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[Senate Hearing 106-504]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-504
 
                       HABITAT CONSERVATION PLANS

=======================================================================

                                HEARINGS

                               BEFORE THE

                  SUBCOMMITTEE ON FISHERIES, WILDLIFE,
                           AND DRINKING WATER

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 20, 1999
                             JULY 21, 1999
                            OCTOBER 19, 1999
                            NOVEMBER 3 1999

                               __________

   ON THE DESIGN AND IMPLEMENTATION OF HABITAT CONSERVATION PLANS TO 
   PROTECT ENDANGERED SPECIES, AS ADMINISTERED BY THE U.S. FISH AND 
       WILDLIFE SERVICE AND THE NATIONAL OCEANIC AND ATMOSPHERIC 
                             ADMINISTRATION

  Printed for the use of the Committee on Environment and Public Works

                    U.S. GOVERNMENT PRINTING OFFICE
53-372cc                    WASHINGTON : 2000
______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC 
                                 20402

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED SIXTH CONGRESS
                 JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma            FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California
ROBERT F. BENNETT, Utah              RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director
                                 ------                                

        Subcommittee on Fisheries, Wildlife, and Drinking Water

                   MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia             RON WYDEN, Oregon
ROBERT E. BENNETT, Utah              BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas          BARBARA BOXER, California

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JULY 20, 1999
                           OPENING STATEMENTS

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     2
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     1
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........    14

                               WITNESSES

Kareiva, Peter, National Marine Fisheries Service................     5
    Article, Using Science in Habitat Conservation............... 29-67
    Prepared statement...........................................    28
Murphy, Dennis, University of Nevada.............................     7
    Prepared statement...........................................    67
Pimm, Stuart, Professor, University of Tennessee.................     3
    Prepared statement...........................................    26
    Responses to additional questions from Senator Chafee........    27
                                 ------                                

                             JULY 21, 1999
                           OPENING STATEMENTS

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....    71
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................    72
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    72

                               WITNESSES

Barry, Hon. Donald J., Assistant Secretary for Fish, Wildlife and 
  Parks, U.S. Department of the Interior.........................    73
    Prepared statement...........................................   118
    Table, Habitat Conservation Plan Inventory..................125-148
Courtney, Steven, Sustainable Ecosystems Institute, Portland, OR.   101
    Prepared statement...........................................   162
    Responses to additional questions from Senator Chafee........   163
Hicks, Lorin, director, Fish and Wildlife Resources, Plum Creek 
  Timber Company, Seattle, WA....................................    98
    Prepared statement...........................................   155
    Responses to additional questions from Senator Chafee........   158
Hood, Laura, Defenders of Wildlife, Washington, DC...............   105
    Prepared statement...........................................   192
    Responses to additional questions from Senator Chafee........   197
    Statement, Proposed Private Lands Initiatives................   199
Medina, Monica P., General Counsel, National Oceanic and 
  Atmospheric Administration.....................................    75
    Fact sheets, HCP Handbook, FWS/NOAA..........................   152
    Memoranda, Survival and Recovery Standards Under ESA......... 86-93
    Prepared statement...........................................   148
O'Connell, Mike, The Nature Conservancy, Mission Viejo, CA.......   103
    Prepared statement...........................................   184
    Responses to additional questions from Senator Chafee........   190

Thomas, Gregory A., president, Natural Heritage Institute, San 
  Francisco, CA..................................................   107
    Prepared statement...........................................   207
    Responses to additional questions from:
        Senator Chafee...........................................   214
        Senator Crapo............................................   216

                          ADDITIONAL MATERIAL

Articles:
    Where Property Rights and Biodiversity Converge.............226-253
    Developer Seeks to Protect Environment from FWS..............   183
Letter, ESA reforms, several scientists..........................   202
Report, Peer Review in HCPs, Deborah M. Brosnan.................169-182
Summary, Optimizing Habitat Conservation Planning................   217
                                 ------                                

                            OCTOBER 19, 1999
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........   261
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island   256
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   255
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........   257
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......   259

                               WITNESSES

Fox, Brooke S., director, Open Space and Natural Resources, 
  Douglas County, Castle Rock, CO................................   281
    Prepared statement...........................................   347
Glitzenstein, Eric R., counsel, Spirit of the Sage Council, 
  Defenders of Wildlife and Other Environmental Organizations....   263
    Prepared statement...........................................   303
Moore, James E., director, Public Lands Conservation, The Nature 
  Conservancy, Las Vegas, NV.....................................   283
    Prepared statement...........................................   349
Quarles, Steven, P., counsel, American Forest & Paper 
  Association, Washington, DC....................................   285
    Prepared statement...........................................   354
Pauli, William C., president, California Farm Bureau, Sacramento, 
  CA.............................................................   267
    Prepared statement...........................................   318
Rose, Don, manager, Land Planning and Natural Resources, Sempra 
  Energy, San Diego, CA..........................................   287
    Prepared statement...........................................   361
Thornton, Robert D., counsel, Orange County Transportation 
  Corridor Agencies and Other Intervenor-Defendants in Spirit of 
  the Sage Council v. Babbitt, Irvine, CA........................   265
    Prepared statement...........................................   310
Willey, Rudolph, president, Northern California Presley Homes, 
  Martinez, CA...................................................   279
    Prepared statement, with attachments........................327-347

                          ADDITIONAL MATERIAL

Letter, Edison Electric Institute................................   366
Maps, California HCPs............................................   300
                                 ------                                

                            NOVEMBER 3, 1999
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........   369
Boxer, Hon. Barbara, U.S. Senator from the State of California...   371
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   367

Reid, Hon. Harry, U.S. Senator from the State of Nevada..........   368
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......   368

                               WITNESSES

Bean, Michael, Environmental Defense Fund, Chairman and Senior 
  Attorney, Wildlife Program.....................................   401
    Prepared statement...........................................   446
    Report, Safe Harbor: Helping Landowners Help Endangered 
      Species, Environmental Defense Fund........................   455
Statement, Policy on the Establishment, Use, and Operation of 
  Mitigation Banks for ESA.......................................   448
Christenson, Jimmy, Counsel, Department of Natural Resources, 
  State of Wisconsin, Madison, WI................................   389
    Prepared statement...........................................   422
Clark, Jamie Rappaport, Director, U.S. Fish and Wildlife Service, 
  Department of The Interior, Washington, DC.....................   373
    Prepared statement...........................................   414
Donnelly, David, Deputy General Manager, Southern Nevada Water 
  Authority, Las Vegas, NV; accompanied by Jeff Kitelinger, the 
  Metropolitan Water District of Southern California and Chris 
  Harris, the Arizona Department of Water Resources..............   390
    Prepared statement...........................................   425
Frisch, Maureen, Vice President, Public Affairs, Simpson 
  Investment Company, Seattle, WA................................   396
    Prepared statement...........................................   431
Knowles, Don, Director, Office of Protected Resources, National 
  Marine Fisheries Service, National Oceanic and Atmospheric 
  Administration, Silver Spring, MD..............................   375
    Prepared statement...........................................   419
Riley, James, Executive Director, Intermountain Forest Industries 
  Association, Coeur D'Alene, ID.................................   399
    Prepared statement...........................................   442
Silver, Dan, Coordinator, Endangered Habitats League, Los 
  Angeles, CA....................................................   398
    Prepared statement...........................................   439

                       HABITAT CONSERVATION PLANS

                              ----------                              

                         TUESDAY, JULY 20, 1999

                                       U.S. Senate,
               Committee on Environment and Public Works,  
   Subcommittee on Fisheries, Wildlife, and Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:32 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Reid and Chafee [ex officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. This hearing will come the order.
    This is a hearing of the Subcommittee on Fisheries, 
Wildlife, and Drinking Water on the science of habitat 
conservation plans. We intend to have 2 days of hearings on 
this critical issue. This begins the series of important 
hearings.
    Habitat conservation plans were authorized in 1982 through 
amendments to the Endangered Species Act to address problems 
that effectively precluded landowners from conducting lawful 
activities on lands where listed species were present. These 
plans have become win/win solutions for both species and 
landowners. Habitat needed for the conservation of threatened 
and endangered species is managed in a more sensitive manner, 
while providing landowners certainty about carrying out 
activities on their property.
    Nearly 250 of these plans have been negotiated to date, and 
approximately another 200 are in progress. Habitat conservation 
plans have been praised by conservationists and private 
property rights advocates alike. Clearly, they are and will 
continue to be an innovative way to address species 
conservation and an important tool for preserving the rights of 
private property owners.
    But, like many innovations, improvements are needed. Groups 
on both resource and conservation sides of the debate have 
raised concerns about policy and science of HCPs. They have 
been critical of the protracted and expensive process of 
negotiating HCPs and the adequacy of science used to develop 
HCPs, among other things.
    These are valid concerns that must be addressed as more 
land is managed under habitat conservation plans. We must be 
able to protect species based on reliable, scientific 
information. At the same time, we must be able to protect 
private property by assuring landowners that the Federal 
Government won't reopen negotiations on plans each time a new 
issue arises.
    As I mentioned, this is the first in a series of hearings. 
Today and tomorrow we are going to focus on the issue of 
science, perceived flaws in the science of HCPs, the gaps in 
the data, and how scientists and land managers address the 
question of scientific uncertainty.
    Wildlife managers and landowners do not have the luxury of 
waiting decades for an exhaustive scientific record to be 
compiled. In fact, this is quite probably an unrealistic 
objective when it comes to science. Wildlife fisheries managers 
and landowners are forced to make decisions regularly about how 
to manage or develop a particular tract of land without perfect 
knowledge of a species. They do this in an attempt to conserve 
species, while at the same time deriving an economic benefit 
from the land. This is the crux of the subcommittee's hearings 
on the science of HCPs.
    Over the next 2 days, we will hear from witnesses who have 
been directly involved in the development of habitat 
conservation plans and who have conducted studies on many of 
the plans that are completed and being implemented. Making 
habitat conservation plans work better for species and 
landowners is an extremely important objective for this 
subcommittee. I look forward to listening to and learning from 
our witnesses over the next 2 days in an effort to make the 
much-needed improvement in habitat conservation plans.
    At this time, I'd like to turn to the chairman of the full 
committee, Senator Chafee, for his remarks.

           OPENING STATEMENT OF HON. JOHN H. CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. Thank you very much, Mr. Chairman.
    I want to commend you for holding these hearings on the 
science of habitat conservation planning. I think it is 
splendid you are doing this, and I must say you've got a very, 
very distinguished group of witnesses, not only today but 
tomorrow, likewise, so I congratulate you.
    I note in your remarks that you pointed out some statistics 
that are very important--that some 245 HCPs since 1995 have 
been approved, with another 200, as you mentioned, in the 
pipeline. And it is my understanding that over six million 
acres are now being managed under HCPs, with 75 different 
species being protected. So this is a big operation that we're 
involved with under the Endangered Species Act.
    Mr. Chairman, because of time constraints, I would just ask 
that the balance of my statement might be put in the record. I 
look forward to hearing the witnesses today.
    Senator Crapo. Without objection.
    [The prepared statement of Senator Chafee follows:]
  Statement of Senator John H. Chafee, U.S. Senator from the State of 
                              Rhode Island
    Thank you, Mr. Chairman. I want to commend you for holding these 
hearings on the science of habitat conservation planning. This is an 
important issue and one that I believe is directly relevant to the 
continued success of the Endangered Species Act (ESA). We all often 
invoke the need for good science in decisionmaking; this hearing takes 
an important step toward improving the science that we use.
    Habitat conservation plans (HCPs) are a true success story under 
the Endangered Species Act. They have played a critical role in 
bringing landowners to the table to help conserve hundreds of species 
at risk, both those listed as threatened or endangered under the ESA 
and a myriad of others.
    I understand that the Fish and Wildlife Service and the National 
Marine Fisheries Service have approved over 245 HCPs since 1995, with 
another 200 in the pipeline. Those numbers are impressive. Each new HCP 
represents a commitment to preserve habitat or manage resources to 
benefit species. Over 6 million acres are now being managed under HCPs 
and over 75 different species are being protected. Perhaps just as 
importantly, each new HCP provides another landowner with needed 
regulatory relief from the strict prohibitions of the ESA.
    I appreciate, however, that HCPs have not been perfect; they can 
and should be improved. There are certainly legitimate questions about 
the quality and quantity of science available to develop and implement 
many HCPs. Do decisionmakers have enough reliable information on which 
to base decisions about resource use and appropriate conservation 
measures in HCPs? In the absence of that information, how do they 
address the scientific uncertainty? How do they balance the risk to the 
species and the need for landowner certainty? And how do they encourage 
the continued collection of information and incorporate that 
information to improve the HCP?
    To its credit, the Administration has, over the past few years, 
implemented a series of reforms to try to address some of these issues 
and make HCPs work better. I applaud their efforts, but I also believe 
that the underlying scientific and policy questions will benefit from a 
broader debate through the legislative process.
    As you know, the ESA reform bill that we drafted in the last 
Congress included a number of provisions intended to enhance the HCP 
program, but many of the issues that you are addressing in these 
hearings were not yet ripe. They are now. Your leadership on these 
issues, therefore, is both timely and critical. I hope that with these 
and other hearings on HCPs, we can improve on the work that we began on 
HCPs in the last Congress.
    I look forward to hearing from the distinguished witnesses this 
morning and their perspectives on how the science of HCPs can be 
improved.

    Senator Crapo. We expect several of our other Members to 
arrive from both sides, and when they do we will see if there 
is an occasion for them to make an opening statement, but 
without any further delay let's begin with the panel.
    I believe you have already been advised that we would like 
you to keep your remarks to 5 minutes, if possible, so that we 
can have as much time as we can for questions and answers and 
interaction.
    We will begin with Professor Stuart Pimm from the 
University of Tennessee.
    Professor Pimm, please go ahead.

 STATEMENT OF STUART PIMM, PROFESSOR, UNIVERSITY OF TENNESSEE, 
                         KNOXVILLE, TN

    Dr. Pimm. Thank you.
    I greatly appreciate your giving me the opportunity to 
discuss the issue of habitat conservation plans. The scientific 
community particularly welcomes your leadership on this issue, 
because it is quantitatively the most important aspect of 
endangered species protection.
    Between one-half and two-thirds of endangered species are 
not found on Federal land. We Americans cannot adequately 
protect our natural heritage unless we protect species on 
private, State, county, and other lands encompassed by HCPs.
    The rapid expansion of HCPs within the last 5 years or so 
provides unrivaled opportunities for the necessary stewardship. 
This is both an exciting time and a challenging one as 
scientists consider the progress to date and how to improve 
future plans.
    Research confirms the old adage that one should not put all 
of one's eggs in one basket. Most endangered species have 
become endangered because we force them into a few baskets--a 
limited amount of space where they are now especially 
vulnerable to change, both natural and human-caused.
    The first advantage of HCPs is their potential to minimize 
risk by protecting species in more than a few places. Spreading 
a species' risk of extinction across many places will often be 
a better bet than intensive scientific study and visionary 
management in just one place. Most of us manage our financial 
investments by spreading risk in much the same way.
    The second advantage is that at least 60 percent of 
endangered species need active habitat management to survive. 
Without control of alien weeds or without periodic controlled 
fires, some species will succumb if all we do is to put a fence 
around them.
    The HCP process can encourage appropriate habitat 
management, and do so over increasingly large areas.
    The experience to date on HCPs has been that some have been 
better than others. How could it be otherwise? The analysis of 
HCPs undertaken by the National Center for Ecological Analysis 
must surely be viewed in this light. I believe that the 
report's most serious criticism argues that many HCPs may be 
based on the best available scientific data, but that those 
data may not be sufficient.
    To me, the report's most important omission is that it does 
not fully address this tradeoff between having many good plans 
versus a few superb and omniscient ones. Limited resources will 
always mean that one cannot have many perfect plans.
    Of course, the NC's report raises the possibility that we 
may have many plans, but poor ones. While I may manage my 
investments by spreading risk across many stocks, that does not 
mean I accept a preponderance of poor ones.
    The report notices many numerous deficiencies that need to 
be addressed by future plans. Its greatest strength is its 
unified assessment of the plans. Its most important 
recommendation is that there should be a central repository of 
plans to provide models and comparisons for those who will 
produce plans in the future.
    Criticisms of inadequate data need to be viewed in the 
context of what is practical. I have no personal experience of 
HCPs, but I have extensive experience of section 7 
consultations between the Fish and Wildlife Service and other 
Federal agencies. I believe the parallels to be useful. Many of 
those consultations are informal, friendly, and the issues are 
quickly resolved. I suspect that many HCPs may be relatively 
uncontroversial. One size does not fit all, however. Some 
section 7 consultations are difficult, contentious, and require 
major investments of resources. Surely HCPs will be likewise.
    It was to address different degrees of ecological 
uncertainty that Dr. Gary Meffe of the University of Florida 
and I wrote to Senator Chafee in January of last year. Our 
letter was co-signed by more than a dozen scientists, all with 
extensive experience of conservation issues. We offered the 
following recommendations:
    First, the scientific rigor underlying the plan should 
influence the relative length of the accompanying assurances. 
The long-term assurances to accompany plans that encompass all 
or a very large portion of a range of a species, the rigor of 
the underlying science is especially important.
    Second, any No Surprises policy should be crafted in a way 
to encourage identification in the plan of possible future 
contingencies and a means of adapting management in response to 
them.
    Third, and finally, the potential conservation benefit of a 
plan ought to influence the extent and duration of the 
assurances provided.
    Thank you for your attention.
    Senator Crapo. Thank you very much, Dr. Pimm.
    Next we will turn to Dr. Peter Kareiva. Dr. Kareiva is from 
the National Marine Fisheries Service in Seattle, WA.
    Doctor.

STATEMENT OF PETER KAREIVA, NATIONAL MARINE FISHERIES SERVICE, 
                          SEATTLE, WA

    Dr. Kareiva. Thank you.
    I am here to speak to you about a large national study of 
habitat conservation plans which I supervised while a professor 
in the zoology department of the University of Washington. 
Since this was before I worked for NOAA, these findings do not 
represent the views of NOAA.
    First, about the study, the study was recently completed, 
with a posting of all of its results and data on a publicly 
available website in January 1999. We used volunteer labor of 
119 biological researchers from eight premier research 
universities--Yale University, University of California 
Berkeley, Santa Cruz, Santa Barbara, University of Washington, 
University of Virginia, Florida State, NC State. The study was 
supported by the American Institute of Biological Sciences and 
National Center for Ecological Analysis and Synthesis.
    We examined 208 HCPs that had been approved as of August 
1997. Of those 208, we took a sample of 43 HCPs for which we 
attempted to read every supporting document and every relevant 
article in the scientific or agency literature that might 
provide pertinent data. Often, this amounted to reading several 
thousand pages of documents and tables.
    The data base we produced contains nearly 90,000 entries. 
This is the largest quantitative study of HCPs yet produced, 
and in some sense is the first quantitative study.
    First, major conclusions of the study. No. 1, we frequently 
lack adequate data regarding the most basic biological 
processes pertaining to endangered species, such as: What is 
the rate of change in their populations locally or nationally? 
What is their schedule for reproduction? What is happening to 
their habitat?
    Second, given the data available, HCPs generally make the 
best use of the existing information in a rational manner, and 
there is evidence that the quality of HCPs with respect to 
using science has been steadily improving.
    Third, however, for many HCPs scientific data are so scant 
that they really should not be called ``science based.'' There 
is no agency failing here nor any failing of individual 
preparers of HCPs. No one could do a better job, given the 
limited sources and poor quality of information that are 
available.
    Fourth, very few HCPs included in this study were designed 
to include adequate monitoring of populations or habitats in a 
way that could at least allow us to learn from our actions and 
create data bases that could inform future decisions. This is a 
golden opportunity that is being missed.
    The bottom line: Everything preceding in my testimony has 
had very little of my personal emphasis and reflects a 
straightforward condensation of the long National Center for 
Ecological Analysis report, which is available at a website.
    I want to end by leaving you with what I see as the bottom 
line of this research regarding science and HCPs. Sometimes it 
is too easy to get lost in the details and lose site of the big 
message. I wish to emphasize, however, that the bottom line is 
my personal conclusion regarding what I think are the most 
important aspects.
    First, the absence of data bases that track patterns of 
population change and habitat for threatened endangered species 
is a national embarrassment. Often, these data exist somewhere 
in a file drawer, in a researcher's notebook, or scattered 
among several publications, yet, in this age of computers and 
the internet, our data bases of information on basic natural 
history of endangered species are primitive.
    Many of us are aware of how much national or even State 
computerized criminal data bases have revolutionized law 
enforcement. The same should happen with resource management 
and endangered species. Without such data bases, we cannot know 
where are the safe places or the dangerous places for 
endangered species. We need to be able to go on line and 
quickly find out what is happening with endangered species in 
terms of hard numbers: How many individuals? Where? How many 
acres of habitat left? How much of the remaining habitat exists 
in publicly owned lands? Investment in such a data base would 
be in the best interest of all parties so we can at least have 
access to the most current information before we begin debating 
consequences.
    Second, we do not even have a national data base that 
tracks the paper administrative record of HCPs. In other words, 
at this point one cannot get on the internet and find a list of 
all HCPs that address a particular species or the total acreage 
of land for a species that is covered administratively by the 
HCP process. This is analogous to a doctor prescribing you 
medicine but not knowing what other prescription drugs you may 
be taking.
    Third, in light of all this scientific uncertainty, if HCPs 
are to be pursued in the interest of balancing development and 
environment, then minimally HCPs should be required to include 
rigorous peer reviewed monitoring programs that allow us to 
learn from them.
    Mr. Chairman, thank you for this opportunity to testify. I 
know the HCP process is being seriously improved. Moreover, one 
reason I came to work as a scientist for the Federal Government 
and especially National Marine Fisheries Service is it is easy 
to throw stones from an ivory tower and criticize how the 
Government does its resource management science, and I have 
thrown some of those stones, but I wanted to see if I could 
make the science work any better before I continued to 
criticize the jobs others were doing.
    I look forward to answering questions.
    Senator Crapo. Thank you very much, Dr. Kareiva.
    Finally, Dr. Dennis Murphy of the University of Nevada, 
Reno.
    Dr. Murphy.

   STATEMENT OF DENNIS MURPHY, UNIVERSITY OF NEVADA, RENO, NV

    Dr. Murphy. Thank you very much.
    Just as introduction, I should tell you that my background 
with HCPs started with the very first one on San Bruno Mound 
back in 1980 and has continued through work right now on the 
Nation's largest ongoing HCP, which is the 5.5-million-acre 
Clark County HCP in the State of Nevada.
    I would like to say that the science that is being used to 
inform decisions under the Federal Endangered Species Act is a 
dynamic science. One would be hard-pressed to find more 
combative and constructive exchange in conservation biology 
than that between the supporters of the de-listing of grizzly 
bear populations in the northern Rocky Mountains and their 
opponents. Both sides have mustered compelling technical 
arguments to support their politically opposed cases. Our 
understanding of bears and their biology has immensely grown 
around that debate.
    Likewise, both science and stewardship techniques have 
contributed to saving the California condor and the black-
footed ferret, and, as you know, have brought the peregrine 
falcon and bald eagle back from the brink of extinction.
    Moreover, one needs to look no further than the Fish and 
Wildlife Service's own recovery plans for the desert tortoise 
and northern spotted owl to identify path-breaking analysis and 
application of cutting-edge concepts from population biology. 
All this, of course, suggests that science is at the center of 
our efforts to save biodiversity, but the real question is: Are 
these examples the exceptions or the rule?
    When it comes to science and the Endangered Species Act, 
unfortunately, they are the exceptions. Most recovery plans for 
listed species lack even the sparest description of the 
mechanics by which imperiled species perpetuate themselves. By 
and large, we know vanishing little about our species at risk 
and realistically how we might attempt to save them.
    Now, while that state of affairs is lamentable, it is not 
wholly unexpected, since academic scientists are only now 
developing the tools necessary to understand the population 
dynamics of species and to predict with some accuracy their 
fates.
    Very pertinent to these hearings today and tomorrow is that 
there is another suite of species that we may have lost the 
opportunity to save--species that would have benefited from 
good science. The unfortunate Houston toad provides a most 
poignant example. It was one of the earliest species listed 
under the 1973 Act. The application of science may well have 
saved it, but a flawed hypothesis about the habitat factors 
that support the species, a lack of responsive studies in the 
face of obvious declines, and poorly designed monitoring 
schemes have combined with land development to push the listed 
species toward extinction. The Houston toad, it appears, will 
be lost.
    Against this background, we assess science and HCPs. My 
guess is--my conclusion that we need better and more science to 
produce more effective, efficient, and accountable HCPs is 
shared by almost all my academic colleagues. Where I may part 
view with at least some of them, and certainly with some 
environmental organizations, is on how much more science is 
necessary and how it can be achieved.
    I think we can create much better HCPs with not a whole lot 
more science, but that science must be focused, strategically 
directed, and creatively engineered.
    Why don't we have a clear science agenda for HCPs? 
Certainly, to start with, the academic scientists have failed 
to deliver the realistic, what we might call ``parsimonious'' 
science necessary to inform HCPs. The Departments of Interior 
and Commerce, in their own turn, have failed to seek such a 
science, responding their HCP guidelines that cookbook guidance 
is not possible since the biological analysis demanded for each 
HCP, for each listed species, is unique and cannot be codified.
    I sort of like that idea that the work that I do is so 
special that only a specialist can do it, but, frankly, the 
assessment is just not true.
    Stephen's kangaroo rats, Tecopa pupfish, indigo snakes all 
share a multitude of biological characteristics that allow for 
a common theme to their conservation.
    I think as soon as we are released from our artificial and 
unrealistic view of how much novel scientific information is 
necessary to inform HCPs, we can begin to develop the 
exportable toolbox of scientific techniques that are necessary 
to assist our best conservation intentions.
    Tougher will be where multiple imperiled species are 
distributed across extensive landscapes and where they run into 
economic expediency, what Secretary Babbitt has called 
``environmental and economic trainwrecks.'' Under those 
circumstances, we're going to need the most creative engagement 
of available scientific information.
    I recommend that the National Research Council cooperate 
with the Departments of the Interior and Commerce to develop 
science guidelines for conserving multiple species and natural 
communities on lands, both public and private. Those guidelines 
must recognize that HCPs have timetables driven by political 
and economic realities. Those guidelines must recognize that 
indicator or surrogate species will have to be identified which 
can allow us simple insights from complex natural systems. And 
those guidelines must encourage habitat conservation planners 
to learn by doing, to manage adaptively using the best current 
information.
    To that point, we cannot hold up our HCPs waiting for all 
the answers to our most pressing technical questions. Frankly, 
the courts may not let us. However, we can engineer our plans 
to take advantage of emerging information and scientific 
breakthroughs.
    I support adaptive management, even though I am a fan of 
this Administration's No Surprises policy, which many contend 
conflicts with adaptive management. Incorporating both adaptive 
management principles and No Surprises assurances in the 
language of a reauthorization bill should be a bipartisan goal 
of this committee.
    Now, I don't suggest, in conclusion, that the greater 
public must pay the private sector to obey the law, but an 
infusion of Federal dollars will inevitably be necessary when 
reasonable exactions of habitat for private landowners falls 
short of the pressing needs of species, or when unforeseen 
circumstances put imperiled species at unexpected additional 
risks.
    HCPs are usually the results of a crafted deal. They allow 
for a public concerned about threatened and endangered species 
to take private property without fully compensating landowners. 
Lubricating that process with strategically directed dollars 
will be good for species, good for landowners, and good for the 
rest of us.
    I thank you for your time.
    Senator Crapo. Thank you very much, Dr. Murphy.
    We'll turn first to the chairman of our committee, if you 
have any questions.
    Senator Chafee. No questions at this point.
    Senator Crapo. OK. I will proceed then.
    Let me go back to you and start out with you first, Dr. 
Pimm.
    Do you believe it is possible to generate better science 
and then, in turn, cause better HCPs in a relatively short 
time?
    What I'm getting at is the issue here of how long it takes 
to generate the necessary science for adequate HCPs.
    Dr. Pimm. When one considers that HCPs have been around 
only a very short period of time, I think it is clear that 
there has been a huge amount of progress made in looking at 
those plans and looking at our data needs, figuring out what we 
need to know, what we probably don't need to know, and 
therefore improving the process.
    And I believe that Dr. Kareiva's report is a huge step 
forward, because it employs what we scientists call ``the 
comparative method.'' It allows us to look at what other people 
have done and learn from their strengths and weaknesses. I 
believe we are on a very fast learning curve. When it comes to 
HCPs, great progress has been made in their quality.
    Senator Crapo. Thank you. And, Dr. Kareiva, there obviously 
is a conflict here between the amount of science we need and 
the amount of time we have to proceed. Could you comment on the 
same issue? Do we have the ability to develop general 
guidelines, as opposed to the specific science needed for each 
species, that will allow us to proceed with HCPs? Or must we 
hold off and wait for more-extensive science? How do you 
address that conflict between the need for more science and the 
need to be able to move ahead now and develop HCPs?
    Dr. Kareiva. Yes, and just listening to what the three of 
us has had to say, I think we would probably agree on this. 
There's a lot of information out there we already have, and 
it's not as though we have to undergo a national initiative for 
great basic research. Part of the challenge is just organizing 
that information with a little bit of energy.
    I agree with Dr. Murphy that there are certain common 
principles that can be applied to sets of species. It would be 
good to do that.
    I also think that we already know a lot--this is one of the 
things that I have tried to make clear and I think comes out in 
the report. It's just that what we know is not easily 
accessible. So given the time pace with which HCPs are 
negotiated and gone through, it's not possible to go into those 
data notebooks and those file drawers and get all this out.
    But if we did produce data bases, if we put energy into 
that, subsequent efforts would go much faster, because there 
are, I think, 70 or 80 endangered species currently covered by 
HCPs. Any data that you put in a computer data base for any of 
those HCPs will inform future conservation plans that touch on 
those same species.
    In summary, I think we actually know quite a bit, and much 
could be accomplished simply by knowing, for example, for the 
spotted owl, how many acres are protected in habitat 
conservation plans. That should be easy to get off the web.
    Senator Crapo. I was intrigued by your bottom line 
suggestion, No. 1, of the lack--that we have a lack of a 
national data base, so to speak. And it sounded to me like you 
were recommending that, in any legislation that this committee 
might generate to deal with improving HCPs, that perhaps part 
of that should be a very major national effort to develop such 
a data base. Is that correct?
    Dr. Kareiva. I don't think I'm astute enough with respect 
to policy to know if that is correct, but I do think one thing 
that could be done even within the existing HCP process is to 
require HCP preparers to provide data in a publicly available 
way to what could be a national data base.
    For example, in preparing an HCP, you could create a data 
file, put it on the web so that other people could examine the 
data for population trends and numbers. This would facilitate 
somebody or some organization putting together a data base.
    Senator Crapo. If that were done, and if we started to 
generate such a data base, do you believe that that data would 
ultimately lead to the types of generalizations that could be 
made that Dr. Murphy has suggested that would allow us to move 
ahead with common understandings across species?
    Dr. Kareiva. Yes, I do.
    Senator Crapo. Dr. Murphy, I'd like to ask you to comment 
on the same general issue. I think you had somewhat in your 
testimony, but please elaborate. I understood you to say that, 
although we need to engage in getting better and more thorough 
science, that we can proceed now to significantly improve HCPs 
and species restoration efforts.
    Dr. Murphy. An anecdote from the very early 1990's is 
probably appropriate here. You may remember one of the hot-
button issues in endangered species implementation was the 
Stephen's kangaroo rat in western Riverside County, in which a 
great number of landowners in a very go-go real estate 
environment were not allowed to move forward with development 
while science supposedly resolved issues related to the 
conservation of the species.
    Over a 2\1/2\-year period we were doing extremely arcane 
experiments with the demographics of the species and looking at 
the genetics of the species when, in fact, several years later 
we still had not mapped the distribution of the species. We had 
landowners who were being economically impacted that had no 
kangaroo rats, and other landowners who held some of the best 
habitat for the species who were not part of the conservation 
plan.
    We need a hierarchical approach to the science in HCPs; a 
set of cookbooks that tell agency staff how and when to ask 
specific questions at different levels of complexity--that is, 
from the landscape level to the metapopulation dynamics of 
species, down to structure of populations of species, and then 
to their genetics. I really do think that if the agencies sat 
down with academic scientists we could come up with a 
prioritization scheme that would at least keep to a minimum the 
wheel spinning that tends to go on with HCPs.
    And, as you well know, one of the greatest criticisms of 
the implementation of the Act is the squandering of time--the 
fact that we go into HCPs with a degree of economic expediency; 
we come out of HCPs often exhausted.
    Senator Crapo. Now, even if we had such cookbooks, as you 
described them, with an approach identified to the kinds of 
questions that need to be asked, it seems to me the issue still 
arises: How do we deal with the question of time that is so 
critical for the owners of the private property who need to 
have some type of certainty in how to proceed.
    How do we proceed with an HCP in the face of the voluminous 
questions that we would need to have answered about a species?
    Dr. Murphy. Well, I don't think the questions have to be 
many, but I do think that we haven't taken advantage of 
opportunities to learn from past activities. There are now 200 
HCPs on the books and there are dozens of large-scale 
conservation efforts on our public lands, the most notable of 
which certainly being the plan for the northern spotted owl and 
the forest plan that followed it.
    My sense is that we can infer greatly from other systems 
and other species, and we're losing that opportunity. One 
doesn't have to spend 5 years studying the population dynamics 
of the California gnatcatcher to create a conservation plan for 
that species if we creatively use information drawn from other 
species which have like biologies and live in like 
circumstances, since insectivorous birds share many 
reproductive and other life history characteristics with each 
other. We're not taking advantage of engagement of that sort of 
information, which is readily available.
    Senator Crapo. Thank you.
    Senator Chafee.
    Senator Chafee. Thank you very much.
    Let me give you a hypothetical here and see if I understand 
what each of you are saying.
    Let's assume that the red-cockaded woodpecker is 
disappearing and has been listed as endangered. Now, let's also 
assume that it is still fairly abundant in Georgia, in the 
forests of Georgia, some of it on private land and some of it 
on military land, Fort Benning, and the Interior Department is 
prepared to establish an HCP to protect the surviving red-
cockaded woodpeckers.
    Now, what ought we to do? I'll start with you, Dr. Pimm.
    Dr. Pimm. I think the red-cockaded woodpecker is a superb 
example.
    Senator Chafee. Well, thank you very much. You're doing 
very well so far.
    [Laughter.]
    Dr. Pimm. It is a superb example, because if we were to 
make Fort Benning the only place where that species could 
survive, in all probability it would not. That forest will be 
hit by a hurricane eventually, like many of the other bits of 
forest in the southeast have, and there is always the risk of a 
catastrophic fire.
    However well we were to manage that species in one place, 
it would suffer an unacceptably high risk of extinction. The 
only way that species can likely survive is if we protect it in 
a variety of different places across its range, and that range 
is mostly in private ownership.
    I recall hearings in the House a couple of years ago, the 
House Resources Committee, on the Endangered Species Act, 
hearing from somebody giving testimony who had protected his 
land, looked after his land very well, and, as a consequence, 
had a large acreage of long-leaf pine savannah, which is a 
necessary habitat for this species, and he felt unnecessarily 
constrained because he had that endangered species, which 
seemed to be particularly unfair because had he chopped those 
forests down and grown Christmas trees he would not be so 
constrained.
    We understand that there is a deal that must be done here, 
and that is to encourage those people who have grown large 
trees on their property in the southeast and have red-cockaded 
woodpeckers, and that process recognizes that those people must 
have a right to their livelihoods and, at the same time, must 
be encouraged to continue to protect, as they have done, some 
of their land.
    HCPs provide for that, and therefore they are a very 
powerful way of protecting certain kinds of endangered species. 
Without HCPs, I do not think the red-cockaded woodpecker can 
persist.
    Senator Chafee. But what has all that got to do with this 
requirement for better science that all three of you have been 
stressing? You know, without great scientific study, it is 
known that on these adjacent lands to Fort Benning are the red-
cockaded woodpecker, and just the situation you were 
describing. Now, what should be done differently than is being 
done now in connection with the science?
    Dr. Pimm. I think there is a tension in the conservation 
biology community of just how much science we need. What I am 
hearing from my colleagues and the colleagues here is that we 
often have sufficient science, even though we don't have 
complete science. Given the fact that we need to have 
sufficient science across a very large area, then the HCP 
process is one that allows a species to persist.
    If we study this species to death in one place, that won't 
be sufficient. We have to have sufficient science, and we 
believe, I think, that we often do have sufficient science for 
many of these species.
    Senator Chafee. Dr. Kareiva, what would you say to this 
situation that I've outlined?
    Dr. Kareiva. I think it is a good example, too.
    Senator Chafee. I hope Dr. Murphy will come through, too.
    Dr. Kareiva. He'll say the same. But first, what we would 
like--when you're preparing that HCP for your Georgia site, you 
should be able to quickly find out what other HCPs have been 
done for the red-cockaded woodpecker. You should be able to 
find that out in 5 or 10 minutes.
    Senator Chafee. You mean across the Nation?
    Dr. Kareiva. Right, because you're worried about a species. 
What other HCPs have been done and where for that species, for 
the woodpecker.
    There are several. There are dozens of red-cockaded 
woodpecker HCPs. That's pertinent to how you view this 
particular one.
    Second, since they did those HCPs, in order to receive 
their incidental take permits, they had to ask the question: 
What is the population and what is the take? So then you would 
like to summarize how many birds are on these other HCPs and 
how are they doing, how are those populations doing.
    Third, because several of those HCPs have been in operation 
for 5 to 10 years, you'd like to be able to ask of these other 
HCPs: Have we learned anything from them?
    Now, all of that is not rocket science, in any sense. That 
is all information that is already available in some HCPs, but 
it is not systematically accessible. That is what I mean. That 
could speed up the process of doing the Georgia HCP. It could 
make it better-informed scientifically. It would work to the 
advantage of all parties to put it in this broad context 
quickly.
    Senator Chafee. So your principal point, if I understand 
it, is there ought to be some central data base on--whether it 
is some kind of rat or whether it is a red-cockaded woodpecker, 
that you can go to.
    Dr. Kareiva. Right.
    Senator Chafee. You or whoever. I suppose it is Interior, 
isn't it?
    Dr. Kareiva. Right.
    Senator Chafee. They can go and find out how this would 
work out. If you're going to set up this HCP near Fort Benning; 
is that how it worked in North Carolina?
    Dr. Kareiva. Yes.
    Senator Chafee. Well, that makes sense. What do you say, 
Dr. Murphy, to the problem I posed?
    Dr. Murphy. A most incisive example, most certainly.
    [Laughter.]
    Dr. Murphy. I'm from the great, untrammeled West, where we 
are actually working on a habitat conservation plan in southern 
Nevada, 5.5-million acres. Of the 5.5-million acres in Clark 
County, 93 percent is publicly owned. This habitat conservation 
plan is allowing for the entire build-out of the 7 percent of 
Clark County, NV, that is privately owned, and it will fund 
conservation planning, management, and monitoring, as well as 
science, on the rest of the landscape.
    We, obviously, don't have that benefit across all of the 
country, but in your example, where there are public lands that 
can be managed for a species, that's where species conservation 
should start. We may need private lands, as Dr. Pimm suggested, 
to spread the risk of extinction. There are characteristics of 
some of the private lands, and certain private lands in States 
beyond Georgia, that will help to contribute to the 
perpetuation of the species.
    I think that our job as scientists is to contribute to 
relieving the tension between Fifth Amendment Constitutional 
guarantees to landowners for compensation and the need to 
protect habitat on private property to spread extinction risk. 
Where incisive science can help is in identifying the 
minimalist reserve design that can be used from private land 
which causes the least economic disruption. I think that the 
science necessary to do that, as I said in my prepared 
comments, is there. We just haven't synthesized it, and, as Dr. 
Kareiva suggests, we certainly haven't institutionalized it and 
made it available.
    Senator Chafee. Well, suppose somebody has a thousand acres 
next to a person with a long-leafed pine on his property that 
he wants to eventually cut. That's how he is making his living. 
Along comes the Government and says, ``We're putting this into 
an HCP.'' I think he would be disturbed, to put it mildly. In 
the HCP he is subjected to certain constraints. How encouraged 
will he be when they tell him that it is scientifically 
splendid?
    Dr. Murphy. In actuality, it is the landowners, not the 
Government that initiate HCPs. The history of HCPs suggests 
that sort of option less planning isn't really happening on the 
ground. The fact is the agencies, to their credit, have tried 
very hard to engineer plans that allow for planning options and 
fair economic development off landscapes. I don't know of any 
case where a landowner with a thousand acres was completely 
shut down to protect a species.
    Most HCPs have been creative engagement to try to minimize 
potential economic impacts and losses and to keep the agencies 
out of court, most HCPs have tried to engineer deals that make 
it possible for species to be sustained in the face of 
scientific uncertainty.
    Senator Chafee. Well, I think you're right. I think that 
these things have worked their way out fairly successfully. Dr. 
Pimm was talking about the landowner adjacent to Fort Benning. 
Under the way they've worked out these HCPs, there still can be 
takings under certain circumstances, because of the no-surprise 
policy. I think these things have worked out pretty well.
    What do you think, Dr. Kareiva?
    Dr. Kareiva. I think sometimes they do work out very well, 
because conservation in practice is really about tradeoffs, and 
when the tradeoffs are intelligently informed, they are the 
right tradeoffs to make. Again, that returns to my point about 
the data, because it is only by looking at data that you can 
find out whether you are identifying what really is 
irreplaceable or whether you're identifying the right to the 
tradeoff.
    So certainly in principle it is a good idea, and in 
practice occasionally it is. It could be done much better.
    Senator Chafee. Thank you.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you, Senator Chafee.
    We've been joined now by Senator Reid. Welcome, Senator 
Reid. Would you like to make an opening statement or any 
comments?
    Senator Reid. I would ask, Mr. Chairman, that my statement 
be made part of the record as if it were read.
    Senator Crapo. Without objection.
    [The prepared statement of Senator Reid follows:]
  Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada
    Thank you, Mr. Chairman, for holding this important hearing. As you 
know, habitat conservation plans and the ``No Surprises'' policy have 
been two of the trickier issues facing this Committee as we have 
struggled in recent years to improve the Endangered Species Act.
    I believe you are right to focus on the science of Habitat 
Conservation Plans first rather than an immediate discussion of the 
policy. Like so much of the Endangered Species Act, HCP's are driven by 
science and it is important for this Committee to get a better handle 
on exactly what that means.
    All too often, there is a tendency to question as unsound 
scientific conclusions that are contrary to what we want to believe or 
that don't get us to where we want to be in terms of policies.
    That is why I am glad that we are turning first to a panel of 
scientists, professionals who have dedicated their careers to working 
on these sorts of issues to help shed some light on what is working, 
what is not, and what is needed to make HCP's an effective tool.
    Although I would like to welcome all of our witnesses to Washington 
this morning, I am especially pleased that Dr. Dennis Murphy is with 
us.
    Dennis and I have been friends for many years. He runs the 
Biological Resources Research Center at the University of Nevada-Reno 
and is the Director of the Nevada Biodiversity Initiative, one of the 
nation's most progressive research initiatives.
    While I understand that he is an expert in the area of Habitat 
Conservation Plans, I know him primarily due to his outstanding 
research and applied science efforts at Lake Tahoe.
    I know that all of my colleagues have listened to me with great 
patience over the years talk about my determination to protect the 
Crown Jewel of the Sierras from further degradation. I won't go into 
great detail today.
    However, I will make the point that it is due to the efforts of 
folks like Dr. Murphy that all of the diverse communities at Lake Tahoe 
have been able to unite behind a $900 million dollar plan to preserve 
and protect the lake.
    Without the scientific underpinnings of the plan, no one would have 
the confidence required to justify the sacrifices that will need to be 
made to save this national treasure.
    Let me close by saying that today's hearing is the kick-off of the 
second phase of an incremental process that we have begun this year to 
see if some legislative progress can be made on reforming the 
Endangered Species Act.
    During May and June, this Subcommittee worked together to produce 
legislation that addresses some critical habitat and recovery habitat 
issues. It was a very open and collaborative process and it produced 
language that everyone can embrace.
    That package is now awaiting action on the Floor. I am hopeful that 
the spirit of cooperation that has marked this process so far can 
continue and we can fix areas of the ESA that need some work.
    After coming so close to getting a comprehensive reform bill done 
last year only to see it scuttled at the last minute, I have concluded 
that incremental reform is the only way to go at this time.
    While I know that this approach is not universally popular, I feel 
confident that, as long as everyone remains willing to compromise and 
work together, we can make a lot of progress.
    Thank you, Mr. Chairman. I look forward to working with you.

    Senator Reid. I also would express my appreciation to you 
for holding these hearings, and apologize for not being here at 
the time they started. I had some duties to cover for Senator 
Daschle with a meeting with Senator Lott and was unable to be 
here with the national Governors.
    I wanted to be here for a number of reasons. One is the 
importance of this hearing. Senator Chafee, Baucus, and your 
predecessor, Kempthorne, you know, we worked on a bill that we 
thought was really a good compromise. Had it moved forward in 
the fall when we introduced it, the bill would now be law and 
we'd be all happier. But, as more time went on, barnacles 
gathered on the bill and people looked at it more closely than 
I think they should. Anyway, we weren't able to push that 
legislation.
    I would hope that, as a result of the hearings you are 
going to hold today and tomorrow, that we can move forward with 
this reauthorization of this very important law.
    Let me also say I wanted to be here because of Dennis 
Murphy. During almost my entire time that I've spent on this 
committee, which is now going on 13 years, I've worked with Dr. 
Murphy. He worked at Stanford, and we're very fortunate that he 
moved from Stanford to University of Nevada at Reno, where he 
is doing some outstanding work not only on endangered species, 
generally, but also on our joint work with the State of 
California on Lake Tahoe. He is certainly eminently qualified 
to testify on this issue and to help us with the myriad of 
problems that have developed at Lake Tahoe.
    So, having said that, I got here late. I'm going to have to 
leave early because I have another meeting with the Prime 
Minister of Israel that I have to attend, so I really apologize 
for the interruption and extend to you my congratulations on 
your willingness to take on this very difficult issue.
    Senator Crapo. Well, Senator, we recognize your difficult 
schedule and appreciate the time and effort you've made to 
participate with us, and we also--I also, and I know I speak 
for Senator Chafee, look forward to finding the most effective 
path forward in terms of reforming the Endangered Species Act, 
and we'll look forward to working with you in that regard.
    Senator Reid. You know, if we don't do something, we're 
going to wind up with problems, as we're going to have the 
Interior bill we hope comes up this Wednesday, and we're going 
to have a knock-down, drag-out battle there dealing with the 
grizzly bear, and we shouldn't do that. We should be able to 
have a law that is in place that prevents those from doing this 
on a piecemeal basis.
    Senator Chafee and I have been through those piecemeal 
battles, and we need to get rid of them, don't we, John.
    Thank you very much.
    Senator Chafee. Thank you very much, Senator.
    Senator Crapo. I'd like to ask a few more questions to each 
member of the panel. The issue I'd like to go into right now is 
this tension that is apparent between the policy of No 
Surprises and the need for adaptive management.
    I'll start with you, Dr. Pimm. I would appreciate any 
comments that you might have in that regard, but there is, to a 
certain extent, a conflict between the need to be sure that we 
provide the landowner with the kind of certainty and assurances 
of No Surprises so that the landowner can then take necessary 
steps to utilize his or her private property in the way that is 
contemplated by the HCP, and the fact that, as we move along 
through the process, the policy of evaluating and developing 
and furthering the science may lead to new and different 
conclusions or new needs with regard to the species.
    How should we address that issue?
    Dr. Pimm. I think there are two ways of doing that. One of 
them is embodied in the HCP concept, itself. That is, as I said 
earlier, the risk spreading. If we have a lot of HCPs for red-
cockaded woodpeckers, then the surprise failure of some of them 
would not be as catastrophic. We should spread the risk across 
a lot of different areas, recognizing that nature is full of 
surprises.
    The second aspect to surprise, of course, is that you adapt 
to it. That's the nature of the second recommendation that I 
made, which is that HCPs that allow for adaptation should be 
given a greater length of time than those that do not.
    As an example, we often do not know what the optimal fire 
frequency should be for many of these habitats. Red-cockaded 
woodpecker is in a fire-dominated habitat. Because we don't 
know that, we can at least recognize that there could be 
different fire regimes that are optimal. We could encourage 
landowners to use different fire regimes, monitor the results, 
and then act accordingly, and those different alternatives, if 
they are specified ahead of time in the HCP, make it an 
ecologically, scientifically stronger plan than if there were 
to be just a fixed plan with a fixed management.
    So I think the obvious solution is to encourage HCPs that 
allow for different outcomes, to monitor those outcomes, and to 
respond accordingly.
    Senator Crapo. Thank you.
    Dr. Kareiva.
    Dr. Kareiva. Adaptive management is basically collect data 
as you manage, and also do management as an experiment.
    I think one simple way to reconcile some of that tension is 
to, in the beginning, where vast areas are involved, or species 
at special peril are involved, be precautionary to begin with. 
Play it very safe. But then, as you collect data and do 
adaptive management, recognize that what you learn can go both 
ways. It doesn't just have to be that as you collect data you 
find out you have to impose more restrictions on the landowner. 
You could learn information that led you to impose less 
restrictions on the landowner.
    So if you start off precautionary, as you collect data and 
adaptively manage, the information you glean can work in the 
favor of development. For example, we have de-listed some 
species, such as gray whales and effectively de-listing species 
is based on data. De-listing species results in less 
restrictions and it is based on collecting data, seeing how 
well species are doing.
    Senator Crapo. Thank you.
    Dr. Murphy.
    Dr. Murphy. I was on the National Academy of Sciences 
Committee on Science and the Endangered Species Act that 
released a report in 1995. This was a point that we made quite 
clearly and was an example of what we thought needed to be done 
with either the statute or regulations; at the point of 
listing, we need to do an analysis of the challenges faced by 
the species to identify areas critical to the existence of the 
species, so that we walk into our habitat conservation plans 
with as few surprises likely as possible. I really do think 
where we need the science is up front.
    There are relatively few species that get listed and then 
immediately enter into the HCP dialog. Most of the species 
subject to HCPs have been listed for quite a long time; the sad 
part of that is that we've lost opportunities to stockpile 
information that would be useful in planning. The biological 
opinion that accompanies proposals for listing quite often has 
a great deal of information that is useful to HCP planners. We 
should extend on that.
    Senator Crapo. I didn't hear any of you say we should hold 
off moving ahead with entering into HCPs, even though there may 
be a need in those HCPs to provide No Surprises.
    As you are probably aware, the No Surprises policy is under 
criticism from some quarters and under attack in terms of 
whether it should even continue to be a policy.
    I guess the question I have is this: If we were to, as a 
matter of policy, eliminate the No Surprises requirement or 
position in HCPs, I would assume that we would have fewer HCPs, 
and I would further assume that that would ultimately mean less 
benefit for the environment and for species, because we would 
have more conflict and less progress made in terms of entering 
into HCPs.
    I'd like to know of your feelings about that. Am I correct 
in that? I guess the question is: Are we better to proceed now, 
even though we work with a No Surprises policy, rather than to 
hold off until we have so much assurance through the scientific 
study that we can address an HCP without engaging in No 
Surprises?
    Dr. Murphy.
    Dr. Murphy. We have been operating under a functional No 
Surprises policy. In fact, we haven't re-initiated an HCP 
because of changed circumstances to my knowledge. As you point 
out, 1995 kicked off the most active time for those HCPs and we 
have made, de facto assurances to landowners and it has worked 
fairly well.
    I think the problem may be just simply in the nomenclature. 
``No surprises'' sounds terribly terminal. It suggests that if 
you've got a species on your property and circumstances change, 
doggone it, we're not going to do anything about it. I think a 
better term for it is ``fair assurances.'' And I do believe 
that if landowners have entered into an agreement in which 
development activities are foregone. There should be 
contractual assurances.
    If we want to sustain these agreements in the face of 
changing circumstances with species, then funds have to come 
from somewhere else.
    It seems that we have starved our HCPs economically, and I 
think that has led to the perception that they are not as 
effective as they could be, and that, in fact, circumstances, 
when they change, may not be appropriately dealt with 
financially.
    Senator Crapo. Dr. Kareiva or Dr. Pimm, did either of you 
want to comment on that?
    Dr. Kareiva. I basically agree with the simple way that you 
stated it. It is better to live with some No Surprises in order 
to get more HCPs, and we could just be careful about how we use 
it.
    Dr. Pimm. Yes, I agree with that.
    Senator Crapo. Thank you.
    Senator Chafee, did you want to ask more?
    Senator Chafee. Just a question or two if I might, Mr. 
Chairman.
    In your written statements, I believe each of you referred 
to general scientific standards for HCPs, and I wonder if you 
could be a little more specific on what kind of standards you 
are referring to.
    Would that cover you, Dr. Pimm?
    Dr. Pimm. Yes. I think the point is simple. The HCPs are 
new. Some of them haven't been terribly compelling 
scientifically. Some have been very good. You'd expect there to 
be variation. I think the process is a learning one. I think it 
is a rapidly learning one. And I think we all understand that 
we need to have better standards. I think the best way of 
achieving that is to have a repository for HCPs so people can 
see which are the good models and which are the ones that are 
not so good.
    Senator Chafee. You're referring to the data base that Dr. 
Kareiva was referring to; is that correct?
    Dr. Pimm. It's very obvious, when you read some of the 
HCPs, that some of them have missed out important information. 
When you have the two together, you can see that, and I think 
those who develop them would benefit from that comparison, too.
    Senator Chafee. Do you agree with that, Dr. Kareiva?
    Dr. Kareiva. Yes, I do.
    Senator Chafee. Dr. Murphy.
    Dr. Murphy. Dr. Kareiva's report identified five areas, and 
he might be able to detail those five areas where better 
science would be useful in HCPs. That's an extremely important 
starting point in terms of bringing better science to habitat 
conservation planning.
    The other thing that may be lost in the discussion--and it 
is certainly lost when we try to compare small and large HCPs, 
southern HCPs with western HCPs, is the fact that the species 
that are targets of these planning exercises fall into very 
broad categories that in many ways differ greatly.
    California condors, black-footed ferrets and some other 
species, after a zoo-like conservation challenge--we're down to 
a few individuals. It is a very different conservation 
challenge to save those species than most others. In addition, 
we've got narrowly endemic species, species that are found only 
on a few acres. Those species need a different science to save 
them than some of our more broadly distributed species. The 
species that recur in the media as conflicts where economic 
development is moving forward tend to be wide-ranging species 
that are relatively rare--spotted owls, your example of the 
red-cockaded woodpecker, desert tortoise, and so on. Those 
species need a different style, a different type of science.
    And I think the idea of having guidelines that 
differentiate between these categories of species could go a 
long way in focusing the science at early stages of listing and 
reducing the possibility of surprises.
    Senator Chafee. Your point being that some are so exotic, 
if you want to use that word, so rare that the approach on them 
would be different than something that is endangered but is 
more commonly found, if you could. Is that correct?
    Dr. Murphy. Yes. And then you can imagine the examples are 
numerous. There are rare plants that are found on only a couple 
of acres on the eastern slope of a mountain in Utah. There are 
also anadromous fish stocks that are found in just a few 
streams; those present a whole different suite of challenges in 
terms of their conservation, which are more complicated, both 
scientifically, politically, and economically.
    Senator Chafee. Well, I agree with you. We have a Block 
Island--I believe it is called ``burrowing beetle,'' which is 
apparently extremely rare and only found in this one particular 
area in Block Island, Rhode Island, and it is different than 
something that is like the bald eagle, which is found across 
such extensive areas in our Nation.
    Thank you very much, Mr. Chairman. I appreciate having the 
opportunity.
    Senator Crapo. Thank you.
    I have a few more questions. We may be interrupted by a 
vote here, and we may be finished by the time the vote occurs. 
If not, we'll make a determination at that point.
    The Administration has published an exhaustive handbook on 
the guidance for HCPs, and I would be interested from each of 
the panel members if you have suggestions as to how this 
handbook might be improved, relating to some of the points that 
you've raised today.
    Dr. Pimm.
    Dr. Pimm. I can't address that specifically, but I can 
address it by parallel to other reporting needs that I have 
seen. However good the handbook, it surely helps to have a lot 
of examples in front of you, and I think, in addition to that 
handbook, a suite of examples, if not the entire data base on 
HCPs, would be very helpful.
    Senator Crapo. All right. Thank you.
    Dr. Kareiva.
    Dr. Kareiva. Early on in our study many of us read that 
handbook. I think part of the problem is just the 
implementation of it, frankly. In the future, examples will 
help in the implementation. We need very concrete guidance. 
Also, instead of having one handbook to fit all species, we 
need to use some of the sort of categorization that Dr. Murphy 
is talking about. Breaking things up into different categories 
will help.
    Senator Crapo. You know, one thought I had was with regard 
to the data base that you talked about. I don't know if the 
handbook addresses developing such a data base, but perhaps 
administratively we could get moving toward that through 
handbook guidance.
    Dr. Kareiva. Yes, I think that would be--it would be very 
easy to do, in fact.
    Senator Crapo. Dr. Murphy.
    Dr. Murphy. There is just simply a disconnect between the 
academic scientific colleagues of mine who believe that there 
really are explicit scientific guidelines and agency staff who 
think otherwise. The explanation given by the Fish and Wildlife 
Service is that each individual species and each individual 
planning circumstance poses such a distinct challenge that you 
can't provide useful guidance. My sense is the right scientists 
sitting down and working on that guidance could go a long way 
toward creating a systematic and prioritized approach to bring 
better information to HCPs.
    Frankly, the new HCP guidebook is long on implementation 
directions and very short on scientific guidance, and that 
could be fixed tomorrow.
    Senator Crapo. That's very helpful.
    Would you contemplate that the handbook could also contain 
some of the common or the basic standards and guidelines that 
are common among species that could be considered? Is that 
where--would those types of things which you've discussed with 
us here today be appropriate for inclusion in the handbook?
    Dr. Murphy. Certainly, and I'd go further. The exercise of 
HCPs is an exercise of splitting the difference. An HCP doesn't 
move forward unless a landowner gets some sort of economic 
benefits from the HCP, itself. That process of splitting the 
difference between environmental and economic benefits has 
great implications certainly for species, but it is, in the 
end, a quantitative exercise: How much land to get how much 
benefit to species?
    We're not only talking about categorization of species, 
we're talking about a method for assessing the costs and 
benefits of the taking of species in certain circumstances. 
That's a tougher thing to put into guidelines, but a narrative 
on the thinking that goes into that kind of an exercise needs 
to be documented.
    Senator Crapo. Thank you.
    Dr. Murphy, to switch directions for a minute here, you've 
mentioned in your written testimony and also in some of your 
answers to questions that a source of funding to help 
facilitate the adaptive management would be very helpful. That 
idea is also very intriguing to me because, as we discussed the 
conflict between the need for No Surprises or, as you 
indicated, strong assurances, and the need for adaptive 
management, as that arises, if the adaptive management moves in 
the direction of more restrictive needs, often that can't be 
accommodated within the context of the kinds of assurances that 
need to be given at the beginning of an HCP to allow for the 
agreement of the landowners, but, sort of in the context, if I 
understand you right, in the context of mitigation, perhaps if 
there were some type of external source of resources brought 
into the picture by the Government to help address the needs 
that would be brought into conflict, we could breach the skids, 
so to speak, find a way to move forward in getting past the 
conflict between the private landowners and the needs of the 
species.
    Could you elaborate on that? And I'd also like to get the 
information or the thoughts of the other members of the panel 
on that issue.
    Dr. Murphy. I don't know that I can elaborate. You've 
stated it quite clearly.
    I do think that a process that is facilitated with adequate 
funding can allow for creative engagement that might not be 
realized otherwise.
    An example is the Headwaters deal, which was funded with 
$500 million Federal and State funds and 3 years of 
negotiation--a very good HCP. My sense is that to facilitate 
HCPs through public funding would be a rarer-than-normal 
circumstance; that if there were a pool of funds, an endowment, 
that could be stewarded, we would find that we wouldn't have to 
dip into it all that often.
    But there are circumstances, and the circumstances tend to 
be those in which we've got narrowly distributed species 
largely found on the private lands where the contribution to 
persistence of the species can't be buttressed by habitat on 
public lands. Those rare circumstances tend to be coastal 
southern California, the bay area of California, the valley 
lands there, and in some of the developing areas of the south 
and southeast, where a funding pool like that would really 
facilitate good planning in areas where economic constraints do 
exist.
    Senator Crapo. Dr. Kareiva, do you have any thoughts on 
this?
    Dr. Kareiva. Essentially I agree with Dennis in the sense 
that, yes, we need a pool like that. We probably wouldn't have 
to use it much. In fact, given a little time we could probably 
look at the data much the way he just suggested in terms of 
rare endemics and find out and anticipate how much we would 
have to use it.
    Senator Crapo. Dr. Pimm.
    Dr. Pimm. I, too, agree. I think that many of the HCPs are 
unlikely to be controversial. They are likely to be fairly 
straightforward, and they can move ahead with relatively little 
intervention.
    There is always going to be somewhere we are going to have 
to sit down and expend a lot more time and effort and money, 
but my sense is that these two are going to be the noticeable 
and the controversial examples, but relatively the minority.
    Senator Crapo. I believe that was a notification of the 
vote. I have just a couple other questions, but, Senator 
Chafee----
    Senator Chafee. No, I'm all set. Thank you very much, Mr. 
Chairman. I want to thank the members of the panel. This was an 
excellent panel, and I'd congratulate you for having assembled 
it.
    Senator Crapo. Well, thank you, Senator.
    I will just ask a few other questions and you can feel free 
to get on your way if you need to.
    Senator Chafee. OK. Fine. Thank you very much.
    Senator Crapo. We appreciate your participation here.
    Senator Chafee. Thank you all very much. Dr. Pimm I 
understand came back especially from Brazil for this.
    Dr. Pimm. Yes, sir.
    Senator Chafee. I want to thank you very much for doing 
that.
    Senator Crapo. We appreciate it. In fact, I should say at 
this point that the information and insights that the panel has 
provided are going to be very helpful as we approach this, and 
I've already--not only through the written testimony, which I 
reviewed last night, but through the presentations today, 
developed a lot of ideas that I think could be very useful in 
pursuing reform of this area of the law.
    I wanted to pursue a little bit further this question of 
how to use the financial resources that might be made available 
through some form of money.
    As you were all answering my last question, I was thinking 
about the situation in my part of the country. The Pacific 
Northwest is very heavily public land dominated, where the HCP 
problem isn't directly involved with the public land, but if 
you've ever looked at maps of the interspersal of public and 
private land, it is sort of like a checkerboard effect, and the 
management of public land inevitably impacts the management of 
private land, and vice versa.
    It seems to me that there may also be a need for financial 
support in terms of a lot of the management issues that we face 
in large ecosystems such as the management issues we face 
relating to salmon or steelhead, which virtually impact the 
entire watershed of the Snake and Columbia River systems, which 
is most of four or five States, or the bull trout, which is 
becoming another significant issue in some of those regions, or 
the grizzly bear, which was mentioned by you, Dr. Murphy.
    You apparently are aware of some of the very difficult--
I'll even use the word ``hostile''--debates that we are having 
over how to manage some of those types of species.
    The need for a financial source of mitigation for some of 
the impacts that the management will be ultimately needed for 
some of these species seems to me to be very evident.
    One of the problems I see there is that that might be an 
area where the need to dip into the pool of money is not only 
regularly faced, but in large dollar amounts.
    Is that context something which you had in mind in terms of 
what you were suggesting, Dr. Murphy, or am I going down an 
entirely different trail right now?
    Dr. Murphy. You can spend money very quickly by going after 
the grizzly bear.
    My sense is that we're never going to get there if we have 
to go through an appropriations process to respond to crises; 
that we really do need a pool of money, an endowment of sorts 
that can be tapped, hopefully conservatively, to resolve 
problems.
    I am concerned that we have disproportionately directed 
funds at a very few species over the years under the Endangered 
Species Act, and that in many ways has contributed to our 
current circumstance in which we've got many hundreds of 
species on the list.
    I think well-directed funds from such a pool might be used 
to try to obviate the need for listing, to keep candidates off 
the endangered species list, to take care of many of the 
species that aren't being taken care of through the 
appropriations processes.
    We've got an emergency room circumstance where grizzly 
bears, northern spotted owls, and a number of other species get 
a disproportionate amount of our economic attention, and 
anything we can do to spread the funds that are available to 
additional species is going to be very important.
    But my thought is--and it is always a tough budget 
circumstance, but maybe now is the time that we should be 
looking for an endowment that would spin off some dozens of 
millions of dollars a year for strategic investment in species 
that are involved in HCPs.
    Senator Crapo. Thank you.
    Any comment on that, Dr. Kareiva or Dr. Pimm?
    Dr. Kareiva. I think there certainly is a need for such an 
endowment, and instead of being so pessimistic about it we have 
to realize there is the opportunity to recover some of these 
endangered species. We have to realize that such an endowment 
could lead to faster de-listings. When species are de-listed a 
lot of money is spent enforcing the Act. The enforcement is 
done haltingly, in ways that hamper local economics. Here de-
listing clearly can save money.
    We really have to heed the benefits of taking species off 
the list. If we used such an endowment well, in the long run it 
could be very effective even economically, because it would 
help us get species sufficiently recovered that they could be 
de-listed.
    Senator Crapo. Thank you.
    Dr. Pimm.
    Dr. Pimm. With Dr. Kareiva being the expert on salmon and 
Dr. Murphy the expert on grizzly bears, I can't contribute to 
that other than to say that, ``You know, the act is not that 
old, 25 years or so, and there are a lot of species like gray 
whales, peregrine falcons, bald eagles that we've recovered. It 
has been a very successful act at preventing species' 
extinction, and I think we should always keep that in mind when 
we look at the potential for improving it.''
    Senator Crapo. Thank you.
    I have just about 5 minutes left, and so I want to get into 
one other area.
    Some scientists have argued that the better approach to 
saving endangered species is to focus on preserving large 
tracts of habitat, sort of what you were saying, Dr. Pimm, I 
think, to preserve more area, not just hundreds of acres but 
thousands and tens of thousands of acres, rather than on 
individual conservation measures aimed at individual species. 
This is, you know, sort of like what has been called the 
ecosystem approach or the watershed approach.
    As I understand it, the underlying argument is that if you 
preserve the habitat broadly like this, then the species that 
depend on that habitat will also necessarily be preserved, and 
you maintain the important ecological relationships among the 
habitat.
    Can you comment on this ecosystem-based approach? And I'm 
thinking about is it scientifically justified? And also, how 
does that relate to the need for specific habitat conservation 
plans in more-localized and smaller situations?
    Dr. Pimm.
    Dr. Pimm. I think one of the most exciting documents that 
has been produced in the last few months has been the multi-
species recovery plan for south Florida. There is no other area 
in our country that is as diverse ecologically. That area 
contains the Everglades, it contains uplands, it contains 
wetlands, it contains a barrier reef. And that plan recognizes 
that we should be planning at the landscape level--the 
ecosystem level, if you like--and for many, many species.
    I actually think that in the past that has been implicit 
but not explicit, and the spotted owl issue was not just a 
single species but the several hundred other species that 
shelter underneath it in old growth forests.
    I think there is a movement to recognize that we should 
make all of those species explicit, and that multispecies 
recovery plans involving hundreds of species do just that.
    So I think the scientific community, the Fish and Wildlife 
Service, is indeed moving in the direction of looking at the 
entire package of species in an area.
    Senator Crapo. Thank you.
    Dr. Kareiva.
    Dr. Kareiva. Two responses to that. First is in this large 
study that we did we broke the habitat conservation plans in 
two categories, they come in two categories--species-based and 
habitat-based. It was our evaluation that the habitat-based 
ones were generally sounder scientifically.
    Second, more broadly, I think there is actually a pretty 
wide consensus that this sort of habitat ecosystem perspective 
is the way to go, with a caveat that you still always have to 
be counting birds, counting plants, counting fish, because if 
you just go out and count ground you may be wrong.
    Senator Crapo. Dr. Murphy.
    Dr. Murphy. Dr. Kareiva said it. I think we need to plan at 
the habitat, the landscape level. We need to do our science, 
though, not only at that level. We also have to focus on 
species, themselves.
    The idea somehow that we can understand ecosystems well 
enough to be able to create a good habitat conservation plan 
that takes care of all the constituent species just doesn't 
hold up at this point. We need specific information about the 
species that reside in these habitats.
    Senator Crapo. And it seems to me that if you had a broad 
understanding of the needs of the habitat, in general, that 
that can form a significant part of the science that helps to 
develop what is appropriate in individual HCPs. Is that true?
    Dr. Kareiva. Certainly.
    Senator Crapo. Each of you are nodding yes.
    Dr. Pimm. Yes.
    Senator Crapo. I will indicate that for the record.
    Well, gentlemen, I want to thank you for coming today. As I 
indicated, the advice that you've given and the information 
that you've provided is very helpful.
    To wrap it up, I'd like to just say that what I am hearing 
you say in a broad sense is that, although there is still a 
need for developing the data base and expanding our 
understanding of the science that is available and expanding 
the science that we can achieve, that we should not lose sight 
of the value of HCPs as they currently exist; that they are 
helpful and we can improve.
    Is that a fair summary of the testimony?
    Dr. Pimm. Yes.
    Dr. Kareiva. Yes.
    Dr. Murphy. Yes.
    Senator Crapo. Well, thank you.
    I would also like to encourage you, as you have further 
thoughts on this, to feel free to submit them to the committee. 
We are working on this issue very closely, and we are going to 
try to identify the areas in which we can improve our focus at 
the policy level on how to address HCPs. We want to do so in a 
way that develops broad-based public support, and I think that 
the kinds of information and suggestions that you've provided 
today are going to help us do that.
    Please continue to work with us.
    I'm reminded that, because of the business of our schedule, 
which we always have around here, not all of the Senators have 
been able to attend. We are sure that some of them are going to 
want to ask you some questions for the record and we would ask 
you to remain available to respond to their questions as we 
provide them to you. Would you each be willing to do that?
    Dr. Pimm. Yes.
    Dr. Kareiva. Yes.
    Dr. Murphy. Yes.
    Senator Crapo. All right. Thank you very much. Without 
anything further, then, this hearing is adjourned.
    [Whereupon, at 10:51 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
         Statement of Dr. Stuart Pimm, University of Tennessee
    I greatly appreciate your giving me the opportunity to discuss the 
issue of Habitat Conservation Plans. The scientific community 
particularly welcomes your leadership on this issue because it is 
quantitatively the most important aspect of endangered species 
protection. Between a half and two-thirds of endangered species are not 
found on Federal land. We Americans cannot adequately protect our 
natural heritage unless we protect species on private, State, County 
and other lands encompassed by HCPs. The rapid expansion of HCPs within 
the last 5 years or so provides unrivaled opportunities for the 
necessary stewardship. This is both an exciting time and a challenging 
one as scientists consider the progress to date and how to improve 
future plans.
    My research confirms the old adage that one should not put all 
one's eggs in one basket. Most endangered species have become 
endangered because we have forced them into a few ``baskets''--a 
limited amount of space where they are now especially vulnerable to 
change, both natural and human-caused.
    The first advantage of HCPs is their potential to minimize risk by 
protecting a species in more than a few places. Spreading a species' 
risk of extinction across many places will often be a better bet than 
intensive scientific study and visionary management in just one place. 
Most of us manage our financial investments by spreading risk in much 
the same way.
    The second advantage is that at least 60 percent of endangered 
species need active habitat management to survive. Without control of 
alien weeds or without period, controlled fires some species will 
succumb if all we do is to put a fence around them. The HCP process can 
encourage appropriate habitat management and do so over increasingly 
large areas.
    The experience to date on HCPs has been that some have been better 
than others--how could it be otherwise? The analysis of HCPs undertaken 
by the National Center for Ecological Analysis must surely be viewed in 
this light. The report's most serious criticism argues that many HCPs 
may be based on ``the best available scientific data'' but that those 
data may not be sufficient. To me, the report's most important omission 
is that it does not fully address this tradeoff between having many 
good plans versus a few superb (and omniscient) ones. Limited resources 
will always mean that one cannot have many, perfect plans.
    Of course, the NCEAS report raises the possibility that we may have 
many plans, but poor ones. While I may manage my investments by 
spreading risks across many stocks that does not mean I would accept a 
preponderance of poor ones. The report notices numerous deficiencies 
that need to be addressed by future plans. Its greatest strength is its 
unified assessment of the plans. Its most important recommendation is 
that there should be a central repository of plans to provide models 
and comparisons for those who will produce plans in the future.
    Criticisms of inadequate data need to be viewed in the context of 
what is practical. I have no personal experience of HCPs, but I have 
extensive experience of the Section 7 Consultations between the Fish 
and Wildlife Service and other Federal agencies. I believe the 
parallels to be useful. Many of those consultations are informal, 
friendly, and the issues are quickly resolved.
    I suspect that many HCPs may be relatively uncontroversial. One 
size does not fit all, however. Some Section 7 consultations are 
difficult, contentious, are require major investments of resources. 
Surely, some HCPs will be likewise.
    It was to address different degrees of ecological uncertainty that 
Dr. Gary Meffe of the University of Florida and I wrote to you in 
January of last year. Our letter was co-signed by more than a dozen 
scientists all with extensive experience of conservation issues. We 
offered the following recommendations:
    First, the scientific rigor underlying the plan should influence 
the relative length of accompanying assurances. Plans that rest upon a 
substantial scientific foundation, about which there is little serious 
disagreement as to their sufficiency or adequacy, should properly 
receive longer-term assurances than those that rest upon a more 
marginal scientific foundation and for which there is substantial 
disagreement regarding their sufficiency or accuracy.
    For long-term assurances to accompany plans that encompass all or a 
very large portion of the range of a covered species, the rigor of the 
underlying science is especially important.
    Second, any ``No Surprises'' policy ought to be crafted in such a 
way as to encourage identification in the plan of possible future 
contingencies and a means of adapting management in response to them. 
One way to do so is to link the duration of assurances provided to the 
extent to which a plan identifies and allocates responsibility for 
future contingencies. Other things being equal, those plans that 
specifically address a variety of potential future contingencies and 
clearly identify how they will be handled warrant a longer term of 
assurances than plans that make little or no effort to do so.
    Third, the potential conservation benefit of a plan ought to 
influence the extent and duration of the assurances provided.
    Thank you for your attention.
                                 ______
                                 
  Responses by Stuart Pimm to Additional Questions from Senator Chafee
    Question 1. You mentioned in your testimony that you agree with the 
report produced by the National Center for Ecological Analysis and 
Synthesis that there should be a central repository of plans in order 
to provide a source of models and comparisons for the future. Where do 
you feel would be the best location of this repository? Who should 
undertake this project?
    Response. The Fish and Wildlife Service would seem to be an obvious 
place to deposit Habitat Conservation Plans, since it under the 
Endangered Species Act that they are produced. While I do not 
understand the administrative details, I do feel that in these days of 
web pages and easily produced CD-roms that this should not be a 
particularly onerous task. The plans themselves are documents that can 
very simply be uploaded onto a web site or assembled onto CDs. My 
experience of other large scale data bases available as government 
documents suggest that this would be well within the limits set by 
other activities. (For instance, the Multi-species Recovery Plan for 
South Florida is a huge document.)

