The early 1980s marked an important change in the way the federal Endangered Species Act (ESA) was implemented on private land. Using the lessons learned from a project on San Bruno Mountain on the San Francisco Peninsula, Congress amended Section 10(a) of the ESA in 1982 to include a provision that has come to be known as Habitat Conservation Planning (HCP).
This provision allowed private landowners and developers, while in the course of their business, to incidentally "take" (harm or kill) a protected species by destroying some of its habitat. In exchange for this permission they were required to create a conservation plan with assured funding that, through avoidance, minimization and mitigation, left the species as a whole no worse off. The intent of this provision was both to relieve some of the burden on private landowners stemming from the strict prohibitions of the ESA and to create a planning process that facilitated conservation of species in ways not possible through prohibitions alone (e.g., habitat restoration, management).
The HCP provision was infrequently used throughout the 1980s except for a dozen plans in California and one each in Texas and Florida. But, through encouragement and promotion by the Clinton Administration and its increasing appeal to private landowners, a conservation planning explosion has occurred over the last five years. U.S. Fish and Wildlife Service (FWS) statistics show nearly 400 plans completed or in development by the end of 1996 (FWS 1997).
This article takes a critical look at the limitations, for conservationists, private landowners and local governments, of the Section 10(a) legal framework for conservation of biodiversity. It contrasts this with the California Natural Community Conservation Planning (NCCP) program, an effort to move beyond traditional HCPs toward greater conservation and economic outcomes through an ecosystem-based planning model. Finally, it suggests that while ecosystem conservation is occasionally possible under current law, it would be far better to use the lessons learned from NCCP to create an explicit framework of policies that defines and enables key elements of ecosystem-based planning.
HCPs: Can we do better?
HCPs have come under increasing scrutiny as their use has grown. Bean et al. (1991) published the first review of the provision, a case study analysis that suggested many improvements for implementing HCPs. Several other similar works followed, and, by 1996, most of the national environmental organizations were conducting their own studies of Section 10 and its implementation.
Recent attention to HCPs as a conflict resolution and conservation tool has also generated controversy from nearly all quarters. The environmental community has generally perceived HCPs as undermining the strict protections afforded species under the ESA, while the private sector has complained of costly and uncertain outcomes of the planning process. Many local elected officials have been particularly loath to accept Section 10, at least the way it has historically been implemented, since it has the effect of inserting the FWS into the local land-use planning process, with little input from them or the community. Table 1 identifies many of the concerns expressed about conservation planning by the private sector and environmental community.
Regrettably, most of these criticisms are true. About 85 percent of HCPs are for single landowners, single species and relatively small areas. This project-by-project approach to permitting defines the historical implementation of Section 10 by the FWS. Although the FWS recently began encouraging large-scale HCPs (such as the Balcones Canyonlands plan for several hundred thousand acres around Austin, Texas, and the Plum Creek Timber plan in Washington for more than 400,000 acres) these have been the exception. Not only is it difficult to demonstrate conservation benefits from plans that encompass a small portion of a species range, but it is almost impossible to attain the standards and goals envisioned by the ESA and the environmental community with a piecemeal approach to protection based on listed species.
Even harder to prove have been the private sector benefits offered by Section 10(a) permits. It is no secret among those who study conservation planning that the guarantees and efficiencies (collectively known as "assurances") promised by HCPs are what brings private landowners to the table and keeps them there (Dwyer et al. 1995). This fact is even beginning to be appreciated among the grassroots environmental community. Yet, most of the assurances under Section 10 are fairly narrow and short-term. For example, the current law only allows take permits for listed species. The FWS currently lists 1,050 U.S. species as threatened or endangered; including former Category 2 candidates, more than 4,000 species may be listed in the future (FWS 1997). None of these unlisted species is eligible for a take permit under an HCP in the current law. In many areas of the United States, the number of at-risk species is so great that as a plan is completed for one species, more become listed, rekindling the controversy. Clearly, all these species require conservation action, but the ESA currently offers little incentive or assurances for private landowners to undertake it until the last possible moment.
Local governments who have assumed a coordinating role in an HCP process have often been frustrated as well. For example, Riverside County, California, began a habitat conservation planning process in 1988. When it was finally completed, after nearly seven tumultuous years, it provided land-use planning assurance for a single species, the Stephens' kangaroo rat (Dipodomys stephensi). During that time, the Riverside fairy shrimp (Streptocephalus woottoni), the California red-legged frog (Rana aurora draytoni), and the California gnatcatcher (Polioptila californica) were all listed. Despite reaching a solution for the kangaroo rat, Riverside County and its private landowners were left on the hook for these and potentially other species. The process also left many local officials and stakeholders with deep-seated animosity toward federal involvement in the local land-use planning process on private lands under the ESA.
