Giving Rare Creatures a Fighting Chance

Can controversial plans involving private landowners really protect many of the nation's imperiled creatures?

06-01-1998 // NWF Staff

Perhaps no other law in American history has been as criticized, scrutinized and eulogized as the Endangered Species Act. From the halls of Congress to the nation's courthouses, from op-ed pages to talk radio, the landmark wildlife-protection law has been the target of both lavish praise and vicious attacks almost from the day it was enacted a quarter of a century ago. In the scenario drawn by critics, the law has been used over the years mainly to bludgeon owners of private property whose land is inhabited by seemingly useless creatures.

The act's opponents have "created a powerful mythology" in which the American economy and the land itself are victims of environmental protection, observes Jamie R. Clark, director of the U.S. Fish and Wildlife Service (FWS), the agency responsible for overseeing the nation's endangered species program. In the view of such critics, says Clark, "the runaway federal government has got the country in the absolutely absurd position of protecting snails, shrimps and mussels at the expense of 'real human concerns like jobs and personal property rights.'"

Operating in the public arena of such divisiveness, Congress has not revised the Endangered Species Act in nearly a decade--even though the law's last five-year reauthorization expired in 1992. Now, as federal lawmakers attempt to end their stalemate over the law, much of the debate is focused on three important letters: HCP.

They stand for Habitat Conservation Plan--a deal cut between a federal agency and a landowner to allow new-home construction, commercial logging or other development to go forward in exchange for conservation measures undertaken by the property owner. An HCP attempts to balance property rights with wildlife needs, while skirting what Secretary of the Interior Bruce Babbitt has called "environmental train wrecks" that stir up opposition to species protection.

In the past 10 years, dozens of such plans have been negotiated throughout the country; many of them are already being implemented. These days, HCPs are being used to juggle the dreams of developers and the needs of a raft of creatures, including woodpeckers in North Carolina, beach-dwelling mice in Alabama, desert tortoises in Utah and sea turtles that nest on the Florida coast.

All of this sounds pretty good. So why are many people concerned about the use of HCPs? Mainly because, despite the name, habitat conservation plans always allow some habitat to be destroyed.

"The concept of HCPs, where a landowner is allowed to carry on economic activities that harm some nonessential habitat in return for important conservation measures by the landowner, is a good one," says NWF counsel John Kostyack, an endangered-species specialist. In many cases, he notes, such plans are the only legal tools available for getting private landowners to restore degraded and fragmented habitats for the benefit of imperiled species.

On the other hand, says Kostyack, "the implementation of the HCP concept has been fraught with problems." Some HCPs, he points out, have allowed landowers to destroy the remaining habitat of rare creatures on their land and required nothing more than moving the animals in question to nearby public lands. "Before we give landowners what are essentially long-term development permits," adds the attorney, "we should make sure that their HCPs really include viable safeguards for species."

Negotiations over HCPs arise because the Endangered Species Act prohibits landowners from destroying habitat needed by protected wildlife without a permit from federal authorities. The plans work something like this:

A housing developer whose building project would destroy some or all habitat occupied by an endangered bird or lizard decides to seek a permit that authorizes "incidental take." ("Take," in the language of the Endangered Species Act, means "harm" or "kill.") In return for that coveted permit--a form of limited immunity from the law--the landowner agrees to prepare a habitat conservation plan. The plan details specific steps by which the developer will minimize harm done to wildlife and mitigate for loss of habitat. That might mean setting aside part of the species' habitat as a preserve or paying money to help the government buy habitat elsewhere. In logging operations, that could mean maintaining stream buffers to safeguard fish or protecting old-growth forest.

For the Clinton administration, HCPs have provided a means to show that protecting endangered species need not be synonymous with economic hardship for property owners. To head off congressional assaults on the Endangered Species Act, the Interior Department has been churning out HCPs at an unprecedented rate in recent years. Although Congress amended the Endangered Spe- cies Act in 1982 to allow creation of HCPs, only 14 plans were approved over the next decade. But since 1992, more than 200 HCPs have been issued and another 200 or so are currently in the paperwork pipeline.

The nation's first HCP--one that served as a model for amending the Endangered Species Act to allow the conservation plans--was cobbled together in the early 1980s. It was created to permit housing construction on San Bruno Mountain, near San Francisco, on land used by three species of rare insects: the mission blue butterfly and San Bruno elfin butterfly, both listed as endangered; and the callippe silverspot butterfly, then a candidate for listing. The mountain provided 97 percent of the habitat for the mission blue and the only known habitat for the callippe silverspot.

