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A Citizen's Guide to Habitat Conservation Plans

Background

Since Columbus reached the New World, some 500 plant and animal species have become extinct in the United States. Species such as the passenger pigeon, California grizzly, and Carolina parakeet are no longer a part of our nation's web of biodiversity. In recent years, extinction rates have soared worldwide due to contamination, degradation, and disruption of natural systems caused by human development.

In 1973 Congress passed the Endangered Species Act (ESA) to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, and to provide a program for the conservation of these species." Since the passage of this landmark law, over one thousand plant and animal species have been added to the endangered species list.

A species is listed as endangered if it is "in danger of extinction throughout all or a significant portion of its range," or as threatened if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." The U.S. Fish and Wildlife Service (FWS) is responsible for protection of terrestrial species, which form the majority of listed species. The National Marine Fisheries Service (NMFS), part of the Department of Commerce, is responsible for protection of marine species including marine mammals and fish that migrate from the sea to spawn in rivers, such as salmon.

The ESA prohibits both government agencies and private citizens from "taking" listed species, whether on public or private land. A "take" is any activity that kills or harms listed species or that destroys their habitat.

What Is a Habitat Conservation Plan?

In 1983 Congress adopted Section 10 of the Endangered Species Act as a way to promote "creative partnerships between the public and private sectors and among governmental agencies in the interest of species and habitat conservation."* Section 10 authorizes states, local governments, and private landowners to apply for an Incidental Take Permit for otherwise lawful activities that may harm listed species or their habitats. To obtain a permit, an applicant must submit a Habitat Conservation Plan (HCP) outlining what he or she will do to "minimize and mitigate" the impact of the permitted take on the listed species. The principle underlying the Section 10 exemption from the ESA is that some individuals of a species or portions of their habitat may be expendable over the short term, as long as enough protection is provided to ensure the long term recovery of the species.

The number of HCPs has increased rapidly in the past few years as increased criticism of the ESA and its application to private land has led the FWS and NMFS to look for ways to avoid conflicts involving species and private landowners. The Services view HCPs as a positive way to involve private landowners in the conservation of endangered species habitat. The first HCP, for San Bruno Mountain in Northern California, was approved in 1983. By 1992, only about a dozen Incidental Take Permits had been granted. According to the Fish and Wildlife Service, 211 Incidental Take Permits had been issued as of January 31, 1997, with another 200 permits/plans in various stages of development. The more than 200 approved HCPs collectively cover millions of acres: approximately 25 exceed 10,000 acres, 25 exceed 100,000 acres, and 18 exceed 500,000 acres.

Approved HCPs vary greatly in size, duration, and species covered. A two year agreement for half an acre allows a landowner in Texas to take Golden-cheeked Warblers in building a single family residence. An agreement with a timber company in Washington State affects 170,000 acres, nearly 200 listed and unlisted species, and will last for 100 years. According to the FWS and NMFS, the trend among HCPs is towards larger, regional plans, "evolving from a process adopted primarily to address single developments to a broad-based, landscape level planning tool utilized to achieve long term biological and regulatory goals."*

The explosive growth in HCPs is likely to continue. Conservationists who are concerned about endangered species protection must learn how to work within the complex HCP development process. Although this process includes opportunities for public participation and comment, these opportunities are limited and vary widely from plan to plan. The purpose of this Guide is to help conservationists decipher the HCP development process, make the most of limited opportunities for citizen participation in order to influence HCPs in their communities, and ensure maximum protections for imperiled species.

The HCP process in brief:

1) The HCP development phase.

The applicant develops an HCP with "technical assistance" from a FWS or NMFS field office, usually meeting with staff to obtain guidance on how to proceed. The Service advises the applicant of the requirements an HCP must meet, and information it must contain. Most applicants hire a consultant to prepare the HCP.

An application package submitted to the Service consists of:

  • a permit application form;
  • a permit application fee (currently $25);
  • a completed HCP;
  • and, if required by the policy of the Service's Regional Director or requested by the applicant, an implementation agreement.

The application package will also include a draft document outlining compliance with the National Environmental Policy Act (NEPA). A new FWS/NMFS policy allows an applicant to combine the HCP and any required NEPA analysis in a single document.

2) The permit application processing phase.

The application package is reviewed by the appropriate regional office or the NMFS Washington, D.C. office for compliance with legal standards. In addition, FWS or NMFS consult under Section 7 regarding the HCP and draft a Biological Opinion.

The Service places a notice of application for the HCP in the Federal Register, beginning a public comment period of either 30 days, for a

  • low-effect HCP or a plan requiring only an Environmental Assessment (EA), or 45 days, for an HCP requiring an Environmental Impact Statement (EIS). The Service will review public comments before ruling on the application. If an EIS was prepared the Service will issue
  • a Record of Decision responding to public comments within 30 days after publishing notice of the final EIS in the Federal Register.

The permit is either issued or the application is rejected.

3) The post-issuance phase.

A Federal Register notice announces the issuance of the permit.

The permittee and other responsible parties implement the HCP and its monitoring and funding components.

The FWS and NMFS are responsible for monitoring a permittee's compliance with the HCP and the implementing agreement as well as tracking the HCP's progress and success.

The Importance of Public Participation: How Citizens Can Be Involved in the HCP Process

Decisions concerning matters of public trust, such as wildlife protection and management of open spaces, must allow for public involvement as a matter of fairness. In general, the ESA recognizes the strong public interest in conserving our nation's wildlife heritage. The public also has an interest in the impact of HCPs, particularly large multi-species plans, that may damage surrounding communities through a loss of species diversity and open space. Such adverse impacts often reach beyond the borders of a Habitat Conservation Plan. Public oversight of plan development is critical to the protection of these interests.

In addition, public oversight is needed to confront an inherent conflict of interest in the development and approval procedures for an HCP. A single governmental entity -- -- either the FWS or NMFS -- -- is responsible for providing technical assistance to a permit applicant, negotiating the terms of an HCP with that applicant, rendering a Biological Opinion under Section 7 of the ESA, and finally approving or denying the permit. Although the recently issued FWS/NMFS Handbook requires that different offices work with the applicant to develop and review the eventual plan, this situation still presents a potential conflict of interest. Public oversight helps ensure that conflicts of interest do not result in a disservice to the public interest in wildlife protection.

The inclusion of interested citizens in the development of complex HCPs ensures that they will be heard on an issue that may fundamentally change the landscape of their communities. Such public outreach may reduce or eliminate public opposition to the final plan, thereby supporting its implementation and potential for success. This is particularly important if public funding is a part of the plan. As one report on HCPs notes:

"The inclusion of known or potential adversaries to particular development projects in the HCP process may make consensus difficult, but it has the advantage of giving them the opportunity to "buy in" to the resulting plan, thereby reducing the likelihood that they will later seek to obstruct or overturn it."*
Public Participation: The Good and the Bad

Vast differences in the amount and nature of public participation in HCPs makes the process complicated for both the public and the agency administering them. For example, the plans developed under the California Natural Communities Conservation Plan (NCCP) have included significant opportunities for public participation in planning and development of the various plans for coastal sage scrub ecosystem protection in Southern California. Many activists involved in the development of the San Diego Multi Species Conservation Plan (MSCP) were pleased with their access to the development process via mechanisms such as working groups and public meetings. The San Diego MSCP has been suggested as a model for conducting public participation for large-scale and regional plans in the future.

The San Diego MSCP's high level of participation contrasts sharply with another plan now under development. As part of a deal with the Clinton Administration regarding the controversial Headwaters Forest -- -- a privately-owned forest in northern California that contains stands of rare old growth redwood trees and provides habitat for the endangered Marbled Murrelet -- -- the landowner is currently negotiating an HCP. This HCP will cover at least 200,000 acres, including several old growth redwood groves.

The fight to save the Headwaters Forest has been one of the most emotional and controversial issues in the region in recent years. However, in spite of the strong public interest in the Headwaters Forest, the negotiations for the HCP are being carried on in private. This process forces concerned groups to wait while the details of a plan that will affect an area they have fought for years to save are worked out behind closed doors with a landowner they have no reason to trust. Their dissent from the eventual plan is nearly assured.

The Public's Role in Habitat Conservation Planning

In the Endangered Species Act, Congress recognized that the conservation of imperiled wildlife is of "esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." The Act acknowledges this public interest in wildlife protection in a number of ways. The public has the right to petition for the listing of a species. The Fish and Wildlife Service and National Marine Fisheries Service are required to give public notice of listing decisions, recovery plans, critical habitat designation, and other key decisions under the Act. There are also provisions allowing citizens to sue the federal government for enforcement of the Act.

In contrast with many other provisions of the Endangered Species Act, the process of developing a Habitat Conservation Plan in order to apply for an Incidental Take Permit for a listed species is primarily conducted away from the public eye. Whether the applicant is a public entity, such as a county or city government, or a private landowner, the law requires little public participation in the development of an HCP. Section 10 requires that the FWS or NMFS publish a notice in the Federal Register when a formal application for an Incidental Take Permit is made; the public is then given 30 days to submit comments. Under Section 10 the Services are not required to respond to public comments on a draft HCP or even to consider them in making their final decision. In addition, this comment period comes after months, and in some cases years, of negotiations between an applicant and the relevant Service regarding the terms of an HCP; changes in response to public concerns are therefore unlikely.

Applicants proposing large, complex, and/or long HCPs also must comply with the requirements of the National Environmental Policy Act (NEPA). NEPA mandates some public participation and accountability, as discussed in more detail in Appendix I. However, the new FWS/NMFS Habitat Conservation Planning Handbook outlines a new category of "low-effect" Incidental Take Permits. These permits involve "minor or negligible" effects on federally listed, proposed, or candidate species and "minor or negligible" effects on other environmental values or resources. This kind of taking permit is "categorically excluded" under NEPA as having no significant impact on the environment.

FWS and NMFS policies "encourage," but do not require, applicants to appoint a steering committee made up of representatives of interested groups in the community to help develop the HCP.

When a permit applicant is a public entity, greater public access is often required by state or local law. For example, in California governmental HCP applicants must comply with a state law that requires public access to all meetings involving a quorum of a public decision-making body, such as a city council or planning board.

Opportunities to Participate in an HCP

1. Initial Contact. A landowner, group of landowners, sub-federal government, or other entity contemplating activities that may result in a take of a listed species contacts the FWS or NMFS regarding a possible Incidental Take Permit. The Services are not required to notify the public that they have been contacted.

