Where Property Rights and Biodiversity Converge Part I: Conservation Planning at the Regional Scale.

Abstract

In the tension between property rights and the public interest in protecting remnant habitats resides the most daunting challenges that our national program to protect biodiversity will face in the next era. Habitat Conservation Plans (HCPs) provide a mechanism to address these conflicts. The number of HCPs has increased dramatically in recent years leading to considerable scrutiny of this tool by conservation biologists and environmental organizations. This paper distills the many critical reviews and recommendations for reform of this process. It reveals that HCPs that approach conservation at a bioregional scale can better address the needs of both imperiled species and property owners than can single species, single landowner plans. Bioregional conservation planning can potentially lead to several benefits, including: more equitable apportionment of the costs of conservation, fostering species recovery, facilitating adaptive management, strengthening public participation, and capturing economies of scale for high-caliber science. Multi-species plans undertaken by county or state governments can be a step in this direction. Recovery plans and programmatic conservation standards could be upgraded to also serve as vehicles for establishing bioregional conservation goals as a template for individual HCPs. All of these strategies will require a more proactive involvement of federal agencies to assist in conservation science and planning and in managing public lands to foster recovery of imperiled species.

Biodiversity protection versus private property rights

Harvard professor Edward O. Wilson predicts that at current extinction rates, our world could irretrievably lose a fifth or more of its plant and animal species by the year 2020. This is 1,000 to 10,000 times the natural extinction rate (Wilson 1992). In the United States, 16% of mammals, 14% of birds, and an alarming 37% of freshwater fish species are either extinct, imperiled, or vulnerable (The Nature Conservancy 1997). Each of these species is a unique, one-time adaptive experiment, and an embodiment of wonder and learning never to be repeated while this planet endures. We are, in effect, throwing away the science books before they can be written. The overwhelming cause is loss of habitat.

The potential conflict between private property rights and the public interest in preserving biodiversity is among the daunting challenges that conservationists will face in the next era of biodiversity protection. And, this conflict is poised to become increasingly contentious. According to the U.S. Fish and Wildlife Service, half of all federally listed species are not found on federal lands, and more than half of listed species have at least 80% of their habitat on nonfederal land (Defenders of Wildlife 1998). The only hope for preserving species over time is by maintaining or restoring viable populations of species that are adequately distributed in healthy ecosystems (Cheever 1996). Yet, for those species whose habitat is mainly or exclusively on private lands, intact ecosystems are becoming increasingly rare.

Habitat conservation plans: a solution?

When it was enacted in 1973, the Endangered Species Act (ESA) simply prohibited any "take" of endangered species, and that prohibition has since been extended by the U.S. Supreme Court to include destruction of a species' habitat (Babbitt v. Sweet Home Chapter of Communities, 115 S.Ct. 2407 1995). An absolute ban on the development of endangered species habitat, however, proved unworkable. Instead, Congress proposed Habitat Conservation Plans (HCPs) as an alternative to such a ban. The ESA was amended in 1982 to authorize the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services) to permit take incidental to development when approved as part of a habitat conservation plan prepared by the land or water rights holder.

These HCPs are essentially settlements of regulatory liabilities that are voluntarily negotiated between the federal government and private landholders or state and local governments and other stakeholders (in some cases). They are designed to foster economic development free of the risks associated with the occurrence of endangered species on private lands. HCPs must include species conservation and mitigation measures sufficient for the Services to find that the take will not appreciably reduce the likelihood of survival or recovery of the species. The landowner then receives an assurance--called the "no surprises" guarantee--that the Services will not increase the conservation measures or other requirements without the landowner's consent, no matter how successful or unsuccessful these may ultimately prove to be. The no surprises arrangement has ignited a veritable explosion in HCPs. As of this writing, some 400 such plans are in various stages of development, approval, or implementation nationwide.

