaeuser Willamette HCP itself indicates that 138 of the 314 vertebrate species currently expected on the property will not benefit from the HCP. The Services have also determined that species dependent upon older, interior, nonriparian forests will not benefit from the HCP. Weyerhaeuser Willamette HCP, supra note 29: Weyerhaeuser Willamette EA, supra note 43.

(52) Weyerhaeuser may also deviate from any of the HCPS provisions in order to salvage timber damaged by natural "catastrophic events, and may continue ongoing operations that do not comply with the HCP to continue for up to six months over one percent of the permit area Weyerhaeuser Willamette HCP, supra note 29, at 6-17 6-36, 5-5.

(53) Simpson HCP, supra note 35.

(54) Ribar HCP, supra note 28.

(55) Port Blakely Tree Farms, L.P., Habitat conservation plan for the Robert B. Eddy tree farm (1996) [hereinafter Port Blakely HCP].

(56) Id.

(57) U.S. Fish & Wildlife Service, U.S. Dep't of the Interior, environmental assessment and habitat conservation plan for the issuance of an incidental take permit under section 10(A)(1)(B) of the endangered species act for scofield corp. property near leavenworth, Washington (1996) [hereinafter scofield HCP].

(58) Id.

(59) Oregon Dep't of Forestry, Elliot State forest habitat conservation plan, S-1 (1995) [hereinafter Elliot State HCP].

(60) Id.

(61) Ribar HCP, supra note 28; Port Blakely HCP, supra note 55.

(62) A.G. Crook Co., Final Habitat conservation plan for the coast range conifers property, Yachats, Oregon (1994) [hereinafter Yachats HCP].

(63) Beak Consultants, Inc., environmental assessment of the proposed issuance of a permit for incidental take of the northern spotted own, millacoma tree farm, Weyerhaeuser co., Coos and Douglas counties, Oregon 2-11 (1994) [hereinafter Weyerhaeuser Millacoma EA].

(64) Galea wildlife consulting, multi-species habitat conservation plan & section 10(A) application, regli estate (1995) [hereinafter regli HCP].

(65) Murray Pacific HCP, supra note 37.

(66) Yachats HCP, supra note 62, at 1.

(67) HCP handbook, supra note 27. The Services are also to consider the cost of additional mitigation, the benefits of additional mitigation, the amount of mitigation provided by other landowners in similar situations, and the landowner's own abilities. Id

(68) Weyerhaeuser Willamette HCP, supra note 29, at 6-14. More specifically, Weyerhaeuser may terminate the HCP if mitigation becomes impracticable. The Services may then renegotiate the mitigation measures. However, given that the Services have agreed to an HCP which still gives them little authority to require post-termination mitigation, they will likely accede to a renegotiation. The only safeguard is the requirement that any mitigation reductions not significantly reduce the species' chances of survival and recovery, and that public comment be taken. Weyerhaeuser Willamette IA, supra note 48 at 8.3.3.

(69) Weyerhaeuser Co. Draft Habitat Conservation Plan for the Northern Spotted Owl on the Millacoma Tree Farm, Coos & Douglas Countries, Oregon (1994) [hereinafter Weyerhaeuser Millacoma Draft HCP].

(70) Yachats HCP, supra note 62.

(71) See 16 U.S.C. [sections] 1538 (1994). The sale was also completed prior to development of the HCP. Thus it could be argued that the land transfer was a separate project and should not be claimed as mitigation for activities occurring on the remaining parcel.

(72) Regli HCP, supra note 64.

(73) Murray Pacific HCP, supra note 37, at 0-7.

(74) Scofield HCP, supra note 57.

(75) Washington DNR Draft HCP, supra note 33; Murray Pacific Amended, HCP supra note 29.

(76) Draft HCP handbook, supra note 20.

(77) HCP Handbook, supra note 27; No surprises Policy, supra note 12.

(78) See Regli Estate HCP, supra note 64.

(79) See infra Part II-B.

(80) Murray Pacific Amended HCP, supra note 29, at 3-3; 4-54.