Conservationists interested in tracking HCPs in their region should develop relationships with personnel in their local FWS or NMFS field office and with relevant state or local agencies. Such relationships may lead to advance warning of a pending HCP negotiation. A list of FWS and NMFS field offices dealing with endangered species is included in the Appendix to this guide.

2. Negotiation. The ESA does not require public involvement during the negotiation of an HCP.

FWS/NMFS policies direct field personnel to "encourage" private applicants to involve the public in the development of an HCP through the use of a steering committee or other mechanism. If the applicant is a state or local government, state open meeting laws may apply during the permit development phase. These laws require public hearings or other opportunities for participation and input, such as steering committees or working groups. If asked to serve on a steering committee or in a working group, conservationists should carefully evaluate the time required to fully participate, as well as the limits of such participation. If involvement with a steering committee or in a working group merely entails offering advice to those actually negotiating an HCP, it does not require support for the eventual plan. However, if participation does require some measure of support for the final plan, or a role in negotiating the plan itself, conservationists should think carefully before agreeing to participate. It is often best to maintain objectivity and preserve the right to fully comment on the completed HCP and draft EIS. If a private applicant refuses to appoint a steering committee or working groups, the Services may still be willing to provide briefings to conservation groups on the progress of negotiations, and may also make early efforts to obtain feedback from interested parties. Again, the key to such informal contact with agency employees is early work to build productive relationships.

3. NEPA Review. If the proposed HCP is of sufficient size, complexity, and/or duration, the Services must comply with the National Environmental Policy Act (NEPA) and draft an Environmental Assessment (EA). If the impact of the HCP will be significant, they must draft a more formal Environmental Impact Statement (EIS).

If an EIS is required, the FWS or NMFS will publish a notice of intent to prepare an EIS in the Federal Register and provide for public input in scoping, either through written comments or public hearings.

4. Application. After months and even years of preparation, the applicant submits a formal application for an Incidental Take Permit.

If the permit falls into the Services' "low effect" exemption from NEPA or NEPA required only an Environmental Assessment, notice of the application is printed in the Federal Register. Interested citizens then have 30 days to comment. If an Environmental Impact Statement was required under NEPA, the Federal Register notice will invite the public to comment on the draft EIS and HCP within 45 days.

5. Issuance. The FWS or NMFS review the permit application and determine whether it complies with the Section 10 criteria. The HCP is either accepted or rejected, and notice of the decision is printed in the Federal Register.

6. Implementation. Service personnel monitor the HCP for compliance and the permittee carries out the provisions of the plan, including monitoring responsibilities.

There may be significant opportunities for interested members of the public to help an applicant in monitoring a plan, particularly if the applicant is a public entity. Building relationships with agency personnel is the best way to determine if such opportunities exist.

Reviewing an HCP -- What to Look for

Conservationists should ask whether an HCP meets all of the requirements of federal law and Service policy. (See Appendix I). They should evaluate the adequacy of the HCP by asking certain critical questions. Some of the more important questions are discussed below. In addition, Appendix IV includes an example of written comments on an HCP.

An HCP Checklist:
  • What species are covered by the plan? What habitat types?
  • What area is covered by the plan? What area should be covered?
  • What are the scientific assumptions of the plan? How were they evaluated? Are the objectives clearly stated?
  • Does the plan rely on adjoining land uses? Is its reliance valid?
  • What alternatives are considered? What impacts are analyzed?
  • What will the plan do for listed species?
  • What will the plan do for unlisted species?
  • What provision is made for funding the plan?
  • What activities are covered by the plan?
  • Does the plan comply with or require changes to other applicable laws?
  • How long will the plan last?
  • How will federal agencies know if the plan is being implemented?
  • How will they know if it works?
  • What if the plan doesn't work?
  • What species are covered by the plan?
  • What habitat types?
What species are covered by the plan? What habitat types?

In evaluating an HCP, a conservationist should first consider what listed and unlisted species the plan purports to cover. FWS/NMFS policy permits plans that are "habitat-based" rather than "species based": for a habitat-based plan a conservationist must determine what type of habitat is considered covered and which indicator species will be used to manage that habitat. HCPs ideally should cover all listed, and preferably some unlisted vulnerable species.

HCPs may offer hope for moving species management into the realm of managing entire ecosystems. Before HCPs were available, listed species were protected on a site-by-site basis, generally by protecting core areas of habitat around breeding sites. By forcing land managers to plan ahead and incorporate the needs of wildlife on a landscape scale, the needs of many species over large areas may be accommodated. This approach may also have great benefits for declining species. Thus, the HCP's choice of what species and ecosystems to address is key to any analysis.

A Habitat Conservation Plan approved for timber land in Washington State allows the incidental take of four listed species and "covers" over 200 unlisted species. Under the Implementation Agreement for this HCP, the unlisted species are divided into broadly drawn groups according to their general habitat. One group includes such divergent species as mountain goats, bats, peregrine falcons, and the Larch Mountain salamander, because they all depend upon cliff and rock habitat. However, these groupings fail to recognize the widely different habitat needs of such a broad selection of species and bare protection of habitat without species-specific management techniques is unlikely to ensure their protection under the HCP.

What area is covered by the Habitat Conservation Plan? What area should be covered?

In areas with mixed ownership and complex property boundaries, separate plans with single landowners may result in fragmented, uncoordinated management and uneven application of habitat protection measures across the landscape. This fragmented approach encourages a kind of "high-grading" on the landscape. The first landowners to submit HCPs will propose to provide habitats needed by a listed species during only one stage of its life history, the stage that is most compatible with that landowner's goals. Remaining landowners will be forced to provide habitats for other life stages -- habitats that may be more expensive to create and maintain.

Thus, conservationists should carefully scrutinize the geographic area the HCP will cover. The size of the area must be appropriate to the planning effort. For endemic species with restricted ranges (e.g. some invertebrates or fish) the plan should ideally cover the entire range of the species. For more widely distributed species, the larger area the better, depending on the objectives of the HCP. If the plan applies to only part of a population -- such as a cluster of nesting territories -- the area should be large enough to accommodate a viable "source" population that can colonize new areas.

The Services cannot control the size and configuration of an HCP planning area. The applicant is free to propose whatever area he or she wishes. In cases where the area proposed is not large enough to allow a comprehensive, population-level conservation strategy to be implemented, the Services should deny a permit request.

An HCP approved for forest land managed by the Washington State Department of Natural Resources covers 1.6 million acres, will last for 70 to 100 years, and provides coverage for some 200 listed and unlisted species.

What are the scientific assumptions of the plan? How were they evaluated? Are objectives clearly stated?

The HCP must state clear, measurable biological objectives. It should provide estimates of the amount of habitat to be preserved or maintained, and the number of individuals or breeding pairs it will support throughout the life of the plan.

Conversely, the plan should also include an estimate of the amount of habitat and number of individuals that will be adversely affected by the plan. This includes estimates of the number of individuals that will be "taken," quantifiable impacts on the population, and habitat loss and its impacts on species populations.

Where possible, plans should be based on proven, well-regarded scientific principles. If risky assumptions are made or new techniques proposed, the plan should include a process for future modifications in the event of failure. Plans that include high levels of scientific risk should receive significantly lower levels of regulatory assurances including "No Surprises" assurances (see Appendix I for further explanation of the "No Surprises" policy).

In May, 1995 the National Academy of Science's National Research Council released a report, "Science and the Endangered Species Act." At that time the number of HCPs was still relatively small; the Council recognized the potential benefits of this nascent program, but warned that scientific safeguards were critical to its ultimate success. The Council made a number of recommendations to ensure the development of plans based in sound science. These included a recommendation that the Services develop guidelines to assist planners in applying biological data to conservation plans. The Council also recognized the need for better funding to help Services provide scientific guidance in the planning process and endorsed the trend towards regional, ecosystem-based planning. Finally, the Council linked HCPs to recovery by recommending that recovery plans include criteria for use in preparing HCPs. To date, almost none of these recommendations has been applied to the HCP program.

Does the plan rely on particular uses of adjoining lands? Is this reliance justified?

HCP reviewers should carefully evaluate the assumptions made about the future of lands adjacent to the planning area. Because wildlife do not recognize property boundaries, any proposed mitigation must be evaluated within the context of the surrounding land use. For example, a site adjacent to a national park or wilderness will likely require fewer safeguards than a site next to a rapidly expanding urban area. If little or nothing is known about the future management of adjacent lands, the agencies should assume a worst case scenario about adjoining land use, and require higher standards of protection for the listed species.

Conservationists should also remember that an HCP may not rely on adjoining state, federal, or tribal lands for mitigation of activities unless the agency that owns or manages the adjacent land has agreed to this reliance. In addition, FWS policy precludes reliance on National Wildlife Refuge lands as part of a mitigation strategy.

In 1996 the FWS approved an HCP and Incidental Take Permit for private timber land in Washington State. This will affect not only long term management of 150,000 acres of private land but also long term management of adjoining National Forest land. The plan's conservation strategy relies heavily on neighboring federal lands to provide nesting, roosting, and feeding habitat for the threatened Northern Spotted Owl, while the timber company's land provides dispersal habitat for the birds. This HCP additionally assumes that the Forest Service land will continue to be managed pursuant to the Northwest Forest Plan. The recent passage and implementation of the Timber Salvage Rider in the Pacific Northwest shows the potential for political modification of an existing forest plan, and the risk of relying on such a plan in an HCP.

What alternatives were considered? What impacts are analyzed?

As discussed in greater detail in Appendix I, the National Environmental Policy Act (NEPA) applies to HCPs and requires an evaluation of a plan's impacts on the human environment. Most HCPs will require at least an Environmental Assessment (EA), which is a threshold assessment of impacts on the environment. If the plan will have a significant impact on the environment, a more thorough Environmental Impact Statement (EIS) is prepared. Conservationists should carefully evaluate whether the level of NEPA evaluation chosen is appropriate to a particular plan. A recent trend is towards the use of the less exhaustive EA over the more thorough EIS, even for large multi-species plans that will arguably have a significant impact on the environment. If a plan is considered low-effect due to its minor or negligible impact on the environment, a new regulation may exclude it from NEPA review. The Services must justify their use of this exclusion: if the HCP is not truly "low-effect" -- -- that is, if it will individually or cumulatively have a "significant impact on the human environment" -- -- then the exemption should be challenged.