An ecosystem-based approach to conservation planning
Do such stakeholder criticisms mean that conservation planning is unworkable? Should we abandon it in favor of litigation and conflict? From the conservation side, we think absolutely not. One look at history (or the Los Angeles Basin) shows who wins when species conservation and economic progress butt heads.
The answer lies instead in the focus of the planning process. It must shift from listed species to ecosystems, one of the two main goals of the ESA according to the statute's purpose clause. In our experience, most everyone agrees that instead of waiting until the last minute to begin conservation activities in response to the threat of legal action under the ESA, we should focus scarce financial resources on communities of species, the habitats they utilize, and the ecological processes that sustain them to achieve the highest chance of success. Concentrating on ecosystem-based planning, instead of planning for habitat of a species, is the appropriate ecological approach, scale and timing. This idea does not mean we should abandon critically imperiled species in favor of a "broad brush" approach to conservation. However, it is partly the effect of painting with a very narrow brush that has led to many of the conservation crises we now face. A true ecosystem-based model would enable conservation of both species and ecosystem level biodiversity.
Ironically, despite its stated goal of conserving "...the ecosystems on which (those) species depend," implementation of the ESA currently offers little to achieving this purpose. The law contains few incentives to encourage advance planning by private landowners and the threat of additional restrictions may encourage some to destroy habitat instead (Wilcove et al. 1996). Those who do plan for species on their land have been frequently "rewarded" by little certainty that their actions will be enough to endure through future species listings. This has led many to oppose listings altogether. Combined with an endangered species program where only the most critically imperiled species receive protection (Wilcove et al. 1993), this approach only intensifies the conflict. Rather than avoiding problems caused by last-ditch efforts to save species, many private stakeholders have turned instead to fighting the entire ESA system. Although this hasn't been successful yet, it has created a political environment openly hostile to legitimate conservation goals.
Natural Community Conservation Planning: A better approach
To our knowledge, there is only one effort in the country that is designed to create a more comprehensive and ecosystem-based conservation system. The Natural Community Conservation Planning (NCCP) pilot project in southern California is an attempt to create a program for the entire range of an endangered ecosystem-the coastal sage scrub-and all the species that inhabit it, both rare and common. The NCCP planning area covers 6,000 square miles in five counties, and is expected to result in more than 300,000 acres of large habitat blocks preserved under permanent conservation management.
NCCP is a large step forward from traditional HCPs under Section 10 in many ways (see Table 2). It focuses protection efforts on an entire ecosystem rather than exclusively on listed species and, as such, it covers both occupied and essential unoccupied habitat as well as natural processes. The program is supported by a foundation of conservation guidelines developed independently by a team of conservation scientists and made regulatory by a federal rule. The California state law that authorizes the program identifies a conservation standard of "no net loss of habitat value" for completed plans, a considerably higher benchmark than for losses allowed under the "jeopardy" standard by which HCPs are ultimately judged. Public participation is also a key feature of the program and stakeholders at all levels have been able to engage in development of plans. Perhaps most importantly, NCCP is a means to coordinate the conservation management of entire landscapes with diverse public ownerships, an outcome rarely possible under Section 10.
From the private landowner perspective, NCCP has much to offer that HCPs cannot. In exchange for taking a considerably broader approach to habitat protection than the law requires, the assurances offered by NCCP are long term and far broader than those provided under Section 10. Most significant, landowners who participate are given the guarantee that if additional land or dollars are required beyond the original agreement, due to future species listings or unpredicted needs, the public will foot the bill. The program streamlines state and federal species regulations into a single package with clear and predictable requirements (contrary to suggestion, NCCP does not give landowners "free license" to use their land, they still must comply with a host of other local non-biological restrictions). Because of wide institutional involvement in the program, the costs of land protection and management are shared among local, state, federal and private entities. Participation is voluntary, in the sense that landowners who wish to pursue separate 10(a) and state-level permits instead of NCCP are free to do so. Few have.
For local governments, ecosystem-based planning under NCCP brings welcome relief from constant federal involvement in land development projects. Resources of the FWS are stretched to the brink reviewing every project potentially affecting listed species and the FWS has had little success in enforcing ESA prohibitions on habitat taking, particularly for essential but unoccupied habitat. Yet, the law currently has no clear means to devolve federal authority for enforcement and implementation to the local level. NCCP is a politically acceptable way to return land-use control to the local level through a legal contract-in whatever way the community wants to implement it, as long as it meets the criteria of the ESA. If performance under the contract is unacceptable, control can be suspended or terminated if necessary.