Drawbacks of HCPs

Several features of HCPs have stirred controversy. First, HCPs allow the Services to permit development activities that will have some measure of adverse impact on species and habitats that are already severely depleted and degraded as long as these activities do not appreciably reduce the prospects for the survival and recovery of the species. What these species need, however, is a net improvement in their survival prospects. They need a recovery strategy. Indications of this mismatch between statutory and conservation requirements can be seen on the ground: 62% of listed species covered by an HCP are declining and 4% of these species are declining so rapidly that extinction is possible within the next 20 years (Karieva et al. 1999). As long as HCPs are seen as instruments to "nickel-and-dime" species toward extinction, the HCP process will never be satisfactory to conservation interests, just as it will never be satisfactory to private rights holders as long as habitat conservation represents a permanent cloud over the exercise of development rights.

Second, the "no surprises" regulatory assurance provides landowners with important incentives to participate in the development and implementation of HCPs. But, it does so by making vulnerable species bear the risks incident to incomplete and ambiguous understanding of how abundance levels will respond to particular conservation strategies. Neither investments in private development nor the survival of species are secure under this arrangement. The regulatory exemption is a gamble because HCPs tend to freight more on the current state of conservation science than it can deliver. Three respected experts have stated, "Biological systems are not only more complex than we know; they are inherently more complex than we can know" (Noss et al 1997). Thus, often there is no certain answer to the key questions that are posed in a HCP.

For many years the dominant scientific paradigm held that ecosystems were stable, closed, internally regulated, and behaved in a deterministic manner. Today, however, ecosystems are seen as being in a constant state of flux, usually without long-term stability. Moreover, they are affected by a series of human and other stochastic factors, many of which originate outside the ecosystems (Williams, 1997). Biologists worry that the "no surprises" guarantee does not take into account this new understanding of ecosystems.

In a statement to the U.S. Congress, 150 prominent conservation scientists contended that assurances to landowners guaranteeing the immutability of their conservation obligations in HCPs "does not reflect ecological reality and rejects the best scientific judgment of our era. Moreover, it proposes a world of certainty that does not, has not, and will never exist" (Meffe 1996). The rigidity of the "no surprises" guarantee could foil the Services' ability to take action to the point of extirpation for a listed species. The political firestorm ensuing such an occurrence could render the entire "no surprises" guarantee null and void. Also, conservation interests and local communities are often excluded from the balancing of biodiversity protection and local economic development that occurs in HCP negotiations. Consequently, the process often does not integrate the support of these interests or generate confidence in the scientific base of the resulting conservation program.

Clearly, some vehicle is needed to conserve habitats affected by development rights on lands and waters beyond the federal domain. In order to be effective, this vehicle must provide incentives for private rights holders to work with regulatory agencies. The challenge is to set up a conservation arrangement that truly advances the survival and ultimate recovery of species and concurrently limits the financial burdens and biological risks imposed on private enterprises.

Fitting HCPs within bioregional conservation strategies

Although biodiversity conservation requires ecosystem protection, the ESA's regulatory mechanisms are species-specific and are only activated by the listing of individual species (Thornton 1991). Conservation biologists argue that the single species focus of the ESA has not been very successful in protecting functioning ecosystems since it does not take into consideration the interdependence of species with one another and the broader landscape (Noss et al. 1997, Carrol et al. 1996). Because the needs of species are "specific", single species plans for the same area could potentially be pitted against one another if not closely coordinated.

Conservation biologists and commentators are beginning to reach a consensus that the optimal planning unit for habitat conservation should not be the individual land holding or water diversion, and that the main conservation focus should not be the individual listed species. Instead, planning should be conducted on a landscape level in which habitat conservation strategies are developed for a "bioregion" covering entire ecosystems and communities of species that live within them (Defenders of Wildlife 1998; Noss et al. 1997). This scale of planning would benefit both ecosystems and property rights holders. Furthermore, there is some evidence that plans developed for ecological communities have been scientifically superior to single-species plans, especially with respect to mitigation and monitoring (Kareiva et al. 1999).