In exchange for being allowed to destroy some of that habitat, developers agreed to give up other land they owned and to pay for improving habitat for the insects. Some experts laud this HCP as a success story, pointing to the continuing survival of the butterflies and the fact that the HCP protected 90 percent of the remaining butterfly habitat. "The plan protects a far greater percentage of endangered species habitat than any HCP approved ever since," says Kostyack, leading him to wonder: "With the bar set that high in 1982, how did we get to the point where so many HCPs protect little or no habitat?" Kostyack notes that some HCPs approved in recent years have even allowed destruction of habitat that earlier FWS documents said were important for recovery of the species in question.

With some large-scale HCPs, federal authorities decide in a relatively short period of time what percentage of a species' remaining habitat will be saved and what percentage will be sacrificed. For example, after listing the California gnatcatcher as threatened in 1993, the FWS authorized local governments in Southern California to develop a series of plans that would cover virtually the entire range of the gnatcatcher and dozens of other rare creatures that share the bird's coastal sage scrub habitat. These HCP-like plans would be created under the state's Natural Community Conservation Planning law.

In the past two years, state plans have been approved for large parts of Orange County (where a 37,000-acre reserve system was created) and San Diego County. Additional plans covering the remaining portion of the scrub ecosystem are in various stages of development. Scientists hope to keep essential portions of the ecosystem from disappearing beneath what one Los Angeles environmentalist calls a "vast, numbing sea of sprawl."

Elsewhere in the United States, wildlife authorities are developing habitat conservation plans in response to an important fact: Most endangered species will not be saved by focusing only on land owned by Uncle Sam. According to a 1994 U.S. General Accounting Office study, more than one-third of the creatures the Endangered Species Act protects are found only on nonfederal land. More than half the species the law protects have 80 percent or more of their habitat on nonfederal land.

"We've got to have tools that effectively address the threats to those species where they occur--that is, on nonfederal, largely private land," says Michael Bean, the Environmental Defense Fund senior scientist who helped write the 1982 amendment that spawned HCPs. To Bean and other HCP advocates, the plans--by engaging private landowners--take the fight for protecting endangered species to the places where the creatures actually live.

Some conservationists, however, argue that the Clinton administration, in approving so many HCPs so quickly, is going too far to appease critics of endangered species protection. "Frankly, the administration has been our biggest problem," says Tara Mueller, an attorney with the Environmental Law Foundation in Oakland, California. "They've been saying, 'We're saving the Endangered Species Act from imminent gutting,' and yet they're administratively gutting it."

Gutting it, say critics, partly by ignoring the whole reason for the Endangered Species Act. The point of that landmark law is to boost populations of creatures so they can be taken off the Endangered Species List. But some conservationists assert that HCPs are being approved under a looser standard by federal officials, who sanction HCPs merely to ensure that such plans do not threaten the survival of listed species in the short term.

Last May, in response to growing concerns of scientists and conservationists that HCPs were being developed too rapidly to provide proper safeguards for listed species, the National Wildlife Federation brought together many of the nation's leading experts for a conference on such plans. "Future HCPs," observed NWF President Mark Van Putten at the meeting, "must address the recovery needs of the species. This is about bringing back species, and habitat conservation plans must contribute to and be measured by that goal."

For that to happen, say the experts, HCPs must be built on solid science. Last spring, nine prominent American conservation biologists delivered a white paper on HCPs to Congress and the Clinton administration. In it, they warned that because many plans were being developed without adequate scientific guidance, the HCPs risked becoming "habitat giveaways that contribute to, rather than alleviate, threats to listed species and their habitats."

The same group said that wildlife officials should be allowed to amend HCPs when new information about a species or its habitat becomes available. Currently, many HCPs are issued with so-called "no surprises" clauses assuring landowners that no additional land or money will be required of them except under extraordinary circumstances. "It signifies that a deal is a deal," said Bruce Babbitt when he announced the policy in 1994. Indeed, "no surprises" has probably done more to mute criticism of the Endangered Species Act by landowners and developers than anything else.

No surprises "was definitely an inducement for us to step up to the plate in terms of doing an HCP," says Lorin Hicks, the biologist who directs wildlife resource programs for Plum Creek Timber Company. But the Plum Creek habitat conservation plan for 170,000 acres of company timberland in the central Cascade Mountains of Washington may be a risky deal for several different imperiled creatures that range in the area.

In theory, this Cascades HCP focuses on the habitat needs of northern spotted owls, grizzly bears, wolves, goshawks and 281 other species of wildlife. However, the plan does permit logging in home ranges of spotted owls. "The timber companies argue that it's okay to cut their forests down because in the next 50 years the forest on adjacent federal land will grow up and become spotted owl habitat," says Tim Cullinan, science director at the Washington State field office of the National Audubon Society.