In evaluating an HCP and an Environmental Assessment or Environmental Impact Statement under NEPA, conservationists should consider the sufficiency of the alternatives analysis in both documents. NEPA requires that the action agency consider a broad range of alternatives to the course of action finally chosen -- -- not just the proposed action and a "no action" alternative. NEPA also requires an evaluation of a proposed action on the environment as a whole, not just impacts on listed species. In light of this, a combined HCP/NEPA document should consider more than just the impact of proposed alternatives on the species listed in the permit.

What will the Habitat Conservation Plan do for listed species?

First and foremost, an HCP must describe a plan of action that will genuinely lead to conservation of the species it covers. While there is no statutory requirement that the plan result in a net benefit for covered species, actions taken by the applicant must not preclude the survival and recovery of the species. Just as the applicant expects implementation of the HCP to create certainty in the regulatory environment, the public has the right to expect that there will be certainty for the species covered. Therefore, the mitigation must be appropriate to the activity proposed.

HCPs are not recovery plans. The standard for their approval is not a contribution toward recovery, but rather requires minimization and mitigation of permitted take and avoidance of jeopardy to the species. Both are relatively low standards and at best will only preserve the status quo. However, if a species has limited range, an HCP may become a de facto recovery plan. Conservationists must be aware of this possibility and work to ensure that an HCP covering a considerable part of a species' habitat is at least consistent with its recovery and will do more than just preserve the status quo for that species.

With limited exceptions, plants are not protected by the ESA's prohibition against taking. However, if a proposed activity in an HCP will put a listed plant in jeopardy, under Section 7 of the ESA federal agencies may not issue the permit. Consequently, plans should consider potential impacts of covered activities on listed plants, and conservationists should raise potential impacts on plants in their comments.

Some observers fear that the Services may use the existence of HCPs to justify the downlisting of threatened or endangered species. Section 4(a) of the ESA states the factors considered in listing decisions, one of which is "the inadequacy of existing regulatory mechanisms." The Services may argue that HCPs are an adequate regulatory mechanism. By contrast, conservationists believe that downlisting decisions should be based on progress toward population recovery goals. Decisions to downlist should not be based on the existence of an HCP unless monitoring reveals reliable evidence that the HCP has resulted in stable or increasing populations.

The growing number of large regional plans is likely to result in more HCPs as de facto recovery plans for listed species. In a hearing before the San Diego City Council regarding its pending vote to approve the San Diego Multi-Species Conservation Plan (MSCP), FWS Region 1 Director Mike Spear made the following statement:

The MSCP will provide for the recovery of covered species within the proposed reserve -- whether they be species with narrow or wide ranges. For species with restricted ranges, the MSCP will be the vehicle for recovery. For other species dependent on vegetation communities conserved in the plan, the MSCP will likewise support recovery. Finally, for wide-ranging species, the MSCP will contribute to their overall conservation through the protection of large, interconnected blocks of habitat versus the small patches of habitat that result from project-by-project mitigation.

What will the plan do for unlisted species?

Increasingly HCPs include unlisted species on their lists of covered species. To obtain full coverage, such species must be considered as if listed; however, if planners have insufficient biological information regarding an unlisted species (as is frequently the case) this standard will be difficult to meet. Where information is lacking, a species may be given a lesser degree of coverage under the plan, adaptive management techniques may be written into the plan, or the applicant may be required to furnish further information on the unlisted species. If an unlisted species is considered fully "covered" by a plan and is subsequently listed, the terms of the Incidental Take Permit will not change, no additional mitigation will be required for that species, and the permit holder will receive automatic legal authority to take individual of the newly listed species. Thus it is important to ensure that the species really is "covered" by the plan.

Under the ESA, the Services may determine that a species need not be listed if it is deemed adequately protected by "existing regulatory mechanisms." Because the standard for an HCP is mitigation rather than recovery, an HCP is not a substitute for listing. Many conservationists fear, however, that the existence of HCPs may be used to justify decisions not to list deserving species.

The short-leafed dudleya is a plant found only in the southern California maritime chaparral ecosystem. The dudleya was proposed for listing as endangered on October 1, 1993; only six populations of this plant remain. On October 7, 1996, the FWS withdrew its listing proposal because the dudleya was included in the covered species list for the San Diego Multi-Species Conservation Plan (MSCP). The notice of withdrawal found that the MSCP would "reduce existing threats to allow stabilization" of the plant's population; however, the MSCP includes only four of the plant's six remaining population groups.

What activities are covered by the plan?

Plans should be relatively specific regarding activities that will be covered by the Incidental Take Permit. At the very least, they should set forth a process for determining whether future activities will be covered by the plan. A plan that contains a broad or vague description of permitted activities could allow nearly any use of land imaginable, with potentially disastrous results for listed and declining species. This danger is particularly acute when the permit holder is a municipal government, as is the case with a number of regional plans. In such plans, the government will need some measure of flexibility to make its land use decisions; however, such plans should include a process for ensuring that governmental decisions do not result in excessive levels of take.

Does the plan comply with or require changes to other applicable laws?

Section 10 of the ESA allows the FWS and NMFS to issue permits for the taking of endangered and threatened species "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Conservationists should make sure that the activities proposed under an HCP do not violate other laws, particularly other environmental laws. For example, long term plans may impact the ability of state or federal agencies to enforce other laws that protect air, water or soil such as the Clean Air Act and Clean Water Act. In addition, where other federal or state laws are implicated, the agencies charged with their administration, such as the Environmental Protection Agency for the Clean Water Act, should play a role in the planning of an HCP. Conservationists should raise these issues, particularly for plans that include "No Surprises" assurances. Although the "No Surprises" policy currently applies only to enforcement of the ESA by the FWS and NMFS, some landowners are pressing for an expansion of the policy to include other federal laws and other federal agencies.

In addition, large regional plans that include local governments as a party may require changes in local land use laws or the abandonment of current land use plans. Conservationists should be aware of this potential and evaluate carefully any plan that allows local government to cede its decisionmaking authority in this manner.

A proposed HCP for 400,000 acres of forest land in Oregon includes several important salmon rivers and streams. The Environmental Protection Agency has raised serious objections to this plan on the grounds that it will not guarantee sufficient water quality over time and thus violates the Clean Water Act.

What provision is made for funding the plan?

Section 10 requires that an HCP applicant provide funding for the life of the plan. Where a plan will last many years and cover many thousands of acres, there may be insufficient funding to ensure full implementation of required mitigation. Conservationists should carefully scrutinize an HCP's funding promises and resources. Even for a short-term plan, funding for necessary land acquisition and habitat management should be assured over the life of the plan.

In July 1996, the FWS issued an Incidental Take Permit authorizing take of the endangered Pacific pocket mouse by a development planned for the Dana Point Headlands, in spite of a lack of secure funding for the permit's HCP. Under the plan, the developer must set aside a temporary preserve for Dana Point's colony of the endangered mouse -- -- one of only three remaining colonies -- -- and work with the FWS over an eight year period to relocate the colony to other suitable habitat. The developer is only required to pay half of the cost of monitoring, propagation, and relocation efforts; the FWS has agreed to pay for the rest of these costs. After eight years, the mice will either be moved to other habitat, or if relocation is not feasible, FWS will receive a four-month option to purchase the property. If the FWS is not able to purchase the property at its full market value, the developer may destroy the habitat. Dana Point is located on the Southern California coast between Los Angeles and San Diego. Little open space remains in the area, and property values are extremely high. The FWS has made no guarantee that it will have the funds to pay for its half of the cost of managing the pocket mouse relocation program or to purchase the property if relocation efforts are unsuccessful.

How long will the plan last?

Some HCPs are in force for 50 to 100 years. To commit to such a long range management plan based on today's understanding of biology and wildlife ecology is extremely risky. For example, consider the case of hydropower dams and salmon on the West Coast. When the dams were built, fisheries managers considered hatcheries to be the best available technology for mitigating impacts on migratory fish. We now know that hatcheries have not worked, and over 200 salmon stocks in the West are at risk of extinction. If the U.S. Government had signed a contract accepting hatcheries as the sole mitigation measure for hydropower dams for 100 years, there would be little hope of correcting this error and recovering these priceless resources.

How will the federal agencies know if the plan is being implemented? How will they know if it works?

There must be realistic monitoring of both compliance and effectiveness of the HCP. Enforcement personnel must work to ensure that the applicant carries out the actions required. In addition, someone must monitor the population viability of the listed species to ensure that the mitigation measures actually meet their conservation goals. Such monitoring is extremely expensive, but necessary. Keep in mind that any HCP is a grand experiment and needs to be evaluated.

The Services should reject any plan that does not include a method for evaluating its success. The conservation community must continue to remind the Services that the issuance of an Incidental Take Permit is only the beginning. There must be a long-term commitment to monitoring a plan's outcome, in order to determine whether the goals and objectives are being accomplished. Plans should include a strict protocol to help assess whether or not the plan is meeting its objectives.

Monitoring should apply not only to the listed species for which the HCP was written but also, where possible, to other, unlisted species that will be reliable indicators of the health of the entire system.

The FWS and the NMFS do not currently have a system in place to monitor approved HCPs, nor do they have the funds or personnel to carry out a monitoring system, even if one existed. As previously noted, between 1992 and 1996 the number of HCPs has grown from fewer than 20 to over 200- a tenfold increase. At the same time, the FWS and NMFS budgets for development and oversight of conservation agreemnets has remained relatively stagnant. For example, the FWS budget for consultation, which includes not only HCP developing and monitoring but also Section 7 consultations, has grown from $5.2 million for FY91, to $18.2 million for FY95, to $18 million for FY97- only 3.5 times higher. The number of FWS and NMFS consultation personnel has also remained fairly stagnant. Although full time FWS consultation employees grew from 93 in FY91 to 265 in FY97, in the past three years, which have seen massive growth in the HCP program, only 16 employees were added nationwide. The FWS estimates that in FY98 these employees will handle 900 formal, 1500 programmatic, and 38,000 informal Section 7 consultations. They will also process and monitor 400 HCPs that collectively cover millions of acres and hundreds of species.

What if the plan doesn't work?