(81) The FEMAT Report discusses a number of such species which depend upon old growth and late successional forests. Forest Ecosystem Mgmt. Assessment Team, Forest Ecosystem Management and Ecological, Economic, and Social Assessment (1993) [hereinafter FEMAT Report].

(82) While the ESA [sections] 9 protection against habitat "take", does not cover plants, federal and state-listed plants are protected through [sections] 7. See 16 U.S.C. [sub sections] 1536, 1538 (1994).

(83) This was the case with the white-footed vole, northwestern pond turtle, and red-legged frog.

(84) Washington State Dep't of Natural Resources Final Environmental Impact Statement and Final Habitat Conservation Plan IV-134 (1996) (hereinafter Washington DNR HCP].

(85) An independent scientific review of the Weyerhaeuser Willamette HCP agreed that failure to develop adequate baseline inventories was amongst the HCPs' key problems. See Applegarth et al., supra note 17. The HCP Handbook also begins to recognize the Importance of species surveys, stating that even "low effect" HCPs should be based upon surveys. HCP Handbooks, supra note 27, at 1-8.

(86) Weyerhaeuser Willamette HCP, supra note 29; Port Blakely HCP, supra note 54.

(87) Weyerhaeuser Willamette HCP, supra note 29, at 6-38; Weyerhaeuser Willamette IA, supra note 48, at 13.2.1, 103.2, 13.2.2.

(88) Plum Creek Timber Co., Draft Multi-Species Habitat Conservation Plan on Forestlands owned by Plum Creek Timber Co., LP, in the 1-90 Corridor of the Central Cascades Mountain Range, Washington [hereinafter Plum Creek Draft HCP].

(89) Plum Creek's timber stand categories include spotted owl nesting, roosting, and feeding habitat; recently replanted land; and pole timber stands.

(90) Plum Creek Draft HCP, supra note 88.

(91) Plum Creek claimed to provide a net benefit to species by focusing on trends in their secondary habitat.

(92) Weyerhaeuser Willamette HCP, supra note 29. Weyerhaeuser used five stand categories: establishment phase, sapling, poletimber, sawtimber, and forest within riparian buffers, biotopes, and supplemental habitat areas for northern spotted owl. Weyerhaeuser is only required to maintain 10% of the ownership in the sawtimber category, much of which will be in a Coast to Cascades corridor area where the Company will maintain supplemental habitat for spotted owls currently located on adjacent ownerships.

(93) The EA notes, for example, that the company is beginning to remove treetops for chipping Weyerhaeuser Willamette EA, supra note 43.

(94) Other reviewers came to similar conclusions, noting, for example, that the company's intensive timber rotations are likely to deplete soil nutrients over time. Weyerhaeuser Willamette Peer Review, supra note 18.

(95) There is also no discussion of whether the HCPs inventory requirements will still be met after fires and other disturbances have been accounted for. It is also unclear if Weyerhaeuser's projected habitat benefits accounted for the lower mitigation standards for selection harvest. While the HCP requires Weyerhaeuser to retain additional down logs and snags for other harvest types, the company need only follow the Oregon FPA Rules for thinning, individual and group selection, and salvage operations.

(96) See infra Part I (discussing examples including the provision of desired riparian forest structure). Other examples include increases in the amount of interior forest, and theoretical increases in spotted owl populations across the larger planning area, which also includes non-Weyerhaeuser lands. Weyerhaeuser Willamette EA, supra note 43; Weyerhaeuser Willamette HCP, supra note 29.

(97) Weyerhaeuser Willamette IA, supra note 48.

(95) 16 U.S.C. [sections] 1539(a)(2)(B)(ii) (1994). At that time, the landowner will, presumably, request that the newly listed species be added to the ITP.

(99) This was explicitly stated in the Weyerhaeuser Willamette HCP, supra note 29, at 6-38, and the Port Blakely HCP, supra note 54, at 1-1.

(100) Murray Pacific Amended HCP, supra note 29.