Enabling ecosystem-based planning
The California NCCP is a pilot project testing an ecosystem-based approach to conservation planning. Clearly, in comparison to traditional HCPs, the new concept is desirable from many angles. How can this type of conservation be enabled? One point is certain, the current ESA wasn't specifically designed to do it. NCCP was authorized by the California Legislature and linked to the state endangered species law. Federal participation was possible only through a special rule issued under Section 4(d) when the California gnatcatcher was listed that creatively stretched Section 10(a) around the framework of ecosystem conservation goals under NCCP. The ESA allows this regulatory bridge only for threatened species. So while it may be possible to work within the existing federal law in some cases, the full benefits of ecosystem conservation (such as protecting unlisted animals and natural processes) are difficult to realize without the broad scope provided by NCCP. Rather than testing the outer legal limits of Section 10(a), it would be far better to provide an explicit statutory framework that defines the key elements of ecosystem conservation.
Relying strictly on prohibitive regulation to achieve conservation has left us short of our goals, because it is an inherently reactive approach. What is needed, instead of a broader, more imposing regulatory process (such as the proposed Endangered Natural Heritage Act; see Endangered Species UPDATE June 1996), is a better, more comprehensive, voluntary planning tool to complement regulations on take of listed species under the ESA. Such a program could be designed based on learning and improving upon the experiences of NCCP and would be an advance alternative to the strict prohibitions of the ESA. This new planning tool would not be a substitute for those prohibitions and should not preclude future listings-it was, after all, the threat of listing the California gnatcatcher that brought most parties to the table in NCCP. We continue to believe that a strong, clear, yet narrow ESA is an essential component of a comprehensive biodiversity conservation policy. But, unlike Section 10(a), which is both limited and rarely engaged early enough, the new planning provision would give everyone an opportunity to get off the track to extinction before the train wreck while providing far more conservation than possible using prohibitive policies alone.
Does the ecosystem-based approach to conservation have imperfections? Of course. It is far more complex scientifically and politically than species-by-species planning. Changing from the old trench-warfare paradigm may be a painful shift for many people. Even more important, while promising to make considerable resources available for conservation, ecosystem-based planning demands new and bigger sources of funding to be successful. This country has provided large amounts of compliance funding for the Clean Water Act and the Clean Air Act, but has yet to offer a similar commitment for the ESA. It is time we do so.
Ecosystem-based planning like NCCP is also not the best solution for every situation. It works best in urbanizing areas or for resource use that depends on long-term regulatory predictability, like water supply and delivery. Overlaying maps of these economic issues with the location of species listings nationwide, however, shows that many contentious private land issues could be addressed by this concept. In the current political climate, any solution that advances conservation aims must also provide answers to the problems faced by private landowners and other stakeholders. Ecosystem-based conservation planning offers the ability to achieve significant environmental gains beyond the status quo while accommodating the needs of landowners and local governments.
Bean M.J., S. Fitzgerald, and M.A. O'Connell. 1991. Reconciling conflicts under the endangered species act: the habitat conservation planning experience. World Wildlife Fund, Washington, D.C.
Dwyer L.E., D.D. Murphy, S.P. Johnson, and M.A. O'Connell. 1995. Avoiding the trainwreck: observations from the frontlines of natural community conservation planning in southern California. Endangered Species Update 12(12):5-7.
U.S. Fish and Wildlife Service. 1997. Endangered species boxscore. Internet web site: http://www.fws.gov/~r9endspp/endspp.html.
U.S. Secretary of Interior Bruce Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon. 1995. 115 Supreme Court. 2407.
Wilcove D., M. McMillan, and K.C. Winston. 1993. What exactly is an endangered species? An analysis of the U.S. endangered species list: 1985-1991. Conservation Biology 7:87-93.
Wilcove D., M.J. Bean, R. Bonnie, and M. McMillan. 1996. Rebuilding the ark: toward a more effective endangered species act for private land. Environmental Defense Fund, Washington, D.C.
Mike O'Connell is Director of Natural Community Conservation Planning and Steve Johnson is Director of Science for The California Nature Conservancy. Between them they have 25 years experience in conservation planning under the ESA. Authors can be contacted at The California Nature Conservancy, 201 Mission Street, 4th Floor, San Francisco, CA 94105.
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