In a few cases, applicants have proposed mitigation that is based primarily on speculation. For example, forest managers in the Pacific Northwest believe that through innovative thinning, pruning, and snag retention, they can create old-growth forest conditions in young forests, thus providing habitat for old growth associated wildlife species such as the Northern Spotted Owl. While such techniques may be promising, the technology is unproven, and will remain so for many years. In the interim, it is risky to assume that such measures are available means of old growth protection.

Many HCPs are developed in an atmosphere of crisis. In most cases, decisions must be made without adequate knowledge about the ecology and life requisites of the species involved, or how these species are affected by alteration of their habitat. Often little is known about the appropriate amount, configuration, and spatial distribution of habitat necessary to maintain viable populations.

Given these risks, a plan should address the likelihood that mitigation measures will fail, and should contain provisions to allow for mid-course corrections. Unfortunately, the Services are very resistant to the suggestion that the applicant alter the plan after a permit is issued. In its zeal to create incentives for landowners to submit HCPs, the Services have adopted the "No Surprises" policy (for a detailed explanation of this policy, see Appendix I). This policy virtually guarantees that applicants will not be required to provide habitat beyond the level specified in an HCP, even if that level is later found to be inadequate.

Basing long-term management decisions on insufficient information is always risky. This level of risk is compounded by the "No Surprises" policy. Thus it is imperative that conservationists carefully evaluate the adequacy of an HCP before it is adopted by the Services.

Recently, a group of 165 conservation scientists expressed grave reservations about the "No Surprises" policy, noting that "nature is non-linear, disturbance-driven, and affected by thresholds. We wish to make it clear that there is no scientific basis for claims of 'no surprises;' in fact 'surprise' is a good working view of natural systems. The 'no surprises' clause clearly is a political, not a scientific perspective."

Federal regulations state that an HCP must include a description of what will be done in the event of "unforeseen circumstances." The regulation merely requires the applicant to "detail . . . the procedures to deal with unforeseen circumstances," but does not specify that the procedures must fix the problem created by these circumstances. At the same time, the "No Surprises" policy offers the applicant a guarantee that no additional mitigation will be required, even if the plan's original conservation measures fail. Some applicants have taken advantage of the apparent conflict between the "unforeseen circumstances" requirement and the "No Surprises" policy by submitting plans that propose to do nothing in the event of unforeseen circumstances.

The "unforeseen circumstances" requirement does not specify that the applicant must commit to additional protective measures if the original mitigation fails to accomplish its intended goals. However, it is hard to imagine that Congress did not intend such a requirement when it included this provision in the law. From a conservation point of view, the discussion of "unforeseen circumstances" in an HCP should include a provision for compensatory actions in the event conservation objectives are not reached.

The issue of unforeseen circumstances is a difficult one for federal regulators and conservationists alike. The agencies must strike a balance between creating incentives for landowners to embrace HCPs and keeping standards high enough so as not to result in harm to the species. If applicants insist upon guarantees that the original mitigation requirements of the HCP will never be increased, conservationists should insist that the Services reject HCPs that do not allow for an initial margin of protection to accommodate unforeseen circumstances.

At a 1995 HCP symposium sponsored by the Society for Conservation Biology, Ron Marlowe and Karen Hoff of the University of Nevada presented the results of their evaluations of five HCPs adopted between 1983 and 1995. They concluded that there was no evidence that these plans had successfully contributed to the species' conservation, and that there was little reason to believe they ever would. They found that the HCPs were biologically inadequate, lacked the flexibility to accommodate change, and lacked adequate supervision by the Services. Most had no biological criteria established to define success.

Other Conservation Agreements That Permit Take of Species

In addition to Habitat Conservation Plans, the FWS and NMFS have developed two other types of agreements that permit the taking of listed species: Safe Harbor agreements and candidate conservation agreements. Conservationists should be aware of these HCP-like agreements, as they are likely to become more common, and to raise many of the same issues for conservation of species as do HCPs. Opportunities for public participation in these agreements are similar to those available for HCPs: notices for public comment on agreements and NEPA assessment documents are published in the Federal Register at the approval phase; opportunities for participation during plan development are limited.

Safe Harbor Agreements

Under a Safe Harbor agreement, a landowner is encouraged to maintain and/or modify habitat in order to attract endangered or threatened species to his or her property. But after expiration of the agreement, the landowner may abandon the modifications and develop the property without penalty. If there is a population of the listed species on the property at the time the landowner enters into the agreement, that population becomes a baseline. This baseline population must be maintained through any subsequent modification or use of the property.

To date the FWS has authorized a small number of Safe Harbor agreements. The first was developed for the Sandhills region of North Carolina to encourage landowners to provide habitat for the Red-cockaded Woodpecker. Other Safe Harbor agreements have been developed for the Attwaters Prairie Chicken and Aplomado Falcon in Texas. State-wide Safe Harbor agreements for the Red-cockaded Woodpecker modeled after the Sandhills plan are being developed in several southeastern states. These plans are authorized by the FWS under Section 10 as "programmatic HCPs." The taking of a listed species on land subject to a Safe Harbor agreement does not require an individual Incidental Take Permit, but rather requires enrollment in a program that has a blanket take permit.

In a few instances Safe Harbor agreements have been proposed in conjunction with an individual permit to take species under an HCP. The FWS and NMFS are currently reviewing their Safe Harbor policy, particularly when it is used with an Incidental Take Permit.

As this program is relatively new, its overall biological impact on species' populations is not yet known. However, if these temporary Safe Harbor agreements become a justification for the development of other potential habitat, their broad use may, in the long term, cause more harm than good. Safe Harbor agreements may not be appropriate for species with very specific habitat needs -- -- such as migratory birds that return to the same nesting site year after year -- -- or for endemic species with a very limited range.

In 1996, the FWS issued an Incidental Take Permit allowing a landowner to take up to 29 birds in 12 active Red-cockaded Woodpecker clusters on his property and to completely take one of the existing 12 groups. The Incidental Take Permit thus allowed for a reduction of the baseline population of Red-cockaded Woodpeckers on the property. The landowner also negotiated a Safe Harbor Agreement for any woodpeckers subsequently attracted to his property. This arrangement effectively allowed him to reduce the baseline population of woodpeckers on his property through the Incidental Take Permit and then gave him the authority to take any birds above the newly-reduced baseline that are subsequently attracted to the property.

Candidate Conservation Agreements

Under the candidate conservation agreement program, landowners, state and local agencies, and federal agencies other than the FWS or NMFS may enter into an agreement with the Services for the conservation of a candidate species, prior to its listing. A candidate species is one that the Services consider biologically vulnerable but whose listing is precluded due to lack of information or lack of resources. The number of candidate conservation agreements is on the rise, and unfortunately these agreements are often used as a substitute for listing under the Act.

The FWS has recently announced its intention to begin offering the option of candidate conservation agreements to private landowners. It proposes to encourage their participation in these voluntary agreements by offering assurances that landowners will not be required to do more than promised under the candidate conservation agreement if a species is subsequently listed. In addition, these agreements may include an Incidental Take Permit that would automatically take effect if a species is listed. However, proposed regulations for these agreements will require that landowners provide a "sufficient conservation benefit" to a candidate species, in the hope that this will preclude the need for listing. The conservation benefit to the species must be "of a level that, if undertaken on a broad enough scale by other property owners or State or local land management agencies similarly situated, would be cumulatively significant enough to remove the need to list the covered species."

The primary difficulty with this type of agreement is that one of the reasons a species may be on the candidate list is a lack of information. It is difficult to write a plan that will benefit a declining species without sufficient information. Another difficulty with candidate agreements is that the candidate list also includes species with extremely small and vulnerable populations whose listing has been precluded due to a lack of resources. A voluntary conservation agreement for such a species is clearly not appropriate.

Imperiled in the desert southwest and in Mexico due to habitat loss and hunting, the Jaguar was first proposed for listing under the ESA in 1973. In 1996, in response to a lawsuit, FWS finally proposed to list the Jaguar as endangered, but has never finalized the listing. Instead, the FWS negotiated a weak voluntary conservation agreement with Arizona and New Mexico. This agreement did not ensure that the Jaguar's habitat would be protected, nor did it increase penalties for poaching. In March 1997 a federal judge ruled that the conservation agreement for the Jaguar was inadequate to ensure its conservation, and ordered the Fish and Wildlife Service to list the Jaguar.

The current explosive growth in HCPs and related plans, limited state and federal funding to purchase endangered species habitat, and the growing data that indicates that listed species are not doing well on private land all lead to the conclusion that Habitat Conservation Plans not only are here to stay but also that they may be the only practical hope for conserving species on private lands. Properly used, HCPs could be an efficient tool for species conservation, but only if underlying policies and legal provisions are reformed to ensure that plans support the recovery of endangered and threatened species. In addition, the environmental community must develop the expertise to deal with Habitat Conservation Plans, and effectively share information and experience if we are to ensure that HCPs are of the highest possible quality. Without needed reforms, and without our oversight, these plans will only move species closer to extinction.

Appendix I -- Approval Standards for HCPs

Approval of a Habitat Conservation Plan and issuance of an Incidental Take Permit are governed by Sections 10 and 7 of the Endangered Species Act, by the National Environmental Policy Act (NEPA), and by policy guidelines set by the FWS and NMFS.

Section 10 Requirements

Under Section 10 of the ESA, a private or non-federal landowner may apply for a permit to take a listed species "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." To obtain an Incidental Take Permit a landowner must submit a Habitat Conservation Plan (HCP) that outlines:

  • the likely impact of the proposed taking;
  • steps the landowner will take to "minimize and mitigate" the impacts of the proposed taking;
  • alternatives considered, with reasons why those alternatives were not chosen; and
  • other measures that the FWS or NMFS may require "as being necessary or appropriate for purposes of the plan."

Once a landowner submits an HCP to the FWS or NMFS, the Services place a notice in the Federal Register inviting public comment on the draft HCP. The Services may issue an Incidental Take Permit after notice and comment if they find that:

  • the taking is incidental;
  • the applicant will, "to the maximum extent practicable," minimize and mitigate the impacts of the incidental take on the listed species;
  • the applicant will ensure adequate funding to implement the HCP;
  • the measure complies with any "other measures" required by the FWS or NMFS; and
  • "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild."
Section 7 Requirements

To issue an incidental take permit, the FWS and NMFS must comply with Section 7 of the ESA, which requires federal agencies to insure that their activities are "not likely to jeopardize the continued existence of any endangered species of threatened species" or result in the destruction of a species' critical habitat. Federal agencies must "consult with the Secretary" regarding any activity that may impact a listed species.