(101) Port Blakely HCP, supra note 55; Elliott State HCP, supra note 59.

(102) See Table A-2.

(103) Washington DNR HCP, supra note 84.

(104) Weyerhaeuser Willamette HCP, supra note 29; Elliott State HCP, supra note 59. These areas provide important habitat for amphibians and other species. Management problems in intermittent streams and other areas can also contribute to sedimentation and other water quality problems downstream that affect salmonids and other fish species.

(105) Weyerhaeuser Willamette HCP, supra note 29.

(106) Port Blakely HCP, supra note 55.

(107) One panel found, for example, that the Weyerhaeuser Willamette HCP relied upon overly vague watershed analysis provisions, and failed to provide sufficient protection for non-fishbearing streams, wetlands, and intermittent streams. Jim Lichatowich et al., Scientific Panel Comments on the Multi-Species Conservation Plan for the Willamette Timberlands (March 17, 1997) [hereinafter Scientific Panel Comments]. Similar conclusions were reached by Weyerhaeuser Peer Review, supra note 18.

(108) Port Blakely HCP, supra note 55.

(109) The original Murray Pacific HCP also developed a habitat utility model to predict the value of dispersal habitat to northern spotted owl populations The model considered location of dispersal habitat stands, the extent of interior forest, and other factors, and ranked the HCP a 7.47 out of a possible score of 10. Murray Pacific HCP, supra note 37.

(110) Ribar HCP, supra note 28.

(111) See K. Mayer & W. Laudenslayer, California State Dep't of Forestry & Fire Protection, a Guide to Wildlife Habitats of California (1988).

(112) Natural Resources Management Corp., Environmental Assessment for the Issuance of an Incidental Take Permit Under Section 10(A)(1)(B) of the Endangered Species Act, Ribar Timberlands, L.P. (1997) [hereinafter] Ribar EA].

(113) Weyerhaeuser Willamette HCP, supra note 29.

(114) Regional Environmental Consultants, Final Environmental Assessment for Proposed Issuance of a Permit to Allow Incidental Take of Northern Spotted Owls on the California Timberlands of Simpson Timber Co. 6 [hereinafter Simpson EA].

(115) See infra Part I.

(116) Simpson HCP, supra note 35.

(117) Raedke Associates, Inc., Final Environmental Impact Statement for the Proposed Issuance of a Permit to Allow Incidental Take of Threatened and Endangered Species, Plum Creek Timber Co., LP, Lands in the I-90 Corridor, King Counties, Washington 15.0 (1996) [hereinafter Plum Creek Final EIS]. The Weyerhaeuser Millacoma, Weyerhaeuser Willamette, and Port Blakely include similar language.

(118) Implementation Agreement By and Between Coast Range Confers and the U.S. Fish & Wildlife Service and the U.S. Forest Service Regarding Section (10(A) Permit for Yachats Tract Potential Incidental Take of Spotted Owl and Marbled Murrelet (1994) [hereinafter Yachats IA]. The IA merely states, in its recitals, that its purpose is to "insure implementation of the HCP, to contractually bind the parties to the terms of the HCP, and to provide remedies and recourse in the event of a breach of the terms. . ." of the IA. Id. at 3.

(119) Weyerhaeuser Willamette IA, supra note 48. The Plum Creek Draft EIS also included dispute resolution language, but did not eliminate as much of the other enforcement language. Plum Creek Draft EIS, supra note 24.

(120) Weyerhaeuser Willamette IA, supra note 48.

(121) Id.

(122) See infra Parts I and II.

(123) See, e.g., Washington DNR HCP, supra note 84.

(124) The Weyerhaeuser Willamette HCP states that the Services may consider the need for continued mitigation should Weyerhaeuser fail to comply with the HCP. Weyerhaeuser Willamette HCP, supra note 29. However, there is no requirement for continued mitigation should Weyerhaeuser terminate the HCP early.

(125.) Id.