Clearly, the extent to which HCPs take into account multiple species and the ecosystem as a whole is important to their ultimate success (Noss et al. 1997). Historically, however, individual property owners have prepared HCPs to cover activities within their parcel that will affect one or more listed species found thereon. Although most HCPs have been relatively small, neither the ESA nor its regulations limit HCP size. In fact, the range of HCP size is extremely broad, spanning six orders of magnitude. The smallest approved plan to date was prepared for the Florida scrub jay on just 0.4 acres of habitat; the largest plan covers over 1.6 million acres of forest managed by the Washington State Department of Natural Resources.

Several of the largest HCPs, such as those developed in Southern California, have considered multiple properties and species and have attempted to address planning for endangered species and ecological communities on a regional scale. Local government units generally direct these plans, covering a community of both currently listed and potentially listable species. Multispecies, multi-parcel conservation planning is a promising step forward. Moreover, rescaling conservation planning and permit issuing can address many of the perceived problems with HCPs for both species and property owners. Potential advantages of landscape-scale, multi-party HCPs include the following:

Providing a biological basis for allocating responsibility among rights holders: Landscape scale planning can specify the overall conservation effort that is needed to protect communities of species, thereby providing a basis for determining what share of the burden an individual property owner should bear in an HCP. Currently, the ESA affords no mechanism for allocating the conservation burden between multiple private landowners or between private rights holders and public lands. Instead, the burden is allocated in a piecemeal fashion through the approval of individual HCPs, federal actions related to endangered species and their habitat (Section 7 of the ESA), and public land management decisions. As a result, those who get their approvals earliest get the best deal, with larger burdens reserved for latecomers.

Fostering species recovery: At the landscape scale, it is possible to calibrate habitat conservation planning toward recovery of listed species and protection of other vulnerable species. The only biologically defensible aim for habitat conservation planning is a net improvement in the survival prospects for listed species and the prevention of further declines in unlisted species. This objective is harder to advance at the level of landholding-specific HCPs, which tend to aim for mitigation or, at best, avoidance of impacts on listed species.

Creating economies of scale for science: Good science is expensive and the tasks of gathering and interpreting the necessary data can be onerous for individual landowners. Rescaling shifts an appreciable degree of this burden from individual property owners applying for incidental take permits to the public agencies and the broader constellation of rights holders that have interests and responsibilities in the eco-region.

Facilitating adaptive management: Because adaptive management requires that some part of the development plan covered by an HCP remain contingent, it is more feasible to engage in adaptive management at the landscape scale. Although this management style is more effective on a larger planning scale, it is feasible for smaller plans as well.

Strengthening public participation: The degree and quality of public participation is generally higher within a broader planning scale that includes multiple parties. This correlation is especially evident if a local government unit mediates the HCP process by applying for the federal permit and then issuing sub-permits to individual landholders. Such local agencies routinely include the public in similar land use planning processes. In contrast, case studies show that public participation has not been higher in cases where a single landowner prepares a large, landscape-scale HCP, as is exemplified by the many HCPs developed by timber companies.

The idea that landholding-specific or water right-specific conservation requirements should be determined in the context of broader conservation objectives is hardly radical. It is rather analogous to the way permits are issued for new, major pollution-emitting facilities within airsheds that are already in violation of national ambient air quality standards. Similarly, discharger-specific effluent allowances regulating water pollution are determined in reference to basin-wide water quality criteria. Likewise, new incursions on habitat for biodiversity should be subject to conditions that contribute toward a landscape-scale objective of recovery for imperiled species.

Vehicles to achieve a bioregional conservation strategy

Individual HCPs should be designed to contribute to a bioregional conservation strategy that aims for long-term, sustainable conservation. Reaching this goal may entail more rigorous activities than simply avoiding or minimizing impacts on the subject landholding. In some cases, off-site mitigation may be required to reduce the threat to the species. This type of mitigation may be best fulfilled by requiring that contributions be made to a mitigation fund as a condition of permit issuance.

Natural communities conservation plans

The land-use planning functions of state and local governments can be harnessed to undertake bioregional conservation planning. Since state and local governments already play the predominant role in local land-use planning, economies of scale and consistency of conservation objectives can be achieved by directly involving them in HCP development. In the currently emerging model, state and local government units prepare regional conservation plans, submit them to the Services for approval as master HCPs, and distribute sub-permits to individual property owners that specify take allowances in a manner consistent with the master HCP and master Incidental Take Permit.