    Question 2. Some scientists have argued that the better approach to 
saving endangered species is to focus on preserving large tracts of 
habitat--not just hundreds of acres, but thousands and tens of 
thousands of acres--rather than on individual conservation measures at 
individual species. This is essentially an ecosystem approach. The 
underlying argument is apparently that if you preserve the habitat, the 
species that depend on that habitat will also be preserved. And you 
maintain the important ecological relationships within that habitat. 
Can you comment on this ecosystem-based approach? Is it justified? What 
are the scientific issues that need to be addressed if you focus on 
preserving ecosystems, instead of protecting species here and there?
    Response. There is no doubt that protection of our national 
biological heritage will be achieved most effectively by protecting 
larger, more connected and more natural areas. The smaller, more 
fragmented, and more managed a set of areas, the greater the problems 
we will encounter. Some of the more contentious issues that we have 
faced--the spotted owl, the California gnatcatcher, various species in 
the Everglades, for instance--stem from the difficulties of managing 
species across too small an area.
    Nor is there any doubt that protecting habitat is an essential task 
in protecting species. The ESA states precisely this in its opening 
statement of purpose. And the Supreme Court's decision (Sweethome 
versus Babbitt) confirmed the importance of habitat, agreeing with a 
Brief of Amici Curiae Scientists that I helped draft.
    There is a danger, however, in thinking that ecosystem-management 
is somehow an alternative to species management. In practice, many 
examples of apparent single-species management including the three 
examples listed above are issues of ecosystem management: old growth 
forests in the Pacific Northwest, the Coastal shrublands of California, 
and our largest wetland, respectively. The issues surrounding the red-
cockaded woodpecker are likewise an ecosystem problem: the long-leaf 
pine savannas of the southeast are one the most endangered ecosystems 
in the country.
    My sense is that many now understand that the use of particular 
species as ``umbrellas'' under which other species shelter has caused 
difficulties in the debates of protecting our natural heritage. Multi-
species plans--like the one mentioned above--are more transparent in 
that they list all the species in danger. As a consequence, they are 
also manifestly oriented toward preserving ecosystems. It has to be so: 
I do not see how one can define a particular ecosystem except by the 
special species that it contains.
    As an example, I see within the South Florida Plan an inevitable 
convergence between species planning and ecosystem management. And if 
multi-species planning can be done there, in the most biologically 
complex corner of our country, then surely it can be done elsewhere.
                                 ______
                                 
 Statement of Peter Kareiva, Senior Ecologist, Northwest Region of the 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
                 Administration, Department of Commerce
    Mr. Chairman, my name is Peter Kareiva, and I am a senior ecologist 
with the National Marine Fisheries Service (NMFS) Northwest Science 
Center in Seattle, Washington, where my primary responsibility is 
developing a science-based risk analysis that can guide efforts to 
recover endangered salmon populations. I am here to speak to you about 
a large national study of Habitat Conservation Plans (HCPs) which I 
supervised while a Full Professor in the Zoology Department at the 
University of Washington. Since this was before I worked for NOAA, 
those findings do not represent the views of NOAA. My experience and 
expertise regarding HCPs are derived from this national study and from 
20 years of active research in conservation biology.
                            about the study
    The study was initiated in September 1997 and was completed with 
the posting of all of its results and data on a publicly available 
website in January 1999 (http:/www.nceas.ucsb.edu/projects/hcp/). We 
used the volunteer labor of 119 biological researchers, including 13 
faculty members and 106 graduate students from eight premier research 
universities around the country (Yale University, University of 
California at Berkeley, University of California at Santa Cruz, 
University of California at Santa Barbara, University of Washington, 
University of Virginia, Florida State University and North Carolina 
State University). The study was supported by the AIBS (American 
Institute of Biological Sciences: $19,000) and NCEAS (National Center 
for Ecological Analysis and Synthesis: $82,000). NCEAS is funded by the 
National Science Foundation as a center dedicated to bringing 
ecologists together to solve our most pressing problems in both basic 
science and in the arena of public interest (such as this HCP issue), 
and in a rapid-response fashion.
    We examined 208 HCPs that had been approved as of August 1997. Of 
those 208, we took a sample of 43 HCPs for which we attempted to read 
every supporting document and every relevant article in the scientific 
or agency literature that might provide pertinent data. Often this 
amounted to reading several thousands of pages of documents and tables 
and speaking at length on the phone to biologists. Efforts were 
coordinated by using internet and the web to maintain a dialog among 
research courses being taught at the eight different universities. Data 
analysis and actual synthesis of these data took place at NCEAS, which 
houses excellent conference and computer facilities. The data base we 
produced contains 89,908 entries. This is the largest Quantitative 
study of HCPs yet produced, and in some sense is the first quantitative 
study. By quantitative I mean that our evaluation of HCPs is in the 
form of actual numbers and scores which can be statistically analyzed 
and updated, as opposed to narrative descriptions.
                     major conclusions of the study
    (1) We frequently lack adequate data regarding the most basic 
biological processes pertaining to endangered species--such as what is 
the rate of change in their populations locally? Nationally? What is 
their reproductive schedule? What is happening to their habitats in 
quantitative terms (percent lost or gained per year)?
    (2) Given the data available, HCPs generally make the best use of 
the existing information in a rational manner, and there is evidence 
that the quality of HCPs with respect to using science has been 
steadily improving.
    (3) However, for many HCPs. scientific data are so scant, that the 
HCPs really should not be called ``science based'' since science 
requires data from which inferences are drawn and tested. There is no 
agency failing here, nor any failing of individual writers of HCPs--no 
one could to a better job given the limited sources and poor quality of 
information that are available.
    (4) Very few HCPs included in the study were designed to include 
adequate monitoring of populations or habitats in a way that could at 
least allow us to learn from our actions and create data bases that 
could inform fixture decisions. This is a golden opportunity that is 
being missed. Second, so-called ``adaptive management'' may be 
mentioned in HCPs, but an extremely small percentage of HCPs actually 
establish any adaptive management procedures (complete with statistical 
power analyses for assessing whether they are likely to work).
                            the bottom line
    Everything preceding in my testimony has had very little of my 
personal emphasis, and instead reflects a straightforward condensation 
of the report which is available at the website above. However, I want 
to end by leaving you with what I see as the bottom line of this 
research regarding science in HCPs. Sometimes it is too easy to get 
lost in the details, and lose sight of the big message. I wish to 
emphasize, however, that this ``bottom line'' is my personal conclusion 
from the study--what I pick out as its most important lessons.
    (1) The absence of a data base that tracks patterns of population 
change and habitat alterations for threatened and endangered species is 
a national embarrassment. Often these data exist somewhere--in a file 
drawer, in researchers' notebooks, or scattered among several 
publications. Yet in this age of computers and the interest, our data 
bases and information on basic natural history of endangered species 
are staggeringly primitive. Many of us are aware of how much national 
or even state ``computerized criminal data bases'' have revolutionized 
enforcement. The same should happen with resource management and 
endangered species protection. Without such data bases we cannot know 
where are the ``safe places'' and the ``dangerous places'' for our 
endangered species. We need to be able to ``go on line'' and find out 
what is happening with endangered species in terms of hard numbers--how 
many individuals? where? how many acres of habitat? how much of the 
remaining habitat exists in publicly owned lands? and so forth. 
Investment in such a data base would be in the best interests of all 
parties, so we can at least have access to the most current information 
before we begin debating the possible consequences of future actions.
    (2) We do not even have a national data base that tracks the 
``paper'' administrative record of HCPs. In other words, one cannot get 
on the internet and find a list of all HCPs that address a particular 
species or the total acreage of land for a species that is covered by 
the HCP process. Increasingly, HCPs are being placed online (a very 
positive trend), but the sort of administrative data base that I feel 
is needed will require a much larger effort to synthesize and update 
information from many scattered sources in a format that will make the 
information easy to access.
    (3) In light of all this scientific uncertainty, if HCPs are to be 
pursued in the interest of balancing development and the environment, 
then minimally, HCPs should be required to include rigorous peer-
reviewed monitoring programs that allow us to learn from them.
    Mr. Chairman. thank you for this opportunity to testify. I know the 
HCP process is being seriously improved. In addition, I know from 
personal experience that certain recent HCPs (after the publication of 
our study) include state-of-the-art monitoring designs, backed up by 
high quality research (e.g., the Pacific Lumber Headwaters HCP and its 
monitoring program for marbled murrelets). Moreover, one reason I came 
to work as a scientist for the Federal Government and especially for 
NMFS is that it is easy to throw stones from an ivory tower and 
criticize how the government does its resource management science (and 
I have thrown some of those stones)--but I wanted to see if I could 
make the science work any better before I continued to criticize the 
job others were doing.
    I look forward to answering any questions you may have.
                                 ______
                                 

              Using Science in Habitat Conservation Plans

                           executive summary
    The Endangered Species Act of 1973 (ESA) was established to save 
species at risk of extinction and to protect the ecosystems upon which 
they depend. Toward that aim, the ESA makes it unlawful for any person 
to ``take'' a listed species. In 1982, the ESA was amended to authorize 
incidental taking of endangered species by private landowners and other 
non-Federal entities, provided they develop habitat conservation plans 
(HCPs) that minimize and mitigate the taking. Since 1982, HCPs have 
rapidly proliferated, leading in turn to widespread concern among 
conservationists that these plans are not being prepared with adequate 
scientific guidance. Critics have argued that scientific principles 
must be better incorporated into the process of developing HCPs. In 
response to these criticisms, we reviewed a set of approved habitat 
conservation plans to evaluate the extent to which scientific data and 
methods were used in developing and justifying them. The review was 
conducted through a nationwide graduate seminar involving eight major 
research universities, 106 students, and 13 faculty advisors. Our 
analyses focused on the extent to which plans could be substantiated by 
science. Thus, even if based on the best available data (the legal 
requirement), a legally and politically justified plan could be deemed 
scientifically inadequate because, by more stringent scientific 
standards, the data were insufficient to support the actions outlined 
in the plan.
A Systematic Effort to Collect Quantitative Data on Science in HCPs
    This investigation proceeded along two lines. First, individuals 
gathered data on 208 HCPs that had been approved by August 1997 in 
order to obtain basic descriptive information about plans. Second, the 
group conducted a more comprehensive analysis for a focal subset (43) 
of these plans. The HCPs in the focal subset range widely in geographic 
location, size, duration, methods, and approval dates. For this in-
depth investigation, we developed two separate data questionnaires: one 
asked for information on the plans themselves, and the other focused on 
listed species and their treatment within HCPs. These questionnaires 
included information about what scientific data were available for use 
in formulating the HCP, how existing data were used, and the rigor of 
analysis used in each stage of the HCP process. As a whole, the 
questions were designed to generate a detailed profile of each HCP and 
to document the use (or lack thereof) of scientific data and tools. 
Plans were not judged overall; rather, questionnaires focused on 
different stages of the planning process, including the HCP's 
assessment of (1) the status of the species; (2) the ``take'' of 
species under the HCP; (3) the impact of the take on the species; (4) 
the mitigation for the anticipated take; and (5) the biological 
monitoring associated with the HCP. All of the data sheets, plan 
descriptions, and other detailed results from this effort are available 
on the NCEAS website:
http://www.nceas.ucsb.edu/projects/hcp/
Results
    From our data on 208 HCPs, we were able to outline an overall 
picture of HCPs across the landscape. These 208 HCPs involve permits 
for incidental take of 73 endangered or threatened species. Of those 
208, a great majority (82 percent) involve a single species, although 
the profile is skewed by more than 70 plans involving the golden-
checked warbler (Dendroica chrysoparia) in Travis County, Texas. HCPs 
occur in 13 states; the largest concentrations are in Texas, Florida, 
and California. They range in size from only 0.17 ha (0.5 acre) of 
habitat to 660,000 ha (1.6 million acres) of habitat. The duration of 
plans also varies widely, from 7 months for a plan in Travis County, 
Texas, to 100 years for the Murray Pacific Company's HCP in Washington. 
HCPs do not appear to be getting larger, smaller, longer, or shorter 
over time.
    In our more comprehensive examination of the focal HCPs, we direct 
much attention to what we call scientific adequacy. It is important to 
note that an HCP would be labeled scientifically inadequate if 
insufficient data were available to justify an action formally, even 
though legally the plan might be defensible. HCPs and many other 
provisions of the Endangered Species Act require only that decisions be 
based on the best available data. Scientifically, however, to support a 
claim we require data that when analyzed give some statistical 
confidence of an assertion, and that confidence is often lacking in 
applications of science to conservation biology because of a paucity of 
data. For example, from a scientific perspective, the best data might 
suggest a particular relationship between loss of habitat and loss of 
individuals, but the data are so variable and scarce that one could 
never have scientific confidence in the presumed relationship. Our aim 
is not to change the law but to point out just how much science is 
being used, and can be used given the availability of data pertinent to 
HCP development. The conclusions we draw probably apply to many other 
facets of Federal decisions regarding species listed as endangered or 
threatened.
            Status/Take/Impact
    Because they involve take of endangered species, HCPs must include 
information about the status of populations and habitats of the 
species, an assessment of how many individuals and how much habitat 
will be taken under the plan, and what impact that take will have on 
the species overall. We found that, for most species (74 percent), 
population sizes were known to be declining globally before the HCP was 
submitted; 21 percent were stable, and 5 percent were increasing. The 
most important threat to species was habitat loss, although habitat 
degradation or fragmentation and direct human-caused mortality also 
represented important threats. Notably, for only 56 percent of the 
instances in which a listed species might be ``taken'' by an activity 
was the predicted take quantitatively estimated. And only 25 percent 
(23 of 97) of species treatments included both a quantitative estimate 
of take and an adequate assessment of the impact of that take.
            Mitigation
    A crucial measure for the success of HCPs is the choice and 
implementation of measures to avoid, minimize, and mitigate impacts on 
the species included in the permit. If the appropriate measures are 
chosen and implemented in a timely fashion, the impact on the species 
in question might be effectively mitigated, justifying the issuance of 
an incidental take permit. For this analysis, we chose to evaluate 
avoidance, minimization, and mitigation measures as overall 
``mitigation,'' because they all involve offsetting potential impacts 
to species. Minimization and avoidance of the threatened species are by 
far the most common mitigation measures (avoidance is proposed for 74 
percent of species, and minimization for 83 percent). Our analyses 
identify some important gaps in quality of data underlying mitigation 
proposed in HCPs. Overall, particular mitigation measures commonly 
suffered from an absence of data indicating they were likely to 
succeed, leading to a situation in which ``unproven'' mitigation 
measures were relied on in the HCPs. Given this uncertainty, one would 
expect that a mitigation measure should be evaluated prior to the onset 
of take. Unfortunately, such a precautionary approach was often 
lacking.
            Monitoring
    We determined whether biological monitoring (i.e., ``effectiveness 
monitoring'' or monitoring of trends in the populations that are 
potentially affected) was included for the HCPs in our sample. In this 
analysis, we looked at each plan as a sampling unit (n = 43), and we 
only considered information included in the plan or associated 
documents. For only 22 of the 43 plans was there a clearly outlined 
monitoring program. Of those 22 well-described monitoring programs, 
only 7 took the next step of indicating how the monitoring could be 
used to evaluate the HCP's success. Interestingly, although most plans 
do not include provisions for ``adaptive management,'' when plans do 
include such provisions they are significantly more likely to include 
clear monitoring plans as well.
            Availability and Use of Information Needed for 
                    Scientifically Based HCPs
    In many cases, we found that crucial, yet basic, information on 
species is unavailable for the preparers of HCPs. By crucial, we mean 
information necessary to make determinations about status of the 
species, the estimated take under the HCP, and the impact of that take 
on the species. For example, in only one-third of the species 
assessments was there enough information to evaluate what proportion of 
the population would be affected by a proposed ``take.'' If we do not 
know whether one-half or one-hundredth of a species' total population 
is being affected by an action, it is hard to make scientifically 
justified decisions.
    We assessed the overall adequacy of scientific analysis at each 
stage of the HCP process. Although this evaluation of scientific 
adequacy amounted to a largely qualitative assessment, the foundations 
of that assessment were well specified by series of background 
questions; ``overall adequacy'' was consistently well predicted by data 
obtained for these background questions. In general, the earlier stages 
in HCP planning are the best documented and best analyzed. In 
particular, species status is often well known and adequately analyzed, 
whereas the progressive analyses needed to assess take, impact, 
mitigation and monitoring are more poorly done or lacking. Our 
evaluations also indicate that the very large and the very small HCPs 
contain the poorest analysis. In terms of plan duration, it appears 
that shorter-duration plans have better estimates of the amount of 
take, but longer-duration plans have better analysis of the status of 
the species and the mitigation measures imposed.
Conclusions and Recommendations
    Although our analysis points to several shortcomings of HCPs, we 
acknowledge that the HCP process is new, complex, and difficult. In 
general, the USFWS and NMFS are doing a good job with the data that are 
available. They do not have the resources to obtain the data that are 
needed for many of the decisions that must be made. Without such 
resources, the best scientific approach is to be more cautious in 
making decisions and to use the findings of this report to justify 
requests for additional resources.
            Recommendations
    1. We recommend that greater attention be given to explicit 
scientific standards for HCPs, but that this be done in a flexible 
manner that recognizes that all HCPs need not adhere to the same 
standards as high impact HCPs. A formalized scheme might be adopted so 
that small HCPs draw on data analyses from large HCPs, assuring that 
applicants are not paralyzed by unrealistic demands.
    2. For the preparation of individual HCPs, we recommend that those 
with potentially large impact (those that are large in area or cover a 
large portion of a species' range) include an explicit summary of 
available data on covered species, including their distribution, 
abundance, population trend, ecological requirements, and causes of 
endangerment. HCPs should be more quantitative in stating their 
biological goals and in predicting their likely impact on species. When 
information important to the design of the HCP does not exist, it may 
still be possible to estimate the uncertainties associated with the 
impact, mitigation, and monitoring, and to still go forward, as long as 
risks are acknowledged and minimized. Flexibility can be built into 
mitigation plans so that managers can be responsive to the results of 
the monitoring during the period of the HCP. When highly critical 
information is missing, the agencies should be willing to withhold 
permits until that information is obtained.
    3. For the HCP process in general, we recommend that information 
about listed species be maintained in accessible, centralized 
locations, and that monitoring data be made accessible to others. 
During the early stages of the design of potentially high-impact HCPs 
and those that are likely to lack important information, we recommend 
the establishment of a scientific advisory committee and increased use 
of independent peer review (review by scientists specializing in 
conservation biology). This policy should prevent premature agreements 
with development interests that ignore critical science.
                            1. introduction
1.1. The Endangered Species Act in Relation to this Study
    The Endangered Species Act of 1973 (ESA) was established to save 
species at risk of extinction and to protect the ecosystems upon which 
they depend. Toward that aim, the ESA makes it unlawful for any person 
to ``take'' a listed species. This prohibition encompasses activities 
that directly kill or harm listed species, as well as activities that 
cause indirect harm through ``significant habitat modification or 
degradation'' (50 CFR Sec. 17.3). In 1982, the ESA was amended to 
authorize incidental taking of endangered species by landowners and 
nonFederal entities, provided they developed habitat conservation plans 
(HCPs) that minimize and mitigate the taking, and that receive approval 
by the U.S. Fish and Wildlife Service (USFWS) or the National Marine 
Fisheries Service (NMFS). Any nonFederal entity, whether a private 
citizen, corporation, county, or state, can initiate an HCP. Once 
approved, an HCP results in an incidental take permit. The language of 
this amendment (Section 10a of the ESA--16 U.S.C. Sec. 1539(a)) arose 
directly out of a model HCP designed to resolve a conflict between a 
development project and the needs of endangered species in the San 
Bruno Mountain area near San Francisco. Few landowners chose to 
undertake HCPs until the early 1990's. The USFWS approved only 14 HCPs 
from 1983 to 1992 (USFWS and NMFS, 1996), but since 1992 there has been 
an explosion of HCPs--225 were approved by September 1997, and 
approximately 200 are currently being formulated. Indeed, HCPs have 
become one of the most prominent mechanisms employed by the USFWS to 
address the problem of threatened and endangered species on private 
lands (Bean et al., 1991; Noss et al., 1997; Hood, 1998).
    The rapid proliferation of HCPs has led to widespread concern among 
conservation advocates about the scientific information in these 
documents. From a policy perspective, critics charge (1) that HCPs may 
undermine species recovery because they can allow for impacts to 
species that are not fully offset, (2) that HCPs are developed without 
adequate biological information or scientific review, (3) that small-
scale HCPs can lead to piecemeal habitat destruction and fragmentation, 
and (4) that meaningful public participation occurs infrequently 
(Hosack et al., 1997; Kaiser, 1997; Kostyack, 1997; Murphy et al., 
1997; National Audubon Society, 1997; O'Connell and Johnson, 1997). Our 
objectives in this study were to conduct a major review of HCPs and to 
evaluate in detail the scientific merit of a substantial sample of HCPs 
currently in effect. We did not attempt to evaluate the biological 
success of HCPs or their attempt to balance economics with biology. 
That exercise would have been premature given the newness of most HCPs. 
Our emphasis is on scientific data and approach, whether they are 
adequate, and if not, what should be done. To strengthen the role of 
science in this process, we start with the premise that regardless of 
the compromises that may be made between economics and environmental 
concerns, HCPs should have clear scientific objectives, be based on the 
best available data, and employ well-tested procedures. It is important 
to emphasize that we scrutinized HCPs and their use of data and 
inference from a strictly scientific (as opposed to legal) perspective. 
We sought to determine whether a presumed impact, a proposed mitigation 
measure, and so forth could be scientifically substantiated given the 
data available. We adopted this strictly scientific stance because one 
of the outcomes of our analysis is a series of recommendations for 
improving the quality of scientific input; arriving at these 
recommendations required that we keep a clear vision of the highest 
possible scientific standards for HCP implementation. Although the 
focus of this report is science, it is useful to keep in mind more 
legal definitions of key terms such as ``take,'' ``compliance 
monitoring,'' ``effects and effectiveness monitoring,'' etc. In Table 1 
we define key legal terms and emphasize how our more biological use of 
language differs from some of these legal definitions.
1.2. HCP Requirements
    Applicants proposing HCPs must specify the impact that will result 
from the incidental take of listed species, what the plan does to 
minimize and mitigate the impact, and what alternatives were considered 
(Table 2). NMFS is responsible for ultimately approving or rejecting 
the HCP (issuing the ``incidental take permit'') for marine and 
anadromous species, and USFWS is responsible for the remainder of 
listed species. The applicant may develop an HCP independently, but 
USFWS often works with the landowner in the plan's early stages, 
providing guidance as to what is or is not acceptable with respect to 
approval requirements. Typically, impact on species is minimized by 
limiting the geographic extent of harmful activities or the seasons 
when those activities are allowed (e.g., prohibiting timber harvest 
during the nesting season of an endangered bird). Mitigation often 
involves setting aside (through purchase or conservation easements) 
habitat elsewhere. USFWS or NMFS can only issue an incidental take 
permit if the HCP meets five criteria (Table 2). Incidental take 
permits are only issued for species listed as threatened or endangered, 
although for any unlisted species that is treated in the HCP as if it 
were listed, the landowner is assured of receiving a permit for that 
species when it becomes listed.
    No set of particular actions must be specified in an HCP for it to 
gain approval, and overall the process is quite flexible. There is, 
however, standardized guidance in the form of the Habitat Conservation 
Planning Handbook distributed by NMFS and USFWS (USFWS and NMFS, 1996). 
The handbook gives general advice on all aspects of HCPs. It also 
suggests expediting small-scale HCPs, while indicating directions in 
which USFWS and NMFS wish to direct future HCPs, including habitat-
based, multi-species planning and large-scale, multi-landowner plans. 
In addition, USFWS conducts training workshops across the country for 
employees who help applicants develop and implement HCPs.
1.3. The Impetus and Aims of This Study
    HCPs are not purely scientific documents--they are compromises 
between the interests of resource development and conservation, and 
political and economic concerns play a major role. Some HCPs represent 
the outcome of negotiations that take years. HCPs have economic, 
political, and scientific dimensions. Because HCPs represent negotiated 
compromises, it is essential to know what exactly is ``given up'' in 
the process of arriving at a compromise. It is easy to identify what is 
given up from the viewpoint of a private landowner, because the dollar 
value of future land development or exploitation is readily calculable. 
It is much harder to quantify what is given up in terms of a species' 
prospects for long-term survival. That is the challenge for the 
scientific component of HCPs.
    To examine the scientific component of HCPs, we decided to use a 
highly structured, detail-driven approach to collecting information on 
HCPs. To date, criticisms and recommendations about HCPs have 
emphasized broad policy implications and have sketched general 
qualitative attributes of particular HCPs (Hood, 1998; Noss et al., 
1998). We sought to develop a quantitative data base that sampled a 
``population of HCPs,'' so that our analysis would be relevant to HCPs 
in general, and not only to particular HCPs. This highly structured 
quantitative analysis complements the more flexible analyses previously 
published and, by uncovering broad trends within a substantial data 
base, will set the stage for further analyses.
    To examine the role of science in HCPs, the National Center for 
Ecological Analysis and Synthesis (NCEAS) and the American Institute of 
Biological Sciences (AIBS) initiated a 1-year project to analyze HCPs. 
A set of graduate seminars at eight universities (Florida State 
University; North Carolina State University; University of California, 
Berkeley; University of California, Santa Barbara; University of 
California, Santa Cruz; University of Virginia; University of 
Washington; and Yale University) were coordinated during the fall of 
1997. These seminars comprised a total working group of 119 
researchers, including 106 students and 13 faculty members. The group 
was charged with reviewing current plans to evaluate the extent to 
which scientific data and methods were used in developing and 
justifying the agreements. The group was also charged with recommending 
ways to strengthen the role of science in conservation planning. The 
group did not attempt to evaluate what effects the plans have had on 
biological systems or species. Because the vast majority of HCPs have 
been initiated since 1994, it is simply too early to evaluate whether 
the plans are working. Moreover, our goal was not a vague judgment of 
the overall quality of each plan or of the plans as a whole. Instead, 
the group focused on the scientific data and reasoning supporting the 
plans, paying particular attention to the key issues of take, impact, 
mitigation, and monitoring. All of the data sheets, plan descriptions, 
and other detailed results from this effort are available on the NCEAS 
website: http://www.nceas.ucsb.edu/projects/hcp/
    This paper is both our synthesis of the data available at this 
website, and a reader's guide to the website. The scale of the data set 
is large--89,908 entries were recorded for HCPs (7,246 for the set of 
208 plans, 75,094 for species questions pertaining to the 43 focal 
plans, and 7,568 for plan questions pertaining to the 43 focal plans). 
Throughout the paper, when discussing data we use the following key: AQ 
refers to questions applied to all 208 plans, SQ refers to species 
questions applied to the 43 focal plans, and PQ refers to plan 
questions applied to the 43 focal plans. The actual questions can be 
found in Appendix I.
       2. methods and rationale for data collection and analysis
2.1. Obtaining a Sample of HCPs for Descriptive Statistics
    As part of our effort, we sought to characterize the largest 
possible sample of plans in terms of their most basic attributes. Data 
we attempted to identify for these plans included plan duration and 
area, basic species information included in the plans, and other 
factual descriptors of the agreements. Unfortunately, there is no 
centralized office or collection of HCPs. We therefore took advantage 
of the joint effort of the two nonprofit organizations, the National 
Wildlife Federation (NWF) and the Earth Justice Legal Defense Fund 
(EJLDF), to assemble HCPs in Washington, DC. As of November 1997, they 
had compiled 208 of the 225 HCPs completed at that time. The 
questionnaire applied to this sample of HCPs is given as Appendix I-C.
2.2. Detailed Data Collection for 43 Focal Plans
    The time and energy required for careful evaluation of both an HCP 
and the relevant background information precluded a detailed 
investigation of all plans. We therefore selected 43 focal plans (21 
percent of the all plans available at the time the project began) for 
detailed analysis. Plans were chosen non-randomly, to span the range of 
geography, size, duration, methods, and approval dates represented in 
the entire population of HCPs (Appendix II-B lists these 43 plans).
    For the focal plans we performed three types of data collection. 
The first was accumulating evidence demonstrating the presence or 
absence of several types of scientific information. For this segment of 
our analysis, we chose a priori to define an ``HCP package'' as 
including the HCP itself, the incidental take permit (ITP), 
implementing agreement (IA), biological opinion, and any associated 
environmental review documents (EA/EIR/EIS). These documents were 
consulted for all focal plans for which they were available (some HCPs 
might lack some of these documents). Information contained in these and 
any other explicitly referenced documents was considered to be included 
in the plan. Second, we gathered general data about the HCP setting and 
the species covered by the associated incidental take permit. Many of 
these data were found in the documents listed above, but to augment 
them, corroborate conclusions made in the HCP documents, and provide a 
comparison to existing scientific knowledge, we completed surveys of 
relevant literature (which included both articles published in journals 
and the so-called ``gray literature,'' represented by reports prepared 
by government agencies and consulting firms). In gathering this 
information, we considered all reports and publications available at 
least 1 year before the date of the HCP's approval as having been 
available for the HCP preparers. For 32 of the focal plans, we 
collected species-specific data for all species covered on the 
incidental take permit. For the other 11, we chose a taxonomically 
representative subset of the species covered. Finally, we gathered 
information about the local context and characteristics of the HCPs 
that included data about plan developers/preparers and the policy or 
social contexts in which plans were developed. Often, this profile was 
developed from both anecdotal and formal discussions with USFWS 
employees, consultants who worked on the development phase, and various 
stakeholders.
    Our goal in analyzing these focal plans was not judgment of the 
overall quality of each plan, or plans as a whole, but rather a 
rigorous analysis of a variety of detailed questions about HCPs: What 
types of data or analysis do HCPs use well? What available information 
is ignored? Are data unavailable that are crucial to sound planning? Of 
the many steps in the planning for each species covered in an HCP, 
which are usually done well and which poorly? Which of the many 
features of a plan (size, duration, etc.) and of the plan's preparation 
(who prepared it, was there a scientific advisory committee?) are 
important in influencing its scientific adequacy? Answering these 
questions requires ``dissecting'' each plan--gathering information on 
its many factors and parts, so that statistical analysis can be used to 
judge what factors significantly influence the scientific quality of 
HCPs as a whole and to allow a clear assessment of the adequacy of 
existing HCPs. To ensure consistency of information gathering across 
groups, and to put the resulting data into an organized and analyzable 
form, we developed two separate data questionnaires; one asked for 
information on the plans themselves, whereas the other focused on 
species listed in the incidental take permit and the treatment in HCPs 
of these species (see website). In total, the Plan questionnaire 
contained 176 questions/subquestions per plan studied, and the Species 
questionnaire contained 789 questions/subquestions per species per plan 
(these complete questionnaires are given as Appendices I-A and I-B).
    The questions asked in the two questionnaires fall into three 
categories:
           For both plans and species, many questions seek to 
        detail simple (although not always simple to acquire) factual 
        information about the HCPs, the species, and the preparation 
        process.
    Essentially all plan questions are of this type.
           For species, a large number of questions address the 
        details of what scientific data and analyses were used in 
        formulating different steps in the planning process. Most 
        involved a set of four parallel questions, which for a broad 
        array of data categories asked (1) whether information of this 
        type was used in the HCP, (2) the source of the data, (3) the 
        quality of the use of this type of data, and (4) whether any 
        important data of this type were missing from the HCP. In 
        addition, there are questions about the importance of these 
        types of data for application to the species and situation at 
        hand. Together these questions seek to determine what data were 
        used in formulating the HCP, the quality of their use, and 
        their relative importance.
           Finally, both for detailed types of biological 
        information and for larger steps in the HCP analysis process, 
        the species questionnaire asked for judgments of the quality of 
        the analysis.
    Because the data included in the plan and species questionnaires 
form the basis of our results, it is important to describe the approach 
we took in designing and then analyzing these queries. As a whole, the 
questions were designed to generate a detailed profile of each HCP, to 
document the use (or lack thereof) of many different types of 
scientific tools and data, and to characterize the availability of 
these tools and data. The questions evolved over the first weeks of the 
project, as online discussion led to the creation of new questions, the 
deletion or modification of existing questions, and official 
``consensus interpretation'' of ambiguous questions. We do not presume 
that these questionnaires are comprehensive, but they were certainly 
sufficient to generate a large body of data on our 43 sampled HCPs, 
covering the full spectrum of HCP ingredients.
    Three lines of reasoning led us to the final set of questions in 
each questionnaire. First, we did not feel that it was either 
scientifically justifiable or most productive to judge the adequacy of 
entire plans, so we sought to confine our ``quality judgments'' to much 
smaller segments of analysis. This approach should better reveal the 
strengths and weaknesses of HCPs and suggest improvements in the HCP 
process. Second, the battery of questions is large, both to minimize 
the danger of missed information and to leave open the door to 
unexpected findings or issues. Third, because it is difficult to make 
scientifically defensible judgments about the quality or adequacy of 
even small pieces of a plan, each question regarding adequacy follows 
an extensive series of questions about the details of the information 
and analysis that were used in the plan, that were left out, and that 
would be needed to improve the analysis. Our goal was to lead ourselves 
(and others reviewing our results) through a clearly articulated set of 
steps that would clarify our judgments about importance and adequacy of 
different types of information. It was impossible to write out a rigid 
and explicit definition of ``adequate'' or a ranking score for each 
question, because we were flexible in our scoring. For example, if an 
HCP involved only a small amount of land and minimal take, we would 
score a rather crude assessment of ``impact'' as adequate simply 
because it was obvious there was no need to be especially careful for 
such a negligible activity. In other words, as professional biologists, 
we asked what level of scientific proof was required for different 
activities, depending on those activities and their context. All 
scorings and evaluations were presented to the local university seminar 
group and thus were subject to internal peer review by up to 20 other 
biologists. This review was an important part of the process. The 
graduate students involved included many with masters degrees (about 
one-third), some with extensive work experience in environmental 
consulting or as employees of USFWS, and some who had actually helped 
write HCPs. The biological, statistical, and practical experience of 
this large cohort of graduate students compares favorably with those 
employees of USFWS who actually administer the HCP process.
    In sum, our approach of using detailed questionnaires to evaluate 
HCPs was designed (1) to include unexpected but important information, 
(2) to allow the dissection of plans so that clear judgments could be 
made about their merits and faults, and (3) to make transparent the 
reasons for our judgments of quality. Although inevitably imperfect, 
our approach allows us to develop a detailed analysis of the 
limitations and the strengths of HCPs. In particular, it takes the 
analysis of HCPs away from the realm of unsubstantiated expert opinion 
and into an empirically based arena where arguments over methods and 
conclusions can be articulated, debated, and revisited.
2.3. A Framework for Judging the Biological Adequacy of HCPs
    To be scientifically credible, HCPs must address a variety of 
issues for each species covered. Although in theory our data set allows 
us to address the scientific credibility of HCPs in their entirety, it 
is more informative to clarify the particular stages in habitat 
conservation planning where scientific knowledge or analysis may limit 
the scientific foundation of HCPs. How should the integrated process of 
HCP planning be dissected, however? Although there is no set of hard-
and-fast rules or steps to which all HCPs must conform, the USFWS/NMFS 
HCP handbook mandates several issues that each HCP must address for 
species covered in the incidental take permit (USFWS and NMFS, 1996). 
Our review of HCPs, in combination with these mandated steps, led us to 
divide the HCP planning and analysis process into five stages:
     Analysis of current status of the species
     Analysis of take under the planned activities
     Analysis of the biological impact of the anticipated take.
     Analysis and planning of mitigation for the anticipated 
take.
     Analysis and planning of monitoring activities to follow 
the future status of the species, the actual take, and the 
effectiveness of mitigation procedures.
    It is important to emphasize that failure to address any one of 
these stages adequately calls into question the adequacy of planning 
for a species, even if all other stages are addressed extremely well. 
For example, an HCP might have excellent data on the current status of 
a species, have excellent estimates of take and the impact of take on 
population health, and have a good monitoring plan, but if the proposed 
mitigation procedures are untested and there are no plans to allow for 
their review and modification, the plan is not scientifically credible. 
Similarly, a seemingly reasonable plan can be formulated that has good 
estimates of everything but the actual effect of the planned take on 
the population viability of the species. In this case, again, the 
entire plan is questionable, because there may be no good way to judge 
the real impact of the planned activities and hence the adequacy of 
planned mitigation work. These examples illustrate both that the 
division of plans into five stages is somewhat artificial and that each 
of these steps must somehow be addressed in an HCP for the whole plan 
to be a scientifically credible blueprint for balancing potentially 
damaging actions with potentially beneficial ones.
2.4. Units of Analysis
    For the questions we address, two units of analysis are logical: 
(i) the individual HCP and (ii) the treatment of an individual species 
within an HCP. Plans are the basic unit in which HCPs are approved and 
implemented, and many of the steps or issues in the HOP process are 
inextricably part of an entire plan's formulation, but species 
protection is the goal and mandate of the ESA and of the individual 
plans. Similarly, although plans with many species will be over-
represented in a strictly species-by-species analysis, this is to some 
extent as it should be. We therefore use a combination of approaches; 
some analyses are done at the plan level and some at the species level. 
When performing most significance tests for species-level analyses, we 
either include plan as a factor in the analysis or use a weighting 
factor that discounts the effect of a species by the number of analyzed 
species from that plan (1/(number of species in the plan included in 
our analysis)). One factor we do not consider in most of our analyses 
is the occurrence of the same species in multiple plans; because each 
plan analyzes different impacts in different places, it seems correct 
to count each plan-species combination as a separate data point. We 
also minimized the bias that could arise from making judgments on the 
basis of a large number of ``minor species,'' when a plan was actually 
written primarily for just one or two major species. It would be unfair 
to call the scientific foundation of such a plan weak because it failed 
to deal with the minor species but did a superb job with the major 
species. We deal with this possible bias in two ways: (1) by choosing 
as a subsample only a few species (and always only listed species) from 
plans with long lists of species to be covered by the Incidental Take 
Permit and (2) by rating a plan's overall adequacy with respect to 
monitoring and so forth primarily on the basis of how well it applied 
to the main species. For example the Washington Plum Creek plan covers 
four listed species (grizzly bears, gray wolves, marbled murrelets, and 
northern spotted owls) and 281 non-listed species (some of which were 
candidate species and may be listed in the future). For this plan, we 
examined only the four listed species, and, because this plan was 
really tailored to northern spotted owls, we used the plan's 
performance with respect to spotted owls as the major issue to be 
evaluated.
       3. checks on data representation and accuracy of analysis
    With 89,908 entries in our data base and analyses conducted by 
several different individuals and universities, there was obviously an 
opportunity for errors to creep into our data. To offset this problem, 
we enlisted the cooperation of the USFWS and sent them a preliminary 
draft of the manuscript, the questionnaires, and all of the data. The 
USFWS then coordinated a review of all of these materials. Importantly, 
the data were sent to the USFWS regions that had originally approved 
the HCPs of concern. After a heroic review process, the USFWS suggested 
changes for 4367 data entries. We made 4328, or 99.1 percent, of their 
requested changes. It is important to note the tremendous effort USFWS 
put into examining our data base, and also to acknowledge that USFWS in 
no way endorses or takes responsibility for our data or our 
interpretations of the data. We simply point out that the raw data 
themselves were reviewed internally by our own research group and 
externally by USFWS. There still certainly remain errors, but we doubt 
that the analyses we report would be substantially altered by the 
errors in the data. For example, observation errors for field counts of 
animals are often on the order of 10-40 percent, a magnitude of error 
we are confident we were well below. All analyses, with one exception, 
are performed on the corrected data, and the data on the website 
represent the corrected data. The one exception is our analyses of 
``school bias,'' in which we asked whether groups from the 
participating universities answered questions differently. For that 
analysis, we used the ``uncorrected data,'' because error rate is one 
way in which the groups might differ.
    For many of the analyses presented below, we use one of the two 
questions that summarize the adequacy of each of the five stages of the 
HOP process (see above). To assess whether they are valid measures of 
scientific adequacy, we regressed the graded-scale (1-6) measures of 
adequacy (see Appendix I-B) for each section on seven aggregate 
variables indicating the knowledge about, and analysis of, various 
categories of biological information about each species (see website 
and Appendix I). We used both one-way regressions using just one set of 
biologically distinct answers to detailed questions (e.g., data on 
changes in numbers or demography) and multiple regressions using 
combinations of variables. These multiple regressions usually had much 
lower sample sizes than did the simpler analyses, due to many 
combinations of missing values. All analyses were performed on 
normalized variables. For each of the five stages, some types of 
information or types of question (e.g., the presence of data versus the 
type of analysis of the data) had little effect on quality rating, 
whereas others were extremely good predictors. For each stage, the R\2\ 
values for the single best regression are Status, 0.66; Take, 0.92; 
Impact, 0.59; Mitigation, 1.0; Monitoring (performed separately for 
monitoring of take, status, and mitigation), 0.92, 0.91, 0.92. Overall, 
the results from these analyses show that the summary rankings are well 
predicted by the details of data and analysis used at each step of the 
HCP process (see Tables 3 and 4, and Appendix III).
    Because of the time and effort needed to find, read, and synthesize 
the full background data for each of the 43 focal HCPs, each plan was 
analyzed in depth by only one university. Because the participants at 
different universities differed in background, and because of the 
unique cultural differences among our groups (e.g., Yale versus U.C. 
Berkeley versus N.C. State University), we were concerned to test that 
the identity of the evaluating university did not substantially 
influence plan evaluation. Two problems could arise from such 
differences. One of these is loss of power to detect real differences 
and effects in the plans due to added noise. The second and more 
serious problem is systematic biases in the patterns we see among 
plans. Furthermore, as noted above, we are often interested in 
analyzing for species-level effects and must therefore account for the 
correlation in species answers due to plan-level effects.
    To check for university biases, we fit a set of mixed linear models 
to species-level data using SAS PROC MIXED, which allowed us to assess 
the effects of institution on the adequacy ratings in five major areas 
(Status, SQ:B43; Take, SQ:C33; Impact, SQ:D47; Mitigation, SQ:E49; and 
Monitoring, SQ:F80). We used these models to determine whether 
universities differed with respect to ratings and whether these 
differences affected the statistical significance of the relationship 
of the five adequacy ratings to the factors Date, Duration, Multiple 
Species (yes/no), Taxon, and Area. In the model, university and plan 
were considered random factors, and Date, Duration, Multiple Species, 
Taxon, and Area were considered fixed factors (Date, PQ: 181; Duration, 
PQ: 178, Plan Species Number (from PQ: 11, coded for three levels), 
Taxon SQ:A3; Area, PQ: 182; Existence of Recovery Plan, SQ:A8). The 
results showed that only for Mitigation effects was the school to 
school variation a sizable portion of the residual variation (Table 5). 
In sum, these tests for university biases suggest that there are 
generally not strong or consistent differences in the ratings of 
different universities--certainly nothing of a magnitude that is likely 
to influence our results or conclusions.
                   4. a descriptive overview of hcps
    Before beginning our analysis of how science is used in HCPs, we 
report the general characteristics and diversity of the HCPs in our 
sample of 208. In particular, we summarize descriptive data about where 
HCPs were implemented, who developed them, why they were developed, how 
large an area they address, how long they last, what species they 
address, and what approaches to habitat conservation planning are used. 
Second, we describe these same characteristics for our intensively 
studied sample of 43 focal HCPs and compare them to the larger set of 
208 plans.
4.1. Attributes of Sample of 208 HCPs
    More than 70 of the sample of 208 HCPs were coordinated and 
approved within the Balcones Canyonlands Conservation Planning area in 
Texas. Because these plans are very similar to one another and may bias 
general patterns of HCP characteristics, we report two results whenever 
appropriate: one based on data for all 208 plans and one excluding data 
for the Balcones Canyonlands plans.
    Any nonFederal entity can develop an HCP in support of an 
incidental take permit application. Most HCPs (82 percent) were 
submitted by single private landowners (either corporations or 
individuals). Just 3 percent of HCPs were submitted by state and local 
governments. Fourteen percent were developed for lands under multiple 
jurisdictions (these could be public, private, or both); an example of 
a multiple jurisdiction plan is the Orange County NCCP (see website 
plan narratives). If the Balcones Canyonlands plans, which were 
developed for numerous private landowners, are excluded, these 
proportions change to 72 percent private, 5 percent public, and 22 
percent multiple jurisdiction. The areas covered by HCPs can differ 
dramatically--on an ``area basis,'' the figures are 14 percent private, 
18 percent public, and 67 percent multiple jurisdiction.
    HCPs are developed because some action is expected to take 
threatened or endangered species and thus to have impact, which can be 
either reversible or irreversible. Reversible impacts include those 
that could be expected to diminish substantially in 100 years or less; 
examples include the impacts of timber harvest rotations or livestock 
grazing. Irreversible impacts are those that have a permanent effect on 
species or their habitats, such as urbanization or land conversion. 
Fourteen percent of HCPs will result in reversible impacts and 81 
percent in irreversible impacts. Five percent will have both reversible 
and irreversible impacts. When Balcones Canyonlands plans are excluded, 
the proportions shift to 23 percent having reversible impacts, 69 
percent having irreversible impacts, and 8 percent having both. Data 
collected for the 43 focal HCPs allowed a more specific 
characterization of land uses motivating HCPs. Within this smaller 
dataset, the primary land use changes were specifically defined, e.g. 
agriculture, logging, urban development. For each plan, various land 
uses were ranked according to their importance in motivating that plan; 
a ranking of 1 identified the land use change that was the primary 
motivation for the HCP (PQ:42-49). Although plans may be motivated by 
many different changes in land use, 56 percent of those we examined in 
depth (24 of 43) were motivated by construction of buildings; logging 
came in second at 19 percent (8 of 43).
    We analyzed the duration and size distribution for HCPs using the 
larger data set of 208 plans. Land areas covered are extraordinarily 
diverse, spanning six orders of magnitude. The smallest approved plan 
protects the Florida scrub jay (Aphelocoma coerulescens) on just 0.17 
ha (0.4 acres). The largest plan to date covers over 660,000 ha (over 
1.6 million acres) of forest managed by the state of Washington 
Department of Natural Resources. Nevertheless, most HCPs are relatively 
small. The median size is less than 10 ha (24 acres), and 74 percent of 
HCPs cover fewer than 100 ha (240 acres). If Balcones Canyonlands HCPs 
are excluded, the median size increases to about 44 ha (110 acres), and 
59 percent of HCPs cover fewer than 100 ha (250 acres). For simplicity 
and comparative purposes, HCPs were categorized as small (0-10 ha), 
medium (>10-1000 ha), or large (>1000 ha). The largest proportion of 
all HCPs falls in the small size category (50 percent). When the 
Balcones Canyonlands plans are excluded, tile largest fraction falls in 
the medium category (48 percent). No directional trend over time in the 
mean size of HCPs is apparent. Regressions with and without Balcones 
Canyonlands plans of log(area) of HCPs on year of approval yield slopes 
not significantly different from zero (P >0.14 and P >0.07, 
respectively). Some recently approved plans are larger than their 
predecessors, but other recent plans are smaller, suggesting only that 
the aerial extent of HCPs has diversified with time.
    The length of time over which an HCP is to be implemented is 
correlated with the duration of the ITP for which the plan was 
developed. Plan durations are diverse, ranging from 7 months for a plan 
in Travis County, Texas, to 100 years for HCPs implemented by the 
Murray Pacific Company in Washington. Two plans developed for private 
properties in Texas are to be maintained in perpetuity. Excluding those 
two plans, the median duration of HCPs is 10 years, and 60 percent of 
HCPs will be maintained for 20 or fewer years. Excluding the Balcones 
Canyonlands plans, the median duration of HCPs increases to 22.5 years. 
Over time, the durations of approved HCPs have diversified, but they 
exhibit no significant directional trend. When Balcones Canyonlands 
plans are excluded from analysis, a regression of plan durations on 
approval dates suggests that more recent plans may be longer, but the 
trend is not statistically significant (P >0.15).
    Although no HCPs show directional trends in either duration or 
area, these two characters are positively correlated with one another 
(Figure 1). A regression of HCP duration on HCP area yielded a positive 
relationship in which small HCPs tend to have shorter durations and 
larger plans longer durations (P 

4.2. Attributes of 43 Focal Plans
    The following subsections compare characteristics of the 43 focal 
plans with those of the larger HCP population. We assert that the focal 
plans adequately represent the diversity of HCPs, allowing a general 
evaluation of how science is used in habitat conservation planning.
            Time of Approval
    When selecting focal HCPs, we biased our sample toward more recent 
plans. These presumably reflect current approaches and strategies in 
HCP development and are therefore more pertinent for the evaluation we 
have undertaken. Ninety percent of the 43 focal plans were approved 
after 1992, compared with 89 percent of the whole population of HCPs 
(PQ:3).
            Applicant Types
    To sample a sufficient number of plans developed by state and local 
governments and by multiple jurisdictions, we biased our selection of 
focal HCPs with respect to this characteristic. Among the focal plans, 
71 percent were developed by private entities, 10 percent by state or 
local governments, and 19 percent for lands under multiple 
jurisdictions (PQ:65).
            Area
    We selected focal plans non-randomly with respect to size to avoid 
sampling bias due to the many small Balcones Canyonlands plans and to 
achieve more balanced representation of different-sized plans. As a 
consequence, the proportions categorized as small, medium, and large 
differ from those observed in the larger HCP sample. Nineteen percent 
of the plans selected were small, 40 percent were medium, and 42 
percent were large (PQ:28).
            Duration
    Plan durations were categorized as short (up to 5 years), medium 
(>5 to 20 years), and long (greater than 20 years). Twenty-three 
percent of the plans selected were of short duration, 20 percent of 
medium duration, and 58 percent of long duration (PQ:4 minus PQ:3).
            Species
    By selecting only 43 HCPs for intensive analysis, we necessarily 
reduced the number of different species protected under these plans. 
Nonetheless, 64 out of a possible 73 different listed species are 
covered in our focal-plan subsample. Birds, mammals, reptiles and 
amphibians, fish, and invertebrates were included.
            Approach
    The focal HCPs were chosen to represent the primary approaches to 
habitat conservation planning: single-species plans, multispecies 
plans, and habitat-based plans. Fifty-one percent of the focal HCPs 
were single-species plans, 21 percent were multispecies plans, and 29 
percent were habitat based plans. These proportions differ from those 
for the larger HCP population in that multispecies and habitat-based 
plans are over-represented. We intentionally sought an over 
representation of these large multispecies plans because they represent 
the major impacts in terms of total area and because there has been a 
move toward increasingly favoring these types of plans (although small 
single-species plans continue to play a role) (PQ:7 and PQ:8).
             5. the use of available data for hcp planning
    Before evaluating the five key components of HCPs (status, take, 
impact, mitigation, and monitoring), we first discuss the more general 
issue of data availability. In particular, we assess what data are 
altogether lacking, what data are available but not used, and the 
quality of analysis of available data.
5.1. Data Limitations
    To assess data availability during HCP preparation, we first 
documented the proportion of cases for which we were unable to 
determine basic information on a species or effects of actions 
authorized in the HCP on the species. These analyses provide a view of 
how often scientists lack information on species for basic assessments. 
Note that we did not restrict our search for this basic information to 
the HCP or its supporting documents--we did a thorough literature 
search that covered peer-reviewed publications and the ``gray 
literature.'' We found that the basic information necessary to make 
determinations about potential threats to species (SQ:A12-A21), the 
status of a species or its habitat (SQ:B26-B42), and the type and 
magnitude of take that will occur (SQ:C19-C28) were unavailable in many 
cases. For example, we could not determine whether or not there 
currently exists sufficient habitat to ensure a species' viability for 
one quarter of the species-plan cases we examined. If we do not know 
whether or not there is currently enough habitat to sustain a species, 
it is hard to determine the impacts of future losses or alterations of 
habitats. Lack of this kind of basic information can severely limit our 
ability to make correct assessments regarding the effect of proposed 
developments on a given species. Indeed, for only one-third of the 
species are there enough data to determine what proportion of the 
population will be affected by the proposed development. All of the 
aforementioned data assessments were made for the literature up to 1 
year prior to permit approval.
5.2. Unused, but Available, Information
    To determine whether HCP preparers did not use important data that 
were available, we reviewed all the information we could find that was 
not in the HCP and judged the importance of this information for 
assessment of status, take, impact, and mitigation strategies (QD 
responses to SQ:B1-24, C7-18, D7-30 and E7-30). In gathering this 
information, we considered all reports and publications that were 
available at least 1 year prior to the date of the HCP's approval as 
available for the HCP preparers. The majority of the information we 
found was either cited in the HCPs or deemed not to be important to the 
conclusions drawn in the HCP. Thus, our analysis showed that HCP 
preparers do a good job of finding and citing relevant data; data 
omissions were judged to be significant only 15-25 percent of the time 
(Table 7). However, a few categories of data appear to be under-
researched in HCPs. Of particular concern is the omission of 
information regarding cumulative impacts. For example, in 23 percent of 
the cases, we concluded that plans neglected information on cumulative 
impacts that would have altered the assessment of the impact of take. 
Data omissions were also potentially serious in the development of 
mitigation or minimization efforts (Table 7). Of particular note was 
the omission of information about the amount and quality of habitat 
with respect to feeding, breeding, and migration--these are key aspects 
of habitat that will be central to any mitigation for habitat loss.
5.3. Analysis of Available Data
    For each category of species-specific information we reviewed, we 
evaluated the quality of the analysis and use of any data reported in 
an HCP (QC responses to SQ:B 1-24, C7-18, D7-30, and E7-30). For 
analyses of status, take and impact, we found that, when data were 
available, the overall quality of their use was high (Table 8). Data on 
population sizes and habitat availability were generally used well in 
HCPs, whereas more detailed data on species or their interactions in 
the environment were more unevenly applied and stood out for their 
relatively low scores with respect to data use (Table 8). The most 
significant finding in this analysis is the poor use of existing data 
regarding extrinsic factors (such as anticipated human population 
growth with likely future pressures on the species) and environmental 
variability for designing mitigation strategies (Table 8). Information 
about possible catastrophic events and environmental variability is 
important when mitigation is designed, because such variability can 
often undermine otherwise effective mitigation.
                6. assessment of status, take and impact
6.1. Determining the Status of Species
    Accurate determination of the status of endangered and threatened 
species serves to justify procedures outlined in the HCP and provides 
baseline data to be compared with similar estimates after development 
has occurred. A fundamental aspect of a species' status is knowledge of 
the critical threats to that species' viability. As part of our 
evaluation of HCPs, we identified the primary threats to the 97 
species-plan combinations (some species occur in several different 
plans, so 64 species yield 97 combinations: Figure 2, SQ:A12-23) both 
at the local scale (within boundaries of the HCP) and at the global 
scale (over the range of the species). Overall, the most important 
threat to species is habitat loss, which was cited as primary threat 
for over 75 percent of the species, both locally and globally (Figure 
2), followed by habitat degradation, habitat fragmentation, and direct 
human-caused mortality. Other sources of declines for species covered 
in HCPs include pollution, water diversion and/or damming, interactions 
with invasive species, and changes in community composition (which 
affect interactions with food, predator, parasite, and disease 
species).

    A second basic feature of species status is the estimated trend in 
abundance or numbers of individuals in the populations in question, 
both within the HCP area (SQ:B30) and globally (SQ:B31). For those 
species where population trends were known, we compared the proportion 
of species that were increasing, stable, or declining in numbers within 
the HCP area and globally. For most of the species, population sizes 
were known to be declining in the HCP area (57 percent total; 53 
percent declining at a moderate rate and 4 percent declining so rapidly 
that extinction is possible within the next 20 years). An intermediate 
number of species were known to be stable (40 percent), and, for a 
small fraction of the species included in HCPs, the populations were 
increasing (2 percent) (Figure 3). Changes in populations for these 
species at a global scale are similar to those observed within HCP 
lands. Populations range-wide are declining for 74 percent of the 
species, stable for 21 percent, and increasing for only 5 percent of 
the species in our sample.
    The status of populations of endangered species is highly dependent 
on the maintenance of sufficient adequate habitat for the species. 
Trends in habitat availability (Table 9) are similar to those observed 
for populations: habitat availability is declining in the local HCP 
area for 63 percent and is stable for 37 percent of the species in the 
HCPs we reviewed. Habitat quantity is not increasing for any of the 
species we evaluated (Table 9; SQ:B34). Globally, habitat is declining 
for 88 percent of the species and stable for 12 percent and is not 
increasing for any of the species in our HCP sample (SQ:B35). The 
decline in habitat availability at larger scales underscores the 
importance of populations within HCP areas for overall viability of 
endangered species (Bean and Wilcove, 1997).
    Most of the habitat remaining for species contained in the HCPs is 
of ``medium'' quality (51 percent of habitat in HCP area and 70 percent 
of habitat globally; Table 9; SQ:B28-29). We defined medium-quality 
habitat as that able to support self-sustaining populations but not 
able to produce an excess of individuals (i.e., not able to serve as 
consistent ``source'' populations). Habitat quality within the HCP area 
was generally rated of poorer quality than global habitat quality for 
the species in our HCP sample. In particular, 40 percent of the 
remaining habitat in HCP areas was deemed to be ``poor'' quality (i.e., 
not able to support isolated populations through time), whereas only 15 
percent of habitat was determined to be poor globally.
6.2. Nature and Characterization of Take
    Activities permitted in HCPs can result directly or indirectly in 
death of individuals of an endangered species, commonly referred to as 
``take'' (ESA, 1982). Take also includes any type of harassment or harm 
to species and destruction or modification of a species' habitat 
(USFWS, 1981). Take was predicted to occur for the majority of the 
species-plan combinations we reviewed (73 percent; SQ:C25). For the 
remaining species either take was not predicted to occur as a result of 
HCP activities or not enough information was provided in the HCP to 
reveal whether take would occur. In cases where it was explicitly 
stated in the HCP that take would occur if the permit were approved, 
the quantification of take varied tremendously among plans (SQ:C27). 
Predicted take, in terms of the estimated number of individuals that 
will be displaced or killed, is poorly estimated for most of the 
species in our focal HCPs--in almost half of the cases (49 percent) no 
data in the HCP or associated documents addressed the level of take 
likely to result from the proposed development.
    For each species evaluated in our 43 focal plans, we also asked 
what percentage of the population on the HCP land would be taken as a 
result of the proposed activities (SQ:C26). In a large proportion of 
the cases (42 percent), the HCPs do not explicitly estimate this 
figure. Among the plans in which take was estimated, the expected level 
of take was most often ``all or nothing'' (Figure 4). In the majority 
of cases either a small percentage (1 percent or less) or all (100 
percent) of the population on the HCP land would be taken as a result 
of the proposed activities; few predicted intermediate take levels.

    Our data suggest that little emphasis is currently placed on 
accurately estimating the consequences of proposed activities for the 
species or population in the HCP area. A high percentage of the species 
listed on incidental take permits have no quantitative estimate of 
take, either as the total number of individuals lost or the percentage 
of the affected population taken. In the cases where predicted take is 
quantified, our data suggest that HCPs fall into two categories: the 
plans either minimize take (resulting in many cases with low take 
estimates) or they allow for removal of 100 percent of the affected 
population.
6.3. Assessing Impacts of Development on Endangered Species
    Impacts on populations in HCPs can be defined as the combined 
effects of take and habitat modification on the viability of endangered 
species. Because of its complex nature, quantifying impact is difficult 
and requires not only accurate estimates of take but also an 
understanding of the population dynamics, species requirements, and 
demographic thresholds that apply in each individual case; these data 
are often necessary to full understanding of the biological 
consequences of proposed levels activities. We reviewed the types of 
threats that were considered in HCPs (QE responses to SQ:D32-45) and 
compared those to the categories of impact we deemed important for the 
species given our knowledge of their biology and status (QG responses 
to SQ:D32-44). We ranked all categories for each individual species-
plan combination on a four point scale ranging from 1 (not an important 
impact) through 4 (a serious impact that will significantly affect the 
population). We ranked area of habitat loss, percent habitat lost, 
direct mortality, habitat fragmentation, cumulative impacts, and 
altered interspecific interactions as the six most significant effects 
for the species in our sample (Table 10). With the exception of 
cumulative impacts, we generally found high concordance between our 
rankings and the number of times that the same impact was considered in 
the HCPs we reviewed.
                      7. mitigation and monitoring
7.1. Mitigation in Habitat Conservation Plans
    A crucial feature of HCPs is the choice of mitigation procedures 
aimed at minimizing the threats to species included in the incidental 
take permit (see, e.g., gingham and Noon, 1997). In fact, this 
minimization of impact is required by the ESA (1982) and clearly 
outlined in the HCP Handbook (USFWS and NMFS, 1996). If the appropriate 
mitigation is chosen and implemented in a timely fashion, the impact to 
the species in question can be minimized to the maximum extent 
practicable, thus justifying the issuance of an incidental take permit. 
However, many scientists have criticized the mitigation plans proposed 
in HCPs because they have often seemed arbitrary, based more on 
political and economic constraints than empirical data on the species' 
ecology, life history, and specific requirements (Beatley, 1994; 
gingham and Noon, 1997; Buchanan et al.,1997). Given the importance of 
mitigation for the success of HCPs, we focused our analyses on the 
scientific basis of mitigation measures proposed. HCPs that include 
more than one endangered species must mitigate for impact to all 
species included in the take permit. Therefore, because of the species- 
and plan-specific nature of mitigation measures, we considered each 
species within a plan as our unit for analysis.
7.2. Types of Mitigation Most Commonly Used
    We treated minimization of impacts (e.g., modifying construction 
and/or development at the site to minimize changes to the species or 
its environment) and avoidance of impact (e.g., working during the non-
breeding or inactive season) as categories of mitigation. Minimization 
and avoidance were by far the most common mitigation measures proposed 
(Figure 5; QH responses to SQ:E32-E42). Avoidance was proposed for 74 
percent of species for which permits were issued, and minimization of 
impact at site of development was proposed for 83 percent of species). 
Most mitigation efforts for a specific endangered species involve a 
combination of procedures. Thus, many of the less common mitigation 
measures (such as land acquisition, translocation, habitat restoration, 
etc.) are used in combination with strategies for minimization and 
avoidance of impact on the threatened species. The high reliance on 
avoidance and minimization is not surprising, as these are usually the 
easiest and least costly procedures to implement.

7.3. Quality of Data Used in Determining Specific Mitigation Measures
    The quality of data underlying particular mitigation measures 
proposed for each species was evaluated on a 4-point scale (a 
continuous quality index from 0, representing ``no data'' used to 
support the chosen mitigation procedure and its reliability, to 3, 
representing cases where data amply document that the proposed 
mitigation procedure is likely to be effective; QJ responses to SQ:E32-
E42). On average, the quality of data used to justify mitigation 
measures was relatively low (Figure 6); that is, all mitigation 
procedures were based on data ranked as 2 or below in our quality index 
(indicating that the data are, at most, moderately understood and 
reliable). The mitigation measures based on the highest data quality 
are conservation easements, land acquisition, avoidance, and 
minimization. Other measures such as translocation often lack data 
demonstrating the feasibility of the proposed actions. In general, HCPs 
seem to rely more on mitigation measures with higher quality scores and 
less on those with low scores (QI responses to SQ:E32-E42). However, 
there are some exceptions; for example, when habitat banks (payment of 
money into an account, which is then to be used to purchase land that 
is supposedly ideal habitat for the species threatened by the proposed 
activities) are used, they tend to be a major component of mitigation 
programs, yet this mitigation approach has one of the lowest scores on 
our data quality scale (Figure 6). Given the generally low quality of 
data underlying many mitigation plans in HCPs, their success is not 
assured and, if implemented as proposed, may be very close to a 
``guess'' in terms of curbing the impacts on the species.
7.4. How Well Mitigation Plans Address Threats to Endangered Species
    Judging the actual success of mitigation procedures would require 
long-term information on the success of HCPs. Because very few plans 
have been in place for more than 8 years, this is not an option. Hence 
we must rely on current indicators that mitigation measures are likely 
to be successful. For each of the species in our sample, we estimated 
the likelihood of success by answering two questions. First, we asked 
how often mitigation measures actually addressed the primary threat to 
the species in question. Second, we asked to what extent the proposed 
mitigation measures are likely to reduce the impacts of the primary 
threats. Whereas the USFWS is required to adopt mitigation and 
minimization measures that protect a species to the maximum extent 
practicable, our focus was more on whether scientific evidence was 
presented to substantiate that the best possible mitigation was being 
adopted.
    We found that, for the great majority of the species we examined, 
the mitigation procedures addressed the primary threat to the species' 
continued existence (85 percent; SQ:E44). However, the overall adequacy 
with which proposed measures addressed the primary threats varied 
tremendously among species (Table 11; SQ:E45). Overall, we found that 
for only 57 percent of the species in the sample did mitigation 
measures proposed in the HCP address the primary threat to the species 
to a degree considered ``sufficient'' or better. In other words, 
although HCPs most often identify the primary threat to the affected 
species, only a little more than half of the time do mitigation plans 
adequately address that threat.
7.5. Implementation of Mitigation Plans
    An important determinant of the success of mitigation is the 
adequate implementation of the proposed measures. For maximum success 
rates of mitigation plans, it is important that the procedures be 
implemented in a timely fashion and preferably before the population of 
an endangered species is severely affected by activities proposed in 
the HCP. We examined two factors that affect the implementation of 
mitigation plans: funding for the measures and the timing of mitigation 
efforts relative to ``take'' of the impacted species.
    Mitigation can be one of the most expensive steps in the 
development and execution of an HCP. Thus, it is important to determine 
the cost of the proposed measures, the source of funding for 
implementing mitigation, and the time period over which these funds are 
available. Under law, the plan for funding all expected mitigation 
measures should be outlined in the HCP; ideally the source of those 
funds should be determined a priori and not as the impact occurs in the 
course of development (we refer to the latter as a ``pay as you go'' 
funding program). We found that HCPs nearly always met these basic 
expectations: 98 percent of the HCPs outlined a priori the funding 
sources for the mitigation proposed (PQ:124), but only 77 percent had 
significant funds set aside to pay for mitigation at the onset of the 
HCP (PQ:125).

    Another critical aspect of mitigation is the timing of proposed 
measures relative to impact. It is important that mitigation measures 
are started at the time of take or preferably before any take occurs, 
thus increasing the probability that unsuccessful mitigation procedures 
can be detected and corrected. In contrast, if most take occurs before 
mitigation measures are put into effect, chances of adaptively 
improving on failed mitigation efforts are reduced. We found that take 
occurred before mitigation in a substantial number of cases (23 percent 
of the species examined; PQ: 126).
7.6. The Clarity and Effectiveness of Monitoring Programs
    The first question to ask about monitoring is simply whether or not 
a clear monitoring program was outlined in the plan. We focused only on 
effectiveness monitoring, as opposed to compliance monitoring (see 
Table 1). An answer of ``no'' to this question does not necessarily 
mean that no monitoring is going on for the pertinent species, but 
rather that the text of the plan does not provide sufficient 
information or sufficiently explicit information to document that 
indeed a scientific monitoring program was part of the plan. Of course, 
a ``no'' could also mean that there was absolutely no monitoring 
whatsoever. For only 22 of the 43 plans was there a clear description 
of a monitoring program (PQ:60). The next obvious question concerns the 
effectiveness of those 22 clear monitoring programs we identified--in 
other words is the monitoring program designed in such a way that it 
would allow the success of the HCP to be evaluated? For this question 
the attributes of monitoring required for ``evaluation of success'' 
depended on the particular plan and the threats being mitigated, and 
they could involve factors such as number and location of sample sites, 
frequency of sampling, and nature of data recorded. Again, a ``no'' 
does not imply that monitoring in the field is necessarily 
insufficient, only that the information presented in the plan and 
associated documents did not provide any confidence that the monitoring 
could evaluate success. Under this interpretation, only 7 out of 43 
plans had clear monitoring programs that were sufficient for evaluating 
success (PQ:167). Because our criteria for answering ``yes'' to the 
questions about clear and sufficient monitoring relied on what was 
actually included in the documents, the reality may not be as gloomy as 
the numbers above suggest. If the monitoring programs were consistently 
a part of all HCPs, then HCPs on average would be better, and the 
monitoring programs themselves would be more likely to be 
scientifically supported because of their role in planning. We delved 
deeper into the data to determine exactly what was missing with respect 
to questions about particular species and whether any class of plans 
seemed to stand out as having better than average treatment of 
monitoring.
    Monitoring can have more specific goals than evaluating a plan's 
success. For example, monitoring could be implemented to estimate take 
(SQ:F5) or population status (SQ:F31) or to evaluate mitigation success 
(SQ:F57). Our more refined analysis of monitoring according to take, 
status, and mitigation echoes the earlier conclusion about generally 
poor monitoring. In particular, when broken up into the components of 
``take, status, and impact of mitigation,'' monitoring was found to be 
adequate for any component in 65 percent of the plans at most (Figure 
7).
    Adaptive management and monitoring are clearly interconnected 
because adaptive management requires monitoring data with which to 
evaluate the success of alternative management strategies. Although 
most plans did not include provisions for adaptive management, those 
that did were also significantly more likely to include clear 
monitoring plans (cross analysis of PQ:60 and PQ:61). In particular, 88 
percent of the plans with provisions for adaptive management had clear 
monitoring plans, whereas less than 30 percent of the remainder had 
clear monitoring plans (2 = 14.93, P = 0.001).
    Many more detailed questions could be asked about monitoring, but 
so few plans were judged to include clear or sufficient monitoring 
programs, that sample sizes are small. Moreover, the major results are 
clear with the most straightforward analyses:
    1. Barely 50 percent of the plans contain clear monitoring 
programs, and they rarely include monitoring programs that are both 
clear and sufficient for evaluation of a plan's success.
    2. The provision of adaptive management in plans was often 
associated with clear monitoring programs.

    Monitoring should be a key component of an HCP because there is no 
way to evaluate the performance of an HCP without adequate monitoring. 
Our data compellingly show that monitoring programs are often either 
poorly described or nonexistent within the HCPs themselves and their 
associated documents. It might be argued that this lack of description 
does not matter as long as sufficient monitoring is implemented ``on 
the ground'' in the real world, but if the HCPs fail to spell out the 
details of monitoring programs, the adequacy of monitoring cannot be 
scientifically evaluated.
        8. general patterns and factors shaping science in hcps
    Above we have presented analyses of each of five stages of HCP 
planning (status, take, impact, mitigation, and monitoring). Here, we 
investigate the interactions between stages of the HCP process and test 
for patterns and principles that connect and synthesize the different 
aspects of the HCP planning process. In particular, we focus on the 
cumulative effects for HCP adequacy of several factors (e.g., 
differences between single-species and multiple-species HCPs) that are 
likely to indicate trends in future HCP science. In this section, we 
have for the most part used species as the sampling unit and used as 
dependent variables answers to questions regarding the overall quality 
of each stage of analysis (SQ:B42-43, C32-33, D46-47, E48-49, F79-80). 
We first present results showing overall patterns in adequacy and then 
discuss in more detail the importance of different aspects of species 
biology and plan characteristics for the scientific rigor of HCPs.
8.1. Multivariate Analyses of ``Adequacy'' Rankings and Correlations 
        with Attributes of Plans
    In general, the earlier stages in HCP planning are the best 
documented and best analyzed (Figure 8). In particular, species status 
is often well known and adequately analyzed, whereas the progressive 
analyses needed to assess take and impact are more poorly done or 
lacking; inadequate assessment of impact is especially common. We next 
consider what factors may explain the range of adequacy seen across 
different HCPs and different stages of analysis. Factors that we 
considered in our analyses were those that seemed most likely to 
influence the quality of HCP analysis, plus those that may indicate 
whether changes in HCP formulation will have desirable results. For 
example, both multispecies and large-area HCPs have been advocated, and 
thus we asked whether the area covered by an HCP or the number of 
species covered influenced the quality of biological analyses in HCPs. 
In particular, we tested for the effects of the following seven 
variables:
     Area covered by the Incidental Take Permit (PQ:28)
     Plan duration (PQ:4 minus PQ:3)
     Existence of an approved recovery plan (SQ:A8).
     Single-species vs. Multispecies Plan (PQ:7)
     Habitat-based vs. Species-based Plan (PQ:8)
     Taxon (SQ:A2)
     Date of permit (PQ:A3, categorized as Early [1983-1994] or 
Recent [1995-1997])
    To test for effects of these variables on each of the five HCP 
planning steps, we performed a series of MANOVAs using standardized 
transformations of all variables. We first performed separate, one-way 
MANOVAs using each of the above variables, with the five ratings of 
analysis quality as dependent variables (SQ:B43, C33, D47, E49, F80). 
Next, we performed two multiway MANOVAs. The first used all seven 
independent variables; the second included only the five independent 
variables with one or more significant or near-significant (P 
(number of species in plan)). Table 12 presents the overall results 
from these tests. In addition to these overall analyses, we also 
conducted a variety of other tests and comparisons to elucidate the 
effects of each factor on HCP quality. Below, we separately discuss HCP 
adequacy in light of each of these causal factors.

8.2. Correlations Between Scientific Quality and Area or Duration of 
        Plans
    The promotion of large-scale HCPs incorporating ``ecosystem 
management'' by Secretary of the Interior Bruce Babbitt and the USFWS 
is viewed by many biologists as a positive trend (Noss et al., 1997). 
In addition, an increasing number of large-scale HCPs are region-wide 
programs dealing with single focal species. Along with promulgation of 
these very large-scale HCPs, there is also an effort to expedite the 
development and approval of the smallest HCPs; the HCP Handbook (FWS 
and NMFS, 1996) suggests both (1) that USFWS and NMFS encourage state 
and local governments and private landowners to undertake regional HCPs 
and (2) that ``low effect'' HCPs will be expedited and simplified as 
much as possible. ``Low effect'' HCPs are usually of small area and are 
defined as having minor or negligible effects on listed or candidate 
species and on other environmental resources. There has been a great 
proliferation of small HCPs, especially HCPs concerning the golden-
checked warbler in Travis County, Texas, which account for 36 percent 
of all currently approved plans.
    Our univariate analyses of overall adequacy provide some evidence 
that the area covered by a plan is related to four aspects of species-
based planning--status, impact, mitigation, and monitoring (Figure 9)--
but the lack of significant results from multiway MANOVAs suggests that 
these results are weak (Table 12). Looking toward the future, we 
cautiously share the general view that larger scale HCPs should be 
encouraged, but past HCPs lend no evidence that the largest HCPs will 
necessarily be ``better'' scientifically.
    Among our 43 sample HCPs, none permitted before 1995 exceeded 30 
years duration; since 1995, a number of plans have been signed whose 
duration exceeds 50 years. These increases in plan duration have 
important implications for land-use planning by the permittee and for 
the likelihood of plan success from a biological standpoint. Longer 
plans may be advantageous for permit holders because they relieve the 
threat of changes in regulations governing land use. Likewise, plans of 
longer duration may be advantageous to species if they result in more 
careful research, more flexibility in take activities, or greater 
protection or enhancement of habitat. On the other hand, a 100-year HCP 
that lacks provisions for adjustments in land use practices in the face 
of declines in focal species could result in severe biological losses 
with no regulatory means to avoid them.
    Our MANOVA results suggest that HCP duration had contrasting 
effects on the three stages of analysis--the analyses of status, take, 
and monitoring (Table 12). For example, plans of longer durations were 
characterized by higher quality status assessments, but lower quality 
take assessments. These results indicate that the effects of plan 
duration are complex--neither consistently increasing nor decreasing 
the quality of science in support of the assessments.
8.3. The Existence of Recovery Plans and Scientific Adequacy
    Under the Endangered Species Act (ESA), the Federal Government is 
charged with drafting recovery plans for listed species. The 
development of these plans entails the collection and collation of 
detailed information related to the abundance, distribution, habitat 
needs, and life history of a species, the identification of primary 
threats to the species, and formulation of management prescriptions 
that will result in the de-listing of the species. Although, for a 
variety of reasons, recovery plans have not been established for most 
listed species (Tear et al., 1993), it seems clear that recovery plans 
ought to provide much of the information and management context needed 
for the formulation of good HCPs. In particular, it has been argued 
that recovery plans can provide a global context for activities 
proposed under an HCP, particularly through assignment of critical 
habitat needed for species recovery (USFWS and NMFS, 1996; National 
Audubon Society, 1997).
    Of the 97 treatments of species in our sample of HCPs, 59 had 
recovery plans established prior to the development of the respective 
HCPs. In some, the text describing these attributes of species closely 
match the wording within the recovery plans themselves. Specific 
mitigation techniques, such as the design and placement of artificial 
nest boxes for red-cockaded woodpeckers (Picoides borealis) or the 
translocation of Utah prairie dogs (Cynomys parvidens), were borrowed 
directly from recovery plans in the development of HCPs. Discussions 
with HCP applicants and USFWS officials confirm this impression. 
Typically, when a recovery plan exists, it is used extensively by 
applicants in developing an HCP.
    However, in contrast to expectations, there was evidence that 
adequacy of HCPs was negatively linked to the existence of a recovery 
plan (Table 12; Figure 10). In fact, using our yes/no delineations of 
adequacy, the trend was in the opposite direction for three of the five 
steps of HCP analysis (Table 13); a species was more likely to have 
adequate information included in its HCP if it did not have a recovery 
plan.

    We also asked whether there was a relationship between critical 
habitat designation for a species and the quality of HCP analyses for 
those species that did have recovery plans. As for recovery plans, we 
found no evidence that adequacy of HCPs was positively linked to the 
existence of a critical habitat designation (Table 13). Again, the 
trend was in the opposite direction for each of five categories of 
information collected from HCPs. On average, a species was more likely 
to have adequate information included in its HCP if it did not have a 
critical habitat designation.
8.4. Quality of Different Types of HCPs
    Treatment of multiple species in the same HCP is appealing to both 
landowners and the government because it can provide a single planning 
process with which to address simultaneously all of the potential rare 
species issues for an area. Furthermore, by obtaining incidental take 
permits for many listed and currently unlisted species, multispecies 
HCPs can provide far higher assurance to landowners that they will not 
encounter future impediments to development plans. This assurance is an 
especially important incentive to landowners in areas with high 
densities of proposed and candidate species (e.g., California and 
Florida). Increasing the number of species (from single species plans 
to multispecies plans) tended to increase the quality of impact 
assessment, but had no impact on all other assessments (Table 12). A 
second way of including many species under the mantle of HCP planning 
is through ``habitat-based'' HCPs. For example, the NCCP program in 
southern California (see website for a narrative description of this 
plan) takes this approach--species are grouped according to the habitat 
communities they require, and planning relies in part on the assumption 
that adequate protection for each species can be gained through 
protection for each habitat type. In habitat-based plans, information 
about habitat and fragmentation, and trends in those habitat 
characteristics, is used as the primary indicator of species status. 
Theoretically, information about habitat quality and quantity can be 
related in a rigorous, scientific manner to population status for a 
particular species, and in this way, habitat characteristics can 
legitimately be used as a proxy for missing information on population 
status. Overall, our MANOVAs show positive effects of habitat-based 
planning on the scientific quality of HCPs (Table 12; Figure 11). For 
example, one-way analyses and comparisons of yes/no adequacy rating 
provide evidence of positive effects on status, take, and monitoring 
assessment. Taken together, these results suggest that habitat-based 
planning has not resulted in lower scientific quality in HCPs and may 
in fact result in better, more scientifically defensible, planning 
efforts.
8.5. Scientific Quality in Relation to Taxonomy and Date the HCP Was 
        Signed
    Major taxonomic groups differed strongly in how well or poorly 
planning was done, and also how these differences are manifested at 
different planning stages. We divided the species covered in our HCPs 
(except for the one fish species) into six taxonomic groups. Overall, 
taxonomic group was strongly related to adequacy of planning (Table 
12), and these differences are also evident at three of the five stages 
of analysis: impact, mitigation, and monitoring (Table 12; Figure 12). 
Surprisingly, taxonomically determined differences in adequacy ratings 
seem to be much more easily explained by the difficulties posed by 
biology than they are by the political profiles or universal appeal of 
different groups. For example, plants had the most effective monitoring 
programs, probably as a result of their sessile--and thus easily 
studied--lifestyles. In contrast, mammals scored low with respect to 
impact assessment, monitoring, and mitigation. This pattern is probably 
due to the difficulty of obtaining good estimates of abundance, 
population trends, and demography for such mobile and largely nocturnal 
animals. Birds and herps (reptiles and amphibians) had intermediate 
ratings for each of the steps of analysis (Figure 12).
    The date of issuance of the incidental take permits for our 43 
focal HCPs ranged from a single plan in 1983 (San Bruno Mountain, the 
first HCP completed) to 25 plans in 1996-97. For several stages of 
planning, and for overall quality, more recent plans are better than 
older ones (Table 12). Perhaps the most biologically important aspect 
of this improvement is in mitigation analysis; before 1995, only 10 
percent of species covered included ``adequate'' analysis of 
mitigation, whereas from 1995-1997, 59 percent of species were 
adequately analyzed. Similar improvements have occurred in all other 
steps of analysis, indicating that HCPs are--as their advocates have 
claimed--becoming more rigorous scientific documents.

       9. conceptual challenges to the quality of science in hcps
    Many of the gaps in HCP science reflect an absence of basic 
natural-history information, an absence of straightforward monitoring 
protocols, or inadequate reporting of data, but the HCP process is also 
challenged by subtler scientific issues, which are not easily remedied 
by greater care and thoroughness. The three conceptual hurdles we found 
to be most widespread were a failure to appreciate the potential 
complexity of assessing impact, the neglect of occasionally pertinent 
ecological theory, and violation of the precautionary principle in 
habitat planning.
1. Take Is Not the Same as Impact
    As a first approximation, ``impact'' is clearly proportional to 
take, but simply reporting the number of individuals removed by an 
activity does not estimate the impact of this take on a species' 
viability or potential for recovery. At a minimum, there should be some 
indication of what proportion of a population (locally and globally) 
corresponds to a given take and of whether the take represents a loss 
from part of the species range that is a major source of population 
growth and vitality (as compared to a sink population, see Pulliam, 
1988, and Wootton and Bell, 1992). In an ideal world one would perform 
some sort of population viability analysis to assess the impact of take 
on a population's viability, but data sufficient to conduct these 
analyses are scarce, and the analyses themselves conjure up an entire 
series of additional problems. However, for some cases involving well-
studied species and large areas of land that comprise major portions of 
a species' range, some sort of viability analysis would be worthwhile 
(and indeed some HCPs do include population viability analyses). A more 
down-to-earth question would be to ask of any given take, what is lost 
beyond simply numbers? Is a genetically unique subpopulation lost? Is a 
substantial portion of genetic variability lost? Is a unique 
combination of species and habitat lost? Preparers of HCPs cannot be 
faulted for their limited assessments of take because the HCP handbook 
gives very little guidance on this matter. This is an area where a 
combination of population biologists and USFWS scientists could work 
together to develop some more specific guidelines.
9.2. The Use of Quantitative Methods and Ecological Theory in HCPs
    Ecologists and conservation biologists have developed a large body 
of theory aimed at predicting impacts of management on populations and 
species (Burgman et al., 1993; Meffe and Carroll, 1994). The 
conservation literature abounds with suggestions that theory can lead 
to sound management decisions. We sought both to test and to refine 
this statement, using two related analyses. First, we determined the 
extent to which HCPs used quantitative tools and ``theory'' to assess 
impacts and mitigation strategies. We divided ``theory'' into ideas and 
methods arising from six different subdisciplines: population genetics, 
population ecology, behavioral and physiological ecology, island 
biogeography, community ecology, and ecosystem ecology. As an example, 
an HCP applying genetic theory might estimate inbreeding depression 
resulting from reduced population sizes related to the planned take. In 
the same HCP, the effect of take on a species might be estimated from a 
population model incorporating the influence of habitat loss on 
population size. We also determined the type of data used to bring a 
theory to bear on impact or assessment and the quality or 
appropriateness of the use of theory.
    We found that most HCPs did not use theory to make assessments 
about the impacts of take or to support mitigation strategies. Of the 
97 species-plan examples we examined, the six different categories of 
theory were applied to impact analysis between 8 and 44 times (for some 
species more than one variety of theory was applied) and to mitigation 
analysis between 8 and 50 times (Table 14; QB responses to SQ:D1-6 and 
E1-6). Genetic theory was used least, and theory related to population 
ecology was applied most often. When theory was used, it most often 
took the form of a quantitative statistical analysis; such analyses 
were clear and relevant about 60 percent of the time and inadequate in 
the remaining cases. None of the HCPs we analyzed used more 
sophisticated theories--quantitative models--to project the impacts of 
take on populations. Such models were also used very infrequently (8 
cases total) to project the success of mitigation and minimization 
efforts. It is important to emphasize that we did not score HCPs as 
inadequate simply because they failed to use theory. We remark on the 
absence of theory in HCPs largely as a commentary on a major lack of 
connection between academic conservation biology and conservation 
practice.
9.3. Uncertainty and the Precautionary Principle
    In many fields of environmental analysis, uncertainty is 
increasingly recognized as the universal background against which all 
decisionmaking takes place. This tenet and its consequences have become 
known as ``the precautionary principle.'' This principle, long applied 
in fields as diverse as engineering and economics, holds that in the 
face of poor information or great uncertainty, managers should adopt 
risk-averse practices. That is, management actions should be chosen 
such that there is a correspondence between the uncertainty or lack of 
information underlying the decision and the size of the potential 
negative impact resulting from that decision. Adoption of these ideas 
can be formal or informal. That none of the HCPs we reviewed made 
explicit mention of the precautionary principle does not mean that the 
writers and evaluators of these plans did not use risk-aversion 
criteria in formulating HCP strategies. If HCPs adhere to the ideas of 
the precautionary principle, we would expect to see four clear 
patterns:
    1. As available information becomes increasingly scarce or 
uncertain, HCPs should be of shorter duration and/or cover a smaller 
area.
    2. As available information becomes increasingly scarce or 
uncertain, HCPs should increasingly avoid impact or be restricted to 
reversible impacts.
    3. In all cases, but particularly when mitigation success or take 
levels are highly uncertain, mitigation measures should be applied 
before take is allowed.
    4. HCPs should include contingencies based on the impact of take 
and whether or not mitigation efforts succeed. Such contingencies can 
only be applied in the context of adequate monitoring. Adaptive 
management in HCPs would provide for various management alternatives 
according to various future conditions.
    One way of assessing the extent to which a precautionary approach 
is adopted in HCPs is to contrast strategies of mitigation for cases 
where data were judged to be sufficient and insufficient. For example, 
if there are insufficient data regarding the impact of take, then one 
might expect avoidance of take to be more commonly pursued than if 
there are sufficient data regarding impact. This was not the case. In 
fact, the precautionary approach of avoidance was either equally likely 
or even less likely where data were insufficient than where they were 
sufficient. Another precautionary approach is to minimize take, and 
again this precautionary strategy was either equally likely or even 
less likely to be pursued when data were lacking (Figure 13). Finally, 
according to our rating scheme, the most precautionary scenario would 
involve a mitigation approach that clearly minimized impact to the 
maximum possible extent. It is worth noting that this line of reasoning 
is not legally required of USFWS but rather is a more stringent 
scientific standard for mitigation than current law dictates. We found 
many HCPs that did pursue such a cautious approach, but it was no more 
likely when data were insufficient than when data were adequate (Figure 
13). In several HCPs, adaptive management is mentioned (even if not 
clearly developed) as a component of the management scenario. One might 
think these instances would be most likely where data were lacking. 
Ironically, the opposite is true--plans for which the data regarding 
mitigation reliability were judged insufficient were significantly less 
likely to include a discussion of adaptive management than were plans 
with adequate data: 45 percent of the 38 cases with insufficient data 
(SQ:E48) included a discussion of adaptive management (PQ:61), whereas 
77 percent of the 48 cases with adequate data did so 
(2 = 9.5, P 