(126.) The Weyerhaeuser Willamette IA also states that if the ESA is amended to formalize the No Surprises Policy, then Weyerhaeuser may benefit from the changes. However, if the ESA or its regulations are amended to limit the No Surprises Policy, then Weyerhaeuser reserves the right to terminate the HCP under the conditions it originally agreed to Weyerhaeuser Willamette IA, supra note 48.

(127.) Id.

(128.) Specifically, the HCP states that "in the event that any court order or government action precludes Weyerhaeuser from harvesting timber that could be harvested under the Permit, Weyerhaeuser may harvest a comparable volume of replacement timber from other parts of the HCP area." Weyerhaeuser Millacoma Draft HCP, supra note 69, at 6-12.

(129) Implementation Agreement, Regli Estate Multi-Species Habitat Conservation Plan and Section 10(A) Application (1995) [hereinafter Regli Estate IA].

(130) Scofield HCP, supra note 57.

(131) Id.

(132) Murray Pacific Amended HCP, supra note 29.

(133) Deed restrictions are largely unenforceable unless they convey specific interests and powers to a third party that is concerned with enforcing the restriction. The Scofield HCP also ignores the need for long-term monitoring of landowner compliance with the deed restriction. Scofield HCP, supra note 57.

(134) The Weyerhaeuser Willamette HCP, for example, allows the company to add neighboring lands to the HCP, despite the fact that the HCP does not fully address listed species which exist there, but which were not expected on Weyerhaeuser's property. Weyerhaeuser Willamette HCP, supra note 29. Several other HCPs, including Washington DNR and Plum Creek, suffer from similar problems. See Washington DNR HCP, supra note 84; Plum Creek Draft HCP, supra note 88.

(135) The importance of incorporating specific monitoring and adaptive management provisions in HCPs is discussed in Bean et al., supra note 17.

(136) See, e.g., Weyerhaeuser Millacoma Draft HCP, supra note 68; Murray Pacific Amended HCP, supra note 29; Murray Pacific HCP, supra note 37.

(137) Plum Creek did agree to conduct some limited surveys for bird and amphibian species, and for spotted owl prey species during the HCPs early years. Plum Creek's stream monitoring requirements are even mote limited, and focus largely on a stream that has already been highly degraded. Plum Creek Draft EIS, supra note 24; Plum Creek Draft HCP, supra note 88.

(138) Simpson HCP, supra note 35.

(139) Port Blakely HCP, supra note 55.

(140) Id.

(141) However, Weyerhaeuser's monitoring requirement ends once desired conditions have been attained, leaving the possibility that future management problems might go undetected. Weyerhaeuser Willamette HCP, supra note 29.

(142) These adaptive management changes include providing buffers for intermittent streams, increasing the protections for spotted owl, and reducing sedimentation from roads. Washington DNR HCP, supra note 84.

(143) This is the case with the Coast Range Conifers, Murray Pacific, Weyerhaeuser Millacoma, Weyerhaeuser Willamette HCPs, and to a lesser extent, the Plum Creek HCP. The HCPs usually cite the Northwest Forest Plan for Forest Service and BLM lands. Bureau of Land Management of Habitat for Late Successional and Old Growth Forest Related Species Within the Range of the Northern Spotted Owl (1994); Bureau of Land Management, U.S. Forest Service, Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl (1994); U.S. Fish and Wildlife Service, Final Draft Recovery Plan for the Northern Spotted Owl (1992) [hereinafter Draft Recovery Plan for the Northern Spotted Owl]; J.W. Thomas et al., A Conservation Strategy for the Northern Spotted Owl: A Report of the Interagency Scientific Committee to Address the Conservation of the Northern Spotted Owl (1990) [hereinafter ISC Thomas Report]. The Plum Creek and Murray Pacific Amended HCPs also referred to a 1993 University of Washington workshop in which industrial forest landowners and federal agency staff determined that private forestlands should only be responsible for protecting riparian areas and wetlands, providing early and mid-successional forest in upland areas, improving logging practices, and occasionally assisting in providing late successional forest.