The California Natural Communities Conservation Program (NCCP) represents such a bioregional planning program (Silver 1997). The NCCP is a regional, ecosystem-wide, and multi-species program. A typical plan might cover a mix of listed and unlisted, but declining, species and their shared habitats. Concomitantly, this plan would accommodate development outside the areas set aside as preserves. Potentially, NCCPs can address the conservation requirements of unlisted species before they decline to a level requiring ESA protection. Preventative strategies will invariably provide more options for habitat protection than reactive measures that become necessary when species decline reaches a crisis level (Bosselman 1997).

The Services encourage NCCP-type plans for several reasons. They circumvent backlogs created through case-by-case decisions and help in avoiding economic "train wrecks" by involving landowners in long-term planning instead of last-ditch preservation efforts. Also, they allow for greater flexibility, promote coordinated planning, and reduce the regulatory burdens of ESA compliance for all affected participants (USFWS and NMFS 1996; Welner 1995; Silver 1997).

These advantages help explain why the NCCP process was, in general, favorably received in southern California. For conservationists, comprehensive state planning based upon federal ESA standards has appeared to have the greatest potential in protecting the best remaining patches of coastal sage ecosystems. Developers valued the regulatory assurances stating that they would not be responsible for additional mitigation in the event a species covered by the plan subsequently becomes listed or declines. Local governments were pleased to retain autonomy over land use decisions in the face of federal listings and maintain the prerogative to strike the appropriate balance between development and open space in their communities. The state and federal wildlife agencies saw the NCCP process as a means to transcend the limitations of project-by-project mitigation. Although each stakeholder perceived the benefits of participating in the NCCP process differently, enough mutual benefits and common ground were found to advance a politically difficult process (Silver 1997).

Lessons from California's early experimentation with NCCP can lead to an improved nationwide model (Silver 1997). First, the NCCP experiment revealed that the listing of endangered species played an essential role in bringing landowners to the negotiating table. Second, the direct involvement of local governments proved very valuable. Local land use laws can sometimes accomplish what state and federal agencies alone cannot achieve. Involvement in the NCCP process led to a "spill-over" of better planning in general as these efforts encouraged local governments to focus on the many benefits of natural open space preserves for their communities. Third, because local governments were directly involved and acted as the applicant in the NCCP process, it was much more accessible to the public than traditional HCPs for single property owners. Lastly, regulatory assurances were necessary to encourage involvement of landowners in the NCCP process.

The NCCP experiment also failed in ways that can be corrected in adapting this vehicle for use elsewhere (Silver 1997). Given the program's extraordinary complexity and its susceptibility to political and economic pressure, its scientific bases must be beyond debate. Yet, in the NCCP experiment, the initial scientific panel disbanded after a set of conservation guidelines were prepared, and the NCCP statute at that time made no provision for independent scientific consultation or review. Moreover, the failure to explicitly establish recovery as the standard to be achieved was a substantial deficiency. Also, zoning constraints or project authorizations issued by local government need to be reconciled with the conservation objectives and strategies pursued by the NCCP program. Finally, a secure source of funding for land acquisition and management is necessary to ensure the long-term success of these plans. Under normal circumstances, it is necessary to seek new funding sources, such as loan funds, funds from the Land and Water Conservation Fund, or mitigation banks. Because the value of real estate may increase as a result of open space protections, a portion of the local property tax that corresponds to the marginal rise in adjacent real estate values could also serve as a funding source (NRDC 1997).

Species recovery plans

Another potential vehicle for landscape scale planning could be the recovery plans that the Services are required to develop for listed species. Recovery plans can provide much needed scientific background on species and ecosystems that a landholding-specific HCP can utilize, such as information on species' habitat needs and effective restoration techniques. (Kareiva et al. 1999; USFWS and NMFS 1996).