The issuance of an Incidental Take Permit and approval of an HCP require that the Services conduct a formal internal consultation and draft a Biological Opinion regarding the permit's impact on all listed species (including listed plant species), candidate species, and critical habitat for those species. Thus Section 7 consultation is somewhat broader than that required by Section 10. However, the Services may consider Section 7 issues during the development of the HCP wherever possible to ensure that the HCP takes into account factors that might jeopardize a species. Service policy also permits them to conduct the formal Section 7 consultation concurrently with the evaluation of the HCP and permit application to prevent delay.

NEPA Requirements

The National Environmental Policy Act requires federal agencies to evaluate the impact of their actions on the environment. The issuance of an Incidental Take Permit will nearly always impact the environment sufficiently to require an Environmental Assessment ("EA") under NEPA. If the EA indicates that the issuance of the permit is a major federal action significantly impacting the environment, NEPA requires a more thorough Environmental Impact Statement ("EIS").

NEPA review is by definition broader than that required under the Endangered Species Act: impacts on the environment as a whole must be considered and alternatives weighed, not merely those that impact a listed species. In addition, NEPA includes a structure for public participation and input not found in the ESA. The Services generally conduct NEPA scoping and EA/EIS development concurrently with the development of the HCP and evaluation of the EIS concurrently with their evaluation of the permit. The new HCP Handbook allows the Services and a permit applicant to combine the NEPA document and HCP into a single, more streamlined document.

Low Effect Incidental Take Permits. The Services recently have moved to limit somewhat the application of NEPA to HCPs by identifying a "low-effect" category of Incidental Take Permit that is categorically excluded from NEPA review. "Low-effect" Incidental Take Permits involve:

minor or negligible effects on federally listed, proposed, or candidate species; and minor or negligible effects on other environmental values or resources.

As defined by the Services, these permits, both individually and cumulatively, have a minor or negligible effect on the covered species, or, if a habitat-based HCP, on the covered habitat type. Low-effect permits are "categorically excluded" under NEPA as having no significant impact on the environment.

Unlike a full-fledged NEPA analysis, a low-effect Incidental Take Permit application requires only that the Services explain why the particular permit is excluded from NEPA review. For each low-effect permit the Service will issue an Environmental Action Memorandum, which serves as a record of NEPA compliance and explains the minor or negligible impact of the permit on the environment and its categorical exclusion from NEPA.

FWS/NMFS Policy Standards

Initially there was no standard policy framework for HCP development and approval. HCPs were developed free form, with much reinventing the wheel. At first there was no way to track whether the process was measuring up to administrative standards because there were no such standards. In 1994 the Services responded to the growing number of HCPs by developing a Habitat Conservation Planning Handbook (HCP Handbook) in order to ensure some level of consistency among plans in different parts of the country. The HCP Handbook remained in draft form until November, 1996 when a final version was released.* By setting forth policy guidelines for HCP development and approval, the HCP Handbook has made the process significantly more predictable. However, key issues are still left to the discretion of the individual applicant, including levels of public participation and biological standards.

Participants. Under FWS/NMFS policy the applicant is free to choose who will be a party to the Incidental Take Permit. Thus, a local government may apply for a permit with the participation of all landowners in a given area, or a single landowner may submit an application.

The decision as to who will participate in the development of an HCP also is largely up to the discretion of the applicant. The HCP Handbook suggests, but does not require, that an applicant appoint a steering committee of affected interests to aid in the development of the plan. If an applicant does not wish to appoint a steering committee, the Services are directed to "encourage the applicant to provide opportunities to brief or inform representatives of interested parties of key elements or issues to be addressed in the proposed HCP." However, such briefings are again left to the discretion of the applicant.

The applicant may decide to include adjoining landowners, such as federal and state agencies and Native American Tribes, in the planning of his or her HCP; however, this is also purely voluntary. As discussed in greater detail below, an applicant may not rely on adjoining lands to provide mitigation for his activities unless the owners or managers of those lands have been involved in plan development.

Duration. The duration of an Incidental Take Permit is left to the discretion of the issuing agency. Several factors may dictate the length of the permit: the time cycle of local land use plans; the length of time needed to implement development plans, land use plans, and conservation measures; and the assurances needed by the applicant over the life of the project. Time spans for individual plans vary widely, ranging from two year permits to build a single family home to the 100 year San Diego Multi-species Plan.

Size. The Services may not dictate the size of an HCP but FWS/NMFS policy encourages an applicant "to consider as large and comprehensive a plan area as is feasible and consistent with their land or natural resource use authorities." In addition, the HCP Handbook notes that the Services may not compel landowners to participate in a particular HCP. Both of these limits on the Services' authority have the potential to result in multiple small plans within a given area rather than a more comprehensive approach to species management in a given region.

Covered Activities. As with the size of the plan area, the choice of activities that will be covered by an HCP is largely left to the applicant. The HCP Handbook notes that a plan should be as specific as possible regarding activities to be covered by the Incidental Take Permit to "minimize the possibility that some future activity will not be covered by an issued permit." Unspecified activities may go forward unless they exceed allowed levels of take. The HCP Handbook notes, however, that unspecified activities should not be allowed if they result in the take of listed species at the expense of other activities that are specified in the plan.

Covered Species. An HCP may include any listed species found on the covered property, but a plan need not include all federally listed species found on the property. The Services may not issue a permit if it would jeopardize a species that is not included in the HCP, as that would violate the Services' responsibilities under Section 7 of the ESA.

In addition, an HCP may include unlisted "covered species," defined as "unlisted species that have been adequately addressed in an HCP as though they were listed." Covered species may be included in the Incidental Take Permit or the Services may assure a landowner that under certain circumstances they will be added if listed. Covered species are also subject to a permit's "No Surprises" assurances, as discussed below. Biological information on unlisted species is likely to be more limited than that available for a listed species. The HCP Handbook outlines several solutions to this problem: requiring the applicant to gather more information on the unlisted species; requiring the inclusion of adaptive management measures "designed to adjust management prescriptions or land use practices to reflect enhanced information on an unlisted species;" or giving reduced HCP coverage for an unlisted species in the absence of further data.

According to the HCP Handbook, if a species that is not on the covered species list for the HCP is subsequently listed, the permit must be formally amended, satisfying the requirements of Sections 7 and 10, before any take is permitted.

A number of more recent multi-species plans include several types of "covered species" lists. In the Orange County Coastal Plan, for example, 36 species are considered fully covered and receive full "No Surprises" assurances; 10 additional species are considered "conditionally" covered. For a landowner participating in the Orange County plan to receive permission to take a conditionally covered species, certain "special conditions" must be met, and possible impacts on the species are limited, requiring compensatory habitat and a mitigation plan.

Covered Habitat. An HCP may focus on an endangered habitat type that hosts a suite of listed and declining species, rather than on an individual species. The most prominent examples of habitat-based HCPs are the plans developed under the Natural Communities Conservation Plan process in Southern California. These plans attempt to protect dwindling coastal sage scrub habitat and focus on the needs of several listed and unlisted indicator species to set management parameters for the plan. Habitat-based plans may include a covered species list that goes beyond these indicator species and includes unlisted and candidate species. If these unlisted species are deemed adequately covered by the plan -- -- and, as discussed above, the FWS or NMFS must analyze the effects of the proposed plan on that species as if it were listed -- -- then the permit holder need not amend or reapply for an Incidental Take Permit if the species is subsequently listed.

Mitigation. Under the Services' interpretation of the ESA, an HCP need not provide for full mitigation of permitted take, and need not contribute to a covered species recovery. Although the FWS/NMFS policy "encourages" plans that are "consistent with" recovery and provide a "net positive effect" for species, the Services clearly believe that under the law neither of these points is required for approval of an HCP. The HCP Handbook outlines potential mitigation measures that a plan might include, such as land acquisition, habitat restoration, and habitat mitigation banks and mitigation fund accounts that could be pooled with other mitigation funds to purchase habitat.

Adaptive Management. The HCP Handbook encourages the use of adaptive management techniques in a plan where gaps in scientific information or knowledge of the biological requirements of a species create uncertainty regarding its long term management. Where gaps in data make precise identification of mitigation measures difficult or impossible, an adaptive management approach allows for changes in strategy in order to reach long term goals or biological objectives for a species. In addition, the Handbook encourages the use of monitoring as a part of an adaptive management strategy.

Monitoring. Under Section 10 both the applicant and the FWS or NMFS must monitor the impacts of an HCP and the Services must also ensure compliance with its terms. The HCP Handbook permits them to designate another agency to monitor implementation, such as a state wildlife agency or local government. If compliance monitoring is delegated, the Services will require periodic reports from the monitoring agency to fulfill their oversight responsibilities.

In addition, the FWS and NMFS may also agree to take on specific biological monitoring responsibilities under an individual HCP, although generally such monitoring is the responsibility of the permit holder. The HCP Handbook does not require extensive biological monitoring of smaller scale and low-effect plans; however, large scale plans should periodically account for levels of take, survey for species status, and mandate progress reports on fulfillment of mitigation requirements of the HCP.

Unforeseen Circumstances & "No Surprises". On August 11, 1994, Secretary of Interior Bruce Babbitt issued a joint FWS/NMFS "No Surprises" policy. Under this policy the Services will not require an HCP permit holder to commit any additional land or money beyond that required under a properly functioning plan that provides adequate mitigation for a species, except under "extraordinary circumstances." If the status of a species addressed under an HCP worsens, the primary responsibility for addressing the situation rests with the federal government. The permit holder will not be required to commit additional land or funding or submit to further restrictions on development.

"No Surprise assurances apply only to listed species addressed in the HCP and to unlisted species on the HCP's covered species list.

Under "extraordinary circumstances" a permit holder may be required to commit to additional mitigation measures. In general, a high degree of biological peril to a covered species is required for a finding of "extraordinary circumstances" and the burden of proof rests on the Services.

Finally, even if "extraordinary circumstances" do exist, the Services will not impose any additional mitigation measures where an HCP was intentionally designed to have a "net positive impact" on a species and contains criteria to measure its biological success which have been or are being met.