(144) These timber harvest trends are noted in Gary Letman, Oregon Department of Forestry, Timber Management Practices and Land Use Trends on Private Forestland in Oregon: A Final Report to the Sixty-Eighth Oregon Legislative Assembly (1995).

(145) FEMAT Report, supra note 81, at IV 43, IV-15:3.

(146) See Letter from D.C. "Jasper" Carlton, Director, Biodiversity Foundation, to Bruce Babbitt, Secretary, U.S. Dep't of Interior (Nov. 15, 1996) (on file with the Biodiversity Legal Foundation).

(147) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Emergency Appropriations Act), Pub. L. No. 104-19, [subsections] 2001-2002, 109 Stat. 194, 24047 (1995) (to be codified at 16 U.S.C. [sections] 1611).

(148) Weyerhaeuser Willamette EA, supra note 43.

(149) Rather, Weyerhaeuser will be removing the remaining habitat for spotted owl nest sites on its lands, and will be providing some largely-undefined "suitable habitat" on company lands to help support owl sites on neighboring federal ownerships. Weyerhaeuser is the single largest non-federal ownership in the vicinity. Weyerhaeuser Willamette EA, supra note 43.

(150) Plum Creek also agreed to maintain some nesting, roosting, and feeding habitat for the spotted owl, although the utility of this habitat to the owl is unclear. Plum Creek Draft HCP, supra note 88.

(151) 16 U.S.C. [sections] 1533(d) (1994)

(152) OR. Rev. STAT. [sections] 5Z7.610-.990 (1995). The USFWS recently enjoined two landowners who refused to comply with these protections See United States v. West Coast Forest Resources Ltd. Partnership and Dean's Mountain Logging, No. 96 1575 (D. CT. decided July 28, 1997).

(153) Not surprisingly, the DNR also concluded that the current regulatory framework fails to consider areas needed for spotted owl recovery. Washington DNR Drat EIS, supra note 43.

(154) RIBAR EA, supra note 112, at 20. Likewise, the Weyerhaeuser Willamette and Millacoma HCPs both indicate that Weyerhaeuser could essentially eliminate all remaining spotted owl populations and habitats on their lands without acquiring an ITP by simply waiting for the fragmented and isolated nest sites to fail. Weyerhaeuser Willamette HCP, supra note 29; Weyerhaeuser Millacoma Draft HCP, supra note 69. Murray Pacific also stated that the quality of spotted owl dispersal habitat would continue to decline were it not for the HCP. Murray Pacific HCp, supra note 37.

(155) See Johnathan Bart, Amount of Suitable Habitat and Viability of Northern Spotted Owls, 9 Conservation Biology 4 (1995); Bill Keeton & Steven Whitney, Comments of The Wilderness Society on Draft Environmental Alternatives Analysis For A 4(D) Rule For The Conservation Of Northern Spotted Owl On Non Federal Lands (1998); Letter from D.C. "Jasper" Carlton, Director, Biodiversity Legal Foundation, to Bruce Babbitt, Secretary, Dep't of the Interior (Nov. 15, 1998) (on file with Biodiversity Legal Foundation). A recent study of northern spotted owl in northern California also found the "core habitat used by the owls ranged between 351 to 458 acres. This greatly exceeds the nest circles protected in parts of Washington, Oregon, and California See gingham & Noon, supra note 34.

(156) Weyerhaeuser Willamette HCP, supra note 29; Weyerhaeuser Willamette EA, supra note 43.

(157) This approach was used by Coast Range Conifers, Weyerhaeuser Millacoma, and Weyerhaeuser Willamette.

(158) The Services are also required to conduct such analyses by the National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370(d) (1994).