There are several problems, however, with using recovery plans as a basis for HCP development. Recovery plans currently lag years behind the listing of a species. The Services have completed recovery plans for only 40% of listed species (Sher and Weiner 1997), and they are not authorized to disapprove a proposed HCP on the grounds of a missing recovery plan. The scientific quality of recovery plans has been criticized. For instance a study by the National Center for Ecological Analysis and Synthesis (NCAES) (Kareiva et al. 1999) found that the availability of a recovery plan for a given species did not necessarily improve the scientific quality of HCPs for that species.

Recovery plans are not intended to be binding on or enforceable against the non-federal lands that are encompassed in a species' range. Efforts to make these plans binding or enforceable would be viewed in the political sphere as tantamount to expanding the scope of recovery plans to include land-use planning, which is historically a state' and local prerogative. Recovery plans have often inappropriately subordinated the biological objective to economic considerations. Economic analysis is important in distributing the conservation burdens among the public and private landowners, but it must not be allowed to dictate the biological requisites of the recovery plan. Finally, because recovery is a species-based concept, recovery plans do not necessarily address the health, processes, or functions of the ecosystem as a whole. There is no obvious reason, though, why recovery plans could not also be written as bioregional, multi-species conservation strategies. Indeed, such an approach would further the ESA's goals to preserve the ecosystems that support threatened and endangered species.

Programmatic conservation standards

A third potential vehicle for landscape-scale conservation planning is the promulgation of programmatic standards or guidelines for multi-species conservation by federal land and water managers. For example, the recent adoption by the National Marine Fisheries Service (NMFS) of programmatic guidelines for logging on anadromous fish-bearing streams in the Pacific Northwest may be a useful .model in other situations. Such guidelines can apply standards for riparian buffers and acceptable sedimentation levels throughout watersheds Similarly, the President's Forest Plan provides a multi-layered approach intended for ecosystem-wide forest management.

Bioregional conservation planning demands a larger governmental role

Whatever the vehicle, it is clear that landscape scale habitat conservation planning will require either the Services, or state and local government units in the case of NCCP plans, to play a more proactive role in collecting the necessary biological information and developing conservation strategies that cover multiple parcels, both private and public. This new demand will entail a sharp departure from the Services' traditional roles and will require a substantial increase in both financial and professional resources.

The Services' role in HCP development has not been clearly defined. Congress, however, apparently expected them to do more than just exercise regulatory oversight by also providing technical assistance to applicants (USFWS and NMFS 1996). The HCP Handbook recommends active involvement from the Services during HCP development. Besides assisting in general HCP development, they are expected to direct mitigation measures; monitor protocols and reserve designs; provide a timely review of draft documents; and help find solutions to contentious issues (USFWS and NMFS 1996).

Notwithstanding these expectations, the Services simply do not have the resources to provide the degree of scientific and technical guidance that Congress intended (Kareiva et al. 1999). This lack of guidance often results in HCP applicants simply following precedents established in earlier HCPs. Consequently, HCPs that were developed before conservation biology principles were properly applied have nonetheless set a de facto standard of quality. (The issue of biologically defensible performance standards for HCPs will be addressed in a subsequent article in this series.)

Finally, the Federal government can play a more proactive role in landscape-scale planning by setting a higher conservation standard in land and water management. Following a landscape-scale approach to conservation, federal agencies that manage public lands and waters (and their commodity users) may shoulder a larger share of the conservation burden and may be held to a higher standard for protected species recovery. If private lands are managed according to the ESA's current or "jeopardy" standard, no margin of safety is left for vulnerable species. It is especially critical that federal natural resource managers undertake a "fair share" of the conservation burden in areas within a matrix of federal and private lands, such as the checkerboard pattern of private and federal land found in many western states.

Conclusion

HCPs have provided a mechanism to resolve conflicts between endangered species and economic activities on non-federal land. In response to the growing number of plans, commentators have identified numerous shortcomings in HCP policy and have made recommendations for improving the process. Scaling HCPs to fit within bioregional conservation strategies can reap many benefits for imperiled species as well as property holders. Planning can be conducted in a more comprehensive manner to address questions of equity and, simultaneously, allow for more ambitious conservation objectives.