Funding. The FWS and NMFS may not approve an HCP unless an applicant can show that he or she has sufficient funding to carry out the terms and conditions of the plan. Failure to demonstrate funding is grounds for plan disapproval; failure to meet funding obligations after a plan is approved is grounds for revocation or suspension of the Incidental Take Permit. The HCP Handbook notes that for smaller HCPs the primary funding source will likely be the applicant. Larger and regional plans may include other, more speculative sources of funding including: development fees; mitigation fees; private contributions; and state or federal funds. The HCP Handbook is careful to note that under the federal Anti-Deficiency Act "any commitment of federal funding is always subject to the availability of appropriated funds." However, the Handbook does not imply that heavy reliance on federal funding would be grounds for disapproving a plan.

HCPs & Government Lands. Many HCPs now in place or under development are adjacent to lands owned or managed by federal, state or local government agencies or by Native American tribes. FWS and NMFS personnel must "ensure that activities are not identified in the HCP that obligate other agencies to conduct mitigation or minimization activities for species covered by the HCP, unless specifically negotiated with the agency, and the agency was a partner in the development and implementation of the HCP." However, adjacent federal, state, or tribal lands may be helpful for future mitigation required in unforeseen circumstances. The HCP Handbook suggests that if federal/state/tribal land managers are not involved in a plan's development, they must at least be notified of its terms in the event that their future support is required.

The FWS has also provided some guidance as to the role that the National Wildlife Refuge System will play in supporting HCPs: "A NWR should not be established or managed to substitute for the mitigation required by an HCP, but may complement an HCP in meeting comprehensive conservation and recovery goals for the species or the ecosystem."5

With respect to Native American tribes, the federal government has a trust responsibility that the Services must consider as the HCP is developed. Any activity under an HCP that may affect a tribe's resource rights, such as off-reservation hunting or fishing rights, or adjoining tribal lands, must be considered in light of the government's trust responsibilities. An example would be Native American salmon fishing rights in the Pacific Northwest and an HCP that impacts salmon streams.

Timing for HCP Approval

Under the FWS/NMFS policy the target processing time for a permit that requires a full Environmental Impact Statement is less than ten months, and for a permit that requires an Environmental Assessment is between three and five months. Target timing for a "low-effect" permit is less than three months.

To find out more about HCPs in your area, you can contact the relevant FWS or NMFS Regional Office that deals with Endangered Species.

Appendix III -- Sample Federal Register Notice

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Availability of an Environmental Assessment and Receipt of an Application for an Incidental Take Permit for the Kern County Waste Facilities Habitat Conservation Plan, Kern County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.

SUMMARY: This notice advises the public that the Kern County Waste Management Department (Department) has applied to the Fish and Wildlife Service for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended. The application has been assigned permit number PRT430 03. The proposed permit would authorize the incidental take of San Joaquin kit fox (Vulpes macrotis mutica), blunt-nosed leopard lizard (Gambelia silus), Tipton kangaroo rat (Dipodomys nitratoides nitratoides), and giant kangaroo rat (Dipodomys ingens), federally listed as endangered, and the Desert tortoise (Gopherus agassizii) and Hoover's eriastrum (Eriastrum hooverii), federally listed as threatened, and/or their habitat during the operation, maintenance, expansion, and/or closure of Kern County municipal solid waste management facilities. The proposed permit also would authorize future incidental take of the San Joaquin antelope squirrel (Ammospermophilus nelsoni), a currently unlisted species, should it become listed under the Endangered Species Act in the future. The permit would be in effect for 50 years.

The Fish and Wildlife Service also , announces the availability of an Environmental assessment for the incidental take permit application. The application includes the proposed Habitat Conservation Plan (Plan) fully describing the proposed project and mitigation, and the accompanying Implementing Agreement. This notice is provided pursuant to section 10(a) of the Endangered Species Act and regulations (40 CFR 1506.6). Comments are specifically requested on the appropriateness of the No Surprises assurance contained in this application, specifically outlined in section 7 of the Plan. All comments received, including and addresses, will become part of the official administrative record and may be made available to the public.

DATES: Written comments on the permit application, Environmental Assessment and Implementing Agreement should be received on or before August 11, 1997.

ADDRESSES: Comments regarding the application or adequacy of the

environmental assessment and Implementing Agreement should be addressed to the Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 3310 El Camino, Suite 130, Sacramento, California 958214340. Please refer to permit number PRT-830963 when submitting comments. Individuals wishing copies of the application, Environmental Assessment or Implementing Agreement for review should immediately contact the above office. Documents also will be available for public inspection, by appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Ms. Tiki Baron or Mr. William Lehman, Sacramento Fish and Wildlife Office, telephone (916) 979 2725.

SUPPLEMENTARY INFORMATION: Section 9 of the Endangered Species Act and Federal regulation prohibit the "taking" of a species listed as endangered or threatened, respectively. However, the Fish and Wildlife Service, under limited circumstances, may issue permits to take listed species incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for threatened species are promulgated in 50 CFR 17.32; regulations governing permits for endangered species are promulgated in 50 CFR 17.22.

Background:

The Kern County Waste Management Department seeks coverage for take of listed species incidental to landfill operations at all of the solid waste facilities in Kern County, California, not covered by the Metropolitan Bakersfield Habitat Conservation Plan.

Those facilities include 14 landfills and 2 transfer stations, all of which are existing sites permitted by the California Integrated Waste Management Board for waste management activities. Of the 14 landfills, one has been formally closed, two are inactive and awaiting final closure, and 11 are active. Biological surveys indicated that 6 of the 11 active sites contained listed species and/or their habitats; none of the 3 inactive/closed sites contained listed species or suitable habitat. Based on these results the Department concluded that the operation, maintenance, expansion, and eventual closure of 6 of the landfills may result in incidental take of listed species. San Joaquin kit fox, blunt-nosed leopard lizard, Tipton kangaroo rat. San Joaquun antelope squirrel, and Hoover's eriastrum were all found to occur on one or more of the 6 sites. Giant kangaroo rat and desert tortoise were not found on any of the landfill sites, but were each recorded adjacent to a landfill.

On-going operations at 5 of these 6 landfill sites would result in the loss of approximately 251 acres of habitat for the listed species noted above. To compensate for this loss, the Department proposes to fund the permanent protection and management of approximately 755 acres of similar habitat through purchase of credits at the ARCO Coles Levee Ecosystem Preserve or other Service approved site.

The sixth site, the Bakersfield Metropolitan Sanitary Landfill, contains approximately 900 acres of habitat for listed species. This site would be developed in phases of approximately 100 acres, each of which would be restored to habitat for listed species upon closure. To minimize impacts at the Bakersfield Metropolitan Landfill the Department proposes to have only two phases (one closing while another opens) active at any time. In addition the Department will enhance and maintain a 963-acre buffer around the landfill as open grazing land, managed to provide habitat for listed species, in perpetuity. The Plan also specifies comprehensive measures designed to minimize impacts to listed species on all of the landfill sites.

The Environmental Assessment considers the environmental consequences of three alternatives. Alternative 1, the proposed action, consists of the issuance of an incidental take permit to the County of Kern, and implementation of the Plan and its Implementing Agreement. This alternative is preferred because: (1) It satisfies the purpose and needs of the Fish and Wildlife Service and the Kern County Waste Management Department; (2) measures have been incorporated to avoid and minimize incidental take to the greatest extent practicable; and (3) unavoidable impacts are mitigated by the permanent protection of approximately 755 acres of habitat at an approved preserve and the enhancement of approximately 963 acres surrounding the Bakersfield Metropolitan Landfill. Under Alternative 2, the no action alternative, the Service would not issue an incidental take permit. The Department would likely proceed with the continued operation, maintenance, and closure of those eight landfill sites which do not provide habitat for listed species. However, this alternative would not allow the Department to continue operations that would result in take of listed species at the six landfill sites where listed species or their habitats occur. Under this Alternative, the Department also would not enhance the value of the Bakersfield Metropolitan Landfill and its buffer as habitat for the San Joaquin kit fox, nor would it contribute to the permanent protection of listed species habitat through purchase of credits at an approved preserve. Alternative 3 entails closure of one or more of the existing landfill sites and development of new waste facilities on alternate sites. Development of alternate sites, however, would likely result in equal or greater impacts to listed species.

This notice is provided pursuant to section 10(a) of the Endangered Species Act and the National Environmental Policy Act of 1969 regulations (40 CFR 1506.6). The Service will evaluate the application, associated documents, and comments submitted thereon to determine whether the application meets the requirements of the National Environmental Policy Act regulations and section 10(a) of the Endangered Species Act. If it is determined that the requirements are met, a permit will be issued for the incidental take of the listed species. The final permit decision will be made no sooner than 30 days from the date of this notice.

Dated: June 27, 1997
Thomas J. Dwyer,
Acting Regional Director, Region 1, Portland, Oregon.
(FR Doc. 97-18063 Filed 7-9-97; 8:45 am)

Appendix IV -- Sample HCP Comment Letter

January 19, 1996
William Vogel, Project Leader
U.S. Fish and Wildlife Service
3373 Martin Way East, C 101
Olympia, WA 98501

The Washington State Office of the National Audubon Society has reviewed the Draft Environmental Impact Statement and the Habitat Conservation Plan (HCP) for Plum Creek Timber Company's proposed incidental take permit for its lands in the I-90 corridor of the Washington Cascades. While we commend Plum Creek Timber Company for its attempt to integrate long term wildlife management planning into its commercial forestry operations, our analysis of the HCP raises many questions regarding the ability of the proposed plan to meet the requirements of the Endangered Species Act (ESA).

According to section 10(a)(2)(B) of the Endangered Species Act and associated Federal regulations, HCPs must meet six requirements before an incidental take permit can be issued. It is imperative that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services) rigorously apply these criteria in their evaluation of the proposed plan. These requirements are:

  1. all takings must be incidental,
  2. impacts must be minimized and mitigated "to the maximum extent practicable,"
  3. there must be both adequate funding, and provisions to address "unforeseen circumstances,"
  4. the taking must "not appreciably reduce the likelihood of the survival and recovery of the species in the wild,"
  5. the applicant must ensure that additional measures required by federal regulators will be implemented, and
  6. federal regulators must be certain that the HCP can and will be implemented.