10.1. Standards for a Scientifically Based HCP
    Ideally an HCP would be based on knowledge of the basic population 
biology of all species covered in the incidental take permit, their 
ecological requirements, and a quantitative estimate of the impact of 
take on population viability. The plan would evaluate the cumulative 
effects of multiple plans and activities on covered species, as well as 
potential interactions among effects. Given limited resources and 
information available during HCP development, these standards will be 
difficult to achieve. Nevertheless, we need standards toward which 
planners can strive and against which HCPs can be measured.
    The foundation of any HCP, and its supporting documents, must be 
data. Assertions such as ``take will be 54 animals'' do not constitute 
data. Data must exist, be accessible, and be explicitly summarized in 
the HCP in order to be scientifically credible. The absence of any of 
these three ``ingredients'' precludes a scientifically based HCP. 
Existence of the data is not sufficient; they must be included in the 
HCP and available for analysis. It is still possible for scientists to 
debate how best to use or interpret data, but there is no question that 
the data must exist in the first place. Data standards should be 
formalized: all large-area HCPs (or HCPs that cover a major portion of 
a federally listed species' range) should include an inventory and 
summary of available data on each covered species, including its 
overall distribution, abundance, population trends, ecological 
requirements, basic life history, and the nature of the causes of 
endangerment. Smaller HCPs can simply point to other HCPs or readily 
available data sources and inventories. All sources of data should be 
formally documented. An explicit acknowledgment describing what data 
are not available should also be included to allow a more accurate 
assessment of uncertainty and risk in the planning process. In order to 
provide more concrete suggestions, we consider status, take, impact, 
mitigation, and monitoring separately.
            Status
    Adequate determination of status requires that data on 
distribution, population trends, habitat needs and trends, and threats 
be examined. The analysis should be both local (within the HCP) and 
global (so that whatever is going on within an HCP can be put in a 
biological context). Determining status requires knowledge of a 
substantial amount of natural history--the threats to a species cannot 
be identified without considerable knowledge of that species' natural 
history. Similarly, population trends should be based on more than just 
a few years of census information.
            Take
    Take can generally be assessed either by census of a population and 
prediction of the portion that will be lost or by establishment of 
relationships between habitat area (and quality) and expected number of 
individuals contained within that habitat, which in turn allows one to 
predict reductions in population due to reductions in habitat. An 
explicit quantitative model should link the activity for which the HCP 
is initiated to loss of individual organisms, if at all possible.
            Impact
    Impact does not equal take. This simple fact must be emphasized, 
because it is neglected or overlooked in a large portion of existing 
HCPs. Measurement of impact on population or species viability requires 
data on population processes both within and outside of the HCP 
(minimally the same data discussed for ``status''). If an HCP comprises 
a large area and a substantial portion of a species' range, then some 
attempt should be made at developing a ``model'' (explicit, but not 
necessarily mathematical). This model should link take to key 
population processes. For example, taking 40 percent of a global 
population from a source population for the species' whole range is 
very different from taking 40 percent of a global population from a 
sink area. Similar arguments can be made for genetic and evolutionary 
impacts. Careful thinking about impacts can alter how one goes about 
summarizing take. For example, the types of individuals taken may be as 
important as their numbers--the removal of young reproductive 
individuals usually has the greatest impact on population growth and 
recovery, so avoidance or preferential take of this age class will 
profoundly influence the impact of the take. This possibility 
demonstrates that the quantification of take must be conceptually 
linked to insights about the population-level impacts of take.
            Mitigation
    The details of proposed mitigation measures must be explicitly 
described and accompanied by data regarding their effectiveness. 
Documenting effectiveness requires information on two levels. First 
specific effectiveness of the proposed measure should be documented. 
For example, if transplantation is proposed, what proportion of the 
transplanted individuals survive to reproduce? Second, the more general 
effectiveness of the mitigation measures in minimizing impact must be 
analyzed, so the outcome of mitigation actions must be linked to 
population processes of the target species.
            Monitoring
    Without adequate and appropriate monitoring, the success of plans 
cannot be evaluated. The principal criterion for determining the 
adequacy of monitoring should be the ability of a monitoring plan to 
evaluate the success of mitigation measures and the consequent effect 
on protected species. Monitoring frequencies, methods, and analyses 
should be designed to permit appropriate modification of mitigation 
measures in response to species status and should be explicitly 
documented in the HCP. Monitoring data should be incorporated into 
centralized data bases to facilitate access to information on the 
overall status of species and to facilitate assessment of cumulative 
impacts. Even if monitoring does not lead to rectifying mistakes in its 
associated HCP, it can furnish information from which future HCPs can 
be designed so that mistakes are not repeated.
            Peer Review
    Finally, HCPs should be open to peer review (review by scientists 
specializing in conservation biology). Although HCPs are the property 
and responsibility of the applicant, they concern protection of public 
resources (endangered and threatened species). Thus, the data, 
analyses, and interpretations made regarding status, take, impact, 
mitigation, and monitoring should be reviewed to ensure that the 
scientific foundations of the plans are sound. Peer review is already a 
standard for science in other regulatory arenas and should be 
incorporated into the HCP process. The need for peer review is not 
universal; small HCPs without large irreversible impacts require less 
scrutiny than large HCPs of long duration and broad ecological impacts.
10.2. Scientific Approaches to a Paucity of Data
    The standards we have defined are difficult, if not impossible, to 
achieve because of a current paucity of pertinent data, but HCPs are 
not therefore fundamentally unscientific. They must simply use existing 
data in a scientifically credible fashion. Before we discuss 
recommended approaches to habitat conservation planning with data 
shortages, we must address two more general issues about data.
    First, when pertinent data are lacking, the top priority before 
developing an HCP should be to acquire those data. How the data are 
collected, and by whom, is an issue that will have to be resolved among 
resource agencies such as USFWS and HCP developers, but there is no 
surer way to garner scientific credibility than to use data. When 
collection of all desirable data is not practicable, then the planning 
process should proceed with caution commensurate with the anticipated 
risks and uncertainties.
    Second, when critical data are absent, an HCP should not be 
initiated or approved. It would be wrong to call the HCP process 
scientific, or even rational, if there were no option to halt the 
process in the absence of crucial information. We need not have all the 
desired data to produce an HCP--the planning process would be paralyzed 
because data will always be determined to be insufficient. Rather, the 
absence of crucial data for certain types of HCPs must be in principle 
a possible reason for not allowing take until the problem has been 
corrected. In general, the greater the impact of a plan, (e.g., plans 
with high impact are those with irreversible impacts, covering a large 
area or multiple--gaps in critical data should be tolerated.
            Shortage of Data on Status
    When data on status are few, we must err on the conservative side. 
What must be avoided is the assertion of healthy status with few 
supporting data.
            Shortage of Data on Take
    For small-area HCP's (which we assume will involve small takes) an 
absence of data on take is acceptable, but for HCP's covering vast 
expanses of land, take must be quantitatively assessed; if it is not, 
the HCP process should not be entered into. This is a standard 
principle of risk assessment--when the hazards are large, the 
requirements for safety assurances become more severe. When take is not 
the most pertinent quantity to estimate (as when something like water 
quality for salmon is subtly degraded) but rather impacts are the 
issue, a careful assessment of impacts can replace attention to precise 
take numbers.
            Shortage of Data on Impact
    A scarcity of data on impacts of take can best be handled by best- 
and worst-case scenarios. Even without quantitative data, biologists 
can usually construct a worst-case scenario.
            Shortage of Data on Mitigation
    If no information validates mitigation as effective, then 
assessment of mitigation should precede any take. In addition, 
monitoring must be especially well designed in those cases where 
mitigation is unproven.
            Absence of Explicit Description of Monitoring
    Careful monitoring is in some cases a solution to data shortage. 
For example, when the effectiveness of mitigation is uncertain, 
monitoring can determine that effectiveness, but only if it is well 
designed (for example, as a before-and-after study of impact and 
control). When data are few, explicit measures are needed for using the 
information from monitoring to alter management procedures. That is, a 
precise criterion for ``mitigation failure'' must be specified, as well 
as procedures for adjusting management when that criterion is 
recognized. The key point here is that the existence of monitoring is 
not a solution to data shortage--a quantitative decision process must 
link monitoring to adjustments in management.
            Responding to Uncertainty
    In addition to the specific recommendations given above with 
respect to lack of data, there are general scientific principles for 
dealing with a lack of information. First, the precautionary principle 
argues that, in the face of poor information, risk-averse strategies 
should be adopted. That is, when data are extremely poor, HCP's should 
be limited to small areas or short duration. Scarce information 
requires particular care about activities that are irreversible 
(building a shopping mall as opposed to logging), and monitoring 
becomes more crucial for assessing the well-being of threatened 
species. Mitigation measures should be applied before take is allowed, 
so that their effectiveness can be evaluated. Perhaps the simplest 
approach would be to put in place scientific advisory panels for plans 
that lack information and have both long durations and large impact 
areas. This panel could advise on the development of the plan and its 
implementation; scientists from recovery teams would be logical choices 
as a starting point.
10.3. Policy Measures for Attaining More Effective Science in the HCP 
        Process
    The goal of our analysis was to evaluate the role of science in the 
HCP process. In this section we provide a set of recommendations for 
improving its quality and effectiveness. We recognize that science is 
not the primary motivation for HCPs and that they must address 
multiple, often conflicting objectives. They have political, economic, 
and social objectives as well as scientific ones. We also understand 
that Section 10 of the Endangered Species Act does not prescribe any 
scientific standard upon which the approval or disapproval of HCPs is 
to be based. Section 7 requires only that decisions be based on the 
``best scientific and commercial data available.'' While acknowledging 
these dimensions, we have nonetheless chosen to focus our study on 
evaluating how science is being used in the HCP process. Our assessment 
leads to the following recommendations:
    1. We recommend that greater attention be given to explicit 
scientific standards for HCPs, but that this be done in a flexible 
manner that recognizes that low impact HCPs need not adhere to the same 
standards as high impact HCPs. A formalized scheme might be adopted so 
that small HCPs draw on data analyses from large HCPs, assuring that 
applicants are not paralyzed by unrealistic demands.
    2. For the preparation of individual HCPs, we recommend that those 
with potentially large impact (those that are large in area or cover a 
large portion of a species' range) include an explicit summary of 
available data on covered species, including their distribution, 
abundance, population trend, ecological requirements, and causes of 
endangerment. HCPs should be more quantitative in stating their 
biological goals and in predicting their likely impact on listed 
species. When information important to the design of the HCP does not 
exist, it may still be possible to estimate the uncertainties 
associated with impact, mitigation, and monitoring, and to still go 
forward, as long as risks are acknowledged and minimized. Flexibility 
can be built into mitigation plans so that managers can be responsive 
to the results of monitoring during the period of the HCP. When highly 
critical information is missing, the agencies should be willing to 
withhold permits until that information is obtained.
    3. For the HCP process in general, we recommend that information 
about listed species be maintained in accessible, centralized 
locations, and that monitoring data be made accessible to others. 
During the early stages of the design of potentially high-impact HCPs 
and those that are likely to lack important information, we recommend 
the establishment of a scientific advisory committee and increased use 
of independent peer review (review by scientists specializing in 
conservation biology). This policy should prevent premature agreements 
with development interests that ignore critical science.
    To pursue these measures will require major agency initiatives or 
policy alterations. First, the coordination of efforts to protect and 
recover threatened and endangered species must be improved. This 
coordination will be essential to the accurate estimation of the 
cumulative impacts of various management efforts for threatened and 
endangered species. The data pertaining to these management activities 
(e.g., HCPs, recovery efforts on Federal land, safe-harbor agreements 
on nonFederal land) should be organized into a single distributed data 
base system. These data must be accessible to agency and academic 
scientists for analysis and evaluation of the effectiveness of HCPs and 
recovery efforts. Better coordination and accessibility of scientific 
examinations of endangered species recovery does not require any 
legislative change, but it would require a funding commitment to put a 
centralized data base in place. Frankly, we think that centralized and 
readily accessible data on endangered species could do for species 
protection what centralized and accessible data on criminals and 
outstanding warrants has done for public safety protection. Surely, if 
we can do this for law enforcement, we can also do it for environmental 
protection.
    Second, both academic and agency scientists should become more 
involved in the HCP process, for example through encouragement of peer 
review and the establishment of advisory committees. Recovery plans are 
currently peer-reviewed, and the culture to obtain such review already 
exists in the pertinent government agencies.
    Last, we encourage USFWS and NMFS to conduct their own review of 
the HCP process from the perspective of identifying mechanisms for 
making the job of their agency scientists more clearly defined. This 
process could entail revision of the HCP handbook, pushes for better 
data access, and institutional commitment to peer review. The HCP 
process need not compromise the quality of its science just because it 
must balance science and negotiation with development interests. 
Clearly, it could sharpen the light cast by science if the guidelines 
for scientific input were improved. Reference to data, peer review, and 
significant adaptive management are too often absent from the HCP 
process. To remedy these deficiencies will require more resources. The 
USFWS is currently being asked to do too much with too few resources in 
this HCP process.
                            acknowledgments
    We thank NCEAS and the American Institute of Biological Sciences 
(AIBS) for financial support of this project and the USFWS for a heroic 
review of our data base under intense time pressure. Michael Bean and 
Hilary Swain provided two rounds of comments and advice that were 
invaluable. Jim Reichman and Frank Davis allowed (and even encouraged) 
hordes of students to overrun NCEAS and out of chaos produce these data 
syntheses. Most importantly, the staff at NCEAS (Marilyn Snowball, 
Shari Staufenberg, John Gaffney, Kristan Lenehan, and Matt Jones) faced 
the chaos of this project with good humor and provided enormous help at 
all stages (travel, logistic support, and computers).
                                 ______
                                 
     Statement of Dennis D. Murphy, Professor, University of Nevada
    The science that is being used to inform decisions under the 
Federal Endangered Species Act is a dynamic science. One would be hard-
pressed to find a more combative and constructive exchange in 
conservation biology than that between supporters of the delisting of 
grizzly bear populations in our northern Rocky Mountains and their 
opponents. Both sides have mustered compelling technical arguments to 
make their politically opposed cases. Our understanding of bears and 
their biology has grown immensely around the debate. Likewise, both 
science and stewardship techniques have contributed to saving the 
California condor and black-footed ferret, and brought the peregrine 
falcon and bald eagle back from the brink of extinction. Moreover, one 
needs to look no further than to the Fish and Wildlife Service's 
recovery plans for the desert tortoise and northern spotted owl to find 
pathbreaking analysis and application of cutting edge concepts from 
population biology. These examples suggest that science is at the 
center of our efforts to save biodiversity.
    But, are these examples the exception or the rule? When it comes to 
science and the Endangered Species Act, unfortunately, they are the 
exception. Most of the recovery plans for our listed species lack even 
the most spare description of the mechanics by which endangered and 
threatened species perpetuate themselves. By and large, we know 
vanishingly little about our species at risk and how realistically we 
might attempt to save them. While that state of affairs is lamentable, 
it is not unexpected, since after all academic scientists are just now 
developing the tools necessary to better understand the population 
dynamics of species, and to predict with some accuracy their likely 
fates. Pertinent to this hearing is another suite of species which we 
may have lost the opportunity to save species that would have benefited 
from good science.
    Many species are on insidious or precipitous declines because the 
agencies empowered to save them have not used available knowledge and, 
frankly, common sense, to engineer conservation responses to clear and 
present dangers. The unfortunate Houston toad provides a poignant 
example. One of the earliest species listed under the 1973 Act, it has 
continued its unbroken tumble toward disappearance for two and a half 
decades. Application of reliable science might well have saved it. A 
flawed hypothesis about the habitat factors that support the species, a 
lack of responsive studies in the face of obvious declines, and poorly 
designed monitoring schemes have combined with land development to push 
the listed species toward extinction. The Houston toad, it appears, 
will be lost.
    The diminutive quino checkerspot butterfly offers a similar and 
accelerated story. Back when the Houston toad was being conferred 
protection under the Act, the checkerspot may have been the most 
abundant butterfly in coastal Southern California. Within a decade 
development, drought, and exotic plant invasions appeared to have 
eliminated the species entirely. I petitioned the Fish and Wildlife 
Service to list the species in 1988, but rather than respond with the 
simples of science, basic surveys to confirm the butterfly's fate, the 
agency failed to act. When amateur lepidopterists rediscovered the 
butterfly 6 years later, a moratorium on new listings was on. Fully 9 
years elapsed between petition and listing, and 11 years to a first 
recovery team meeting. The quino checkerspot butterfly now survives in 
less than 1 percent of its former range and is likely doomed. Any 
science at this point may be too late to save the butterfly.
    Against this background we assess science and Habitat Conservation 
Plans. My guess is that my conclusion that we need more and better 
science to produce more effective, efficient, and accountable HCPs is 
shared by my academic colleagues. Where I may part view with some of 
them, and certainly with many environmental organizations, is on how 
much more science is necessary and how it can be achieved. I think we 
can create much better HCPs with not much more science. The technical 
information necessary to reduce the uncertainties associated with our 
conservation prescriptions does not need to break the bank. But, the 
gathering of that information must be focused, strategically directed, 
and creatively engineered and exercised. Conservation scientists must 
remember that HCPs support incidental take permits issued by the 
resource agencies; they do not call for broad research agendas of the 
sort supported by the National Science Foundation.
    Why don't we have a clear science for habitat conservation plans? 
To start, we in the academic scientific community have failed to 
deliver the realistic, the parsimonious science that is necessary to 
inform HCPs. The Departments of the Interior and Commerce, in their own 
turn, have failed to seek such a science, responding in their HCP 
guidelines that cookbook guidance is not possible since the biological 
analyses demanded of each HCP for each listed species is unique and 
cannot be codified. I like that idea--that the work in my field is so 
special that only a specialist can do it. But that assessment just is 
not true. Stephen's kangaroo rats, Tecopa pupfish, and indigo snakes 
share a multitude of biological characteristics that allow for a common 
theme to their conservation. A problem-solving template based on that 
premise and using good science to craft reasonable conservation plans 
is doable and overdue.
    Just as soon as we are released from an artificial and utterly 
unrealistic view of how much novel scientific information is necessary 
to inform HCPs, we can begin to develop the exportable toolbox of 
scientific techniques that are necessary to assist our best 
conservation intentions. We first need to remind ourselves that science 
in HCPs is not science in a traditional sense at all. In HCPs, we 
rarely use hypothetico-deductive reasoning and experimental data to 
differentiate among alternative explanations about how an HCP could or 
should work. Instead, we normally use the sparest of data, often 
gathered in uncontrolled circumstances, and subject it to our best 
professional judgment. Scientific rigor in HCPs is not typically de 
rigueur. And that's alright for the many HCPs of limited spatial 
extent, and for HCPs with limited impact. When HCP impacts to species 
and habitat are limited, a rigorous science often is unnecessary.
    Tougher, of course, is planning where multiple imperiled species 
distributed across extensive landscapes run head on into economic 
immediacy--Interior Secretary Bruce Babbitt's environmental and 
economic trainwrecks.In these circumstances, we need the very most 
creative engagement of available scientific information. We must focus 
on landscape-level and ecosystem processes; we must draw strong 
inferences from basic principles--for instance, that bigger, well-
linked, and appropriately managed reserves are better than the options; 
we must use inferential data from disparate sources, from other species 
and other locations; we must develop management plans that can 
ameliorate the inevitable mistakes we will make in up-front planning; 
and we must share the lessons learned from the two hundred HCPs already 
in action. Little of that is being done today. All of that can be 
conveyed explicitly in regulations and guidelines, and should be.
    I recommend that the National Research Council cooperate with the 
Departments of the Interior and Commerce to develop science guidelines 
for conserving multiple species and natural communities on lands both 
public and private. Those guidelines must recognize that HCPs have 
timetables driven by political and economic realities. Those guidelines 
must recognize that indicator or surrogate species will have to be 
identified which can allow simple insights from complex natural 
systems. Those guidelines must encourage habitat conservation planners 
to learn by doing, to manage adaptively using the best current 
information.
    To that point, we cannot delay our HCPs waiting for all the answers 
to our pressing technical questions--frankly, the courts may not let 
us. We can, however, engineer our plans to take advantage of emerging 
information and scientific breakthroughs. I support adaptive 
management, even though I am a fan of this administration's ``No 
Surprises'' policy (which many contend conflicts with adaptive 
management). Incorporating both adaptive management principles and ``No 
Surprises'' assurances in to the language of a reauthorization bill 
should be a bipartisan goal of this committee.
    Parties that bargain in good faith, under Section 10(a) of the Act, 
should not be held economically responsible when nature proves to be 
more complicated than we could have expected. We, all of us, share in 
the benefits from our national heritage when it is conserved and well 
managed. The costs of those benefits should be similarly shared. Once 
prime habitat for the California gnatcatcher is now under the Fish and 
Wildlife Service parking lot in Carlsbad, California. Yet we expect 
that nearly all of the burden of conserving that threatened species 
should fall on the shoulders of neighboring landowners who wish for 
economic development of their own properties. Clearly, science alone 
cannot solve that dilemma.
    I do not suggest that the greater public must pay the private 
sector to obey the law, but an infusion of Federal dollars will 
inevitably be necessary when reasonable exactions of habitat from 
private landowners fall short of providing for the needs of species, or 
when unforeseen circumstances put imperiled species at unexpected 
additional risks. HCPs usually are the results of a crafted deal. They 
allow a public concerned about threatened and endangered species to 
take private property without fully compensating landowners. 
Lubricating that process with strategically directed dollars will be 
good for species, good for landowners, and good for the rest of us.
    In conclusion to this brief statement, I contend that our Habitat 
Conservation Plans are not as poorly informed as many environmentally 
concerned citizens and organizations portray them. I also contend that 
the costs of making HCPs significantly better informed may not be as 
great as is feared by many others. Nonetheless, the tension between 
Fifth Amendment guarantees to landowners and the statutory authority to 
conserve species on private land is not likely to be remedied by a 
better application of science alone. You all know that very well, 
indeed.

                       HABITAT CONSERVATION PLANS

                              ----------                              

                        WEDNESDAY, JULY 21, 1999

                               U.S. Senate,
         Committee on Environment and Public Works,
                  Subcommittee on Fisheries, Wildlife, and 
                                            Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to recess, at 9:30 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Lautenberg, Thomas, and Chafee [ex 
officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    Ladies and gentlemen, this is the second in a series of two 
hearings that we are holding in the Subcommittee on Fisheries, 
Wildlife, and Drinking Water on the science of habitat 
conservation plans, with a focus on improving the Endangered 
Species Act's tools for preserving habitat for endangered 
species.
    As I indicated, this is the second of two hearings that we 
are holding on habitat conservation plans. We had a very 
interesting set of testimony yesterday and a lot of interesting 
information presented with regard to the science of habitat 
conservation plans. Today we will be focusing a continuation of 
those issues through some of the Federal officials and others 
from interest groups in the private sector to obtain their 
perspective on the utility of these plans and how they may be 
improved in terms of our administration of them.
    I don't intend to make a further opening statement. I would 
turn now to our chairman, Senator Chafee.
    Senator Chafee. Thank you very much, Mr. Chairman.
    I have no opening statement. I think yesterday's hearing 
was extremely interesting. I want to commend you again for what 
you are doing. I think you've got some good witnesses today, 
and I look forward to hearing them.
    Thank you.
    Senator Crapo. Thank you very much, Senator Chafee.
    Senator Lautenberg, did you wish to make an opening 
statement?

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Yes. And, Mr. Chairman, I commend you 
for holding this hearing.
    The importance of science in the habitat conservation plan 
I think is a crucial factor, and, Mr. Chairman, I think what 
you've done is present a reasonable approach to the problem, 
and this analysis will, I think, help us satisfy as many 
interested parties as we can.
    I am, Mr. Chairman, for growth on a sensible, planned basis 
because, in the final analysis, growth without protecting our 
species, our environment, is a questionable asset, but I 
believe that we can be both for growth and for the environment, 
cleaner environment, protected environment at the same time. I 
hope that we can arrive at a consensus within the committee.
    At best, the habitat conservation plan is the ultimate pro-
growth, pro-environmental statement, and an HCP should ideally 
give the landowner the certainty needed to develop land while 
specifying measures that would allow endangered species to be 
protected. The challenge is to turn this ideal into a reality.
    While I salute the Administration for its willingness to 
try new approaches, I am worried about the accelerated pace of 
its work in the HCP area. HCPs are already approved for 11 
million acres, approximately, of our country--an area larger 
than my State of New Jersey--and there are plans pending for 
another 20 million acres. I am particularly concerned that in 
our haste we may leave sound science behind.
    The No Surprises policy may not be creating enough 
incentive using sound science to protect us as we develop these 
HCPs. And, while I appreciate the scientific basis of the five-
point policy guide, I am concerned that it is not used 
uniformly.
    In this context, Mr. Chairman, I especially appreciate the 
way you've framed this hearing. This is the hearing on the 
science of the habitat conservation plan. Science should be our 
focus here, just as it was in the critical habitat bill we 
reported out of this committee, and focusing on the science 
will be testimony to your continued success, Mr. Chairman.
    I thank you.
    Senator Crapo. Thank you very much, Senator.
    Senator Thomas.

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I can't resist a 
comment or two.
    First of all, I am pleased that you are doing this. I think 
there have to be some changes in the endangered species 
operations. We talk about it a lot but, frankly, there haven't 
been a lot. I think still we need to make some substantive 
changes in the way it is done. We've had a long time to work at 
it. We've found some things that don't work very well, but we 
don't seem to change them. We've had a couple of experiences 
recently in Wyoming that I think show the need for some change.
    It seems that habitat conservation plans work fairly well 
for large companies and timber companies. I'm not sure it has a 
great impact on small landowners, but hopefully it can.
    We talk a lot about science, and science is part of it, 
but, we are not effective when we endlessly talk about science. 
We went out some time ago to have a hearing on spotted owls, 
and everybody brought their own scientist. They didn't sound as 
if they had talked at all about what is common to them.
    I think this is a good thing to think about, but we really 
need to make some decisions with regard to habitat. We have to 
make some decisions with regard to listing and de-listing. This 
hearing is a portion of it, and I appreciate the fact that 
you're doing this.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Senator Thomas.
    There are no other Senators present for an opening 
statement at this time, so we will begin with our first panel.
    Our first panel consists of: The Honorable Donald J. Barry, 
who is the Assistant Secretary for Fish, Wildlife, and Parks of 
the Department of Interior; and Ms. Monica Medina, general 
counsel for the National Oceanic and Atmospheric 
Administration.
    I think you both have testified many times. I'll just 
remind you that we ask you to try to keep your testimony to 5 
minutes.
    Mr. Barry, why don't you begin?
    Senator Thomas. Mr. Chairman, I wanted to welcome Don Barry 
here. I have worked with him, particularly in the parks arena, 
and he has been very cooperative and is always willing to talk 
and work. I simply wanted to welcome him here and thank him for 
his accessibility as Assistant Secretary. I appreciate it.
    Senator Crapo. We do welcome you both.
    Mr. Barry.

  STATEMENT OF HON. DONALD J. BARRY, ASSISTANT SECRETARY FOR 
      FISH, WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR

    Mr. Barry. With your permission, Mr. Chairman, what I would 
like to do is just ask that my written statement be submitted 
for the record and I'd like to make just some oral comments, if 
I could.
    Senator Crapo. Without objection, all witnesses present 
should know that their full statements will be made a part of 
the record.
    Mr. Barry. Thank you very much.
    Mr. Chairman, this is my 17th year in working on habitat 
conservation plans, having been involved in the negotiation of 
the very first one in 1982. It is safe to say that I have been 
involved in virtually every phase of the habitat conservation 
planning program over the last 17 years, from having worked on 
the development of the original HCP implementation regulations 
to the drafting of the No Surprises policy in 1994 to the 
editing of the Fish and Wildlife Service and NMFS' handbook on 
HCPs. I've also been involved in sort of the deal-closing side 
of a number of major HCPs. So I have no excuse for suggesting 
that I'm clueless about the HCP program.
    I'd like to summarize my views. In fact, I could observe 
that I can summarize my views on HCPs in one single sentence, 
and that would be that the only things worse for endangered 
species conservation than HCPs are all of the other 
alternatives.
    Secretary Babbitt and I both view HCPs as probably the 
single-most important development for the conservation of 
endangered and threatened species since the enactment of the 
original Act, period.
    I would like to just offer some general thoughts based on 
yesterday's testimony.
    First of all, I was personally pleased to learn that, by 
and large, the scientists that testified yesterday were in 
general support and agreement that the habitat conservation 
planning program offers many benefits and opportunities for 
endangered species conservation. I also was pleased to learn 
that, as a general matter, they felt that the HCP process needs 
to be viewed from or critiqued from the perspective of what is 
practical, and that they generally agreed and concurred that 
one cannot hold up the development of HCPs while one waits for 
the perfection of science or the quest for better science.
    There was a lot of discussion yesterday, it is my 
understanding, about the need for a national data base on HCPs. 
Actually, the Fish and Wildlife Service and the National Marine 
Fisheries Service are now maintaining not only a hard copy 
library of virtually every HCP and all of its related 
documents, but also an electronic HCP data base on the 
Service's internet-based ECOS program, which has numerous 
fields of data. It is my understanding that a copy of the 
printout that you can get from it is attached to my testimony.
    The Service is currently in the process of dramatically 
expanding the fields of data that would be available off of the 
internet, and I've got a long list of areas that it is going to 
be expanding into so that you would be able to sit down at your 
terminal, pop up a list of all the HCPs, the amount of acres 
per species that you're interested in. If you want to see red-
cockaded woodpecker HCPs, you'd be able to call it up and see 
how many acres are involved, how many of them are large 
industrial owners, how many are small landowners, and so on, 
and the Service is in the process right now of field testing 
and trial running that new data base that it's adding into the 
eco-internet program.
    So I think actually we are much further along, and it has 
been based on the criticisms we've received in the past about 
the need for this type of data base, but I would suggest that 
we are well on the trail to solving that particular problem and 
giving Congress and the environmental community and the 
regulated community access to a tremendous amount of new 
information.
    I would also like to offer to this committee and to your 
staffs, at your convenience, a demonstration of the new data 
base process that the Fish and Wildlife Service is developing 
on HCPs. I will just leave that as a standing invitation to the 
committee, any of the members that are interested or any of the 
staff members, to have the Fish and Wildlife Service and NMFS 
come up and demonstrate the new HCP data base that they have to 
show you what they can pull off of the web at this point and 
what people have, in general.
    I think there was also yesterday a fair amount of 
discussion about the possible tension between No Surprises and 
adaptive management. My own personal feeling is that the 
tension is not anywhere near as pronounced as people think it 
might be, and I would welcome a question or two on this 
particular matter.
    I think there was also a lot of discussion about the need 
for a Federal pot of money to improve monitoring capability of 
HCPs and to respond in emergency situations as part of our 
commitment under No Surprises.
    On the one churlish note of my testimony this morning, I 
would reluctantly comment that the Fish and Wildlife Service in 
their fiscal year 2000 budget request, which is currently in 
front of the Senate, specifically asked for $10 million to 
assist it in working on the implementation of HCPs and the 
monitoring and development of HCPs, and to date we have gotten 
none of that money from either the House or the Senate.
    So here is an example of where the Fish and Wildlife 
Service and the Administration listened to the criticisms that 
we've received in the past about our inadequate resources for 
being able to stay on top of HCPs and make sure they are being 
implemented correctly, and when we put it in our budget request 
Congress declines to fund it.
    The Senate has not taken up our Department of Interior 
appropriations bill in full, so, who knows, maybe there is good 
news at the end of the trail, but to date we have been fairly 
disappointed in the response of Congress.
    Let me just close, because I know the red light has gone 
on, which means I will be electrocuted momentarily----
    Senator Lautenberg. That means you passed it. That's what 
the red lights are for, if you go past it.
    Mr. Barry. Let me just close by offering one of my favorite 
somewhat off-colored quotes from Mo Udall, who once said that, 
``When you go to bed with the Federal Government, you usually 
get more than a good night's sleep.''
    [Laughter.]
    Mr. Barry. And I would have to say that that quote seems to 
be particularly apt when applied to the habitat conservation 
planning program and private landowners and their need to work 
cooperatively and collaboratively with the Federal Government.
    Our goal is to make sure that if they ``go to bed with the 
Feds,'' they get more than a good night's sleep and feel that 
they got a fair deal--a deal that not only works for 
landowners, but also for endangered and threatened species.
    Thank you very much.
    Senator Crapo. Thank you very much, Mr. Barry.
    Ms. Medina.

   STATEMENT OF MONICA P. MEDINA, GENERAL COUNSEL, NATIONAL 
             OCEANIC AND ATMOSPHERIC ADMINISTRATION

    Ms. Medina. Thank you, Mr. Chairman.
    My name is Monica Medina, and I am the general counsel of 
NOAA, and I am pleased to be here today not only as a member of 
the Administration but also as a former staff member to this 
committee from 1993 to 1995, so it is good to be back in this 
room.
    NOAA is responsible for 52 listed species under the ESA, 
including salmon, sea turtles, whales, dolphins, seals, and 
other species. The breadth of our challenge in recovering these 
species is great, so we cooperate with non-Federal landowners 
such as States, tribes, counties, and private entities to do 
this important job.
    For instance, we have the challenge of ensuring the 
survival and recovery of salmon across the geography that spans 
the entire Pacific Coast, from Canada to Los Angeles. In 
addition, the highly migratory nature of Pacific salmon places 
them in many areas in numerous States, impacting large numbers 
of stakeholders, many of whom are private citizens.
    Long-term management of habitat such as that done through 
HCPs with non-Federal landowners has proven to be an effective 
means of recovering species. So far, our experience is new. 
We've only issued two incidental take permits thus far 
associated with an HCP. We're party to a few others with the 
Fish and Wildlife Service, where we had previously unlisted 
species, and we're working to turn those into full permits. But 
we are currently negotiating approximately 35 additional HCPs, 
all of which are large scale and concern the salmon.
    We don't impose a one-size-fits-all prescription on 
applicants when participants provide unusual but scientifically 
credible analysis of effects or a creative approach. We are 
very willing and will take their approach very seriously. We're 
very willing to look at those efforts.
    I think, as Don has talked about, flexible implementation 
of the ESA is a hallmark of our Administration's efforts to 
conserve species, and it is evidenced by our five-point plan 
and just the way that we have gone about our approach. Adaptive 
management, again, as Don mentioned, is an essential component 
of HCPs when there is significant uncertainty. It is how we 
close the gaps. It is how we make up for the things that we 
aren't sure about right now. We plan for it in our HCPs.
    As you well know, I'm sure, we are required to use the best 
science in making our HCP permit decisions. Our scientists are 
up to date in all of the latest methods, the state-of-the-art 
analytical techniques, and we do our very best to understand 
the species and the ecosystems to be managed in our HCPs.
    For example, in development of aquatic management 
components of a timber HCP, our biologists worked closely with 
the applicant, but also with academic, State, tribal, and local 
agency scientists to gather all of the relevant information 
necessary to make a very comprehensive and credible HCP.
    When necessary, we go out to the field and we augment our 
existing information with actual field data. It's not simple to 
manage ecosystems across large areas, and so we also welcome 
scrutiny from the scientific community and the informed public, 
as this helps to ensure that our HCPs are of the highest 
quality.
    We put every HCP out before the public for notice and 
comment so that everyone can be aware of what we are doing, and 
obviously we have these data bases now, and hopefully that will 
improve our ability to get comments from the regulated 
community as we go along.
    I want to mention three specific HCPs that I think are 
worthy of attention. The first one is a mid-Columbia HCP. It is 
in draft now, but it is ready for public review and comment. It 
is an example of how NOAA is using performance-based goals to--
instead of prescriptive measures in HCPs, the focus is on 
improving the survival of salmon migration through the mid-
Columbia segment of the Columbia River, and the goal is a no-
net-impact to salmon from the hydroelectric dams associated 
with the reservoirs operated by the two public utility 
districts.
    Compensation for a 9 percent unavoidable fish loss will be 
met by a combination of hatchery production and tributary 
restoration, and we also have extremely detailed schedules and 
contingency agreements for every aspect of that HCP.
    Also, I brought along with me a copy of the Washington DNR 
HCP. It includes some innovative features designed to advance 
the science of forestry and landscape conservation.
    As you can see, these are not short documents. They are 
very lengthy. They are very weighty. And they include all of 
our scientific--all the scientific support for the conclusions 
that we draw.
    Finally, I want to mention that the Pacific lumber HCP, 
which I know the committee is aware of, is well underway, and 
that plan rests upon a foundation of watershed analysis that 
will be used to tailor site-specific prescriptions.
    I also want to close by saying that our efforts are only as 
good as the amount of money we have to spend on them. In 1999, 
our budget is expected to be $23 million, but only 8.3 of that 
is being spent on science. Our 2000 budget request has an 
additional $24.7 million for new funding to strengthen our 
scientific capabilities in HCPs. Five million of that would be 
used specifically to partner on HCP development with landowners 
and other agencies in the local area.
    In conclusion, I'd just like to say that the program is 
showing a lot of benefits to us at NMFS, but it is still a work 
in progress. We are trying our very best. HCPs are not perfect, 
but they are less confrontational and adversarial than our 
alternatives, which are enforcing the prohibitions of the take 
under section 9 of the ESA. We're doing what we can to recover 
salmon and hopefully ensure that future generations will know 
of these magnificent fish.
    Thank you very much for the opportunity to testify. I look 
forward to your questions.
    Senator Crapo. Thank you very much, Ms. Medina.
    I'll begin with the questions.
    The first question I have is for you, Mr. Barry.
    If I understood you correctly, you indicated that you 
didn't think there was necessarily a conflict between adaptive 
management and the No Surprises policy. Would you like to 
elaborate on that?
    Mr. Barry. Sure.
    The reason I say that is that, under the No Surprises 
policy, what we basically say we are going to do is to lay all 
of our cards on the table and to negotiate out all of the 
possible adjustments up front with the particular landowner so 
they can foresee the types and range of changes that could 
occur should circumstances change during the life of the HCP 
permit.
    A good example of how that is different from the way we 
used to do business is that probably the Fish and Wildlife 
Service felt that they could arrive on the scene later in time 
unilaterally and just sort of ambush or surprise the landowner 
with the HCP and say, ``Well, we want you to change things now. 
That was then, this is now.''
    But we say what you're going to do now is to negotiate up 
front with the landowner the range of changes that may be 
required because of adaptive management requirements or changed 
circumstances, and that way then before they even get the 
permit and before they decide whether they want to continue, 
they can economically net out the cost to them and decide 
whether they are prepared to live with those types of 
adjustments up front.
    So we try to negotiate all of those terms and conditions up 
front. We lay down the range of changes that might occur under 
the agreement or during the life of the agreement. It is up to 
the landowner then to decide whether they like what they hear 
or whether they think they can live with what they hear, or 
whether they want to say, ``Sorry, we are out of here. We can't 
live with those terms.''
    The other reason I don't see that type of huge tension 
between No Surprises and adaptive management is because I think 
No Surprises continues to get a bad rap--that somehow we are 
putting these iron-clad handcuffs on the ability of the Federal 
agencies and, for that matter, even the HCP permittee, to 
respond to changed circumstances. I just don't believe that's 
the case.
    What the No Surprises policy says is that once we reach an 
agreement with the landowner we're not going to go back and 
change the economics of that agreement, but it doesn't say that 
we're not going to go back at all.
    I can use a good example. Let's say we've reached agreement 
with a developer who is going to be building out a piece of 
property over a period of time, and he agrees to have some type 
of assessment on each house that will go into a conservation 
fund. This is basically what we agreed to with the San Bruno 
HCP, the very first HCP in California.
    Let's say that we, at the time, assume that we know how 
that money should be spent for a particular species, but over 
time let's assume that the status of the species continues to 
decline, and we believe that we need to make our conservation 
programs more effective and more efficient for the conservation 
of the species.
    Without changing the amount of money the landowner has 
committed to into that fund, we reserve the right, even under 
No Surprises, to go back and change the way that money is 
spent. If we think we can get a better bang for our buck, we 
may shift the whole strategy from habitat restoration to 
predator control. We may dramatically be able to squeeze 
greater efficiency and effectiveness out of the conservation 
program without changing a dollar on the table. So that would 
be one example where I think that No Surprises has retained a 
lot more discretion and flexibility than people think.
    Our commitment to the landowner, to the permittee, is no 
changes in the amount of money it is going to cost you and no 
changes in the level of restrictions on the use of your 
property, but if you are a timber company and you've already 
agreed to set aside a certain acreage as a conservation zone, 
we reserve the right, even under No Surprises, to go back in 
that area that you've agreed to set aside to look for ways of 
enhancing its management for species conservation, again as 
long as it doesn't change your economic bottom line.
    I think it is a combination of those two together. No 
surprises is not as draconian as people think it is. And I also 
think that we just try to negotiate up front the economic costs 
and the range of change with the landowner through adaptive 
management. For these reasons, I don't think there is a 
pronounced level of tension between No Surprises and adaptive 
management.
    Senator Crapo. Thank you.
    Ms. Medina, yesterday our panelists agreed that scientific 
standards and guidelines associated with HCPs would 
significantly improve the science of HCPs. Would such a set of 
scientific standards and guidelines be useful, in your opinion?
    Ms. Medina. I believe we already operate under those and we 
are always trying to be consistent in the way we approach HCPs. 
That doesn't mean our results are always the same, because 
different landscapes have different uses. They've been altered 
differently by humans or by nature. But we definitely try to be 
consistent. Obviously, we're always looking for improvements, 
and I think at our agency we are working within a matrix of 
habitat conditions that we look at for every HCP in trying to 
develop those HCPs.
    Mr. Barry. Mr. Chairman, if I could just also add one 
thought?
    Senator Crapo. Mr. Barry.
    Mr. Barry. I think it probably would enhance the efficiency 
of the HCP negotiation process if there were generally agreed-
upon scientific guidelines for certain species.
    A good example of that is the red-cockaded woodpecker. I 
think there has been a general consensus among most of the 
scientists as to what the red-cockaded woodpecker needs and 
what its conservation strategy should be, so it is a lot faster 
and lot easier to negotiate an agreement for one of those 
species because there has been that convergence of the science 
and we have some sort of off-the-shelf standards that we can 
apply. So I think in that instance it could be helpful, as long 
as we aren't finding ourselves stuck at the station and the 
assumption is you can't do anything unless you've got that type 
of consensus for a particular species.
    Senator Crapo. Thank you.
    Mr. Chairman.
    Senator Chafee. If you have further questions you wanted to 
ask, I'll wait.
    Senator Crapo. I have a whole bunch.
    Senator Chafee. OK. Thank you, Mr. Chairman.
    We have been focusing a great deal of time on this hearing 
on a recent study of HCPs that was authored by Dr. Peter 
Kareiva, who testified yesterday, and I understand that Fish 
and Wildlife has reviewed Dr. Kareiva's report and has posted a 
brief response on your web page.
    What are your views of the Kareiva study?
    Mr. Barry. Let me first start off by saying that we truly 
welcome the critiques and reviews of the HCP program that have 
been conducted over the last few years. I think the recent 
five-point plan that we developed to further improve the HCP 
program was a direct result of a lot of the feedback that we've 
gotten from people over the years.
    So, in terms of the study, we are glad that it was done. I 
have to tell you, in all honesty, that we had some fairly 
significant concerns about the quality of some of the 
conclusions reached in that study, and all you need to do is 
take a look at how Plum Creek was rated under that study to 
understand what the problems were.
    Basically, they asked about 106 graduate students, who, of 
course, are carrying full loads, to become instant experts on 
the Endangered Species Act and HCPs and to be able to wade 
through the massive documents that you can get for an HCP.
    If you take a look at what happened with Plum Creek, 
though, you can see what some of the problems are with this 
type of study.
    Plum Creek was rated fairly poorly on its science and it 
was accused of having no peer-reviewed science. That's just 
flat-out wrong. They had 13 peer-reviewed scientific papers 
that were the basis for that HCP. How did the person miss that? 
I don't know. But the graduate student that was reviewing it 
missed the boat on that one.
    Let me read to you some of the other documents that were 
skipped over in the Plum Creek HCP.
    They didn't take a look at the Environmental Impact 
Statement, the biological opinion for the HCP permit, the NEPA 
document Record of Decision, the set of findings, the unlisted 
species assessment, and, as I said, these 13 peer-reviewed 
papers.
    I can provide another example of how they were a little bit 
thin on their analysis. A person on my staff talked to the 
chief staff person the Fish and Wildlife Service had working on 
this agreement for many, many years. He said he was asked two 
questions by the graduate student and that was it. The person 
called him up, showed up in his office or talked to him on the 
phone. Two questions. That's it. Thank you very much. And that 
was the level of analysis that went into the Plum Creek HCP 
permit assessment.
    I know you have Lorin Hicks from Plum Creek on as a witness 
a little bit later. I wanted to suggest that even a study that 
attempts to be as ambitious as AIBS was flaws and limitations.
    And so I guess the only message is that I think Congress 
needs to take with a grain of salt some of the conclusions that 
are reached that attack the quality of the HCPs that have been 
done.
    I would not agree that they have been of poor quality. I 
think they clearly have been continually getting better, but 
that doesn't mean that the ones that we were doing before were 
poor.
    Senator Chafee. Let me--I don't have much time here, so--
now, the no-surprise policy was an administrative policy that 
has been set forth. It is my understanding that has been 
challenged; is that correct?
    Mr. Barry. That's correct. We have a lawsuit right now on 
that.
    Senator Chafee. And so where do things stand? There's a 
challenge to it and it hasn't been heard yet?
    Mr. Barry. We were heading toward the usual dueling briefs 
being filed by the Government and the environmental plaintiffs. 
There was just recently another hearing on the matter. Things 
have been put off now until November. There has been additional 
briefing requested, and so it is going to be probably in 
November some time before everybody gets back in court.
    Senator Chafee. Now, I would think that you'd like us to 
pass a statute that included some of these protections, 
including the No Surprises policy. I assume that; is that 
correct?
    Mr. Barry. Mr. Chairman, that was one of the primary 
reasons that we were very supportive of S. 1180 coming out of 
your committee 2 years ago. One of the major parts of that bill 
was the congressional ratification of all of the administrative 
ESA reforms that we've implemented in the last few years, 
including No Surprises.
    Senator Chafee. Well, I think I agree with you, and I, of 
course, obviously knew that we had that in that legislation a 
year or so ago, but I think this No Surprises policy make a lot 
of sense.
    Mr. Chairman, I hope that we can do something to protect 
the Department; otherwise, in the suit they are liable to get 
blown away. I think that the No Surprises policy is really an 
essential part of the whole HCP program.
    Mr. Barry. Mr. Chairman, I'm assuming that your reference 
to being blown away is not a characterization on your part of 
the poor legal arguments we have to muster on behalf of the 
defense of this fine policy.
    Senator Chafee. Well, I'm not predicting who is going to 
prevail, but----
    Mr. Barry. It would be nice to have certainty.
    Senator Chafee [continuing]. It would be nice to have 
certainty. Absolutely. Thank you. Thank you very much, Mr. 
Chairman.
    Senator Crapo. Thank you, Mr. Chairman.
    Senator Lautenberg.
    Senator Lautenberg. Thanks, Mr. Chairman.
    I thank each of you for your excellent testimony.
    The No Surprises policy brings some surprises to me, and I 
just want to make sure that I understand it.
    Does it say that if the plan isn't working that there is no 
risk at all to the landowner? I know what we are trying to do 
is provide some sense of reliability to plans that the 
landowner makes, but have we removed any incentives from the 
landowner for them to enforce the plan or--what kind of 
supervision do we have that says that, ``OK, the landowner is 
doing what they have to, but we've made a mistake in the plan 
and now we have to change it?'' You made reference to it a 
little bit earlier, but I wondered if you'd expand on that, 
please.
    Mr. Barry. Well, first of all, it is tied back to our 
budget. Our ability to monitor the implementation of these 
plans has two components to it. No. 1 is: Is the permittee 
doing what he said he'd do? And, No. 2: Are we getting the 
conservation benefits that we thought we'd get?
    Senator Lautenberg. Right.
    Mr. Barry. You know, we're struggling to be able to keep 
pace with all of those plans that we're negotiating, which is 
why we felt it was fair to note this in our budget request.
    But I have to tell you again why I think that No Surprises 
really has put us on a whole different level in dealing with 
private landowners, and I would use Toby Murray as an example.
    Toby is the head of the Murray Pacific Timber Company, a 
private, family owned company, 50,000 acres, roughly. For Toby, 
he first had negotiated a spotted owl HCP and then eventually 
went back and upgraded it to a multi-species HCP, but for him 
the big tradeoff was No Surprises. He felt for the first time 
he was being treated fairly and he was being treated 
respectfully by the Government.
    I have absolutely no doubt in my mind that if we had 
endangered species problems that arose unexpectedly on Murray 
Pacific's property, Toby would welcome us in, we'd sit down 
with him, and we'd work through these things, not because we 
could wave our regulatory swagger stick in his face and say, 
you know, ``If you don't do this, we are going to punish you,'' 
but I think because Toby just felt that he now is being treated 
differently and he is being treated respectfully as a property 
owner who is viewed as a conservation partner, and I just have 
this confidence that Toby will do that. Because he feels that 
No Surprises gave him a recognition that we see a need for a 
fair balance between economics and conservation, he's willing 
to work with us to make sure that we can constantly make those 
adjustments to achieve that.
    Senator Lautenberg. Well, is there a guarantee or 
representation that for the landowner, should change be 
required, that they will have no further economic demands put 
upon them?
    Mr. Barry. That's basically the No Surprises commitment, in 
a nutshell. We say we will not go back and ask for more money 
or more restrictions on the use of your property, your water 
rights, whatever it was that was otherwise agreed to to be 
available for use under the terms of the agreement.
    Senator Lautenberg. And how then do we correct a mistake if 
one is made?
    Mr. Barry. Well, as I said, within the agreement they will 
have agreed to do certain things. There is a certain cost 
associated with the conservation package they've already 
developed. We reserve the right to go back in and look for ways 
of making that more efficient, adjusting that, as long as it is 
not going to cost them more money.
    If they already in their own mind have netted it out and it 
is going to cost them $100,000 a year for endangered species 
compliance, and we come back in and say, ``Look, we can turn 
this thing around if we just start working on depredation 
control instead of habitat restoration, and it is not going to 
cost you an extra dollar,'' we've reserved the right to do that 
so we can make adjustments in the program.
    The other thing we can do----
    Senator Lautenberg. Who pays costs that might arise as a 
result of that?
    Mr. Barry. Well, again, we are saying it is not going to 
cost him or her anything more. We would have to work within the 
revenue stream that they've already agreed to.
    But there are a lot of other things that we can do, 
ourselves. The Fish and Wildlife Service has--I mean, not 
unlimited resources, but we have millions of dollars that we 
are putting into endangered or threatened species conservation 
programs. We can make adjustments in our own programs. We can 
look for ways of getting other landowners who are in the same 
area who have the same problem to work with us to achieve a 
different conservation direction. We can see if Federal 
agencies can help contribute in a different way.
    I am personally unable to think of a scenario where we 
would basically be clueless and helpless and would watch the 
species go down the tubes because of No Surprises.
    Senator Lautenberg. So we'll pay for the mistakes if any 
are made--we, the Government, the taxpayers of the country, 
we'll pay for it?
    Mr. Barry. Well, we're involved in endangered species 
conservation activities day in and day out right now, and I 
guess the big difference, Senator, between----
    Senator Lautenberg. I support a No Surprises policy.
    Mr. Barry. Yes.
    Senator Lautenberg. If there is an error and the plan 
doesn't work, my----
    Mr. Barry. We are prepared----
    Senator Lautenberg [continuing]. My question is: Who pays 
to revise or----
    Mr. Barry. At that particular point, we're prepared to 
carry the load.
    Senator Lautenberg. OK.
    Mr. Chairman, if I might, just one other question.
    The Service has recently published a decision that says if 
activities are causing a problem, jeopardy to an endangered 
species, the HCP has to be reopened, renegotiated. Does the 
Service plan to retroactively apply that kind of review?
    Mr. Barry. Well, what you're referring to are some 
adjustments that we made in what are known as the ``part 13 
regulations'' in the Fish and Wildlife Service's Code of 
Federal Regulations. These are the general regulations that 
apply to virtually every permit the Fish and Wildlife Service 
issues, from marine mammals to migratory birds and to 
endangered species.
    In there we made some adjustments. When we went out with 
the final No Surprises rule--excuse me, it wasn't in the No 
Surprises, it was in the safe harbor and candidate conservation 
agreement rulemaking recently that indicated that if, at the 
end of the day, the continuation of an HCP permit, despite all 
the adjustments, everything that anybody could do--the 
Government could do, the private sector could do, the States 
could do, or the landowner could do--if at the end of the day 
the continuation of that HCP permit would result in the 
jeopardy of the species, we would consider the revocation of 
the permit.
    So at the end of the day you don't have the ability to take 
your HCP permit and drive a species into extinction.
    Again, we don't get to that point, though, until we have 
tried virtually everything else, and one of the criteria up 
front for issuing an HCP permit in the first instance is that 
the issuance of that permit will not result in jeopardy to the 
species, and so we feel that that provision in the part 13 regs 
is consistent, ultimately, with the issuance criteria for an 
HCP permit in the first instance.
    Senator Lautenberg. Thanks, Mr. Chairman.
    Senator Crapo. Thank you, Senator.
    I'd like to followup on that question with a question to 
both of you, and the question is whether you believe there is a 
difference between a standard of preventing the jeopardy of the 
species in the development of an HCP versus the standard of 
trying to recover the species in the development of an HCP, 
and, if there is a difference between those standards, does 
that difference impact the success of the HCP program?
    Ms. Medina. I'm happy to lead off on this one, because I 
think we've articulated at least our vision of what those words 
mean in a letter that I'm happy to provide to the committee. It 
was to some timber companies that wrote us about 2 years ago 
and asked us that very question.
    We went back and looked very long and hard, talked with our 
scientists, and tried to understand and have them understand 
what those words mean--recovery and survival. To them, the 
terms didn't mean anything different. They really were 
consistent with one another.
    Our species in NMFS are extremely depleted, they are 
severely depleted, there are not many left, and so in order to 
get--I think of it as pushing a ball up hill. If you can push 
the ball up far enough to get past whatever that bright line is 
that means survival, you're going to get it, it is going to be 
rolling hard enough to keep rolling past recovery.
    They are essentially merged in the long run over time. What 
it will take to get to one will get you to the other. That's 
the way the biologists have explained it to me. That's the way 
they think of it.
    I think the struggle here has been for the lawyers and the 
scientists to figure out a common framework, a common 
understanding of what the words in the statute mean.
    So, for all intents and purposes, for everything that we 
do, they are the same. There isn't really a bright line that 
you can draw on the landscape that will get you to one but not 
the other. We can't calibrate that way.
    Senator Crapo. Mr. Barry, before you answer I'd like to 
followup with Ms. Medina just for a second there.
    Using your analogy of the ball on the hill, it seems to me 
that the standard of preventing jeopardy of the species would 
be stopping the ball from moving further down the hill, and the 
standard of improving or recovering the species would be 
actually pushing the ball up the hill into a safe harbor, or 
whatever.
    But to me I can see a very big difference there, and it 
seems that the standard between those differences would have a 
significant impact on the HCP.
    Does NMFS or NOAA disagree with that?
    Ms. Medina. Our scientists just can't think of it that way. 
For their purposes, it really is very difficult to discern 
between one and the other, especially when you're looking at 
the long-term impacts of these HCPs, because they are very 
long-term agreements that we're signing now, at least we are 
for the most part.
    Senator Crapo. So you're saying that the requirements that 
would be imposed in an HCP negotiation would not change, 
depending on whether the standard was preventing jeopardy as 
opposed to recovering the species?
    Ms. Medina. It's not that the standards wouldn't change in 
that you could calibrate it. It is really that they can't see a 
difference. For them, long-term viability, survival, long-term 
survival, recovery--the words that actually hearken back to the 
explanation of this program that the committee wrote when they 
passed the HCP amendments in 1982 is what they're trying to do.
    What they're trying to do is translate those words into 
actions on the ground, and for them there really isn't a bright 
line. There isn't a great distinction that they can draw, 
particularly because our species are so depleted.
    We're starting so far down at the bottom of the hill there 
is not much more room to roll down. I mean, we're really all in 
an up mode, and, you know, most of our species are in really 
bad shape, and for them this is the way that they see it.
    We've also talked about it in terms of habitat, because in 
ESA, as you well know, often what we have to do is not just 
look at the species but at their habitat, as well, and they 
have tried to, in the long run, design HCPs that will return 
habitat to its properly functioning condition. That's sort of 
the marker for them. The words ``survival'' and ``recovery'' 
are things that they then equate to that.
    Senator Crapo. And you indicated that there is a letter 
drafted out of your office?
    Ms. Medina. Yes, indeed. Well, I think it is a joint 
letter----
    Senator Crapo. Is a joint?
    Ms. Medina [continuing]. But we can provide it for the 
committee.
    Senator Crapo. Yes. Would you provide that letter?
    Ms. Medina. And there is a scientific memo that supports 
it. We'd be happy to provide it.
    Senator Crapo. Thank you.
    [The memorandum follows:]
    
    
    Senator Crapo. Mr. Barry.
    Mr. Barry. Yes. Let me just offer some other thoughts, in 
addition to what Monica has just mentioned.
    I'd go back to the 1986 section seven regulations. There is 
a provision or a discussion in the preamble which notes that 
for some species that have declined so severely, there is 
virtually no bright line between adverse effects on recovery 
potential of the species and jeopardy. Even going back to 1986, 
we recognized that there are some species that are so 
critical--whooping crane is a good example. We just don't have 
much margin for error. California condors is another example--
we are down to just a few left in the wild.
    For some species, the average scientist is going to say, 
``Hey, if you affect their recovery potential, they are so low 
right now you've affected their survival potential, as well.''
    Under the Act, it is true that the issuance criterion that 
we have to clear is whether or not the issuance of the permit 
would jeopardize the continued existence of the species, so 
jeopardy is clearly the statutory hurdle. There are other 
issuance criteria in the act, though, that give us additional 
flexibility to truly try to get the best deal that we can for 
the species.
    We have to be able to clear not only a jeopardy hurdle, and 
what Monica was saying was that for some of their salmon 
species they feel that they are so far gone to begin with that 
virtually anything that affects them, that affects their 
recovery potential, could affect their survivability, as well, 
and would hit the jeopardy standard.
    But, in addition to that, we basically are obligated to 
negotiate to try to minimize and mitigate the level of take to 
the maximum extent practicable. We've got a number of other 
provisions and authorities in negotiating HCPs to try to get 
the best deal we can for the species, regardless of how the 
lawyers endlessly debate whether it is jeopardy that is the 
standard or recovery.
    I mean, the statute says ``jeopardy.'' No question about 
that. I think once you get into the biology and the science, 
though, it gets a lot murkier and a lot grayer very quickly.
    Senator Crapo. It would seem to me that--again, I still see 
a difference in my mind, and it would seem to me that if HCPs 
were not successfully negotiated as a result of seeking to get 
too much, that we could end up essentially not availing 
ourselves of the benefits that could be achieved by achieving 
the lack of jeopardy standard, and I just--you know, the second 
part of my question was: Does the utilization of an increased 
standard jeopardize the success of HCP programs?
    Ms. Medina. I would say ``no,'' Senator. I appreciate your 
question and I understand, as a lawyer and not a scientist, how 
hard it is for us to try and see things the way that the 
scientists do, because the words seem very clearly different 
and we, you know, have this joint interpretation of what they 
mean.
    But for the scientist it isn't that clear, and I think that 
you can hearken back to adaptive management as another way 
that, if we're asking what we don't need in an HCP, we 
continually monitor it so that we can ratchet it back and get 
protections elsewhere so that there is never a waste, there is 
never a mismatch between what we ask of the applicant and what 
the species needs to get there.
    Senator Crapo. I'd be interested in this. You've already 
indicated that you can provide the letter and whatever backup 
documentation there is for that letter. If you have any other 
materials on this, I'd be interested in what you have.
    Were you going to say something, Mr. Barry?
    Mr. Barry. I would acknowledge that, in fact, disagreements 
between a permit applicant and the agencies over some of these 
issues clearly has resulted in additional delay in the 
negotiation of these agreements. I mean, I would be lying to 
you if I said that didn't happen.
    One of the things that I've noticed over the years, though, 
that aggravates the situation is when--and heaven forbid, since 
I am a recovering lawyer, myself, right now--when the lawyers 
over-lawyer the negotiation process.
    I think that was one of the big problems with the Plum 
Creek HCP for a while. We had everybody dug in up to their 
axles over a debate over what constituted ``take.'' It was a 
legal debate.
    Finally, Kurt Schmitch, who was the head of the negotiation 
team for the Fish and Wildlife Service, said, ``Lawyers aside, 
out of the room. Let's just talk about the biology. What are 
the landscape conditions that we want to achieve at the end of 
this agreement?'' Suddenly, it was framed in a different light, 
and Lorin Hicks and Kurt Schmitch and the biologists all the 
sudden started approaching it from a different direction 
because it wasn't being burdened with legalistic definitions of 
what constitutes take, what constitutes recovery, and what 
doesn't. They just started discussing what they would like to 
see at the end of the day.
    Ms. Medina. ``What are we going to do?''
    Mr. Barry. Yes. ``What are we going to do?'' Then all the 
sudden they started thinking like scientists again and they 
were able to make some sufficient progress.
    I'm not sure what the message there is other than 
Shakespeare was probably right that first we ought to kill all 
the lawyers.
    [Laughter.]
    Senator Crapo. Well, being a lawyer, myself, I won't 
comment on that.
    I have several more questions, but I'd be very willing to 
interrupt for another round.
    Senator Lautenberg. No thanks, Mr. Chairman.
    Senator Crapo. Isn't it true that several HCP negotiations 
are in jeopardy because NMFS is requiring the applicants to 
meet this higher standard?
    I mean, one of the reasons I raise this question is because 
that issue has been raised to us.
    Ms. Medina. I understand and I don't think that they are in 
jeopardy. I think that we're moving ahead on all of our HCPs 
now. You know, we do have disagreements. It is a negotiation, 
no doubt about it. It is a discussion. We need all the 
information the applicant can give us. It is beneficial if 
everyone is open-minded and comes into the process willing to 
share information and work together, but I'm not aware of 
anywhere we're completely at a loggerhead and not moving 
forward.
    The thing that kept us from doing more HCPs over the last 
year-and-a-half or so was the fact that we had put so many of 
our resources into the PalCo HCP. We were virtually at a 
standstill in California because all of our resources were 
dedicated to that HCP. It was an incredibly intensive effort, 
and I think the timber companies, the landowners, were looking 
to see what would happen. They weren't anxious to move forward 
and negotiate terms until they saw what we were doing in that 
HCP, because it truly was, you know, innovative, forward-
looking, ground-breaking--all of those things. We tried to 
really advance our science and our implementation of the 
program in that HCP.
    Senator Crapo. Well, you may have given at least part of an 
answer to my next question, because one of the things I wanted 
to get at with regard to the National Marine Fisheries Services 
that--and I recognize that Fish and Wildlife has a lot more 
species that they cover and has a lot more opportunity for 
HCPs, but with the significant fisheries issues in the Pacific 
northwest, it seems to me curious that NMFS has issued only two 
incidental take permits associated with HCPs.
    Can you explain why that is the case?
    Ms. Medina. Well, some of our listings are very recent, 
Senator. They are as recent as March of this year. So we really 
are just ramping up our program, and I think we were not 
prepared for the intensive nature of the work involved in these 
HCPs. It takes time for us to get staff on the ground out in 
the northwest who are capable.
    I mean, as you know, Dr. Kareiva has now joined our NMFS 
staff. We are ramping up. We are getting ready for this, and we 
expect that we will be doing HCPs not just with timber 
companies but with public water districts, local governments 
like the mid-
Columbia HCP is with two counties in Washington State, and that 
one is right on the verge of being ready to go and done.
    We are really trying to hit the ground running on a problem 
that we are only just recently faced with, so our experience is 
really new and really recent, and I'd love to be back here in a 
few years and tell you how we are doing then.
    Senator Crapo. I'd love that, too.
    Mr. Barry.
    Mr. Barry. Yes. I'd like to just--I don't want to sound 
like a broken record here for OMB, but in the case of the Fish 
and Wildlife Service one of the real challenges that we have 
and one of the reasons that the HCP program takes so long--in 
fact, one commentator said the Berlin Wall came down faster 
than most HCPs get negotiated--but one of the problems that we 
have is that within the Fish and Wildlife Service's endangered 
species budget the people that are doing HCPs are also the same 
people that are doing section 7 consultations. It comes out of 
the same pot of money.
    And so what you frequently have is this real frustrating 
sense of tension among the staff people in these field offices. 
They've got statutory deadlines for section 7 consultations. 
Within 90 days you have to have it finished. You have to have 
your biological opinion out within 35 days after that or 45 
days after that, and so they are constantly being torn by the 
need to go off and work on these section 7 opinions which have 
congressionally imposed deadlines versus these HCPs.
    One of the things that we did up in the northwest to try to 
eliminate that tension was to have a group of people that did 
nothing but HCPs. They were focused. They didn't have to race 
off to handle a section 7 consultation.
    Unfortunately, that experiment has come to pass and I have 
been watching to see what happens with that team now having 
been disassembled, but one of the real problems we have is 
that, given the resources we have, the same people that are 
supposed to be negotiating HCPs are the ones who are supposed 
to be responding to Federal agencies, and so you get this 
terrible tradeoff, almost like Sophie's Choice. Do we respond 
to the Federal agencies and give them a quick turn-around, or 
do we let the landowner just sort of hang in the breeze? It's 
one of the reasons that we asked in our budget for the fiscal 
year 2000 for a significant increase in the amount of money for 
the consultation element. It was to give us the ability to 
respond to private landowners more efficiently. Unfortunately, 
again, Congress has chosen to give us very little of that new 
money.
    Senator Crapo. I, for one, will be very glad to support 
those efforts, and hopefully we will be able to get you the 
resources to respond more quickly.
    I think I will just make a comment and then one last 
question.
    The comment is I hope that we're not going to let the 
search for the perfect be the enemy of the good. Hopefully we 
will be able to make progress in a number of these areas.
    I did want to suggest that it seems to me, from what I've 
heard yesterday and today, and from what I've heard from those 
who have given input to us on this issue, that one of the 
reasons it seems to take so long is that we don't really have a 
clearly defined process for negotiating a plan. When a 
landowner comes to the agency, it's not really clear what it is 
that is expected and what process needs to be followed so that 
we can expeditiously get through the necessary hoops and get to 
a point where an agreement can be reached, and I think it would 
be helpful if those kinds of standards and if a clearly defined 
process could be defined.
    My last question is for you, Mr. Barry, and it is that in 
your testimony you mentioned that HCPs covering small, non-
industrial, private tracts of land do exist. My question is: 
How many of those kinds of HCPs exist, and what can you tell me 
about the time and cost required versus--well, relative to 
these smaller HCPs?
    Mr. Barry. Well, you anticipated the last word that I 
wanted to try to get in before you closed down this panel.
    If I had to pick one area where I think we have the biggest 
challenge ahead of us, it is to make HCPs more readily 
available and affordable to small landowners.
    The big corporate timber companies and the large developers 
have the wherewithal and the ability to comply with the Act. 
They can hire the consultants, they can hire the lawyers, they 
can slug it through. They're used to paying environmental 
compliance costs as a part of doing business. For the smaller 
landowners, though, it is hard. It is frightening. They don't 
know where to go. They don't have the resources available to 
them.
    We have actually issued a fair number of small landowner 
HCPs, in particular in the South, for homeowners, people who 
are going to build on a quarter acre lot in scrub jay habitat. 
There's not much you can do, there's not mitigation that makes 
much sense, and so we have issued a number of HCPs for people 
at a quarter-acre, half-acre, less-than-an-acre level, 
primarily for homes.
    If you are a wood lot owner, small wood lot owner, and 
you've got 50 acres or 100 acres, we have, in fact, actually 
issued HCPs in those instances, but I would have to say I don't 
think we've done as good a job as we should.
    One of the things that I'd like to see happen in the future 
is for us to be able to develop more of a template HCP that 
could be utilized readily, pulled off the shelf in a particular 
area for certain species, and use that as a way of streamlining 
the cost and the process.
    We actually did issue an HCP handbook, a jointly prepared 
Fish and Wildlife Service NMFS HCP handbook that was designed 
to try to provide people with a greater understanding going in 
on what are the different steps, what are the different offices 
you need to work with, what are the questions you need to be 
prepared to ask, and in the back of that my recollection is we 
tried to come up with a template model of a small-scale, low-
impact HCP.
    So we are trying. I don't think we have perfected it. It's 
the one area that I would like to spend more time, personally, 
focusing on.
    Senator Crapo. I appreciate that, and I would encourage you 
to do so.
    Before we conclude, Senator Lautenberg, did you have any 
further questions of this panel?
    Senator Lautenberg. No. I'm satisfied. I'm listening very 
carefully, Mr. Chairman. You asked almost everything I wanted 
you to.
    Senator Crapo. All right.
    Well, thank you. We appreciate your time and your effort 
and we'll continue to work with you on this issue.
    Mr. Barry. Thank you.
    Ms. Medina. Thank you very much.
    Senator Crapo. This panel is excused.
    I'd like to call up the second panel now.
    The second panel consists of: Dr. Lorin Hicks, the director 
of Fish and Wildlife Resources for Plum Creek Timber Company; 
Mr. Steven Courtney of Sustainable Ecosystems Incorporated out 
of Portland, OR; Mr. Mike O'Connell of The Nature Conservancy; 
Ms. Laura Hood of the Defenders of Wildlife; and Mr. Gregory A. 
Thomas, president of the Natural Heritage Institute.
    I don't think that the name plates are in the same order 
that I read them, but we'll go in the order that I read them.
    Dr. Hicks.
    While we're getting ready, I'll remind this panel that this 
is a larger panel, and therefore we ask you to pay even closer 
attention to the lights so that we do have the time for the 
questions and the interaction among the panel members, and I 
will advise this panel, as well, that your full written 
statements, as well as any other material you would like to 
submit, will be made a part of the record.
    Dr. Hicks, you are welcome to begin at any time when you 
are ready.
    I also encourage each of you, when it is your turn, to pull 
the microphone as close as you can to your mouth so that we can 
hear you. Sometimes it is hard in this room unless the 
microphone is very close to you. Thank you.

     STATEMENT OF LORIN HICKS, DIRECTOR, FISH AND WILDLIFE 
       RESOURCES, PLUM CREEK TIMBER COMPANY, SEATTLE, WA

    Mr. Hicks. Good morning, Mr. Chairman and members of the 
committee. I am Dr. Lorin Hicks, and I am a ``recovering'' HCP 
applicant. I am also director of Fish and Wildlife Resources 
for Plum Creek Timber Company, Incorporated. Plum Creek is the 
fifth-largest private timberland owner in the United States, 
with over 3.3 million acres in six States.
    I am here today to talk about how important habitat 
conservation planning is to our leadership in environmental 
forestry. Habitat conservation planning promises to be the most 
exciting, progressive conservation initiative attempted on non-
Federal lands in this country.
    Plum Creek is no stranger to habitat conservation planning. 
Plum Creek's Central Cascades HCP, a 50-year plan covering 285 
species on 170,000 acres, was approved in 1996. We are 
currently working on another called the ``Native Fish HCP,'' 
covering 1.7 million acres in three northwest States. A third 
HCP for red-cockaded woodpeckers in the South is under 
development with the Fish and Wildlife Service.
    In 1995, we also initiated an 83,000-acre grizzly bear 
conservation agreement in Montana's Swan Valley.
    Since 1974, few issues have been surrounded with more 
controversy than the Endangered Species Act. It is often 
criticized as unworkable and characterized as iron-fisted. 
Regardless of its image, its impact on landowners has been 
profound. My company, Plum Creek, is no exception. Our 3.3 
million acres supports no less than 12 federally listed species 
and others, such as salmon and lynx, which have been proposed 
for listing.
    This committee faces a critical question. Can HCPs continue 
to work for landowners and for endangered species into the 
future? This hearing hopefully will give the committee insights 
in the underlying science and principles that drive HCPs.
    Two of the fundamental foundations of HCPs are under great 
pressure.
    First, the No Surprises policy, which is critical for 
landowners to undertake an HCP, is being challenged. It 
provides the necessary incentives for landowners to undertake 
the costly and resource-intensive process to complete a habitat 
plan. To ensure that the program remains strong, we believe 
that it should be codified.
    Second, pressures mount to standardize HCPs and compare 
them to each other, with a tendency to use each one to raise 
the bar for those which follow. In my opinion, this one-size-
fits-all approach is precisely what has challenged ESA since 
its inception and could be the most important deterrent to the 
inclusion of small landowners in the HCP program.
    It is important to understand that HCPs are as different 
from one another as landowners and land uses. They are as small 
as one homesite and as large as 7 million acres. They are as 
short in duration as one construction season and as long as 100 
years. They are as focused as a single species and as expansive 
as hundreds of species. And, importantly, each landowner has a 
different incentive for entering this voluntary process.
    To help demonstrate this, I have attached a new booklet 
just produced by the Foundation for Habitat Conservation 
providing brief case histories of 13 HCPs from around the 
country. These case studies give better definition to my point 
that HCPs vary widely in scope and intent, and I recommend this 
document for you to review. These examples give credence to the 
notion that HCPs can be an effective tool for conservation.
    Let's dispel a myth that HCPs are not based in science. 
When my company, Plum Creek, created its first HCP, we took on 
a very complex challenge. Not only did we have four listed 
species in our 170,000-acre Cascades project area, but 281 
other vertebrate species, some of which would likely be listed 
within the next few years. Combine this with the challenges of 
checkerboard ownership, where every even-numbered square mile 
section is managed by the Federal Government under their new 
Northwest Forest Plan, and you have a planning challenge of 
landscape proportions.
    To meet this challenge, we assembled a team of scientists 
representing company staff, independent consultants, and 
academic experts. We authored 13 technical reports covering 
every scientific aspect, from spotted owl biology to watershed 
analysis. We sought the peer reviews of 47 outside scientists, 
as well as State and Federal agency inputs.
    As a result of these inputs, we made technical and tactical 
changes to the plan, and additionally we developed working 
relationships with outside professionals that were invaluable 
and have been maintained to this date.
    Let's also dispel the myth that the public has no access or 
input to HCPs. During the preparation of the Cascades HCP, 
which took 2 years and $2 million, we conducted over 50 
briefings with outside groups and agencies to discuss our 
findings and obtain additional advice and input. During a 
public comment period, all HCP documents and scientific reports 
were placed in eight public libraries across the planning area.
    I brought with me today some of the major documents from 
the Plum Creek Cascades HCP, which was completed in 1996. These 
documents include the draft and final EIS, the final plan, a 
compendium of the 13 peer-reviewed technical reports, and this 
is a notebook with all of the Federal decisionmaking documents 
that were completed, including the biological opinion and the 
statement of findings.
    This is all part of the public record and part of the 
documentation of our HCP.
    We continue to publish our scientific work that myself and 
my team completed for this in technical publications. For 
instance, we do have a paper in this month's ``Journal of 
Forestry'' on spotted owl habitat research that we did 
preparatory to the HCP.
    Today, Plum Creek is nearing completion of a new HCP. This 
new plan focuses on eight aquatic species and covers 1.8 
million acres of our lands in Montana, Idaho, and Washington. 
The company and the Services have been working over 2 years on 
this plan, which will be the first HCP for the Rocky Mountain 
region.
    To provide a scientific foundation for this HCP, I 
assembled a team of 17 scientists that authored 13 additional 
technical reports spanning topics from fish biology to riparian 
habitat modeling. These technical reports were peer reviewed by 
30 outside scientists and agency specialists.
    We have all made the technical reports and white papers 
available to interested parties on this CD, and have done so 
well in advance of the public release of the HCP, which is 
scheduled for September 1.
    The good news is that anyone can have access to the latest 
science and technology used in the development of the HCP.
    My point here is to emphasize that for Plum Creek and other 
applicants the HCP process has been a principal catalyst for 
private landowners to undertake unprecedented levels of 
scientific research and public involvement.
    I'll rush ahead here and make sure that I can get my time 
done here.
    Mr. Chairman, these HCPs are not only science plans but 
also business plans which commit millions of dollars of a 
company's assets in a binding agreement with the Federal 
Government.
    In the Pacific northwest, the stakes are high for both 
conservation and shareholder value in private timberlands. The 
consequences of failure are so ominous for both interests that 
careful evaluation of the economic and ecologic ramifications 
are essential to successful completion of HCPs. Guesswork is 
not an acceptable alternative for either the Services or the 
applicant.
    As enthusiastic as we are about HCPs, the process is not 
without its faults. Since our first foray into HCPs, we've 
noticed some significant shifts in policy and practice. One 
downstream effect of the five-points policy has been the 
requirement of the Services to more-thoroughly analyze the 
effects of adding multiple species to the HCP, resulting in 
deletion of conservation measures for lesser-known species 
because the Services lack the information needed to complete 
their new requirements. This creates a major obstacle for 
completion of multi-species plans.
    There is a need for the Services to commit necessary 
resources and personnel to the development of HCPs from 
beginning to end, a period often as long as 2 years. Far too 
often, we experience shifts in key agency staff and biologists 
whereby professional experience is lost and continuity in plan 
development is broken.
    Once the majority of the scientific content of the plan has 
been completed, we have experienced excessive focus on 
relatively minor technical details. These are often speculative 
or hypothetical issues that are unproven in the literature but 
for which there are strong emotional concerns. In other words, 
with 95 percent of the scientific work completed, most of the 
debate centers on the remaining 5 percent, creating unnecessary 
delays.
    As we near completion of the native fish HCP, we are again 
reminded of the duplicative nature of the HCP and NEPA 
processes. The HCP is, by definition, a mitigation plan for the 
potential impact of lawful operations on listed species and 
their habitats. The NEPA process also requires a similar 
assessment of the HCP and management alternatives. Not only 
does this add additional expense and resources to duplicate 
work already done, but requires additional review and response 
by the Services.
    Senator Crapo. Your time has expired. Could you try to wrap 
up quickly?
    Mr. Hicks. OK.
    As you are aware, many of the HCPs being completed in the 
West require both the Fish and Wildlife Service and the 
National Marine Fisheries Service to work with the applicant 
and approve their final plan. Despite their efforts, these two 
agencies do not work in sync. The agencies provide varying 
levels of technical support to applicants. The combined effect 
of this lack of interagency coordination is further time delays 
to the applicant.
    Mr. Chairman, I thank you for the opportunity to testify.
    Senator Crapo. Thank you. And your full testimony is a part 
of the record.
    Mr. Hicks. Thank you, Sir.
    Senator Crapo. Next we'll hear from Mr. Steven Courtney.
    Dr. Courtney.

STATEMENT OF STEVEN COURTNEY, SUSTAINABLE ECOSYSTEMS INSTITUTE, 
                          PORTLAND, OR

    Mr. Courtney. Good morning. I am Steven Courtney, a 
biologist and vice president of Sustainable Ecosystems 
Institute.
    SEI is a nonprofit organization dedicated to using science 
to solve environmental problems. We are not an advocacy group, 
and our charter states that we will not engage in litigation. 
Instead, we believe that cooperative programs using good 
science can find lasting solutions.
    My testimony will focus on the positive lessons that can be 
learned about HCPs. I'll also make some suggestions for 
improving the process.
    The staff of SEI has acted in many ESA issues. Most of our 
work is for governments, but we also work closely with both 
industry and environmental groups. I, personally, have been 
involved with six HCPs and was an advisor to Dr. Kareiva on the 
AIBS project.
    I will report on two issues: the recently completed Pacific 
Lumber HCP and the SEI Santa Barbara meeting on how to 
integrate science into HCPs.
    Let me first State that HCPs are important to conservation. 
Without them, there would be few options for management of 
endangered species on non-Federal lands. Rigorous scientific 
analyses are crucial to those plans; however, science is just 
part of any HCP, which is a management document.
    Ultimately, the plan is a result of a negotiation and of 
decisions made by landowners and regulatory agencies. Science 
can help in this process, but it is not a magic bullet. 
Scientists can provide information on planning objectives and 
options and on the biological consequences and risks of these 
options. The better the information we provide, the more likely 
the planners can then make good decisions.
    In the Pacific Lumber HCP, we used science to diffuse a 
controversial situation. We coordinated a large scientific 
program on the threatened marbled murrelet. Federal, State, and 
private scientists all cooperated to determine the effects of 
different management options.
    Ultimately, the program was successful in that it provided 
clear guidance to the decisionmakers. Several items stand out.
    First, the program was very well-funded by the company, 
which invested heavily in obtaining good scientific 
information.
    Second, the quality of the scientific work was improved by 
an independent advisory group or peer review panel. In this 
chart I show here, I show the results of an independent audit 
to the PalCo HCP using the very same techniques that were used 
in the AIBS study by Dr. Kareiva and his group.
    You will see that the green symbols indicate the original 
draft for the PalCo HCP and the red symbols equal the final 
draft, and you can see the change in performance on many 
different criteria, and the blue are the performance of four 
other unnamed plans.
    You will see that the quality of the HCP did improve 
dramatically from the early to the final draft under the panel 
guidance. Note also that the final plan outperforms its other 
murrelet HCPs.
    A third important point on the Pacific Lumber HCP was that 
the scientists were not asked to make management decisions. The 
separation of roles is key. The use of good science can build 
trust between parties precisely to the extent that scientists 
avoid becoming advocates.
    Now, I am pleased that Dr. Kareiva in his written testimony 
agrees that the PalCo monitoring plan uses good science. This 
monitoring program was developed using the most-advanced 
analytical techniques available.
    The AIBS study was useful in pointing out that not all HCPs 
do use such methods, or even information that already exists; 
however, that information--the AIBS study of Dr. Kareiva--was 
essentially a research study, an academic study. It did not 
address important practical considerations, as Mr. Barry has 
already said, and it didn't really discuss how to improve the 
process.
    In April of this year, SEI brought together leading 
decisionmakers and scientists to develop those practical 
improvements, and participants were from a broad range of 
groups. Working by consensus, we identified numerous ways to 
strengthen the process, as outlined in the minutes of that 
meeting.
    There was, for instance, general recognition, a message 
you've already heard, that the regulatory agencies and many 
applicants lack the sufficient resources for the technically 
demanding tasks they face. Academic and other scientists could 
help to bridge those gaps, but they lack incentives or 
opportunities to do so.
    Most importantly, there are actually significant barriers 
to making more effective use of science. We need new 
infrastructure to make that use of science possible.
    The SEI Santa Barbara group initiated development, for 
instance, of a national peer review program for HCPs. We are 
now working to make that a reality and have expanded our group.
    By this consensus approach, we are seeking voluntary 
improvement to HCPs. By improving the science in their plans, 
permit applicants will then smooth the negotiation process, 
save time and money, and gain certainty.
    The general public also wants to see better science in 
HCPs, and an open peer review process will improve public 
confidence.
    Last, if I could just have 1 second to comment on previous 
testimony, you've heard that science is doing pretty well in 
HCPs, but there are some improvements that are possible. I want 
to emphasize that the HCP process, itself, is not in an 
entirely healthy state. I know that numerous applicants are 
talking or have walked away from the table, and that there is a 
need to improve the process for everyone's sake, and that 
science may be one way that we can do that.
    Thank you.
    Senator Crapo. Thank you, Dr. Courtney.
    Mr. O'Connell.

 STATEMENT OF MIKE O'CONNELL, THE NATURE CONSERVANCY, MISSION 
                           VIEJO, CA

    Mr. O'Connell. Thank you very much, Mr. Chairman and 
members of the committee. Thank you for the opportunity to 
address the committee on the science of regional conservation 
planning under the ESA.
    The Nature Conservancy has been involved in conservation 
planning almost as much as Don Barry, since the ESA 
reauthorized section 10(a) in 1982. I, myself, have worked both 
on the ground and as a student of HCPs for 12 years, and so the 
observations I want to offer and comments reflect both 
Conservancy's experience and my own.
    When I was reviewing my testimony last night, I realized 
that my written testimony perhaps came across a little bit 
harsher about habitat conservation plans under section 10(a) 
than I had intended. And in fact, what I want to talk about is 
not that HCPs are bad, because I don't believe they are--I 
believe they are, in fact, a good thing for what they are--but 
I want to talk about what they are and what they are not and 
how some scientific improvements can actually help them become 
better and solve some of the endangered species conflicts that 
I think they do not.
    Part of the problem I think is that HCPs are, in fact, a 
reactive process, generally. They are developed in response to 
proposed impacts on generally listed species. You don't have a 
listed species, you don't have a prohibition problem under 
section 9, and you don't end up generally getting an HCP.
    And part of the problem, as well, is that HCPs have 
generally focused on the wrong biological scale, not that 
focusing on a species scale is bad, but that they miss an 
entire scale of conservation that is important, and that is of 
the natural community or the ecosystem level.
    I think it is important to compliment the Fish and Wildlife 
Service on their work to improve the habitat conservation 
planning program. They've done their best to try to make it 
work and make it more conservation-oriented, both through 
practice and through policy. Their solutions, however, are 
limited by a legislative policy that is weak on natural systems 
conservation, and it is also weak on incentives to 
participants.
    I think the Service has done pretty well, all things 
considered, with habitat conservation plans. So what's the 
answer from a scientific standpoint?
    I think the key is how we focus our entire suite of 
conservation actions, including HCPs and how they are deployed.
    I want to name a couple of scientific principles that are 
important to consider if we want to achieve broad-scale natural 
community conservation under the Endangered Species Act with 
HCPs as a part of that tool.
    First, biodiversity conservation is important to consider 
at many different spacial and temporal scales. HCPs, by their 
definition, by their nature, by their legal definition, 
generally are focused on the species level and they are 
generally focused on listed species or species that are going 
to be listed very shortly in the future.
    There is never one best scale for conservation action. The 
key is to find the appropriate scale for the problem and 
integrate across a number of different scales in an overall 
conservation strategy.
    The second principle is that ecosystems are much more 
complex than we think. Science can never provide all the 
answers to questions about conservation, so our responses 
should be to exercise caution and prudence when we are 
designing answers. A good example of this is the adaptive 
management that people have spoken about.
    Third, nature is full of surprises. Ecosystems are 
characterized by non-linear, non-equilibrium, and random 
dynamics, and unexpected events will occur. The question is not 
whether there are No Surprises, it is whose responsibility 
those surprises are assigned to.
    Fourth, conservation planning is interdisciplinary, but 
science is the foundation. I think this is important, because 
frequently science is treated in habitat conservation planning 
negotiations as sort of a seat at the table rather than what it 
should be, which is a method of evaluating how to reach 
specified objectives.
    This raises the critical question of how to integrate both 
scientists and scientific information in the process.
    So what are some potential solutions? Given these important 
principles and the limitations of habitat conservation plans, 
both from a scale and a scope perspective, I think there are 
some improvements that can be made, and I will quickly go over 
them.
    The natural community conservation planning program in 
southern California that I have been involved in for the past 5 
years is an attempt to move beyond the reactive conservation 
planning of tradition to a more up-front, creative program that 
looks at not only endangered and threatened species but 
preventing--conserving natural communities and preventing these 
conflicts from occurring in the future.
    The most critical improvements that this program has made 
is clear regional scientific guidance developed in order to tie 
individual conservation plans and permits together.
    Also, the habitat level of conservation action that was 
taken, less concerned with individual species and where they 
might occur today, their occupied habitat, as it is with 
constructing a regional conservation system that will protect 
both species and the natural communities that sustain those 
species. And then, finally, how biological information has been 
brought to bear on the process.
    This includes comprehensive management and monitoring, and, 
as I said before, the two most important, I think, things for 
that are regional conservation framework, regional guidance, a 
vision of what the regional conservation strategy will look 
like, more than just species and impacts to those species, and 
then a habitat basis for conservation planning and action that 
I hope I can expand upon in the question and answer session.
    I would encourage you to take a look at my written 
testimony, and I appreciate the opportunity to testify today.
    Senator Crapo. Thank you, Mr. O'Connell. We will carefully 
review the written testimony, as well, and, in fact, have 
already to a certain extent and will further.
    Senator Crapo. Ms. Hood.

STATEMENT OF LAURA HOOD, DEFENDERS OF WILDLIFE, WASHINGTON, DC.

    Ms. Hood. Thank you for the opportunity to testify today 
before the Senate Subcommittee on the scientific aspects of 
habitat conservation plans.
    I am with Defenders of Wildlife, a nonprofit conservation 
advocacy organization based in DC. with over 300,000 members 
and supporters.
    Defenders' mission is to protect native animals and plants 
in their natural communities. As an organization that is 
committed to science-based management of endangered species, 
Defenders has been heavily involved in individual HCPs, as well 
as HCP policy, on a national level.
    The results of our scrutiny of the program reveals that 
significant improvements must be made to HCPs in order to 
improve the scientific basis for them and to reduce the risk 
that they impose to endangered species.
    Starting in 1996, Defenders started research on HCPs that 
would--culminate in our 1998 report on the topic, entitled, 
``Frayed Safety Nets.'' In researching this report, we reviewed 
plans nationwide, then we selected a representative sample of 
24 plans and evaluated them using criteria that should be 
satisfied in order for plans to lead to conservation benefits 
on private land.
    In the course of the research, we read each plan and 
associated documents, we interviewed key plan officials, and we 
looked at any recovery plans for the species.
    The report itself focused on the science, public 
participation, funding, and legal aspects of HCPs.
    Our objective was to point out the best and worst examples 
of those aspects of HCPs and to examine national trends.
    Our findings showed that, as they were being implemented, 
many plans represented large risks to endangered species 
because often they lacked an adequate scientific basis, they 
were difficult to change if they resulted in unanticipated harm 
to species, and they were often inconsistent with species 
recovery.
    We identified the need for more scientific information to 
provide a platform to support well-informed HCPs. In the study 
of HCPs led by Dr. Peter Kareiva, scientists took a more 
quantitative approach to this same issue, and that study also 
pointed out that substantial scientific data are often missing.
    For example, in two-thirds of the cases that were reviewed, 
there were no data available for the proportion of the total 
population that would be affected by the HCP.
    I propose two classes of recommendations in response to the 
need to improve the scientific basis of HCPs.
    First, I agree with the panel of scientists in yesterday's 
hearing in calling for increased, organized information on 
species and habitats.
    Second, I recommend policy measures for moving forward with 
HCPs when scientific uncertainty exists, while still reducing 
risk to species.
    But before I get to the risk management for species, let me 
explore opportunities to increase scientific information for 
HCPs.
    First, we already have several tools in the Endangered 
Species Act for addressing this. Recovery plans can be 
excellent repositories of information on species, provided that 
they are well-informed, peer-reviewed, and adaptive.
    Having information-rich, updated recovery plans to guide 
HCPs puts HCPs within the sphere of recovery, which is where 
they belong. Similarly, critical habitat designation also 
provides essential information about the ecology and 
distribution of species and habitats.
    Outside the Endangered Species Act, large-scale ecosystem-
based protection plans are being developed, and these 
strategies may allow us to understand how HCPs fit within the 
larger landscape.
    And, finally, to improve the quality of science in HCPs, 
independent scientists need to be more involved in the 
development of HCPs, whether through consultation or formal 
peer review.
    That being said, despite our best efforts, scientific 
information for HCPs will never be complete. This scientific 
uncertainty does not mean that HCPs cannot go forward. It is 
essential to recognize scientific uncertainty in the HCP 
process and to implement procedures for managing risk to 
species.
    My second set of recommendations has to do with this risk 
management.
    First, when information is scarce, precautionary measures 
can be incorporated into HCPs in multiple ways, including 
increasing protection for species up front as a buffer, 
ensuring that mitigation is successful before a take occurs, 
and limiting the duration of HCPs and assurances.
    Second, adaptive management is an essential component of 
scientifically based HCPs. Unfortunately, under No Surprises 
adaptive management is fundamentally restricted by the fact 
that no additional money or land can be required of the 
permittee.
    While assurances are clearly important for private 
landowners, I would like ``no surprises'' to become ``earned 
assurances.'' That is, currently landowners receive assurances 
automatically when HCPs are approved. I would like to see a 
system where landowners earn those assurances, based upon the 
likely benefit or the impact to the species, the amount of 
scientific uncertainty involved in the plan, and the amount of 
monitoring and adaptive management that is involved in the 
plan.
    With that point, I'll conclude. Thank you very much.
    Senator Crapo. Thank you very much, Ms. Hood.
    And, finally, Mr. Thomas.