(159) A few HCPs simply claimed, paradoxically, that eliminating spotted owl habitat under the HCP will not contribute to cumulative impacts, since owl sites on neighboring private lands will be protected by the ESA. Regli HCP, supra note 64. U.S. Fish and Wildlife Service, U.S. Dep't of Interior, Environmental Assessment for the Issuance of and Incidental Take Permit Under Section 10(A)(1) of the Endangered Species Act for the Incidental Take of the Northern Spotted Owl, Marbled Murrelet, Bald Eagle, and American Peregrine Falcon, and for Approval of an Agreement for Several Unlisted Species to the Regli Estate, Humboldt Country, California (1995) [hereinafter Regli EA].

(160) Weyerhaeuser Willamette HCP, supra note 29.

(161) Weyerhaeuser Willamette EA, supra note 43.

(162) Simpson HCP, supra note 35; Simpson EA, supra note 69.

(163) Elliot State HCP, supra note 59.

(164) ISC Thomas Report, supra note 143.

(165) Draft Recovery Plan for the Northern Spotted Owl, supra note 143.

(166) Femat Report, supra note 81.

(167) Although the Ninth Circuit has upheld a definition of "harm" which includes habitat modifications that prevent recovery, the Services are not making use of this decision. Palila v. Hawaii Dep't of Land and Natural Resources, 649 F. Supp. 1070 (D. Haw. 1986), aff'd 852 F.2d 1106 (1988).

(168) Proposed Rules on Safe Harbor Agreements and Candidate Conservation Agreements. 62 Fed. Reg. 32,189 (June 12, 1997) (to be codified at 50 C.F.R. pts. 13, 17).

(169) Currently, the Services are only using this authority to require some landowners to develop implementation agreements for HCPs. See HCP Handbook, supra note 27. Judging from its internal structure, the ESA clearly anticipated that this authority would be used more broadly.

(170) Of course adequate funding also needs to be provided for the Services species listing, recovery plan development, and enforcement programs.

(171) H.R. 2351, 105th Cong. (proposed July 31, 1997).

(172) Simpson HCP, supra note 35; Port Blakely HCP, supra note 55.

(173) Ribar HCP, supra note 28.

(174) Elliot State HCP, supra note 59. Over time, the growing market for nontimber forest products may also support management for older, more ecologically diverse forests.

(175) A similar recommendation can be found in Bean et al., supra note 17.

(176) Even in the case of high profile salmonids and other species, it is not safe to assume that HCPs provide sufficient conservation measures. The Ribar HCP, supra note 28, is an example of a recent HCP which provided enhanced stream protections but has nevertheless generally failed to protect wetlands, intermittent streams, and non-fish-bearing stream segments which are important to the maintenance of coho and other species.

(177) This point was elucidated well by Daniel Rohlf, Remarks at the Western Environmental Habitat Conservation Plan Workshop, Molalla, Oregon (Nov. 23, 1996).

(173) Of course, Congress' failure to appropriate sufficient funds for the ESA's cooperative conservation programs may also leave landowners feeling like the general public is not contributing its fair share to species conservation.

(179) This summary information is based upon statements made in the HCPs and their environmental assessments, and is not based upon an independent scientific review of the HCPs. The HCPs often used different methods to describe owl habitat and how it will be impacted under the HCPs. The "young marginal habitat" identified by Port Blakely may, for example, include some areas with habitat conditions that are similar to some of the nesting, roosting, and feeding habitat identified by other HCPs.

(180) Whenever the distinction could be made, measures that were already required by state Forest Practices Acts (FPAs) or other state policies were not included in Table A-3.

(181) The implementation Agreement uses the term "all species," which may well include both wildlife and plants.

(182) The HCP is still being negotiated and therefore is subject to change.

Daniel A. Hall, M.A. 1993, University of Wisconsin, Madison; B.A. 1990, University of California, Davis. The author is a policy analyst based in Portland, Oregon, and has worked with forest and wildlands management, land use, economic incentives, energy, and global climate change policy. The author wishes to thank Laura Hood, Policy Analyst with Defenders of Wildlife, and Tara Mueller, Director of the Biodiversity Legal Program at the Environmental Law Foundation, for their insightful comments and suggestions. Laura Hood also provided additional information on several HCPs. Thanks also to Shaila Reddy for her support and assistance.