Based upon our analysis, it is our conclusion that the proposed HCP fails to meet at least three of these requirements. First, by proposing "take" in nearly all of the occupied northern spotted owl home ranges in the planning area, the plan fails to minimize and mitigate the impacts of taking to the maximum extent practicable. Second, by reducing the amount of spotted owl habitat below an already marginal level necessary to maintain viable populations, the plan fails to meet the requirement that it not appreciably reduce the likelihood of owl survival and recovery in the wild. Third, even if these first two requirements could be met, the plan falls short of the required standards because it fails to provide a margin of safety for conservation of spotted owls in the event of unforeseen circumstances. Each of these issues is discussed in greater detail below.

1) Failure to maximize mitigation

According to the HCP, of the 107 known spotted owl home range circles (1.8 mile radius) in the planning area, 88 overlap currently existing habitat on Plum Creek land, and have a history of occupancy. The plan proposes that incidental take be permitted in 58 of these 88 sites in the first 20 years of the permit period, and in all 88 after 20 years. The National Audubon Society questions whether altering the habitat in 58 of 88 owl home ranges in the first 20 years and 88 of 88 thereafter can be considered minimizing and mitigating impacts "to the maximum extent practicable."

2) Failure to "not appreciably reduce..." the likelihood of survival

Given the minimal level of protection for owl habitat in the plan and the uncertainties of federal land management, we question the plan's ability to "not appreciably reduce" the likelihood of survival and recovery of owls.

A) Reduction in Nesting Roosting Foraging (NRF) habitat:

Perhaps the most serious limitation of the HCP is the assumption that the current proportion of NRF habitat in the planning area represents a biologically viable baseline against which to measure future conditions. Currently, only 28% of the planning area (all ownerships) is in NRF habitat. Under the proposed plan, this would decline to 23% between 2006 and 2016 and remain at that level for about 30 years, returning to 26% by 2045. These projected levels are optimistic at best. They are predicated upon the assumption of "a substantial reduction in harvesting...on federal lands," an event whose certainty is in question at this time.

Recent analyses of pre-1994 population data for eastern Washington spotted owls (the Fort Collins analysis) concluded that the Lambda value for the adult population in the Cle Elum analysis unit was only 0.850 (Burnham et al. 1994, p.16, Table 5). The Cle Elum unit comprises most of the Plum Creek HCP planning area. Furthermore, the analysis revealed that the rate of decline of eastern Washington spotted owl populations is accelerating . At present, the Fort Collins analysis is the best available indicator of the demographic trends of spotted owls in this region, and indicates a seriously declining population in and around the planning area.

We find it curious that the HCP's literature review of spotted owl demography ignores the results of the Fort Collins analysis. The discussion of owl demographics in the plan contains only generic statements about causes of mortality, relative rates of natality, and other factors influencing population dynamics, but we find no attempt to reveal the results of the best available science regarding the rate of decrease in the population. Thus there appears to be a deliberate attempt to ignore the possibility that the proportion of NRF habitat in the landscape is already below a minimum threshold necessary for the continued survival and recovery of northern spotted owls.

Even in the event that management of federal lands remains consistent with the Northwest Forest Plan, we question the assumption about the relative contribution of habitat on federal lands. The HCP appears to make some wildly optimistic projections of regrowth of NRF on federal land. Most of the altered forest on adjacent federal lands is currently stocked with trees less than 30 years old. It is extremely unlikely that in another 20 to 50 years, those forests will develop the habitat structure required to produce NRF habitat similar in quality to that logged under the HCP.

Despite the projections of increased "total habitat" during the planning period, the critically important NRF habitat will decline. In evaluating the proposed plan, the Services must focus on the trends in NRF habitat because of its important role in producing the next generation of owls. An increase in total habitat (NRF and dispersal combined) is of little value if NRF is declining. Given the current low proportion of NRF habitat in the landscape, the services must insist on a plan that does not further reduce this critically important habitat.

B) Questionable Effectiveness of Proposed Dispersal Habitat:

The plan proposes "Riparian Habitat Areas" (RHAs) on streams, primarily as a fish conservation measure, but also claims these as mitigation for spotted owls by insisting they will serve as dispersal "corridors." Initially, the RHAs on type 1 through 3 (fish bearing) streams will be 200 feet wide, with a 30 foot no cut zone and up to 50% partial cut in the outer 170 feet. Perennial non-fish bearing streams will have a 100 foot buffer zones in which partial cuts of up to 50% can occur.

There are serious problems with this strategy. The consensus among biologists is that spotted owls don't actively seek out corridors as dispersal habitat. They disperse across a broad front, and any use of linear habitat is purely coincidental. This was the reason for the 5011-40 rule in the Interagency Scientific Committee's owl conservation strategy (Thomas et al. 1990). The corridor strategy was rejected over five years ago in favor of the recognition that dispersal of spotted owls is best facilitated by a matrix of habitat meeting minimum structural and landscape configuration standards.

The argument has been made that the corridor strategy in the proposed HCP is legitimized by the adoption of a dispersal corridor approach in the Northwest Forest Plan for the management of federal lands. This requires a closer look. The abandonment of a dispersal matrix in the Northwest Forest Plan was predicated upon reserve and riparian prescriptions far more conservative than those proposed in the Plum Creek HCP. The architects of the Northwest Forest Plan were confident that a matrix of dispersal habitat was not necessary because the plan's prescriptions for wide strips (up to 600 feet) of unaltered habitat at frequent intervals on the landscape were deemed adequate to facilitate the dispersal of spotted owls (E.C. Meslow, personal communication). Plum Creek has cleverly combined two dispersal habitat principles-corridors of unaltered habitat and a matrix of sparse, small trees-and applied the weakest features of each to propose a radical and unproven strategy for maintaining dispersal habitat. We question whether the significantly smaller and more degraded riparian areas proposed in the HCP will be an adequate substitute for a 50 11 4 dispersal matrix.

C) Potential for Substantial Decline in Population

The proposal to use an unproven population simulation model (RSPF) to "monitor" the success of the HCP is cause for concern. Of even greater concern, however, is the proposal to delay the implementation of corrective action until the "revised estimate of spotted owl carrying capacity" is less than 80% of the predicted level. The RSPF model, based on 1995 data, predicts that between 1996 and 2016 the carrying capacity of the plan area will decline from 87 pairs to 73 pairs. If this proves to underestimate the decline, however, corrective action will not be initiated until the revised estimate shows that carrying capacity has dropped to 80% of 73, or 58 pairs. This is 67% of present carrying capacity. Thus the HCP proposes to initiate corrective action only after one third of the 1996 carrying capacity has been lost! We conclude that the HCP fails in its obligation to "not appreciably reduce the likelihood of the survival and recovery of the species in the wild."

3) Failure to Adequately Address Unforeseen Circumstances

Section 10 regulations require that all HCPs detail the "procedures to be used to deal with Unforeseen Circumstances." The phrase "to deal with" is one subject to imprecise definition, but it is our assertion that the intent is to require the Services and applicant to address the conservation needs of the listed species and rectify the impacts of the unforeseen circumstances to promote the survival and recovery of that species. As currently proposed, the Implementation Agreement (IA) limits the ability of the Services to achieve this result. Consequently, the plan fails to meet a critical requirement of the act.

First, the plan severely limits the ability of the Services to compensate for the effects of unforeseen circumstances caused by external factors. External factors as defined in the HCP may include, for example, catastrophic stochastic events or changes in the management of adjacent federal lands. In such cases, the IA effectively prohibits the Services from requiring adjustments in the amount of habitat protected under the HCP. As a result, the procedures laid out in the plan may not be adequate to achieve the conservation needs of listed species.

This is an issue of critical importance in light of the plan's reliance on faithful implementation of the Northwest Forest Plan, and recent attempts in congress to derail federal forest policy. The HCP states: "Plum Creek has used the Northwest Forest Plan (NFP) as the framework to develop a creative conservation plan...," and goes on to state the assumption that the standards in the NFP will be adhered to. Further, "In the unlikely event that the Northwest Forest Plan is significantly modified or terminated...the primary obligation for additional mitigation measures...shall not rest with Plum Creek (p. 74)." The HCP goes on to state in more detail its critical assumptions regarding management of federal lands. The assumptions are:

  • a 15 mmbf/year harvest in Matrix,
  • 150 300 foot riparian buffers,
  • 15 percent residual retention in the uplands, limited clearcutting,
  • little or no harvesting of NRF in AMAs
  • no alteration of stand structure in AMAs
  • minimal or no harvesting in LSRs.

There is a strong likelihood that these assumptions will be violated as the full impacts of the recent rescissions rider are felt on the adjacent federal forests. Furthermore, it is likely that in any event, the management of federal lands will change as a result of advances in silviculture in the next 50 years. On "matrix" lands, we'll likely see less owl habitat in the pine or pine/fir transition zone as the U.S. Forest Service incorporates more use of prescribed burning into its management of national forests. This will either eliminate spotted owl habitat or increase the amount of time needed to grow young forests into suitable habitat.

In addition to probable disruptions in the management of adjacent national forests, there are other events caused by external factors that are not entirely unforeseen. This plan must be evaluated by the Services in the light of our current knowledge of fire and windstorm history, disease and pest outbreaks, climatological phenomena, demographic stochasticity, invasions by exotic species, and other foreseeable natural phenomena.

The impacts of such stochastic events must not be disregarded simply because they are perceived as "external." Catastrophic natural events may be unpredictable, but they certainly are not unanticipated or unforeseen. On the contrary, the probability of wildfire and windthrow can be expected to increase as the plan converts native forest to a managed landscape. We would argue that catastrophic events are internal factors-they are as much a part of the physical environment of the planning area as soil chemistry and annual rainfall, and must be considered in any evaluation of risks to listed species. To suggest that these events are unforeseen is to ignore a century of forest ecology experience in the planning area. Given the frequency and intensity of such natural catastrophes in this area, the Services must acknowledge that stochastic stand replacement events are to be anticipated, and must require the applicant to propose credible procedures to accommodate them in the plan. The exemption for unforeseen circumstances must be limited to only those circumstances that are genuinely unanticipated.

The HCP correctly acknowledges that unforeseen circumstances may also include new knowledge about listed or unlisted species or other advances in our understanding of habitat needs. Unfortunately, as currently proposed, the HCP precludes adjustments in the plan necessitated by improved knowledge. The safe harbor clause effectively exempts the applicant from any additional responsibilities to accommodate currently unlisted species. Furthermore, the plan is structured such that even if Adaptive Management reveals miscalculations about the carrying capacity of the proposed habitat for spotted owls, corrective action will be limited to minor adjustments in configuration and timing of NRF and dispersal habitat deferrals. The total amount of habitat available to owls will not be increased under the HCP agreement, even if new knowledge reveals a need for it.