  STATEMENT OF GREGORY A. THOMAS, PRESIDENT, NATURAL HERITAGE 
                  INSTITUTE, SAN FRANCISCO, CA

    Mr. Thomas. Good morning, Mr. Chairman. Good morning, 
Senator Lautenberg. I'm Greg Thomas. I'm the president of the 
Natural Heritage Institute, a nonprofit conservation 
organization located in San Francisco.
    My statement today reflects the reality that the HCP 
process must be made to work because there just is no other 
vehicle for protecting endangered species habitat in lands and 
waters subject to private rights, and the objectives of the ESA 
cannot be met without conserving such habitat.
    That's clear when you consider that for 80 percent of 
listed species some portion of their habitat is found on 
private lands, and for 50 percent their habitat is found only 
on private lands.
    Yet, the HCP process so far has not kept pace with the 
biodiversity challenge. This is revealed by one of the many 
useful statistics coming out of the NCEAS review that Dr. 
Kareiva testified about yesterday.
    It points out that 62 percent of species are declining in 
areas covered by HCPs. Now, making HCPs work has two 
dimensions, we believe: first, producing conservation 
strategies that contribute toward the long-term survival of the 
species and the associated elimination of their habitat needs 
as a development constraint; and, second, apportioning the 
burdens and responsibilities among the rights holders and the 
public in a manner that produces the appropriate inducements.
    Now, the science of conservation planning can be better 
utilized in the HCP process to advance both of those 
dimensions.
    After 17 years of operating experience with HCPs as the 
principal vehicle for conserving biodiversity on private lands, 
it is now possible to take stock of what is working and what is 
not and how the process can be improved.
    With that objective in mind, in June last year NHI, my 
organization, convened a technical workshop to synthesize the 
results of the dozen or so empirical reviews of the performance 
of HCPs that have been conducted to date by academic 
researchers, practicing conservation biologists, and national 
environmental organizations.
    Incidentally, that workshop included four of the witnesses 
and institutions that you've heard from at this hearing--Dennis 
Murphy, the NCEAS review, Michael O'Connell and The Nature 
Conservancy, and Defenders of Wildlife--so most of the good 
lines have already been taken by previous witnesses.
    But let me summarize a few of the findings and 
recommendations on how this HCP process might be redesigned in 
a manner that could benefit both species and applicants for 
incidental take permits.
    First, HCPs for individual landholdings would work better 
if they were designed to fit within the context of a more 
systematic habitat-wide or bioregional conservation strategy. 
Michael O'Connell has already explicated this point in some 
detail, and I hardly need to repeat what he has said.
    But the central point here is that the optimal planning 
unit for habitat conservation is not the individual landholding 
or the water diversion. The optimal focus is not an individual 
listed species. What we want to do here is create a portrait, 
if you will, that is a picture of long-term survival of the 
species.
    If you want to think of this as a mosaic, then the 
individual habitat conservation plans, the parcel-by-parcel 
plans, are the tiles in this mosaic, and all we're saying here 
is that if you want to create the picture you have in mind, 
you'd better know what that portrait looks like before you 
start designing the individual tiles.
    We need a master plan, in other words, for this process to 
work optimally, and that master plan is a landscape-scaled plan 
that is going to require a more proactive and less reactive 
stance by the Services to produce, and that's part of where the 
reallocation of the burdens of habitat planning probably needs 
to take place. This spells Federal dollars, and there is no 
masking that.
    The advantages of this approach are many and are outlined 
in the written testimony in some detail. Landscape-level 
planning can specify the overall conservation effort that is 
required and provide a basis for determining and apportioning 
the contribution that needs to be made by the individual rights 
holders.
    There is no mechanism at present under the act for 
apportioning burdens as between incidental take permit 
applicants and public lands. Basically, whoever gets there 
first tends to cut the best deal.
    It is more feasible to calibrate habitat conservation 
planning to long-term survival rather than simply minimizing 
impacts, and that's important because, as long as habitat 
conservation planning is viewed, rightly or wrongly, as nickel-
and-diming endangered species further toward the brink of 
extinction, it is going to remain controversial.
    What we need is to set up a process that provides some 
assurance of net survival benefit for these species.
    I am perhaps a fifth of the way through the comments that I 
intended for you this morning, so perhaps in the question 
period I can move into some other terrain.
    Thank you very much, Mr. Chairman.
    Senator Crapo. Thank you very much, Mr. Thomas.
    We thank the entire panel. We realize the 5-minute 
limitation makes it very difficult for all of you to get what 
you have to say said, and I assure you that we do review the 
written testimony very carefully.
    Senator Lautenberg, would you like to start out this round?
    Senator Lautenberg. If I might, Mr. Chairman, I want to 
again commend you. I think the witness group that we've had 
here is an excellent one, and we get kind of a different 
picture than is traditionally done in committee hearings, and 
I'm pleased to hear the concerns that are registered here about 
whether or not HCPs do what we want them to do.
    I would ask Ms. Hood, how many of the HCP policies that are 
approved thus far include the substance of the five-point 
policy guidance that we are focused on as one way to assure the 
quality of the HCP plan?
    Ms. Hood. Well, the five-point policy has recently been 
drafted and put under public comment, so it is a relatively new 
process that the Services have instituted.
    Senator Lautenberg. When was the five-point policy----
    Ms. Hood. I believe that it was out for public comment this 
past spring, so they are in the process of starting to 
implement it at this point.
    Senator Lautenberg. OK. So we can't really determine what--
if we look at the plans to date, there is no basis for 
considering the five points. But would you say that, without a 
clear definition, that in your examination of the HCPs thus far 
that they included much or enough of the five points to give us 
the value that you would like to see in these HCPs?
    Ms. Hood. I think that basically we have been pleased that 
the Services have promulgated this new guidance on HCPs, 
because the five-point plan does address many of the issues 
that we brought up as, you know, fundamental deficiencies in 
some of the HCPs that have been put forward in the past. The 
five-point plan addresses some of the problems that we did 
identify, including the need to include more public 
participation, the need to identify biological goals for plans 
so that you can judge the progress of plans based on what the 
plan was aiming to do for the species, and incorporating more 
biological monitoring and adaptive management. These are all 
changes that we really want to see included in HCPs and we're 
glad that they are listening to our concerns about them.
    I would say that one problem that we have is that the 
guidelines are not regulatory, they're not required of 
landowners, so we're still faced with the situation that No 
Surprises assurances are given to private landowners based on 
just the approval of the HCP, and, instead of having assurances 
be offered as an incentive to include the best adaptive 
management possible, biological goals that truly aim toward a 
benefit for the species that are involved, and some of these 
other recommendations from the five-point plan.
    Senator Lautenberg. It has been said many times this 
morning that the HCPs have been a substantial step forward in 
terms of protecting habitat, so I'm inclined to agree with 
that. And now what we are trying to do--and, once again, my 
compliments to the chairman because what we've done is ask the 
question today: ``How can we better assure that there is a 
standard that measures what these plans are expected to 
produce?'' And in order to do that you have to understand what 
it is that your requirements are. Are they based on something 
solid or are they based on just the--those of us who would like 
to protect the environment. I just announced which side I'm on, 
I guess.
    How many of the HCPs--anyone who would be inclined to 
answer--approved to date are based on a recovery standard so 
that they do not undermine the recovery of the endangered 
species?
    The chairman identified recovery as opposed to jeopardy as 
a matter of interest. What would any of you say regarding the 
fact that the recovery standard does not jump out at you as one 
of those standards that is included?
    Dr. Hicks.
    Mr. Hicks. Senator, if I could offer my attempt at an 
answer on that from my perspective, having been a designer and 
practitioner of several HCPs now, my understanding and the 
counsel I've given to my company is that, although we may not 
be necessarily adopting a recovery goal or recovery standard 
for the HCPs, our task and the counsel we've gotten from the 
agencies is that what we are planning to do under the HCPs 
should not somehow subvert or set back recovery of those 
species.
    Two perspectives to leave you with. When we did the 
analysis for the Cascades HCP, the Fish and Wildlife Service, 
in their decisionmaking documents, analyzed the approach we 
were taking in the HCP from the standpoint of the draft spotted 
owl recovery plan that was there at that time.
    They concurred that where we were instituting harvest 
deferrals and where we were leaving habitat for the owls was 
consistent with the direction that the Federal Government was 
taking in their recovery plan. We were putting them in the 
right areas, in other words.
    And so, although we were not necessarily emulating the 
goals, we were consistent with the plan and reviewed as not 
setting back the goals of recovery should those goals be 
implemented aggressively on Federal lands.
    The second point I want to make is that, with many HCPs--
for instance, our native fish HCP right now--we started 
development of this plan while the bull trout was a candidate 
species for listing. We thought about this being a candidate 
conservation agreement, or something you might do prior to the 
listing of a species.
    Because it has taken us over 2 years to develop this, we 
have now been into the development of the plan since the 
species has been listed, so we've converted the plan over to an 
HCP, as well as the other species along the road here that 
we're considering in the development of this plan.
    But there is no recovery plan for the bull trout and likely 
will not be before we are done with our plan, so the landowner 
is faced with a choice should he delay conservation, delay a 
notion, an idea of how to proceed ahead, or should he provide 
not only some conservation on the ground early for the species, 
but be able to obtain some regulatory predictability for his 
company in this shifting mosaic of recovery planning, as well 
as bring along some other species.
    For instance, in the native fish HCP, the west slope 
cutthroat is brought along and considered in the plan, and that 
has not yet--is still being considered for listing at this 
point.
    And so the point is that recovery plans are great. We can 
look at some of the tactics and techniques taken in those 
plans. But HCPs--one of the values is that it allows the 
landowner to get out ahead of recovery plans.
    Mr. Thomas. Senator, if I may----
    Senator Lautenberg. Yes.
    Mr. Thomas. As I think Don Barry affirmed this morning, the 
standard of performance for HCPs is basically whatever the 
negotiation process will yield. The Government seeks to get the 
best arrangement it can, and that means inherently--and let's 
not hide the fact--economics intrude. The best deal you can get 
is, to some extent, a function of the affordability of 
mitigation measures by the private rights holder.
    The better approach, as many of us have suggested, is to be 
able to calibrate these plans to some kind of an overall 
conception of what it will take to get this species out of 
difficulty and what contribution any individual HCP needs to 
make in that direction, and the extent to which the public fisc 
has to be willing to pick up the difference, which often will 
be the case. That's another benefit of landscape scale 
planning.
    Mr. O'Connell. Senator, if I might add, as well, part of 
the problem is that recovery is so difficult to pin down as 
what it actually is. I'm convinced that some people think 
recovery means there's so many of them running around you can't 
avoid stepping on them, and that's clearly not in a realistic 
definition.
    It is so different from species to species and from 
location to location. In San Diego County, which is one of the 
places I work, we have a plant called the ``otimesamint,'' 
which is a very narrow endemic species. It is restricted to a 
very narrow area and a narrow habitat type. There are three 
known locations of this plant species. They are all three 
protected under the conservation plan. Is that recovery? You 
could argue one way or the other about that.
    On the other hand, one of the species that is addressed 
under the conservation plan is the golden eagle, and San Diego 
County represents a tiny portion of the range of the Golden 
Eagle. I think there are five or six pairs that nest in the 
county. And those locations of the nests and the habitats 
surrounding them are protected, as well as the natural 
community and landscape that supports them. Is that a 
contribution to recovery?
    I think it is difficult to pin that down as a bright line 
that we would then judge the adequacy of HCPs on. On the other 
hand, I think it is important that we look at actions that are 
simply not holding actions--actions that don't just say, ``Are 
we keeping the ball from rolling further down the hill,'' but 
actually making a contribution.
    And, as Greg said, apportionment of that responsibility is 
an essential part of that equation, and that's not a scientific 
question at all.
    Senator Lautenberg. Mr. Chairman, I've taken more than my 
share, and I appreciate it. Perhaps we'll have an opportunity 
to submit a couple questions to the witnesses and would ask for 
their cooperation in responding back to us as quickly as you 
can.
    I thank you very much.
    Senator Crapo. Thank you very much, and you're welcome to 
ask further questions if you have time.
    Senator Lautenberg. I'll leave that to you, Mr. Chairman.
    Senator Crapo. Mr. Courtney, my first question is to you. 
Yesterday there was some discussion devoted to the concept of 
scientific standards and guidelines and the need for those. Do 
you believe that a set of scientific standards and guidelines 
would improve the quality of HCPs and the science with regard 
to HCPs?
    Mr. Courtney. That's actually a fairly difficult question, 
Senator.
    I'm fairly cautious about the need for a prescriptive 
approach with a cookbook and standards that we must all meet. I 
think you've heard from many of the other witnesses that we 
need flexibility in our approach and that each HCP is different 
and the issues that it deals with are different.
    I do, however, think that it has real value if we can find 
and define our goals up front.
    You've heard from some of the other witnesses on this panel 
that having a clear ecosystem-wide program of where we are 
going and a set of goals and, for instance, also the Fish and 
Wildlife Service proposal to provide goals at the time of 
listing, all those are positive steps, but I would be very 
cautious about ideas that we would have to have a particular 
sort of analysis or particular standard that we must meet in 
every HCP. I find that hard to see how we could achieve that.
    Senator Crapo. Thank you.
    Mr. Hicks, the issue of trying to address both No Surprises 
and adaptive management seems to raise some level of 
contradiction, although there are those who believe that it can 
be overcome. I think that Mr. Barry indicated he believed that 
that was something that could be addressed.
    How have you addressed those issues in the plan that you've 
worked out?
    Mr. Hicks. Mr. Chairman, I think that the term has been 
used several times about the dynamic tension between the No 
Surprises policy and adaptive management.
    It is important to realize that--and I think really this 
adaptive management, although it is viewed as learning by 
doing, it is more of a classroom term, probably better 
discussed in the classroom than practiced on the ground. It is 
a very difficult thing to actually put in on the ground.
    Within the context of HCPs, really adaptive management is 
an agreement between the Services and the applicant whereby 
management actions will be modified in response to new 
information.
    I view adaptive management as a way to address some 
significant leaps of faith, if you will, in HCPs where there is 
dependence on models or adoption of untested conservation 
measures.
    The policy may limit the amount of mitigation that can be 
required of an applicant unless unforeseen circumstances occur, 
but adaptive management provides the flexibility to deal with 
that uncertainty within the sideboards of the No Surprises 
policy.
    So, as an example of what we've done in HCPs, for instance, 
in our Cascades HCP, we used a model that I had developed to 
help us predict how many owls might be--how many site centers 
might occur in an area based on the configuration of habitat 
now and in the future, so we used adaptive management to focus 
our information-gathering, our monitoring to gather information 
to see if the model was working and to set some sideboards upon 
which how far the model should depart or could depart from our 
predictions before we had to sit down with the Fish and 
Wildlife Service and decide how do we respond to information 
that the model might not be accurately predicting occupancy of 
landscape habitat by owls.
    So we set some sideboards there to help with that, and it 
helps drive our monitoring program to gather information to get 
us to that end point.
    Senator Crapo. Thank you.
    Mr. O'Connell, you suggested in your testimony developing 
an endangered species problem-solving fund that would provide a 
strong incentive to private landowners to participate in the 
objectives of the ESA. Could you elaborate on that a little 
bit? How would that fund be created and used? What do you have 
in mind there?
    Mr. O'Connell. Yes. Thank you for asking that, because I 
wasn't able to get to that.
    One of the things that becomes clear when you look at when 
HCPs are initiated, which is with impacts imminent and with 
listed species which are pretty much at the brink of 
extinction, is that what the ESA requires in terms of 
conservation for those species and what is necessary to recover 
them, there's a gap between that. And part of the discussion 
over recovery is who is responsible for filling that gap.
    Senator Crapo. Right.
    Mr. O'Connell. I think it is very important that we 
recognize that, depending on--no matter what the assignment of 
responsibility is, there is going to be a public responsibility 
for part of that. We don't currently have a mechanism to fund 
the type of conservation that would improve habitat 
conservation plans from a conservation standpoint and be a fair 
allocation of resources from the private sector.
    So I would envision a fund like that as having benefits on 
both sides. That's why I was talking about it being a problem-
solving fund. It would help habitat conservation plans become a 
better conservation tool, contribute more to the recovery goals 
of the ESA, but also make them more workable and doable for 
private landowners and then therefore make them a better 
incentive there.
    Senator Crapo. Thank you.
    And I'm not going to miss you, Ms. Hood, but I want to skip 
to Mr. Thomas here, first.
    Mr. Thomas, in the context of this dynamic tension between 
adaptive management and the No Surprises policy and the 
proposals that are being talked about as to who is responsible 
for this, to make up the difference when adaptive management 
shows that more needs to be done, I'm aware that--at least it 
is my understanding that in some of your writings you have been 
critical of the No Surprises guarantee. Is that correct? If so, 
how would you approach the issue?
    Mr. Thomas. In my view, the way to reconcile the need for 
regulatory assurances with the adaptive management discipline 
is by converting the concept of No Surprises to a concept of no 
uncompensated surprises.
    The fundamental problem with No Surprises is that it flies 
in the face of biological reality, and it is not helpful, or at 
least it is not a sufficient answer to say we will negotiate 
the potential adjustments up front as a part of the initial 
deal.
    Well, when these deals last for decades and the data is as 
inconclusive as it often is, that isn't very satisfying. What 
would be far more satisfying would be an acknowledgement that 
we don't know enough to regulate for decades. We simply don't. 
And HCPs are nothing better than a set of testable hypotheses 
that need to be tested. And we need to abide by the scientific 
verdict that that testing will provide. And if that verdict is 
that adjustments in the fundamental deal are needed to 
accomplish the goals of the Act, then the question of 
apportioning that burden as between the rights holder and the 
public is a legitimate question.
    So, you know, what it seems to me can be negotiated up 
front is that apportionment of financial responsibility for 
adjustments if they prove to be needed, but the idea that 
somehow or another there are foreseen and unforeseen 
circumstances up front when you're dealing with plans of this 
nature is, frankly, wishful thinking, and that's the problem 
with the--it's too rigid in that respect.
    Senator Crapo. So if I understand you right, you're 
proposing that, in one way or another--I was interested by your 
concept of no uncompensated----
    Mr. Thomas. Right.
    Senator Crapo [continuing]. Surprises. So we identify up 
front that there almost certainly will be adjustments that need 
to be made, but the landowner is able to know up front what his 
or her responsibility economically will be if those 
developments take place.
    Mr. Thomas. Indeed. I mean, we analogize it to insurance. 
It is risk insurance. If there is a fund that could absorb 
unanticipated risks without that falling on the shoulders of 
the private rights holder, everybody is better off.
    And, incidentally, in exploring this concept with 
developers, one of the interesting potentials here is that the 
cost of debt service for developments where there is an 
appreciable risk of species complication, that cost can 
probably be reduced through this kind of an insurance concept.
    That means that, in a sense, a portion of the premiums for 
such an insurance can be defrayed through savings in the 
development scheme.
    So we tend to think this is a concept that has a lot of 
potential to it and needs to be examined.
    Senator Crapo. Before I go to Ms. Hood, did you want to say 
something, Dr. Courtney?
    Mr. Courtney. Yes. I would like to comment on that.
    I'm sure a lot of permit applicants would welcome the idea 
of having some insurance about what would happen if unforeseen 
circumstances did come along, but I would like to say, just 
coming from a purely scientific approach, that I think the 
notion of No Surprises precludes adaptive management should be 
knocked on the head, that we clearly do adopt many adaptive 
processes in HCPs, and sometimes the processes--the management 
changes that come into place can be quite dramatic.
    For instance, in the Pacific Lumber HCP for spotted owls, 
it is a performance-based standard, and if the spotted owls 
actually decline, the HCP moves to a no-take situation. That 
is, the company is not allowed to do anything which would harm 
the owl any further--that is, no more timber harvest. That's a 
fairly substantive change which is written into the plan.
    So adaptive management is really and the limits to adaptive 
management can often be seen as a test of our scientific 
ingenuity, and if we do the job right we can probably cover 
many of the circumstances that can be foreseen.
    Senator Crapo. Thank you.
    And, Ms. Hood, you indicated in your testimony--I think you 
used the word ``earned assurances'' as opposed to ``no 
surprises.''
    Ms. Hood. Yes.
    Senator Crapo. Would you like to comment on this entire 
question in that context?
    Ms. Hood. Yes. I think, like I said in my testimony, I 
think part of the problem that we've had with the No Surprises 
assurances is that they are granted as part of the normal 
approval process with no additional requirements associated 
with them. So, as we've seen from the other witnesses today, 
part of those approval standards can be--the bottom line can be 
quite low at times.
    If minimization and mitigation to the maximum extent 
practicable does not mean recovery in some cases, then that can 
be a problem for HCPs. And also the jeopardy standard is also 
not a strong standard for HCPs, as well. So what we'd like to 
see is earned assurances that are granted, as an incentive to 
go beyond what was required previously to earn those assurances 
through building in good adaptive management programs, like Dr. 
Courtney said, ``Sometimes these adaptive management programs 
can be quite complex and costly, and perhaps they should be 
rewarded with assurances for incorporating such adaptive 
management.''
    But right now we are in the situation where these 
assurances are granted and landowners are basically asked to 
incorporate these adaptive management flexibility programs. 
What we'd like to see is assurances be more of an incentive, 
and also to have some kind of economic mechanism whereby, when 
assurances are granted and we do need to step in and provide 
additional mitigation for impacts that were not anticipated, 
that there is some kind of economic mechanism for paying for 
some of that.
    And I would like to go back to one example where, over the 
decades, our scientific understanding has changed very rapidly 
about endangered species management. If we look back on the San 
Bruno Mountain HCP, the crafters of that HCP envisioned that 
for substantial areas on San Bruno Mountain, they wanted to 
clear out some of the exotic vegetation and restore some of the 
natural habitat for the butterflies that are imperiled on the 
mountain.
    Under that program, it has been much more difficult than 
they thought it would be to actually remove that exotic 
vegetation and restore that habitat, and it has been a lot more 
costly than they had anticipated, as well.
    So I think that, even going back to the first HCP, we can 
see that over time we need to be able to adjust the amount of 
money available and how that money is distributed to 
management.
    Senator Crapo. Mr. Hicks, did you want to comment on that?
    Mr. Hicks. Yes, Senator.
    In the practical discussions of development of an HCP--and 
I bring to case the native fish HCP, which we've been working 
on now for a couple of years with the agencies--really a major 
sort of rule of the road is that you either front-end load a 
lot of science and information on the species you would like to 
have addressed in the plan at the beginning, or else you'd 
better be prepared to be doing a lot of adaptive management and 
monitoring at the back end of the plan in order to verify or 
prove out some of the notions and hypotheses you have to begin 
with.
    This has really been a major counsel that I've given to our 
company, and a way that landowners should prepare to do HCPs is 
do as much on the front end science as you can so that you 
don't have to do as much on the back end to assure the agencies 
and the public that you know what you're doing.
    You won't be able to escape that. There is an obligation 
now, and it comes up all the time in discussion with the 
Services. It is: What sorts of issues should we put into that 
adaptive management corral and address at the end of the day? 
And usually, at least in my situation, one of the final stages 
of the HCP development we are in right now with the Services is 
that adaptive management program, because at this point we've 
discussed many of the technical issues. We've decided which 
ones we have confidence in and which ones we don't, and so 
adaptive management is usually that last thing and should be 
that last thing you look at so that you make sure that those 
questions are answered, especially in the case of some 
applicants where they may not have a lot of information at the 
front end.
    And, finally, one way to address the issue of risk is to 
shorten the permit period. For a landowner, if the agencies are 
uncomfortable with the approach he is taking, then, instead of 
it being a 30-year plan, it may be a 10-year plan at that end, 
so there are some ways in the process to compensate for that 
issue.
    Senator Crapo. Thank you.
    And did anybody else want to add anything else to this 
issue?
    Mr. O'Connell.
    Mr. O'Connell. Yes. I wanted to--I'm sorry, I'll save it 
for another issue. That's OK. It's not on this particular----
    Senator Crapo. Go ahead if you've got something on your 
mind.
    Mr. O'Connell. Yes. Actually, I did want to talk about one 
thing that I do feel is important, which is the small landowner 
issue that came up earlier.
    Senator Crapo. Yes.
    Mr. O'Connell. A question that is frequently asked when we 
talk about regional-scale visions and regional-scale planning 
is: How is the small landowner affected there? I think it is 
important to mention that.
    And we found that, in fact, regional conservation plans, as 
opposed to individual section 10 permits for small landowners, 
actually provide an economy of scale that eases that burden for 
small landowners. Most of the small landowner issues that arise 
are in urbanizing areas. That's where the parcels are smaller. 
And, in fact, in most of those areas local governments have 
been able to take on the burden of implementing the planning 
program and the conservation program, and that then provides a 
secondary benefit to small landowners in that they may be able 
to develop their entire parcel or they may be able to have 
their entire parcel bought if their entire parcel is one that--
--
    Senator Crapo. So a small landowner, if there was a 
regional plan in place, could just make sure that they were 
complying with the regional plan and take the benefit of the 
plan?
    Mr. O'Connell. That is exactly correct. And it ranges from 
the extreme of their entire parcel is important for 
conservation, and so therefore it can be purchased at fair 
market value, or their entire parcel does not fit into a 
regionally sound scientific conservation strategy and therefore 
it can be entirely developed, whereas if you were focusing on 
it as an ownership, exclusively, without that regional context, 
you may say, ``Well, your quarter acre, you have to do 
something on that,'' when, in fact, that quarter acre and the 
compensation for it may have very little consequence. So that's 
an economy of scale that is important for small landowners.
    Senator Crapo. Dr. Courtney.
    Mr. Courtney. I'd just like to followup on what Mike just 
said, and to expand also to address some of the issues about 
adaptive management and No Surprises in the context of the 
small landowner, because on a small HCP the potential for 
adaptive management is really non-existent.
    Something that came up out of our workshop in Santa Barbara 
was the notion that adaptive management sometimes operates on 
different scales to that of the individual HCP, and so, from a 
scientific point of view, we are allowed to learn from 
experience, but that doesn't factor into the small HCPs which 
are a done deal.
    For that to work--and so the particular message here is 
that adaptive management in this context is no conflict at all 
with No Surprises, but for that to work, what you need is 
monitoring and you need a regional perspective, a regional 
plan.
    You've heard from many of the witnesses, and I think we 
would all support the notion of regional planning which 
included a coordination of a monitoring program which is yet to 
happen in most circumstances, and most scientists I think would 
support such a thing.
    Mr. O'Connell. I'd encourage you to take a further look at 
what we've been working on in southern California because it 
does try to take these concepts, experiment with these concepts 
a step further on just those issues.
    Senator Crapo. I want to thank the panel for the testimony 
you've presented. We're running into some time constraints 
here, and so I'm not going to be able to ask any more of my 
questions right now. I've got pages and pages of questions 
here.
    The testimony we've heard over the last 2 days has helped 
me to identify a lot of not only issue areas but solution areas 
and potentials for finding the common ground between the 
competing concerns that I think could help us move forward and 
improve the HCP process.
    As I said, I do have a lot more questions, and I'd like to 
be able to spend more time here but can't, and in that regard I 
would like to submit questions to each of you, and I believe 
you'll probably get questions from some of the other Senators, 
as well. We'd ask that you respond to those.
    [The information referred to follows:]
    Senator Crapo. The committee is trying to develop a 
solution here and find something that can avoid the traditional 
battles we have over endangered species reform actions and form 
the basis of a positive step forward that can be achieved in 
the context of what is politically doable at this point in 
time, and I think that a lot of ideas that have been presented 
in your testimony here today, as well as in your written 
testimony, are good candidates for that type of reform.
    So if you would be willing, I will submit a number of 
questions to each of you, as well as ask you to be available 
for some of the other Members who were not able to make it here 
because of their schedules.
    Without anything further, this hearing is adjourned and all 
witnesses are thanked for their attention and their efforts.
    [Whereupon, at 11:36 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
 Statement of Donald J. Barry, Assistant Secretary, Fish and Wildlife 
                 and Parks, Department of the Interior
                              introduction
    Mr. Chairman and Members of the Subcommittee, I am pleased to be 
here today to talk about habitat conservation plans (HCPs). The Fish 
and Wildlife Service and the National Marine Fisheries Service have 
been using these plans as an important tool to conserve and protect 
threatened and endangered species. My testimony will discuss the 
science used in HCPs and provide specific examples. A list of all of 
the HCPs approved by the Service as of July 16, 1999 is attached.
   habitat conservation plans represent an innovative and successful 
                             permit program
    HCPs are authorized by Section 10(a)(1)(B) of the Endangered 
Species Act (ESA) to allow the incidental take of listed species in the 
course of an otherwise lawful activity. The Service has experienced 
tremendous growth in the demand for HCPs in recent years. You only need 
to look back to 1992 to see how different the landscape has become. In 
1992, 14 HCPs had been approved. As of today, we have 246 HCPs covering 
more than 11 million acres of land, providing conservation for 
approximately 200 listed species. More than 200 HCPs are in some stage 
of development. Numerous success stories are contained in the HCPs 
already approved, and we are currently working on a number of strong 
partnerships with local governments and the private sector through the 
HCP process.
    The HCPs that are in place today, and the demand for additional 
HCPs, clearly show a change in how Federal agencies work with private 
parties for species conservation. We have become partners with 
landowners. Local governments have incorporated HCP development into 
their planning process for growth in an unprecedented manner. The HCP 
process also can provide flexibility for landowners by including 
unlisted species, which enables the process to employ an ecosystem and 
landscape-level approach. This proactive approach can reduce future 
conflicts and may even preclude the listing of species, furthering the 
purposes of the ESA.
    Except for the need for additional funding, the Service is very 
pleased with where the program is today. The quality of approved HCPs 
is constantly improving, and we are making continuous strides in 
endangered species conservation through the use of this tool. In 
collaboration with the National Marine Fisheries Service (NMFS), the 
Service has made many refinements to the process in recent years. These 
refinements, as well as the collective knowledge gained from past 
years, are available to the public in a very useful HCP Handbook, 
issued jointly by the Service and NMFS in November 1996.
    The major strength of the HCP program is that it is a national 
scale program that readily allows for the development of local 
solutions to wildlife conservation instead of a one size fits all top 
down regulation. Applicants can explore different methods of achieving 
compliance with the ESA and choose the method that best suits them. The 
Service intends to continue to support this flexibility, and we expect 
that our increased emphasis on achieving biological goals over specific 
prescriptive measures will further applicants' flexibility.
    Without a doubt, the most frustrating issue with respect to HCPs is 
that this innovative, collaborative program is not receiving the 
necessary funding as set forth in Administration requests. HCPs also 
require money for implementation and monitoring to determine whether 
the biological goals are being achieved. The President's budget request 
for fiscal year 2000 clearly recognizes this reality. We asked for an 
increase specifically to address HCP development, monitoring and 
implementation in the fiscal year 2000 budget. However, the Senate did 
not fund our request. Without increased funding, we will not be able to 
adequately monitor HCPs to the extent desired by both supporters and 
critics of the HCP program. We encourage the members of the 
Subcommittee to support the President's fiscal year 2000 budget request 
for the endangered species program including the requested increases 
for HCPs. In the absence of adequate funding, some excellent 
opportunities may be lost or at least greatly delayed. A number of 
communities, such as Santa Cruz County, California, Laramie County, 
Wyoming, and the wheat growers in Douglas County, Washington, are eager 
to proceed with development of their HCPs and have many good ideas but 
lack the initial funding to get the process underway. As the demand 
increases, we want to approve more HCPs that incorporate sound science, 
partner with public and private parties, and create win-win solutions 
for species conservation and development.
              habitat conservation plans are working well
    In general, HCPs that are currently in operation are working quite 
well. First, the permitters have displayed a high level of commitment 
to and compliance with their HCPs. In fact, many permitters have shown 
enthusiasm in sharing their early successes with the Service and the 
public. Second, although the program is young, tangible results are 
already apparent in many approved HCPs. The following examples 
represent just a few of the HCPs that are accomplishing their 
objectives as expected.
Red-cockaded woodpeckers
    The Service's red-cockaded woodpecker (RCW) program provides a 
showcase of how Section 7 and Section 10 work together across the 
landscape to achieve conservation. For private lands, the program 
emphasizes implementation of novel and flexible conservation 
strategies, including the HCP process and Safe Harbor agreements, both 
of which are contributing significantly to species recovery objectives.
    RCW HCPs provide an excellent example of the ability of HCPs to 
involve a wide array of applicants, both large and small, who are 
interested in finding solutions to endangered species land management 
challenges. Past and current applicants include large industrial forest 
landowners, small ``mom and pop'' woodlot owners, development 
corporations, quail plantation owners, non-industrial forest 
landowners, and State wildlife agencies. The 12 non-industrial timber 
RCW HCPs that have been completed to date and the five currently being 
developed exemplify the versatility and appropriateness of the HCP 
process. The 12 permits that have been issued in seven states 
authorized the incidental take of 29 RCW groups; the mitigation for 
this incidental take involved the potential establishment of 54 new RCW 
groups on other private and/or public properties. Tangible conservation 
benefits delivered by HCPs include: (1) increasing the size and 
therefore the demographic viability of recovery or support populations, 
(2) stabilizing and/or maintaining small, at-risk recovery or support 
populations, and (3) rescuing very small, demographically isolated 
(i.e., biologically doomed) RCW groups from fragmented landscapes. 
Seven of the 12 HCPs have been successfully completed with all 
mitigation requirements being met and the other five are in progress 
and are fully expected to succeed.
    With respect to industrial timber lands, the Service has entered 
into conservation partnerships with nine corporations (Georgia-Pacific, 
Hancock Timber Resource Group, Champion International, Westvaco, 
Weyerhaeuser, Potlach, International Paper, Norfolk Southern Railroad, 
and Temple Inland). In total, these corporations have established 
115,560 acres as RCW management areas and are protecting 309 RCW 
groups, with the goal of raising this number to 338-RCW groups.
    The Safe Harbor concept originated in the North Carolina Sandhills 
as an innovative response to a decline in available unoccupied RCW 
habitat. In order to encourage landowners to manage their land in a way 
that benefits RCWs, the Service announced the Safe Harbor policy, which 
provides assurances that RCWs attracted to property as a result of 
active management for the species will not cause new restrictions to 
attach to that property.
    Safe Harbor effectively eliminates the regulatory disincentive that 
is normally associated with attracting listed species to new lands and, 
thus far has proven to be successful in attracting landowners who 
otherwise may not participate in species protection programs. As of 
October 1, 1998, the number of acres involved in the North Carolina 
Sandhills Safe Harbor program included: 19,023 acres enrolled under 23 
agreements; 6,380 acres under 4 agreements awaiting landowner 
signature; and, 7,174 acres under 16 agreements currently in 
preparation. The 23 currently enrolled parcels provide nesting and 
foraging habitat for 46 groups of red-cockaded woodpeckers. Interest in 
the Sandhills Safe Harbor Program has far exceeded our expectations. In 
less than 3 years, 43 landowners have been enrolled or are in the 
process of enrolling in this program; a total of 32,577 acres will be 
enrolled by the end of fiscal year 2000. The size of currently enrolled 
properties ranges from 3 to 3,300 acres. By reducing and/or eliminating 
regulatory disincentives, Safe Harbor has provided an effective way to 
increase available RCW habitat and population numbers while providing 
landowners with land management flexibility. The program has involved a 
diversity of landowners. They include golf course owners, nonindustrial 
forest landowners, horse farms, and small property landowners.
    In response to the overwhelming success of Safe Harbor in the 
Sandhills of North Carolina, the Service has issued permits to states 
that provides landscape level conservation. To date, two Safe Harbor 
permits have been issued, both in 1998; one to the South Carolina 
Department of Natural Resources (SCDNR) and the other to Texas Parks 
and Wildlife Department (TPWD). The results have been outstanding. As 
of June 1999, South Carolina has enrolled 16 landowners with 72,223 
acres, harboring 123 RCW groups; nine landowners have pending 
agreements which will add another 31,496 acres and 41 RCW groups to the 
program. Most of the properties enrolled in South Carolina are quail 
hunting plantations. In Texas, 2 landowners (both industrial forest 
landowners) have enrolled 2,285,260 acres (7,000 dedicated to RCW 
management) and 17 RCW groups in the program. In cooperation with the 
Service and other partners, the State wildlife agencies in Georgia, 
Alabama, and Louisiana have completed final draft statewide RCW Safe 
Harbor plans for their states. The Service is currently in discussions 
with the states of Virginia, Florida, North Carolina, and Mississippi 
regarding development of statewide Safe Harbor programs for RCWs.
    The success of the Service's comprehensive private lands strategy 
has resulted in significant improvements in the status of the species 
since the early 1990's. For example, many Federal populations are now 
increasing or stabilized, 100,000's of acres of private lands are 
``officially'' enrolled in RCW conservation (compared to none in 1990), 
and many State properties are developing RCW conservation/management 
plans. In 1995, based on a comprehensive range wide survey, the Service 
estimated the RCW population at 4,694 groups. In 1998, using the same 
survey methodologies, the Service estimated the range wide population 
at 4,950 groups; this-increasing population trend is expected to 
continue and indeed accelerate. The foundation of the entire RCW 
program is based on strong and meaningful partnerships between the 
private, State and Federal sectors. These partnerships have the common 
goals of mutual respect, trust, honesty, and the best available 
science. The highly successful application of the Service's RCW private 
lands strategy has clearly shown that Section 10 of the ESA can make 
integration of wildlife conservation with the interests and objectives 
of private landowners a reality.
Plum Creek Timber I-90 HCP
    The Plum Creek Timber Company I-90 HCP in Washington State is 
providing conservation benefits for 11 listed species and numerous 
unlisted species through ecosystem management efforts across 170,000 
acres. The HCP was designed to support and complement the conservation 
efforts of the Northwest Forest Plan on adjacent Federal lands.
    Large riparian buffers, similar to those identified in the 
Northwest Forest Plan, provide protection for bull trout and anadromous 
salmon by reducing sedimentation, maintaining cool temperatures, and 
providing large woody debris for pool formation. The HCP provides 
habitat for nesting owl pairs currently in an area of concern for 
north-south connectivity in the Cascades. Surveys required under the 
HCP have led to the discovery of two species that were not known to 
occur in these watersheds: the marbled murrelet and the Larch Mountain 
salamander.
    This HCP is science-based and that science was documented in the 13 
peer-reviewed technical papers that accompanied the HCP as it underwent 
public comment. Significant amounts of new information were gathered 
during the development of the 13 technical papers. For instance, 
reproduction and survival information since 1993 is now available for 
almost every owl pair in the planning area. We expect that the first 
monitoring and research progress report, due in December, will include 
updates of habitat inventory information, plus progress reports of the 
avian research being done in conjunction with the University of 
Washington, and status of research design for the amphibian research 
projects.
    Adaptive management is a central concept of the Plum Creek I-90 HCP 
and is explicitly built into the strategies for conserving riparian 
areas, spotted owls, and amphibians. The parts of the HCP containing 
the greatest amount of scientific uncertainty have the most explicit 
adaptive management provisions associated with them. Adaptive 
management allows for greater flexibility and increases in protection 
when resources need the added protection. For instance, if watershed 
analysis indicates that riparian buffers need to be wider, then Plum 
Creek has agreed to be bound by the science and will provide wider 
buffers.
    Plum Creek takes pride in their HCP and is fully achieving or 
exceeding the level of species protection envisioned during development 
of the HCP. Pre-harvest reviews have been conducted with State 
agencies, Tribes, and environmental groups. Minor modifications have 
been made to the satisfaction of both Plum Creek, the Service, and 
NMFS. The Services and Plum Creek are maintaining a close working 
relationship with efficient communications.
Metro-Bakersfield HCP
    Approved in August 1994, Metro-Bakersfield HCP addresses urban 
development and endangered species conservation. The HCP covers 261,000 
acres surrounding Bakersfield, California, in the southern San Joaquin 
Valley. The permit covers 18 species (4 listed animals, 5 listed 
plants, 3 unlisted animals, and 6 unlisted plants).
    Through March 1999, the Metro-Bakersfield HCP Implementation Trust 
has purchased 4,093 acres of habitat which has been dedicated to 
endangered species conservation and provided endowment funds for their 
management. The lands purchased are consistent with the habitat 
protection objectives of the ``Recovery Plan for Upland Species of the 
San Joaquin Valley, California.'' The purchased lands are primarily in 
areas identified as important core population areas or as important for 
maintaining connectivity of those populations. One of the most 
significant benefits has been that the public and the building industry 
now realize that development can proceed along with endangered species 
conservation. The development community, in particular, likes the 
certainty and timeliness of the process. By adopting the process, we 
can achieve conservation for these species on private lands that may 
otherwise not occur.
Small Landowner HCP
    The HCP process also serves small landowners. One owner of 
approximately 80 acres of forest land in Monroe County, Alabama, 
developed an HCP with the Service in 1994. This landowner sought an 
incidental take permit from the Service for the threatened Red Hills 
salamander in order to selectively harvest pine timber from portions of 
her land. This HCP met the goals of the landowner and protected the Red 
Hills Salamander by: (1) allowing timber revenue to be generated from 
the land while continuing to protect habitat for the species; (2) 
eliminating or minimizing disturbance (cutting) within preferred and 
marginal habitat for the species; (3) limiting the use of chemicals 
within the marginal habitat zone; and (4) requiring certification and 
the conservation briefing of loggers prior to conducting logging 
activities that may result in take of the species. This HCP provides 
for conservation of forest habitat above that provided by Alabama Best 
Management Practices (BMP) for logging. In addition, it provides for 
certification and education of loggers on ways to minimize impacts 
beyond those identified by Alabama BMPs. The HCP will also protect 
currently suitable habitat for the species and allow for further study.
    science and scientific uncertainty in habitat conservation plans
    We cannot conserve our nation's threatened and endangered species 
on Federal lands alone. Therefore, it has been this Administration's 
priority in shaping ESA policy to provide incentives to conserve 
species on non-Federal lands. The HCP program has always recognized 
that there is a degree of uncertainty in conservation biology. The 
first HCP, San Bruno Mountain, incorporated approaches for addressing 
unexpected changes. The HCP program subsequently developed into an 
adaptable process for many different situations to address varied 
species needs and activity impacts. The HCP program is a versatile 
program that allows applicants to create plans that fit their needs as 
well as the conservation needs of species.
    When developing an HCP, the Service is required to use the best 
available scientific information. Such data come from a variety of 
sources: scientific literature and peer-reviewed publications, inhouse 
expertise, other State or Federal agencies, academia, and non-
governmental organizations, to name a few. For listed species, the 
Service can draw upon a number of existing information sources, all of 
which have gone through peer and public review. ESA listing packages 
are used to gain further species-specific biological information, and 
where possible, the Service will draw upon recovery plans to identify 
conservation and monitoring measures and objectives for listed species. 
HCPs are designed to minimize and mitigate the impacts to the species 
under consideration in the HCP as well as ensure that the permitted 
activity does not appreciably reduce the likelihood of survival and 
recovery of the species. Determining whether an HCP meets these 
criteria is based on a biological analysis using the data that are 
available.
    Information used in HCPs can range from factual information such as 
baseline data and survey results, to complex research and adaptive 
management, based on ecological theory and models. For example, impact 
and take analyses of covered species can cover a wide spectrum of 
scientific issues: population distribution and density; meta-population 
dynamics; net reproductive success; population viability analyses; 
pollution; and habitat fragmentation, among others. Likewise, 
mitigation and monitoring strategies may look at additional factors 
such as the impact of vegetation successional stages on the covered 
species, impacts from invasive alien species over time, and increased 
predation and competition.
    The biologists negotiating the HCPs are limited by the constraints 
of time and information when analyzing impacts under the HCP but have 
an array of approaches to choose from when developing mitigation and 
monitoring strategies. Choosing the best approach to take is based upon 
a risk analysis of the conservation program. The Service builds upon 
the knowledge gained through implementation of each HCP to improve 
future HCPs. For instance, in March of this year, the Service, along 
with NMFS, released a draft five-point policy as an addendum to the HCP 
Handbook. This draft addendum proposes pathways to accommodate 
biological uncertainty while providing regulatory certainty to the 
permitters.
Biological Goals and Objectives are the Scientific Foundation of HCPs
    Biological goals and objectives are the broad guiding principles 
for the operating conservation program of the HCP; they are the 
rationale behind the minimization and mitigation strategies. HCPs have 
always been designed to achieve a desired biological purpose or target, 
yet they may have not specifically stated those biological goals or 
objectives. In the future, we plan to better and more consistently 
define the desired biological outcome. This rather simple concept of 
biological goals and objectives facilitates communication between the 
scientific community, the agencies, and the applicants by providing 
direction and desired biological conditions and targets for the 
development of these HCPs. The specification of the biological goals 
and objectives of an HCP is perhaps an overlooked yet significant piece 
to the HCP program.
    There are two ways to base the design of an HCP: prescription-based 
or results-based. A prescription-based HCP outlines a series of 
specified tasks to be implemented; these tasks are designed to meet the 
biological outcome. This type of HCP may be most appropriate for 
smaller permits, particularly where the permitter does not have an on-
going management responsibility. A results-based HCP has greater 
flexibility in its management, allowing the permittee greater latitude 
to pick and choose among various conservation tools, so long as they 
achieve the intended result (e.g., biological goal or objective), 
especially if they have a long-term commitment to the conservation 
program of the HCP. The Mid-Columbia Public Utility Districts' HCP is 
an example of a results-based HCP. HCPs can also be a mix of the two 
strategies, where the Service and the applicant determine the range of 
acceptable and anticipated management adjustments necessary to respond 
to new information. This process will enable the applicant to assess 
the potential economic impacts of adjustments before agreeing to the 
HCP while allowing for greater flexibility in the implementation of the 
HCP in order to meet the biological goals and objectives of the plan.
Use of Adaptive Management to Deal with Uncertainty
    Adaptive management refers to a structured process for learning by 
doing. The ``structured'' portion of this definition is important for 
two reasons. First, it becomes a formalized and mutually agreed upon 
process for incorporating change--a feed-back loop into management. 
Second, it defines in advance the sideboards within which the permittee 
will be expected to operate, including any possible future adjustments 
in the HCP's operating conservation program, in order to fulfill their 
permit responsibilities. As applied to HCPs, it is a method for 
addressing significant uncertainty in the conservation of a species 
covered by an HCP. In an HCP, adaptive management is used for examining 
alternative strategies for meeting measurable biological goals and 
objectives through research and/or monitoring, and then, if necessary, 
through the adjustment of future conservation management actions 
according to what is learned. Adaptive management is necessary in HCPs 
where there is either significant biological uncertainty or a 
significant risk exists due to uncertainty about the impacts of the 
activity and how we address those impacts.
    Some people in the scientific community maintain that adaptive 
management can only be appropriately done using a strict experimental 
design, which would compare specific treatments to controls. While this 
is certainly one ideal approach that could be utilized, we believe that 
meaningful adaptive management can be done without this strict and 
expensive adherence to standards of experimental design. Additionally, 
we do not believe it to be appropriate to burden the landowner with 
research that is not proportional to their activity. However, we can 
incorporate flexibility into medium and small scale HCPs so as to 
utilize the results of on-going research and monitoring programs in 
other areas.
    Often, there is a direct relationship between the level of 
biological uncertainty for a covered species and the degree of risk 
that an incidental take permit could pose for that species. In such 
cases, the HCP may need to be relatively cautious initially with a 
well-integrated monitoring program and adjusted later based on new 
information. A practical adaptive management strategy of a long-term 
HCP should include biological milestones that are reviewed at scheduled 
intervals. If there is a relatively high degree of risk, early and 
frequent milestones may need to be set and previously agreed upon 
adjustments made accordingly.
Permit Duration Accounts for Implementation of Conservation Measures
    The average duration of HCP incidental take permits issued to date 
is 25 years; pending applications for incidental take permits currently 
have an average requested duration of 30 years. Different permit 
durations may be necessary or desirable to account for both the varying 
biological impacts resulting from the proposed activity (e.g., long-
term chronic effects to a riparian zone resulting from timber rotations 
and treatments versus short-term intensive effects from a real estate 
subdivision build out), and the nature or scope of the permitted 
activity and conservation program in the HCP (e.g., short-term housing 
or commercial developments versus long-term sustainable forestry). 
Longer permits ensure long-term commitments to the HCP and typically 
include up-front contingency planning for changed circumstances to 
allow appropriate changes in the conservation measures. By implementing 
a long-term permit, the permittee takes on ownership of the 
conservation measures within the HCP, a plus for species conservation.
    Factors that are considered when determining permit duration 
include the duration of the applicant's proposed activities and the 
duration of expected positive or negative effects on the covered 
species. For instance, if the permittee's action or the implementation 
of their conservation measures occur over a long period of time, such 
as timber harvest management, the permit would need to encompass that 
same time period.
    The Service will also consider the extent of information underlying 
the HCP, the length of time necessary to implement and achieve the 
benefits of the operating conservation program and the extent to which 
the program incorporates adaptive management strategies.
No Surprises Assurances Stimulate Planning for Uncertainty
    No Surprises Policy and HCP assurances were designed to be 
incentives to rechannel habitat loss through the HCP permitting program 
by offering regulatory certainty to non-Federal landowners in exchange 
for a long-term commitment to species conservation. Essentially, 
private landowners are assured that if ``unforeseen circumstances'' 
arise, the Service, or NMFS, will not require the commitment of 
additional land, water or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level initially agreed to in the HCP without the consent of 
the permitter.
    Given the significant increase in landowner interest in HCPs since 
the development of the No Surprises Policy, the Service believes that 
the Policy has accomplished one of its primary objectives--to act as a 
catalyst for integrating endangered species conservation into day-to-
day management operations on non-Federal lands. No Surprises assurances 
have also provided a catalyst for contingency planning within HCPs. 
Most possible changes in circumstances during the course of an HCP can 
reasonably be anticipated and planned for in the conservation plan. 
Plans should describe the modifications in the project or activity that 
will be implemented if these circumstances arise. Planning for changed 
circumstances and adopting adaptive management strategies proactively 
within the HCP will better serve the permittee and endangered species 
conservation than a reactive ``band-aid'' fix later. Therefore, these 
contingency plans and adaptive management strategies are part of the 
deal and allow the Service and the permitter to adjust the conservation 
measures if necessary.
                               conclusion
    The HCP program has seen many changes since 1983. We have created a 
conservation program that empowers the applicants to integrate 
endangered species conservation into their activities while using the 
best available science and approaches. The ideas that have been 
generated have served to strengthened the HCP program. We remain 
committed and open to learning from our experiences and considering new 
ideas. As we look to the future of the HCP program, we see many more 
success stories. However, it will not be easy to get there. As the 
demand for HCPs increases and more HCPs are approved, providing careful 
attention to each HCP will become more and more challenging. Challenges 
facing the HCP program include: ensuring adequate implementation and 
monitoring through increased landscape-level planning with inadequate 
resources, developing partnerships with the scientific community to 
better utilize their expertise in HCP development and implementation, 
and continuing to learn and improve the program while still retaining 
incentives to landowners to develop and implement conservation 
measures.
    Mr. Chairman, this concludes my testimony. I would be happy to 
answer any questions that the Subcommittee may have.

                               __________
   Statement of Monica Medina, General Counsel, National Oceanic and 
           Atmospheric Administration, Department of Commerce
    Mr. Chairman, my name is Monica Medina, and I am General Counsel of 
the National Oceanic and Atmospheric Administration (NOAA). Thank you 
for the opportunity to testify on the science that serves as a basis 
for Habitat Conservation Plans (HCPs) agreed to under the Endangered 
Species Act (ESA).
                         the importance of hcps
    NOAA is responsible for 52 species listed under the ESA, including 
salmon, sea turtles, whales, dolphins, seals, and other species. The 
breadth of our challenge in recovering these species is great, so we 
cooperate with non-Federal landowners such as states, Tribes, counties, 
and private entities to do this important job. For instance, we have 
the challenge of ensuring the survival and recovery of salmon across a 
geography that spans the Pacific coastline from the Canadian border to 
Los Angeles. In addition, the highly migratory nature of Pacific salmon 
places them in many areas in numerous states, impacting large numbers 
of stakeholders, many of whom are private citizens who hold large 
tracts of land valued as both commercial property and salmon habitat.
    Long-term management of habitat, such as that done through HCPs 
with non-Federal landowners, has proven to be the most effective means 
of recovering species. HCPs are also a popular conservation tool for 
both the private property owner and NOAA. So far, NOAA has issued only 
2 incidental take permits associated with an HCP, but we are a party to 
5 Implementing Agreements for HCPs issued by the Fish and Wildlife 
Service (FWS), and are currently negotiating approximately 35 
additional HCPs. All of the large-scale HCPs developed by NMFS concern 
salmon. NOAA has issued joint guidance with the FWS on how to assist 
applicants in developing HCPs. Our HCP handbook describes the 
information we need to evaluate whether these plans will be effective 
and accomplish their goal of minimizing and mitigating the effects of 
taking threatened and endangered species. The Services assist the 
applicant in exploring alternatives, and are flexible when prescribing 
mitigation measures. We do not impose one-size-fits-all prescriptions 
on applicants. When participants provide an unusual, but scientifically 
credible analysis of effects, or a creative but effective solution for 
mitigating the effects of incidental taking, we will seriously consider 
their approach.
    Flexible implementation of the ESA has become the hallmark of this 
Administration's efforts to conserve species, and it is evidenced in 
our draft 5-point policy with FWS, proposed last March. One of the 
important aspects of this policy is adaptive management. Adaptive 
management is an essential component of HCPs when there is significant 
uncertainty or an information gap that poses a significant risk to the 
species. Rather than delay the process while sufficient information is 
gathered to predict the outcome accurately, the Services and applicants 
jointly develop an adaptive management strategy, assuring all parties 
of a suitable outcome. For example, a cautious management strategy 
could be implemented initially, and through exploration of alternate 
strategies with an appropriate monitoring program and feedback, the 
permitted could demonstrate that a more relaxed management strategy is 
appropriate as time goes on.
                                science
    NOAA is required by the ESA to use the best available information 
in making its determinations, including all HCP permit decisions. This 
means that our agency is legally required to utilize the best available 
science--data, analysis, models, and synthesis. Our scientists stay up-
to-date in their respective fields, and use state-of-the-art analytical 
techniques and methods to assess and understand the species and 
ecosystems to be managed under HCPs.
    For example, in development of the aquatic management component of 
a timber HCP, our biologists work closely with academic, state, tribal, 
and local agency scientists to gather all relevant data for the 
watershed, including hydrology, salmon population dynamics, sediment 
dynamics, water quality, and forest successional structure. When 
necessary, additional data is collected in the field to augment 
existing information. Management goals and objectives are developed to 
ensure healthy spawning grounds, good quality rearing habitat, suitable 
temperatures, and safe fish passage conditions. The riparian corridor 
flanking the river is managed to ensure that the stream channel is 
maintained as a dynamic, natural system with intact physiological, 
biological, and chemical processes.
    However, it is not a simple matter to manage ecosystems across 
large areas, particularly when this management includes significant 
human alterations from resource extraction or infrastructure 
development. We have solid, reliable, quantitative information on the 
temperature, water flow, fish passage, and water quality needs of 
salmon, but more subtle factors that may determine the long-term 
success or failure of ecosystem and endangered species management are 
only just beginning to be understood . New areas of scientific research 
such as nutrient cycling, food chain dynamics, biodiversity, population 
genetics, and climate change are at an emerging stage--many significant 
new questions and concerns have been identified, but few practical 
tools and methodologies have emerged.
    Our scientists fully recognize this uncertainty, and our HCP 
agreements are designed to manage biological risk in spite of the fact 
that in many cases we are implementing new, landscape-scale, ecological 
experiments. Where we have solid, quantitative information, such as the 
temperature needs of juvenile salmon, we can set specific, quantitative 
temperature targets that the management regime must achieve. In areas 
where the science is less developed, HCPs typically include more 
qualitative goals, such as a multi-tiered forest canopy with a diverse 
age structure or maintenance of insect prey biodiversity.
    Because HCPs are at the limits of our scientific capability and 
knowledge, extensive monitoring and adaptive management strategies are 
essential. By monitoring as many indicators of ecosystem and species 
health as possible, we can adjust our management strategies as we 
discover how the ecosystem responds to our management regimes, If we do 
a good job of monitoring and assessing our management, we can learn 
from the successes and failures of the preceding HCPs and apply that 
new knowledge in new HCPs.
    Our scientists work closely with their scientific peers in academia 
and other agencies to review ecosystem management approaches. We 
welcome scrutiny from the scientific community and the informed public 
as this helps to ensure that the HCPs are of the highest quality. HCP 
programs are subject to intense debate and review within the agencies, 
as well as in professional conferences and peer-reviewed journal 
articles. Furthermore, all HCPs must fully comply with the National 
Environmental Policy Act (NEPA) and the ESA, which ensures ample review 
and comment on all science and management approaches.
                             hcp successes
    At this time, I would like to discuss some of our science-based 
HCPs that incorporate the principles just mentioned.
    The Mid-Columbia draft HCP, now ready for public review and comment 
and expected to be signed this year, is an example of how NOAA is using 
performance-based goals in addition to prescriptive measures. This HCP 
is focused on improving survival of salmon migration through the Mid-
Columbia segment of the Columbia River near Wenatchee, Washington. 
Historical fish losses at the Mid-Columbia dams have been significant--
an average of 15 percent loss of juvenile salmon per dam. The goal of 
the HCP is no net impact to salmon from the three hydro-electric dams 
and associated reservoirs operated by the two Public Utility Districts 
(PUDs). The Federal and State agencies' fisheries experts agreed that a 
maximum amount of unavoidable project mortality was 9 percent. Required 
fish survivals are expressed in two ways--95 percent juvenile fish 
passage at each dam, and 91 percent survival at each dam for both adult 
and juvenile fish.
    Specific methods to attain the 91 percent project survival were not 
described, but would be left to the project operators for the first 5 
years of the HCP (thereafter it is a joint process with the NMFS and 
FWS). Studies to develop the fish-survival improvements will use the 
best technology and methods available and review of study proposals 
will be done collaboratively. In addition to the FWS and NMFS, 
oversight will be provided by the parties to the negotiations--the 
State agencies, local Tribes, and an environmental group.
    Compensation for the 9 percent unavoidable fish loss will be met by 
a combination of hatchery production (7 percent) and tributary 
restoration (2 percent). A tributary habitat conservation fund 
established by the PUDs would be managed collaboratively to identify, 
design, construct, and monitor projects to increase natural fish 
production in the four tributaries (Wenatchee, Entiat, Methow and 
Okanogan rivers). The hatchery production would also be overseen by the 
broader group and designed to help recover listed species. This effort 
would be state-of-the-art in regards to ESA concerns (i.e., designed to 
produce fish in a manner consistent with recovering listed plan species 
and not deleteriously affecting other listed non-plan species such as 
Snake River salmon). In addition, the HCP contains detailed schedules 
and contingencies for every part of the agreement.
    The Washington State Department of Natural Resources (WDNR) HCP was 
signed by the FWS in January, 1997. NMFS signed the Implementing 
Agreement at that time as it did not have any listed species covered by 
the HCP; and then issued an incidental take permit in June, 1999 for 
recently listed salmon and steelhead. The HCP area covers 1.4 million 
acres of forest land in western WA and includes more than 133,000 acres 
of streamsides and unstable slopes around small headwater streams. The 
HCP employs a multi-disciplinary approach to forest landscape 
management. A Science Team, drawn from research and management 
scientists, was appointed by WDNR to assess conservation options for 
key species of fish and wildlife. The scientific record includes 
descriptive sections on species, habitats and potential impacts in the 
HCP and related NEPA documents (draft and final Environmental Impact 
Statements). In addition, there are published reports to the WDNR HCP 
Science Team that evaluated the likely effectiveness of a range of 
options for management of salmon, spotted owl, and marbeled murrelet 
habitats. The reports describe and rank various ways to meet, for 
example, the Science Team's objective to provide habitat that supports 
viable and well-distributed populations of salmon. The WDNR HCP 
includes several innovative features designed to advance the science of 
forestry and landscape conservation. A large block of State forest 
lands (264,000 acres, or almost 20 percent of the total plan area) is 
set aside specifically for watershed-scale experimental forest 
management. Another feature is validation monitoring that goes beyond 
the required HCP monitoring for compliance and effectiveness. Key 
assumptions about management measures will be tested with a variety of 
methods, including long term paired-watershed studies.
    Implementation of the Pacific Lumber HCP, issued in February, 1999 
and covering 210,000 acres, has begun in earnest with review of timber 
harvest plans and formalization of watershed analysis and monitoring 
programs. The foundation of this plan rests upon watershed analysis, 
which is the process used to tailor site-specific prescriptions to 
conserve salmon on a watershed by watershed basis. This process entails 
detailed scientific analysis of each watershed's unique physical and 
biological characteristics and history of past natural and 
anthropogenic disturbance. The analysis will address how forest 
practices have resulted in changes in hydrology, riparian functions, or 
sediment input to streams that have resulted in adverse impacts to fish 
and fish habitat.
                            challenges ahead
    We recognize the need to increase our science effort in support of 
recovery planning, section 7 consultations, and HCP development. NOAA's 
Pacific salmon expenditures in fiscal year 1999 are expected to be $23 
million, but only approximately $8.3 million of this is being spent on 
science. Only $3.3 million is funding risk assessment wherein NOAA 
scientists do research on factors affecting survival of at-risk 
salmonids, work on evaluating conservation measures and habitat 
restoration efforts, and provide economic analyses. $3 million is 
funding habitat assessment wherein NOAA scientists do research on 
survival and productivity of salmon in freshwater, estuarine, and ocean 
habitats. $2 million is funding salmon population dynamics research, 
wherein NOAA scientists are analyzing stock abundance and distribution; 
and are undertaking life history modeling, genetic studies, population 
viability analyses, and population monitoring.
    The NMFS fiscal year 2000 ESA salmon recovery budget initiative 
requested $24.7 million in new funding to strengthen our scientific 
capabilities. For example, $5 million of this funding would be used to 
increase our ability to partner with local agencies and private 
landowners in HCP development, and $4.45 million would be used to 
increase our ability to properly implement and monitor HCPs once they 
are developed. Related to this, $2.8 million would be used to improve 
our ability to analyze and assess the cumulative effects and risks to 
salmon populations caused by changes on a watershed scale. Also, $2.8 
million would be used to develop recovery plans, and $2.2 million would 
be used for new research on the factors influencing ocean and estuarine 
survival of juvenile salmon. $1 million would be used to develop 
quantitative links between habitat, human impacts, and salmon stock 
productivity; and $1 million would allow NMFS scientists to work 
closely with the Department of Agriculture and EPA on water quality 
needs. Without these increased resources, the pace and scope of HCP 
development will be greatly constrained.
                               conclusion
    In conclusion, NOAA's HCP program is showing many benefits for non-
Federal landowners as well as Federal agencies; however, it is still a 
work in progress. We are monitoring sites and adapting our management 
to what we see occurring on the landscape. HCPs are one of the major 
actions we are taking to meet the challenge of recovering salmon and 
other endangered and threatened species. HCPs are not perfect, but are 
a less confrontational and adversarial than our only alternative--
enforcing prohibitions on take under Section 9 of the ESA. We are doing 
what we can in the HCP arena to recover salmon, and ensure that future 
generations know of these magnificent fish.
    Mr. Chairman, thank you for this opportunity to testify. I look 
forward to answering any questions you may have.

                               __________
      Statement of Lorin L. Hicks, Plum Creek Timber Company, Inc.
    Good Morning Mr. Chairman and members of the Committee. I am Dr. 
Lorin L. Hicks, Director of Fish and Wildlife Resources for Plum Creek 
Timber Company, Inc. Plum Creek is the fifth largest private timberland 
owner in the United States, with over 3.3 million acres in six states. 
Owning this vast resource base of some of the world's most productive 
timberlands allows our 2,400 employees to produce value-added forest 
products to a variety of specialty markets. I have been a biologist for 
Plum Creek and its predecessor companies for over 20 years.
    But I am here today to talk about how important habitat 
conservation planning is to our leadership in environmental forestry. 
Habitat conservation planning promises to be the most exciting and 
progressive conservation initiative attempted on nonFederal lands in 
this country.
    Plum Creek is no stranger to habitat conservation planning. Plum 
Creek's Central Cascades HCP, a 50 year plan covering 285 species on 
170,000 acres, was approved in 1996. We are currently working on 
another, called the Native Fish HCP, covering I.7 million acres in 
three northwest states. A third HCP, for red-cockaded woodpeckers in 
the south, is under development with the USFWS. In 1995, we initiated 
an 83,000-acre Grizzly Bear Conservation Agreement in Montana's Swan 
Valley.
    Since 1974, few issues have been surrounded with more controversy 
than the Endangered Species Act. It is often criticized as unworkable 
and characterized as ``iron fisted''. Regardless of its image, its 
impact on landowners has been profound. My company, Plum Creek, is no 
exception--our 3.3 million acres supports no less than 12 federally 
listed species, and others such as salmon and lynx which have been 
proposed for listing.
    Ironically, the history of the ESA and Plum Creek have been 
intertwined for many years. The listing of the grizzly bear in 1975 
affected 1.1 million acres of Plum Creek land in the northern Rockies 
and confused or confounded access across Federal lands to company 
property for over a decade. The listing of the northern spotted owl in 
1990 and subsequent Federal ``guidelines'' trapped over 77 percent of 
Plum Creek's Cascade Region in 108 owl ``circles''. Indeed, with every 
new listing, Plum Creek was skidding closer to becoming the ``poster 
child'' for the taking of private lands. To quote Charles Beard, ``When 
it is dark enough-you can see the stars''. For us the answer came with 
Habitat Conservation Plans. With the advent and incentives of habitat 
conservation plans, Plum Creek and the Federal Government have 
accomplished a stunning turnaround and made a concrete contribution to 
the conservation of endangered species.
    This committee faces a critical question: Can HCPs continue to work 
for landowners and for endangered species into the future? This hearing 
hopefully will give the committee insights into the underlying science 
and principles that drive HCPs.
    Two of the fundamental foundations of HCPs are under great 
pressure.
    First the ``No Surprises'' policy, which is critical for landowners 
to undertake an HCP, is being challenged. It provides the necessary 
incentives for landowners to undertake the costly and resource 
intensive process to complete a habitat plan. To ensure that the 
program remains strong, we believe it should be codified.
    Second, pressures mount to ``standardize'' HCPs, and compare them 
to each other, with a tendency to use each one to ``raise the bar'' for 
those which follow. In my opinion, this ``one size fits all'' approach 
is precisely what has challenged the ESA since its inception and could 
be the most important deterrent to the inclusion of small landowners to 
the HCP program.
    It's important to understand that HCPs are as different from one 
another as landowners and land uses. They are as small as one home site 
and as large as 7-million acres. They are as short in duration as one 
construction season and as long as 100 years. They are as focused as a 
single species and as expansive as hundreds of species. And 
importantly, each landowner has a different incentive for entering this 
voluntary process.
    To help demonstrate this I have attached a new booklet just 
produced by the Foundation for Habitat Conservation providing brief 
case studies of 13 HCPs from around the country. These case studies 
give better definition to my point that HCPs vary widely in scope and 
intent, and I recommend this document to you for review. These examples 
give credence to the notion that HCPs can be an effective tool for 
conservation.
    Plum Creek is a founding member of the Foundation for Habitat 
Conservation. The nonprofit Foundation supports habitat conservation 
plans and related voluntary private conservation efforts through 
research, education and communication. The Foundation is committed to 
``conservation that works,'' and to that end, brings together 
advocates, experts and policymakers to work for creative, balanced and 
effective approaches to habitat conservation. Current Foundation 
members have HCPs conserving hundreds of species of animals and plants 
on more than 800,000 acres of land.
    Let's dispel the myth that HCPs are not based on science. When my 
company, Plum Creek, created its first HCP, we took on a very complex 
challenge. Not only did we have 4 listed species in our 170,000 acre 
Cascades project area, but 281 other vertebrate species, some of which 
would likely be listed within the next few years. Combine this with the 
challenges of checkerboard ownership where every even-numbered square 
mile section is managed by the Federal Government under their new 
Northwest Forest Plan and you have a planning challenge of landscape 
proportions. To meet this challenge, we assembled a team of scientists 
representing company staff, independent consultants and academic 
experts. We authored 13 technical reports covering every scientific 
aspect from spotted owl biology to watershed analysis. We sought the 
peer reviews of 47 outside scientists as well as State and Federal 
agency inputs. As a result of these inputs, we made technical and 
tactical changes to the plan. And additionally, we developed working 
relationships with outside professionals that were invaluable and have 
been maintained to this date.
    Let's also dispel the myth that the public has no access or input 
to HCPs. During the preparation of the Cascades HCP which took 2 years 
and $2 million, we conducted over 50 briefings with outside groups and 
agencies to discuss our findings and obtain additional advice and 
input. During the public comment period, all HCP documents and 
scientific reports were placed in 8 public libraries across the 
planning area.
    I have brought with me the major documents from Plum Creek's 
Cascades HCP, completed in 1996. These documents include the final HCP, 
the draft and final EIS, a compendium of the 13 peer-reviewed technical 
reports, and a binder of decisionmaking documents completed by the U.S. 
Fish and Wildlife Service and the National Marine Fisheries Service. We 
continue to publish our scientific work for the HCP in technical 
publications as this peer-reviewed article on spotted owl habitat in 
this month's Journal of Forestry attests.
    Today Plum Creek is nearing completion of a new HCP. This new Plan 
focuses on 8 aquatic species, and covers 1.8 million acres of our lands 
in Montana, Idaho and Washington. The company and the Services have 
been working over 2 years on this plan, which will be the first HCP for 
the Rocky Mountain region. To provide the scientific foundation for 
this HCP, we assembled a team of 17 scientists that authored 13 
technical reports spanning topics from fish biology to riparian habitat 
modeling. These technical reports were peer-reviewed by 30 outside 
scientists and agency specialists. We have made all the technical 
reports and white papers for the Native Fish HCP available to all 
interested parties on a CD, and have done so well in advance of the 
public release of the HCP, which is scheduled for September 1. The good 
news is that anyone can have access to the latest science and 
technology used in the development of this HCP.
    My point here it is to emphasize that for Plum Creek and other 
applicants, the HCP process has been the principal catalyst for private 
landowners to undertake unprecedented levels of scientific research and 
public involvement. Each successful HCP is a scientific accomplishment. 
And the science immediately becomes part of the public domain.
    Let me give you some specific examples of public benefits from our 
Cascades HCP which has been operating successfully for over 2 years. 
Since its inception, we have discovered the presence of 2 species of 
concern, the Larch Mountain Salamander and the marbled murrelet, which 
were previously thought to be absent from our area. Moreover, habitat 
management and research on the northern goshawk has been active in the 
HCP area, despite the fact that the Fish and Wildlife Service decided 
not to list the species last year. Additionally, Plum Creek is actively 
pursuing a plan to reintroduce the bull trout, a newly listed Federal 
species, to our lands in the HCP area, because the habitat is optimal, 
and the company no longer fears the presence of a listed species on its 
lands covered by the HCP.
    Another aspect of good HCPs, essentially another way of relying on 
good science, is to incorporate effective monitoring and adaptive 
management. As a scientist, I always want more information. Adaptive 
management is a challenging blend of rigorous science and practical 
management designed to provide the basis for ``learning by doing''. 
Adaptive management is more easily discussed in the classroom than done 
on the ground.
    Within the context of habitat conservation plans, adaptive 
management represents an agreement between the Services and the 
applicant whereby management actions will be modified in response to 
new information. Adaptive management can be used to address significant 
``leaps of faith'' in HCPs where there is dependence on models or 
adoption of untested conservation measures. However, there is ``dynamic 
tension'' between the implementation of adaptive management in HCPs and 
adherence to the ``No Surprises'' policy that limits the amount of 
additional mitigation that can be required of an applicant, unless 
unforeseen circumstances occur. Adaptive management provides the 
flexibility to deal with uncertainty within the sideboards of the 
recently revised ``No Surprises'' policy.
    Ultimately, good HCPs come from good science and good motives. 
Neither lofty policy objectives nor idealized public participation 
should overtake the science. Federal agencies must be encouraged and 
enabled to make sound, prompt, scientifically based decisions that 
allow land owners a fair, fast path to conservation, underlain by 
dependable safeguards for both the private and the public interest.
    Mr. Chairman, these HCPs are not only science plans but also 
business plans which commit millions of dollars of a companies assets 
in a binding agreement with the Federal Government. In the Pacific 
Northwest, the stakes are high for both conservation and shareholder 
value in private timberlands. The consequences of failure are so 
ominous for both interests that careful evaluation of the economic and 
ecologic ramifications are essential to successful completion of HCPs. 
``Guesswork'' is not an acceptable alternative for either the Services 
or applicants.
    Nor should we delay or defer essential conservation simply because 
we are afraid to try. Adaptive management provides the ``safety net'' 
for HCPs as well as the rules of the road for acceptably making ``mid-
course corrections'' as new information and insight warrants.
    As a major landowner and one committed to the highest possible 
environmental standards, we anticipate and try to lead in these areas. 
For example, we understood the concerns raised over the last several 
years that citizens and interest groups sought more access to the 
process of creating HCPs. We believe that landowners must remain in the 
driver's seat as to whether and how to build an HCP. In assembling our 
Native Fish HCP, we anticipated the Department of Interior's new 5-
point plan setting new guidelines for HCPs, and have fully complied 
with it in advance, especially as it pertains to public involvement.
    As enthusiastic as we are about HCPs, the process is not without 
its faults. Since our first foray into HCPs, we have noted some 
significant shifts in policy and practice. One downstream effect of the 
5 points policy has been the requirement of the Services to more 
thoroughly analyze the ``effects'' of adding multiple species to the 
HCP, resulting in deletion of conservation measures for lesser known 
species because the Services lack the information needed to complete 
their new requirements. This creates a major obstacle for completion of 
multispecies plans.
    There is a need for the Services to commit necessary resources and 
personnel to the development of HCPs from beginning to end, a period 
often as long as 2 years. Far too often, we experience shifts in key 
agency staff and biologists whereby professional experience is lost and 
continuity in plan development is broken.
    Once the majority of the scientific content of the plan has been 
completed, we have also experienced an excessive focus on relatively 
minor technical details. These are often speculative or hypothetical 
issues that are unproven in the literature, but for which there are 
strong emotional concerns. In other words, with 95 percent of the 
scientific work completed, most the debate centers on the remaining 5 
percent, creating unnecessary delays.
    As we near completion of the Native Fish HCP, we are again reminded 
of the duplicative nature of the HCP and NEPA processes. The HCP is by 
definition a mitigation plan for the potential impact of lawful 
operations on listed species and their habitats. The NEPA process also 
requires a similar assessment of the HCP and management alternatives. 
Not only does this require the added expense and resources to duplicate 
work already done, but requires additional review and response by the 
Services.
    As you are aware, many of the HCPs being completed in the west 
require both the US Fish and Wildlife Service and the National Marine 
Fisheries Service to work with the applicant and approve the final 
plan. Despite their efforts, these two agencies do not work in synch. 
The agencies provide varying levels of technical support to applicants. 
The combined effect of this lack of interagency coordination is further 
time delays to the applicant.
    Mr. Chairman I thank you for the opportunity to testify before you 
today. The 2 days of testimony should provide the committee with a 
better understanding of the complexities of HCPs. I hope my testimony 
has given you an appreciation of the strategic value of HCPs for both 
the conservation of species and the protection of resource economies.
                                 ______
                                 
   Responses by Dr. Lorin Hicks to Additional Questions from Senator 
                                 Chafee
    Question 1. Several scientists have suggested that HCPs should be 
subject to peer review. Would you agree with that suggestion and, if 
so, how do you believe that peer review should be incorporated into the 
HCP process? Who should conduct the peer review?
    Response. HCPs are too difficult to peer review in a traditional 
sense. This is because HCP's are usually specific to a particular 
applicant's landscape and methods of operation. Also, they are the 
result of negotiations between an applicant and agency and as such 
represent a ``best fit'' compromise balancing the economic concerns of 
the applicant and the ecological concerns of the agencies; the final 
result is, therefore, a policy document, based not only upon science 
but also upon management rationale and operational practicality. 
Consequently it is extremely difficult for an outside group of 
scientists to simply pick up an HCP and review it as they would a 
technical manuscript for publication.
    I offer three suggestions for scientific review of HCPs. The first 
is to urge the applicant to designate a science team comprised of 
outside experts and internal staff to develop a technical strategy for 
the HCP. This mix of external and internal expertise will result in a 
more balanced scientific perspective.
    The second suggestion is to have the scientific foundations of the 
HCP reviewed by outside technical experts. This could be accomplished 
by having technical reports generated by the applicant and agency 
science teams reviewed during preparation, or conducting a technical 
workshop where the technical issues and approaches used to address them 
in the HCP can be discussed.
    Finally, the HCP and attendant NEPA documents could be distributed 
to several pertinent professional groups (such as the Society of 
American Foresters, the American Fisheries Society, Society for Soil 
and Water Conservation, Society for Range Management) with a request 
for them to review the document and provide comments during the NEPA 
comment period.

    Question 2. Several scientists have suggested that a national data 
base of all HCPs and scientific information about listed species be 
developed to help inform future HCPs. The data base would presumably 
keep track of the numbers of individual species populations, habitat, 
monitoring data, and conservation measures. How useful would such a 
data base have been for Plum Creek in developing its HCPs? Do you 
believe that a data base of this kind would be useful to other HCP 
applicants?
    Response. If such a data base existed, it would be foolish of an 
HCP applicant to ignore such a resource in the preparation of their 
plan. It should be noted however, that the most recent HCPs in the 
Northwest that I am familiar with have included extensive reviews of 
the literature and technical information that is available and 
pertinent to the planning area. Consequently, I would expect that most 
of the references and resources the data base would offer to these 
previous efforts would already have been tapped by the applicants.
    Another concern is the effort required to update a data base of 
this magnitude. I am aware of several other efforts to ``catalog'' 
HCPs, most notably the US Fish and Wildlife Service and The National 
Center for Environmental Decision Making Research (see http://
www.ncedr.org). One beneficial side effect of creating such a data base 
may be to help orient agency biologists who are pressed into service as 
HCP staff but may not be familiar with the literature and approaches 
used in the plans to date.
    A final concern with the data base approach. Care must be given to 
correctly characterize the content and approaches used in other HCPs. 
The Washington DNR contracted out a comparison of HCPs in the Pacific 
Northwest as part of the development of their HCP. It contained 
numerous errors and misconceptions about the plans completed and 
implemented by other HCP applicants.

    Question 3. Plum Creek's HCP includes a substantial monitoring 
program. Can you please describe to us how Plum Creek developed the 
program, and in particular, how it defined the objectives of the 
monitoring component and how Plum Creek intends to use the results of 
the monitoring? Did you work with scientists outside of Plum Creek to 
develop this monitoring program or subject to external peer review?
    Response. Plum Creek designed the monitoring program for its 
Cascades HCP using input from 3 different sources. The first was input 
from scientists who helped develop the scientific strategy for the HCP. 
Through their involvement and interaction, we were able to understand 
which elements of the HCP represented scientific ``leap of faith'' in 
the sense that hypothetical models were being used or new conservation 
measures were being implemented. We also had the opportunity to get 
their response to ideas and approaches we considered to address the 
monitoring issues that surfaced. This amounted to an ``interactive peer 
review'' from academic, independent and staff scientists that were 
involved in the construction of the HCP, or reviewed the technical 
reports prepared in advance of the HCP.
    The second source of input for the monitoring program was the State 
and Federal agencies that were consulted in the development of the HCP. 
Having worked with these folks since the early stages of HCP 
development, we were able to develop a ``ledger'' of technical ideas 
and issues that needed to be addressed by monitoring and research. We 
turned to this ``ledger'' as one of the final stages of the HCP 
discussions. At this stage, the agencies were knowledgeable about the 
direction we were headed in the plan, and what opportunities we had to 
further our collective knowledge on the ecological issues and how well 
the HCP addressed them.
    The third source of input for monitoring was our own foresters and 
managers who wanted to know that the effort and expense encountered in 
implementing the numerous HCP mitigation measures was justified by 
having the desired biological effect. They also wanted to evaluate the 
feasibility of developing alternative approaches or actions that might 
lower the cost or improve the efficiency of meeting the HCP objectives. 
Last, they provided insight on the operational feasibility of the 
monitoring activity.
    The 3 objectives of the Cascades HCP research and monitoring 
program can be summarized in the following 3 questions we repeatedly 
encountered in the preparation of the HCP:
    1. What specific areas or issues in the HCP needed to be addressed 
by research and monitoring (e.g. spotted owl habitat models, the 
effectiveness of riparian buffers, etc)?
    2. How could this work be done to maintain confidence and 
credibility in the answer and reduce costs to Plum Creek where possible 
(e.g. sponsoring work through universities, working with State / 
Federal monitoring programs)?
    3. When was the information needed to meet specific HCP review 
targets specified in the HCP?
    After 3 years of HCP implementation, our experience to date 
indicates that our selection of issues was accurate. Implementation of 
the actual monitoring studies and approaches has been benefited by 
discussing these projects closer to the actual time of putting them on 
the ground. Consequently, my advice is that applicants should ``delay 
the details'' of how all their monitoring projects would be implemented 
on the ground in order to provide flexibility to respond to additional 
input and site conditions.

    Question 4. You stated in your testimony that you would like the 
``No Surprises'' to be codified. Why is that?
    Response. Our desire to have the ``No Surprises'' concept codified 
in the ESA stems from the belief that this is a very powerful incentive 
for landowners to come to the table with significant long term 
commitments for conservation of species that are currently listed or 
could potentially be listed under the Act in the near future. Private 
landowners whose businesses must take a long term perspective (e.g. 40 
year forest rotations) are willing to make substantial commitments to 
go beyond current protection requirements if they believe that by doing 
so they can be protected from the vagaries of future restrictions 
emanating from new rules and regulations. This incentive seems to be 
even more powerful that other proposals that have been offered such as 
tax rebates and compensations to get landowners to voluntarily offer 
more protection for wildlife resources. Institutionalizing this 
incentive in the ESA along with the HCP process is a tangible 
demonstration by the Federal Government that the ``No Surprises'' 
concept is not subject to the interpretations and modifications of 
agencies and administrations. This seems even more appropriate, given 
the fact that some of the commitments made by HCP applicants span 
decades of investment and implementation.
    Without codification in the ESA, it is thought that the ``No 
Surprises'' concept will be continuously challenged in the courts and 
could potentially become the ``illusion of solution'' whereby an 
assurance may be offered to an applicant to extract a conservation 
commitment, only to find out later that the applicant will be subject 
to more review and revision as policies, regulations and expectations 
change.