In a recent analysis of seven HCPs developed by timber companies for 2.56 million acres in the Pacific Northwest, Cullinan found that six of the plans proposed using adjacent federal forestlands as part of their spotted owl conservation strategy. That means relying on those adjacent public lands for owl nesting, roosting and foraging sites. Most of the HCPs call for logging of old, commercially valuable trees--the kind spotted owls need for survival--on private lands.

"What if there's a big fire and that anticipated habitat on the adjacent federal land fails to materialize?" asks Cullinan. In the case of Plum Creek, he notes, the company "still gets to cut its timber." In other words, says Cullinan, the company is banking on the notion that "surprises don't happen."

In regard to many HCPs, the public has little say in how the plans are developed. Landowners and government representatives hammer out the details behind closed doors. Public review typically occurs only after the plan has been created. One exception to this rule occurred last year in Oregon, where the National Wildlife Federation lobbied strenuously to gain public oversight for an HCP that state forestry officials are developing. The plan covers 72 species (including spotted owls and six kinds of salmon) on 600,000 acres of state land. The area also includes one of the largest tracts of temperate rainforest in the contiguous 48 states.

Under the plan, county governments would receive money from timber sales, and local officials are supporting extensive logging in the HCP area. The state forestry department has indicated that it may allow logging on 90 percent of the two state forests that make up most of the area in question.

"Many scientists believe that such a high level of logging will not adequately protect the wildlife in the area," says Sybil Ackerman, an HCP program coordinator in NWF's Western Natural Resource Center in Portland. "By seeking public oversight of the planning process, we're trying to make sure that if an HCP is approved in this case, it will be one that includes better safeguards for vulnerable species."

On the opposite side of the country, an endangered species called the red-cockaded woodpecker has become the focus of some of the most contentious debate regarding the effectiveness of HCPs. One of the first animals placed on the Endangered Species List, the woodpecker inhabits mature pine forests in the Southeast. As those forests have disappeared, so have the woodpeckers, which are continuing to decline.

Recently, the FWS has encouraged development of statewide and other single-landowner HCPs that grapple with fragmentation of habitat by writing off some woodpeckers as members of "demographically isolated groups." Private owners of forestland would receive permits that let them harvest their woodpecker habitat. In return, landowners would mitigate for the loss of bird habitat by helping pay for the establishment of artificial nesting cavities in national forests or on other lands.

"We think the [FWS] is, in effect, sanctioning the liquidation of red-cockaded woodpeckers from private lands," says Michael Bean. "They're making it all too easy for landowners just to get rid of their woodpeckers and using that as a short-term funding mechanism for federal land management."

However, Ralph Costa, red-cockaded woodpecker recovery coordinator for the FWS, insists that the HCPs help focus conservation efforts on habitat where the birds can survive. "We're going to end up with more woodpeckers on the planet than when we started," he asserts.

"Bogus" is Dennis Murphy's response to that assertion. The Stanford University biologist, who convened scientists to write last year's white paper on HCPs, has been critical of some of the red-cockaded woodpecker plans. Last summer, he told the environmental newspaper High Country News, "The main problem with HCPs is that [Secretary] Babbitt has muzzleloaded so many of them in the pipeline that staff with less and less qualifications are making the deals. That's troubling."

Under a reauthorization bill recently introduced into Congress by Representative George Miller (D-California), the Endangered Species Act would be revised to spell out new HCP guidelines. The proposed bill offers assurances to landowners similar to the current "no-surprises" policy. However, it would require landowners to post bonds to ensure that HCP modifications can be carried out in the event of forest fires or other reasonably foreseeable situations. The Miller bill also includes measures that would allow independent scientists to review HCPs in the planning stage. Another bill introduced into the Senate takes a different tact: It continues the current process for approving HCPs.

Ultimately, HCPs may be the best solution for protecting endangered wildlife on private land. "The trick in designing them," says NWF's Kostyack, "is in the balance. How do we address the legitimate expectations of landowners, while at the same time assuring that the country's rich heritage of wildlife on state and private lands is protected?" Finding the correct answer will be crucial to maintaining the pieces of America's complex natural puzzle.

Washington, D.C., journalist Michael Lipske wrote about Americans' love-hate relationship with the gray squirrel in the December/January issue.

Making Sense of HCPs: NWF Takes Action
With hundreds of habitat conservation plans (HCPs) now being implemented or under development, scientists and the American public have been overwhelmed by the number of plans and their complexity. To help make sense of this situation, the National Wildlife Federation organized a landmark national conference on HCPs in the nation's capital last spring. Working with other conservationists, NWF has been gathering detailed information about HCPs all across the country and posting the information on NWF's web site to provide public access to the information. Throughout the nation, NWF also is working at the grass-roots level to help gain better public input on proposed HCPs.

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