This is a serious concern because many of the assumptions made about the habitat relationships and responses of listed species are speculative at this time. As noted above, the strategy to provide dispersal habitat is unproven. No evidence has been offered that this strategy will work, and there is a great deal of uncertainty about its ability to meet the dispersal habitat needs of spotted owls. It is foreseeable that this untested strategy will fail, despite Plum Creek's assertion that this is an "unforeseeable circumstance." At a minimum, the Services must insist that the feasibility of this strategy be rigorously evaluated, and that the HCP include a provision to monitor its success and adjust it if necessary.

Other foreseeable possibilities are that the FIRBRPLAN and RSPF models will prove unreliable. The former has not been shown to accurately model components of spotted owl habitat other than tree dimensions. The latter has not been validated, so there is uncertainty about its ability to predict carrying capacity for spotted owls. If the RSPF model is later shown to be unreliable, the underpinnings of the HCP' s owl conservation strategy will be undermined. As in the case of "external factors," the failure of these models may not be predictable, but they are certainly foreseeable. The Services must insist that the applicant acknowledge the uncertainty of its speculative models and agree to adjust its conservation strategy in the future if necessary. Furthermore, the models and other critical assumptions of the conservation strategy should undergo rigorous peer review. The results of the peer review should weigh heavily in the Services' evaluation of the HCP.

After the terms of the permit are finalized, the Services can't require any additional mitigation except under "extraordinary circumstances," and can't require the permittee to bear the costs of such mitigation. This means the Services must bear the full cost of additional mitigation if it is later discovered that more habitat is needed to prevent extinction. Thus the Services are left with only two strategies for ensuring the continued survival of spotted owls: l) require in the plan standards which allow for a margin of safety to accommodate any future extraordinary circumstances, or 2) have the funding available to buy habitat when such circumstances occur. At present, neither the margin of safety nor assurances that habitat can be provided exist. Before final approval, the plan must have one of these safeguards. Until then, the plan violates the requirement that there be "procedures to...deal with Unforeseen Circumstances."

4) Questionable Advantages of the Preferred Alternative

According to the Environmental Impact Statement (EIS), the proportion of the planning area in NRF and foraging/dispersal (FD) habitat under the proposed plan will reach maxima of 26% and 35% respectively during the 50-year planning period. Currently these levels are at 28% and 20%. Under a no-action alternativ-i.e. current federal ESA guidelines and the proposed state forest practices rule-the proportions will be 29% and 35% respectively. At first glance, the HCP looks like an improvement in dispersal habitat, but the "corridor" approach is unproven. More important, adoption of the HCP will lead to a lower level of NRF habitat than under current regulations.

A similar situation exists regarding the projected carrying capacity for spotted owls over the 50-year planning period. The population models referred to in the EIS (p.4-3 1) conclude that in every decade of the planning period, the carrying capacity will be higher under the no-action alternative than under the preferred alternative. It is our understanding that one purpose of an HCP is to provide greater certainty for maintaining habitats and populations of a listed species than would be provided under baseline regulations. The proposed plan fails to meet this test. The conditions under the preferred alternative will result in less certainty for the wildlife resource than under the status quo. The burden is on the Services and applicant to convince the public why this HCP is more favorable to spotted owls than current baseline regulations.

Given the steeper declines of habitat and populations under the preferred alternative as compared to the no-action alternative, we also question whether this HCP is eligible to receive general assurances under the Department of Interior's "No Surprises" policy. According to that policy, the Fish & Wildlife Service is prohibited from seeking additional mitigation for a species "where the terms of a properly functioning HCP agreement were designed to provide an overall net benefit for that particular species." Plum Creek's own habitat data and population modeling show that this plan is designed to result in a net detriment to northern spotted owls. Consequently, it does not meet the qualifications of the No Surprises policy.

5) Failure to Balance Relative Level of Risk

As noted above, the proposed plan fails to provide a margin of safety to accommodate unpredictable stochastic events or changes in our understanding of habitat requirements. As currently proposed, this clearly is a plan to "manage down to the minimums"-i.e. provide the minimum amount of habitat necessary to maintain reduced numbers in an owl populations whose long term viability is already in doubt.

The rationale given for taking owl habitat in the planning area clearly reflects the applicant' s intention to manage down to the minimums. In the case of 23 home ranges, the justification for take is that there is "adequate" federal habitat nearby. In another 9 cases, nearby federal habitat is inadequate, but the HCP argues that because Plum Creek owns less than 100 acres of habitat in each home range, there is no need to defer harvest. On 20 home ranges, the rationale for habitat destruction is "because they lacked consistent occupancy or productivity." Obviously, the plan does not consider backup sites necessary in the event of habitat loss on federal land or of disruption of breeding activities on protected sites.

We question the willingness of the Services to accept such a thin margin of wildlife protection without the flexibility to adjust habitat provisions if it is later confirmed that the level of protection is inadequate to prevent extinction. The Services are proposing to accept a plan in which a disproportionate level of risk is borne by the owners of the public resources, and little if any risk will be incurred by the applicant.

The applicant is essentially asking for a guarantee that the level of habitat protection specified in the HCP will not increase over the duration of the planning period, and possibly for an additional 50 years. While it is legitimate for the applicant to insist on such regulatory certainty, it is also legitimate for the public to insist on initial substantive protections that minimize the risk of extirpation of listed species from the planning area. Thus it is imperative that the initial level of habitat protection in the plan be substantially increased to provide the margin of safety to accommodate unforeseen circumstances. If the applicant demands an IA with no risk of future adjustments to increase habitat protections, the Services must demand a plan that provides reasonable safeguards for listed species from the outset.

6) Regarding Issuance of an Incidental Take Permit

The purpose of the Endangered Species Act is to conserve threatened and endangered plants and animals and the ecosystems upon which they depend. This conservation objective must be the paramount test applied by the Services in evaluating the adequacy of the HCP. Our analysis concludes that the HCP fails this test. The proposed excessive taking of northern spotted owl habitat, the virtual prohibition of increasing habitat protections above initial levels to adjust for unexpected circumstances, and the inadequate provision NRF habitat combine to create an unacceptable level uncertainty for wildlife resources. If implemented as currently proposed, the HCP will create an excessive level of risk to public resources, and will not guarantee a reasonable probability of meeting the conservation objectives of the ESA.

Therefore, the National Audubon Society advises that the requested Incidental Take Permit be denied on the grounds that 1) the HCP does not guarantee that impacts of the permitted acts will be minimized and mitigated to the maximum extent practicable, 2) that the HCP fails to provide a mechanism to address unforeseen circumstances, and 3) that the HCP fails to demonstrate that the permitted acts will not appreciably reduce the likelihood of the survival and recovery of listed species in the wild.

Respectfully,

Timothy P. Cullinan
Staff Biologist

LITERATURE CITED

Burnham, K.P., D.R. Anderson, and G.C. White. 1994. Estimation of vital rates of the northern spotted owl. Unpubl. Report, Colorado Coop. Fish and Wildl. Res. Unit, Fort Collins, Colorado. 44pp.

Thomas, J.W., E.D. Forsman, J.B. Lint, E.C. Meslow, B.R. Noon, and J. Verner. 1990. A conservation strategy for the northern spotted owl. Interagency Scientific Committee to address the conservation of the northern spotted owl. USDA, Forest Service, Portland OR. U.S. Government Printing Office 791/171 20026, Washington, D.C.

Appendix V -- Literature Cited and Further Reading

Bean, M.J., S.G. 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. 109 pp.

Beatley, T. 1994. Habitat Conservation Planning: Endangered Species and Urban Growth. University of Texas Press, Austin.

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

Harris, L.D. 1984. The Fragmented Forest: Island Biogeography Theory and the Preservation of Biotic Diversity. University of Chicago Press, Chicago.

Harris, R.B., L.A. Maguire, and M.L. Shaffer. 1987. Sample Sizes For Minimum Viable Population Estimation. Conservation Biology 1(1).

Houck, O.A. 1993. The Endangered Species Act and Its Implementation By the U.S. Departments of Interior and Commerce. University of Colorado Law Review, 64:277-370.

Kaiser, J. June 13, 1997. When A Habitat Is Not A Home. Science 276:1638.

The Keystone Center. July 23, 1995. Keystone Dialog on Incentives to Protect Endangered Species on Private Lands.

Lavelle, M. Dec. 16, 1996. Feds Settle to Save Act and Species. National Law Journal 19 (16):1.

Lehmkuhl, J.F. 1984. Determining Size and Dispersion of Minimum Viable Populations For Land Management Planning and Species Conservation. Environmental Management, 8(2).

Lipske, M. February-March, 1998. Giving Rare Creatures A Fighting Chance. National Wildlife 36(2):14.

Luoma, J. January-February, 1998. Habitat Conservation Plans: Compromise or Capitulation? Audubon 100(1):36.

Murphy, D. et al. 1996. A Statement on Proposed Private Lands Initiatives and Reauthorization of the Endangered Species Act from the Meeting of Scientists at Stanford University. Unpublished.

National Audubon Society. 1997. Report of the National Audubon Society Task Force on Habitat Conservation Plans.

National Research Council. 1995. Science and the Endangered Species Act. National Academy of Sciences.

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

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

Reed, J.M., P.D. Doerr, and J.R. Walters. 1986. Determining Minimum Population Sizes For Birds and Mammals. Wildl. Soc. Bull. 14(3): 255-261.

Schilling, F. June 13, 1997. Do Habitat Conservation Plans Protect Endangered Species? Science 276:1662.

Thornton, R.D. 1991. Searching For Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973. Environmental Law 21: 603-655.

Thornton, R.D. 1993. The Search For A Conservation Planning Paradigm: Section 10 of the ESA. Natural Resources and Environment 8:21-23.

U.S. Fish and Wildlife Service, National Marine Fisheries Service. 1996. Habitat Conservation Planning Handbook.

Woodrow Wilson School of Public and International Affairs Policy Task Force. Spring 1997. Too Hot to Handle? Hot Spots, Habitat Conservation Plans, and the Endangered Species Act. Princeton University.



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