    Question 5. Some landowners have expressed concerns that the 
concept of adaptive management undermines or negates the No Surprises 
assurances that are critical to HCPs. However, you have argued that 
adaptive management is simply a means for allowing for ``mid-course 
corrections'' in your plan. Can you describe how the adaptive 
management provisions and the No Surprises assurances work together in 
the context of Plum Creek's HCP?
    Response. We consider the ``dynamic tension'' created by adaptive 
management and the ``No Surprises'' policy to be a positive ``checks 
and balances'' system to insure that HCPs are responsive to new 
information without unduly burdening an applicant with excessive 
monitoring costs and uncertainty about the government's commitment to 
the plan. Adaptive management provides the flexibility to deal with the 
uncertainty issue within the sideboards of the recently revised ``No 
Surprises'' policy. It also helps define a data-based decisionmaking 
system to which both the Services and the applicant can commit 
resources that will resolve differences while insulating the HCP from 
arbitrary decisions from either party.
    As I mentioned earlier (response 3), HCPs can address areas of 
significant scientific uncertainty which can be addressed with adaptive 
management. The level of adaptive management (research and monitoring) 
needs to match the scientific complexity of the plan. In the Cascade 
HCP, Plum Creek used adaptive management to address specific areas of 
scientific uncertainty such as dependence on mathematical models or 
implementation of new conservation measures. The information obtained 
from adaptive management gives us a ``report card'' on how well the HCP 
is addressing the biological goals for the plan. The Cascades HCP 
describes a process by which Plum Creek and the Services identify and 
resolve plan revision issues in a cooperative manner. If research and 
monitoring indicates that specific habitat goals are not being met and 
there is a risk of adverse impact to the permit species, then Plum 
Creek and the Services will meet to determine what changes may be 
necessary to construct a positive solution. This solution must start 
with the assumption that no additional land or money can be 
unilaterally extracted from the company unless unforeseen circumstances 
occur (such as a fire or other catastrophic event). Solutions in this 
area might include rearrangement of the network of spotted owl harvest 
deferrals to address a specific geographic concerns. The Services 
retain the option of ``reopening'' an HCP if monitoring data suggests 
that the permit species are likely to be jeopardized by the continued 
implementation of the HCP.
    William Vogel (USFWS Habitat Conservation Planning Program, 
Olympia, Wash.) identified some desirable components of an HCP adaptive 
management strategy, from a ``permitting agency'' perspective:
     Base strategy [continuing]. A set of measures and 
prescriptions that are sufficiently robust so that the Services have a 
fair amount of confidence that they will be successful.
     Feedback.--Clearly defined levels that will trigger 
changes to the base strategy, linked to monitoring variables.
     Implementation.--Assurances to the Services that 
conservation measures will increase if needed. These assurances can be 
received if an applicant (1) waives the assurances policy with regard 
to the adaptive component of the HCP or (2) defines mitigation as 
achieving the objective rather than merely carrying out the 
prescription. The latter scenario is preferred by the Services.
     Limits to adjustment.--It is acceptable for the Services 
to compromise with an applicant so that the investments made for 
conservation can be limited, establishing an upper limit beyond which 
the assurances policy would apply and applicant would not be required 
to provide additional mitigation, absent unforeseen circumstances.
     Adjustment increments.--Where possible, develop a 
mechanism whereby incremental adjustments can be made to a strategy 
(e.g., riparian management), based on monitoring information and 
continued testing. The timing of the change and how the parties work 
together to notify one another are important considerations. It is 
important to have these processes worked out in advance so the agencies 
and applicant can respond quickly when action is necessary.
     External factors.--It is possible for the Services to 
commit to the need for differentiating between cause and effect, but 
they must ensure that they will be able to differentiate external 
factors (e.g., land management actions by others). Where possible, 
experimental design for adaptive management projects should be robust 
enough to differentiate treatment effects related to management 
strategies from external effects independent of land management 
actions. For example many factors may affect fish densities in streams 
(e.g., angling pressure) independent of habitat-related components such 
as large woody debris loading in streams.
     Direction of change.--As a result of adaptive management, 
some conservation measures may become either more conservative (e.g., 
setting aside more habitat) or more aggressive (e.g., actively managing 
more habitat) compared to actions originally agreed upon with the 
Services. If the change desired is to become more conservative, the 
Services should document that change in cooperation with the applicant. 
However, if the change would be to become more aggressive in 
management, the Services should perform an assessment of other impacts 
that may result, particularly when dealing with multiple species. If 
the amount of ``take'' were to increase, then a permit amendment might 
likely be necessary. Similarly, for a landowner to be motivated to 
offer meaningful adaptive management projects under an HCP, there has 
to be a high level of confidence that changes in protection levels can 
go either way under the guidance of better science. Incentive is 
preserved when acceptable levels of change are predetermined and well-
defined contingencies and sideboards to the extent of changes are 
developed. This is a particular concern, which must be addressed in the 
design of monitoring programs to allow some inference into which 
factors are influencing response variables.
    Habitat Conservation Planning is effective when a landowner is 
motivated to offer meaningful conservation through management 
prescriptions in order to receive greater certainty for management over 
the long term. However, when incomplete science creates uncertainty, 
assurances through simple prescriptions may be inadequate. While the 
permitting agencies need the confidence that improved science will be 
taken into consideration into the future, the landowner needs to be 
confident that conservation dollars expended will be cost effective and 
will benefit the resource. Since it is in both parties' interest not to 
postpone conservation to pursue more complete science. adaptive 
management becomes the tool to begin implementing conservation measures 
and improving certainty while science becomes more complete.
                               __________
Statement of Steven P. Courtney Ph.D., Sustainable Ecosystems Institute
    Good Morning. I am Steven Courtney, a biologist, and Vice-President 
of Sustainable Ecosystems Institute. SEI is a non-profit organization, 
dedicated to using science to solve environmental problems. We are not 
an advocacy group, and our charter states that we will not engage in 
litigation. Instead we believe that cooperative programs, using good 
science, can find lasting solutions. My testimony will focus on the 
positive lessons that can be learnt about Habitat Conservation Plans. I 
will also make suggestions for improving the process.
    SEI has a staff of 20 scientists, including wildlife biologists, 
foresters, and marine ecologists. We are active in many ESA issues, 
advising on listing decisions and conservation measures, carrying out 
research, sitting on Recovery Teams, and helping with HCPs. Most of our 
work is for government, but we also work closely with both industry and 
environmental groups. I have personally been involved with six HCPs, 
and was advisor to Dr. Kareiva on the AIBS project. I will report on 
two issues: the recently completed Pacific Lumber HCP, and the SEI 
Santa Barbara meeting on integrating science into HCPs.
    HCPs are important to conservation. Without HCPs there would be few 
options for management of endangered species on non-Federal lands. 
Rigorous scientific analyses are crucial to these plans. However 
science is just part of any HCP. Ultimately the Plan is the result of 
negotiation, and of decisions made by landowners and regulatory 
agencies. Science can help in this process, but it is not a magic 
bullet. Scientists can provide information on planning objectives and 
options, and on the biological consequences and risks of these options. 
The better the information provided by scientists, the more likely that 
planners will make good decisions.
    In the Pacific Lumber HCP, we used science to defuse a 
controversial situation. We coordinated a large scientific program on 
the threatened Marbled Murrelet. Federal, State and private scientists 
cooperated to determine the effects of different management options. 
Ultimately the program was successful, in that it provided clear 
guidance to decisionmakers. Several items stand out: Firstly, the 
program was well-funded by the company, which invested heavily in 
obtaining good scientific information. Second, the quality of the 
scientific work was improved by an independent advisory or ``peer 
review'' panel. In the accompanying chart, I show the results of an 
independent audit of the PalCo HCP, using the same techniques as used 
in the AIBS study. You will see that the quality of the HCP improved 
dramatically from the early (1997) to the final draft, under panel 
guidance. Note also that the final plan outperforms other Murrelet HCPs 
that did not have such guidance.
    A third important point on the Pacific Lumber HCP was that the 
scientists were not asked to make management decisions. This separation 
of roles is key. The use of good science can build trust between 
parties, precisely to the extent that scientists avoid becoming 
advocates.
    I am pleased that Dr. Kareiva, in his discussion of the AIBS study, 
agrees that the PalCo Murrelet monitoring plan uses good science. This 
monitoring program was developed using the most advanced analytical 
techniques available. The AIBS study was useful in pointing out that 
not all HCPs do use such methods, or even information that already 
exists. However the AIBS investigation was essentially a research 
study--it did not address important practical considerations and 
limitations, or how to best improve the process.
    In April of this year, SEI (with NCEAS and other support) brought 
together leading decisionmakers and scientists to develop practical 
improvements. Participants included academics, representatives of 
environmental and industry groups, and of Federal and State agencies. 
Working by consensus, we identified numerous ways to strengthen and 
improve the process (as outlined in the minutes of the meeting). There 
was for instance general recognition that the regulatory agencies, and 
many HCP applicants lack sufficient resources for the technically 
demanding tasks they face. Academic and other scientists can help to 
bridge these gaps, but often lack incentives or opportunities to do so. 
Most importantly there are significant barriers to making more 
effective use of science. We need new infrastructure to make this 
happen.
    The SEI Santa Barbara group initiated development of a national 
peer review program for HCPs. We are now working to make this a 
reality, and have expanded our group to include leaders from 
professional societies, and other partners. By this consensus approach, 
we are seeking voluntary improvements to HCPs. By improving the science 
in their plans, permit applicants will smooth the negotiation process, 
save time and money, and gain certainty that their plans will be 
approved. The general public also wants to see better science in HCPs--
an open peer review process will improve public confidence in ESA 
decisions.
             action items from the sei santa barbara group
    1. Publication of conclusions.--The minutes have been distributed. 
Brosnan will take the lead in writing up the discussions in a format 
suitable for dissemination or publication.
    2. Peer review and Involvement of independent scientists.--SEI will 
coordinate a group (including those present) who will develop the new 
infrastructure for such involvement. The group will identify strategies 
for dealing with issues of impartiality, training, funding, etc.
    3. Production of a document on `how to make a good HCP'.--This will 
not be an advocacy document, but a roadmap for applicants who want to 
do a good job. SEI will discuss with the various parties whether they 
wish to participate in production of such a document.
    4. Biological goals.--The Group recommended that scientists engage 
with the USFWS and help in the delineation of biological goals, 
generally, and at the species level. Scientists need to play a role in 
large scale analysis of species and conservation efforts, and 
``conservation blueprints,'' or master plans, should be developed as 
early as during the listing process in order to guide the biological 
goals and objectives of HCPs and, ideally, to create closer links 
between HCPs and recovery. USFWS will seek help when appropriate, but 
proactive involvement of the scientific community in this process would 
be highly desirable.
    5. Monitoring.--The Group recommended that scientists provide 
guidance to the Services on setting general monitoring standards and 
objectives. This might include explicit statistical treatment of, for 
instance, Type 11 errors, and the appropriate level of confidence for 
making decisions under the precautionary principle. The professional 
societies might help here.
    6. Uncertainty and risk.--An explicit treatment of uncertainty 
should be a part of any HCP. It is important to keep a complete 
administrative record that acknowledges risks, and how these are 
assessed and dealt with. Decision-makers (agency and applicant) will 
make the call, but scientists need to provide clear statements where 
possible. HCPs should articulate information gaps. These should not be 
seen as liabilities, or targets for litigation, but as real needs, 
which have to be dealt with. The precautionary principle, adaptive 
management, and well-designed monitoring can all be appropriate ways of 
dealing with uncertainty.
    Population Viability Analyses are favored by some, but are not 
always useful in resolving problems. Sometimes PVA is most useful in 
telling you what you don't know (this can guide decisionmakers, and 
help identify where additional research is necessary). PVA is not a 
blanket solution, and decisionmakers should be aware of its 
limitations.
    Most of the tools for dealing with uncertainty are already 
available. However they are brought piecemeal to HCPs, depending on the 
experience of those preparing the plans. We need a more consistent 
approach, which might be fostered by a ``guidance document.''
    7. Further analyses.--The Group noted that the AIBS/NCEAS study 
could be taken further, with additional work on, for instance, the 
context of the individual HCPs (is good science correlated with a good 
HCP?), how uncertainty was dealt with, the adequacy of peer review, 
etc. There might be value in including other conservation plans (e.g. 
Federal plans) in the analysis, to determine whether HCPs fare well or 
poorly in comparative terms. The existing study group members were 
encouraged to pursue these lines, which would make the study results 
more useful to managers.
                               __________
      Responses by Steve P. Courtney to Additional Questions from 
                             Senator Chafee
    Question 1. What is the role of the scientist in the development of 
an HCP?
    Response. Scientists are trained in science, but not typically in 
decisionmaking or resource management. In the HCP process they are best 
employed in a technical role, providing the necessary data for a 
manager to make decisions. It is important to emphasize that scientists 
should have advisory roles. They are uniquely qualified to evaluate 
probabilities of success, and risks of failure. Scientists should 
however normally be restricted to this advisory role. Managers, who are 
trained in balancing such risks against other concerns, must be the 
decisionmakers. Problems arise when scientists or managers attempt to 
take other's roles (Brosnan and Manasse 1999)
    HCPs are complex management documents. Although some independent 
scientists (typically consultants) are engaged in HCP work, most 
scientists working on HCPs are (and will continue to be) based in 
academia. While this is an excellent way to ensure independent science, 
academics are often inexperienced in advising management decisions. 
Because academics are highly trained professionals in their field, they 
may be tempted to insert themselves into the management arena. This 
temptation needs to be resisted. Scientists, with some exceptions, 
should be restricted to their area of expertise. The AIBS report, for 
instance, is an excellent scientific study of HCPs; the recommendations 
of this report for science are to the point. For instance, data base 
management and use of peer review are both standard scientific 
techniques that have been sadly lacking in HCP science. Most of the 
AIBS study participants however lacked any in-depth experience of 
working HCPs (or indeed management decisions). Hence the report's 
statements on (for instance) adequacy of information for decisionmaking 
have drawn extensive criticism by managers and the administration 
(statement by USFWS; testimony of D.Barry).
    One of the most important tasks of a scientist in the HCP arena is 
to describe the risks and uncertainty inherent in any action. 
Conservation planning is a difficult task, with many interacting 
factors (Noss et al 1997). It is essential that we deal honestly with 
the uncertainties in such processes. Managers may be tempted to avoid 
statements of uncertainty, believing that this will increase the 
vulnerability of a plan to scientific or legal challenge. This 
temptation must also be resisted. Explicit statements of uncertainty 
are essential to any evaluation of an HCP. Management provisions for 
dealing with such risks (precautionary measures, adaptive management 
etc.), as well as the final decision on what constitutes acceptable 
risk, are the purview of the manager.
    HCPs are collaborative documents. They should reflect an exchange 
of ideas between managers and scientists, regulators and applicants. 
Scientists may have a role in suggesting management alternatives, and 
in helping managers identify options. However scientists should not 
become advocates for particular options.
    Scientists can also be used as reviewers (either before or after 
management options are fully developed). For instance, scientists can 
examine management decisions or options and determine whether such 
options are based on scientific evidence, and are ``consistent'' with 
scientific information. This information can then be used to help guide 
final decisions, and may also be useful to the interested public. The 
US Forest Service has recently attempted such a ``science consistency 
check'' for the Tongass National Forest (US Forest Service PNW GTR 
1998; Brosnan 1999).
    An important and underestimated role in the HCP process is 
``interpreter''. An individual HCP may involve several different 
technical specialists, as well as applicants and regulators who are 
unfamiliar with these disciplines. Some large HCPs for instance employ 
economists, population demographic modelers, wildlife biologists, 
hydrologists, soil scientists and others. It is unlikely that either 
the regulatory agencies or the applicant (or indeed the public) have 
much understanding of all these fields. A science manager who can 
interpret across these fields, and between the different parties, can 
greatly ease the HCP development process. In some HCPs, scientists with 
management experience have filled this role. As large-scale, multi-
species HCPs become more common, the need for technically proficient 
interpreters will increase.

    Question 2. Several scientists have suggested that HCPs should be 
subject to a rigorous peer review process. Do you agree with that 
suggestion? How should peer review be incorporated into the HCP 
planning process?
    Response. Peer review of HCPs has been advocated by a wide 
diversity of groups, including many scientists. Brosnan (1999) provides 
a summary table showing how strong is the consensus for incorporating 
peer review. Non-scientists and scientists alike believe that peer-
review is essential to strengthening the science used in ESA actions. 
Important scientific voices for peer review include an expert panel of 
conservation biologists (Meffe et al. 1998), the authors of the AIBS 
report (Kareiva et al. 1999), and the broad coalition of the SEI Santa 
Barbara group (SEI 1999).
    Peer review is a normal component of science. It is a means whereby 
scientists maintain standards in their discipline, and ensure that poor 
quality work is exposed as such. The science used in HCPs should be 
subject to quality control. Well-crafted HCPs have typically been open 
to such review, and have incorporated suggested changes. HCPs that are 
less well developed have often lacked such review. In one case (Fort 
Morgan HCP for the Alabama Beach Mouse) a court has determined that the 
science failed to meet acceptable standards (As a scientist, I concur 
with this opinion). Review would ensure that HCPs are complete and 
incorporate reasonable science. Moreover, review early in the process 
would ensure that applicants do not expend resources on scientifically 
unsupported options. Laura Hood (Defenders of Wildlife) in her 
testimony before this subcommittee makes these points well.
    HCPs are however not just scientific documents, and cannot be 
reviewed as such. Peer review will be useful in the HCP process only if 
the current review practices are adapted to management-oriented 
documents. The SEI Santa Barbara group (1999) has warned that applying 
``academic'' peer review to HCPs may cause unexpected problems. The 
following points are developed from the report of this consensus group, 
which included scientists, and representatives from HCP applicants, 
environmental groups, and government agencies.
    Peer-review must be voluntary not mandatory. Since the HCP process 
is applicant driven, the regulatory agencies cannot require that 
applicants obtain the early involvement of independent scientists. The 
agencies can of course encourage applicants to incorporate early 
scientific review. There are many incentives to applicants to do this. 
By using good science, applicants will get a better plan, which is less 
likely to change, and is more immune to challenge. The report of the 
SEI Santa Barbara group sets out in detail the many incentives for an 
applicant to voluntarily adopt independent peer review.
    Scientists need training in how to review HCPs. Typical 
``academic'' peer review are anonymous, proceed at a leisurely pace (up 
to 6 months) and are concerned with whether the science meets certain 
standards. HCPs need immediate review, often by scientists who are 
willing to remain involved and develop new options. Also it is 
important to recognize that the regulatory agency cannot defer-
decisions until such time as scientific evidence is ``complete''. 
Again, the SEI Santa Barbara group has detailed the differences 
inherent in reviews of applied science, and indicated how scientists 
typically need to be trained to understand such differences.
    Peer review needs independent oversight. The existing mechanisms 
for peer review (administered by scientific societies, the National 
Academy, applicants, agencies or interest groups) all have problems. 
Parties to the HCP cannot administer an independent process of peer 
review. Similarly, critics of HCPs (such as environmental groups and 
their allies) will not be seen as independent. Conversely, existing 
independent scientific groups lack understanding and experience of on-
the-ground HCP management. The SEI Santa Barbara group emphasized that 
new infrastructure was needed, and that this should be developed from a 
consensus of all affected parties (including HCP applicants, 
environmentalists, and regulatory agencies). This group is now 
developing a nation-wide program for involvement and oversight of 
independent science in HCPs. In 1999, we anticipate two demonstration 
HCPs, whereby landowners will voluntarily open their planning and 
application process to independent scientific advice.
    Not all HCPs need peer review. Neither do all HCPs need the same 
type of peer review. Laura Hood in her testimony to this subcommittee 
suggests that some HCPs may not need review. I concur, in that small 
HCPs of minimal effect may not involve detailed scientific analysis. 
Large HCPs, or those affecting many species, or large numbers of 
particular species, should be subject to closer scrutiny. In some 
cases, this will require a team of reviewers; in other cases a much 
smaller group will be needed. Similarly, in some cases, scientists will 
be needed to advise over a period of years, through both development 
and implementation of the plan. In other cases, a simple science 
consistency check may be sufficient. There should be no ``one size fits 
all'' approach, but a recognition that different circumstances will 
require a flexible review process.

    Question 3. Can you expand on the thought that there are 
significant barriers to making more effective use of science? Do you 
feel that the barriers exist just in developing HCPs or do they also 
exist in the listing and recovery processes?
    Response. There are many barriers to making more effective use of 
science. Such barriers, deliberate or inadvertent, occur in all 
organizations that are involved with HCPs. For instance, the regulatory 
agencies are woefully understaffed and underfunded. This significantly 
impairs the ability of the USFWS and NMFS to respond in a timely manner 
to endangered species issues. Preparing a regulatory decision with such 
minimal staffing is a poor recipe for success. Very often, important 
land management decisions are made under a mandated timeframe, by staff 
who lack first-hand experience and training in advanced scientific 
tools. Only significant increases in the agencies' budgets can change 
this situation, so that adequate staffing and training is available.
    Scientists also lack incentives to be involved in endangered 
species actions (and experience many disincentives). An academic, for 
instance, must answer to the priorities of his or her host 
institution--typically grant support, scientific publication, and 
cutting-edge research. A scientist that engages in extensive applied 
work for the public benefit will probably suffer when considered for 
tenure and promotion. Similarly, attracting public comment, through 
involvement with endangered species debates, is probably not a good 
career move. SEI is now working with the USFWS to establish stronger 
incentives for scientists to engage with ESA issues.
    Science, by its very nature is a public process; an HOP application 
is often a closed process. Landowners need to be encouraged to open up 
the HOP development process to scientific involvement. Unfortunately, 
concerns about litigation may discourage landowners from seeking such 
input.
    Science is costly, and follows its own tempo. Landowners are 
reluctant to take on heavy costs, and engage in a lengthy process. 
Cost-sharing, and streamlining measures (such as explicit statements of 
biological goals) would materially help this situation.
    Listing decisions. Unfortunately, many high-profile listing 
decisions are made after litigation. Just some of the species that have 
been litigated in this way include: Northern Spotted Owl, Marbled 
Murrelet, Bull Trout, Canadian Lynx, Northern Goshawk, many anadromous 
fish. Science is often used in support of advocacy positions (for or 
against listing) but rarely is developed in a consensus approach. 
Several measures could change this situation. Most importantly the 
regulatory agencies need more resources, including sufficient support 
to seek help from outside scientists (through paid consultancies if 
necessary). The current staff of the agencies is overworked, 
undertrained in advanced demographic techniques (such as PVA) that are 
needed to make decisions, and increasingly engaged in defensive 
litigation.
    Second, independent scientists (particularly in academia) have 
shown a very poor response to requests for assistance. Only one in six 
scientists, when asked by USFWS to review listing decisions, bothers to 
reply. Although there is a cogent ``public good'' argument for such 
involvement, the reality is that academics get little or no reward for 
helping the Service. SEI is currently working with USFWS to develop new 
incentives that will encourage active involvement of independent 
scientists with listing decisions. We expect these measures to be put 
in place in a matter of weeks.
    Recovery is typically guided by a Recovery Plan, which is developed 
by a Recovery Team, subject to an EIS, and implemented by agency staff. 
Development and implementation of the plan is also subject to comment 
by different interest groups, who may advocate alternative solutions. 
In theory then, the recovery process is more open than listing or HOP 
actions, and should be guided by better science. In many cases, this is 
the case: Recovery Plans provide the best blueprint for making 
management decisions. Unfortunately, new problems may also arise at 
this stage. For instance, Recovery Team members are not selected in an 
open manner, following public input. This has led to widespread 
accusations of imbalance.
    Recovery Team members may sometimes have their own agendas. One 
Recovery Team, for instance, includes three consultants and one 
academic who obtain direct personal benefit from the species in 
question. The Recovery Plan for this species includes a proposal for 
the Team to be engaged in all future research projects for the species. 
Another Plan was prepared by an outside consultant, who made 
recommendations for funding of his organization's research. 
Administrative changes should be adopted that limit the potential for 
conflicts of interest.
    Recovery Plans take a long time to develop, and are complete for a 
minority of species. This is truly unfortunate, given that the species 
in question are acknowledged to be at risk. Science research cannot be 
made to run faster; however most Recovery Plans do not involve a 
research component, and are based on existing information. Hence 
increasing the resources to the agencies would be sufficient to reduce 
this backlog of work. Nevertheless the scientists on the Teams should 
be fully engaged in the task of preparing the plan, and not (as is 
typically the case) meet at a leisurely pace over the course of years.
    Finally, there is no clear national standard for Recovery planning. 
Should, for instance, a species be recovered throughout its former 
range? (Not with Grizzlies, Wolves, Cougar, Red-Cockaded Woodpecker or 
many species, but it is the case for Northern Spotted Owls, and Marbled 
Murrelets). One recent USFWS proposal is for biological goals to be set 
at the time of listing. Such a statement may have real value, because 
it will set immediate guidelines for management, and presumably 
(because it is under direct agency control) follow a consistent format.

    Question 4. You mentioned in your testimony that some HCP 
applicants are giving up on the process because of the frustrations 
with the existing mechanisms for developing, negotiating and obtaining 
final approval of HCPs. Who are they, and why are they unhappy with the 
process? What could be done to keep these applicants interested in 
participating in these conservation efforts?
    Response. In answering this question, I have contacted several 
actual or potential applicants, only some of whom were willing to State 
their positions. For the most part, I am reporting on what these 
applicants state; where I have direct experience of a situation I have 
indicated so.
    a. Some of the frustrations that are voiced by applicants:

          i. During negotiation of the HCP, USFWS and NMFS do not 
        provide clear goals or guidelines.
          ii. There is no clear leadership during the negotiation 
        process, so that the applicant cannot be assured that decisions 
        made at one level will be adhered to at other levels. A 
        frequent complaint is that an agreement reached at one level 
        will be overturned later at a different level, or after 
        ``second thoughts''.
          iii. The regulatory agencies apply inconsistent standards. 
        Different applicants are treated differently by the same staff; 
        standards also differ between different staff, different 
        offices, and different agencies.
          iv. Some agency staff adopt negotiation stances, rather than 
        approaching the HCP as cooperators. A common complaint is that 
        agency staff State that a plan is insufficient, but give no 
        further guidance. This is seen as a negotiating ploy, to 
        extract concessions. Applicants are frustrated at the expense 
        and delay of such protracted negotiations.
          v. The regulatory agencies are so understaffed that 
        applications take many years (5 or 6 years is common). This 
        lack of resources also ensures that decisions are often made by 
        junior staff that lack extensive scientific and management 
        training.
          vi. HCPs are so expensive in direct costs (HCP preparation), 
        indirect costs (staff time) and lost opportunity costs, that 
        they are not worth the investment. Simply selling the land at a 
        fraction of value is a preferable option.
          vii. Frequent staff turnover ensures that a lot of time is 
        lost in negotiating with new agency staff. This problem is 
        exacerbated later, during implementation, when the staff member 
        who agreed to a measure is no longer available to guide 
        implementation.
          viii. Some applicants complain of the scale of the demands 
        made by the agencies. These concerns may include the level of 
        reserved land or mitigation, or the disproportionality of 
        incidental take and proposed mitigation.
          ix. Many applicants are concerned about the lack of certainty 
        provided by an HCP and ITP, even under the ``No Surprises'' 
        policy. The frequent litigation of HCPs, even after these have 
        been agreed by the agencies, has led numerous applicants to 
        withdraw from negotiations. Several applicants are concerned 
        that overturn of the ``No Surprises'' policy will eliminate 
        their existing HCPs.
          x. After negotiation and approval of the HCP, the 
        implementation process itself becomes another negotiation. 
        Staff attempt to extract further concessions from an applicant 
        who is anxious to recoup HCP development costs.
    b. Examples
          i. Stimson Lumber has put its HCP on hold. This HCP, which 
        was for 31,000 acres of Redwood forest in Northern California, 
        concerned Spotted Owls, Marbled Murrelets and fish. The main 
        reasons cited for halting negotiations was frustration with the 
        lack of leadership in the agencies. Different agencies, and 
        staff at different levels within the same agency all had 
        different positions. NMFS applied a standard geared to 
        recovery, while USFWS applied a no jeopardy standard. After 2 
        years, and $2 Million in direct costs, the company decided that 
        negotiations were unlikely to reach resolution until clear 
        leadership was shown in an agency.
          ii. Seaside Oregon, (through Scientific Resources). This HCP, 
        which concerned 300 acres in coastal Oregon, concerned 
        conservation of the Oregon Silverspot butterfly. A developer 
        wished to develop part of the site for a golf course and 
        housing. My students and I surveyed the site, and identified 
        all areas where the hostplant (violets) occurred. Under the 
        HCP, all habitat would have been preserved, and residents in 
        the new housing would have paid yearly dues to improve the 
        habitat. In this case, repeated requests for guidance to the 
        responsible USFWS biologist went unanswered. Finally the 
        applicant withdrew from the process (1993), stating that in a 
        few years, invasion of scotch broom would eliminate the 
        violets, and he would be free to develop the property.
          iii. Presley Homes, Inc. This HCP application is currently 
        the subject of litigation (see accompanying press releases and 
        documentation). The HCP concerns 575 acres in suburban San 
        Jose, slated for development as a golf-course, residences, and 
        a nature reserve. The conservation plan concerns the Bay 
        Checkerspot butterfly (which however has not been seen at the 
        site for several years, and may no longer be present) and some 
        plants. Butterflies were to have been reintroduced to the site 
        under the HCP. The applicant states several frustrations, 
        including lack of response from the USFWS, unreasonable demands 
        (52 percent of the property is already set aside as reserve), 
        and inconsistency between USFWS and the lead agency (Corps of 
        Engineers). Butterfly surveys and development of HCP options 
        have been guided by Dr. Dennis Murphy, who testified before 
        this subcommittee.
          iv. Sierra Pacific Industries. SPI has stopped its 
        negotiation of an HCP for one and a half million acres of 
        forest in California. A major frustration was stated to be a 
        lack of consistency within and between agencies (notably the 
        use of a ``recovery'' standard by NMFS, who requested ``fully 
        functioning habitat''). Currently the company is operating 
        under no-take guidelines, and the State forest practices rules.
    c. Keeping applicants at the table
          i. Private lands are an important, even essential part of 
        conservation of endangered species. Some species are found 
        mainly or entirely on private lands. Hence it is imperative 
        that we find a workable solution for such habitat. The Bay 
        Checkerspot, and Oregon Silverspot (see ii and iii above) are 
        both close to extinction, and loss of these HCPs is 
        significant.
          ii. Administrative changes that address some applicant 
        complaints may be worthwhile. Clear decisionmaking processes, 
        and designated lead negotiators may smooth the negotiation 
        process. I have observed during several HCP negotiations the 
        advantages of having one agency staffer who is both empowered 
        to make decisions, and willing to do so. Confusion sets in when 
        different standards are set by different agency staff.
          iii. The regulatory agencies have proposed statements of 
        biological goals at the time of listing. This is an entirely 
        commendable change, that has the potential to address some 
        applicants' concerns. To be effective, this policy should 
        result in guidance for applicants as to how important different 
        habitats are, and what are specific management goals. It may be 
        useful to distinguish between recovery objectives, and actions 
        that will avoid jeopardy. Soon after listing, the agencies 
        should also issue species wide monitoring guidelines.
          Other administrative actions that are proposed include 
        streamlining the HCP process for plans of small effect. This 
        will again meet the needs of some applicants (particularly 
        small landowners). For this policy to be effective, a general 
        species-wide guidance policy should be in place, so that 
        ``small effect'' can be determined in advance, and also so that 
        species are not subject to undue cumulative effects.
          iv. HCPs are sometimes very costly. In some circumstances, it 
        may be appropriate for agency or other public organizations to 
        help defray these costs (e.g. small HCPs of little economic 
        benefit, but major biological effect). These contributions 
        might include purchase of property (in unusual circumstances), 
        or help with the cost of scientific analysis and HCP 
        preparation. SEI is developing such a program to cover HCP 
        science costs for some small landowners.
          v. Staff. Regulatory agencies need more staff, who are better 
        trained in all the skills and technical aspects of plan 
        development, and who can dedicate time to speedy resolution of 
        a negotiation. This can only happen if the agencies are given 
        the necessary budgets for staff and training. Resources could 
        also be dedicated to outside contractors, who could advise 
        agencies (in peer review, or on difficult technical issues, 
        such as PVA), or could relieve agencies of some of their tasks 
        (Recovery Plans are sometimes contracted out).
          vi. Certainty. Many applicants are concerned that overturn of 
        the ``No Surprises'' policy will remove a major incentive to 
        development of an HCP. Crafting a policy that ensures the 
        survival of both applicants and species would be a large 
        contribution to ensuring applicants stay involved with HCPs.

    Question 5. As a scientist, can you draw a distinction between 
actions that increase a species' chance of recovery and actions that do 
not affect extinction rates?
    Response. Extinction rates affect collections of species, not 
individual species. I believe the thrust of this question addresses the 
effects of actions on extinction risks. The questions of Senators Crapo 
and Chafee for Monica Medina were crafted in this context.
    Most biologists would state that there is a clear distinction 
between populations that are increasing, populations that are 
declining, and populations that are not changing in numbers. This is 
elementary material, to be found in any introductory ecology text. To a 
great extent, management actions can be interpreted simply in these 
terms. Cutting a tree down destroys habitat, growing a tree creates it, 
and doing nothing leaves the habitat unaltered. In this sense, recovery 
(growing a tree) would be easily distinguishable from neutral actions 
with no effect on extinction risks.
     NMFS (as in Ms. Medina's testimony) states that actions 
that promote recovery and actions that avoid jeopardy are 
indistinguishable. I have some difficulty with this statement. It could 
be that some actions have dual effects. For instance, actions that 
promote siltation (e.g. timber harvest) may well increase extinction 
risks (to the point of jeopardy); stopping such actions would not only 
avoid jeopardy, but might also contribute to recovery (as silt leaves 
the streams). In effect there would be no neutral action in this 
viewpoint. However actions that actively promote recovery (e.g. 
addition of Coarse Woody Debris to streams, and other rehabilitation 
actions) seem to be recognizable as positive steps, that will promote 
recovery, not simply avoid jeopardy.

    Question 6. Should improvements to the science of HCPs be 
mandatory?
    Response. The science in an HCP should be appropriate. If the HCP 
is of small effect, major analyses are unnecessary. If the HCP will 
potentially affect an entire species, with possibly irrevocable 
effects, careful analysis is in order. This follows from the 
``precautionary principle'', that is widely accepted in conservation 
biology (Noss et al. 1997, also see testimony of L.Hood). Hence there 
can be no simple mandated standard applied in a blanket fashion.
     It is the responsibility of the regulatory agencies to 
make a good decision on available information. Since the HCP process is 
applicant driven, improvements to science must be voluntary (in the 
hands of the applicant). However it is in the landowner's interest to 
provide good data to the agencies. This will generally result in a less 
conservative decision, which is both fair and swift.
    Nevertheless, there are clearly deficiencies in some existing HCPs, 
such as the Fort Morgan HCP for the Alabama Beach Mouse. This HCP (17 
pages in total length) depends on inconclusive trapping, and a 
statement from one person that he ``knows where the mice really are''. 
Most scientists would have trouble accepting this as a firm scientific 
basis for making decisions. That this HCP was approved may reflect lack 
of quality control by the local agency office--scientific peer review 
would have caught the problem. The AIBS study identified some other 
comparable situations, and similarly calls for peer review to establish 
a minimum scientific standard.
     Agencies could develop and enforce suitable scientific 
standards using existing policies (I see no need for changes to the ESA 
). However, it may well be in the interest of all parties for the 
agencies to work with outside entities, who could then advise on 
whether an HCP meets acceptable scientific standards. The SEI Santa 
Barbara group (involving agencies, environmentalists, applicants, and 
scientists) has begun development of such standards.
    Some improvements to HCP administration should be made. Testimony 
before this subcommittee indicated the critical need for a national 
data base on HCPs. The agencies should also attempt greater 
coordination and consistency of standards. Inconsistency between staff, 
between offices, and across agencies is a frequent complaint from both 
HCP applicants and environmentalists.
     Most independent scientists agree that one aspect of HCP 
design needs nationwide improvement: monitoring. As shown by the AIBS 
study and other critiques of HCPs, monitoring is generally poorly 
designed, with few explicit links to adaptive management. Monitoring 
programs should be designed and coordinated at large scales (typically 
larger than the individual HCP) (SEI Santa Barbara group 1999). 
Monitoring design should therefore become an explicit responsibility of 
the regulatory agencies, with help from interested scientists.
    Voluntary improvements to HCP science should be a common goal. The 
public is ill-served by mechanisms that promote closed negotiations, 
and allow only NEPA review. Similarly, HCP applicants should be 
encouraged to engage in good science as efficient business practice.
                                 ______
                                 
      DRAFT: SCIENTIFIC PEER REVIEW IN HABITAT CONSERVATION PLANS
                 Scientific Involvement and Peer Review
      summary of presentation on peer review by deborah m. brosnan
    1. Once only confined to academic profession, peer review is taking 
center stage as an important tool in natural resources planning and 
actions. Individuals and organizations on all sides of the debate are 
calling for peer review (Brosnan 1999), and 88 percent of Americans 
support peer review of ESA listings. However, it is clear that 
individuals and organizations differ in their definition, and 
expectations of peer review. Peer review is not peer approval, but 
rather a strict and rigorous evaluation.
    2. Academic peer review and peer review for a management decision 
differ. Academic peer review had its origins in the learned societies 
of 17th and 18th centuries (e.g. Royal Society), where society officers 
determined which presentations and debates were published, and thus 
acted as gatekeepers of scientific standards. Over time and with 
greater specialization in science, this evolved into the editor and 
peer reviewer systems of today. Peer review evolved for science and was 
carried out by scientists, and thus all shared common training and 
goals (i.e. the advancement of science).
    3. Unlike the participants in academic peer review, scientists and 
managers have different backgrounds, ask different questions and use 
information differently. They are not trained in each others 
disciplines, and decisionmakers may not know how to interpret detailed 
science analyses. Decision makers must make a decision regardless of 
the availability of science, and must often balance different factors 
including economic, social and legal concerns.
    4. The difference among the groups can lead to a confusion of roles 
and expectations. It is essential that we understand the roles of each 
group, and what we expect and ask for in peer review.
    5. Peer review should start early and be ongoing.
    6. Critical issues in peer review are impartiality, independence, 
and experience of the reviewers. Because peer review in management 
situations is different, scientists often need training. Further a 
liaison who can communicate among the parties, and buffer the 
scientists from outside pressure is often essential.
    7. All parties must have confidence in the peer reviewers, and it 
is thus essential that they all have a role in the choice of peer 
reviewers. There are different models of peer review depending on the 
circumstances.
                                overview
    There is widespread and strong support for scientific involvement 
and for peer review in natural resource and conservation actions 
including in the HCP process. Environmental groups (e.g. Defenders of 
Wildlife 1998), Department of Interior (Secretary Babbitt, 1994), State 
and local governments (e.g., National and Western Governors 
Association, 1998), the private sector (communiques issued by different 
stakeholders including American Farm Bureau Federation, Building Owners 
and Managers Association) and the scientific community (Meffe et al. 
1997, Kareiva et al. 1998) have all called for and endorsed peer 
review. (See Brosnan 1999 for a more complete list of groups calling 
for peer review). The challenge now is to respond to the call and to 
develop the structure that meets this need. This new infrastructure 
should equally serve all constituents, and harness the talents of the 
scientific community who are ready to engage in conservation and 
natural resource issues.
    Many individuals and organizations, including applicants, are 
concerned about ``doing what's right'' and are seeking help and 
assurances that their plans and actions will lead to the conservation 
of species and habitats. Often these groups are looking for the best 
available science, and are willing to make decisions based on the 
scientific evidence. There is recognition that the science can be the 
final arbitrator. Some applicants have already committed, or are 
willing to commit the resources necessary to ensure that plans and 
actions are consistent with the best scientific information.
    Scientific involvement is critical to the HCP process; it should 
begin early and it should be iterative. To date scientific input and 
peer review has been sporadic, and carried out at the discretion of, 
and in accordance with the resources of the applicant. The HCP process 
is applicant driven, and there is no legal requirement for the 
involvement of scientists. The scientific community must bear some 
responsibility for articulating and communicating the need for science, 
and the benefits of engaging with the scientific community in HCP 
development. However it is not just the applicants that benefit from 
the involvement of scientists and peer review. Regulatory agencies and 
the public (including environmental groups) can have greater confidence 
in a plan that is science based. A plan that has passed rigorous 
scientific review is more likely to meet its objectives and the goals 
of the Endangered Species Act to conserve species and the ecosystems on 
which they depend. The benefits from greater scientific input in to the 
development of HCPs are many, and range from increased credibility to 
greater confidence that the best science has been appropriately 
incorporated into the plan. Box 1.
Box 1.
    Why should applicants involve external scientists and scientific 
review in their HCP?
    1. It is the right thing to do. Many HCP applicants are motivated 
to develop a conservation plan that makes a genuine contribution to the 
species' welfare. Some applicants (e.g. city or State governments) may 
have a public trust responsibility for wildlife resources. Engaging the 
scientific community provides greater assurance of meeting these goals. 
Some applicants are strong advocates for a scientific approach to 
planning. This may involve a commitment to initial research, and a full 
and open discussion of results. In many cases, scientific investments 
have resulted in new management opportunities. Simpson Timber Company 
for instance has carried out research on Northern Spotted Owls that has 
changed scientific understanding of this species requirements, and 
allowed less restrictive but effective management.
    2. It can resolve argument, speed up the process, and reduce cost. 
The application and negotiation process can be lengthy. Discussions 
over several years may be necessary as participants determine options 
and their effects on listed species. Impartial scientific panels have 
arbitrated disagreements on the basis of scientific evidence, and 
identified research that resolved apparent conflicts. This approach has 
moved parties away from position based arguments and led to faster 
resolution. For instance in the PalCo HCP, a science advisory group 
identified data needs. These data were collected during the planning 
phase, eliminating much of the disagreement. Regulatory agencies tend 
to have greater confidence in plans that have a strong scientific 
backing, or are developed using consensus science planning. The added 
confidence can lead to swifter negotiations. The Irvine Company 
estimates that the NCCP cooperative scientific process saved 
significant amounts of time and money.
    3. It reduces the potential for litigation. Citizen groups are 
often concerned over the credibility of an HCP. The greater the 
independence and expertise of the group developing the critical 
scientific data, the greater the confidence the public will have in the 
plan. This may then reduce the likelihood of legal challenges or other 
negative comment. When litigation does occur, an independent and 
credible consensus science process will be more likely to resist 
challenge. By contrast adversarial science where each group uses its 
own scientists to critique drafts promotes development of different 
viewpoints either of which may prevail. The very presence of a credible 
scientific framework to the plan, and a consensus science position may 
act as deterrents to litigation.
    4. It opens up lines of communication among academia, applicants, 
regulatory agencies and the public. Scientists working for different 
parties are more likely to communicate effectively if there is an 
independent science facilitator or review team. The facilitator or 
scientists can often act as interpreters of science for the different 
groups thus reducing the risks of miscommunication. Communication 
between the different parties allows applicants to highlight the 
quality of their own internal research and can help to improve the 
credibility of ``industry science'' and scientists.
    5. It expands ownership of a plan. An applicant who involves other 
parties in the development of an HCP is more likely to encourage 
ownership and subsequent support for the plan. External scientists 
should not be asked to advocate for the negotiated compromise, but 
those involved in the scientific input or peer review may be willing to 
defend the quality and scientific procedures used in the plan 
development.
    6. Increases public confidence and credibility in the HCP. The 
public (including the scientific community) is more likely to have 
confidence in a plan that has been rigorously reviewed by the 
scientific community. Further involving external scientist may increase 
credibility after the ITP has been granted. HCP applicants, who are 
successful in obtaining a permit, still face implementation problems if 
the public opposes the plan. Consensus science planning is a positive 
move that may reassure the public.
    7. Assurance that the plan will work. Applicants need to know that 
their plan will work. Mitigation is more likely to be successful when 
well designed. Further, conservation measures are more likely to 
preserve or improve a species' status when well crafted. A consensus 
scientific process is more likely to reach goals. This will in turn 
reduce the possibility that management changes will be triggered in the 
future, with additional costs to the applicant.
    8. Maintenance of continuity. Agency staff often rotates through 
positions, so that those monitoring a plan's implementation and 
effectiveness may have little first hand experience of previous 
discussions. An outside scientific group may have greater continuity, 
providing longitudinal consistency. This may be important when plans 
and permits cover 50 years or more.
     distinguishing between scientific involvement and peer review
    Many groups are calling for ``peer review'' in natural resource 
decisions, including in the HCP process. However, often these groups 
are looking for more than simply what academic scientists mean by peer 
review. Many seek scientific oversight and advice by a panel or group 
of independent and expert scientists. Thus, scientific involvement and 
peer review differs in the extent, nature of involvement, and 
responsibility of the scientists. Both are valuable, but it is 
important to understand the distinction, and to be clear on what each 
provides to the process.
    Scientific involvement from an early stage is critical. Where early 
involvement has been sought it has sometimes taken the form of an 
independent scientific group or oversight panel convened from experts 
in the field (usually academic and government scientists). The role of 
this team is generally to provide frequent technical advice and input 
through the development stage, and often subsequently through the 
monitoring and/or adaptive management phase. (For instance this type of 
scientific oversight was used in the development of the NCCP process, 
the Washington Department of Natural Resources HCP, Brevard County HCP, 
San Bruno Mountain HCP, and PalCo HCP) Where early and iterative input 
has been used, there is agreement by those involved that it has 
significantly helped the process, and ensured better science. For 
instance, independent scientific input has enabled the negotiators to 
reach agreement sooner, because the argument has been decided on the 
basis of scientific evidence rather than the differing positions of 
applicant and regulator: In the absence of scientific input, 
negotiations have been lengthier, and position based.
    An independent scientific or oversight panel can dispense with 
criticisms while still early in the permitting process, and before the 
plans tenets have been ``set in stone'' They can help to form a strong 
scientific basis on which to build the plan, and provide credibility 
and assurances to concerned regulatory and public entities. For 
instance, a scientific oversight panel can assist with the scoping 
stage, the evaluation of existing data and analyses, indicate gaps in 
data, any needs for further research or information, and identify 
alternatives that might be considered. These can provide much benefit 
to an applicant. However, when the applicant already has a team of 
scientists, they may be less likely to see the benefits of outside help 
at the scoping stage, and view it as redundant and unnecessary, 
preferring to rely first on their own scientists to frame the initial 
document. Some applicants may be reluctant to seek outside assistance 
at the early phases of plan formation, simply because they do not want 
outside groups determining the core of their actions and business 
practices. It is therefore important to provide the distinction between 
biological input and business and management decisions.
    Not all HCPs use external oversight or technical panels. For 
instance, the Seattle P.U.D. used consultancy with respected scientists 
to guide their process. Other HCPs e.g. Plum Creek Company HCP, used an 
internal team of scientists, who coordinated with researchers who had 
published relevant material. These approaches allow the applicant to 
retain greater control, but they place a heavier burden on the internal 
scientists and minimize the advantages of an external panel (e.g. 
arbitration) and possibly credibility with the public (including 
academics).
    By contrast, an independent peer review tends to occur later in the 
development of the plan. Under this scenario expert scientists, who 
prior to this had no involvement in the HCP, are asked to review the 
science in a draft plan. The advantages of this method are that the 
scientists are clearly more independent of the plan, having had no role 
in its development. The disadvantage is that peer review often comes 
late in the plan, and scientists may often be perceived as advocates 
for the plan versus for the science. Further, it may be costly and less 
easy to alter a plan in the late stages of development. The recent 
draft of the Western Oregon HCP (Oregon Department of Forestry) uses 
this approach. A large review group critiqued the draft plan. On some 
issues all reviewers agreed, on others there was substantive 
disagreement with the burden for resolution of differences falling on 
the applicant. Scientific involvement and peer review are not mutually 
exclusive. For instance an applicant may chose to engage a scientific 
oversight panel and gain further review through an independent and 
external review of the draft stages.
    Qualitative and initial quantitative evidence indicates that 
external scientific involvement and review does improve HCPs. For 
instance, plans involving independent scientific reviewers and panels 
e.g. San Bruno Mountain HCP, were highlighted as positive examples in 
recent reports (Defenders of Wildlife 1998), and the San Bruno Mountain 
HCP is still considered exemplar in the design of a monitoring program. 
By contrast one HCP that did not involve external and independent 
scientific panels was recently successfully challenged on the basis of 
scientific inadequacy. One study has attempted to quantify how input 
from an independent scientific panel changes the effectiveness of a 
plan. Bigger (1999) analyzed how early and later stages of the PalCo 
HCP differ for two species where a scientific oversight panel was 
engaged. He used identical methods to those of the AIBS study (Kareiva 
et al. 1998) for evaluating HCPs. Overall, on Marbled Murrelets (where 
the scientific panel was consistently engaged) the plan ranked highly 
compared to other HCPs in the AIBS analysis. There were also 
significant improvements from early to late drafts in the sections 
covering Marbled Murrelets, as compared to Spotted Owls. Improvement in 
Owl plans was greatest in the one area (monitoring) where panel 
oversight was sought.
       scientific involvement and peer review in the hcp process
    Scientific involvement and peer review in HCP process is not the 
same as involvement and peer review for academic journals or for 
academic grant proposals. In academic peer review scientists and 
reviewers share the same training and goals (the advancement of 
science) and peer reviewers make decisions on the standard of science. 
In HCP planning, science is one factor in a management decision that 
must also meet legal and other agency mandates.
    To illustrate, a peer reviewer for a scientific journal might 
review two papers evaluating the level of endangerment of a particular 
species. The two papers reach the opposite conclusion because of subtle 
differences in sampling methods etc. A reviewer may judge that both 
papers are of high quality and sound in their methods, analysis and 
conclusions and recommend both for publication. From a scientific 
perspective, there is no inconsistency in this action. However, in an 
HCP and regulatory framework a decision must be made, and this type of 
perceived inconsistency is not possible.
    However in the management arena, scientists must review scientific 
work that will be used to make a decision that affects economic and 
social values. Regulatory agencies will make decisions based on the 
science but also within the regulatory and legal framework. Further, 
scientists and decisionmakers do not share the same background or 
familiarity with each others disciplines, and this can often lead to 
miscommunication (e.g. Brosnan and Menasse). It is therefore critical 
to make the distinction between the role of managers and scientists, 
and to avoid confusion.
    The role of independent scientists either in an advisory capacity 
or as peer reviewers must be understood, and clearly defined from the 
beginning. Scientists should only be asked to comment or advise on the 
science and not on the management actions. For instance in the 
development of an HCP scientists can evaluate data, suggest what other 
scientific actions are needed, who is best qualified to conduct other 
analyses, but they should never be asked to make management decisions. 
They should inform the negotiations, but not take sides in the 
negotiations. For peer reviewers, reviewing the adequacy of the science 
used in the development of an HCP is an appropriate role for a 
scientist, but reviewing the HCP itself is not. Further while it is 
appropriate for scientists to examine the adequacy of science in an 
HCP, it is unlikely to be appropriate for them to comment on the 
adequacy of overall management prescriptions. These are the 
prerogatives of the regulatory agencies.
    It is essential that scientists who are involved in oversight and 
peer review serve equally all constituencies. All parties must have 
confidence in the expertise, integrity, and impartiality of the 
scientists engaged in the HCP process. To ensure this, all parties must 
agree on the identity of the reviewers or panel, and anonymous review 
should not be part of the process. While ongoing peer review can be 
organized by and for one group (e.g. an agency may set up a peer review 
process) and this may have merit in certain situations, in the HCP 
setting this group is likely to be regarded as biased. Further it may 
result in ``dueling reviewers'' as other groups establish their own 
panels. This is counter-productive to the process.
    Impartiality, independence, and well established expertise are 
considered essential for the reviewers who serve either as peer 
reviewers or as part of a scientific panel. However, there is a 
perceived tension between an ``independent'' scientist and an 
``uninformed'' one. Applicants and agencies are often concerned that a 
academic scientist may be unaware of the local environment, and have no 
knowledge of the management process and requirements and thus produce a 
review that may be technically accurate but useless or even counter 
productive for decisionmakers.
    To safeguard the impartiality, independence of science, and to 
ensure some degree of experience and familiarity with the management 
arena a number of steps can be taken. These include (1) Training for 
scientists in what is involved in reviewing for management decisions, 
and how to ensure the integrity of science in the face of pressure. For 
instance scientists need to be aware that a decision must be made 
regardless of the availability of science, and that regulating agencies 
make decisions within their legal mandates. (2) Providing a liaison or 
``science manager'' who acts as the communicator between the scientists 
and the applicants, agencies, and public. It is essential that the 
liaison be a qualified scientist and familiar with management and the 
HCP process.
    The role of the science manager or liaison is critical but under-
appreciated. This person must ensure that the expectations of all 
parties are appropriate. The liaison must ensure that the scientists 
comment only on scientific issues, and refrain from, or are not 
pressured for, value judgments. At one and the same time it is 
essential to screen scientists from inappropriate pressures (e.g. to 
favor particular actions) while encouraging scientists to be timely and 
to consider all necessary materials. The science manager/liaison must 
also take the recommendations and action items from scientists and 
ensure that decisionmakers understand the value of, for example, 
additional research or analyses. Often the liaison staff must help 
evaluate uncertainties in the science for decisionmakers. Similarly 
they must often interpret by taking a management need and phrasing it 
in a form that scientists can advise on. Finally the science manager 
bridges the two cultures of science and management (Brosnan and Menasse 
1999), and is responsible for reducing miscommunications and 
frustrations and for building trust among parties.
            access to scientific involvement and peer review
    While some applicants have the resources to engage scientific 
advisory panels, this may not be true in all situations (e.g. small 
HCPs). But this does not take away the need for scientific input. Other 
constituencies (agencies, citizen groups etc.) will also want to use 
such scientists, but are unlikely to have the adequate resources to 
convene them. This need can only be met by developing news ways of 
providing scientific input so that it is equally available to all 
parties.
    Timeliness is critical. Often reviews of management plans are 
submitted to reviewers who are already overworked and over-committed, 
and thus reviews are either late or do not arrive at all. Academic peer 
reviews are often completed over several months; this will not work in 
management situations. Depending on what is required (i.e. the nature 
of the involvement) and the timing it may be important to consider 
remuneration or other rewards for reviewers. This may take the form of 
freeing reviewers from other tasks and responsibilities.
                             the next step
    There has been a loud and clear clarion call for greater scientific 
involvement in HCPs and the ESA in general. Now is the time to respond. 
To move forward we need a broad-based group to develop the structure 
that will provide scientific involvement and peer review to all 
constituencies. This group must begin to define the nature and terms of 
involvement of scientists in the HCP process and HCP science. 
Participants in the NCEAS workshop are now engaged in developing such a 
broad-based group and structure.
                                 ______
                                 
       Consulting the Oracle: Scientific Peer Review and Natural 
                          Resource Management
``I count the grains of the sand, and I measure out the sea's vastness, 
I understand the mute, and I hear the man who does not speak.'' (Reply 
of Delphic Oracle to King Croesus on whether to attack the Persians (he 
did and lost)).

    Independent scientific peer review is touted as the new ``oracle'' 
for resolving natural resource conflicts. Once a topic of conservation 
only among scientists, it now has popular appeal. Congress, business, 
religious groups, environmentalists are all calling for expanded use of 
scientific review. Peer review is being incorporated into new Federal 
and State statutes, while a recent Market Strategies poll found that 88 
percent of Americans support the use of scientific peer review in the 
listing of species under the Endangered Species Act.
    Why are we suddenly seeing such an outpouring of interest in a 
particular scientific method? The answer is simple; those groups 
advocating peer review are unhappy with decisions on biodiversity 
issues. These range from a general dissatisfaction with agency actions, 
to specific complaints about the outcome of particular listing 
decisions or approval of individual Habitat Conservation Plans (HCPs). 
Such complaints are heard from all sides of an issue. Environmentalists 
and development interests alike want change in how biodiversity policy 
is set and applied. They all believe that science will support their 
own viewpoint. For example the California Farm Bureau Federation states 
that the U.S. Fish and Wildlife Service (USFWS) disregarded peer review 
in the listing of fairy tadpole shrimp, despite ``overwhelming 
scientific evidence showing that listing was not warranted''. In 
partial remedy, the foundation recommends peer review at all levels of 
ESA: they. believe that, if the agency uses peer review, unwarranted 
listings will be avoided. At the same time, environmental groups also 
call for peer review of agency actions, believing that USFWS does not 
list enough species.
    Biodiversity policy can certainly benefit from independent 
scientific peer review. ESA and other natural resources laws (e.g. 
National Forest management Act) specify the use of best available 
science, but are largely silent on how ``best'' is defined. In some 
cases (e.g. Magnuson Act) peer review is incorporated as a means of 
ensuring high quality science. In other cases peer review is not 
mandated but has become agency policy (e.g. USFWS). Professional 
ecologists themselves have begun to respond to this call. For many 
years, ecologists have bemoaned the lack of good science in 
biodiversity policy, but have tended to maintain an academic distance 
from the issue. The explosive growth of conservation biology as a 
professional discipline has changed this. Ecologists are beginning to 
insist on high caliber science in resource management issues. Indeed 
scientists are themselves calling for better application of science in 
ESA, and have identified peer review as a major quality control tool 
(e.g. reports of NRC, AIBS/NCEAS studies).
    Enthusiasm for peer review is so general, some form is likely to be 
incorporated into any eventual reform of ESA. Each interest group is 
sure that peer review will fix problems that affect their constituency. 
Clearly they cannot all be right. Congress appears intent on an ESA 
that is fairer, effective and efficient. Peer review could be one 
component in such reform, but an ill-conceived process will add layers 
of problems. The legislative history of ESA is replete with unintended 
consequences of actions. Before peer review is incorporated into ESA, 
it will be wise to consider what it is we really want.
    In academia, peer review sets the standard for scientific adequacy. 
It is appealing to think that we can use the same process to ensure 
that high quality and impartial science is used in management and 
policy decisions. However in the rush to adopt review standards, few 
groups (notably scientists themselves) have considered how the arenas 
of science and management differ. In the absence of such critical 
evaluation we may be on the way to creating a new Delphic Oracle: a 
source of profound but useless statements.
    In this article, I will show what can go wrong with peer review, 
and how it could harm efforts at reform. These cautionary tales lead to 
specific recommendations. First though, we need to identify who wants 
peer review, why they think it will help them, and the extent to which 
existing review processes would meet such goals.
  who calls for scientific peer review, and what do they really want?
    A non-exhaustive search shows that all sides to the biodiversity 
debate are calling for independent peer review. Table 1 shows a 
selection of organizations calling for incorporation of review into one 
or another part of ESA. Farmers, timber and building interests, water 
users and their political allies are all calling for formal scientific 
peer review of listing decisions. USFWS currently attempts to 
incorporate local review into such decisions. However the Ecological 
Society of America, a professional body, opposes peer review of 
listings, because this would delay the listing process. Cattlemen and a 
broad coalition of reform advocates also advocate review of critical 
habitat designations.
    A more diverse group proposes review of individual HCPs. 
Environmental groups are particularly concerned about this provision, 
but others supporting review of HCPs include water and building 
interests, and some religious groups. Professional scientific 
organizations also argue for review of recovery plans, and that this 
should take place prior to implementation of new HCPs. Note that 
Defenders of Wildlife call for effective scientific involvement 
(including peer review) at an early stage in the HCP negotiation 
process.
    Several common themes emerge from this survey. Firstly, that there 
is widespread distrust of the regulatory agencies (usually USFWS and 
National Marine Fisheries Service, NMFS), and dissatisfaction with 
their administration of the ESA. Litigation has often been the result 
of this dissatisfaction. Judges, not independent scientists, then make 
rulings on scientific merit. Most of the major western listing 
decisions were adopted only after lawsuits (e.g. Northern Spotted Owl, 
Marbled Murrelet, Bull Trout, other salmonids, Lynx, etc.). Similarly 
an approved HOP (Paradise Joint Venture project, HOP for the Alabama 
Beach Mouse) has been successfully challenged on the basis of 
inadequate science.
    Some groups want to see less litigation in ESA issues, and greater 
use of impartial science to settle management questions. Several 
arguments underlie this stance. For instance, judges are not 
technicians--they may therefore make the ``wrong'' decision. The 
judicial process is also overtly political, with individual judges 
having well-known positions. Finally, court actions are incredibly 
costly--any means (such as better science) that can eliminate such 
costs is to be favored.
    A third point from Table 1 is the striking difference between 
groups in which parts of ESA need review. Simply put, each group favors 
review of those provisions of the Act which they find unpalatable. Pro-
development organizations want less listings of species, and favor 
review of listing decisions. Pro-environment groups are concerned about 
habitat loss under HCPs, and want them reviewed before approval.
    In general then, a wide array of interests favors independent 
review, for essentially identical reasons. ``Peer review'' will mean 
less litigation, less agency control, more fairness and greater 
objectivity. It will also be a tool to overthrow particular ``wrong'' 
decisions (e.g. the Beach Mouse HOP, listing of fairy shrimps).
    Interestingly, the agencies themselves share some of these goals, 
and wish to respond to the public's concerns. In addition, an open 
responsive process will be less vulnerable to litigation. Agency staff 
typically believe that they are doing a difficult task with inadequate 
resources. Better scientific support would lead to better decisions, 
and better justification for any decision. Increasingly, agencies are 
seeing that ``it is better to do it right than to do it over''.
    Some of these different goals are compatible: some are not. Peer 
review will probably lead to a more open process that is less 
vulnerable to litigation on issues of scientific merit. Early review 
might also prevent some bad decisions, eliminating the need for 
litigation; it will not overturn all unpopular decisions. ESA actions 
are not made solely on scientific data; indeed, sometimes scientific 
information is inadequate or even lacking.
    Most of the groups in Table 1 make no recommendations on how peer 
review should be structured, other than that it be carried out by 
independent scientists. A few bills are more explicit. For instance 
Washington State House Bill 2505 uses an independent science panel to 
guide salmon management and recovery. In 1997 the proposed Endangered 
Species Recovery Act (Senate Bill 1108, Kempthorne) would have mandated 
peer review of listing petitions, and outlined a method for choosing 
reviewers. Individual plans may be quite specific: the Pacific Lumber 
HOP, for instance, sets up (at agency insistence) three review panels, 
each with a different makeup and selection process.
    Again, the type of the review process envisaged reflects the goals 
of the framers. The Kempthorne bill was predicated on the assumption 
that regulatory agencies and the courts make poor decisions regarding 
listing, and that balanced review (including input from the private 
sector) would result in fewer listings. The Pacific Lumber HCP dictates 
academic scientific panels because of agency distrust of the applicant, 
and a belief that scientific oversight would ensure compliance, and 
effective conservation. In both cases then, peer review is seen as a 
means to enforce a particular viewpoint. The structure and format of 
the review process is then tailored to fit this enforcement goal. By 
contrast, USFWS and the US Forest Service select peer reviewers for 
their own actions, and a primary goal is to establish scientific 
legitimacy. The structure of the review (open format, use of agency 
staff as reviewers) is again tailored to a particular goal. This 
process departs significantly from the use of independent peer review 
in academic science.
                          what is peer review?
    Scientific peer review evolved over 300 years as a way of setting 
and maintaining scientific standards. While it is not without it's 
critics, peer review is widely regarded as an effective way of 
upholding the quality of scientific endeavors. Non-scientists, who are 
generally unaware of the methods or subtleties of peer review, 
generally believe that if an article has been published in a peer 
reviewed journal it is more likely to be true. This is evident from the 
respect accorded to peer reviewed science in the courtroom and even on 
expose TV shows.
    Peer review has always been a closed system, confined within the 
scientific community. It has been practiced by scientists for science. 
It was not developed for use in a wider social political context. The 
beginnings of modem peer review date to the reamed Societies of the 
17th and 18th Centuries. Many of these Societies published not only the 
text of a presented paper but also the text of the ensuing debate. 
(Charles Darwin's theories on evolution were presented in such a 
format). However Societies realized that standards were necessary, and 
that not all papers were worthy of publication. Society officers, and 
editors emerged as the initial guardians of scientific standards. Over 
time, as science expanded, and the breadth of knowledge increased, 
scientists specialized. Consequently editors became less able to judge 
the scientific merit of the diverse and focussed topics presented for 
publication. Editors came to rely on an army of reviewing scientists 
with different areas of expertise, and who were themselves known, 
published, and respected within the scientific community. Editors 
conferred anonymity on reviewers as a way of encouraging frankness.
    Today's peer review is a rigorous and powerful activity. The most 
common types of peer review concern grant proposals or publications in 
scientific journals. In journal reviews, an editor sends a submitted 
manuscript to a number of scientists who are active in the authors' 
field. The accompanying letter generally asks the reviewer to comment 
on the quality of the data and conclusions, errors and omissions, 
appropriateness of the topic for the journal, and any editorial 
comments. The reviewer then recommends that the work be ``published as 
is'' ``published with revisions'' or``rejected'' A reviewer of a grant 
application has two choices to recommend that the proposed work be 
``funded'' or ``not funded'' on the basis of the science. Typically all 
these recommendations are written anonymously where the identity of the 
reviewer is concealed.
    Being a reviewer confers power. A reviewer not only comments on the 
quality of the science under review, but also makes decisions on what 
happens to that work within the scientific community. A research 
program can disappear, or a manuscript fail to be published because 
reviewers judge it as scientifically inadequate. Clearly there are 
dangers here, when a scientific competitor can delay or even prevent 
publication of a rival's work. A good editor or grant program 
administrator recognizes these dangers and takes action to limit them. 
At the same time, it is essential to the process that reviewers are 
heeded, and their recommendations followed. A journal editor that 
consistently ignores review comments will quickly lose credibility, and 
probably their job.
    There is no formal training as a peer reviewer. The main 
qualifications are to have already published in peer reviewed journals, 
and to be recognized as a scientist who carries out good work. Review 
skills are largely assimilated in graduate school, during debates, 
journal clubs, and in review of already published papers. Because 
reviews are limited to the academic arena, the process is generally 
successful. The contributing scientist, editor and reviewers share 
similar backgrounds and education, with a common understanding of what 
constitutes good science. Scientists, policymakers, managers, advocacy 
groups and the public lack this common culture.
                             the minefield
    The use of science in resource management decisions is strikingly 
different from academic science. Few scientists are trained or 
experienced in how policymakers or managers use or understand science. 
Simply putting academic peer review into a management context is a 
recipe for misunderstanding and frustration.
    Some of the key differences:
    1. A decision will be made. Scientists are trained to be cautious, 
and to make only statements that are well supported. Managers have a 
different task: to make a decision using whatever information is 
available. In the context of peer review, scientists usually send 
incomplete work back for further study; managers often cannot do this.
    2. ``Best available versus adequate''. Managers and decisionmakers 
are instructed to use the best available science. Scientists may regard 
this same science as incomplete or inadequate. Decision-makers would 
like good science, but they must use what is available. Statements, in 
a peer review, that a piece of evidence does not meet normal scientific 
standards may not be relevant to a decisionmaker. Hence the burdens of 
proof in management decisions are likely to differ from academic 
science. The AIBS/NCEAS study of HCPs, and the USFWS response to it, 
clearly illustrates the pitfalls of using academic standards of 
adequacy.
    3. ``Best available not all adequate''. In academic science, two 
competing ideas or theories may both be supported by data, and both may 
spawn publishable work. Management needs to know which is best--i.e. it 
may require a judgment between conflicting data. Scientists rarely make 
such calls.
    4. Decisions are based in more than science. Ecology can only 
advise decisionmakers, who must also weigh legal concerns, public 
interest, economics, etc. Hence scientists should avoid making 
recommendations on decisions, and focus just on technical issues of 
science.
    5. Reviewers as advocates. In academic science, it is assumed that 
a reviewer is impartial and attempts to set aside any personal biases. 
Indeed, reviewers are asked not to complete reviews if they have pre-
formed opinions. In management situations, when reviewers are selected 
from a diversity of interests, it is assumed that, for instance, 
reviews solicited from environmental advocates, or development 
interests, will reflect the background of the reviewer. Hence the 
manager must balance the data against the source.
    6. Speed. Academic scientific reviews are completed at a leisurely 
pace-weeks or even months. This is not acceptable in management 
situations. Often the only reviews that arrive will be from reviewers 
with a strong personal interest.
    7. Anonymity and retaliation. Academic reviews are typically 
anonymous. This encourages frankness and discourages professional 
retaliation for a negative review. Reviews in management situations 
must usually be open. This will promote dialog, and perhaps ensure a 
fair review. However some scientists will be reluctant to make strong 
statements which are subject to public scrutiny.
    8. ``Qualified versus independent''. Often the scientists best 
qualified to be reviewers have already been involved in a conservation 
issue. Many HOP applicants for instance are extremely reluctant to have 
``inexperienced'' ecologists from the professional societies. They 
prefer ``experienced'' scientists who understand the rationale and 
techniques of an HOP (see Santa Barbara group report). This sets up a 
tension between demonstrable independence and necessary experience.
    9. Language. Managers and decisionmakers may not be familiar with 
the language of science. Statistical issues are particularly likely to 
cause confusion.
    10. Reward structure. In academic science, reviews are performed 
free of charge, for the common good. Hence they are typically given 
lower priority than other more pressing tasks. In management 
situations, this will not work. Rewards (financial and otherwise) have 
been necessary for reviews of HCPs etc.
                           what can go wrong?
    A key issue for peer review in biodiversity issues is clarity: both 
of information and of an individual's role. Some of the dangers of lack 
of clarity are shown in examples of reviews in practice.
    The development of the management plan for the Tongass National 
Forest was a visible and controversial process. It provides a useful 
example of the confusion of roles that can occur. In order to 
incorporate the best available science, the USDA Forest Service set up 
an internal peer review scientific group that worked together with 
forest managers to develop a scientifically based management plan. To 
further ensure scientific quality, USDA Forest Service sent its drafts 
and plans to a respected group of external reviewers (mostly academic) 
as allowed under the Federal Advisory Committee Act. (This Act limits 
the type of outside review committees that agencies can use.) In 
reviewing the process, the USDA Forest Service scientists concluded 
that Forest Service managers and scientists had worked effectively 
together at all stages and that science had been effectively 
incorporated by managers into the plans and revisions. Indeed it had 
been a watershed event in bringing the two groups together. However, 
the interaction between the agency and external reviewers was not as 
cordial.
    The external peer review committee members on the Tongass National 
Forest planning for old growth associated wildlife species 
independently issued a joint statement concerning the measures proposed 
to address protection of old growth associated wildlife species. In 
contrast to the internal reviews, this group was largely critical of 
the management proposed on the basis of the science. They concluded 
that, in some aspects of the plan, none of the proposed actions 
responded meaningfully to the conclusions reached by the peer 
reviewers. They further argued that ``the USDA Forest Service must 
consider other alternatives that respond more directly to the 
consistent advice it has received from the scientific community before 
adopting a plan for the Tongass.'' It's clear that the scientists felt 
ignored. Further it is within the responsibility of the scientists to 
respond to the inconsistency of the science and the decision. In the 
same statement, scientists noted that there were specific actions that 
should be carried out immediately to protect critical habitat. These 
included, for instance, no road building in certain types of forest, 
and the protection of low elevation old growth through ``lowgrading.''
    The Tongass experience illustrates several of the problems in 
applying scientific peer review to management. Firstly, independent and 
internal reviewers reached diametrically opposite opinions--the 
decisionmakers must now determine whether this difference was caused by 
inexperience or bias, and which set of opinions to follow. Whatever the 
eventual choice, the track record of dissent will increase 
vulnerability to legal challenges, and political interference. Second, 
the independent scientists feel ignored, and that their scientific 
opinions have not been integrated into management decisions. This again 
increases the vulnerability of those decisions. Third, the independent 
scientists make clear management recommendations--they feel that their 
science alone should drive management decisions. Most managers and 
decisionmakers will disagree with this point of view.
    Far from strengthening management decisions, peer review at the 
Tongass raised new problems. Confusion of roles and objectives was a 
major cause of these difficulties. A well-trained science manager might 
have prevented some of the problems, by giving clearer directions (In 
fairness the ``science consistency check'' process is new to the Forest 
Service, and some initial problems are to be expected).
    A different set of issues has arisen with peer review in Habitat 
Conservation Plans. Different approaches have been applied in different 
circumstances. The San Bruno Mountain and Pacific Lumber HCPs used 
academic scientific review panels who, from an early point in the 
process, guided the interpretation of science. These panels were 
advisory, and scrupulously avoided management recommendations, 
sometimes to the frustration of decisionmakers. The panels avoided 
setting levels of ``acceptable risk'', and tended to use conservative 
scientific standards. Rather than select the ``best available 
science'', the PL panel sometimes refused to express any opinion at 
all. Nevertheless the panel spoke with unanimity, and the marbled 
murrelet sections of the PL HCP appear well-crafted, when independently 
assessed.
    By contrast, the State of Oregon Northwest Forest HOP negotiation) 
used a post-hoc review by 23 ``independent'' scientists of a largely 
completed plan. The 23 reviewers were selected to represent a range of 
interest groups and experience. The corresponding diversity of 
responses include diametrically opposite opinions on several issues. 
This will render the opinions difficult to apply without further 
arbitration.
    As a final example of problems, the USFWS uses peer review of 
listing decisions. A few reviewers are selected at the local field 
office level, and are chosen from scientists ``involved'' in the issue. 
These reviews are unlikely to be independent, but may be more expert. 
Interestingly, the service reports a poor response from reviewers who 
are frequently late with reviews, or fail to respond at all. Reviewers 
are not rewarded in any way.
    Clearly, many issues can determine the outcome of a peer review 
process: how it is structured, who runs it, who are the reviewers, how 
they are rewarded, and how they are instructed, etc. Lack of attention 
to these details, and blanket application of an ``academic'' model has 
already led to problems, and will continue to do so.
             a model for peer review in biodiversity policy
    These past experiences can point the way to more effective 
integration of peer review into resource management. The following 
principles may be useful:
    1. The goals of peer review must be clearly stated
    2. Impartiality must be maintained to establish credibility
    3. Clear roles for reviewers are essential
    4. A balance must be sought between independence and expertise of 
reviewers
    5. Training of reviewers may be necessary
    6. A reward structure must be specified
    7. Early involvement of scientists will give better results than 
post-hoc evaluations
    Three other lessons can be deduced from past review efforts. First, 
academic scientists are rarely used to management oriented science. 
They may have roles as reviewers, but need careful instruction. The 
individual or organization that is coordinating the review needs to be 
experienced in both academic and applied science. Existing institutions 
lack the necessary experience (academia, professional bodies, 
academies, etc.), or are not seen as independent (e.g. branches of the 
regulatory agencies). There is a critical need for infrastructure to 
administer peer review, and for lists of trained and experienced 
reviewers.
    Second, a mediator or interpreter can be highly effective. 
Successful reviews (e.g. PL, Oregon HCPs) have employed a dedicated 
mediator, who can clarify roles, and eliminate misunderstandings 
between scientists and managers. This role is essential, because few 
scientists understand the policymakers' framework. Scientists may need 
encouragement in some areas, and may need to be dissuaded at other 
times from attempting to become managers. At the same time, managers 
may lack advanced training in e.g. statistics, and may need help in 
interpreting scientific statements. The interpreter can also act as the 
gate-keeper, ensuring scientific integrity and that reviewers are not 
put under pressure to make inappropriate management recommendations, or 
to become advocates.
    Third, a panel structure appears to give more consistently useful 
results. This is probably the result of continued involvement, and the 
opportunity of panelists to discuss issues among themselves. While 
panels sometimes produce conflicting opinions, they appear more likely 
to give unequivocal results than a collection of individual reviews.
                               conclusion
    There is enthusiasm for science and peer review, but little 
consensus on how to make the process work. Most notably, we lack the 
necessary infrastructure for developing peer review as a useful tool. 
Current institutions are either insufficiently experienced, or lack 
independence. Peer review cannot be guided by managers alone, nor by 
scientists alone. We need independent technical groups that have the 
necessary diverse skills, but are seen as impartial. The SEI Santa 
Barbara group, a consortium of diverse interests (environmental, 
business, agency and scientific) have begun development of a consensus 
program that will provide peer review as a public service.
    For centuries, the oracle at Delphi provided answers to all comers. 
This popularity persisted despite the oracle's responses being 
completely unintelligible; even after ``interpretation'' by Apollo's 
priests, problems were rife. Self-deception, and willful ignorance of 
alternative explanations appear to have been with us for millennia. 
Scientific peer review may be more recent than decisionmaking by 
oracle, but it shares some essential characteristics. Esoteric language 
of the priesthood (ecology) may be reassuring--whether we make good 
decisions will depend on how we interpret the advice.