Bioregional planning will promote economies of scale for pooling scientific resources; facilitate greater involvement by independent scientists and the interested public; and demand a larger role for local, state, and federal governments. The expanded planning scale allows bioregional plans to address realistically objectives of species recovery, meaningful adaptive management, and the conservation of ecological communities. Finally, bioregional planning can facilitate a more equitable distribution of responsibility for conservation among property owners, levels of government, and the general public.

Acknowledgements

Sincere thanks go to Jeff Opperman for his assistance on this piece.

Literature cited

Bosselman, F. P. 1997. The statutory and Constitutional mandate for a No Surprises policy. Ecology Law Quarterly. 24: 707-734.

Cheever, F. 1996. The road to recovery: a new way of thinking about the Endangered Species Act. Ecology Law Quarterly. 23: 1-78.

Carroll, R. and 8 co-authors (Ecological Society of America, ad hoc Committee on Endangered Species). 1996. Strengthening the use of science in achieving the goals of the Endangered Species Act: an assessment by the Ecological Society of America. Ecological Applications. 6: 1-11.

Defenders of Wildlife. 1998. Frayed Safety Nets: Conservation Planning Under the Endangered Species Act. Washington, D.C.

Kareiva, P. and 16 co-authors. 1999. Using Science in Habitat Conservation Plans. Santa Barbara (CA): National Center for Ecological Analysis and Synthesis, and Washington, (D.C.): American Institute of Biological Sciences. http://www.nceas.ucsb.edu/projects/hcp. Printed version available from AIBS, 1441 I St., NW Suite 200, Washington, D. C. 20005.

Meffe, G. K. and 78 other scientists. 1996. Letter to U.S. Senator John Chaffee and Congressman James Saxton (July 23, 1996).

Natural Resources Defense Council. 1997. Leap of Faith: Southern California's Experiment in Natural Community Conservation Planning.

The Nature Conservancy. 1997. 1997 Species Report Card: the State of U.S. Plants and Animals. Arlington, Virginia.

Noss, R. F., M. A. O'Connell, and D. D. Murphy. 1997. The Science of Conservation Planning: Habitat Conservation Under the Endangered Species Act. Island Press, Washington, D. C.

Sher, V. M., and H.L. L. Weiner. 1997. Why HCPs must not undermine recovery. Endangered Species Update. 14: 67-69.

Silver, D. 1997. Natural Community Conservation Planning: 1997 interim report. Endangered Species Update. 14: 22-25.

Thornton, R. D. 1991. Searching for consensus and predictability: habitat conservation planning under the Endangered Species Act of 1973. Environmental Law: 605-656.

U.S. Fish and Wildlife Service and the National Marine Fisheries Service. 1996. Endangered Species: Habitat Conservation Planning Handbook.

Welner, J. 1995. Natural Communities Conservation Planning: an ecosystem approach to protecting endangered species. Stanford Law Review: 319 - 361.

Williams, J. G. 1997. Notes on adaptive management. Comments of the Natural Heritage Institute Regarding the CALFED Bay-Delta Program Draft Ecosystem Restoration Plan, November 1997. Berkeley, California.

Wilson, E.O. 1992. The Diversity of Life. W. W. Norton & Co., New York.

RELATED ARTICLE: FOCUS ON NATURE

The WOODLAND CARIBOU (Rangifer tarandus caribou) bull weighs 275-600 pounds. The cow is much smaller and has shorter and spindlier antlers. Air-filled hollow hairs of the outer coat provide great buoyancy when swimming. The hooves are large and soft in the summer and hard and shrunken in the winter for better traction in varied terrains. Diet consists mainly of tree lichens, especially in the winter. Grasses and other available plants are consumed within the mature coniferous forests of the Selkirk Mountains (northeast Washington, northern Idaho, and Canada). As habitat is being lost and fragmented, you can help save this endangered species by donating time or money to a nature conservation organization. [c] 1999 Rochelle Mason. www.rmasonfinearts.com. [phone]

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