   Developer Seeks to Protect the Environment from the U.S. Fish and 
                            Wildlife Agency
    Presley has been granted a hearing date on its petition filed today 
in Santa Clara Superior Court. Presley's petition asks the Court to 
order a grading permit issued for Presley's residential project in 
Santa Clara County. The Court will hear the matter on August 23, 1999.
    Presley Homes, the developer of The Ranch at Silver Creek, a 
residential community in the City on San Jose which would provide 538 
homes in the heart of the Silicon Valley where there exists a severe 
housing shortage. Construction of the 538 homes will use only 15 
percent of the 575 acres included in The Ranch at Silver. This is less 
than one house per acre. More than half of the property will be given 
to a non-profit environmental trust for use an conservation habitat. 
The developer would provide initial funding for the Trust of 
approximately $1.6 million and would arrange funding in perpetuity of 
$200,000 annually. Who could fault such a plan? None other than the 
United States Fish and Wildlife Service.
    On July 26, 1999 Presley was informed that the city of San Jose 
could not issue a grading permit due solely to improper threats and 
interference by the U.S. Fish and Wildlife Service with the city's 
permitting process. The Service, which has threatened legal action 
against the city, is falsely representing that the Ranch at Silver 
Creek potentially endangers protected species, and is therefore within 
the Service's jurisdiction. In fact, there are no protected animals 
species on the site. Moreover, Presley's habitat conservation plan 
provides for the restoration and enhancement of protected species.
    Since 1990, The Ranch at Silver Creek has undergone extensive 
environmental and planning review by local, State and Federal 
agencies--including the Army Corps, U.S. Environmental Protection 
Agency, the Regional Water Quality Control Board, the Santa Clara 
Valley Water Distinct, the city, the Service, and the California 
Department of Fish and Game. Presley has secured all of the necessary 
approvals and permits for each stage of the project to date. The U.S. 
Fish and Wildlife Service has actively participated in the regulatory 
review process for The Ranch at Silver Creek from its inception. At 
each stage of the process, the Service has objected to the issuance of 
permits and approvals. But, at each stage, except for the one at hand, 
the Service's objections have been rejected by the reviewing agency. By 
threats, false representations and innuendoes, the Service is now 
attempting to accomplish indirectly what it could not directly or 
lawfully. .
    The Service falsely claims it is trying to protect the Bay 
Checkerspot Butterfly. In fact, all scientific evidence shows that 
there is no Bay Checkerspot Butterfly on this property and hasn't been 
one on the property since 1995. The Service has not produced one shred 
of evidence to the contrary. While an habitat conservation plan could 
not have been imposed upon Presley under Federal law, Presley has 
nevertheless agreed to a comprehensive habitat conservation plan as 
part of the environmental review process. The habit conservation plan 
includes a 71-acre Bay Checkerspot Butterfly restoration area, to be 
governed (along with other open acreage) by the non-profit 
environmental trust. The net effect of Presley's habitat conservation 
plan is that 298 acres (or approximately 52 percent of the site) is to 
be set aside as trust-funded restoration/preservation areas.
    Presley environmental team has exercised avoidance of environmental 
impacts to these sensitive areas. When Presley bought the property, the 
site plan called for filling the degraded Hellyer Creek corridor. 
Presley redesigned the plan to preserve Hellyer Creek and over 90 
percent of the site's wetlands and the riparian habitat will be 
preserved and enhanced. The entire lush riparian corridor of Silver 
Creek will be preserved and enhanced with oak trees grown from local 
seed. Presley has already built a wetland pond to provide a breeding 
habitat for the California tiger salamander, with translocation of 
adult tiger salamanders from existing residential neighborhoods, and 
successful breeding of these adults in the pond has been documented. 
The plan also avoids endangered plants such as the Metcalf Canyon 
jewelflower and dudleya, and the plant restoration part of the 
conservation plan calls for transplanting, propagating, seeding and 
enhancing habitat for these species. All of this is in jeopardy because 
of the actions of the U.S. Fish and Wildlife Service.
    Presley had already begun clearing the property when the Service 
interfered. At this point grading needs to be completed to insure 
proper erosion control before the rainfalls begin this winter. The area 
graded drains into Silver Creek asked Coyote Creek, which in turn flow 
into the San Francisco Bay.
    The Service's eleventh hour interference with the city's permitting 
process consists of false representations about its jurisdiction over 
the permitting process, and unwarranted threats of legal action against 
the city. The Service's interference is:
     Improper--because it exceeds its jurisdiction and/or is an 
abuse of its powers,
     Unfair--because it has had every opportunity to influence 
the environmental aspects of The Ranch at Silver Creek from its 
inception, but chose not to or was rejected; and
     Environmentally counterproductive--because Presley is 
unable to implement its voluntarily adopted, comprehensive habitat 
conservation plan, which includes a 71-acre area dedicated to the 
restoration of the same butterfly species which the Service improperly 
asserts needs protection.
     Environmentally counterproductive--Unless Presley obtains 
the grading permit forthwith, it will be unable to complete the grading 
necessary to secure the site against the imminent onset of seasonal 
rainfalls, with the inevitable result of substantial and irreparable 
damage to the environment, as well as to the economic interests of 
Presley, the city, and surrounding property owners.
     Economically harmful to the city and State--The Ranch at 
Silver Creek would provide much needed housing in the heart of the 
Silicon Valley which is an important part of California's economy.
                                 ______
                                 
   The Presley Companies Files Suit Against the City of San Jose to 
                      Proceed with Housing Project
    Newport Beach, CA--August 10, 1999--The Presley Companies 
(NYSE:PDC) and Cerro Plata Associates said today they have filed a 
lawsuit to obtain appropriate permits to allow their Ranch at Silver 
Creek housing development to move forward.
    The Ranch at Silver Creek would provide 538 homes on approximately 
15 percent of the total property. More than 50 percent of the total 
acreage will be a protected environmental habitat as part of a 
conservation plan established by Cerro Plata and the remaining 33 
percent is dedicated to a golf course. Cerro Plata, of which Presley 
Homes is a member, is the developer of The Ranch at Silver Creek.
    Presley pointed out that ``Notwithstanding the eminently clear 
environmental mitigation actions we have taken with respect to this 
project and despite the fact that noted ecologists have embraced our 
plans and succinctly approved them, the U.S. Fish and Wildlife 
Commission has fought this project every step of the way and fought it 
on spurious grounds.
    ``For example,'' Presley continued, ``The Commission claims that 
the Bay Checkerspot Butterfly, an endangered species, is on the 
property. All evidence is to the contrary and shows that this species 
has not been on the property for nearly 5 years, a fact that the 
Commissions disputes, but refuses to produce any evidence for its 
position. Moreover, the Ranch at Silver Creek development specifically 
establishes 71 acres as a Checkerspot Butterfly restoration area, as 
well as other open acreage. The habitat conservation plan Cerra Plata 
has established will have an initial finding of $1.6 million, of which 
$1.3 million will be applied to this restoration area. Moreover, this 
conservation plan is not just for 1 year, or 2, or 3. It is established 
in perpetuity with funding of $200,000 annually.''
    Presley stated that ``The city of San Jose is in the heart of the 
Silicon Valley, an area that is undergoing California's worst housing 
shortage. We have taken every possible precaution to mitigate 
environmental damage to this area. And in fact, our plan will restore 
several endangered species. If we do not proceed on schedule, if we are 
prevented from doing so by the Fish and Wildlife Commission, that 
entity itself will be responsible for potential significant 
environmental damage.''
    The company said ``if we are prevented by the Commission from 
moving forward with appropriate grading of the property and completing 
that grading before mid-October, seasonal rains will likely cause 
substantial amounts of exposed, unstable soils to wash into an adjacent 
creek basin resulting in severe environmental harm to not only the 
creek, but the San Francisco Bay into which it drains. This event will 
violate State and Federal clean water laws and clog nearby flood 
control channels, with the potential result of flooding, in existing 
residential areas.''
                                 ______
                                 
   Statement of Michael A. O'Connell, Senior Advisor for Science and 
             Policy of The Nature Conservancy of California
    Mr. Chairman and members of the Committee, thank you for the 
opportunity to address this committee on the science of regional 
conservation planning under the Endangered Species Act (ESA).
    The Nature Conservancy is an international non-profit conservation 
organization dedicated to preserving the plants, animals and natural 
communities that represent the diversity of life on Earth by protecting 
the lands and waters they need to survive. We maintain offices in all 
50 states and work with partner organizations in 17 countries. We have 
helped protect 10.5 million acres in the United States and Canada and 
ourselves own 1,600 preserves--the largest private system of nature 
sanctuaries in the world. Our efforts are supported by more than 
1,000,000 individuals members and hundreds of corporate associates 
committed to reversing degradation of the biodiversity and natural 
resources on which our lives depend.
    The Nature Conservancy has been involved in conservation planning 
under the ESA since Section 10(a) was authorized in 1982. We have 
played a major role in a number of Habitat Conservation Plan (HCP) 
processes, including Coachella Valley California, Clark County, Nevada, 
Balcones Canyonlands in Texas and the Natural Community Conservation 
Planning program in Southern California. Our organization has witnessed 
the evolution of habitat conservation planning from its beginnings on 
San Bruno Mountain to its current State of the art in Southern 
California with the NCCP program. The comments and observations I offer 
today reflect both the Conservancy's long experience and my own as a 
student and practitioner of conservation planning.
    There are two key points in my testimony. The first is that habitat 
conservation planning as it has generally been practiced under the ESA, 
while an important tool in protecting endangered species, has not 
achieved the conservation gains that the ESA contemplates, namely the 
recovery and delisting of species. There are a number of reasons why 
this is so, and I will try to focus on the scientific ones. Second--the 
good news--is that there are some scientific and biological adjustments 
that can be made to the planning program to greatly increase 
conservation outcomes without undermining the other benefits the 
program provides. I want to use the example of the Southern California 
regional conservation planning program under NCCP to illustrate many of 
these points.
                  the limitations of current practice
    Before undertaking an examination of the science of HCPs, it is 
important that we look at what HCPs are as a conservation tool and what 
they are not. Section 10 of ESA provides a way for non-Federal project 
proponents to avoid the legal consequences of incidentally taking 
endangered species in the course of otherwise lawful activities. Almost 
all HCPs are begun when a proposed activity is likely to result in the 
take of a listed species, and the conservation provisions that arise 
from an HCP are generally intended to avoid or mitigate the take of 
some individuals of a species. Is that wrong? Probably not. Full 
mitigation for unavoidable impacts is arguably a fairly reasonable 
standard for private parties. But is that good conservation? I submit 
that it falls far short of conservation of biological diversity, nor is 
it the type that the Endangered Species Act intends--recovery of listed 
species.
    Part of the problem is that HCPs as they have been practiced are 
initiated much too late from a scientific standpoint. Most are begun 
when a species is already listed, which means that it is almost at the 
brink of extinction. Many biological--and political and economic--
options are foreclosed by that point.
    Most HCPs are also the wrong biological scale. While there has been 
an increase recently in multiple-species conservation plans around the 
country and the Fish and Wildlife Service has promoted them, even these 
plans are still mostly focused on reacting to proposed effects on 
listed species on non-Federal land. They have rarely been used as a 
mechanism to create conservation solutions in advance of conflict on a 
broad scale for interconnected natural communities of species. And 
biologically, most HCPs miss an entire scale of conservation--that of 
ecosystem level process and function that sustains those species.
    The U.S. Fish and Wildlife Service has been working hard to improve 
the habitat conservation planning program. They have done their best to 
try and make the HCP program more conservation oriented, both through 
practice and through policy. What's more, this issue is perhaps the 
most emotional, difficult and controversial issue in contemporary 
conservation policy and the Service is in the middle. Their solutions, 
however, are limited by a legislative policy weak on natural systems 
conservation and on incentives to participants. It is difficult to 
envision a broad-based, conservation-focused program arising from a 
statute that is largely based on prohibiting improper actions rather 
than enabling and encouraging constructive ones. The Service has done 
well, all things considered.
    So, what is the answer to these issues from a scientific 
standpoint? Many have suggested that it lies in improving the recovery 
planning process. If we have good recovery plans, they say, then we'll 
be able to handle all of those other issues. I disagree. We believe 
that recovery planning is not the best solution for a couple of 
critical reasons. First, it is still species focused. While there are a 
few multiple species recovery plans in existence, they are generally 
still focused on the species themselves and not on natural communities 
and other critical scales of biological diversity that are essential to 
craft a viable solution. Even if they were not, there's no regulatory 
handle for anything other than species. Second, recovery plans also 
come too late. They are only prepared when a species is listed. And 
Congress is unlikely to legislate recovery plans and enforcement 
authority for species that are not yet listed.
    Others have suggested that the answer lies in new legislation to 
regulate ecosystems. While this is a good idea it is not very 
practical, because from both biological and regulatory perspectives 
species are the only reasonably definable unit. Besides, there will 
always be species that require specific, individual intervention to 
survive and should not be ignored. So directing all our attention at an 
ecosystem scale is also an incomplete solution. The key instead is how 
we focus our entire suite of conservation actions and how they are 
deployed.
                         scientific principles
    There are some basic scientific principles that must be considered 
if we are to effectively achieve broad-scale, natural community 
conservation under the ESA (Noss et al. 1997).
    A. Biodiversity conservation must be concerned with many different 
spatial and temporal scales. There is never one best scale for either 
research or action. The key is to find the most appropriate scale for 
the problem at hand and then integrate across scales in an overall 
conservation strategy. The problem with endangered species conservation 
to this point is that it frequently focuses exclusively on a scale that 
is too small, both geographically and biologically. It is appropriate 
to evaluate the impact of a housing project on a beach mouse colony, 
but we should also be evaluating how that decision integrates into the 
overall survival of both that species and the entire barrier island 
natural community.
    B. Ecosystems are more complex than we think. There are many 
complexities at all levels of biological organization that cannot be 
measured, perceived, or even conceived of, that directly affect the 
viability of conservation solutions. Science can never provide all the 
answers to questions about conservation, so the response should be to 
exercise both caution and prudence when designing answers. Wise 
solutions don't necessarily try to compensate for factors that cannot 
be defined, but at the same time they leave room for them. A good 
example of this is true adaptive management, where the results of 
ongoing monitoring are used to adjust the conservation program based on 
new information and changes in circumstance.
    C. Nature is full of surprises. Ecological systems are 
characterized by non-linear, non-equilibrium and often seemingly random 
dynamics. Both unexpected events and unanticipated consequences affect 
the long term viability of any conservation solution. This uncertainty 
is a given, and its runs directly counter to the political, social and 
economic desire for predictability in the outcome of conservation 
plans. It is better to be forthright in acknowledging that the issue of 
``No Surprises'' is not a scientific question of predicting the future, 
but instead a social question of how to deal with those surprises.
    D. Conservation planning is interdisciplinary, but science is the 
foundation. Creating a long-term solution for species and the 
ecosystems on which they depend is a complicated exercise in 
reconciling social, political, legal, economic and biological factors. 
But if science must be one of several competing interests in the 
negotiation instead of the method of evaluating how to reach specified 
objectives, then conservation outcomes will always be undermined. This 
raises the critical issue of how to integrate both scientific 
information and scientists themselves into the planning process.
                          potential solutions
    Given these important principles and the limitations of current 
conservation planning practice and policy in crafting long lasting, 
broad-scale solutions to endangered species problems, what are some 
scientific improvements that can be made to the program? Fortunately, 
there is now a good example of how to break the mold to improve both 
the science and the policy of conservation planning.
    The Natural Community Conservation Planning program in California 
is an attempt to move beyond the reactive conservation planning of 
tradition and to a more up-front, creative program that will provide 
greater biodiversity conservation gains while at the same time, 
enabling broader regulatory certainty than is possible under a single-
species, project by project oriented program.
    NCCP is a useful illustration of the science issues involved in 
regional conservation planning, from data use to addressing questions 
of scientific uncertainty. The features that make it different, both 
scientifically and politically, from HCPs (even other large scale 
plans) are the way the program addresses the scientific principles 
listed earlier. Perhaps the most critical among them are the clear, 
regional scientific guidance that was developed early in the program, 
the habitat level of conservation action that emphasizes connectivity 
and landscape conservation, and how biological information has been 
brought to bear on the planning process.
    The elements of Natural Community Conservation Planning (identified 
by the principle they address from above) that are relevant to today's 
testimony are:
    1. A Regional Framework for Habitat Conservation Planning, Analysis 
and Implementation (Principle A). NCCPs are based on formally 
delineated geographic planning regions. These regions contain a 
biologically significant scale of the habitat-types that are the focus 
of the planning and implementation programs. This regional framework, 
both biological and political, allows for an emphasis on better long-
term habitat protection system design (large core habitat areas, 
landscape connectivity, etc.) while providing planning flexibility to 
allow for appropriate development and growth.
    2. Habitat-based Conservation Planning and Action (Principles A and 
B). Unlike traditional habitat conservation plans that generally focus 
on the needs of individual species, NCCPs are created for groups of 
species connected through one or more shared habitat-types or ``natural 
communities.'' This approach is less concerned with the occupied 
habitats of listed species than with creating a regional conservation 
system based on strong principles of reserve design. By formulating 
solutions and taking most conservation actions at a habitat scale, 
long-term issues such as habitat fragmentation and connectivity between 
significant habitat areas are generally much more effectively addressed 
than by project-by-project, species oriented plans. This does not mean 
that the needs of individual species were ignored in the process. Some 
of them require specific attention. But rather than focusing on all 
species as if they were separate, NCCPs directs conservation action at 
the habitat scale.
    3. Comprehensive Management and Monitoring (Principle C). All land 
and water resources protected in NCCPs are managed strategically and 
adaptively to increase the habitat value of protected areas over time. 
Key features of adaptive management and implementation monitoring 
programs include:
     Feedback from a comprehensive research and monitoring 
program is used to modify land and water management actions and 
techniques as necessary over the life of the implementation program
     Comprehensive monitoring programs include monitoring of 
biological resources, assessing mitigation performance and monitoring 
implementation provisions such as funding and preserve assembly
     Periodic reporting is provided by the NCCP plan 
implementing agency to wildlife agencies and to the public (through 
workshops) to provide information and evaluate progress toward 
attaining program objectives
    4. Clear Scientific Guidance and Foundation (Principle D). NCCPs 
are based on well-applied scientific and commercial information linked 
directly and factually to decisions made under the plan. Key features 
of the scientific basis for NCCPs include:
     Independent (i.e., non-wildlife agency) scientists 
developed regional conservation guidelines early in the process to 
provide the broader biological context and scientific premises for 
large-scale planning. These guidelines were applied to individual plans 
and local situations
     Wildlife agencies assured that species survey protocols, 
habitat mapping and adherence to State law and regional conservation 
guidelines are applied
     Subregional and subarea plans were formulated with 
scientific input from local biologists and species experts consistent 
with the regional scientific guidelines
              critical scientific issues addressed by nccp
    When the California gnatcatcher was proposed for listing in the 
late 1980's, everyone recognized it was the tip of a very large 
iceberg. The consensus among all stakeholders, public and private, was 
that creating conservation plans for the entire range of the natural 
community and all its species was the only way to avoid the conflicts 
of dozens of future listings. To address this from a scientific 
perspective, the State of California assembled a panel of independent 
academic scientists to develop overall guidance for regional 
conservation plans. These regional guidelines were not a de-facto 
recovery plan, nor were they a prescription for local conservation 
solutions, but they provided a science-based framework and point of 
reference for the development of local plans, as well as way to measure 
the adequacy of those local plans from a regional natural community 
standpoint. The guidelines were, in a sense, the ``picture on the top 
of the puzzle box.''
    Approaching the problem from a regional, natural community based 
perspective allowed a number of key scientific issues to be dealt with. 
First, regional conservation guidelines provided a scientific mechanism 
for ensuring consistency of locally developed conservation plans. They 
were highly credible because they were developed by independent 
scientists. By addressing the issue of ecosystem scale and providing 
guidance on how to approach it, the regional guidelines freed local 
planners to focus on the species and habitats within their 
jurisdiction, but also to integrate their efforts with an equally 
critical regional whole.
    Second, by focusing conservation actions on a habitat level instead 
of exclusively on the individuals of a species and the habitat they 
currently occupied, NCCP did a much better job than most plans of 
minimizing further habitat fragmentation and even restoring habitat 
connectivity. Most HCPs seem pre-occupied with protecting the existing 
locations of species. For some species, this may neither be wise, nor 
even scientifically supportable. But NCCP concentrated instead on 
building a conservation system of the largest reserve areas possible of 
high quality habitat, connected throughout the landscape. This was 
obviously done with an eye to rare species locations, but these were 
one of several important factors rather than the driving force for 
reserve design. Some unoccupied habitat patches were protected at the 
expense of occupied ones because they provided better overall reserve 
design and long term viability for the natural community.
    Finally, no conservation plan can eliminate scientific uncertainty. 
As I stated before, surprises are inherent in nature. The real issue is 
who assumes the risk. But, a legitimate scientific issue for 
conservation planning is how to minimize the effect of unknowns on the 
long-term conservation strategy. The best way to do this in addition to 
a good regional framework and habitat based action, is with a 
comprehensive adaptive management and monitoring program that provides 
feedback to inform adjustment of biological management (and even 
potentially reserve locations during the preserve assembly period) 
based on the results of targeted research. This element is even more 
important in conservation plans based in a ``working landscape'' like 
timber production or agriculture or water delivery because, unlike in 
urbanizing settings, both the reserves and the impact areas may not be 
irreversible. In urbanizing or development settings, as with many HCPs, 
most impacts are permanent. Over time, some may fall victim to 
manifestation of scientific unknowns. But the best way to decrease the 
potential for this occurrence is through strong, regional reserve 
design and comprehensive monitoring and adaptive management.
                 recommendations on policy and funding
    Clearly, the best way to minimize endangered species problems is 
with a planning program that emphasizes preventative medicine, not 
emergency room care. It is essential to reiterate, however, that our 
current policy approach does not make this very easy.
    Enabling a regional, habitat based conservation planning program is 
difficult under the current configuration and implementation of the 
ESA. It concentrates both our policy and our resources on responding to 
immediate crises. The State of California had to pass special enabling 
legislation in 1991 to authorize NCCP to ``sustain and restore those 
species and their habitat which are necessary to maintain the continued 
viability of biological communities impacted by growth and 
development,'' and to ``streamline the regulatory process and provide a 
structure for economic development planning that provides reasonable 
predictability and assurances for future projects.'' The Federal ESA, 
without benefit of any policy changes, had to be creatively stretched 
to fit around those broad goals.
    Of perhaps greatest importance is a source of funding to develop 
and implement these plans. One lesson that has become crystal clear in 
working on NCCP and other conservation plans on private lands is that 
there is a gap in outcome between the mitigation the ESA requires in 
exchange for incidental take and what is needed to achieve lasting 
conservation of biological diversity. As long as that gap remains 
unresolved, we will never reach the conservation goals for biological 
diversity that we aspire to and we will never resolve the political 
conflict around endangered species. Recovery of species will remain 
both a lofty dream and a battle for courtrooms and lawyers. We could 
argue endlessly over whose responsibility it is to fill the gap--for 
example, some believe that it should be filled by requiring greater 
mitigation and compensation by private parties for their impacts. But, 
as I tried to explain earlier, there are habitats and places that are 
important for regional conservation of biological diversity where the 
ESA doesn't even apply. And there are still other places where we 
simply can't allow enough impacts to listed species to generate enough 
mitigation to fill the gap, even if we were politically inclined to do 
so.
    The real--and the most simple--answer lies in public funding to 
close the gap between what the law provides for and what long-term 
conservation of biodiversity requires. The current debate over re-
authorizing the Land and Water Conservation Fund seems to me to be the 
perfect opportunity to create an Endangered Species Problem Solving 
Fund that would allow regional, habitat-based conservation programs 
that are based in sound science and that create broad conservation 
solutions to receive the public funding needed to be successful. It 
would both allow habitat conservation plans to achieve much better 
conservation results and be a strong incentive to private landowners to 
participate in the objectives of the ESA.
    The Nature Conservancy is committed to work with Congress, public 
agencies and private interests to help resolve the important scientific 
issues surrounding habitat conservation planning. We are also fully 
committed to helping ensure that funding is available for long-term 
conservation successes. We focus all our own resources on this goal, 
but that is not enough--we need increased public investment in 
conservation. We congratulate the Committee on its vision in discussing 
these issues, and I thank you very much for the opportunity to provide 
input on behalf of The Nature Conservancy.

      Responses by Michael O'Connell to Additional Questions from 
                             Senator Chafee
    Question 1. In your testimony, you suggested developing an 
Endangered Species Problem Solving Fund and that it would provide a 
strong incentive to private landowners to participate in the objectives 
of the ESA. Can you elaborate on this? How would the fund be used?
    Response. As habitat conservation plans have evolved over the last 
two decades, they have moved toward more comprehensive, Multiple 
species solutions that cover large geographic areas. In many cases, 
plans have covered significant portions or even the entire range of 
some species. This evolution toward more comprehensive plans has been 
encouraged because it provides the opportunity to craft both broader 
regulatory benefits and a much more effective conservation outcome for 
both species and ecosystems. In other words, we can achieve better 
conservation while planning for a geographic region than we can project 
by project and species by species.
    At the same time, HCPs are by definition a process to permit take 
and not truly a ``conservation'' program for endangered species as 
envisioned by the ESA. They do not need to recover species in order to 
be permitted, in fact, they must simply avoid jeopardy for the covered 
species. This can become a significant problem when a plan covers the 
entire range of a species and it may even undermine the goals of the 
ESA. This type of plan becomes the de facto recovery plan for those 
species, but based on avoiding jeopardy, not achieving recovery.
    Some have suggested investing heavily in recovery planning as the 
way to avoid this problem. While this is one option, I believe that it 
is limited in two very important ways. First, recovery plans are 
species focused and generally don't provide real-world, practical 
solutions to the conservation problems faced by species. With a few 
notable exceptions, they don't confront the difficult choices faced by 
actually putting conservation on the ground, such as funding, capacity, 
program and data management, etc., that HCPs do. Second, recovery plans 
come far too late. They are only required for listed species. Another 
of the evolutionary outcomes of HCPs is that they have been conducted 
in earnest for species before they become listed; in many cases before 
their status is even known. This preventative medicine approach to 
conservation is a good one, but it needs to have a high standard, one 
not generally by HCPs.
    The real dilemma behind all this, and one I believe an Endangered 
Species Problem Solving Fund would help address, is one of equity in 
responsibility for achieving conservation and recovery under the ESA. 
HCPs generally require that those who propose take of species avoid, 
minimize and mitigate their impacts. Arguably that is a fair standard, 
since they if they compensate fully for their impact, then they are 
doing their share of conservation. That is generally all they must do 
anyway in order to get a Section 10 HCP permit. [Note: some observers 
have suggested that those who propose take of species be responsible 
for the entire cost of conservation? but I don't believe that is 
practical or equitable].
    The problem that the above discussion brings out is this: There is 
a big difference in conservation outcome between what endangered 
species need to persist or recover and what HCPs provide. At the same 
time, HCPs are getting bigger and more comprehensive and in some cases 
beginning to substitute for recovery planning. I believe this trend 
will continue. I also believe that HCPs are a generally good thing, 
because unlike many recovery plans, HCPs result in immediate, direct, 
conservation action. Their evolution toward a more multiple species and 
regional approach is also good, because it provides a significant 
opportunity to create broad-scale conservation benefits and the 
flexibility to balance it better with well-planned economic activity.
    All this background leads me to the conclusion that the outcomes of 
HCPs and the goals of the ESA are getting closer to conflict. There is 
a significant ``conservation gap'' between what HCPs provide and what 
the ESA envisions. That gap is measured in acres of habitat protected 
and in management of habitat preserved, and the gap can only be filled 
by funding. It appears over and over in HCPs for the reason stated 
above: HCPs are a program to permit take, not a program to conserve 
species. It is generally impractical and inequitable to demand much 
more from HCP applicants than is already being done in terms of their 
``share'' of the burden. The gap must be filled by public funding.
    My own experience in Southern California with NCCP is that the 
landowners and regulated community are doing at least their share, 
often more, but there is still a great need for additional land 
protection and management in order to achieve conservation and recovery 
for many species in that region. Without it, many of our rarest species 
in Southern California will disappear. The conservation gap exists and 
is very real. As a public funding solution we are given small Federal 
appropriations annually--which we are grateful for--but these pale in 
comparison to the need.
    An Endangered Species Problem Solving Fund--it could be 
administered by anyone, Interior or Congress--would allow regional, 
multiple species HCPs to tap into a source of public funding to help 
close the gap between the requirements of Section 10 and the ESA's 
goals. Based on experience, I and many others believe that this would 
significantly streamline the process of doing HCPs (providing benefits 
to landowners who often must wait years for plans to be approved) and 
do a great deal to quell the controversy over HCPs in the environmental 
community, who are acutely aware of the gap I have referred to. Without 
it, or some other source of funding to close the gap, I am afraid that 
HCPs will become more of a polarizing issue rather than the 
collaborative, solution building conservation program that they have 
the potential to be.

    Question 2. You have been involved in the development and 
implementation of one of the few systems-based conservation plans. One 
of the fundamental differences between the California NCCP and other 
multiple species plans is that the NCCP does not focus on counting the 
numbers of each species covered. Instead, you use indicator species to 
measure the success of the plan. In your opinion, is this approach 
valid from a scientific point of view? In other words, are indicator 
species a reliable means of assessing the status of other populations 
of species? How are these indicator species selected? What are the 
scientific issues that need to be addressed if you focus on preserving 
ecosystems, instead of protecting individual species here and there?
    Response. First, let me clear up what seems to be a little bit of 
confusion between using indicators from a planning perspective and 
using them from a regulatory perspective. The NCCP has effectively used 
both habitat-level and species level ``target'' species as a planning 
tool to make the scientific process of conservation planning more 
efficient. For example, three species, the orange-throated whiptail 
lizard, the California gnatcatcher and the coastal cactus wren, were 
determined by a scientific advisory panel to be effective target 
species for coastal sage scrub habitat (in other words, if the needs of 
these three species were provided for, that there was reasonable 
assurance that other species in the habitat would be conserved as 
well). This made the process of reserve design for that habitat type 
easier, because those three species could be ``targeted'' for 
conservation.
    But NCCPs do not use these species as regulatory surrogates. Each 
permitted NCCP plan has a lengthy ``covered species list'' and 
regulatory coverage is provided for each species. At the same time, 
each species on that covered species list must be justified for 
coverage on its own based on biological and scientific factors. Those 
factors may include the fact that its known habitat needs are covered 
by coastal sage scrub and that coastal sage scrub habitat was protected 
using the three target species, but each coverage decision is made on a 
species by species basis.
    Where the efficiency of a systems and target species based approach 
such as NCCP comes in is that the coverage decision can be made much 
more efficient. Because planning is done with respect to several 
ecological scales (natural communities, species, natural processes), 
species are much more efficiently conserved and evaluated for 
regulatory coverage than if they were being planned for one at a time. 
This is the real efficiency of a natural systems approach.
    It is critical to note that the targets have to be very carefully 
evaluated, and may only be valid for some of the species desired for 
regulatory coverage, not all. The idea of ``indicator species'' is 
controversial and unproven in the scientific community, but the known 
associations and interrelationships of species in a habitat can 
nevertheless be used to make the process of planning and coverage 
determinations more straightforward. For example, in NCCP, the three 
target species are useful in conserving coastal sage scrub habitat, but 
there are several plant species found in coastal sage scrub that are 
highly localized in their distribution and are not ``indicated'' very 
well by those species. Likewise, there are several other habitat types 
that are not indicated well by those coastal sage scrub species.
    Further, these same biological efficiencies can be used effectively 
during implementation of a regional habitat based plan. The best 
example I know of is the California gnatcatcher. Populations of this 
species are highly volatile, mostly due to climatic factors. Several 
experts on this species have stated publicly that perhaps the most 
inefficient way to gauge the status of gnatcatchers is to count the 
number of individuals, because the populations may change rapidly from 
year to year. Populations could rise or fall dramatically and we would 
have no way of knowing why if all we were doing was counting them. A 
much better way to monitor the status of gnatcatchers, in addition to 
occasional population counts, would be to develop a set of habitat 
indicators (called a habitat suitability model) and measure those. They 
might include anything that is known to be a factor in gnatcatcher 
survival such as--hypothetically--time since fire, percent ground 
cover, height of vegetation, etc. Measuring those would give a better 
indication of the overall health of the habitat and therefore 
populations of gnatcatchers, and more importantly, help determine WHY 
changes were occurring, than simply population surveys alone.
    So the ultimate answer to the question is both yes and no. In some 
cases, targets for both species and habitats can provide a good deal of 
biological and planning efficiency in achieving conservation outcomes. 
When they are valid, targets and indicators can make the process of 
reserve design more efficient and the process of implementation and 
adaptive management more accurate and cost effective. But at the same 
time, I would urge strong caution of using indicators as a regulatory 
surrogate for covering species. We know so little about how species and 
habitats interact that relying on such indicators as the sole tool for 
evaluating conservation action is guaranteed to be wrong. This is 
especially true when using habitat-types as indicators for species. In 
addition to habitats being difficult to define (certainly more 
difficult than species), they may work better for some than for others. 
For example, coastal sage scrub is a reasonable indicator for 
gnatcatchers, because if you have good quality coastal sage scrub, then 
you will most likely have gnatcatchers. But the same rule doesn't apply 
to many of the herpetofauna, insects and plants that have spotty 
distributions in coastal sage scrub or of the species that use coastal 
sage scrub as well as other habitat-types to survive. The indicator 
concept breaks down for those species.
    In NCCP, we have learned that applying biological information well 
to the problem of designing and managing conservation systems means 
using a number of tools, including habitat indicators, target species, 
and species-by-species surveys if necessary. The ultimate result is a 
covered species list, and each of the species on that list receives an 
individual determination. The key is how the determination is made, 
whether based on habitat protected, number of individuals conserved or 
associations with other conserved species. Importantly, those same 
determinations may be the measures used to evaluate the success of the 
plan over the long term.
    With all great respect then, the more accurate description of t]he 
fundamental differences between the NCCP and other multiple species 
plans is that NCCP doesn't ALWAYS focus on counting the numbers of each 
species covered. It doesn't have to, because planning is made more 
efficient through the use of a number of tools, including target or 
indicator species.
                                 ______
                                 
  Statement of Laura C. Hood, Conservation Planning Program Manager, 
                         Defenders of Wildlife
    Thank you for inviting me to testify regarding the scientific 
aspects of habitat conservation plans (HCPs) under the Endangered 
Species Act (ESA). My name is Laura Hood and I am the Conservation 
Planning Program Manager at Defenders of Wildlife (Defenders), a non-
profit conservation advocacy group consisting of over 300,000 members 
and supporters. Defenders is headquartered in Washington, DC., with 
field offices in Oregon, Washington, Florida, Montana, Alaska, Arizona, 
and New Mexico. Defenders' mission is to protect native animals and 
plants in their natural communities. As an organization that is 
committed to science-based management of endangered species on public 
and private land, Defenders has been heavily involved in individual 
HCPs and HCP policy at the national level.
                                summary
    Defenders recognizes the potential for HCPs to encourage private 
landowners to actively conserve not only endangered species but 
multiple species and communities. Nevertheless, we have grave concerns 
over the way HCPs have been implemented in the past, both in terms of 
the lack of scientific content and overall loss of habitat. Multiple 
studies and reviews have concluded that major gaps exist between the 
HCPs that have been developed thus far and what would constitute a 
scientifically sound HCP.
    The lack of information available for HCPs does not always imply 
that plans should not be developed; rather, we suggest policy changes 
that would encourage precautionary, scientifically based HCPs that 
reduce risk for endangered species.
     First, improve the amount of scientific information 
underlying HCPs through:
         better recovery plans
         designation of critical habitat
         development of regional conservation strategies
         increased involvement by independent scientists
     Second, scientific uncertainty will always exist, 
therefore HCPs must incorporate measures for reducing the risk to 
species that such uncertainty creates. HCPs must:
         be more precautionary in nature
         include adaptive management
         modify existing ``No Surprises'' assurances
         be consistent with the recovery of species
    In two important ways, the Services have recognized the need for 
such improvements to HCPs. They have published a new rule that allows 
for revocation of a take permit if the HCP is shown to be jeopardizing 
an endangered species. Second, they have drafted an addendum to their 
HCP Handbook that encourages adaptive management, biological goals, and 
monitoring. Because the guidance does not impose requirements upon HCP 
applicants, we continue to advocate for assurances for species that are 
comparable to landowner assurances under the ``No Surprises'' Rule.
                               background
    HCPs have been authorized under the ESA since 1982, but only 12 
HCPs were approved between 1983 and 1992. Since 1992, however, there 
has been an explosion of such approvals--as of 25 March 1999, the Fish 
and Wildlife Service and the National Marine Fisheries Service (``the 
Services'') approved 251 HCPs covering over 11 million acres, with over 
200 in development. Part of the impetus for the increase in HCPs was 
the ``No Surprises'' policy, established in 1994. The policy gives 
assurances to landowners that they will not have to provide additional 
funding or land commitments beyond what is included in the HCP. Despite 
vehement opposition by conservation organizations and scientists, this 
policy became a rule in 1998. HCPs can last for an unlimited time, and 
the area of individual HCPs varies from less than one acre to 5 million 
acres. Indeed, HCPs have become one of the most prominent mechanisms 
employed by the Services to address the problem of threatened and 
endangered species on private lands.
    Starting in 1996, Defenders formally started research that would 
culminate in our 1998 report on HCPs, entitled Frayed Safety Nets: 
Conservation Planning under the Endangered Species Act. In researching 
Frayed Safety Nets, we reviewed plans nationwide, then we selected a 
representative sample of 24 plans and evaluated them using criteria 
that should be satisfied in order for plans to lead to conservation 
benefits on private land. In the course of the research, we read each 
plan and associated documents, obtained any associated recovery plan 
for the species involved, and interviewed key plan officials. In this 
way, a detailed picture of the strengths and weaknesses of each plan 
emerged. The report itself summarized the plans and focused on the 
science, public participation, funding, and legal aspects of HCPs. Our 
objective was to point out the best and worst examples of these aspects 
of HCPs, and to examine national trends. Our findings showed that as 
they were being developed, many plans represented large risks to 
endangered species because often they lacked an adequate scientific 
basis, they were difficult to change over time if they resulted in 
unexpected harm to species, and they were inconsistent with species 
recovery. I will be discussing some of our findings and recommendations 
in more detail today in my testimony.
    In January 1999, a team of 119 independent scientists issued its 
own report on the scientific basis of 43 HCPs from across the country. 
Defenders has been engaged in activities associated with that study of 
HCPs, which was sponsored by the National Center for Ecological 
Analysis and Synthesis (NCEAS) and the American Association of 
Biological Sciences (AIBS). We've also been involved in followup to 
that study's findings, in identifying methods that are palatable to 
scientists and landowners of improving scientific information for HCPs.
    As a result of these studies and excellent research by other 
organizations such as the National Wildlife Federation, American Lands 
Alliance, National Audubon Society, and the Natural Heritage Institute, 
a disturbing picture of HCPs emerges. Put simply, it is far from 
certain that HCPs will be successful in stemming the further decline of 
rare species. Indeed, they often authorize the types of activities 
which have endangered habitat and destroyed ecological communities 
across the U.S. As they have been constructed so far, HCPs are not 
species protection plans leading to the recovery of species. They often 
result in a net loss of habitat, resulting in a hemorrhaging system of 
habitat across the country. Because these impacts are permitted under 
HCPs with large geographic scopes and long durations, HCPs pose great 
risks to endangered species. The risks to species are raised even 
higher when landowners receive ``No Surprises'' assurances that they 
will not have to pay for changes in HCPs if the plans are having 
unintended detrimental consequences for species. I do not believe that 
the solution to this problem is to abolish HCPs, but the key to 
improving the prospects of species' survival is to reduce the risk that 
current HCPs entail.
The Endangered Species Act
    As a backdrop to my testimony today, I would like to first consider 
how the ESA is designed to orchestrate the protection and recovery of 
imperiled species. As currently constructed, the ESA has all of the 
building blocks for supporting management and restoration of endangered 
species according to ecological principles and information. At its 
core, the purpose of the ESA is to conserve species and the ecosystems 
upon which they depend. This recovery-oriented purpose underlies every 
action conducted under the authority of the Act. Recovery plans, in 
turn, are supposed to provide scientifically based blueprints for the 
conservation of species under the Act. Indeed, we expect that recovery 
plans of the future will contain the scientific information and 
comprehensive, range-wide strategies that will guide not only Federal 
activities but mitigation guidelines and private landowner incentives, 
as well. The designation of critical habitat should strengthen the 
scientific infrastructure for conserving a species by providing 
information and guidance for Federal agencies as well as private 
landowners. Indeed, it is arguably irresponsible to permit habitat 
destruction when critical habitat has not been identified and 
designated. We discuss the nexus between critical habitat and habitat 
conservation plans further, below.
    Finally, habitat conservation plans and Federal agency 
consultations permit some degree of ``take'' of endangered species, 
provided actions are taken to offset that harm to the species. If a 
scientifically based recovery plan and critical habitat have been 
established for a species, such information and ecosystem-based 
strategies would provide an excellent infrastructure for constructing 
HCPs, with less of the ``guesswork'' that currently plagues landowners 
and the Services alike. Unfortunately, as the NCEAS/AIBS study 
revealed, basic information does not exist for many endangered species. 
Recovery planning has been underfunded and many plans do not have the 
amount of information or guidance that is necessary for them to be 
useful to private landowners. Despite the requirement for the Services 
to use the ``best available science'', this requirement does not demand 
that they acquire information when ``available'' science is 
insufficient. Not only must we build a better infrastructure of data 
using recovery plans, critical habitat designation, and ``best 
available science'', but we must reduce uncertainty and risk for 
species when that infrastructure falls short.
                            science and hcps
    The process of science enters into nearly every aspect of the HCP 
process. For example, in order to assess how much of a population will 
be ``taken'' under development or logging activities, a landowner must 
often employ biological surveys. Take may involve, as another example, 
land that is adjacent to an endangered bird's nest. In this case, it is 
necessary to have data on the expected home range of the bird pair and 
what habitat fledglings may use for dispersal. Beyond information on 
the amount of ``take'' under the HCP, the Services must determine the 
likely impact of that take on the species in question. This requires, 
among other information, scientific data on the global status and 
distribution of the species, what proportion of the species' range is 
affected by the HCP, and whether the HCP area contains excellent or 
poor habitat compared to other parts of the species' range.
    In order to understand what activities would be most effective in 
minimizing that take and mitigating it, landowners must understand the 
primary threats to species, and employ protection and management 
techniques that are data intensive. For example, the Washington 
Department of Natural Resources (DNR) has constructed an HCP for 
Northern spotted owls on 1.6 million acres of forest. According to 
their basic conservation strategy, spotted owl nesting habitat that is 
isolated from federally protected areas can be harvested, while habitat 
that is adjacent to such protected areas will be preserved. In this 
case, sophisticated ecological information is required to determine 
whether a forest tract is sufficiently isolated from federally 
protected habitat. Finally, scientific and statistical methodologies 
are necessary for designing appropriate biological monitoring and 
adaptive management in HCPs.
    Unfortunately, despite the critical importance of scientific data 
for HCPs, abundant evidence indicates that HCPs have fallen short of 
expectations for scientifically based plans. Much of the missing 
information concerns the status of the species addressed: according to 
the NCEAS/AIBS study, available data were insufficient to evaluate the 
current status for more than a third (36 percent) of species in HCPs. 
HCPs often involved mitigation strategies that have little data to 
indicate their probability of success. On a 4-point scale from 0 to 3, 
the quality of data underlying the choice of mitigation strategies was 
usually between 1 (very little, or quite unreliable) and 2 (moderately 
well-understood and reliable). This indicates that the selection of 
mitigation techniques was often little better than a guess. In Frayed 
Safety Nets, we found examples of manipulative management techniques 
(e.g., translocation) that often were not supported by data, we found a 
general lack of biological monitoring, and we found an almost total 
lack of formal independent scientific review. These troubling results 
indicate that the system for species protection under the ESA, 
including recovery planning, critical habitat, and best available 
science, has not provided the data infrastructure that is necessary for 
adequate conservation planning.
    As the NCEAS/AIBS study recommended, a much greater effort is 
needed to collect data on species and keep that information in 
centralized, readily accessible locations. Beyond the need for more 
information and better information management, however, HCPs must 
incorporate better ways of managing uncertainty and risk that results 
from insufficient data.
       opportunities to increase scientific information for hcps
Recovery Plans and Regional Conservation Plans
    To improve the scientific information underlying HCPs, planners 
must gather much better information about species and habitat 
distribution on property covered by the permit. Equally important, 
however, is organized, centrally accessible data on how populations on 
the HCP land ``fit'' within a larger picture of the status and 
distribution of the species throughout the larger region.
    Recovery plans for individual or multiple species can serve as 
repositories of comprehensive information on the status and 
distribution of species addressed in HCPs. Most species have recovery 
plans, however, it is extremely important to strengthen and update the 
scientific information contained in them. Recovery plans can also 
contain guidance on mitigation and habitat management. Having 
information-rich, updated recovery plans to guide HCPs puts HCPs within 
the context that they belong: into the sphere of recovery.
    Increasingly, institutions are developing regional or ecosystem-
based conservation management plans to preserve viable populations of 
species and representative distributions of natural communities. These 
plans are developed through a process of gathering all of the 
geographically based information on those species and communities in 
the region, examining how well they are currently protected, and 
identifying vulnerable resources and critically important areas. Some 
examples of these conservation management plans are the gap analysis 
projects going on in many states, The Nature Conservancy's ecoregional 
planning, and Defenders of Wildlife's Oregon Biodiversity Project. 
Comprehensive, regional plans like these can provide the information 
and context for much better HCPs that take cumulative effects and ``the 
big picture'' into account.
Critical Habitat
    Another essential plank in the platform underlying scientifically 
sound HCPs is the designation of critical habitat for endangered 
species. Once information is collected for recovery plans and regional 
conservation strategies, it should be obvious what areas are essential 
for the continued existence of endangered species. The vast majority of 
endangered species are primarily threatened by habitat loss, and 
identifying habitat that deserves special protection is one of the 
first steps toward stemming further population declines. The 
designation of critical habitat can aid the recovery of species by 
protecting occupied habitat as well as habitat that is necessary for 
dispersal, migration, or range expansion. With regard to HCPs, the 
Services must determine what habitat is critical for species' survival 
and recovery before permits are granted to destroy habitat. It is 
extremely risky to permit the destruction of habitat that may be 
critical to the species' survival and recovery.
    In debates over the merits or disadvantages of designating critical 
habitat, the Fish and Wildlife Service has protested that often, there 
is insufficient information for delineating critical habitat. If there 
is insufficient information for designating and protecting key habitat, 
however, there is insufficient information for granting permits to 
destroy habitat through HCPs.
    We are hopeful that the recent designation of critical habitat for 
the endangered cactus ferruginous pygmy-owl (Glaucidium brasilianum 
cactorum) in Arizona will provide a good example of the utility of 
critical habitat designation for conservation planning. Pima County, 
Arizona is engaged in the preliminary stages of a regional, multiple-
species HCP process, combined with a Sonoran Desert Conservation Plan 
(SDCP) for protecting sensitive habitat as well as other open space. 
These planning efforts (SDCP/HCP) were spurred by obligations for 
protecting the pygmy-owl. The bird's population in Arizona is extremely 
small (fewer than 75 known individuals based upon incomplete surveys), 
and the majority of individuals live in desertscrub habitat in a 
rapidly developing area to the northwest of Tucson. Because development 
is occurring so quickly and land values are increasing, the critical 
habitat designation should provide a basis for spurring additional 
habitat acquisition from willing sellers and should provide guidance to 
private landowners in pygmy-owl country.
Involving Independent Scientists
    The process of developing conservation plans always involves 
biologists from the Services and usually involves the landowner's 
biologists (either on staff or in a hired environmental consulting 
firm); involvement or review by outside experts occurs occasionally. In 
HCP development, independent scientists who have expertise in the 
species and habitats of concern can lend important data and advice on 
management and preserve design. In addition, review of plans by 
independent scientists can increase the quality and credibility of the 
biological information and conservation strategies. Independent review 
of monitoring and adaptive management programs can be particularly 
helpful, because such programs can be quite complex. We recommend that 
independent scientists be consulted much more often as HCPs are 
developed. While we do not necessarily advocate independent peer review 
of every HCP, independent scientific involvement should be more 
prevalent and it should start early in the HCP development process. 
Interested members of the public who will be affected by the HCP should 
also be involved early in HCP development.
               recommendations for managing risk in hcps
    By improving independent scientific involvement, recovery plans, 
and critical habitat designations, the amount and use of scientific 
data for HCPs should improve. Because there will never be perfect 
information for making HCP decisions, however, it is essential to 
recognize scientific uncertainty in the HCP process and implement 
procedures for managing risk to endangered species and to landowners.
    The U.S. Government has largely minimized uncertainty for 
landowners in HCPs through the ``No Surprises'' Rule, which provides 
that they will not have to commit more money or land in the HCP than 
what was delineated in the plan. Minimizing uncertainty associated with 
predicted effects on endangered species, however, remains to be done.
Incorporate Precautionary Measures and Adaptive Management
    To ensure that impacts to imperiled species are indeed being 
minimized and offset as much as possible, HCPs must recognize and 
address scientific uncertainty. When data are sparse, as they are for 
most threatened and endangered species, it may be difficult or 
impossible to adequately assess the threats to and future prospects for 
population viability. This inadequacy does not override the importance 
of ensuring that such viability is not compromised. Instead, 
standardized protocols should be developed to recognize where 
uncertainty exists and take it into account while an HCP is still under 
development.
    In the face of limited information to guide an HCP, planners can 
minimize uncertainty for species in two ways: incorporating 
precautionary measures and improving its effectiveness over time 
through adaptive management. When information is scarce, precautionary 
measures can be incorporated into HCPs in multiple ways, including 
intensively investigating alternatives to ``take''; ensuring that 
mitigation is successful before take occurs (where possible); and 
limiting the duration of take permits and assurances.
    Adaptive management, or mid-course changes in management based upon 
monitoring information, environmental fluctuations, or additional 
scientific information about the species, is an essential component of 
scientifically based HCPs. In particular, one would expect that when 
uncertainty about species is high, HCPs would have more adaptive 
management provisions (e.g., mid-course corrections). The NCEAS/AIBS 
report revealed, however, that when uncertainty about mitigation for 
species was high, HCPs were actually less likely to contain a 
discussion of future changes in management strategies: 45 percent of 
the 38 cases with insufficient data on mitigation included a discussion 
of changing management over time, whereas 77 percent of the 48 cases 
with sufficient data did so. In our analysis for Frayed Safety Nets, we 
found few examples of adaptive management. From that sample of 24 
plans, the Washington Department of Natural Resources HCP was the only 
example in which the permittee would conduct research and adaptive 
management over time, AND it would waive ``No Surprises'' assurances if 
changes in management proved to be more costly than anticipated.
Modify the ``No Surprises'' Rule
    Ever since the ``No Surprises'' policy was initiated in 1994, 
scientists have protested its inherent restriction on changing 
management of endangered species in response to fluctuating 
environmental conditions or new scientific information. In 1996, a 
group of 167 scientists wrote: ``In a nutshell, [No Surprises] does not 
reflect ecological reality and rejects the best scientific knowledge 
and judgment of our era. It proposes a world of certainty that does 
not, has not, and will never exist'' (letter available with this 
testimony). Since then, ``No Surprises'' assurances have been expanded 
so that they apply for long time periods (up to 100 years), and 
landowners receive assurances for multiple species that may be listed 
in the future. This expansion of assurances exacerbates the scientific 
problems associated with ``No Surprises''. From an environmental policy 
perspective, the ``No Surprises'' Rule has no precedent in 
environmental regulations of any kind. Private interests have simply 
never been granted permits with such immunity from the repercussions of 
their actions.
    Under ``No Surprises'', adaptive management is fundamentally 
restricted by the fact that no additional money or land can be required 
of permittees. Perhaps more importantly, under ``No Surprises'', 
landowners have a disincentive to incorporate adaptive management into 
their HCPs. Since ``No Surprises'' assurances are granted whether 
adaptive management is incorporated into an HCP or not, landowners have 
no reason to introduce uncertainty into their responsibilities under an 
HCP. A more rational policy would grant assurances to landowners based 
upon the likely benefit or impact to the species, the amount of 
information available, and the extent to which the landowners 
incorporate monitoring and adaptive management. H.R. 960, the 
Endangered Species Recovery Act, contains one solution to this problem 
because it would establish a Habitat Conservation Plan Fund and require 
performance bonds to cover the costs of implementing additional 
conservation measures.
Ensure That All HCPs Are Consistent with Species Recovery
    Finally, risks to endangered species would be greatly reduced if 
HCPs were required to promote species' recovery. Indeed, the word 
``conservation'' is defined in the ESA as efforts directed toward 
recovery and delisting. Currently, the Fish and Wildlife Service does 
not require such consistency, despite the fact that HCPs can cover such 
vast areas, including a high proportion of some species' entire ranges. 
If recovery does not occur under HCPs, some species will simply never 
recover. When an adequate recovery plan exists, it becomes easier to 
determine whether an HCP is consistent with overall recovery.
                               conclusion
    Although the analysis of HCPs by scientists and conservation 
organizations has painted a gloomy picture of the scientific basis for 
these plans, we see some hope in the future for improving HCPs. In two 
important ways, the Services have acknowledged the need for HCP 
improvement. They have published a new rule that allows for revocation 
of a take permit if the HCP is shown to be jeopardizing an endangered 
species. In addition, the ``5-Point Plan'' guidance that the services 
have drafted contains some of the solutions to the dilemma we face. The 
draft guidance contains encouragement for HCPs to include adaptive 
management, biological monitoring, and identification of biological 
goals. Because these measures are not required through regulations, we 
can only hope that landowners are willing to comply with this guidance. 
These measures to improve HCPs are costly, but consider the cost to the 
general public down the line and for future generations if HCPs fail to 
conserve species.
                                 ______
                                 
  Responses by Laura Hood to Additional Questions from Senator Chafee
    Question 1. You stated in your testimony that the amount of 
scientific information underlying HCPs can be improved through better 
recovery plans and designation of critical habitat. However, in 
practice, many HCPs are developed well before recovery plans have been 
drafted or critical habitat designated. In light of that, what can 
landowners reasonably do to ensure that they are using the best science 
that is readily available?
    Response. As you are aware, this is a valid and important concern 
for many private landowners. It is unfortunate that recovery plans 
often require years to develop after a species is listed, and many 
private landowners wish to move ahead with HCPs before the U.S. Fish 
and Wildlife Service and the National Marine Fisheries Service (``the 
Services'') finalize the relevant recovery plan. For species that have 
been listed for many years, the relevant recovery plans may be so out 
of date that they do not contain the best available science upon which 
to base an HCP. As for critical habitat, U.S. Fish and Wildlife Service 
has designated critical habitat for only approximately 9 percent of 
listed species, therefore, many HCPs must go forward without the 
benefit of designated critical habitat for guidance.
    In some cases, it may be impractical to delay HCP approval until 
the Services have developed a recovery plan and designated critical 
habitat. Of course, this in no way relieves the applicant and the 
Services from developing a plan that is consistent with species 
recovery and uses the best available scientific information. One way to 
address this dilemma is for the Services to develop a conservation 
assessment in the listing notice or immediately upon listing. This 
assessment would contain mitigation guidance for nonFederal landowners. 
Since the best available scientific information should go into a 
listing determination, the determination provides an opportunity to 
provide preliminary guidance on what measures might be most effective 
in mitigating the species' most important threats.
    More importantly, HCPs that are being developed without the benefit 
of recovery plan and critical habitat information must include 
additional steps to include available information and minimize risk for 
species when information is lacking. In my testimony, I recommended 
that HCP developers involve independent scientists, particularly when 
information is missing. Involving independent reviewers allows all 
parties to know whether all available information is being used, to 
identify gaps of information that must be filled immediately, to 
evaluate risks of different HCP alternatives, and to give all parties 
greater confidence in the likely effectiveness of the HCP. In addition 
to independent scientists, it may also be appropriate to involve 
recovery team members, to ensure that the nascent recovery plan and HCP 
are consistent.
    In my testimony, I also suggested a number of different measures 
that should be undertaken in the face of insufficient information for 
HCPs. These measures are all the more crucial when a recovery plan and 
critical habitat designation are missing. If HCP developers can 
incorporate precautionary measures and adaptive management, then the 
lack information will not result in irreversible mistakes that pose 
unacceptable risks for threatened and endangered species.

    Question 2. How should the ESA be changed to provide for greater 
public involvement in the HCP process?
    Response. This question is also extremely important because HCPs 
are management plans that affect large areas for long periods of time. 
They affect not only endangered species but often open space 
availability, air quality, and water quality. Unfortunately, effective, 
meaningful input from the full variety of stakeholders is extremely 
rare for HCPs. In part, this stems from current government policy that 
when single landowners develop HCPs, they can choose whether outside 
parties get involved.
    Nevertheless, citizens need to be able to be involved in all stages 
of the HCP process, from scoping to plan development to biological 
monitoring. This is especially important for any large-scale, multiple-
species HCP. Many large, multi-landowner HCPs already have public 
involvement because local governments take the lead on plan 
development. But this needs to be more common in all large HCPs, 
regardless of whether a government agency leads plan development or 
not. One solution is for the Services to adopt regulations that lay out 
public participation requirements that depend upon the scale and 
duration of plans. In a variety of situations, the Services have 
considerable experience in creating steering committees or other groups 
to facilitate public involvement, and this experience can help the 
Services craft regulations that would provide for more consistent 
public participation.
    Finally, a simple step to increase public input for HCPs is to 
require a minimum of 60 days for public comment on draft HCPs. The 30 
days currently provided for public comment is inadequate for citizens 
to become aware of a draft HCP, receive the documents, and provide 
meaningful comments.

    Question 3. Should improvements to the science of HCPs be 
mandatory? In other words, should all HCP applicants be required to 
undertake measures to improve the scientific basis of their individual 
HCPs?
    Response. To answer your third question, I do believe that some 
scientific improvements for HCPs ought to be required. Recently, the 
Services published a draft ``Five-point Plan'', addendum to their HCP 
Handbook which contained several necessary improvements for science in 
HCPs. The draft addendum recommended that each HCP have explicit 
biological goals, that biological monitoring become standard for HCPs, 
that adaptive management be incorporated for HCPs that lack adequate 
scientific information, and that the duration of HCPs be limited when 
information underlying the HCP is scarce. The draft addendum is an 
example of how principles and procedures can be adopted for HCPs 
without imposing specific requirements that may not be appropriate for 
every HCP. For example, it is obvious that a large, multiple-species 
HCP would require a larger investment in biological monitoring than a 
small HCP. It would be counterproductive, however, to require that 
every HCP, regardless of size, monitor a certain number of habitat 
characteristics according to a certain sampling scheme.
    Although the guidelines in the draft addendum will result in 
improvements in many HCPs, they will not be incorporated into the 
Services' regulations governing the approval of HCPs and issuance of 
incidental take permits. I see no legal or policy reason for why they 
are being proposed as guidance only. As I said in my testimony, not all 
HCPs are bad for species, but regulations are necessary for preventing 
HCPs that are scientifically bankrupt or inconsistent with species 
recovery. In fact, currently, landowners arguably have a disincentive 
to develop effective adaptive management for HCPs. When all landowners 
automatically receive ``No Surprises'' assurances that they will not 
have to pay for costly changes that may become necessary under HCPs, 
they are unlikely to voluntarily include adaptive management provisions 
that would introduce uncertainty into their HCP obligations. Instead, 
it is entirely appropriate to require improvements to the HCP process 
in order to facilitate the incorporation of good scientific information 
and the scientific process.
                                 ______
                                 
       Attachments Submitted by Laura Hood, Defenders of Wildlife
Statement on Proposed Private Lands Initiatives and Reauthorization of 
 the Endangered Species Act from the Meeting of Scientists at Stanford 
                               University
    When the Endangered Species Act was authorized in 1973, Congress 
charged the Departments of the Interior and Commerce to conserve the 
ecosystems upon which threatened and endangered species depend, and to 
do so ``using the best available scientific and commercial data.'' 
Despite remarkable growth in our scientific understanding of the 
conservation needs of threatened and endangered species during the past 
two decades, controversy continues to surround the Act, especially as 
it affects the use of private land. The Act's provisions for the 
treatment of imperiled species on private land are of major 
conservation concern both because, according to some estimates, more 
than half of all listed species occur wholly on private land, and 
because listed species on private land are faring worse in general than 
those on Federal lands.
    Various bills recently introduced in Congress propose changes in 
the Act's provisions for treating listed species on private land. The 
private lands provisions proposed in draft legislation would modify the 
habitat conservation planning (HCP) language of Section 10(a) of the 
Act. The HCP process was designed to mitigate substantially the impacts 
of otherwise legal activities on listed species. However, many recent 
HCPs have been developed without adequate scientific guidance and there 
is growing criticism from the scientific community that HCPs have the 
potential to become habitat giveaways that contribute to, rather than 
alleviate, threats to listed species and their habitats.
    The proposed new provisions have the potential to either improve or 
worsen the conditions of listed species on private lands, depending on 
whether or not habitat conservation planning and management are based 
on objective scientific evidence and methods. To provide guidance on 
the scientific implications of proposed private lands provisions, a 
group of nationally respected conservation biologists met at Stanford 
University in February. Among the undersigned are ecologists and 
geneticists with extensive experience in conservation planning for 
imperiled species. Our group includes individuals with widely differing 
positions on how best to achieve the goals of the Endangered Species 
Act. The diverse composition of our group should give weight to our 
conclusions.
    In considering private land conservation planning initiatives, we 
restricted ourselves to five agenda items that recur in draft bills and 
ongoing discussions in congressional and conservation circles: (1) the 
``No Surprises'' policy, (2) multiple species conservation planning, 
(3) ``safe harbor'' initiatives, (4) prelisting agreements, and (5) 
small-parcel landowner initiatives. We understand that this is not an 
exhaustive list of potential private lands policies and programs. We 
also recognize that there is overlap among many of the proposed 
provisions, for example, the No Surprises policy is often viewed as an 
obligatory component of the other proposed provisions.
    As the following discussion makes clear, we believe that the 
current proposed private lands amendments to the Endangered Species Act 
will not further the Act's goals unless those measures are implemented 
in a scientifically sound manner. However, our group believes that with 
essential stipulations, ``landowner-friendly'' initiatives can assist 
in meeting our nation's goal of protecting its unique and valuable 
natural heritage.
                              no surprises
    More aptly labeled ``fair assurances'' to landowners, ``No 
Surprises'' policy promises that if private landowners protect targeted 
species under a Habitat Conservation Plan or the equivalent, they then 
will not have to underwrite future conservation requirements that may 
develop due to new information or changed circumstances. Should the 
species require further conservation efforts, the costs would be 
largely borne by the public rather than the landowners.
    A ``No Surprises'' policy is troubling to scientists because it 
runs counter to the natural world, which is full of surprises. Nature 
frequently produces surprises, such as new diseases, droughts, storms, 
floods, and fire. The inherent dynamic complexity of natural biological 
systems precludes accurate, specific prediction most situations; and 
human activities greatly add to and compound this complexity. Surprises 
will occur in the future; it is only the nature and timing of surprises 
that are unpredictable. Furthermore, scientific research produces 
surprises the form of new information regarding species, habitats, and 
natural processes. Habitat Conservation Plans, therefore, are 
inevitably developed and authorized under conditions of substantial 
uncertainty and may ultimately prove inadequate. Unless conservation 
plans can be amended, habitats and species certainly will be lost.
    We appreciate that ``No Surprises'' policy is not a guarantee that 
conservation plans will not change, but a contractual commitment to 
shift some of the financial burden of future changes in agreements to 
the public. In that light, the following features should constitute 
minimum standards for HCPs with ``No Surprises'' assurances. First, it 
must be possible to amend HCPs based on new information, and it should 
not require ``extraordinary circumstances'' to do so. Second, to 
underwrite program changes when parties other than the landowner 
request and justify them, there must be a source of adequate, assured 
funding that is not subject to the vagaries of the normal appropriation 
processes. We expect that the costs of fixing inadequate HCPs may be 
substantial. Third, mechanisms to ensure that long-term conservation 
plans will be monitored adequately are essential. Monitoring habitat 
changes or ecosystem functions cannot substitute for the monitoring of 
target species. Moreover, new scientific information from monitoring 
should be incorporated into management as that information becomes 
available. Fourth, HCPs must clearly articulate measurable biological 
goals and demonstrate how those goals will be attained under the plans. 
Plans should not undermine the recovery of listed or vulnerable 
species. Fifth, assurances to landowners should only be extended for 
those targeted species for which the plan articulates species-specific 
goals that further conservation in a regional context, rather than in a 
local, piecemeal fashion.
                         multiple species hcps
    Although Habitat Conservation Plans originally focused on 
individual species in local areas, today many planners are finding it 
preferable (biologically and often economically) to plan for multiple 
species over entire regions. In the absence of scientifically credible 
recovery plans, multiple-species HCPs should clearly articulate 
conservation goals and must demonstrate their contribution to the 
conservation or recovery of targeted species. In addition, muitiple-
species HCPs should assume an extra burden of rigor, requiring 
independent scientific review of goals, design, management, and 
monitoring. There should be a standing body of independent scientists 
to establish minimum scientific and management standards for multiple-
species HCPs. The comprehensiveness of independent scientific review 
should be appropriate to the size and duration of the plan.
    Muitiple-species Habitat Conservation Plans cannot be based solely 
on the distribution and extent of different habitat types because this 
information does not yield effective predictions of the distribution 
and abundance of individual species. Such HCPs, therefore, must focus 
on specific target species, such as endemic, listed, indicator, and 
keystone species. If one species is chosen as an indicator of the 
status of another species of conservation concern, the plan should 
validate the connection between them. Species that are critical for 
ecosystem integrity, whether or not they are listed as endangered or 
threatened, should be among the indicators chosen. In addition, the 
viability of all target species ``covered'' by a plan must be 
considered in a greater regional context, often well beyond the 
boundaries of the planning area itself. Adequate distributional and 
ecological information should be made available to assess the plan's 
impacts on all covered species.
    Multiple-species Habitat Conservation Plans must include adequate 
research and monitoring programs. The target species covered by the 
plan, such as endemic, listed, indicator. and keystone species, must be 
monitored individually. Plans also must include an adaptive management 
program, so that management can be improved in the light of new 
information obtained by monitoring or other means. As is the case for 
``No Surprises,'' besides being amendable, multiple-species HCPs must 
have an assured source of funds to support potential amendments.
                        safe harbor initiatives
    Safe harbor initiatives encourage private landowners to increase 
the amount of habitat available to endangered species. In the past, 
many landowners have been reluctant to restore or enhance habitat for 
fear of incurring added regulatory burdens that will curtail future use 
of their property. Under safe harbor policy, the landowner is obligated 
to maintain only the baseline utilization of the property by the 
species prior to habitat improvements, which means that the landowner 
will be free to undo those improvements at a later date.
    Most of our group believes that deleterious consequences to 
protected species from safe harbor initiatives will be infrequent and 
that safe harbors could prove to be an important inducement to 
overcoming landowner unwillingness to take actions beneficial to 
imperiled species. Nonetheless, two concerns should be addressed in 
safe harbor agreements. First, the concepts of ``baseline population'' 
and ``utilization'' require a clear definition. Sources of scientific 
uncertainty should be addressed in defining the baseline status of 
species, just as for the No Surprises policy. The determination of the 
safe harbor baseline depends on reliable survey techniques and 
scientific interpretation. Second, some species may be better 
candidates for safe harbor agreements than others as a result of their 
distribution, resource needs, and habitat area requirements. Species 
are distributed across diverse landscapes with habitat areas of varying 
quality. In addition, species vary widely in their ability to move from 
one area of habitat to a neighboring one. Thus, we believe that the 
value of safe harbor agreements must be evaluated on a species-by-
species basis. In the absence of scientifically credible recovery 
plans, safe harbor agreements should document their potential 
contributions to the conservation or recovery of target species within 
an entire region rather than on a single piece of private property.
                         prelisting agreements
    Under a prelisting agreement, a landowner would take actions to 
benefit an unlisted rare or declining species before it is listed. This 
has the potential to benefit species conservation because a species is 
afforded no protection on private land under the Endangered Species Act 
until it is listed. Nevertheless, prelisting agreements must not become 
an easy substitute for necessary listings.
    Prelisting agreements often will be negotiated in the face of 
significant levels of scientific uncertainty--we know little about many 
of our listed species, less yet about many unlisted species. Because 
prelisting agreements should benefit species, we recommend an enhanced 
level of attention and critical review of the biological circumstances 
under consideration in proposed prelisting agreements. The Federal 
Government will have to deal with an inevitable shortfall of 
information; that situation can be partially corrected by (1) 
developing the most complete data base possible to inform the decision, 
(2) clearly articulating how the prelisting agreement will benefit the 
targeted species, and (3) applying the necessary concomitants of the 
``No Surprises'' policy. The latter should include an ability to amend 
agreements, the availability of funding to support amendments, adaptive 
management with effective program monitoring, sufficient consideration 
of the regional planning context, and independent scientific review.
                   small-parcel landowner initiatives
    Considering the cost, complexity, and time required to complete 
Habitat Conservation Plans and implement them, the idea of expediting 
the permitting process for small landowners is attractive. But we note 
that in many areas with imperiled species, private landholdings consist 
almost entirely of small parcels. When both large and small parcels are 
interspersed, the small parcels may contain most of the key habitat. 
Either way, the cumulative impacts of many small projects on imperiled 
species may be substantial. In addition, me relative impacts of small 
landowner activities vary greatly depending upon which endangered or 
threatened species live on their land. The loss of but five acres of 
remnant habitat could doom to extinction more than a few listed 
species. We are concerned that expediting the permitting process could 
come at a significant cost to species persistence.
    Our group believes that any policy that allows for expedited HCPs 
should also require that such agreements not compromise the viability 
of targeted species within the planning region, and should explicitly 
consider and limit cumulative deleterious effects from incremental 
habitat losses. If a recovery plan exists, expedited HCPs must be 
consistent with the plan. Otherwise, to ensure coordination of existing 
and future HCPs, a regional analysis of species status should be 
required before any expedited HCPs or exemptions are considered.
                     independent scientific review
    While Habitat Conservation Plans and other conservation agreements 
that we have discussed above may offer promise for improved species 
protection on private and other nonFederal lands, serious questions 
remain about their effectiveness for long-term species conservation and 
recovery. Because many recovery plans and HCPs lack scientific 
validity, because the private lands proposals discussed above remain 
largely untested, and because endangered species protection and 
recovery must be based on the best available science, we believe that 
independent scientific review must become an essential step in the 
implementation of the Endangered Species Act. Such review should be 
carried out by scientists with no economic or other vested interests in 
the agreement. It is critical to start the review process early in the 
project, including the design phase.
                               conclusion
    Finally, while not strictly a ``science'' issue, we strongly agree 
that implementation of the Endangered Species Act would be immensely 
improved if funding were increased and agency staff were better 
trained. We agree that better enforcement of the Act's prohibitions by 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service would benefit listed species. We also agree that the Act's 
goals are compromised by conflicting laws and regulations that 
encourage actions that directly and indirectly contribute to species 
endangerment. And we concur that a wide array of incentives and 
inducements for better Act compliance by private parties could serve to 
benefit species conservation greatly if implemented in a scientifically 
responsible manner.
    We hope that these observations and our sciences recommendations 
above will help Congress to enact legislation that will make the 
Endangered Species Act more acceptable to private landowners while 
strengthening the protection of species and habitats on private lands.
                                 ______
                                 
                                                     July 23, 1996.
Hon. John Chafee,
U.S. Senate,
Washington, DC.

Hon. James Saxton,
U.S. House of Representatives,
Washington, DC.
    Dear Senator Chafee and Congressman Saxton: We are writing as a 
group of conservation scientists who all have professional experience 
with biodiversity protection and who are concerned about the U.S. 
Endangered Species Act and the future of environmental and human well-
being in the United States. We wish to comment on the proposed Saxton 
bill, an amendment of the Endangered Species Act of 1973. We will limit 
our comments to the role and use of science in the ESA.
    First, we wish to commend you for the tremendous time and effort 
you are expending on behalf of the ESA. We recognize and appreciate 
your commitment to this, our most important environmental law, which is 
so central to the conservation of biodiversity, and thus ultimately to 
the welfare of all Americans. As you know, complete, functioning 
ecosystems, with their great diversity of species and processes, are at 
the very heart of a functional and prosperous society. Degradation of 
nature has always led to societal decline and eventually its collapse. 
That you recognize the importance of addressing these difficult issues 
speaks well of you.
    From a scientific perspective, the proposed amendments offer some 
very positive features, but there are also some troubling issues that 
we ask you to revisit. The most prominent of these is the ``No 
Surprises'' section of the legislation. In a nutshell, this section 
does not reflect ecological reality and rejects the best scientific 
knowledge and judgment of our era. It proposes a world of certainty 
that does not, has not, and will never exist.
    Modern ecological paradigms, based on the best work of the day, all 
recognize change, uncertainty, dynamics, and flux as the best 
descriptors of ecological systems. Every ecosystem of which we are 
aware changes over time: in species composition and abundance, in 
structural complexity, in nutrient dynamics, in genetic composition, in 
virtually any parameter we choose to measure. The time scales of these 
changes vary among parameters, but you can always count on change. In 
fact, some of us like to say that the only thing certain about 
ecological systems is their uncertainty. Because we will always be 
surprised by ecological systems, the proposed ``No Surprises'' 
amendment flies in the face of scientifically based ecological 
knowledge, and in fact rejects that knowledge. The sources of this 
uncertainty are many, cannot be eliminated, and are illustrated by the 
following:
     Environmental uncertainty--unpredictable, localized 
environmental events such as fires, disease outbreaks, storms that 
alter forest structure, and the like.
     Natural catastrophes--Extreme and widespread events such 
as hurricanes, volcanic eruptions, or very widespread fires.
     Genetic uncertainties--losses or changes of genetic 
structure in small populations that affect their future adaptability.
     Demographic uncertainties--the influence of random events 
on survival of very small populations.
     Indirect effects--effects on species or parts of 
ecosystems as a result of a change elsewhere in the system.
     Nonindependent effects--synergisms between separate 
effects that reinforce one another.
     Cumulative space effects--non-independence of effects 
occurring in separate places, but which together buildup to a large 
effect.
     Insufficient knowledge--nature is more complex than we can 
even imagine, and we are always learning something new that revises our 
perspectives.
    In short, nature is non-linear, dynamic, 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.
    There is another aspect of this approach that troubles us. The 
Nation is moving forward, and we feel in a very positive way, toward 
ecosystem approaches of natural resource management. One of the 
cornerstones of these new approaches is ``adaptive management,'' which 
has at its heart the willingness to approach management as an 
experiment, to continually examine and test management options, and to 
change and improve over time. ``No Surprises'' seems to close the door 
to adaptive management by saying that, once an agreement is made, new 
and better scientific information will not alter it. This not only 
ignores all present scientific knowledge of ecological systems, as 
discussed above, but denies the ability to manage in an adaptive way 
that welcomes and incorporates new information and allows and 
encourages improvement.
    We understand and sympathize with the motivations behind this 
amendment. We encourage working with and incorporating the views of 
private landowners, creating incentives for good land stewardship, and 
assuring landowners that their responsible behavior will not be met 
with new problems. But our collective scientific experience indicates 
that there will be many surprises in conservation planning. The real 
issues are: (1) the quality of Habitat Conservation Plans; and (2) at 
whose expense the surprises will occur, and how the risk will be 
allocated.
    We suggest that some of the controversy over the ``No Surprises'' 
policy could be averted if: (1) the section were renamed ``assurances 
to participants'' or some such thing; (2) the standards for an approved 
HOP addressed ecosystem resilience rather than certainty; and (3) 
funding were included to help deal with surprises. Essentially, the 
bill would better reflect scientific understanding if its language 
explicitly recognized the centrality of surprises (unforeseen problems 
or new biological requirements) and the necessity to modify 
conservation plans as we learn more from research and monitoring. High 
quality HCPs would be worth public backing, so most importantly, the 
bill should authorize a funding mechanism for plan revision, which in 
some cases would need to include land acquisition. It is only fair that 
the costs of plan revision be shared by the public at large rather than 
borne solely by the private parties who in good faith have agreed to 
the plan, and that these parties should be compensated for expenses 
incurred as a consequence of modifications to plans. We stress that 
plans must remain flexible, responsive to new information, and 
adaptable because of the inherent uncertainty of nature; to do that, 
funding is critical.
    There are two other points on which we wish to comment, though in 
much less depth because we know others will discuss them in greater 
detail. First, it appears as though Sections 7 and 9 of the existing 
law will be substantially weakened by the proposed amendments. 
Proposals pertaining to HCPs and NSCPs create new mechanisms for 
waiving the current portions of the ESA that prohibit injury to or 
killing of endangered species. The National Research Council report on 
the scientific basis for the ESA clearly noted that these section 7 and 
9 provisions provide much of the power of the ESA. This is where the 
Act can do some real good for biodiversity and provide effective 
species protection. Weakening of these sections can be disastrous to 
the intentions of the law.
    Second, the amendment proposes that criteria for Relisting would be 
those outlined in recovery plans. However, those plans are negotiated 
documents, not necessarily based on scientific data; they are not, in 
fact, scientific documents. Presently, Relisting criteria are the same 
as listing criteria, which are based on the best scientific information 
available. We urge you to retain that delisting methodology.
    We hope that these comments, based on current state-of-the-art 
scientific knowledge, will be of use to you as you continue to wrestle 
with the difficult questions of species and ecosystem protection. 
Please understand that the community of conservation scientists remains 
ready and willing to offer their knowledge and expertise to craft a 
scientifically sound and effective bill that will protect our natural 
resources and the needs of our citizens to the benefit of all.
            Sincerely,
                    Gary K. Meffe, Senior Ecologist and Professor, 
                            Savannah River Ecology Lab and University 
                            of Georgia, Drawer E, Aiken, SC 29802, 
                            phone: (803) 725-2472; fax: (803) 725-3309 
                            e-mail: [email protected]; Kyler Abernathy, 
                            Department of Fisheries and Wildlife, 
                            University of Minnesota; Ira R. Adelman, 
                            Professor and Head, Department of Fisheries 
                            and Wildlife, University of Minnesota; Fred 
                            W. Allendorf, Professor, Department of 
                            Biological Sciences, University of Montana; 
                            Stuart K. Allison, Assistant Professor, 
                            Ecology Central College, Pella, Iowa; David 
                            R. Anderson, Professor, Department of 
                            Fishery & Wildlife Biology, Colorado State 
                            University; Jon D. Anderson, Fisheries 
                            Biologist, Washington Department of Fish & 
                            Wildlife; Jonathan L. Atwood, Director, 
                            Avian Conservation Division, Manomet 
                            Observatory for Cons. Sciences; Ronald J. 
                            Baxter, Senior Ecologist, Baxter Consulting 
                            Services; Paul Beier, Assistant Professor, 
                            School of Forestry, Northern Arizona 
                            University; Lee Benda, Geomorphologist, 
                            10,000 Years Institute; Arthur C. Benke, 
                            Professor, Biological Sciences, University 
                            of Alabama; Bradley J. Bergstrom, Associate 
                            Professor, Biology, Valdosta State 
                            University; Tim M. Berra, Professor 
                            Emeritus, Zoology, The Ohio State 
                            University; Robert Beschta, Professor, 
                            Forest Hydrology, Oregon State University; 
                            Kevin R. Bestgen, Research Scientist, 
                            Department of Fishery and Wildlife Biology, 
                            Colorado State University; Daniel W. 
                            Beyers, Department of Fishery and Wildlife 
                            Biology, Colorado State University; Rob 
                            Bierregaard, Biology Department, University 
                            of North Carolina, Charlotte; James Boone, 
                            Scientific Applications International 
                            Corp.; Dee Borsma, Professor, Department of 
                            Zoology, University of Washington; Richard 
                            A. Bradley, Associate Professor, Department 
                            of Zoology, Ohio State University, Marion; 
                            David F. Brakke, Assistant Dean and 
                            Professor, Biology, University of 
                            Wisconsin--Eau Claire; Richard Brewer, 
                            Emeritus Professor, Biological Sciences, 
                            Western Michigan University; Peter F. 
                            Brussard, Professor and Director, 
                            Biological Resources Research Center, 
                            University of Nevada; Paul R. Cabe, 
                            Assistant Professor, Biology, St. Olaf 
                            College; C. Ronald Carroll, Professor of 
                            Ecology and Director, Conservation Ecology 
                            and Sustainable Development Graduate 
                            Training Program, University of Georgia; 
                            Ted Case, Professor, Biology, University of 
                            California, La Jolla; Joseph J. Cech, Jr., 
                            Professor and Chair, Department of 
                            Wildlife, Fish, and Conservation Biology, 
                            University of California, Davis; Ronald K. 
                            Chesser, Professor, Ecology, University of 
                            Georgia; Deborah L. Clark, Department of 
                            Botany and Plant Pathology, Oregon State 
                            University; Joseph A. Cook, Curator of 
                            Mammals, University of Alaska Museum; 
                            Kendall W. Corbin, Professor, Ecology, 
                            Evolution, and Behavior, University of 
                            Minnesota, St. Paul; Walter R. Courtenay, 
                            Jr., Professor, Department of Biological 
                            Sciences, Florida Atlantic University; 
                            Richard Crawford, Professor and Assoc. 
                            Chair, Department of Biology, University of 
                            North Dakota; Colbert E. Cushing, Retired 
                            Professor, Richland, Washington; Brent 
                            Danielson, Associate Professor, Iowa State 
                            University; James E, Deacon, Distinguished 
                            Professor, Environmental Studies Program, 
                            University of Nevada, Las Vegas; Lynda 
                            Delph, Associate Professor, Department of 
                            Biology, Indiana University; Pamela DiBona, 
                            Environmental Sciences Program, University 
                            of Massachusetts Boston; Robert C. Dowler, 
                            Professor, Biology, Angelo State 
                            University; Kathleen Doyle, Botany 
                            Department, University of Wyoming; Sam 
                            Droege, Monitoring Biologist, National 
                            Biological Survey, Patuxent Wildlife 
                            Research Center; Christopher P. Dunn, 
                            Director of Research, The Morton Arboretum, 
                            Lisle, Illinois; Mark Easter, Botanist, 
                            Center for Ecological Management of 
                            Military Lands, Colorado State University; 
                            W. Daniel Edge, Wildlife Ecologist, Oregon 
                            State University; David Ehrenfeld, 
                            Professor of Biology, Rutgers University 
                            and Founding Editor, Conservation Biology; 
                            Erich Carr Everbach, Professor, 
                            Environmental Studies, Swarthmore College; 
                            J. Whitfield Gibbons, Professor, Ecology, 
                            University of Georgia, Dr. Ross Goldingay, 
                            Lecturer, Wildlife Biology, Southern Cross 
                            University, Lismore, NSW, Australia; 
                            Charles C. Grier, Professor and Head, 
                            Department of Forest Sciences, Colorado 
                            State University; James W. Grier, 
                            Professor, Department of Zoology, North 
                            Dakota State University; Nancy B. Grimm, 
                            Associate Research Scientist, Zoology, 
                            Arizona State University; David J. Hafner, 
                            Chief Curator, New Mexico Museum of Natural 
                            History and Past-President, New Mexico 
                            Academy of Science; Eric M. Hallerman, 
                            Associate Professor, Virginia Polytechnic 
                            University and State University; Judith L. 
                            Hannah, Department of Earth Resources, 
                            Colorado State University; Dean A. 
                            Hendrickson, Curator, Ichthyology, Texas 
                            Natural History Collection, University of 
                            Texas; Edward J. Heske, Wildlife Ecologist, 
                            Illinois Natural History Survey; Kent E. 
                            Holsinger, Associate Professor, Dept. of 
                            Ecology & Evolutionary Biology, University 
                            of Connecticut; Robert Hughes, Senior Staff 
                            Scientist, Dynamic International, 
                            Corvallis, OR; Tim Hunkapiller, Assistant 
                            Professor, Department of Molecular 
                            Biotechnology, University of Washington; 
                            Dr. David W. Inouye, Professor, Department 
                            of Zoology, University of Maryland; Jerome 
                            A. Jackson, Professor, Biological Sciences, 
                            Mississippi State University; Robert L. 
                            Jeanne, Professor, Entomology and Zoology, 
                            University of Wisconsin-Madison; Felicia 
                            Keesing; Department of Integrative Biology, 
                            Museum of Vertebrate Zoology, University of 
                            California, Berkeley; Ellen D. Ketterson, 
                            Professor of Biology, Indiana University 
                            and Co-Director, Center for the Integrative 
                            Study of Animal Behavior; Brett Johnson, 
                            Assistant Professor, Department of Fishery 
                            and Wildlife Biology, Colorado State 
                            University; David Jones, Center for 
                            Ecological Management of Military Lands, 
                            Department of Forest Science, Colorado 
                            State University; Peter A. Jordan, 
                            Department of Fisheries and Wildlife, 
                            University of Minnesota; James R. Karr, 
                            Professor Fisheries and Zoology University 
                            of Washington; Patrick A. Kelly, Adjunct 
                            Assistant Professor, Department of Biology, 
                            California State University, Fresno; 
                            Douglas A. Kelt, Department of Wildlife, 
                            Fish, and Conservation Biology, University 
                            of California, Davis; Patricia L. Kennedy, 
                            Associate Professor, Department of Fishery 
                            and Wildlife Biology, Colorado State 
                            University; Richard Knight, Professor, 
                            Department of Fishery and Wildlife Biology, 
                            Colorado State University; Walter D. 
                            Koenig, Research Zoologist, University of 
                            California, Berkeley; Winston C. Lancaster, 
                            Research Fellow, Department of Zoology, 
                            University of Aberdeen; Vickie L. Larson, 
                            DYN-2 Dynamac Corp., Kennedy Space Center, 
                            Florida; Richard D. Laven, Professor, 
                            Department of Forest Sciences, Colorado 
                            State University; Kai N. Lee, Center for 
                            Environmental Studies, Williams College; 
                            Marilyn Leftwich, Department of Psychology, 
                            Fort Lewis College; Beaulin L. Liddell, 
                            Research Specialist, Department of 
                            Fisheries & Wildlife, University of 
                            Minnesota; Curt Lively, Professor, 
                            Department of Biology, Indiana University; 
                            Carol Loeffler, Assistant Professor, 
                            Department of Biology, Dickinson College; 
                            Douglas F. Markle, Professor Fisheries, 
                            Oregon State University; Terry C. Maxwell, 
                            Professor, Department of Biology, Angelo 
                            State University; Bernie May, Associate 
                            Research Biologist, Director, Genomic 
                            Variation Laboratory, Department of Animal 
                            Science, University of California, Davis; 
                            Richard L. Mayden, Department of Biological 
                            Sciences, University of Alabama; Lee 
                            McClenaghan, Professor, Department of 
                            Biology, San Diego State University; Frank 
                            H. McCormick, Research Ecologist, U.S. 
                            Environmental Protection Agency, National 
                            Exposure Research Laboratory; David L. 
                            McNeely, Associate Professor, Biology, 
                            University of Texas, Brownsville; Judy L. 
                            Meyer, Research Professor, Institute of 
                            Ecology, University of Georgia; Donald B. 
                            Miles, Associate Professor, Department of 
                            Biological Sciences, Ohio University; W.L. 
                            Minckley, Professor, Zoology, Arizona State 
                            University; David R. Montgomery, Department 
                            of Geological Sciences, University of 
                            Washington; Henry R. Mushinsky, Professor 
                            of Biology and Chair, Conservation 
                            Committee of the Herpetologist's League; 
                            Jack Musick, Head, Vertebrate Ecology and 
                            Systematics Programs, Virginia Institute of 
                            Marine Science, College of William and 
                            Mary; Robert J. Naiman, Professor, 
                            Fisheries and Forestry, University of 
                            Washington; Joseph S. Nelson, Professor, 
                            Department of Zoology, University of 
                            Alberta; Robert E. Nelson, Professor and 
                            Chair, Department of Geology, Colby 
                            College; Ray Newman, Associate Professor, 
                            Fisheries, University of Minnesota; Donald 
                            M. Norman, Toxicology Task Force, Seattle, 
                            Washington; Reed Noss, Editor, Conservation 
                            Biology, Society for Conservation Biology; 
                            Alex Olvido, Biology Department, University 
                            of South Carolina; Gordon Orians, Professor 
                            Emeritus, Department of Zoology, University 
                            of Washington; Richard S. Ostfeld, 
                            Associate Scientist, Institute of Ecosystem 
                            Studies, Millbrook, NY; Dianna K. Padilla, 
                            Associate Professor, University of 
                            Wisconsin--Madison; Lawrence M. Page, 
                            Professor, Illinois Natural History Survey; 
                            Dennis Paulson, Director, Slater Museum of 
                            Natural History, University of Puget Sound; 
                            Joseph H.K. Pechrnann, Savannah River 
                            Ecology Laboratory, University of Georgia; 
                            Mark Peifer, Assistant Professor, 
                            Department of Biology, University of North 
                            Carolina, Chapel Hill; David A. Perry, 
                            Professor, Oregon State University; Kim 
                            Phillips, Departments of Psychology and 
                            Biology, Hiram College; Edwin P. Pister, 
                            Aquatic Biologist and Executive Secretary, 
                            Desert Fishes Council, Bishop, CA; Mary E. 
                            Power, Professor, Department of Integrative 
                            Biology, University of California at 
                            Berkeley; Mary V. Price, Professor, 
                            Department of Biology, University of 
                            California, Riverside; Gary Ray, 
                            Conservation Coordinator, Center for Plant 
                            Conservation-Hawaii; Lee C. Redmond, 
                            Immediate Past President, American 
                            Fisheries Society; Philip Regal, Professor, 
                            Ecology, Evolution, and Behavior, 
                            University of Minnesota; Gerald R. Rising, 
                            Retired Distinguished Teaching Professor, 
                            State University of New York at Buffalo; 
                            George Robinson, Biological Sciences, State 
                            University of New York at Albany; Michael 
                            P. Robinson, Department of Biology, 
                            University of South Florida; William E. 
                            Robinson, Associate Professor, 
                            Environmental Sciences Program, University 
                            of Massachusetts, Boston; Steve Rogstad, 
                            Biological Sciences, University of 
                            Cincinnati; James J. Roper, Professor, 
                            Department of Biology, Utah State 
                            University; Daniel K. Rosenberg, Research 
                            Scientist, Institute for Bird Populations, 
                            Point Reyes Station, California; John T. 
                            Rotenberry, Natural Reserve System and 
                            Dept. of Biology, University of California, 
                            Riverside; Mike Runyan, Associate 
                            Professor, Biology, Lander University; 
                            Natalie Runyan, Conservation Information 
                            System Specialist, Animas Foundation on the 
                            Gray Ranch; Kristina A. Schierenbeck, 
                            Assistant Professor, Biology, California 
                            State University, Fresno; David S Schimel, 
                            Senior Scientist and Head, Ecosystem 
                            Dynamics & the Atmosphere Section, National 
                            Center For Atmospheric Research; Isaac J. 
                            Schlosser, Professor, Biology, University 
                            of North Dakota; Rebecca R. Sharitz, 
                            Professor, Ecology, University of Georgia; 
                            Kathleen L. Shea, Chair, Biology 
                            Department, St. Olaf College; Andrew T. 
                            Smith, Professor, Zoology, Arizona State 
                            University; Darrel E. Snyder, Research 
                            Associate, Larval Fish Laboratory, Colorado 
                            State University; Michael Soule, Chair, 
                            Environmental Studies, University of 
                            California, Santa Cruz; Richard E. Sparks, 
                            Director, River Research Laboratories, 
                            Illinois Natural History Survey; Jack A. 
                            Stanford, Jessie M. Bierman Professor of 
                            Ecology, University of Montana; Maureen 
                            Stanton, Section of Evolution and Ecology 
                            and Center for Population Biology, 
                            University of California; Roy A. Stein, 
                            Professor, Aquatic Ecology Lab, The Ohio 
                            State University; Margaret M. Stewart, 
                            Professor, Department of Biological 
                            Sciences, State University of New York at 
                            Albany and President, American Society of 
                            Ichthyologists and Herpetologists; Craig A. 
                            Stockwell, Research Ecologist, Savannah 
                            River Ecology Laboratory; Philip K. 
                            Stoddard, Assistant Professor, Department 
                            of Biological Sciences, Florida 
                            International University; Sharon Swartz, 
                            Dept. of Ecology and Evolutionary Biology, 
                            Brown University; Camm Swift, Visiting 
                            Asst. Professor of Biology, Loyola 
                            Marymount University and Associate Curator 
                            Emeritus, Natural History Museum of Los 
                            Angeles County; Stanley A. Temple, Beers-
                            Bascom Professor in Conservation, 
                            Department of Wildlife Ecology, University 
                            of Wisconsin; Harry M. Tiebout III, 
                            Assistant Professor, Department of Biology, 
                            West Chester University; Patrick C. 
                            Trotter, Fishery Science Consultant, 
                            Seattle, WA; Charles Umbanhowar Jr., 
                            Department of Biology, St. Olaf College; 
                            Dirk Van Vuren, Associate Professor, Dept. 
                            of Wildlife, Fish & Conservation Biology, 
                            University of California, Davis; Kirk R. 
                            Vincent, Department of Geosciences, 
                            University of Arizona; Stephen Vives, 
                            Associate Professor, Department of Biology, 
                            Georgia Southern University; Robert C. 
                            Vrijenhoek, Director, Center for 
                            Theoretical and Applied Genetics, Rutgers 
                            University; David B. Wake, Director, Museum 
                            of Vertebrate Zoology, Gompertz Professor 
                            of Integrative Biology Peter Warshall, PhD; 
                            Melvin L. Warren, Jr., USDA Forest Service, 
                            Southern Research Station Forest Hydrology 
                            Lab; Peter Warshall, Warshall and 
                            Associates; Nicholas M. Waser, Professor, 
                            Department of Biology, University of 
                            California, Riverside; G. Thomas Watters, 
                            Ohio Biological Survey, The Ohio State 
                            University; Judith S. Weis, Department of 
                            Biological Sciences, Rutgers University; 
                            Richard N. Williams, Senior Research 
                            Geneticist, Clear Creek Genetics; Herb 
                            Wilson, Associate Professor, Department of 
                            Biology, Colby College; Jerry O. Wolff, 
                            Research Associate Professor, Department of 
                            Fisheries and Wildlife, Oregon State 
                            University; David S. Woodruff, Professor, 
                            Biology, University of California, San 
                            Diego; Andrea Woodward, National Biological 
                            Service; Ruth D. Yanai, Assistant 
                            Professor, Forest Soils, SUNY College of 
                            Environmental Science and Forestry, 
                            Syracuse; Douglas Yanega, Illinois Natural 
                            History Survey, James A. Zack, GIS Manager, 
                            System for Conservation Planning, Natural 
                            Resource Ecology Laboratory, Colorado State 
                            University; Dr. Robert M. Zink, 
                            Breckenridge Chair in Ornithology, 
                            University of Minnesota.
                                 ______
                                 
       Statement of Gregory A. Thomas, Natural Heritage Institute
    Mr. Chairman and Members of the Subcommittee: I am Gregory A. 
Thomas, president of the Natural Heritage Institute, a San Francisco-
based non-profit natural resource conservation organization comprised 
of lawyers, scientists, planners and economists. Our mission is to 
promote improvements in the institutions--governmental and non-
governmental--that manage and regulate the world's depletable stock of 
natural resource, including biological diversity. Our work is both 
domestic and international in scope.
    I am please to appear before the Subcommittee today to present some 
of the findings and conclusions of a technical workshop that we 
convened in June 1998 on ``Optimizing Habitat Conservation for Non-
Federal Lands and Waters: Harvesting Performance Reviews to Chart A 
Course for Improvement.'' This workshop synthesized the results of a 
number of recent empirical studies of the performance of HCPs that have 
been conducted by academic researchers, conservationists and practicing 
conservation biologists. The purpose of the workshop was to distill the 
lessons from the past 15 years of operating experience with HCPs. We 
sought to discover how and why the HCP process has failed to recover 
vulnerable and depleted species and what can be done to improve this 
conservation tool.
    The findings and recommendations of this review process that are 
pertinent to the focus of this hearing are summarized in this 
testimony. The complete output of the workshop, and a roster of the 
participants and studies included in it, will be provided to the 
Subcommittee. We also tender with this document a 56-page Compendium of 
Empirical Reviews and Scholarly Analysis of the Experience with Habitat 
Conservation Planning Under Section 10 of the Endangered Species Act, 
dated June 18, 1998.
    Habitat conservation planning is at once the most important and the 
most controversial arena in the ongoing effort to protect biodiversity 
on private lands in the United States. It is important to get it right 
because there is no realistic alternative. I am therefore pleased to 
summarize a few of the most salient recommendations from our work on 
the application of conservation science to the development, approval 
and implementation of HCPs.
recommendation no. 1.--scale habitat conservation planning to overcome 
 the limitations and deficiencies associated with landholding-specific 
                                  hcps
    The optimal planning unit for habitat conservation is not the 
individual land holding or water diversion, and the optimal focus is 
not individual listed species. Rather, what is needed is landscape-
level planning whereby habitat conservation planning occurs at a 
``bioregional'' scale. At this scale, ecosystems and their species are 
more likely to be afforded effective conservation measures, and the 
conservation responsibilities are more likely to be properly allocated 
among land and water rights holders, both public and private.\1\
---------------------------------------------------------------------------
    \1\ Nothing in the ESA either requires or forbids landscape-level 
planning by either the Services or the applicants. Nonetheless, the 
tradition within the Services has been to implement the Act species by 
species and site by site. Such tradition is open difficult to overcome.
---------------------------------------------------------------------------
    There can be major advantages to the non-Federal rights holders as 
well as to the achievement of the species conservation goals if 
landscape-level planning is applied:\2\
---------------------------------------------------------------------------
    \2\ This is not to say that larger, more complex HCPs have 
performed better than smaller and simpler plans. To the contrary, 
resealing is advantageous only to the extent that it opens the 
possibility of overcoming, not replicating, the limitations and 
deficiencies that have plagued landholding specific HCPs.
---------------------------------------------------------------------------
    1. Landscape-scale planning can specify the overall conservation 
effort that will be needed for communities of species and provide a 
basis for determining what share of that burden an individual property 
owner should bear in an HCP. There is no mechanism at present for 
allocating that conservation burden as between private landowners or 
between them and the public lands. Instead, the burden allocation is 
made in a piecemeal fashion through the approval of HCPs, Sec. 7 
consultations, and public land management plans and permit issuance. In 
theory, those who get their approvals earliest get the best deal, with 
larger burdens reserved for latecomers.
    2. At the landscape level, it is more feasible to calibrate habitat 
conservation planning to a recovery standard for endangered species and 
to prevent threats to other vulnerable species. Landholding-specific 
HCPs tend to aim for mitigation or, at best, avoidance of impacts on 
listed species.
    3. Landscape-level planning promotes economies of scale in data 
collection and monitoring. Good science is expensive. The burden of 
marshalling and interpreting the needed information is onerous for 
individual rightsholders seeking development permits. Resealing could 
shift an appreciable degree of this burden from individual property 
owners applying for incidental take permits to the public agencies and 
broader constellation of rights holders with responsibilities and 
interests in the eco-region. At a landscape level of conservation, it 
is also easier to evaluate and allocate a ``fair share'' of the burden 
between public and private entities.
    4. Adaptive management of conservation strategies and reserve 
design is facilitated and made more flexible on a larger scale. That is 
because adaptive management requires that some part of the development 
plan covered by an HCP remain contingent. It is more feasible to do 
this in larger scale habitat plans.
    5. The quality and degree of public participation is generally more 
satisfactory at the broader scale of planning. This is especially true 
if a local government mediates the development of the HCP(s) because 
these entities already routinely include the public in local 
decisionmaking processes.\3\
---------------------------------------------------------------------------
    \3\ An exception is where a single-landowner prepares a large 
landscape-level HCP as is true for many timber HCPs.
---------------------------------------------------------------------------
    Fitting the incidental take permitting program within a broader 
conservation framework governed by specified standards and goals has a 
parallel in the protection of watersheds under the Clean Water Act, or 
the protection of airsheds under the Clean Air Act. To obtain a permit 
to discharge regulated air pollutants into an airshed that is already 
impaired, the permittee must make a net positive contribution toward 
reducing overall emissions to help meet the ambient air quality 
standards. To do this, the permitted must offset its emissions by 
procuring reductions from other facilities. In the water quality arena, 
permittees must show that their contribution of contaminants will not 
violate basin-wide standards that are designed to assure conditions 
necessary to support ``beneficial uses'' of the watercourse. Likewise, 
the workshop suggested that individual HCPs should be calibrated to 
contribute toward achieving a bioregional conservation strategy that 
aims for long-term, sustainable conservation. This may sometimes entail 
more than avoiding or minimizing impacts on the subject landholding. It 
may also entail reducing the threat to the species on other lands 
through offsite mitigation via a mitigation fund. Mitigation funds can 
be used, for instance, to purchase the highest quality habitats to 
prevent their development.
    There are several potential vehicles for resealing habitat 
conservation planning. One is to accelerate the development and improve 
the performance of recovery plans under the ESA. There are several 
problems with this vehicle, however:
     Too often today, recovery plans do not exist and therefore 
cannot serve as a guide to individual HCPs. Yet, it is not realistic 
for the Services to decline to approve a proposed HCP until a recovery 
plan for the covered species is in place. One alternative is to make 
the approval of such HCPs conditional upon adoption of the recovery 
plan. This can work without undue risk to the permitted under the 
adaptive management strategy described later in this document so long 
as the Services are diligent in their recovery planning efforts.
     When recovery plans have been developed, they generally 
have not resulted in more adequate HCPs.\4\ Historically, recovery 
plans have been of poor quality. Most are not biologically defensible.
---------------------------------------------------------------------------
    \4\ See generally Kareiva et al, Using Science in Habitat 
Conservation Plans, National Center for Ecological Analysis and 
Synthesis, Univ. of California, Santa Barbara, and American Institute 
of Biological Sciences, Washington, DC. (1999).
---------------------------------------------------------------------------
     Recovery plans have often inappropriately subordinated the 
biological objective to economic considerations. Economics does count 
in apportioning the conservation burdens among the public and private 
landowners, but must not be allowed to dictate the biological 
requisites of the recovery plan.
     Recovery plans are not viewed as binding and enforceable 
because that would be tantamount to the Federal Government engaging in 
land use planning. That is more a political than a legal objection, 
however. In fact, the Federal Government needs to have a basis for 
deciding whether an HCP provides sufficient conservation benefit to be 
approvable. Recovery plans can provide that guidance.
     ``Recovery'' is a species-based concept and recovery plans 
do not necessarily accomplish much for ecosystems, their processes, or 
functions. However, there is no obvious reason why bioregional HCPs 
cannot adopt a ``recovery'' conservation goal for those species in the 
assemblage that are listed under the Act. Likewise, there is no reason 
why recovery plans cannot address multiple species and be habitat-
based. Such an approach would further the goals of the Act, i.e., to 
preserve the ecosystems upon which threatened and endangered species 
depend.
    A second promising vehicle is preparation of HCPs and 
administration of take allowances through sub-permits by units of State 
and local government that already have the predominant role in land use 
planning. One example is the California Natural Communities 
Conservation Program (NCCP) approach.
    A third vehicle is the promulgation of programmatic standards or 
guidelines for multi-species conservation by Federal land and water 
managers and regulators. For example, the recent adoption of NMFS' 
programmatic guidelines for logging on anadromous fish-bearing streams 
in the Pacific Northwest may prove to be a useful model. Such 
programmatic guidelines can apply standards for riparian buffers and 
acceptable levels of sedimentation to entire watersheds or other 
ecologically significant planning units. Similarly, the Aquatic 
Conservation Strategy component of the President's Forest Plan provides 
a multi-layered planning approach intended to result in ecosystem-wide 
forest management.
   recommendation no. 2.--calibrate habitat conservation planning to 
                     biologically defensible goals
    Species recovery is the ultimate goal of the ESA and contribution 
to this goal is the yardstick by which the habitat conservation 
planning process should be measured. HCPs will be viewed as 
contributing to the problem rather than the solution unless they are 
designed to advance a restoration strategy, that is, unless they confer 
a return survival benefit to the species. Otherwise, the Services are 
running a hospital in which the patients will never be taken off life-
support.\5\
---------------------------------------------------------------------------
    \5\ On heavily impaired lands, even a net benefit standard may not 
be enough to recover the species or prevent local extirpation. In these 
circumstances, the Federal Government's role in bioregional planning 
may need to include purchasing and restoring such lands. HCPs should 
not be counted on to solve all endangered species/private lands 
conflicts.
---------------------------------------------------------------------------
    The difference between ``survival'' and ``recovery'' can be 
understood as different levels of risk for the species. At present, the 
level of acceptable risk is left to the judgment of the applicants and 
the Services and is never made explicit. Often, there generally are not 
sufficient data to quantify these risks. Qualitative analysis of risk 
factors is possible, however. This type of risk analysis is familiar 
terrain in setting air and water quality criteria, for example. Thus, 
it would be feasible to assess the risk to species by identifying and 
addressing the factors that have the largest effect on survivability. 
Independent scientific peer review would be very beneficial in doing 
this.
    Such higher conservation objectives may require greater landowner 
incentives. Indeed, it makes sense to correlate the extent of 
regulatory assurances to the extent of biological benefit conferred in 
an HCP. One way to do this is to link the duration of regulatory 
assurances to the degree of conservation effort embodied in the plan 
Plans that contribute to recovery would get longer term assurances than 
those that only avoid jeopardy. Similarly, plans based on highly 
adequate data and analysis would be entitled to longer term guarantees.
    In advancing the ultimate biological goal, the share of 
conservation ``costs'' allocated to non-Federal landowners can be 
minimized by holding Federal agencies to a higher standard or 
performance. Stated another way, a consequence of managing public lands 
to a less exacting biodiversity conservation standard is a higher 
degree of burden assumed by the private rightsholders, or a compromise 
of the biological goals of the ESA. Unfortunately, prevention of 
jeopardy is the aiming point for most management decisions on Federal 
land. This low standard of management for the public lands should be of 
as much concern to the property rights community as it is to the 
conservation community. However, allocating conservation ``costs'' 
between Federal and non-Federal lands is not an option in many regions 
of the country since there is little or no Federal land, or existing 
Federal land is unsuitable to support the species in question.
    Biological science should drive the development of both bioregional 
and individual landowner plans. Economics is relevant to the allocation 
of responsibilities among landowners--public and--private in achieving 
the conservation goals of the plan, but should not be allowed to 
intrude into the choice of conservation strategies. The performance 
reviews revealed, however, that the statutory command to ``minimize and 
mitigate project impacts to the maximum extent practicable'' has become 
an economic feasibility standard in practice. HCP negotiations often 
been driven by the applicant's assertions as to the effects of 
mitigation alternatives on profit margins, rather than by the 
biological imperatives.
 recommendation no. 3.--adaptive management and biological monitoring 
                  should be routinely required in hcps
    Every HCP should be regarded as a ``learning laboratory'' wherein 
the conservation arrangements are treated as working hypotheses. In 
that regard, the elements of adaptive management and the potential 
responses to changes should be built into the plan from the beginning. 
Another term for ``adaptive management'' is ``contingency planning''. 
In either, the core requirements are a program for evaluating the 
performance of the HCP and the specification of contingency 
arrangements (alternative conservation measures) that would be 
triggered automatically in the event the performance fails to meet the 
goals. This might entail the HCP permittee implementing the plan in 
phases so that permission to begin a later phase is contingent upon the 
Services verifying that the permitted has met the performance standards 
in the prior phase. This is more easily accomplished in large 
ecosystem-based plans that are implemented over time.
    Workshop participants identified five elements or steps to develop 
an HCP with adaptive management and monitoring:
    1. Identify explicit, measurable, biological goals;
    2. Identify explicit human-induced and other stresses on the 
system;
    3. Identify imaginative strategies to achieve the biological goals;
    4. Monitor biological indices by developing a statistically valid 
sampling scheme or an analytic structure for interpreting data; and
    5. Develop mechanisms to translate data into needed plan 
adjustments by the land managers and the oversight agencies.
    These elements call for the rigorous application of the following 
scientific methods:
     System Assessment: systematic collection and statistical 
analysis of data on ``healths of the important ecosystem components and 
on the factors that may influence health at several levels: population, 
species, community, habitat, and ecological processes.
     Experimental science: rigorous, controlled, empirical 
tests to confirm causal relationships, management hypotheses, and the 
incidental impacts of management.
     Risk analysis: statistical analysis of empirical results 
to identify levels of uncertainty and therefore ensure against ``net 
harms. Risk assessment need not be quantifiable. We can start by 
identifying which activities will result in the largest impacts, then 
develop a conceptual monitoring approach. For example, employing such 
risk factors as habitat loss, birth rate, and migration barriers allows 
planners to get a better sense of whether risk levels are acceptable.
     Provision for uncertainty: discussed below.
    All of the above methods require monitoring. Notably, the NCEAS 
study found that less than 50 percent of HCPs had clear monitoring 
plans in place, where ``monitoring'' meant more than just ``counting'' 
animals. Yet, monitoring will not necessarily reveal the changes that 
need to be made in time to make them. This argues for a margin of 
safety in the selection of the HCP conservation strategy. Rigorous 
monitoring is worth doing even for HCPs that do not have an adaptive 
management feature because the rate of amendments to HCPs (at the 
landowner's request) tends to be high. Such amendments provide the 
opportunity for adjustments in conservation strategies.
    Monitoring must also be time-scale sensitive. For example, short-
lived species, e.g., listed mice species, must be monitored much more 
frequently than long-lived species, e.g., desert tortoises (with 
respect to generation time), and annual plants more frequently than 
redwood tress. In short, effective monitoring is keyed to the specific 
species.
    Strategies for dealing with critical uncertainties are essential 
for adaptive management, and to make the HCP process work in general. 
An effective and acceptable strategy would detect possible fatal data 
deficiencies and deal with them in a manner that does not place the 
target species at risk due to irreversible development of habitat but 
also does not make development impossible. The first step is to make 
the adequacy of the data explicit. To assess the sufficiency of data 
for habitat conservation plans, an inventory of available data and 
acknowledgement of gaps should be a routine requirement.
    When critical data are unavailable or inadequate for prudent 
planning, and it is not realistic to saddle the ITP applicant with the 
burden of undertaking original research and developing data, certain 
precautionary processes should accompany that ITP:
     The greater the impact of a plan, the fewer gaps in 
critical data should be tolerated. For example, the standard of data 
adequacy would be higher for irreversible activities such as are 
typical in urban development as opposed to activities whose impacts can 
be temporary, as is sometimes the case for water diversions.
     A scarcity of data on impacts of take should be handled by 
assuming a worst case-scenario in determining whether approval criteria 
have been satisfied.
     For large HCPs covering vast expanses of land, take needs 
to be quantitatively assessed.
     Where there is a scarcity of information to validate the 
effectiveness of mitigation, mitigation measures should be implemented 
and assessed before take occurs. This could become an explicit approval 
criteria for HCPs.
     Monitoring needs to be very well designed in those cases 
where mitigation is unproven.
     Adaptive management needs to be a part of every HCP judged 
to be predicated on substantial data shortages, not just to deal with 
``unforeseen circumstances''. When faced with data shortages, there 
needs to be explicit measures for using the information from monitoring 
to alter management procedures. This means that a precise trigger for 
``mitigation failures'' needs to be spelled out, as well as procedures 
for adjusting management when that signal of ``failure'' has been 
received. The key point here is that the mere existence of monitoring 
is not a solution to data shortage--there also has to be a quantitative 
decision-process that links monitoring data to adjustments in 
management.
    In sum, where critical information is scarce or uncertain, the 
resulting plans should:
     be shorter in duration
     cover a smaller area
     avoid irreversible impacts
     require that mitigation measures be accomplished before 
take is allowed
     include contingencies
     have adequate monitoring
recommendation no. 4.--regulatory assurances should be compatible with 
    adaptive management and commensurate with an hcps conservation 
                              performance
    In HCP negotiations, the landowners typically want regulatory 
assurances that tend to shift the risks associated with complex 
biophysical systems to the species, which can ill afford them. The 
permit applicant wants to be absolved of further responsibility for the 
conservation of the species in exchange for the development concessions 
he/she makes in the HCP, irrespective of the future population trends 
for the covered species. That is what is effectively conferred by the 
``No Surprises'' guarantee.
    But biological systems are inherently fraught with uncertainty. 
They are not only more complex than we know; they are inherently more 
complex than we can know, in the words of one eminent workshop 
participant. Adaptive management responds to this reality. Under 
adaptive management, HCPs are acknowledged to be mare working 
hypotheses, predicated upon assumptions about how species and their 
ecological processes and functions respond to changes in habitat size, 
location, configuration, quality, etc. Under adaptive management, these 
assumptions, uncertainties, and knowledge gaps are made explicit, and 
the conservation strategy includes a directed and funded program of 
hypothesis testing against specified and measurable performance goals, 
monitoring and, most important of all, adaptations of the initial 
conservation strategy in response to the results.
    Adaptive management will also require a fundamental change in the 
way the regulatory assurances are structured, so that HCPs remain 
flexible and contingent, rather than immutable, as they are now. One 
solution lies in converting the assurance package from regulatory 
immunity to regulatory indemnity. That means that if adaptive 
management indicates that the species' prospects would be better served 
by additional restrictions on the use of land or other those could be 
accomplished without the consent of the landowner, but also without 
economic penalty to the landowner. The biological risks would, in 
effect, be absorbed by a compensation fund.
    An analog to this is an insurance arrangement under which the issue 
of who shoulders the risks associated with HCPs converts to the issue 
of who funds the indemnity pool, and how the decisions on compensation 
will be made. The regulatory compensation could be funded from Premiums 
contributed by the beneficiaries, which include the HCP applicants as 
well as the taxpayer. There is also the potential to fund a portion of 
the compensation pool through reductions in the cost of debt service 
for covered development projects. An indemnity arrangement does reduce 
the risks to development under the ESA. Some share, perhaps most, would 
also need to be absorbed by the public. This is beginning to happen in 
the aquatic arena.\6\
---------------------------------------------------------------------------
    \6\ Solving the issue of how to determine compensable loss in a 
nanny that satisfies the private rightsholders is trickier in the 
terrestrial HCP context than in the aquatic HCP context (where lost 
water supply reliability is both relatively easy to measure and to 
compensate). Higher conservation objectives may require higher 
incentives.
---------------------------------------------------------------------------
    Regulatory assurances should not be automatic. Rather, the Services 
can and should calibrate the regulatory assurance conferred (e.g., the 
scope or the duration) to the assurance of conservation performance 
provided by the HCP. Plans that contribute to recovery would get longer 
guarantees than those that simply maintain the current population level 
or allow some decrease. Similarly, plans where the underlying data and 
analysis are judged highly adequate, via objective, definable 
standards, would be entitled to longer term guarantees.
    A recommended approach is to negotiate as a term of the HCP the 
circumstances that would trigger a requirement for changes in the HCP, 
the type of changes that could be required, the responsibility for 
implementing those changes and the contingencies that must be left open 
in the development plan to allow these changes to be made.
    Stronger, more complete, or longer term assurances might be 
reserved for HCPs that have the following features:
    1. plan-specified performance goals;
    2. an effective monitoring program;
    3. an adaptive management element which identifies the significant 
risks of the HCP not achieving the performance goals, a contingency 
plan that is triggered in that event, and a commitment of funds to 
carry out this element;
    4. a commitment by the parties to effective enforcement of the HCP 
terms; and
    5. third party enforcement provisions, should the commitment to 
abide by the terms of the HCP as described above fail.
     recommendation no. 5.--independent science should be used to 
                            strengthen hcps
    Whether the conservation strategy adopted in an HCP is adequate to 
meet the biological goals requires the exercise of professional 
judgment and discretion. It is essential that these be specified 
explicitly and correctly. Even apart from the influence of economics 
and politics on these judgments, there may be a spectrum of responsible 
opinions among scientists and agency officials as to whether thresholds 
of data adequacy or standards for plan approval have been met. There 
are few bright lines and courts are ill equipped to arbitrate such 
technical disputes. We need an HCP process that reliably attains the 
biodiversity conservation objectives of the ESA (survival and recovery) 
in spite of potential differences in responsible scientific judgment. 
Independent scientific review may help fulfill that role.
    Scientific review is also important because decisions on 
conservation strategy made apart from the view of the scientific 
community and the public will not have the credibility that HCPs need. 
The Service negotiators also need the reinforcement that independent 
science can provide. Outside scientific scrutiny imposes a standard of 
scientific excellence that is difficult to counteract. The Services 
have the responsibility of ensuring that applicants use adequate 
scientific information to develop HCPs Conservation and permitting 
decisions made without a clear, factual basis and a demonstrable link 
to information will not result in credible and legally sustainable 
HCPs. Independent scientific involvement can reinforce the Services' 
decisions if conducted and managed properly. One way to approach this 
would be to enlist independent scientists in the development of general 
scientific principles or guidance for species or habitats on which HCPs 
can then be based, such as the regional conservation guidelines for 
coastal sage scrub in Southern California.\7\
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    \7\ A qualified independent reviewer is one who: (1) has little 
personal stake in the nature of the outcome of decisions or policies, 
in Arms of financial gain or loss, career advances, or personal or 
professional relationships; (2) can perform the review tasks flee of 
intimidation or forceful persuasion by others associated with the 
decision process; (3) has demonstrated competence in the subject as 
evidenced by formal tang or experience; (4) is willing to use her or 
his scientific expertise to reach objective conclusions that may be 
discordant with her or his value systems or personal biases; and (5) is 
willing and able to help identify internal and external costs and 
benefits--both social and ecological--of alternative decisions. 
Typically such a parson is associated with a recognized scientific 
society or is otherwise an established professional in a particular 
field.
---------------------------------------------------------------------------
    The timing of scientific input is critical for shaping HCPs. It is 
important to get scientists involved as ``scientists,'' providing data 
and analyses, not just as reviewers, reacting to someone else's data 
and analyses. The input must come at the formative stage when ``first 
principles'' of the application of conservation science are being 
established for the reserve design or other conservation strategy. 
These decisions are made as the HCP is negotiated, not at the stage 
where the Service issues the incidental take permit. At present, HCP 
applicants control access to the negotiations. The Services accord them 
this discretion because they view HCPs as applications for a regulatory 
permit, and therefore as the applicant's workproducts. But HCPs are 
really negotiated settlements of regulatory liabilities, not just 
applications for permits. The governmental action takes place in these 
negotiations. Permit issuance is a mere formality.
    One way to interject independent science into HCPs is to bring 
independent qualified experts into the negotiations directly under the 
sponsorship of the local communities or interested conservation 
organizations. However, these potential participants often do not have 
access to such expertise or the means to procure it. An ``HCP Resource 
Center'' comprised of a nationwide network of conservation scientists, 
resource economists and legal experts with negotiation skills could 
meet this need. It could allow tailored expertise to be deployed to 
engage directly and effectively with the agency and applicant's team of 
negotiators.
                               conclusion
    The performance of habitat conservation planning on lands and 
waters subject to private property rights could clearly be upgraded 
through the better application of sound principles of conservation 
science. Much of this upgrade could be accomplished by the Services 
themselves, within their existing statutory authority--and with an 
increase in the needed financial resources. The proposed amendments to 
the Services' HCP Handbook are, in the main, steps in the right 
direction. We have provided the Services detailed comments on their 
proposed amendments, derived from the findings and conclusions of the 
HCP technical workshop.
    Unquestionably, the statutory framework itself could also be 
improved, to create incentives, disincentives and approval criteria 
more conducive to effective habitat conservation planning. We also 
believe that this could be done in a manna that does not increase the 
burdens imposed on the private rights holders. Indeed, we believe, 
based on the technical analysis synthesized by the workshop, that 
statutory reforms could be coupled with more realistic Federal funding 
in manna that would alleviate some of those burdens and make the 
habitat planning process more palatable, predictable, effective and 
scientifically defensible.
    The short time available for preparation of this testimony did not 
permit us to generate thoughtful recommendations for statutory reform. 
If the Subcommittee should determine to explore that course, however, 
the Natural Heritage Institute would be pleased to work with your staff 
to suggest reforms well-grounded in the performance reviews which we 
call to your attention in this testimony.
    Thank you for the privilege of addressing the Subcommittee today.
                                 ______
                                 
      Responses by Gregory A. Thomas to Additional Questions from 
                             Senator Chafee
    Question 1. How should the ESA be changed to provide for greater 
public involvement in the HCP process?
    Response. As you will recall, NHI's testimony was based on the 
findings and conclusions that emanated from a technical workshop of 
experts on ``Optimizing Habitat Conservation Planning for Non-Federal 
Lands and Waters: Harvesting Performance Reviews to Chart a Course for 
Improvement''. Incidentally, four of the institutions represented by 
witnesses at your hearings participated in that workshop. Among many 
other topics, that workshop synthesized recent critiques of the 
opportunities for public involvement afforded by the HCP process 
historically. The findings and conclusions in that regard are as 
follows:
    Recommendation No. 5.--The Services should make every effort to 
encourage direct public participation beyond the minimum legally 
required.
     Public participation in the development of an HCP can 
enhance the quality of information on which HCP decisions are based, 
improve understanding and relationships among HCP stakeholders, 
heighten public and political support for an HCP, and enhance the long-
term viability of an HCP. The public has a significant stake in the HCP 
process because wildlife is a public resource, both legally and 
politically. And, whatever conservation responsibilities or risks are 
not borne by and ITP applicant will be shifted to other landowners or 
the public lands, usually at public expense.
     A recent study by the University of Michigan revealed that 
the degree of public acceptance of an HCP is strongly related to the 
degree of public participation in the development of that plan. The 
more that interested parties are accorded a role in developing 
conservation plans, rather than merely commenting on completed plans--
the more satisfied they tend to be with an HCP.
     The timing and short duration of the comment periods for 
HCP documents under NEPA and the ESA limit meaningful public 
involvement. Currently, HCP scoping occurs early in plan development 
while the project is poorly defined. The next commenting opportunity 
usually comes at the end, when most decisions are already locked in. At 
that point, there are no incentives to renegotiate these provisions to 
incorporate changes requested by the public even if the public provides 
significant new information. And, then, the comment periods tend to be 
too short for interested citizens to master the details of a given plan 
and compose and submit comments. The workshop determined that if the 
Services invited the public to comment on important issues as they 
arose or at ``trigger points'' throughout the planning process, the 
public would not be confined to participating only in the very early 
stages of embryonic plans, or after the key HCP provisions have already 
been negotiated.
     Another way to expand public involvement . . . is . . . to 
rescale habitat conservation planning [so that individual HCPs fit 
within a multi-species, ecosystem level conservation strategy] and 
involve local land use agencies. Public access and effective 
participation in the development of the conservation ``deal'' would be 
greatly enhanced where the HCP applicant is or includes units of local 
or State government. Local or State governmental agencies are likely to 
involve the public in much the same way the public participates in 
local land use decisions. This can occur because State laws often 
provide for open hearings and easy access to public documents. This 
allows citizens to directly address and interact with public officials 
in HCP development and implementation. This element supplements and 
often exceeds the minimal Federal requirements for notice and comment 
under NEPA.
     Fundamentally, the problem with public access to the 
process is that the Services have delegated the ``gatekeeper'' role to 
the permit applicant. The applicant exercises sole discretion as to who 
will and who will not be given a seat at the negotiating table. This 
reflects the Services' mistaken notion that an HCP is just a permit 
application over which the applicant should exercise final substantive 
control. But an HCP is much more than an application. It is for all 
intents and purposes a negotiated settlement of the terms and 
conditions under which a discretionary permit will be issued to engage 
in otherwise forbidden acts, namely the taking of protected species. An 
HCP is not just the applicant's work product. It is a compromise 
jointly produced by all parties to the HCP negotiations. Once its terms 
are approved by the Services, the ``incidental take permit'' or 
;implementation agreement'' is largely a formality.
     Functionally, the approved HCP is the permit to take 
protected species. As such, the process through which it is formulated, 
issued and approved should be as open to interested members of the 
public as is the issuance of land use permits in other contexts. For 
example, when the Department of Interior grants grazing permits under 
the Federal Land Policy and Management Act, it allows for public 
participation so that all parties affected by the process will be fully 
represented.\1\ NPDES permits and local building permits are similarly 
public processes. Those permit applicants are not allowed to control 
who can and who cannot participate in the permitting process. Likewise, 
the Services, not the applicants should determine who gets a seat at 
the HCP negotiation table.
---------------------------------------------------------------------------
    \1\ Other Federal statutes allow stakeholders to help shape natural 
resource use and protection. The EPA convenes interested stakeholders 
in setting Federal water quality standards, and NMFS itself employs 
stakeholder groups under the Marine Mammal Protection Act in its 
efforts to reduce the harm commercial fishing has on imperiled fish 
species. Nothing in the ESA precludes the Services from employing 
similar measures to involve the public in the HCP context.
---------------------------------------------------------------------------
     The issue of who sits at the table is crucial to the 
quality and acceptability of HCPs and the process itself. Upgrading the 
independent scientific bases for HCPs cannot be done solely after the 
fact, in the form of peer review. By then, the fundamental decisions 
regarding the design of the conservation strategy, the monitoring 
program, and the adaptive management arrangement will already have been 
settled in the negotiation process. If the science underlying HCPs 
needs to be improved--and most commentators believe that to be the 
case--this must be done by bringing these experts directly into the 
negotiations at the earliest stages. The current arrangement assumes 
that the agencies and applicants alone can be relied upon to marshal 
the needed expertise. But, in fact, the Services' internal expertise is 
spread very thin where literally hundreds of HCPs are in development 
simultaneously, and the applicant's experts may appear to be influenced 
by the understandable desire to minimize the costs of conservation 
measures.
     This is not to say that in acting as gatekeepers the 
Services must admit to the table everyone who knocks on the door. 
Demonstrated ability to contribute substantively to the issues on the 
table without undue delay may be made the price of admission. We simply 
urge that the Services themselves assume the role of making these 
decisions and not leave them to the permit applicant. Native fish and 
wildlife are public resources under both State and Federal 
jurisprudence, wherever they may be found. It is fundamentally wrong to 
treat permits to take endangered species on private lands as though the 
public does not have an interest in the substantive validity of the 
negotiated terms and conditions.
    Incidentally, NHI called these deficiencies in the public 
involvement process to the attention of the Services in our comments on 
the proposed revisions to the HCP Handbook. In our view, the most 
significant problem with these proposed revisions is the failure of the 
Services to reserve to themselves the ``gatekeeper'' function, for the 
reasons set forth above. In the event that the Services do not make 
this change in the final version of the Handbook revisions, we strongly 
encourage this Committee to mandate that change when it reauthorizes 
the ESA.

    Question 2. You have argued for the use of outside ``review'' teams 
consisting of wildlife biologists, lawyers, and other stakeholders to 
evaluate HCPs. The proposal would be to require landowners to include 
these teams at the outset in developing an ECP. Can you please describe 
what the role of these review teams would be? What additional expertise 
or resources do they contribute to the development of an HCP? How would 
their activities be funded?
    Response. Specifically, NHI proposes to organize a nationwide 
network of specialized experts in the fields of conservation science, 
resource economics and wildlife law, drawn largely from the academic 
sphere. We envision drawing on this network to assemble specialized 
teams that could seek to participate in the negotiation of high-
consequence HCPs on behalf of local communities and the general public. 
We envision that these independent experts would apply to the Services 
to be permitted to participate in the development of these HCPs, just 
as ``public interest intervenors'' now routinely seek to participate in 
many other environmental permitting processes. The Services would 
exercise their discretion to determine whether and how to involve the 
independent experts. Presumably, the Services would consider the value 
of the proffered expertise as well as the effects on administrative 
efficiency. In most cases, we believe, the Services would find that 
participation by these experts--particularly at the formative stages of 
HCPs--would significantly improve both their quality and their public 
acceptability. In those cases, the Services could urge or even require 
the permit applicant to provide technical information to the 
independent team for their review and comment, and to consider their 
suggestions and proposals in formulating the HCP. In cases where the 
Services are persuaded that the recommendations of the expert team 
should prevail, they could so condition their approval of the HCP.
    The independent experts would expect to be admitted to the 
negotiations only upon a showing that they can provide a type or 
quality of expertise not otherwise provided by either the applicant's 
consultants or the Services' internal staff. In the view of the several 
empirical reviews of HCPs synthesized at the NHI workshop, the type and 
quality of expertise brought to bear on HCPs can often be improved 
through the use of such ``independent science''.
    We are currently exploring the options for funding. Ideally, the 
funding would come from a combination of sources, including:
    (1) The local communities or conservation interests represented by 
the independent scientists might provide at least ``earnest money'' 
support;
    (2) The scientists (and other experts) might be asked to discount 
their fees as a public interest gesture (NHI has had considerable 
success in negotiating such arrangements in the past); and,
    (3) Support would be sought from private foundations with an 
interest in biodiversity on private lands.
    Ideally, the Congress will also see substantial value in this 
initiative for improving the HCP process (without additional cost to 
the private rights holders) and provide some public funding, perhaps 
through the National Fish and Wildlife Foundation.

    Question 3. Should improvements to the science of HCPs be 
mandatory? In other words, should all HCP applicants be required to 
undertake measures to improve the scientific basis of their individual 
HCPs?
    Response. As the testimony (and the several performance reviews 
synthesized in the NHI workshop) reveal, the extent to which HCPs are 
scientifically defensible varies widely. To be sure, it may be possible 
to mandate a better level of ``quality control'' by improving the 
statutory criteria for approval of HCPs (many suggestions in this 
regard can be distilled from the attached workshop findings and 
conclusions), or the statutory process for making those approvals (such 
as requiring explicit findings of fact with respect to the approval 
criteria).
    However, the science of HCPs could also be substantially upgraded 
through improvements in the process and incentives. If the Services 
themselves where given the resources to develop high-quality, 
ecosystem-scale, multi-species conservation strategies at the landscape 
scale, the scientific burdens associated with developing HCPs at the 
scale of the individual landholding would be greatly ameliorated, with 
a significant quality improvement. Options for doing this are discussed 
in the attached Findings and Conclusions. The intervention of 
independent conservation science at the formative stages of HCPs is 
another promising device, as discussed above. Upgrading and extending 
the use of ``adaptive management'' techniques in HCPs would also vastly 
improve their scientific credibility.
                                 ______
                                 
      Responses by Gregory A. Thomas to Additional Questions from 
                             Senator Crapo
    Question 1. Your paper calls for the development of an HCP team, 
including wildlife lawyers, which will be deployed at the request of 
conservationists to ply open the negotiating process between the 
Services and landowners. Don't you believe that such actions will act 
as a disincentive to landowners to participate in HCP development?
    Response. How landowners would view the possibility of direct 
participation by independent scientists in the crafting of their HCP is 
certainly a legitimate issue. Since HCPs are the primary vehicle by 
which private rights holders make commitments to conserve biodiversity, 
we do not want to make them better at the expense of making them rarer. 
Properly done, opening up today's bilateral negotiations to broader 
scientific scrutiny can provide tangible benefits to all stakeholders. 
Failed HCPs leading to species extinctions is everyone's nightmare. Our 
discussions with landowners indicates that they do favor improving the 
prospects of success in habitat conservation planning, if that can be 
done without significantly increasing their costs or timelines. The 
Services freely admit that their internal scientific capacities are 
stretched very thin by the volume and complexity of HCPs, and by the 
narrowly specialized expertise that they require. Conservation 
interests and local communities are crying out for better access to a 
process that affects their interests greatly. The scientific community 
has expressed grave concerns about the defensibility of the current 
generation of HCPs. Surely we can find a way to do better by all these 
stakeholders.
    To clarify, the better way proposed by NHI is to convene 
interdisciplinary teams of experts to directly engage in the crafting 
of HCPs. To be sure, wildlife law experts may be useful in this 
endeavor--perhaps to act as the actual negotiators. But, the 
conservation scientists are the core capability that needs to be 
organized and ``deployed''. We believe this can be done without 
additional expense to the landowners. We do not propose that the 
landowners would be required to pay for this dose of independent 
science. We also do not accept the premise that better science will 
lead to more expensive conservation measures. The most expensive type 
of conservation measures are those that fail in their intended purpose, 
although the additional costs may be visited on the next landowner who 
seeks a take permit covering the subject species. In the end, the team 
of independent scientists that might participate in the negotiations 
has no power to dictate terms and conditions. They can only critique 
and recommend. In the end, the power to approve will continue to lie 
where it does today, with the Services who can issue or withhold 
incidental take permits.
    We also do not propose that the intervention of independent 
scientists in the HCP process would be automatic. Rather, we propose 
that their participation lie within the discretion of the Services, who 
can best determine whether they will make a positive contribution in a 
particular circumstance.

    Question 2. Does NHI engage in litigation on environmental issues? 
Would NHI lawyers ``pry open'' the doors to the negotiating process and 
then file an action if they didn't get everything they wanted out of 
negotiations? How would that affect the willingness of applicants and 
agencies to cooperate on HCPs?
    Response. NHI is an organization of lawyers, scientists and 
economists. We do have litigation capability, which we use judiciously, 
preferring to find solution opportunities beyond the pale of existing 
law where we can. The prospect of legal challenges to HCPs exists 
whether or not independent scientists are involved in their crafting, 
and it exists quite apart from NHI. The important point here is that 
litigation by anyone is much less likely if there is higher confidence 
in the eff1cacy of the HCP that emerges from the negotiations. One of 
the chief benefits of outside scrutiny is the higher level of public 
satisfaction with the HCP process. Thus, if the interest of the Senator 
in posing this question is to insulate the HCP process from litigation 
challenges, the best strategic move he could make would be to open the 
process to public involvement through highly qualified experts not 
otherwise available to the applicant or the Services. Indeed, this 
insulation should be highly attractive to the permit applicants who are 
willing to go to the time and expense of developing an HCP.
    We believe that it is time to put unproductive rhetoric aside and 
get on with the business of crafting a high-confidence process for the 
development of private property without driving species to extinction. 
Better science is part of the solution for landowners and species 
alike. We are trying to help marshal it. We hope we can be useful to 
the leadership of the U.S. Senate in doing likewise.
    Thank you for the opportunity to present our views, and those of 
the workshop participants, both at the hearing and in these responses. 
A copy of the workshop ``Findings and Conclusions'' is attached to 
amplify on these points. I reiterate our desire to serve as a resource 
to the Committee as it considers how to improve the statutory framework 
for habitat conservation planning on non-Federal lands and waters.
                                 ______
                                 
 A SUMMARY OF KEY FINDINGS AND RECOMMENDATIONS OF THE PARTICIPANTS OF 
                              THE WORKSHOP
  Optimizing Habitat Conservation Planning for Non-Federal Lands and 
     Waters: Harvesting Performance Reviews to Chart--A Course for 
                              Improvement
                            i. introduction
    Habitat conservation planning is at once the most important and the 
most controversial arena in the ongoing effort to protect biodiversity 
on private lands in the United States. In June 1998, as part of its 
project: ``Improving Endangered Species Habitat on Private Lands,'' the 
Natural Heritage Institute (NHI) convened HCP experts from the fields 
of conservation biology, land-use planning, natural resource economics, 
and law for a 2-day workshop. The purpose of the workshop was to 
synthesize the results of a number of empirical studies of the 
performance of HCPs in which these experts had been involved, with a 
view toward distilling the endemic deficiencies and identifying 
achievable solutions. This document reports the principal findings and 
recommendations from the workshop as an agenda for action to improve 
this vehicle for accomplishing commitments to habitat conservation on 
lands and in water subject to private property rights.
               ii. key recommendations from the workshop
Recommendation No. 1.--Scale habitat conservation planning to overcome 
        the limitations and deficiencies associated with landholding-
        specific HCPs
    A principal and recurring issue was the appropriate planning unit 
for habitat conservation. Repeatedly, the discussion confirmed that the 
optimal unit is not the individual land holding or water diversion, and 
the optimal focus is not individual listed species. Rather, there are 
benefits for both biological resources and property rights holders in a 
landscape level of planning wherein habitat conservation strategies are 
developed at a ``bioregional'' scale, which covers entire ecosystems, 
and their community of species. At this scale, ecosystems and their 
species are more likely to be afforded effective conservation measures, 
and the conservation responsibilities are more likely to be properly 
allocated among land and water rights holders, both public and private.
    Nothing in the ESA either requires or forbids landscape-level 
planning by either the Services or the applicants. Nonetheless, the 
tradition within the Services has been to implement the Act species by 
species and site by site. Such tradition is often difficult to 
overcome.
    There can be major advantages to the non-Federal rights holders as 
will as to the achievement of the species conservation goals if 
landscape-level planning is applied. Concentrating on large landscape 
units for conservation planning and permitting can address many of the 
perceived problems with HCPs. This is not to say that larger, more 
complex HCPs have performed better than smaller and simpler plans. To 
the contrary, rescaling is advantageous only to the extent that it 
opens the possibility of overcoming, not replicating, the limitations 
and deficiencies that have plagued landholding-specific HCPs. The 
potential advantages of landscape-scale HCPs identified in the workshop 
are the following:
    A. Landscape-scale planning can specify the overall conservation 
effort that will be needed for communities of species and provide a 
basis for determining what share of that burden an individual property 
owner should bear in an HCP. There is no mechanism at present for 
allocating that conservation burden as between private landowners or 
between them and the public lands, Instead, the burden allocation is 
made in a piecemeal fashion through the approval of HCPs, Sec. 7 
consultations, and public land management plans and permit issuance. In 
theory, those who get their approvals earliest get the best deal, with 
larger burdens reserved for latecomers.\1\
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    \1\ This burden allocation problem is not susceptible to a simple 
or uniform principle. In some cases, the private land's share of the 
burden, in the aggregate, should be ``no net loss'' of habitat values. 
But, ``no net loss'' of habitat does not necessarily ensure the 
conservation of species. For example, most listed species require some 
form of active management (e.g. prescribed fire, exotic species 
control, etc.). Theoretically, an HCP could result in a net loss of 
habitat, but in providing needed management for such species, provide a 
net conservation benefit for that species. Furthermore, not all habitat 
has the same value. For example, conservationists may be willing to 
trade two groups of red-cockaded woodpeckers in highly fragmented 
habitat for creation of a single group that is in a critical linkage 
zone in a designated recovery population. Moreover, HCPs should not be 
called on to solve all endangered species conservation conflicts. 
Sometimes the government will have to bear a greater burden, such as 
where the only ecologically justified mitigation is just too expensive 
for an HCP to bear because, for example, a species is critically 
endangered and cannot suffer any further habitat loss. In these 
situations, the Federal Government may have to purchase the critical 
private land holdings. Then there is the question whether the public 
lands share of the burden be set as national policy or negotiated among 
the affected stakeholders as part of a recovery plan or other 
bioregional plan.
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    B. At the landscape level, it is possible to calibrate habitat 
conservation planning to a recovery standard for endangered species and 
to prevent threats to other vulnerable species. Landholding-specific 
HCPs tend to aim for mitigation or at best, avoidance of impacts on 
listed species whereas the only biologically defensible aiming point 
for habitat conservation is a net improvement in the prospects or 
survival and prevention of further losses to unlisted species in 
decline. A conservation or ``recovery'' standard would be much easier 
to accomplish if HCPs were oriented toward restoring entire landscapes 
rather than simply limiting wildlife losses.
    C. Landscape-level planning promotes economies of scale in data 
collection and monitoring. Good science is expensive. The burden of 
marshalling and interpreting the needed information is onerous for 
individual rightsholders seeking development permits. Rescaling shifts 
an appreciable degree of this burden from individual property owners 
applying for incidental take permits to the public agencies and the 
broader constellation of rightsholders that have interests and 
responsibilities in the eco-region. At a landscape level of 
conservation, it is also easier to evaluate and allocate a ``fair 
share'' of the burden among all public and private entities.
    D. Adaptive management of conservation strategies and reserve 
design is facilitated and made more flexible at a larger planning 
scale. That is because adaptive management requires that some part of 
the development plan covered by an HCP remain contingent. It is more 
feasible to do this in larger scale habitat plans. However, adaptive 
management is still often feasible with smaller plans as well.
    E. The quality and degree of public participation is generally 
better at a broader scale of planning. This is especially true if a 
local government mediates the habitat conservation planning process by 
applying for the Federal permit and then issuing subpermits to 
individual landholders. Such local agencies generally include the 
public routinely in such land use planning processes. The empirical 
evidence does not support the conclusion that public participation has 
been superior where a single-landowner prepares a large landscape-level 
HCP as is true for many timber HCPs.
    If landscape-level planning offers the best prospects for species 
conservation, then it is necessary to ask what kinds of incentives, 
inducements and cost-sharing arrangements would cause habitat 
conservation planning to (1) occur at the landscape level, (2) achieve 
a recovery level of performance (3) encourage local governmental 
participation. This will require a reorientation by the Services, whose 
historic ESA implementation has fostered the choice of inappropriate 
planning units. Instead, the Services should view incidental take 
permits as fitting within a broader conservation framework governed by 
specified standards and goals, such as one finds for other 
environmental permitting regimes which are structured to achieve area 
wide environmental quality goals. For instance, under the Clean Air 
Act, an applicant for a permit to discharge regulated air pollutants 
into an airshed that is already impaired must demonstrate a net 
positive contribution toward the goal of reducing the overall level of 
emissions in order to help meet the ambient air quality standards. To 
do this, the permittee must offset (i.e. do more than just mitigate) 
its emissions by procuring reductions from other facilities. In the 
water quality arena, NPDES permittees must show that their contribution 
of contaminants will not violate basin-wide standards that are designed 
to assure conditions necessary to support ``beneficial uses'' of the 
watercourse.
    Likewise, the workshop suggested that individual HCPs should be 
calibrated to contribute toward achieving a bioregional conservation 
strategy that aims for long-term, sustainable conservation. This may 
sometimes entail more than avoiding or minimizing impacts on the 
subject landholding. It may also entail reducing the threat to the 
species on other lands through offsite mitigation via a mitigation 
fund. Mitigation funds can be used, for instance, to purchase the 
highest-quality habitats to prevent their development. A development 
exaction of this sort is often best administered by local agencies of 
government that are charged with regional land use planning. This is an 
additional reason to utilize local jurisdictions as the vehicle for 
bioregional habitat conservation planning. However, since bioregions 
often cross local (e.g., county and even state) jurisdictional 
boundaries, coordination by a higher-level jurisdiction may be 
necessary.
    Several potential vehicles emerged in the workshop discussions for 
rescaling habitat conservation planning. One is to accelerate the 
development and improve the performance of recovery plans under the 
ESA. There are several potential vehicles for rescaling habitat 
conservation planning. One is to accelerate the development and improve 
the performance of recovery plans under the ESA. There are several 
problems with this vehicle, however:
     Too often today, recovery plans do not exist and therefore 
cannot serve as a guide to individual HCPs. Yet, it is not realistic 
for the Services to decline to approve a proposed HCP until a recovery 
plan for the covered species is in place. One alternative is to make 
the approval of such HCPs conditional upon adoption of the recovery 
plan. This can work without undue risk to the permittee under the 
adaptive management strategy described later in this document so long 
as the Services are diligent in their recovery planning efforts.
     When recovery plans have been developed, they generally 
have not resulted in more adequate HCPs.\2\ Historically, recovery 
plans have been of poor quality. Most are not biologically defensible.
---------------------------------------------------------------------------
    \2\ See generally Kareiva et. al, Using Science in Habitat 
Conservation Plans, National Center for Ecological Analysis and 
Synthesis, Univ. of California, Santa Barbara, and American Institute 
of Biological Sciences. Washington, DC. (1999).
---------------------------------------------------------------------------
     Recovery plans have often inappropriately subordinated the 
biological objective to economic considerations. Economics does count 
in apportioning the conservation burdens among the public and private 
landowners, but must not be allowed to dictate the biological 
requisites of the recovery plan.
     Recovery plans are not viewed as binding and enforceable 
because that would be tantamount to the Federal Government engaging in 
land use planning. That is more a political than a legal objection, 
however. In fact, the Federal Government needs to have a basis for 
deciding whether an HCP provides sufficient conservation benefit to be 
approvable. Recovery plans can provide that guidance.
     Recovery is a species-based concept and recovery plans do 
not necessarily accomplish much for ecosystems, their processes, or 
functions. However, there is no obvious reason why bioregional HCPs 
cannot adopt a ``recovery'' conservation goal for those species in the 
assemblage that are listed under the Act. Likewise, there is no reason 
why recovery plans cannot address multiple species and be habitat-
based. Such an approach would further the goals of the Act, i.e., to 
preserve the ecosystems upon which threatened and endangered species 
depend.
    A second promising vehicle is preparation of HCPs and 
administration of take allowances through sub-permits by units of State 
and local government that already have the predominant role in land use 
planning. One example is the California Natural Communities 
Conservation Program (NCCP) approach.
    A third vehicle is the promulgation of programmatic standards or 
guidelines for multi-species conservation by Federal land and water 
managers and regulators. For example, the recent adoption of NMFS' 
programmatic guidelines for logging on anadromous fish-bearing streams 
in the Pacific Northwest may prove to be a useful model in other 
contexts. Such programmatic guidelines can apply standards for riparian 
buffers and acceptable levels of sedimentation to entire watersheds or 
other ecologically significant planning units. Similarly, the Aquatic 
Conservation Strategy component of the President's Forest Plan provides 
a multi-layered planning approach intended to result in ecosystem-wide 
forest management.
Recommendation No. 2.--Calibrate Habitat Conservation Planning to 
        Biologically Defensible Goals
    Biological science should drive the development of both bioregional 
and individual landowner plans. Economics is relevant to the allocation 
of responsibilities among landowners--public and private--in achieving 
the conservation goals of the plan, but should not be allowed to 
intrude into the choice of conservation strategies. The performance 
reviews revealed, however, that the statutory command to ``minimize and 
mitigate project impacts to the maximum extent practicable'' has become 
an economic feasibility standard in practice. HCP negotiations have 
often been driven by the applicant's assertions as to the effects of 
mitigation alternatives on profit margins, rather than by the 
biological imperatives.
    Species recovery is the ultimate goal of the ESA and contribution 
to this goal is the yardstick by which the habitat conservation 
planning process should be measured. HCPs will be viewed as 
contributing to the problem rather than the solution unless they are 
designed to advance a restoration strategy, that is, unless they confer 
a net survival benefit to the species. Otherwise, the Services are 
running a hospital in which the patients will never be taken off life 
support.\3\
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    \3\ On heavily impaired lands, even a net benefit standard may not 
be enough to recover the species or prevent local extirpation. In these 
circumstances, the Federal Government's role in bioregional planning 
may need to include purchasing and restoring such lands. HCPs should 
not be counted on to solve all endangered species/private lands 
conflicts.
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    The difference between ``survival'' and ``recovery'' can be 
understood as different levels of risk for the species. At present, the 
level of acceptable risk is left to the judgment of the applicants and 
the Services and is never made explicit. Often, there generally are not 
sufficient data to quantify these risks. Qualitative analysis of risk 
factors is possible, however. This type of risk analysis is familiar 
terrain in setting air and water quality criteria, for example. Thus, 
it would be feasible to assess the risk to species by identifying and 
addressing the factors that have the largest effect on survivability. 
Independent scientific Peer review would be very beneficial in doing 
this.
    Such higher conservation objectives may require greater landowner 
incentives. Indeed, it makes sense to correlate the extent of 
regulatory assurances to the extent of biological benefit conferred in 
an HCP. One way to do this is to link the duration of regulatory 
assurances to the degree of conservation effort embodied in the plan. 
Plans that contribute to recovery would get longer-term assurances than 
those that only avoid jeopardy. Similarly, plans based on highly 
adequate data and analysis would be entitled to longer-term guarantees.
    Creating incentives to achieve a higher level of conservation 
performance may also entail shifting a larger share of the conservation 
``costs'' from the non-Federal landowners to the Federal land 
management agencies by holding them to a higher standard of performance 
than prevention of jeopardy to individual species. Unfortunately, that 
is the aiming point for most management decisions on Federal land. This 
low standard of management for the public lands should concern to the 
property rights community as much as the conservation community because 
the consequence is to apportion a higher burden of species conservation 
on the private rightsholders (or a compromise of the biological goals 
of the ESA). Of course, allocating conservation ``costs'' between 
Federal and non-Federal lands is not an option in regions of the 
country where there is little or no Federal land, or where existing 
Federal land is unsuitable to support the species in question.
    Getting the incentives right is essential to making the HCP program 
work. The workshop illuminated the tradeoffs. If the Services enforced 
the ``take'' prohibition under Section 9, it would create a strong 
incentive for private rights holders to seek incidental take permits, 
for which HCPs are a pre-requisite. Clearly, the more vigorous the take 
enforcement, the greater the incentive to develop approvable HCPs. As 
the incentives increase, so does the quality that can be demanded in 
HCPs. To be sure, the penalty needs to be sufficient to nullify any 
economic benefits of non-compliance; nominal penalties are likely to be 
absorbed as a cost of doing business rather than serve as a deterrent 
to taking species or destroying habitats. Because the Services are 
reluctant to enforce Section 9, the main negative incentive is the fear 
of citizen suits and the attendant insulation that an HCP can provide.
    On the other hand, the larger the potential penalty, the greater 
the perverse incentive to destroy habitat before a listing occurs. The 
practical difficulties in enforcing take also limit its incentive 
value. Enforcement is often difficult because the Services cannot enter 
private lands without permission to survey for species. The Services do 
not have the budget to consistently enforce, and this is not likely to 
change. Increased enforcement of the take prohibition also mobilizes 
private property owners against the Act who believe that they are being 
required to pay for the conservation of a public good. And, for many 
species there will always be a low risk of enforcement, since we do not 
have the necessary data for these species, and thus do not know what 
constitutes take (e.g. mussels). For other species, the Services do not 
know where they occur on private lands.
    These realities assure that the take prohibition cannot substitute 
for habitat conservation planning on non-Federal lands, but it is an 
essential incentive to HCP development. The fear of take enforcement 
and regulatory guarantees together must be incentives encouraging 
meaningful habitat conservation. That is the calculus of the Services' 
``No Surprises'' rule. Some workshop participants confirmed that 
landowners are preparing HCPs because capital markets (banks) insist 
upon HCPs before they will lend project development funds. Capital 
markets place a high value on assurances that future restrictions will 
not impede development. This may not apply to ``commodity'' lands where 
take detection and enforcement is problematic.
Recommendation No. 3.--Adaptive management and biological monitoring 
        should be required components of all HCPs.
    Every HCP should be regarded as a ``learning laboratory'' wherein 
the conservation arrangements are treated as working hypotheses. In 
that regard, the elements of adaptive management and the potential 
responses to changes should be built into the plan from the beginning. 
Another term for ``adaptive management'' is ``contingency planning''. 
In either, the core requirements are a program for evaluating the 
performance of the HCP and the specification of contingency 
arrangements (alternative conservation measures) that would be 
triggered automatically in the event the performance fails to meet the 
goals. This might entail the plan implementer to implement in phases so 
that permission to begin a later phase is contingent upon the Services 
verifying that the permittee has met the performance standards in the 
prior phase. This is more easily accomplished in large ecosystem-based 
plans that are implemented over time.
    Workshop participants identified five elements or steps to develop 
an HCP with adaptive management and monitoring:
    1. Identify explicit quantifiable goals;
    2. Identify imaginative policy options;
    3. Identify explicit human-induced and other stresses on the 
system;
    4. Monitor biological indices by developing a statistically valid 
sampling scheme or an analytic structure for interpreting data; and
    5. Develop mechanisms to translate data into needed plan 
adjustments by the land managers and the oversight agencies.
    These elements call for the rigorous application of the following 
scientific methods:
     System Assessment: systematic collection and statistical 
analysis of data on ``health'' of the important ecosystem components 
and on the factors that may influence health at several levels: 
population, species, community, habitat, and ecological processes.
     Experimental science: rigorous, controlled, empirical 
tests to confirm causal relationships, management hypotheses, and the 
incidental impacts of management.
     Risk analysis: statistical analysis of empirical results 
to identify levels of uncertainty and therefore ensure against ``net 
harm''. Risk assessment need not be quantifiable. We can start by 
identifying which activities will result in the largest impacts, then 
develop a conceptual monitoring approach. For example, employing such 
risk factors as habitat loss, birth rate, and migration barriers allows 
planners to ret a better sense of whether risk levels are acceptable.
     Provision for uncertainty: discussed below.
    All of the above methods require monitoring. Notably, the NCEAS 
study found that less than 50 percent of HCPs had clear monitoring 
plans in place, where ``monitoring'' meant more than just ``counting'' 
animals. Yet, monitoring will not necessarily reveal the changes that 
need to be made in time to make them. This argues for a margin of 
safety in the selection of the HCP conservation strategy. Rigorous 
monitoring is worth doing even for HCPs that do not have an adaptive 
management feature because the rate of amendments to HCPs (at the 
landowner's request) tends to be high. Amendments provide the 
opportunity for adjustments in conservation strategies.
    Monitoring must also be time-scale sensitive to the species or 
system monitored with respect to generation times. For example, short-
lived species, e.g., listed mice species, must be monitored much more 
frequently than long-lived species, e.g., desert tortoises (with 
respect to generation time), and annual plants more frequently than 
redwood tress. In short, effective monitoring is keyed to the specific 
species.
    Strategies for dealing with critical uncertainties are essential 
for adaptive management, and to make the HCP process work in general. 
An effective and acceptable strategy would detect possible fatal data 
deficiencies and deal with them in a manner that does not place the 
target species at risk due to irreversible development of habitat but 
also does not make development impossible. The first step is to make 
the adequacy of the data explicit. To assess the sufficiency of data 
for habitat conservation plans, an inventory of available data and 
acknowledgement of gaps should be a routine requirement.
    When critical data are unavailable or inadequate for prudent 
planning, and it is not realistic to saddle the ITP applicant with the 
burden of undertaking original research and developing data, certain 
precautionary processes should accompany that ITP:
     The greater the impact of a plan, the fewer gaps in 
critical data should be tolerated. For example, the standard of data 
adequacy would be higher for irreversible activities such as are 
typical in urban development as opposed to activities whose impacts can 
be temporary, as is sometimes the case for water diversions.
     A scarcity of data on impacts of take should be handled by 
assuming a worst case-scenario in determining whether approval criteria 
have been satisfied.
     For large HCPs covering vast expanses of land, take needs 
to be quantitatively assessed.
     Where there is a scarcity of information to validate the 
effectiveness of mitigation, mitigation measures should be implemented 
and assessed before take occurs. This could become an explicit approval 
criteria for HCPs.
     Monitoring needs to be very well designed in those cases 
where mitigation is unproven.
     Adaptive management needs to be a part of every HCP judged 
to be predicated on substantial data shortages, not just to deal with 
``unforeseen circumstances''.
    When faced with data shortages, there needs to be explicit measures 
for using the information from monitoring to alter management 
procedures. This means that a precise trigger for ``mitigation 
failures'' needs to be spelled out, as well as procedures for adjusting 
management when that signal of ``failure'' has been received. The key 
point here is that the mere existence of monitoring is not a solution 
to data shortage there also has to be a quantitative decision-process 
that links monitoring data to adjustments in management.
    In sum, where critical information is scarce or uncertain, the 
resulting plans should:
     be shorter in duration
     cover a smaller area
     avoid irreversible impacts
     require that mitigation measures be accomplished before 
take is allowed
     include contingencies
     have adequate monitoring
Recommendation No. 4.--Regulatory assurances should be compatible with 
        adaptive management and commensurate with an HCP's conservation 
        performance
    In HCP negotiations, the landowners typically want regulatory 
assurances that tend to shift the risks associated with complex 
biophysical systems to the species, which can ill afford them. The 
permit applicant wants to be absolved of further responsibility for the 
conservation of the species in exchange for the development concessions 
he/she makes in the HCP, irrespective of the future population trends 
for the covered species. That is what is effectively conferred by the 
``No Surprises'' guarantee.
    But biological systems are inherently fraught with uncertainty. 
They are not only more complex than we know; they are inherently more 
complex than we can know, in the words of one eminent workshop 
participant. Adaptive management responds to this reality. Under 
adaptive management, HCPs are acknowledged to be mere working 
hypotheses, predicated upon assumptions about how species and their 
ecological processes and functions respond to changes in habitat size, 
location, configuration, quality, etc. Under adaptive management, these 
assumptions, uncertainties, and knowledge gaps are made explicit, and 
the conservation strategy includes a directed and funded program of 
hypothesis testing against specified and measurable performance goals, 
monitoring and, most important of all, adaptations of the initial 
conservation strategy in response to the results.
    Adaptive management will also require a fundamental change in the 
way the regulatory assurances are structured, so that HCPs remain 
flexible and contingent, rather than immutable, as they are now. One 
solution lies in converting the assurance package from regulatory 
immunity to regulatory indemnity. That means that if adaptive 
management indicates that the species' prospects would be better served 
by additional restrictions on the use of land or other mitigations, 
those could be accomplished without the consent of the landowner, but 
also without economic penalty to the landowner. The biological risks 
would, in effect, be absorbed by a compensation fund.
    An analog to this is an insurance arrangement under which the issue 
of who shoulders the risks associated with HCPs converts to the issue 
of who funds the indemnity pool, and how the decisions on compensation 
will be made. The regulatory compensation could be funded from 
``premiums'' contributed by the beneficiaries, which include the HCP 
applicants as well as the taxpayer. There is also the potential to fund 
a portion of the compensation pool through reductions in the cost of 
debt service for covered development projects. An indemnity arrangement 
does reduce the risks to development under the ESA. Some share, perhaps 
most, would also need to be absorbed by the public. This is beginning 
to happen in the aquatic arena.\4\
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    \4\ Solving the issue of how to determine compensable loss in a 
manner that satisfies the private rightsholders is trickier in the 
terrestrial HCP context than in the aquatic HCP context (where lost 
water supply reliability is both relatively easy to measure and to 
compensate). Higher conservation objectives may require higher 
incentives.
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    Regulatory assurances should not be automatic. Rather, the Services 
can and should calibrate the regulatory assurance conferred (e.g., the 
scope or the duration) to the assurance of conservation performance 
provided by the HCP. Plans that contribute to recovery would get longer 
guarantees than those that simply maintain the current population level 
or allow some decrease. Similarly, plans where the underlying data and 
analysis are judged highly adequate, via objective, definable 
standards, would be entitled to longer-term guarantees.
    A recommended approach is to negotiate as a term of the HCP the 
circumstances that would trigger a requirement for changes in the HCP, 
the type of changes that could be required, the responsibility for 
implementing those changes and the contingencies that must be left open 
in the development plan to allow these changes to be made.
    Stronger, more complete, or longer term assurances might be 
reserved for HCPs that have the following features:
    1. plan-specified performance goals;
    2. an effective monitoring program;
    3. an adaptive management element which identifies the significant 
risks of the HCP not achieving the performance goals, a contingency 
plan that is triggered in that event, and a commitment of funds to 
carry out this element;
    4. a commitment by the parties to effective enforcement of the HCP 
terms; and
    5. third party enforcement provisions, should the commitment to 
abide by the terms of the HCP as described above fail.
Recommendation No. 5.--The Services should make every effort to 
        encourage direct public participation beyond the minimum 
        legally required.
    Public participation in the development of an HCP can enhance the 
quality of information on which HCP decisions are based, improve 
understanding and relationships among HCP stakeholders, heighten public 
and political support for an HCP, and enhance the long-term viability 
of an HCP. The public has a significant stake in the HCP process 
because wildlife is a public resource, both legally and politically. 
And, whatever conservation responsibilities or risks are not borne by 
and ITP applicant will be shifted to other landowners or the public 
lands, usually at public expense.
    A recent study by the University of Michigan revealed that the 
degree of public acceptance of an HCP is strongly related to the degree 
of public participation in the development of that plan. The more that 
interested parties are accorded a role in developing conservation 
plans, rather than merely commenting on completed plans--the more 
satisfied they tend to be with an HCP.
    The timing and short duration of the comment periods for HCP 
documents under NEPA and the ESA limit meaningful public involvement. 
Currently, HCP scoping occurs early in plan development while the 
project is poorly defined. The next commenting opportunity usually 
comes at the end, when most decisions are already locked in. At that 
point, there are no incentives to renegotiate these provisions to 
incorporate changes requested by the public even if the public provides 
significant new information. And, then, the comment periods tend to be 
too short for interested citizens to master the details of a given plan 
and compose and submit comments. The workshop determined that if the 
Services invited the public to comment on important issues as they 
arose or at ``trigger points'' throughout the planning process, the 
public would not be confined to participating only in the very early 
stages of embryonic plans, or after the key HCP provisions have already 
been negotiated.
    Another way to expand public involvement has already been 
mentioned. That is the workshop's overarching recommendation to rescale 
habitat conservation planning and involve local land use agencies. 
Public access and effective participation in the development of the 
conservation ``deal'' would be greatly enhanced where the HCP applicant 
is or includes units of local or State government. Local or State 
governmental agencies are likely to involve the public in much the same 
way the public participates in local land use decisions. This can occur 
because State laws often provide for open hearings and easy access to 
public documents. This allows citizens to directly address and interact 
with public officials in HCP development and implementation. This 
element supplements and often exceeds the minimal Federal requirements 
for notice and comment under NEPA.
    Fundamentally, the problem with public access to the process is 
that the Services have delegated the ``gatekeeper'' role to the permit 
applicant. The applicant exercises sole discretion as to who will and 
who will not be given a seat at the negotiating table. This reflects 
the Services' mistaken notion that an HCP is just a permit application 
over which the applicant should exercise final substantive control. But 
an HCP is much more than an application. It is for all intents and 
purposes a negotiated settlement of the terms and conditions under 
which a discretionary permit will be issued to engage in otherwise 
forbidden acts, namely the taking of protected species. An HCP is not 
just the applicant's work product. It is a compromise jointly produced 
by all parties to the HCP negotiations. Once its terms are approved by 
the Services, the ``incidental take permit'' or ``implementation 
agreement'' is largely a formality.
    Functionally, the approved HCP is the permit to take protected 
species. As such, the process through which it is formulated, issued 
and approved should be as open to interested members of the public as 
is the issuance of land use permits in other contexts. For example, 
when the Department of Interior grants grazing permits under the 
Federal Land Policy and Management Act, it allows for public 
participation so that all parties affected by the process will be fully 
represented.\5\ NPDES permits and local building permits are similarly 
public processes. Those permit applicants are not allowed to control 
who can and who cannot participate in the permitting process. Likewise, 
the Services, not the applicants should determine who gets a seat at 
the HCP negotiation table.
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    \5\ Other Federal statutes allow stakeholders to help shape natural 
resource use and protection. The EPA convenes interested stakeholders 
in setting Federal water quality standards, and NMFS itself employs 
stakeholder groups under the Marine Mammal Protection Act in its 
efforts to reduce the harm commercial fishing has on imperiled fish 
species. Nothing in the ESA precludes the Services from employing 
similar measures to involve the public in the HCP context.
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    The issue of who sits at the table is crucial to the quality and 
acceptability of HCPs and the process itself. Upgrading the independent 
scientific bases for HCPs cannot be done solely after the fact, in the 
form of peer review. By then, the fundamental decisions regarding the 
design of the conservation strategy, the monitoring program, and the 
adaptive management arrangement will already have been settled in the 
negotiation process. If the science underlying HCPs needs to be 
improved--and most commentators believe that to be the case--this must 
be done by bringing these experts directly into the negotiations at the 
earliest stages. The current arrangement assumes that the agencies and 
applicants alone can be relied upon to marshal the needed expertise. 
But, in fact, the Services' internal expertise is spread very thin 
where literally hundreds of HCPs are in development simultaneously, and 
the applicant's experts may appear to be influenced by the 
understandable desire to minimize the costs of conservation measures.
    This is not to say that in acting as gatekeepers the Services must 
admit to the table everyone who knocks on the door. Demonstrated 
ability to contribute substantively to the issues on the table without 
undue delay may be made the price of admission. We simply urge that the 
Services themselves assume the role of making these decisions and not 
leave them to the permit applicant. Native fish and wildlife are public 
resources under both State and Federal jurisprudence, wherever they may 
be found. It is fundamentally wrong to treat permits to take endangered 
species on private lands as though the public does not have an interest 
in the substantive validity of the negotiated terms and conditions.
Recommendation No. 6.--Independent scientists and scientific 
        information should be used to strengthen HCPs.
    Whether the conservation strategy adopted in an HCP is adequate to 
meet the biological goals requires the exercise of professional 
judgment and discretion. It is essential that these be specified 
explicitly and correctly. Even apart from the influence of economics 
and politics on these judgments, there may be a spectrum of responsible 
opinions among scientists and agency officials as to whether thresholds 
of data adequacy or standards for plan approval have been met. There 
are few bright lines and courts are ill equipped to arbitrate such 
technical disputes. We need an HCP process that reliably attains the 
biodiversity conservation objectives of the ESA (survival and recovery) 
in spite of potential differences in responsible scientific judgment. 
Independent scientific review may help fulfill that role.
    Scientific review is also important because decisions on 
conservation strategy made apart from the view of the scientific 
community and the public will not have the credibility that HCPs need. 
The Service negotiators also need the reinforcement that independent 
science can provide. Outside scientific scrutiny imposes a standard of 
scientific excellence that is difficult to counteract. The Services 
have the responsibility of ensuring that applicants use adequate 
scientific information to develop HCPs. Conservation and permitting 
decisions made without a clear, factual basis and a demonstrable link 
to information will not result in credible and legally sustainable 
HCPs. Independent scientific involvement can reinforce the Services' 
decisions if conducted and managed properly. One way to approach this 
would be to enlist independent scientists in the development of general 
scientific principles or guidance for species or habitats on which HCPs 
can then be based, such as the regional conservation guidelines for 
coastal sage scrub in Southern California.\6\
---------------------------------------------------------------------------
    \6\ A qualified independent reviewer is one who: (1) has little 
personal stake in the nature of the outcome of decisions or policies, 
in terms of financial gain or loss, career advancement, or personal or 
professional relationships; (2) can perform the review tasks free of 
intimidation or forceful persuasion by others associated with the 
decision process; (3) has demonstrated competence in the subject as 
evidenced by formal training or experience; (4) is willing to use her 
or his scientific expertise to reach objective conclusions that may be 
discordant with her or his value systems or personal biases; and (5) is 
willing and able to help identify internal and external costs and 
benefits--both social and ecological--of alternative decisions. 
Typically such a person is associated with a recognized scientific 
society or is otherwise an established professional in a particular 
field.
---------------------------------------------------------------------------
    The timing of scientific input is critical for shaping HCPs. It is 
important to get scientists involved as ``scientists,'' providing data 
and analyses, not just as reviewers, reacting to someone else's data 
and analyses. The input must come at the formative stage when ``first 
principles'' of the application of conservation science are being 
established for the reserve design or other conservation strategy. 
These decisions are made as the HCP is negotiated, not at the stage 
where the Service issues the incidental take permit. At present, HCP 
applicants control access to the negotiations. The Services accord them 
this discretion because they view HCPs as applications for a regulatory 
permit, and therefore as the applicant's workproducts. But HCPs are 
really negotiated settlements of regulatory liabilities, not just 
applications for permits. The governmental action takes place in these 
negotiations. Permit issuance is a mere formality.
    One way to interject independent science into HCPs is to bring 
independent qualified experts into the negotiations directly under the 
sponsorship of the local communities or interested conservation 
organizations. However, these potential participants often do not have 
access to such expertise or the means to procure it. An ``HCP Resource 
Center'' comprised of a nationwide network of conservation scientists, 
resource economists and legal experts with negotiation skills could 
meet this need. It could allow tailored expertise to be deployed to 
engage directly and effectively with the agency and applicant's team of 
negotiators. This will not be easy to do. Cost is not the only barrier 
to incorporating independent science. For most species, the pool of 
scientific expertise will be very small.
                                 ______
                                 
                 [From the Natural Heritage Institute]
           Where Property Rights and Biodiversity Converge: 
        Lessons from Experience in Habitat Conservation Planning
                    (Submitted by Gregory A. Thomas)
                              introduction
The Conflict between Biodiversity Protection and Private Property 
        Rights
    Harvard professor Edward O. Wilson predicts that at current 
extinction rates, our world could lose, forever, a fifth or more of its 
plant and animal species by the year 2020. \1\ That is 1,000 to 10,000 
times the natural extinction rate. The consequences are real: for 
example, in the United States, 16 percent of mammals, 14 percent of 
birds, and an alarming 37 percent of freshwater fishes are either 
extinct, imperiled or vulnerable. \2\ Each of these species is a unique 
adaptive experiment never to be repeated while this planet endures, a 
once-only chemical laboratory, a bit of wonder and learning never again 
to emerge. We are, in effect, throwing away the science books before 
they can be written. The overwhelming cause is loss of habitat.
---------------------------------------------------------------------------
    \1\  Edward O. Wilson. The Diversity of Life. W.W. Norton & Co., 
New York. 346 (1992).
    \2\ The Nature Conservancy. 1997 Species Report Card: The State of 
U.S. Plants and Animals 10-11 (1997).
---------------------------------------------------------------------------
    The overarching goal of the Federal Endangered Species Act (ESA) is 
to conserve species and the ecosystems upon which they depend. \3\ For 
a quarter century, the ESA has served as the safety net between peril 
and extinction for the thousands of species that have been listed for 
protection. However, during that time, the ESA has not kept pace with 
the emerging biodiversity crisis. \4\ In the years since the Act's 
passage, only a handful of species of have been delisted, signaling the 
recovery of the species to a stable population level. \5\ Less than a 
tenth of all listed species are actually improving in status, while 
nearly four times that number is declining. \6\
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    \3\ 16 U.S.C. Sec. 1531(b).
    \4\ Biodiversity is a shorthand expression for the ``full richness 
of life on earth,'' and encompasses at least three levels of diversity: 
genetic diversity, species diversity, and community or ecosystem 
diversity. Noss, R.F., & A. Cooperrider, Saving Nature's Legacy: 
Protecting and Restoring Biodiversity. Defenders of Wildlife and Island 
Press, Washington DC. 3-13 (1994).
    \5\ Flaws in the ESA significantly contribute to its 
ineffectiveness in conserving biodiversity. Rohlf, Daniel J. Six 
Biological Reasons Why the Endangered Species Act Doesn't Work--And 
What To Do About It. 5 Conservation Biology 273, 274 (1991).
    \6\ U.S. Fish and Wildlife Service. Report to Congress: Recovery 
Program, Endangered and Threatened Species. Washington, D.C. (1994) as 
quoted in Environmental Defense Fund. Rebuilding the Ark: Toward a More 
Effective Endangered Species Act for Private Land 1 (1996).
---------------------------------------------------------------------------
    Among the daunting challenges that conservationists will face in 
the next era of biodiversity protection, the potential conflict between 
private property rights and the public interest in preserving 
biodiversity is posed to become an increasingly contentious issue. 
According to the U.S. Fish and Wildlife Service, half of all federally 
listed species do not occur on Federal lands, and more than half of 
listed species have at least 80 percent of their habitat on nonFederal 
land. \7\ The only hope for preserving species over time is by 
maintaining or restoring viable populations of species that are 
adequately distributed in healthy ecosystems. \8\ Yet, for those 
species whose habitat is mainly or exclusively on private lands, intact 
ecosystems are increasingly rare.
---------------------------------------------------------------------------
    \7\ Defenders of Wildlife. Frayed Safety Nets: Conservation 
Planning Under the Endangered Species Act 1 (1998).
    \8\ Cheever, Federico. The Road to Recovery: A New Way of Thinking 
About the Endangered Species Act. 23 Ecology Law Quarterly 1, 4 (1996).
---------------------------------------------------------------------------
    The potential conflict between habitat conservation and private 
development rights has several dimensions. There is a practical 
consideration: Because property rights include the right to restrict 
access, destruction of habitat--even if illegal--is difficult to 
monitor and enforce. There is a federalism consideration: Land (and 
water) use planning has long been regarded as the province of local 
units of government rather than the national government which 
administers the ESA. And there is an equity consideration: Where other 
areas of environmental protection require those who cause the problem 
to pay for the solution, endangered habitat protection visits the 
conservation burden on the hapless few who happen to own the remnant 
tracts while those who have destroyed the original habitat are by that 
very act immune to regulation. For all of these reasons, conservation 
of habitats subject to private rights requires a degree of cooperation 
by those property owners, which is uncommon in the field of 
environmental law.
Habitat Conservation Plans: A Possible Solution
    When it was enacted in 1973, the ESA simply prohibited any ``take'' 
of endangered species, and that prohibition has since been extended by 
the U.S. Supreme Court to include destruction of a species' critical 
habitat. \9\ However, an absolute ban on the development of endangered 
species habitat proved unworkable. ``Habitat conservation plans'' 
(HCPs) are Congress' solution. The Act was amended in 1982 to authorize 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service (the ``Services'') to permit take incidental to development 
when approved as part of a habitat conservation plan prepared by the 
land or water rights holder. \10\ These HCPs are essentially negotiated 
settlements of regulatory liabilities, designed to foster economic 
development free of the risks associated with the occurrence of 
endangered species on private lands. HCPs must include species 
conservation and mitigation measures sufficient for the Services to 
find that the take will not appreciably reduce the likelihood of 
survival or recovery of the species. \11\ The landowner then receives 
an assurance--called the ``No Surprises'' guarantee--that the Services 
will not increase the conservation measures or other requirements 
without the landowner's consent, no matter how successful or 
unsuccessful these may ultimately prove to be. The No Surprises 
arrangement has ignited a veritable explosion in HCPs. As of this 
writing, some 400 such plans are in various stages of development, 
approval or implementation nationwide.
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    \9\ Babbitt v. Sweet Home Chapter of Communities, 115 S.Ct. 2407 
(1995).
    \10\ 16 U.S.C. Sec. 1539.
    \11\ According to the ESA, the Services are required to base 
approval of an HCP on whether:
      (1) the taking will be incidental to the carrying out of an 
otherwise lawful activity;
      (2) the impacts of the taking will be minimized and mitigated to 
the maximum extent practicable;
      (3) the applicant will ensure that adequate funding for the plan 
will be provided;
      (4) the taking will not appreciably reduce the likelihood of 
survival and recovery of the species in the wild, and;
      (5) the landowner agrees to include other measures that the 
Services may require.
    16 U.S.C. Sec. 1539(a)(2)(B).
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Controversial Features and Imperatives for Reform
    Several features of HCPs have stirred controversy. First, HCPs 
allow the Services to permit development activities that will have some 
measure of adverse impact species and habitats that are already 
severely depleted, as long as these activities do not appreciably 
reduce the prospects for the survival and recovery of the species. What 
these species need, however, is a net improvement in their survival 
prospects. They need a recovery strategy. Indications of this mismatch 
between statutory and conservation requirements can be seen on the 
ground: 62 percent of listed species are declining in areas where they 
are covered by an HCP and 4 percent of these species are declining so 
rapidly that extinction is possible within the next 20 years. \12\ As 
long as HCPs are seen as instruments to ``nickel-and-dime'' species 
toward extinction, the HCP process will never be satisfactory to 
conservation interests, just as it will never be satisfactory to 
private rights holders as long as habitat conservation represents a 
permanent cloud over the exercise of development rights.
---------------------------------------------------------------------------
    \12\ Kareiva, Peter, et al. Using Science in Habitat Conservation 
Plans. National Center for Ecological Analysis and Synthesis (NCEAS), 
Univ. of California, Santa Barbara, and American Institute of 
Biological Sciences, Washington, D.C. (1999) (hereinafter cited as 
``NCEAS'').
---------------------------------------------------------------------------
    Second, the ``No Surprises'' regulatory assurance provides 
landowners with important incentives to participate in the development 
and implementation of HCPs. But it does so by shifting to the 
vulnerable species the risks incident to incomplete and uncertain 
understanding of how abundance levels will respond to particular 
conservation strategies. Neither investments in private development nor 
the survival of species are secure under this arrangement. The 
regulatory exemption is a gamble because HCPs tend to freight more on 
the current state of conservation science than it can deliver. 
Ecological dynamics are inherently fraught with uncertainty, and often 
there is no certain answer to the key questions that are posed in an 
HCPs. As three respected experts have stated, ``Biological systems are 
not only more complex than we know; they are inherently more complex 
than we can know.'' \13\ For many years, the dominant scientific 
paradigm assumed that ecosystems were stable, closed, internally 
regulated and behaved in a deterministic manner. However, the modern 
understanding is that ecosystems are in a constant state of flux, 
usually without long-term stability, affected by a series of human and 
other, often stochastic factors, many originating outside the 
ecosystems themselves. \14\ Biologists worry that the ``No Surprises'' 
guarantee does not take into account this new understanding. As 150 
prominent conservation scientists stated to the U.S. Congress, 
assurances to landowners that the conservation obligations in their HCP 
will remain immutable ``does not reflect ecological reality and rejects 
the best scientific judgment of our era. It proposes a world of 
certainty that does not, has not, and will never exist.'' \15\ Should 
the rigidity of the ``No Surprises'' guarantee so hobble the ability of 
the Services to take action that a listed species is extirpated, this 
entire artifice is likely to crash in the political firestorm that 
would ensue.
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    \13\ Noss, Reed; Michael A. O'Connell, & Dennis Murphy. The Science 
of Conservation Planning: Habitat Conservation Under the Endangered 
Species Act 76. Island Press: Washington, D.C. (1997).
    \14\ Williams, John G. Notes on Adaptive Management, Prepared for 
the Ag-Urban Ecosystem Restoration Team 3, reprinted in Comments Of The 
Natural Heritage Institute Regarding The CALFED Bay-Delta Program Draft 
Ecosystem Restoration Plan (Nov. 1997).
    \15\ Meffe, Gary K, and 78 other scientists. Letter to U.S. Senator 
John Chafee and Congressman James Saxton (July 23, 1996).
---------------------------------------------------------------------------
    Finally, conservation interests and local communities are often 
excluded from the balancing of biodiversity protection and local 
economic development that occurs in the HCP negotiations. As a 
consequence, the process often does not garner the support of these 
interests or generate confidence in the scientific bases of the 
resulting conservation program.
    Yet, some vehicle is needed to conserve habitats affected by 
development rights on lands and waters beyond the Federal domain. In 
order to be effective, the tool must provide incentives for private 
rights holders to work with regulatory agencies. The challenge is to 
set up a conservation arrangement that truly advances the survival and 
ultimate recovery of the species while limiting the financial burdens 
and biological risks imposed on private enterprises.
Guidelines for HCP Reform
    Nearly 250 HCPs are now in operation with another batch of similar 
size in gestation. There can be no clearer guide to what is working and 
what is not in HCPs than a critical, empirical review of the 
performance of these plans against the goals of the national endangered 
species program. This paper synthesizes the several empirically based 
performance reviews that have been conducted by academic researchers, 
conservationists and practicing conservation biologists. It also 
reflects scholarly analyses by a wide range of commentators and the 
findings and conclusions of a structured workshop of many of these 
performance reviewers. \16\ The objective of this paper is to distill 
from these sources the essential factors that explain why the HCP 
process has failed to recover vulnerable and depleted species over the 
past 15 years and what can be done to improve the performance of this 
conservation tool. This evaluation necessarily considers the regulatory 
and economic environment in which HCPs operate. \17\
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    \16\ The workshop was convened by the Natural Heritage Institute in 
San Francisco in June 1998, and included representatives of an eight-
campus study by the American Institute of Biological Science (AIBS) and 
the National Center for Ecological Analysis and Synthesis (NCEAS), 
several of the most prominent conservation biologists that have been 
involved in crafting HCPs, and the following conservation organizations 
and university faculties:
      Defenders of Wildlife, University of California at Santa Barbara
      Environmental Defense Fund, University of Denver
      Lewis and Clark College, University of Michigan
      National Wildlife Federation, University of Tennessee
      The Nature Conservancy, University of Washington
      Pacific Rivers Council, Western Ancient Forest Campaign, 
University of California at Berkeley
    The workshop findings and recommendations reflected herein 
subsequently received the peer review and concurrence of Dr. Gary Meffe 
of the Journal of Conservation Biology and Dr. Reed Noss of the 
Conservation Biology Institute. Natural Heritage Institute. A Summary 
of Key Findings and Conclusions of the Participants of the Workshop--
Optimizing Habitat Conservation Planning for Non-Federal Lands and 
Waters: Harvesting Performance Reviews to Chart a Course for 
Improvement 13 (June 1998) (hereinafter cited as ``Workshop Findings & 
Conclusions'').
    \17\ Admittedly, the resulting portrait of how to improve habitat 
conservation planning is somewhat idealized in that it is unalloyed by 
the practical realities that drive the process from the viewpoint of 
the actual negotiators--the Services, HCP applicants and, to a lesser 
extent, units of local government that have been involved. These 
perspectives are also valid and important.
---------------------------------------------------------------------------
    The performance reviews inspire confidence that we can do better in 
the future than in the past--if only we are willing to learn as we go. 
That requires grafting onto the ESA the emerging principals of 
conservation biology, which have matured greatly since it was enacted a 
quarter century ago. Simultaneously, we must find a way to satisfy the 
legitimate expectations of the nonFederal property interests that they 
will not be required to shoulder the entire expense of protecting 
depleted species on the grounds that wildlife conservation benefits the 
public of today and tomorrow.
    This paper will present the major conclusions from these 
performance reviews and the recommendations for reform, which emerge 
from them.
  recommendations for improvement: hcps must be developed within the 
           context of landscape-scale conservation strategies
The Choice of Planning Scales
    Habitat conservation plans are the vehicle through which developers 
of non-Federal lands and waters obtain permits from the Federal 
Government for activities that may adversely impact endangered species 
habitat. As such, individual property owners have historically prepared 
these plans to cover activities within their parcel that will effect 
one or more listed species found thereon. The sizes of these land or 
water right-specific HCPs are extraordinarily diverse, spanning six 
orders of magnitude. The smallest approved plan protects the Florida 
scrub jay on just 0.4 acres. The largest plan to date covers over 1.6 
million acres of forest managed by the Washington Department of Natural 
Resources. Despite this extraordinary range of sizes, most HCPs are 
relatively small. The medium size is less than 24 acres, and 74 percent 
of HCPs cover fewer than 240 acres. \18\ The Services encourage a 
planning area that is as comprehensive as is feasible and that 
encompasses the applicant's entire area of activity. The Services also 
seek HCP boundaries that are exact enough to avoid future uncertainty 
about where permittees have responsibility under the HCP. \19\ In 
general, the Services find that bigger is better. Neither the ESA nor 
its regulations limit the size of an HCP.
---------------------------------------------------------------------------
    \18\ The duration of HCPs is also diverse. The length of time that 
an HCP is to be maintained is tied to the duration of the ITP for which 
the plan was developed. Plan duration ranges from 7 months for a plan 
in Travis County, Texas, to 100 years for an HCP implemented by Murray 
Pacific Company in Washington. Two plans, developed for private 
properties in Texas, are to be maintained in perpetuity. Excluding 
those two plans, the median duration of HCPs is 10 years, and 60 
percent of HCPs will be maintained for 20 or fewer years. Over time, 
the duration of approved HCPs has exhibited no significant directional 
trend. NCEAS, supra note 12, pp. 14-15.
    \19\ U.S. Fish & Wildlife Service and National Marine Fisheries 
Service. Endangered Species: Habitat Conservation Planning Handbook 3-
11 (1996) (hereinafter cited as ``FWS & NMFS'').
---------------------------------------------------------------------------
    Although the fundamental purpose of biodiversity conservation is 
the protection of ecosystems, the ESA's regulatory mechanisms are 
species-specific and are only triggered by the listing of individual 
species. \20\ Conservation biologists argue that the single-species 
focus of the [ESA] has not been especially successful in protecting 
functioning ecosystems and is imprudent because species do not exist 
independently from one another and the broader landscape context. \21\ 
Because the needs of species are ``specific'', single-species plans for 
the same area can conflict if not closely coordinated. The extent to 
which HCPs take into account multiple species and the ecosystem as a 
whole is important to their ultimate success. \22\
---------------------------------------------------------------------------
    \20\ For example, the obligations of Federal agencies under 
Sections 7(a)(1) and 7(a)(2) of the ESA are not triggered until a 
species is listed; similarly, the ban on takings in Section 9 does not 
apply until a species is listed. Section 10 fails to encourage 
development of HCPs that protect multiple species unless all species 
under a plan are listed. Thornton, Robert D. Searching for consensus 
and predictability: Habitat conservation planning under the Endangered 
Species Act of 1973. 21 Environmental Law 605, 642 (1991).
    \21\ Noss, et al., supra note 13, pg. 127.
    \22\ Ibid.
---------------------------------------------------------------------------
    Only recently has multi-parcel, multi-species habitat conservation 
planning emerged. Units of local government generally conduct these 
plans, covering a community of both currently listed and potentially 
listable species. Multi-species, multi-parcel conservation planning is 
a promising evolutionary step, for reasons discussed in subsequent 
sections of this paper. Yet, the Services are concerned that attempts 
to cover many land uses or species in a single plan can be frustrated 
by gaps in biological information and lack of consensus among HCP 
participants. \23\ Indeed, the empirical reviews do not support the 
notion that larger plans are better plans. Neither the HCPs covering 
very large areas nor those covering very small areas perform best. \24\ 
Instead, the intermediate-sized planning areas have produced the best 
plans. It seems that planning at a small scale is impaired by limited 
resources to conduct careful analyses of the impacts of development 
(particularly cumulative impacts) or of conservation alternatives. 
Conversely, very large HCPs also appear to result in relatively poor 
analyses, probably due to the difficulty of forecasting impacts and 
planning mitigation and monitoring over very large areas.
---------------------------------------------------------------------------
    \23\ Id.
    \24\ NCEAS, supra note 12, pg. 29.
---------------------------------------------------------------------------
The Preference for Bio-Regional Planning
    Consensus is emerging among conservation scientists and 
commentators that the optimal planning unit for habitat conservation is 
not the individual land holding or water diversion, and the optimal 
focus is not individual listed species. Rather, there are benefits for 
both ecosystems and property rights holders when planning is conducted 
at a landscape scale, where habitat conservation strategies are 
developed for a ``bioregion'' covering entire ecosystems and their 
communities of species. \25\ Furthermore, there is indirect evidence 
that multi-species plans are scientifically superior to single-species 
plans, especially with respect to mitigation and monitoring. \26\
---------------------------------------------------------------------------
    \25\ All HCPs affect multiple species, whether they result in 
incidental take permits for multiple species or not. Defenders of 
Wildlife, supra note 7, pg. 20.
    \26\ NCEAS, supra note 12, pp. 36-38.
---------------------------------------------------------------------------
    At the landscape scale of planning, conservation measures for 
ecosystems and their species are more likely to be effective and the 
conservation responsibilities are more likely to be properly allocated 
among both public and private property rights holders. Currently the 
burden of protecting biodiversity on nonFederal lands and waters falls 
on the owners of the remaining undeveloped habitat, even though the 
species at issue became endangered due to consumption decisions made by 
society as a whole. \27\ Landscape-scale planning provides a mechanism 
for the public to shoulder some of the burden of conservation. Thus, 
rights holders and protected species can both benefit from landscape-
scale planning.
---------------------------------------------------------------------------
    \27\ Thornton, Robert D. The No Surprises Policy is Essential to 
Attract Private Dollars for the Protection of Biodiversity. Endangered 
Species Update: Habitat Conservation Planning 65 University of Michigan 
(July/Aug. 1997).
---------------------------------------------------------------------------
    Rescaling conservation planning and permitting in this manner can 
address many of the perceived problems with HCPs. Potential advantages 
of landscape-scale, multi-party HCPs include the following points 
identified by experts in the June 1998 workshop:
    (1) Providing a biological basis for allocating responsibility 
among rights holders. Landscape scale planning can specify the overall 
conservation effort that is needed to protect communities of species, 
thereby providing a basis for determining what share of the burden an 
individual property owner should bear in an HCP. Currently, the ESA 
affords no mechanism for allocating the conservation burden between 
multiple private landowners or between private rights holders and 
public lands. Instead, the burden is allocated in a piecemeal fashion 
through the approval of HCPs, Section 7 consultations, and public land 
management planning and permitting. In theory, those who get their 
approvals earliest get the best deal, with larger burdens reserved for 
latecomers.
    (2) Fostering species recovery. At the landscape scale, it is 
possible to calibrate habitat conservation planning to the objective of 
recovering the listed species and preventing harm to other vulnerable 
species. The only biologically defensible aiming point for habitat 
conservation planning is a net improvement in the prospects for 
survival for listed species and prevention of further declines in 
unlisted species. This objective is harder to advance at the level of 
landholding-specific HCPs, which tend to aim for mitigation or, at 
best, avoidance of impacts on listed species.
    (3) Promoting economies of scale. Since good science is expensive, 
gathering and interpreting the necessary data can be an onerous burden 
for individual rights holders seeking development permits. Rescaling 
shifts an appreciable degree of this burden from individual property 
owners applying for incidental take permits to the public agencies and 
the broader constellation of rights holders that have interests and 
responsibilities in the eco-region.
    (4) Facilitating adaptive management. Because adaptive management 
requires that some part of the development plan covered by an HCP 
remain contingent, it is more feasible to engage in adaptive management 
at the landscape scale. While adaptive management is feasible for 
smaller plans as well, it is facilitated and made more effective with a 
larger planning scale.
    (5) Strengthening public participation. The degree and quality of 
public participation is generally higher with a broader scale of 
planning that includes multiple parties. This correlation is especially 
evident if a unit of local government mediates the HCP process by 
applying for the Federal permit and then issuing sub-permits to 
individual landholders. Such local agencies routinely include the 
public in similar land use planning processes. By contrast, case 
studies show that public participation has not been superior in cases 
where a single landowner prepares a large landscape-scale HCP, as is 
exemplified by many HCPs developed by timber companies.
    The idea that landholding-specific or water right-specific 
conservation requirements should be determined by reference to broader 
conservation objectives is hardly radical. It is rather analogous to 
the way permits are issued for new major emitting facilities within 
airsheds that are already violating national ambient air quality 
standards. A zero growth policy is unacceptable, yet growth cannot be 
allowed to occur at the expense of exacerbating pollution levels that 
are already harmful to human health. The solution under the Clean Air 
Act is to condition permits for such new facilities upon achieving a 
net reduction in emissions of the subject pollutants. Similarly, in the 
water pollution field, discharger-specific effluent allowances are 
determined by reference to basin-wide water quality criteria. In the 
biodiversity arena, new incursions on critical habitat should be 
subject to a similar condition of achieving a net contribution to the 
landscape scale objective of recovery of the imperiled species.
    Individual HCPs should be designed to contribute to the achievement 
of a bioregional conservation strategy that aims for long-term, 
sustainable conservation. Reaching this goal may entail more rigorous 
activities than simply avoiding or minimizing impacts on the subject 
landholding. In some cases, offsite mitigation may be required to 
reduce the threat to the species, which can often best be accomplished 
by requiring contributions to a mitigation fund as a condition of 
permit issuance. \28\
---------------------------------------------------------------------------
    \28\ Mitigation funds can be used to purchase the highest quality 
habitats to prevent their development. A development exaction of this 
sort is often best administered by local agencies of government that 
are charged with regional land use planning, an additional reason to 
utilize local jurisdictions as the vehicle for bioregional habitat 
conservation planning. However, since bio-regions often cross local 
(e.g., county and even state) jurisdictional boundaries, coordination 
by a higher-level jurisdiction may be necessary.
---------------------------------------------------------------------------
    If landscape-scale planning offers superior prospects for species 
conservation and, ultimately recovery, then it is necessary to ask what 
kinds of incentives, inducements and cost-sharing arrangements will 
encourage the development of HCPs at this level. Part of the answer 
lies in reallocating a portion of the habitat conservation burden that 
now falls to private rights holders onto the Federal land and water 
managers. Under a landscape-scale approach to conservation, Federal 
agencies that manage public lands and waters (and their commodity 
users) may shoulder a larger share of the conservation burden and may 
be held to the higher standard of recovery of the protected species. If 
private lands are managed to the ESA's ``jeopardy'' standard, \29\ 
there is no margin of safety left for vulnerable species. It is 
especially critical that Federal resource managers undertake a ``fair 
share'' of the conservation burden in areas within a matrix of Federal 
and private lands, for example, lands included in the checkerboard 
pattern of private and Federal land found in many western states.
---------------------------------------------------------------------------
    \29\ The jeopardy standard means avoiding actions that could 
directly or indirectly reduce the likelihood that a species will 
survive and recover in the wild. 50 C.F.R. Sec. 404.02.
---------------------------------------------------------------------------
Recovery Plans as Vehicles for Bio-Regional Planning
    One potential vehicle for landscape scale planning could be the 
recovery plans that the Services are required to develop for listed 
species. Recovery plans can provide much-needed scientific background 
on a species as well as an ecosystemic context for the activities 
proposed under a landholding-specific HCP. \30\ Studies show that, when 
recovery plans exist, HCPs do rely on them extensively. In several 
cases, HCPs have borrowed language and specific mitigation techniques 
directly from recovery plans. \31\ However, there are several problems 
with using recovery plans as a basis for the development of HCPs:
---------------------------------------------------------------------------
    \30\ NCEAS, supra note 12, pg. 33 citing FWS & NMFS, supra note 19.
    \31\ NCEAS, supra note 12, pp. 35-36.
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     Recovery plans currently lag years behind the listing of a 
species. The Services have completed recovery plans for only 40 percent 
of listed species. \32\ And, the Services are not authorized to 
disapprove a proposed HCP because a recovery plan for the covered 
species is in not place. \33\
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    \32\ As of January, 1997, FWS was responsible for 1,071 
domestically listed species, but only 644 of those species had approved 
recovery plans. The Services are currently authorizing HCPs for 
numerous species without recovery plans such as the marbled murrelet, 
Mexican spotted owl, western snowy plover, giant kangaroo rat, and 
razorback sucker. None of these species has a completed recovery plan 
even though final recovery plans would give guidance to the Services in 
reviewing permits for approval. Sher, Victor M, and Heather L. Weiner. 
Why HCPs Must Not Undermine Recovery. Endangered Species Update: 
Habitat Conservation Planning. 67 University of Michigan (July/August 
1997).
    \33\ One alternative is to give conditional approvals to HCPs until 
a recovery plan is adopted. This strategy could work without undue risk 
to the permittee under an adaptive management strategy (described later 
in this document) so long as the potential costs of plan revision are 
indemnified under the insurance scheme (described in the section on 
regulatory guarantees and assurances).
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     Historically, recovery plans have been of poor quality and 
often are not biologically defensible. Hence, even when recovery plans 
have been developed, they generally have not resulted in more adequate 
HCPs. \34\
---------------------------------------------------------------------------
    \34\ In fact, the NCEAS study showed evidence that a species was 
more likely to have adequate HCPs developed for its conservation if it 
did not have a recovery plan. The study found that, where a recovery 
plan existed for a covered species, subsequent HCPs were generally of 
poorer quality in their analysis of the current status of the species 
and in monitoring plans. NCEAS, supra note 12, pp. 35-36.
---------------------------------------------------------------------------
     Recovery plans have often inappropriately subordinated the 
biological objective to economic considerations. Economics is important 
in apportioning the conservation burdens among the public and private 
landowners but must not be allowed to dictate the biological requisites 
of the recovery plan.
     Recovery plans are not intended to be binding on or 
enforceable against the non-Federal lands that are encompassed in the 
range of a species. Efforts to make them binding or enforceable would 
be viewed in the political sphere as tantamount to land use planning by 
the Federal Government, which is historically a state and local 
prerogative. Still, recovery plans can provide an objective basis for 
determining whether an HCP represents progress toward species recovery. 
While a negative determination may not preclude approval of the HCP, 
that would allow the Service to know what supplemental efforts will be 
needed within the planning area--perhaps at Federal expense--to achieve 
the recovery goal.
     Recovery is a species-based concept and, thus, recovery 
plans do not necessarily improve the health of the ecosystem as a 
whole, or its processes or functions. However, there is no obvious 
reason why recovery plans could not also be written as bioregional, 
multi-species conservation strategies. Indeed, such an approach would 
further the goals of the ESA to preserve the ecosystems upon which 
threatened and endangered species depend. \35\
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    \35\ If the focus must remain on individual species, Thornton 
recommends giving the Services discretion to formulate recovery plans 
around species that serve particular functions in an ecosystem such as 
keystone species whose roles in ecosystems are so important that their 
loss could precipitate an avalanche of extinctions, or indicator 
species which should be monitored to indicate the condition of other 
species in the same habitat. Thornton, supra note 20, pg. 642.
---------------------------------------------------------------------------
Natural Communities Conservation Plans as Vehicles for Bio-Regional 
        Planning
    The land use planning functions of state and local governments can 
also be harnessed to undertake the type of bio-regional conservation 
planning that could improve landholding-specific HCPs. Since these 
entities already play the predominant role in local land use planning, 
economies of scale and consistency of conservation objectives can be 
achieved by using them for HCP development. In the model that is 
emerging, units of state and local government prepare regional 
conservation plans, submit them to the Services for approval as master 
HCPs under a special rule under Sec. 4(d) of the ESA and administer 
take allowances to individual property owners through sub-permits. An 
outstanding example of such a bio-regional planning program is the 
California Natural Communities Conservation Program (NCCP). \36\ The 
NCCP is a regional, ecosystem-wide, multi-species program that 
encourages landowners to voluntarily plan for habitat protection before 
species are listed. A typical plan might cover a mix of listed and 
unlisted but declining species and their shared habitats, while still 
accommodating development outside the areas set aside as preserves. A 
particular virtue of NCCPs is their potential to address the 
conservation requirements of unlisted species before they decline to a 
level requiring ESA protection. Preventative strategies will invariably 
provide more options for habitat protection than reactive measures that 
become necessary when the decline of a species reaches a crisis and can 
halt and reverse the trend toward extinction. \37\ Therefore, 
community-level HCPs--as opposed to species-based prescriptions--
benefit species at all levels of abundance, thereby addressing 
management needs most comprehensively. \38\ Also, NCCPs can protect 
habitat currently unoccupied by listed species but important for its 
survival. In southern California, for instance, species that depend on 
the coastal sage scrub for breeding may also utilize neighboring 
habitats for sustenance. It is often difficult to protect this kind of 
secondary habitat under the ESA.
---------------------------------------------------------------------------
    \36\ California encourages regional/ecosystem-based conservation 
planning since its 1991 adoption of the Natural Community Conservation 
Planning (NCCP) Act. Silver, Dan. Natural Community Conservation 
Planning: 1997 Interim Report. 14 Endangered Species Update: Habitat 
Conservation Planning 22. University of Michigan (July/August 1997).
    \37\ Bosselman, Fred P. The Statutory and Constitutional Mandate 
for a No Surprises Policy. 24 Ecology Law Quarterly 707, 711 (1997).
    \38\ The Services encourage NCCP-type plans because they:
    Avoid the huge backlog created by species-by-species management;
      (1) Save money and better protect species by getting at what is 
often the root cause of their decline--loss of habitat;
      (2) Reduce the need for last-minute ``emergency room'' measures;
      (3) Prevent economic ``train wrecks'' by involving landowners in 
long-term planning rather than last-ditch efforts at preservation.
      (4) Allow for the use of ``good science'' since ecosystem 
management would begin well before the species are on the verge of 
extinction;
      (5) Maximize flexibility and available options in developing 
mitigation programs;
      (6) Reduce the economic and logistic burden of HCPs on individual 
landowners by distributing their impacts;
      (7) Reduce uncoordinated decisionmaking, which can result in 
incremental habitat loss and inefficient project review;
      (8) Provide the permittee with long-term planning assurances and 
increase the number of species for which such assurances can be given;
      (9) Bring a broad range of activities under the permit's legal 
protection; and
      (10) Reduce the regulatory burdens of ESA compliance for all 
affected participants.
    FWS & NMFS, supra note 19, pp. 1-14, 1-15. Welner, Jon. Natural 
communities conservation planning: An ecosystem approach to protecting 
endangered species. 47 Stanford Law Review 319, 338 (1995). Silver, 
supra note 36, pg. 22.
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    The NCCP is meant to be a voluntary program, but the local 
landowners did not view it as such in the case of the California 
gnatcatcher. With the 1993 listing of the gnatcatcher, Secretary of 
State Bruce Babbitt proposed a ``special rule'' under Section 4(d) of 
the ESA that would exempt landowners participating in the state NCCP 
program from the ESA's prohibition on the incidental take of a 
threatened species. \39\ The special rule expanded the bounds of the 
ESA's incidental take exemption to all areas covered by a NCCP plan. 
The agency thereby had a means to encourage participation in the NCCP. 
At the same time, the rule retained the ESA's prohibition against take 
for developers who elected not to participate. Those landowners had to 
negotiate their own HCP with the Fish and Wildlife Service, aware that 
the agency did not intend to approve any HCPs that did not conform to 
the NCCP guidelines. \40\
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    \39\ Under the special rule, local communities in the Coastal Sage 
Scrub Planning Area are invited to develop subregional NCCP plans. The 
plans must conform to detailed Process and Conservation Guidelines 
issued by CDFG in 1993. The Guidelines provide that the Planning Area 
will be divided into ten to 15 subregions; local communities will be 
allowed to define the size and shape of their own subregions, subject 
to USFW and CDFG approval. Each subregion must designate a local ``lead 
agency'' to coordinate its planning effort. Before taking effect, 
subregional plans must be approved by both the CDFG and USFW. Welner, 
supra note 38, pp. 343-344. Special Rule Concerning Take of the 
Threatened Coastal California Gnatcatcher, 58 Fed. Reg. 65,088 (1993).
    \40\ Welner, supra note 38, pp. 344-345.
---------------------------------------------------------------------------
    These dynamics help explain why the NCCP process was, in general, 
favorably received in Southern California. For conservationists, 
comprehensive state planning based upon Federal ESA standards appeared 
to offer the best hope for rescuing devastated coastal sage ecosystems. 
Developers valued the regulatory assurances they were provided in the 
event of future listings. Local governments were pleased to retain 
autonomy over land use decisions in the face of Federal listings and 
the prerogative to strike the appropriate balance between development 
and open space in their communities. The state and Federal wildlife 
agencies saw the NCCP process as a means to transcend the limitations 
on project-by-project mitigation. Although each stakeholder perceived 
the benefits of participating in the NCCP process differently, enough 
mutual benefits and common ground were found to advance a politically 
difficult process. \41\
---------------------------------------------------------------------------
    \41\ Silver, supra note 36, pg. 22.
---------------------------------------------------------------------------
    The NCCP process is specifically authorized in California by an act 
of the legislature. \42\ This type of vehicle could be propagated in 
other jurisdictions to serve as a nationwide vehicle for bioregional 
planning either through state-by-state enactments or through Federal 
authorization in a reauthorized Endangered Species Act. Through either 
avenue, lessons can be drawn from California's early experimentation 
with NCCP that could lead to an improved nationwide model. One 
thoughtful commentator \43\ provides the following list:
---------------------------------------------------------------------------
    \42\ Natural Communities Conservation Planning Act, Cal. Fish and 
Game Code Sec. 2800 et seq. (1991).
    \43\ Silver, supra note 36, pp. 24-25.
---------------------------------------------------------------------------
    (1) Listing plays an essential role. Standing alone, the NCCP 
provides no protection for ecosystems or species; it merely authorizes 
a collaborative, voluntary process to provide some protection through 
agreements among agencies, landowners, and local governments. In order 
to bring developers to the table, an incentive, such as the threat of 
listing under the ESA, is indispensable. The listing of the gnatcatcher 
provided the motive force for the NCCP plans.
    (2) Public participation is useful, as evidenced by the numerous 
stakeholder groups in the NCCP process that have made many valuable 
contributions.
    (3) Partnerships with local government are powerful. The key 
advantage of an NCCP approach over conventional HCPs is that local 
governments are an active partner. Local land use laws can sometimes 
accomplish what state and Federal agencies alone can not achieve.
    (4) Assurances are part of the equation. The reward to landowners 
for engaging in the NCCP process is the regulatory assurance that, in 
the event a species covered by the plan subsequently becomes listed or 
declines, additional mitigation will not be required of that landowner.
    (5) There is a ``spill-over'' into better planning in general. The 
NCCP efforts have allowed local governments to understand the many 
benefits of natural open space preserves for their communities.
    (6) Scientific accountability must be sufficient. Given the 
program's extraordinary complexity and its susceptibility to political 
and economic pressure, its scientific bases must be beyond debate. Yet, 
in the NCCP experiment, the initial scientific panel was dissolved 
after it had prepared a set of conservation guidelines, and the NCCP 
statute makes no provision for independent scientific consultation or 
review. While it should not be inferred that the plans are unsound as a 
result, neither are they fully credible. \44\
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    \44\ A particular challenge in the use of scientific accountability 
has been the imperative to protect large blocks of habitat quickly, 
before they disappear, even in the absence of adequate scientific data 
on which to base a conservation strategy. This has forced the use of 
practical reserve design methodologies that seek to protect a suite of 
species through conservation measures designed for ``umbrella'' 
species. Such methodologies need more study and validation. Noss, et 
al., supra note 13, pp. 137-142.
---------------------------------------------------------------------------
    (7) Recovery objectives are paramount. Appropriate standards are a 
critical unresolved issue. Since these plans are de facto recovery 
plans, they must ensure healthy populations across species' ranges. The 
failure to explicitly address recovery in the NCCP is a glaring 
deficiency.
    (8) Local land use factors limit program effectiveness. Specific 
deficiencies in plans are often due to zoning constraints or project 
authorizations issued by local government. These need to be reconciled 
with the conservation objectives and strategies pursued by the NCCP 
program.
    (9) A secure source of funding for land acquisition and management 
is necessary. Usually, innovative sources will need to be explored, 
such as loan funds, funds from the Land and Water Conservation Fund, 
mitigation banks, or dedicating that portion of the local property tax 
that corresponds to the marginal increase in the value of adjacent real 
estate resulting from the open space that is set aside. \45\
---------------------------------------------------------------------------
    \45\ Natural Resources Defense Council. Leap of Faith: Southern 
California's Experiment in Natural Community Conservation Planning 33-
35 (May 1997).
---------------------------------------------------------------------------
    A variation on the NCCP theme is arising in some states. So called 
``programmatic HCPs'' are a relatively new concept, now primarily 
utilized by state and county governments. \46\ They differ from NCCP-
type or habitat-based HCPs in that their boundaries are based on 
jurisdictional rather than ecological parameters. For example, the US 
Fish and Wildlife Service and the State of Georgia have developed a 
programmatic ``state-wide'' HCP for the red-cockaded woodpecker, and 
Texas is currently embarking on a similar project for the same species. 
\47\ The programmatic HCP allows numerous landowners to participate 
through ``Certificates of Inclusion'' or ``Participation 
Certificates,'' which convey take authorizations. The Services support 
such plans on grounds that a programmatic HCP can be used to address a 
group of actions as a whole, rather than one action at a time in 
separate HCPs. \48\
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    \46\ FWS & NMFS, supra note 19, pg. 3-39.
    \47\ Bonnie, Robert. Strategies for Conservation of the Endangered 
Red-cockaded Woodpecker on Private Lands. Endangered Species Update: 
Habitat Conservation Planning 45 University of Michigan (July/Aug. 
1997).
    \48\ FWS & NMFS, supra note 19, pg. 3-39.
---------------------------------------------------------------------------
    And yet, the Services acknowledge that programmatic HCPs may pose 
problems. \49\ First, biologists eschew political boundaries in favor 
of using watersheds or discrete ecosystems to delineate conservation 
planning areas. Second, applicants may lack sufficient information to 
determine and evaluate impacts when the specific number and scope of 
development actions is still undetermined. Such HCPs are more likely to 
succeed where the activities are well defined, similar in nature, and 
occur within a discrete geographical area and timeframe. \50\ Despite 
their shortcomings, programmatic HCPs are likely to increase during the 
next era of biodiversity conservation.
---------------------------------------------------------------------------
    \49\ Ibid.
    \50\ Id.
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Promulgation of Programmatic Conservation Standards as Vehicles for 
        Bio-Regional Planning
    A third potential vehicle for landscape-scale conservation planning 
is the promulgation of programmatic standards or guidelines for multi-
species conservation by Federal land and water managers. For example, 
the recent adoption by NMFS of programmatic guidelines for logging on 
anadromous fish-bearing streams in the Pacific Northwest may prove to 
be a useful model in other contexts. Such programmatic guidelines can 
apply standards for riparian buffers and acceptable levels of 
sedimentation to entire watersheds or other ecologically significant 
planning units. Similarly, the Aquatic Conservation Strategy component 
of the President's Forest Plan provides a multi-layered planning 
approach intended to result in ecosystem-wide forest management.
Bio-Regional Conservation Planning Demands a Larger Governmental Role
    Whatever the vehicle, it is clear that landscape scale habitat 
conservation planning will require either the Services, or state and 
local units of government in the case of NCCP-type plans, to play a 
more proactive role in marshalling the necessary biological information 
and developing conservation strategies that cover multiple parcels, 
both private and public. This will entail a sharp departure from their 
traditional roles and will require a substantial increase in resources 
both financial and professional.
    The Services' role in HCP development is not well defined, but 
Congress apparently intended the Services to do more than just exercise 
regulatory oversight by also providing technical assistance to 
applicants. \51\ The HCP Handbook states that large-scale HCPs should 
be developed jointly by the applicant, the Services, the private 
sector, and local, state, and Federal agencies, with the Services 
acting as technical advisors. In addition, the Handbook recommends that 
the Services be actively involved during HCP development in advising on 
mitigation measures, monitoring protocols and reserve designs; 
providing timely review of draft documents; helping find solutions to 
contentious issues; and generally assisting in HCP development. \52\
---------------------------------------------------------------------------
    \51\ Id. pg. 3-1 citing H.R. Conf. Rep. No. 835, 97th Cong., 2d 
Sess. 29, 1982 U.S.C.C.A.N. 2807.
    \52\ Id. pg. 6-24.
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    Notwithstanding these expectations, the Services simply do not have 
the resources to provide the degree of scientific and technical 
guidance that Congress intended in the ESA's 1982 amendments. \53\ In 
practice, HCPs are often negotiated with only minimal guidance as to 
content or biological objectives. \54\ This ``hands off'' attitude 
might also be due in part to the Services' policy of promoting plan 
flexibility and innovation. In any case, the Services have not 
translated the expectations of the Act into technical performance 
standards to which an HCP can be designed. \55\
---------------------------------------------------------------------------
    \53\ NCEAS, supra note 12, pg. 48.
    \54\ For example, the Weyerhaeuser Willamette HCP applicants 
apparently felt the Services' guidance was vague regarding biological 
standards. The Riverside County HCP applicants were also apparently 
unclear regarding biological standards. Aengst, Peter, et al. Balancing 
Public Trust and Private Interest: An Investigation of Public 
Participation in Habitat Conservation Planning. University of Michigan 
(1998) (hereinafter cited as ``Univ. of Michigan'').
    \55\ Applicants find the ESA's legal standards such as ``minimize 
and mitigate'' take to the ``maximum extent practicable'', and 
authorized taking that will not ``appreciably reduce the likelihood of 
survival and recovery of the species in the wild'' too nebulous. Ibid. 
pg. 8-6.
---------------------------------------------------------------------------
    This lack of guidance often results in HCP applicants simply 
following precedents established in earlier HCPs. Consequently, HCPs 
that were developed before principles of conservation biology were 
properly applied have nonetheless set a de facto standard of quality. 
The importance of precedent in light of unclear agency guidelines is 
illustrated by a comment from a participant in the development of the 
Clark County HCP: ``[The preparers of HCPs that are] still in the early 
stages are going to look out there for the weakest [HCP to use] as an 
example. We should be real concerned over setting precedents for the 
minimum standard.'' \56\
---------------------------------------------------------------------------
    \56\ Id. pg. 7-8.
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  calibrate habitat conservation planning to biologically defensible 
                                 goals
The Recovery Standard
    There is an emerging consensus among conservation scientists that 
the only defensible biological goal for habitat conservation is the 
recovery of the species. Indeed, this precept is too obvious for 
serious debate unless the ESA and the HCP processes are to be taken as 
merely a set of procedures for slowing the process of extinction. Thus, 
species recovery must be taken as the ultimate goal of the ESA and 
contribution to this goal is the yardstick by which the habitat 
conservation planning process will ultimately be measured by the 
discerning public. HCPs will be viewed as contributing to the 
biodiversity problem rather than the solution unless they are designed 
to advance a restoration strategy, that is, unless they confer a net 
survival benefit to the species. \57\ Otherwise, the Services are 
running a hospital in which the patients will never be taken off life 
support.
---------------------------------------------------------------------------
    \57\ On heavily impaired lands, even a net benefit standard may not 
be enough to recover the species or prevent local extirpation. In these 
circumstances, the Federal Government's role in bioregional planning 
may need to include purchasing and restoring such lands. HCPs should 
not be counted on to solve all endangered species/private lands 
conflicts.
---------------------------------------------------------------------------
    What constitutes biological recovery is far from straightforward, 
however, and a determination of whether a given HCP meets that standard 
is difficult for a number of reasons. As noted previously, many HCPs 
are approved before the Services have completed draft recovery plans 
for the species. Recovery planning is impeded by agency budget 
constraints and by the competing demands for agency resources to 
process the growing numbers of HCPs and designate ``critical habitat''. 
Where recovery plans do exist, they are often obsolete for current 
planning. \58\ And, recovery planning itself is a highly politicized 
process wherein biological factors can be compromised by economic and 
social considerations. \59\
---------------------------------------------------------------------------
    \58\ Sher and Weiner, supra note 32, pg. 68.
    \59\ Defenders of Wildlife, supra note 7, pg. 54. Sher and Weiner 
point out that funds for recovery plans are often earmarked by Congress 
for high-profile species, leaving less charismatic species to decline. 
In addition, the Services are chronically constrained by inadequate 
budgets, limited staff, and political pressure. Sher and Weiner, supra 
note 32, pg. 67.
---------------------------------------------------------------------------
    Notwithstanding these difficulties, the difference between survival 
and recovery can be understood as distinct levels of risk for the 
protected species. At present, the level of acceptable risk is left to 
the judgment of the applicants and the Services and is seldom made 
explicit. Often, the data to quantify these risks are not sufficient. 
Qualitative analysis of risk factors is possible, however. This type of 
risk analysis is familiar terrain in setting air and water quality 
criteria, for example. Under qualitative assessment, the risk to 
species can be identified and addressed by dealing with the factors 
that have the largest effect on survivability. Independent scientific 
peer review would be very beneficial in making such qualitative 
assessments.
    The objectives of ecosystem conservation and recovery of species 
are explicit in the ESA, \60\ but the means to achieve these goals are 
not made clear. Indeed, the approval standard for HCPs is not 
necessarily consistent with the statutory recovery goal. \61\ Plans may 
be approved under the Section 10 criteria, as long they do not 
appreciably reduce the chance of survival and recovery of the covered 
species. This suggests that some degradation of habitat and loss of 
species is acceptable. Certainly, this criterion does not impose on 
permittees an obligation to improve the survival prospects for the 
listed species. \62\ Thus, HCPs may and usually do degrade the status 
quo.
---------------------------------------------------------------------------
    \60\ 16 U.S.C. Sec. 1531(b), 1532(3).
    \61\ Much of the criticism lodged against the HCP process stems 
from the Services' treatment of HCPs as a permitting process, rather 
than a conservation strategy. Noss, et al., supra note 13, pg. 111.
    \62\ According to conservationist Daniel Hall, the Services' policy 
only requires that an HCP not lead to the extinction of a listed 
species, rather than contributing to recovery. Hall, Daniel A. Using 
Habitat Conservation Plans to Implement the Endangered Species Act in 
Pacific Coast Forests: Common Problems and Promising Precedents, 27 
Environmental Law 803, 809 (1997). While the HCP must not ``appreciably 
reduce'' the likelihood of the recovery of the species in the wild, the 
Services' HCP handbook states that this does not explicitly require an 
HCP to recover listed species, or contribute to their recovery 
objectives outlined in a recovery plan. FWS & NMFS, supra note 19, pg. 
3-20.
---------------------------------------------------------------------------
    The approval of HCPs under this standard can only be squared with 
the ultimate objective of recovery and delisting under the assumption 
that some other custodian of actual or potential habitat will undertake 
countervailing measures. That is a heroic assumption where the Federal 
lands and waters are also managed to a ``non-jeopardy'' standard, and 
where funds to purchase, preserve and restore high quality habitat are 
neither a precondition to the approval of HCPs nor generally available. 
The contrast between the statutory approval standard and a recovery 
standard is most apparent when an HCP covers most or all of the 
remaining habitat of a listed species. If the majority of a species' 
range occurs on nonFederal land, recovery cannot occur unless the HCP 
contributes to that objective. \63\ This mismatch between biological 
objectives and statutory requirements is a serious problem for both 
developers and conservationists because it raises the stakes in the 
negotiation of HCPs and creates political fault lines that leave both 
development and conservation interests insecure.
---------------------------------------------------------------------------
    \63\ Defenders of Wildlife, supra note 7, pg. 52.
---------------------------------------------------------------------------
    Congress has so far shown reluctance to amend the ESA to 
recalibrate the HCP approval criteria to require a net benefit to 
listed species. Yet, nothing less will square HCPs with the explicit 
objective of the ESA or stem the impending biodiversity crisis. It may 
be possible to resolve this political impasse if the issue is restated 
so that it is not about biodiversity requisites but about how the 
financial burdens of meeting them will be allocated. The costs of 
avoidance, minimization and mitigation of adverse impacts on habitat 
are as much as the developers of non-Federal lands and waters are 
willing to shoulder to meet national biodiversity conservation goals, 
and more to the point as much as the political process has been willing 
to impose. The measures necessary to bridge the gap between survival 
and recovery, such as the purchase of habitat preserves and the 
rehabilitation of restorable habitats on non-Federal lands, can be 
defrayed by the public instead of land and water rightsholders if both 
developers and conservationists join in making that arrangement 
politically feasible.
    The remaining issue is whether compensated conservation measures 
should be voluntary on the part of the private rights holder, as some 
recent ESA reauthorization bills would provide, \64\ or mandatory at 
the behest of the Services. This issue is politically controversial 
because allowing the Services to mandate habitat conservation measures 
which bear no proportionate nexus to a development project, such as 
creating preserves, even on a compensated basis, is tantamount to 
conferring eminent domain authority on the Services. As discussed 
below, one solution might be to reward private rights holders who 
accept mandatory measures deemed necessary to achieve a recovery 
standard of performance with a higher level of regulatory assurances in 
their HCPs.
---------------------------------------------------------------------------
    \64\ One example is the Chafee-Kempthorne bill, S. 1181, introduced 
in the 105th Congress.
---------------------------------------------------------------------------
Incentives to Recover Species
    Getting the incentives right is essential to making the HCP program 
work. Enforcement of the ``take'' prohibition under Section 9 creates 
an incentive for private rights holders to seek incidental take 
permits, for which HCPs are a prerequisite. As the enforcement of the 
take prohibition becomes more vigorous, the incentive to develop high-
quality HCPs increases. \65\ However, the practical difficulties in 
enforcing the take prohibition limit its value as an incentive. The 
Services find enforcement of the take prohibition difficult because 
they cannot enter private lands without permission and because they 
face budget limitations. For some species, the data are not sufficient 
to determine what actions constitute a take (e.g. mussels), while for 
other species, the Services do not know where they occur on private 
lands. Because the Services have shown reluctance to enforce the take 
prohibition, the main incentive for HCP development today is the fear 
of citizen suits and the attendant insulation from prosecution that an 
HCP can provide. \66\ Under these realities, enforcement of the take 
prohibition, though an essential incentive for rights holders to 
develop HCPs. cannot substitute for habitat conservation planning.
---------------------------------------------------------------------------
    \65\ To be sure, the penalty needs to be sufficient to nullify any 
economic benefits of non-compliance; nominal penalties are likely to be 
absorbed as a cost of doing business rather than serve as a deterrent 
to taking species or destroying habitats. On the other hand, the larger 
the potential penalty, the greater the perverse incentive to destroy 
habitat before a listing occurs.
    \66\ Some commentators confirm that landowners are preparing HCPs 
because capital markets insist upon HCPs before they will lend project 
development funds. Capital markets place a high value on assurances 
that future restrictions will not impede development. This may not 
apply to ``commodity'' lands where take detection and enforcement is 
problematic.
---------------------------------------------------------------------------
    The ESA does not mandate that HCPs confer a net survival benefit on 
species, but neither does the Act mandate that the Services issue 
guarantees to permittees against further ``take'' restrictions. It 
seems likely that the Services can induce HCP proponents to contribute 
to recovery of a listed species by correlating their regulatory 
assurances to the extent of biological benefit conferred in an HCP. For 
instance, plans that contribute to recovery might receive assurances 
for a longer term than those that merely avoid jeopardy. Similarly, 
plans based on highly adequate data and analyses might be entitled to 
more extensive guarantees.
    In some cases, shifting a larger share of the costs of conserving a 
listed species to the Federal land management agencies would also make 
recovery achievable without increasing the burdens on private rights 
holders. Yet, at present, the prevention of jeopardy of extinction is 
the aiming point for most management decisions on Federal land. This 
low standard of management for the public lands should concern the 
property rights community as much as the conservation community because 
the practical consequence is that a higher burden of species 
conservation may be apportioned to the private rights holders if 
recovery is to be achieved. \67\
---------------------------------------------------------------------------
    \67\ Of course, holding the public lands to a higher standard of 
performance in habitat conservation would not be advance recovery in 
regions of the country where there is little or no Federal land, or 
where existing Federal land is unsuitable to support the species in 
question.
---------------------------------------------------------------------------
 incorporating independent science and public participation to improve 
                       hcp conservation measures
    Many performance reviewers agree that HCPs would be improved if 
state-of-the-art, independent biological expertise was utilized and if 
meaningful opportunities were afforded local communities and 
conservation interests to participate in the development of HCPs. These 
two recommendations merge under the premise that the most efficacious 
way to advance the public's interest in effective conservation planning 
is for HCPs to be based on the best available science.
    In a March 1997 letter to the Administration and Congress, a number 
of prominent conservation biologists warned that many HCPs ``have been 
developed without adequate scientific guidance'' \68\ in the form of 
independent peer review. They argued that, as a consequence, these 
plans seem to contribute to, rather than alleviate, threats to listed 
species. \69\ The scientists recommended that the data, analyses, and 
interpretations regarding species status, take, impact, mitigation, and 
monitoring should be reviewed to ensure that the scientific foundations 
of the plans are sound. \70\
---------------------------------------------------------------------------
    \68\ Murphy, Dennis, et al. A Statement on Proposed Private Lands 
Initiatives and Reauthorization of the Endangered Species Act from the 
Meeting of Scientists at Stanford University (March 31, 1997).
    \69\ The scientists were particularly concerned about the 
inflexibility in conservation strategies associated with the ``No 
Surprises'' assurances, the coverage of species in multiple-species 
HCPs, level of protection afforded by safe harbor initiatives and 
prelisting agreements, and the lack of independent scientific review of 
these agreements. Ibid.
    \70\ Ibid.
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Why There Is A Need for Independent Science in Habitat Conservation 
        Planning
    Independent science would be useful in the HCP process because 
neither the consultants retained by the HCP proponent not the Services 
staff scientists necessarily have the time, information, or incentive 
to represent the state-of-the-art.
    In the general process of developing an HCP, biologists in the 
proponent's employ submit a plan to the Services, sometimes working 
informally with the Services' biologists in the process. \71\ 
Typically, relatively little detailed information concerning a listed 
species' habitat exists at the time of listing, in which case, the 
first requisite in preparing an adequate HCP is to gather this 
information. \72\ This process can be labor-intensive and expensive, 
which is one reason it is easier to prepare landholding-specific HCPs 
after a bioregional conservation plan has already been developed. As 
HCPs grow in geographic scope, last longer, and cover more species, the 
complexity of biological planning grows. These larger HCPs require 
Herculean efforts to assemble available data and conduct additional 
field surveys, utilize state-of-the-art tools for planning (e.g. GIS), 
and make sure that available ecological information and management 
techniques are used in the best way possible. \73\
---------------------------------------------------------------------------
    \71\ Defenders of Wildlife, supra note 7, pg. 37.
    \72\ FWS & NMFS, supra note 19, pg. 3-12.
    \73\ Hosack, Dennis A., Laura Hood, and Michael P. Senatore. 
Expanding the Participation of Academic Scientists in the HCP Planning 
Process. Endangered Species Conservation Planning 60 University of 
Michigan (July/August 1997).
---------------------------------------------------------------------------
    Performance reviews of HCPs reveal that information pertinent to 
the design of HCP conservation strategies is frequently under-
researched by the HCP preparers. Of particular concern are the data 
omissions regarding cumulative impacts of development activities on 
other parcels or river reaches. \74\ Data omissions on such species 
characteristics as amount and quality of feeding, breeding, and 
migration habitat were also judged to be a serious problem in the 
development of mitigation or minimization efforts. Even when a fair 
amount of information is known about a species, it is still difficult 
to efficiently incorporate biological data into conservation strategy 
decisions because no well-accepted model exists. \75\ Yet, all in all, 
the scientific quality of HCPs, especially in terms of mitigation 
analysis, has been improving. \76\
---------------------------------------------------------------------------
    \74\ For example, in 23 percent of the cases surveyed, information 
on cumulative impacts suggested that a different assessment of status 
or impacts of take should have been made. NCEAS, supra note 12, pg. 38.
    \75\ Thornton, supra note 20, pg. 651.
    \76\ The NCEAS researchers looked at the overall quality of HCPs 
over time, and found that, from the first HCP (San Bruno Mountain) 
until 1996-97, for several stages of planning and for overall quality, 
more recent plans are better than older ones. The most biologically 
important aspect of this improvement is in mitigation analysis: before 
1995, only 10 percent of species covered had ``adequate'' analysis of 
mitigation, while from 1995-1997, 60 percent of species were adequately 
analyzed. Similar improvements have occurred in all other steps of 
analysis, indicating that HCPs--are--as their advocates have claimed 
becoming more rigorous scientific documents. Ibid.
---------------------------------------------------------------------------
    The Services have the responsibility to ensure that applicants use 
adequate scientific information to develop HCPs and the Services 
acknowledge that the availability of up-to-date biological information 
is crucial to any HCP. Yet, the Handbook leaves data collection 
exclusively to the applicant, \77\ as well as the threshold decision 
whether the available biological information is adequate to proceed 
with planning. Only if the applicant conveys to the agencies that 
additional data is needed will the Services make recommendations on 
research and collection of biological information. \78\ But, the 
applicant's have little motivation to activate the Services in this 
way. Their primary concern is for speedy, cost-efficient plan 
development and they loath to engage in resource-and time-intensive 
studies unless the Services require them for the approval of the HCP.
---------------------------------------------------------------------------
    \77\ FWS & NMFS, supra note 19, pg. 3-12.
    \78\ Ibid.
---------------------------------------------------------------------------
    Conservation biology is the discipline implicated in designing 
optimal habitat conservation strategies. Yet, the performance reviews 
of HCPs revealed that the statutory command to ``minimize and mitigate 
project impacts to the maximum extent practicable'' has often caused 
HCP negotiations to be driven by considerations of economic 
feasibility. The operative facts have become the applicant's assertions 
regarding the effects of mitigation alternatives on profit margins, 
rather than the scientists' assertions regarding biological 
imperatives. This has led some scientists to criticize HCPs as 
discretionary measures based mainly on political and economic 
considerations rather than on empirical scientific data regarding the 
ecological requirements of a species. \79\ While economics is certainly 
relevant to deciding on the allocation of responsibilities among 
property holders, both public and private, in achieving the 
conservation goals of the plan, economic considerations should not be 
allowed to intrude into the choice of conservation strategies.
---------------------------------------------------------------------------
    \79\ Bingham, B.B., and B.R. Noon. Mitigation of Habitat ``Take'': 
Application to Habitat Conservation Planning. 11 Conservation Biology 
127-139 (1997).
---------------------------------------------------------------------------
The Role of Independent Scientists
    Apart from the influence of economics and politics, a spectrum of 
scientific opinion may exist as to whether the conservation strategy 
adopted in an HCP is adequate to meet the biological objectives. 
Establishing an independent scientific review may help arbitrate the 
differences in professional judgment and help assure that survival and 
recovery of the species are attained. Independent review \80\ is also 
important to foster public confidence in the process. The concurrence 
of the broader scientific community confers an imprimatur of technical 
excellence that can garner public acceptance for controversial HCPs.
---------------------------------------------------------------------------
    \80\ A qualified independent reviewer is one who:
      (1) has little personal stake in the outcome of decisions or 
policies in terms of financial gain or loss, career advancement, or 
personal or professional relationships;
      (2) can perform the review tasks free of intimidation by others 
associated with the decision process;
      (3) has demonstrated competence in the subject as evidenced by 
formal training or experience;
      (4) is willing to use her or his scientific expertise to reach 
objective conclusions that may be discordant with her or his value 
systems or personal biases; and
      (5) is willing and able to help identify internal and external 
costs and benefits both social and ecological of alternative decisions. 
Typically such a person is associated with a recognized scientific 
society or is otherwise an established professional in a particular 
field.
    Workshop Findings & Conclusions, supra note 16, pg. 13.
---------------------------------------------------------------------------
    Under current practice, independent scientists may become involved 
in the development of HCPs through informal consultation or by serving 
on a scientific review panel. However, these opportunities generally 
come only after the HCP has been developed or implemented. \81\ In 
addition, even this limited involvement often arises only at the behest 
of the outside scientist, not as a result of solicited peer review. 
Thus, independent scientists are generally involved only and to the 
extent they volunteer their services, not as part of routine practice 
in the formulation of a habitat conservation plan. \82\
---------------------------------------------------------------------------
    \81\ Defenders of Wildlife, supra note 7, pg. 37. Currently few 
professional or financial incentives exist for independent scientists 
to participate in HCP development, while many disincentives to their 
involvement exist. Univ. of Michigan, supra note 54, pg. 10-0.
    \82\ The University of Michigan study found that fewer than a third 
of applicants submitted all or portions of their HCP for peer-review to 
non-applicant and non-agency scientists, and the researchers were 
unsuccessful at finding a single HCP that had undergone formal peer 
review. Univ. of Michigan, supra note 54, pg. 10-3.
---------------------------------------------------------------------------
    Such post hoc peer review of completed plans is not enough. 
Defensible science must be integrated from the beginning and at all 
phases of the planning process. It is important to get scientists 
involved as scientists, providing data and analyses, not just as 
reviewers reacting to someone else's data and analyses. The input must 
come at the formative stage when first principles of the application of 
conservation science are being established for the reserve design or 
mitigation strategy. These decisions are made as the HCP is negotiated, 
not at the final stage when the Service issues the incidental take 
permit. Assessments of completed plans during public commenting periods 
come at the least useful stage when the chances for changing elements 
of the plan are slim. Late scientific analysis relegates science to the 
role of an adversarial interest at the approval stage rather than a 
shaping influence at the foundational stage. \83\
---------------------------------------------------------------------------
    \83\ Noss et al., supra note 13, pg. 124.
---------------------------------------------------------------------------
Access Barriers for Independent Science
    Notwithstanding the pivotal importance of state-of-the-art 
biological information, the Services defer to the applicant regarding 
admission of others to the HCP negotiation process. In the role of 
``gatekeeper'', applicants typically do not wish to involve interested 
scientists who are not agency staff or part of the applicant's coterie 
of paid consultants. Applicants argue that they spend large sums of 
money to hire competent consulting firms and that the Services' reviews 
are already excessive. \84\
---------------------------------------------------------------------------
    \84\ Hosack, et al., supra note 78, pg. 60.
---------------------------------------------------------------------------
    The Services' deference to the applicants on public participation 
reflects their view of the HCP as a permit application over which the 
applicant itself should exercise final substantive control. However, an 
HCP is for all intents and purposes a negotiated settlement of an 
applicant's regulatory liability under the ESA. The plan determines the 
terms and conditions under which a discretionary permit will be issued 
to engage in otherwise forbidden acts, namely the taking of protected 
species. Once its terms are approved by the Services, issuing the 
incidental take permit or implementation agreement is largely a 
formality.
    Given these realities, the process through which an HCP is 
developed and approved should be as open to interested members of the 
public as is the issuance of land use permits in other contexts. For 
example, when the Department of Interior grants grazing permits under 
the Federal Land Policy and Management Act, it allows for public 
participation so that all parties affected by the process will be 
represented. NPDES permits and local building permits are similarly 
public processes. \85\ Permit applicants in these processes are not 
allowed to control who can and who cannot participate in the permitting 
process. Likewise, the Services, not the applicants, should determine 
who gets a seat at the HCP negotiation table. Native fish and wildlife 
are public resources under both state and Federal juris-prudence, 
wherever they may be found. It is fundamentally wrong to treat the 
permitting process as a private, rather than a public, affair. The 
public does have a legitimate interest in the substantive validity of 
the negotiated terms and conditions for take of endangered species on 
private lands.
---------------------------------------------------------------------------
    \85\ Other Federal statutes allow stakeholders to help shape 
natural resource use and protection. The EPA convenes interested 
stakeholders in setting Federal water quality standards, and NMFS 
itself employs stakeholder groups in its efforts to reduce the harm 
commercial fishing has on imperiled fish species under the Marine 
Mammal Protection Act. Nothing in the ESA precludes the Services from 
employing similar measures to involve the public in the HCP development 
process.
---------------------------------------------------------------------------
    The recommendation that the Services, rather than the HCP 
applicants, act as the gatekeeper of HCP negotiations does not mean 
that the Services must admit to the table everyone whom knocks on the 
door. Demonstrated ability to contribute substantively to the issues on 
the table without undue delay may be made the price of admission. We 
simply urge that the Services themselves assume the role of making 
these decisions and not leave them to the permit applicant who has a 
vested interest in moving the negotiation process forward with a 
minimum of process and scrutiny.
The Value of Public Participation in Habitat Conservation Planning
    It must be recognized that the public does have a significant stake 
in the HCP process because wildlife is a public resource, both legally 
and in the court of public opinion. And, whatever conservation 
responsibilities or risks are not borne by the HCP applicant will 
either be borne by the species or be shifted to other landowners or to 
the public lands, usually at public expense. An HCP that authorizes 
land disturbances that can cause flooding, mudslides or loss of 
fisheries directly affects the welfare of the local community. \86\ 
Equally important, public participation in the development of an HCP 
can enhance the quality of information on which HCP decisions are 
based, improve understanding and relationships among stakeholders, 
heighten public and political support for an HCP, and enhance the 
plan's long-term viability. Indeed, the degree of public acceptance of 
an HCP is strongly related to the degree of public participation in the 
development of the plan. The larger the role that interested parties 
are accorded in developing conservation plans, rather than merely 
commenting on completed plans, the more satisfied they tend to be with 
the final result.
---------------------------------------------------------------------------
    \86\ Kostyack, John. Habitat Conservation Planning: Time to Give 
Conservationists and Other Concerned Citizens a Seat at the Table. 
Endangered Species Update: Habitat Conservation Planning 51 University 
of Michigan (July/Aug. 1997).
---------------------------------------------------------------------------
    Where a unit of local government applies for the Federal approvals 
and then issues development permits, the process is easier to access by 
the local community and general public, and the participation issues 
largely dissipate. HCPs that include some form of public land, whether 
Federal, state, or local, tend to provide more public participation 
than HCPs that strictly involve private land. The public usually 
becomes involved earlier and more actively compared to HCPs on private 
land. \87\
---------------------------------------------------------------------------
    \87\ The University of Michigan study provides several explanations 
for these different levels of participation. First, the public may not 
have as much desire to participate in private HCPs as they do in public 
HCPs. Although both types of plans effect public wildlife resources, 
public HCPs likely have more impact on public finances, future 
development, recreational lands, and other activities in which the 
public has a stake. Another explanation is that public HCPs provide 
more opportunities for public involvement. State and local laws may 
compel applicants to hold public meetings or make more frequent 
disclosures concerning their evolving plans. Also, many of the 
applicants of public HCPs are themselves public institutions who likely 
have more experience, inclination, and avenues for including the public 
in a formal HCP process than do private entities. Similarly, plans that 
affect public resources usually require approval from at least one 
public body. This may provide an incentive for public applicants to 
involve the public as a means of increasing the legitimacy and 
political feasibility of the plan. Univ. of Michigan, supra note 54, 
pp. 5-18-5-20.
---------------------------------------------------------------------------
    However, public participation is usually extremely limited when 
private rights holders initiate the HCP process. And, the Services have 
offered little in the way of guidance on fostering public 
participation. HCP guidelines merely instruct the agencies to encourage 
applicants to involve appropriate parties and hold informational 
meetings during public comment periods. \88\ The Services have taken a 
``satisfied customer'' approach to HCPs wherein the agencies view the 
applicant rather than the public as the ``customer'' to satisfy. \89\
---------------------------------------------------------------------------
    \88\ FWS & NMFS, supra note 19, pg. 6-22.
    \89\ Univ. of Michigan, supra note 54, pg. 8-2.
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Public Participation Under The National Environmental Policy Act
    Issuance of an incidental take permit is a Federal action subject 
to the National Environmental Policy Act (NEPA). \90\ NEPA goes beyond 
Section 10 of the ESA in considering the impacts of a Federal action on 
non-wildlife resources. \91\ But, like NEPA, the ESA requires a 
description of ``alternative actions to such taking.'' \92\ To satisfy 
this requirement, applicants commonly analyze just two alternatives 
\93\ but must explain why alternatives were rejected. \94\ The Services 
do not have the authority to impose a choice among the alternatives 
analyzed in the HCP; their role during development is to simply advise 
the applicant in developing an acceptable plan. \95\
---------------------------------------------------------------------------
    \90\ FWS & NMFS, supra note 19, pg. 1-6.
    \91\ Depending upon the scope and impact of an HCP, NEPA can be 
satisfied by one of three documents: (1) a categorical exclusion; (2) 
an environmental assessment (EA); or (3) an Environmental Impact 
Statement (EIS). An EIS is required when the proposed project or 
activity covered by the HCP is a major Federal action significantly 
affecting the quality of the human environment. An EA is prepared to 
ascertain whether an EIS is needed. An EA culminates in either a 
decision to prepare an EIS or a Finding of No Significant Impact. 42 
U.S.C. Sec. 4321 et seq (1969).
    \92\ 16 U.S.C. Sec. 1539(a)(2)(A)(iii).
    \93\ The two alternatives commonly included in NEPA documents are:
      (1) Any specific alternative, whether considered before or after 
the HCP process was begun, that would reduce such take below levels 
anticipated for the project proposal; and
      (2) A ``no action'' alternative, which means that no permit would 
be issued and take would be avoided or that the project would not be 
constructed or implemented.
    FWS & NMFS, supra note 19, pg. 3-35.
    \94\ The HCP Handbook allows applicants to cite economic 
considerations as reasons for rejecting an alternative. However, if 
economic considerations are the basis of rejection, applicants must 
provide data supporting this decision so long as the applicant believes 
that the information is not proprietary.
    \95\ FWS & NMFS, supra note 19, pg. 3-36.
---------------------------------------------------------------------------
    NEPA's comment periods and disclosure requirements often provide 
the only opportunity for the interested public to review and comment on 
an HCP before it is approved. But, NEPA's usefulness as a participation 
and communications device is limited because the HCP negotiations tend 
to solidify a particular approach before public environmental review 
can influence them. \96\ The HCP process, like any planning effort, 
becomes less flexible as time goes on and more ground is covered. 
Therefore, effective public involvement requires access to the process 
before the draft impact statement is issued for review. Based on these 
considerations, performance reviewers have recommended that the 
Services implement ``trigger points'' or points between scoping and the 
comment period when negotiators would be required to disclose 
agreements in early drafts and seek public comments on those documents. 
\97\
---------------------------------------------------------------------------
    \96\ In its 1998 study on public participation and the HCP process, 
researchers at the University of Michigan analyzed 14 HCPs and the NEPA 
comments those HCPs generated. It found that the comments received 
during the NEPA process, regardless of their context, did not 
significantly affect the outcome of the plan. For example, the 
outpouring of public comments on the San Diego MSCP in part forced the 
applicant and the Service to prepare a second DEIR/DEIS for the plan. 
However, the second draft changed only minimally in content over the 
first. Similarly, for the Plum Creek HCP, the company representatives 
stated that part of Plum Creek's rationale in preparing an EIS rather 
than EA for the HCP was that NEPA afforded greater public participation 
under an EIS. Nonetheless, participants noted that public comment had a 
minimal effect on that plan. Univ. of Michigan, supra note 54, pg. 7-1, 
8-3.
    \97\ Ibid.
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Tools for Facilitating Effective Participation by Independent 
        Scientists and Local Communities
            The HCP Resource Center
    Local communities and conservation organizations that are 
interested in upgrading the scientific competence of HCPs generally do 
not have access to the requisite expertise or the means to procure it. 
To meet this apparent need, the Natural Heritage Institute is working 
with other national conservation organizations to create a pool of 
resources--both intellectual and financial--to enable independent 
scientific expertise to be brought into HCP negotiations on behalf of 
conservation interests and local communities. The HCP Resource Center 
will be comprised of a nationwide network of conservation scientists 
representing the full range of relevant sub-specialties from 
universities, private consulting organizations and the non-profit 
sphere. It may also include resource economists and wildlife law 
experts with appropriate negotiation skills. Teams tailored to the 
requisites of particular HCPs will be assembled to engage directly and 
effectively with the agency's and the applicant's team of scientists 
and negotiators. Creation of the HCP Resource Center is currently in 
the planning and fundraising stages. Establishing the center will be a 
resource-intensive process. High quality, independent science comes 
with a price tag and, for most species, qualified experts are not 
numerous.
National Data bank for HCP Materials
    As a means of facilitating public involvement in the preparation of 
HCPs, several experts have recommended that the Services maintain a 
comprehensive, publicly accessible data bank of HCPs. \98\ The data 
bank should include sufficient details to assist landowners in matching 
their conditions to previously approved HCPs. This capacity would allow 
applicants to model their plans after the successful efforts of others 
and would allow the public and nonprofit conservation organizations to 
track and monitor the implementation of individual HCPs. Because there 
is currently no central repository of completed plans and no log of 
HCPs under development, the public has not been able to follow the 
implementation of the ESA through HCPs as closely as some would like. 
\99\ At present, information on individual plans can only be found by 
calling government field offices and asking the overworked biologists. 
The data base would help both the public and Services track the overall 
performance of approved plans. \100\ The financial cost of maintaining 
such a data bank would be relatively modest because it would utilize 
information already compiled by the Services.
---------------------------------------------------------------------------
    \98\ Lin, Albert C. Participants' Experiences with Habitat 
Conservation Plans and Suggestions for Streamlining the Process, 23 
Ecology Law Quarterly 369, 416 (1996); Univ. of Michigan, supra note 
54, pg. 14-8; NCEAS, supra note 12, pg. 47.
    \99\ The lack of public scrutiny and involvement when HCPs were 
launched would later be characterized by the administration as a 
``quiet revolution.'' Kostyack, John. Surprise! The Environmental Forum 
19 (March/April 1998).
    \100\ According to the NCEAS researches, centralized and readily 
accessible data on endangered species could do for species protection 
what centralized and accessible data on criminals and outstanding 
warrants has done for public safety protection; surely, if we can do 
this for law enforcement, we can also do it for environmental 
protection. NCEAS, supra note 12, pg. 47.
---------------------------------------------------------------------------
 incorporate adaptive management and the precautionary principle into 
                               hcp design
    Because our understanding of the biological world is incomplete, 
uncertainties are endemic to conservation planning. The biological 
information available on species and ecosystems--and their interaction 
with habitat--is always, to some degree, imperfect or ambiguous. The 
performance reviews recommend two interrelated tools for dealing with 
critical uncertainties: adaptive management and the precautionary 
principle. Adaptive management is a technique that tests the response 
of biological systems to conservation measures and adjusts conservation 
strategies as warranted on an ongoing basis. The precautionary 
principle resolves critical uncertainties in favor of greater 
protection for the species until and unless better information counsels 
otherwise.
Applying Adaptive Management Principles to HCP Design
    Adaptive management is a strategy for coping with the uncertainties 
inherent in predicting how ecosystems will respond to human 
interventions. Adaptive management is an essential feature of habitat 
conservation planning because it responds realistically to ignorance 
about the ecosystem by monitoring the results of management efforts so 
that adjustments can be made as needed. \101\ Under adaptive 
management, HCPs are acknowledged to be mere working hypotheses, 
predicated upon assumptions about how species and their ecological 
processes and functions respond to changes in habitat size, location, 
configuration, quality, etc. These assumptions, uncertainties, and 
knowledge gaps are made explicit, and the conservation strategy 
includes concrete plans and funding for a program of hypothesis-testing 
against specified, measurable performance goals.
---------------------------------------------------------------------------
    \101\ Noss, et al., supra note 13, pg. 133.
---------------------------------------------------------------------------
    Adaptive management treats every HCP as a ``learning laboratory'' 
where conservation strategies continue to evolve as scientific 
understanding increases. While HCPs will always be experiments with 
uncertain outcomes, adaptive management requires resource managers to 
acknowledge the risks inherent in the experiment and modify 
conservation measures according to experience and new information. 
Thus, another word for adaptive management is ``contingency planning.'' 
At its core, an effective adaptive management program must include a 
method for evaluating the performance of the HCP and must specify the 
alternative conservation measures that will be triggered automatically 
in the event that performance fails to meet conservation goals. Under 
such a program, it might be necessary for the permittee to implement 
development activity in phases so that permission to begin a later 
phase is contingent upon the Services verifying that the performance 
standards in the prior phase have been met. This kind of phased 
development is more easily accomplished in larger landscape-scale plans 
that are implemented over time.
    From the Services' perspective, property rights holders are already 
successfully incorporating adaptive management into HCPs. However, in 
both the existing Handbook and the proposed addendum, the practice of 
adaptive management is limited to circumstances where ``significant 
uncertainty exists,'' and, even then, only to circumstances where the 
applicant accedes to its utilization. \102\ In current practice, the 
range of conservation measures that might be required as a result of 
evolving information is negotiated as a term of the initial HCP. \103\ 
Yet, many conservation biologists agree that ``significant 
uncertainty'' may not become apparent until after the HCP has been 
approved. They advocate for including adaptive management practices in 
virtually every plan, making it the rule rather than the exception.
---------------------------------------------------------------------------
    \102\ Ibid. pg. 3-24. The Draft Addendum to the Handbook does 
nothing to expand the use of adaptive management, since the Draft 
recommends adaptive management only for plans containing ``significant 
data gaps.'' 64 Fed. Reg. at 11486.
    \103\ FWS & NMFS, supra note 19, pg. 3-25.
---------------------------------------------------------------------------
    Conservation biologists have identified five steps to develop an 
HCP that utilizes adaptive management practices: \104\
---------------------------------------------------------------------------
    \104\ Workshop Findings and Conclusions, supra note 16.
---------------------------------------------------------------------------
    (1) Identify explicit and quantifiable biological goals;
    (2) Characterize the human-induced stressors of the ecosystem that 
must be overcome or counteracted to achieve those goals, including an 
explicit acknowledgement of the critical uncertainties regarding the 
stressor-response relationships;
    (3) Specify high-probability measures to minimize, mitigate or 
offset these stressors or otherwise achieve the biological goals;
    (4) Monitor biological indices by developing a statistically valid 
sampling protocol. Develop mechanisms to translate data into needed 
plan adjustments. \105\
---------------------------------------------------------------------------
    \105\ These steps call for the rigorous application of the 
following scientific methods:
      (1) System assessment: systematic collection and statistical 
analysis of data on ``health'' of the important ecosystem components 
and on the factors that may influence health at several levels: 
population, species, community, habitat, and ecological processes.
      (2) Experimental science: rigorous, controlled, empirical tests 
to confirm causal relationships, management hypotheses, and the 
incidental impacts of management.
      (3) Risk assessment: statistical analysis of empirical results to 
identify levels of risk, including those associated with uncertainty.
      (4) Devices for managing risk and uncertainty: including 
application of the precautionary principle.
    Workshop Findings and Conclusions, supra note 16.
---------------------------------------------------------------------------
    The choice of conservation measures in Step 3 is crucial to the 
success of an HCP. These mitigation measures must represent the ``best 
guess'' based on the best available data. Once in place, these measures 
constitute the initial working hypotheses that the adaptive management 
regimen tests, monitors and adjusts to as necessary to reach the 
biological goals.
Measures to Reduce the Risks of Unsuccessful Mitigation
    The most frequently used mitigation strategies consist of measures 
to minimize or avoid development impacts on the listed species. \106\ 
While these are usually the easiest and least costly procedures to 
implement, the sufficiency of these measures can only be tested over 
time and in relation to how the target species responds in the real 
world. To maximize prospects for successful mitigation, measures should 
be based on the best science available and the mitigation strategy must 
be allowed to evolve over time as monitoring progresses. As to the 
scientific adequacy of HCPs to date, researchers have found that the 
efficacy of the conservation measures initially selected in the plans 
varies greatly. In most cases, the mitigation procedures do address the 
primary threat to the survival of the species, but only about half of 
mitigation plans adequately ameliorate that threat. \107\
---------------------------------------------------------------------------
    \106\ NCEAS, supra note 12, pg. 24.
    \107\ For the 57 percent of the species included in the HCPs 
examined by the NCEAS, the mitigation measures addressed the primary 
threat to the species to a degree considered ``sufficient'' or better. 
The research found that the 10 most common types of mitigation employed 
in HCPs were, in order of frequency: minimization, avoidance, land 
acquisition , conservation easements, habitat restoration, restoration 
of disturbance regimes, removal of exotics, research funding, habitat 
banking, and translocation of species. Ibid. pg. 25.
---------------------------------------------------------------------------
    There are several techniques that can reduce the risks to the 
species associated with unsuccessful mitigation strategies. In general, 
the Services recommend that mitigation habitat should be as close as 
possible to the area of impact. Also, the habitat should include 
similar habitat types and support the same species affected by the 
development covered by the HCP. \108\ The Handbook recommends that 
habitats be ``banked'' through the use of conservation easements or 
other means before development occurs. \109\ The ``mitigation credit'' 
system is a variant of this scheme. Under this system, newly created 
habitat receives a credit (usually on a per acre basis) which can then 
be used or sold to other parties requiring mitigation lands. \110\ This 
allows landowners to pay mitigation fees into habitat acquisition funds 
in lieu of conserving habitat on their own lands. Other landowners may 
create habitat for purchase as mitigation. For instance, International 
Paper Company is restoring and selling red-cockaded woodpecker habitat 
in the southeast. The Bakersfield Metropolitan HCP is conserving a 
whole suite of species based entirely on marketable development rights.
---------------------------------------------------------------------------
    \108\ FWS & NMFS, supra note 19, pp. 3-21, 3-22.
    \109\ Ibid. pg. 3-21.
    \110\ The Services find the ``mitigation credit'' system promising 
because: (1) it allows owners of endangered species habitat to derive 
economic value from their land as habitat, (2) it allows parties with 
mitigation obligations to meet their obligations rapidly since 
mitigation lands are simply purchased as credits, and (3) the 
mitigation lands are provided prior to the impact, eliminating 
uncertainty about whether a permittee might fail to fulfill the HCP's 
obligations after the impact has occurred. Id.
---------------------------------------------------------------------------
    Mitigation banking can achieve habitat goals in an economically 
efficient manner and can reconfigure habitat in ways that traditional 
HCPs cannot. Because spatial considerations are critical in 
conservation, mitigation banking has the potential to result in ``no 
net loss'' of habitat and to enhance population stability by exchanging 
fragmented habitats for non-fragmented habitats. Assuring that 
mitigation banks do not result in a net reduction in the extent or 
quality of habitat is particularly essential for already endangered or 
threatened species.
    However, it is often difficult to establish a ``common currency'' 
for valuing the habitat that is banked or sacrificed. There may not be 
much ``biological content'' to the offset credits assigned. Since 
habitat value is site-and detail-specific, there are no unsigned 
biological bearer bonds. That is to say, the amount of habitat credit 
appropriate to a mitigation scheme is not fungible, but highly 
dependent upon the specifics of the exchange. Generic criteria will 
quickly break down. What is needed is a process for valuation, not 
fixed criteria.
    The success of mitigation measures depends on their timely 
implementation. To increase the probability that unsuccessful 
mitigation procedures can be detected and corrected, implementation 
should occur before the listed species are impacted by the permitted 
development activities. If most of the take occurs before mitigation 
measures are implemented, the chance of adapting the conservation 
strategy to correct unsuccessful conservation measures is substantially 
reduced. This also applies to plans covering multiple species, both 
listed and unlisted. \111\ Also, if take is permitted before the 
permittee implements mitigation measures, the incentive to mitigate 
effectively is reduced. In general, the Services recommend that the 
mitigation habitat should be available before the applicant's 
activities commence. However, in some cases, the Services will allow 
the HCP applicant to conduct activities before the time when 
replacement habitat can be provided. The Services find this acceptable 
so long as the HCP provides legal or financial assurances that the 
permittee will fulfill their obligations under the HCP. For example, 
this assurance can be provided through letters of credit controlled by 
the government until the permittee establishes the mitigation lands. 
\112\
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    \111\ For example, the San Diego MSCP and the Plum Creek HCP cover 
53 and 281 unlisted species, respectively, and 32 and 4 listed species, 
respectively, but there is no requirement that mitigation must occur 
before unlisted species can be taken. Monroe, Jud, Habitat Conservation 
Plans Assurances and Assurance Mechanisms: A Preliminary Review of 
Approaches to Mutual Assurances in Several Milestone Habitat 
Conservation Plans 3. Prepared for the Metropolitan Water District of 
Southern California (1997) (hereinafter cited as ``MWD'').
    \112\ FWS & NMFS, supra note 19, pg. 3-22.
---------------------------------------------------------------------------
    Because mitigation can be one of the most expensive steps in the 
development and execution of an HCP, the Services and applicants must 
determine early in the development of the HCP the cost of the proposed 
measures, the source of funding, and the time period over which these 
funds will be available. HCPs generally satisfy these criteria. \113\
---------------------------------------------------------------------------
    \113\ NCEAS found that 98 percent of the HCPs identified in advance 
the sources of funding for the mitigation proposed; however, only 77 
percent had significant funds set aside to pay for mitigation at the 
onset of the HCP. NCEAS, supra note 12, pg. 28.
---------------------------------------------------------------------------
The Importance of Monitoring
    While the choice of mitigation measures is crucial for an effective 
program of adaptive management, biological monitoring comprises the 
heart of adaptive management practices. HCPs that do not include a 
monitoring program cannot be scientifically evaluated. As previously 
stated, adaptive management treats all HCPs as ``learning 
laboratories'' in which the underlying conservation hypotheses are 
tested against actual responses in the species population. Monitoring 
of these responses in order to adjust conservation strategies is 
indispensable. \114\ In addition, a precise trigger for mitigation 
adjustments needs to be spelled out in the HCP agreement, as well as 
procedures for accomplishing the indicated adjustment. The mere 
existence of monitoring is not a solution to data shortage unless it 
includes a quantitative decisionmaking process that links monitoring 
data to adjustments in management.
---------------------------------------------------------------------------
    \114\ An effective conservation plan requires a long-term 
obligation to ecological monitoring and to adjusting plans on the basis 
of new information. For example, the monitoring plan for the Coachella 
Valley fringed-toed lizard has uncovered, over the past decade, a 
number of important factors affecting both lizard populations and the 
physical processes of the ecosystem crucial to implementing the plan. 
The lizard population has been monitored within three preserves since 
1986; the results of these surveys indicate that lizard populations 
fluctuate with the availability of loose sand, insects, and other 
resources. However, monitoring only lizards, with no observation of the 
larger ecosystem or commitment to action according to the results of 
monitoring, would not permit adaptive management it would be ``an 
academic exercise, with no options for remedial protection efforts.'' 
Barrows, C.W. An ecological model for the protection of a dune 
ecosystem. 10 Conservation Biology as quoted in Noss, et al., supra 
note 13, pp. 133-134.
---------------------------------------------------------------------------
    An adequate monitoring program requires the use of quantifiable 
indicators, placed in a hypothesis-testing framework with a valid 
experimental design. Three prominent conservation biologists recommend 
employing the following checklist when assessing the adequacy of an 
HCP's monitoring program: \115\
---------------------------------------------------------------------------
    \115\ Noss, et al., supra note 13, pp. 135-136.
---------------------------------------------------------------------------
    (1) Is the monitoring program scientifically and statistically 
valid? Monitoring need not be complex and expensive, just 
comprehensive.
    (2) Does the program effectively test the success of the 
conservation measures? The purpose of monitoring is to test hypotheses 
and inform management. Does the HCP allow for testing of hypotheses 
regarding effects of management practices on populations and other 
conservation elements of concern? Does it allow for testing of 
alternative management treatments?
    (3) Will the program provide timely analysis? Does the plan include 
a mechanism for regular and timely analysis and review of monitoring 
data? HCPs should include specific timetables for analyzing and 
interpreting monitoring data in order to inform management decisions. 
Such a requirement assures that monitoring will not stop with the 
collection of information but will include efforts to analyze and 
interpret it. Monitoring must also be time-sensitive to the life cycle 
of the monitored species. \116\
---------------------------------------------------------------------------
    \116\ For example, short-lived species, e.g., listed mice species, 
must be monitored much more frequently than long-lived species, e.g., 
desert tortoises (with respect to generation time), and annual plants 
more frequently than redwood tress. Ibid., pg. 132.
---------------------------------------------------------------------------
    (4) Is the HCP designed to be responsive to information derived 
from monitoring? Can the plan be modified to take into account new 
information? An HCP that is ``set in stone'' and designed to avoid 
future surprises is inflexible and potentially places species and 
ecosystems at great risk. Since nature is dynamic and unpredictable, 
surprises will occur; it is a matter of whether we notice them. The 
sooner we notice them and take corrective action, the lower the risk to 
biodiversity. Therefore plans should be evaluated as to how open they 
are to modification based on new information.
    The principal criteria for determining the adequacy of a monitoring 
program should be its ability to evaluate the success of mitigation 
measures and the consequent effect on protected species. Monitoring 
data should be incorporated into centralized data bases to facilitate 
access to information on the overall status of species, and to 
facilitate assessment of cumulative impacts for specific plans. \117\
---------------------------------------------------------------------------
    \117\ NCEAS, supra note 12, pg. 44.
---------------------------------------------------------------------------
    Reviewers found that few HCPs have well-developed and statistically 
valid monitoring programs, \118\ and the Services typically offer 
little help to an applicant in constructing a scientifically defensible 
monitoring program. \119\ Fewer HCPs still have actually monitored 
their results adequately over a period of years so that trends can be 
detected. When monitoring is deficient, the essential goal of learning 
from experience is much harder to accomplish. Fortunately, the 
Services' Draft Handbook Addendum does propose to improve upon current 
compliance monitoring by requiring permittees to monitor both their 
success in implementing mitigation measures and their effectiveness in 
achieving the conservation goals. \120\
---------------------------------------------------------------------------
    \118\ In their research, Noss, O'Connell, and Murphy found that 
plans either completely lack monitoring programs or had only vague 
requirements for how plans should be modified on the basis of data 
derived from monitoring. Noss, et al., supra note 13, pg. 134. The 
NCEAS study sampled 43 HCPs to determine how often plans incorporate a 
monitoring program. They found that only 22 of the plans contained a 
clear description of the monitoring program. NCEAS found that for the 
vast majority of species, monitoring was either absent or not 
documented adequately for researchers to assess take, species status, 
or mitigation success during the course of the plan's implementation. 
NCEAS also found that plans with an adaptive management program were 
much more likely to also include clear monitoring plans. NCEAS, supra 
note 12, pp. 28-29.
    \119\ The HCP Handbook offers only vague guidance. It states that 
the following steps are logical elements for consideration in 
developing HCP monitoring programs for regional or other large-scale 
HCPs:
      (1) Develop objectives. Any monitoring program should answer 
specific questions or lead to specific conclusions.
      (2) Describe the subject of the monitoring program.
      (3) Describe variables to be measured and how the data will be 
collected.
      (4) Detail frequency, timing, and duration of sampling for the 
variables. Determining how frequently and how long to collect data is 
important to the success of the program.
      (5) Describe how data are to be analyzed and who will conduct the 
analyses. A monitoring program is more effective when analytical 
methods are integrated into the design.
      (6) Monitoring must be sufficient to detect trends in species 
populations in the plan area but should be as economical as possible. 
Avoid costly monitoring schemes that divert money away from other 
important programs such as mitigation.
      (7) Monitoring programs can be carried out by a mutually 
identified party other than the permittee, so long as program is funded 
and the party is qualified.
    FWS & NMFS, supra note 19, pp. 3-26 3-27.
    \120\ The proposed amendment to the Handbook states that: ``The 
Services often incorporate monitoring measures to assess whether goals 
are being met, especially in cases where additional information may be 
desirable or there is significant scientific uncertainty.'' The purpose 
of monitoring is to ensure that the permittee complies with the ITP. 
The Services have not revealed their intentions regarding Federal 
oversight or participation in developing a monitoring plan or the 
frequency with which they will review data generated by the monitoring 
program if at all. 64 Fed. Reg. pg. 11488-89.
---------------------------------------------------------------------------
    The Services require the applicant to demonstrate funds sufficient 
to carry out the activities under the HCP including conservation 
measures, plan administration, and biological monitoring. \121\ 
However, reviewers have found that many HCPs do not commit sufficient 
funds to properly monitor species and habitat and identify problems. 
Without funding for the kind of thorough biological monitoring that 
makes adaptive management possible, plans cannot be implemented in a 
scientifically credible manner. \122\ The conservation organization 
Defenders of Wildlife recommends that applicants be required to post a 
performance bond or other financial security before they are granted an 
incidental take permit, ensuring that funds will be available if a 
permit is revoked or additional mitigation measures become necessary. 
Such measures would also protect the public if landowners become 
insolvent or otherwise terminate the agreement before mitigation steps 
are completed. \123\ Other commentators recommend establishing a 
Federal trust to provide supplemental support in the event that 
landowners comply with the plan but additional measures are needed to 
meet biological goals.
---------------------------------------------------------------------------
    \121\ 16 U.S.C. Sec. 1539(a)(2)(B)(iii).
    \122\ Defenders of Wildlife, supra note 7, pg. 82.
    \123\ Ibid.
---------------------------------------------------------------------------
Applying the Precautionary Principle to HCP Design
    Inadequate information regarding the status of a species or its 
habitat and the type and magnitude of take that will occur during 
development activities appears to be endemic in the preparation of 
HCPs. For 25 percent of species covered by HCP's in one study, the 
researchers could not determine whether enough habitat currently exists 
to sustain the species. \124\ For only one-third of the species 
analyzed in that study were there enough data to evaluate what 
proportion of the population would be impacted by the proposed 
development. \125\ The data limitations make it difficult to determine 
the impacts of future losses or alterations of habitat on the listed 
species.
---------------------------------------------------------------------------
    \124\ NCEAS, supra note 12, pg. 18.
    \125\ When available data were used in preparing an HCP, the NCEAS 
researchers found a varying level of quality of their use. For analysis 
of status, take, impact, population sizes and habitat availability, the 
overall quality of data use was fairly high. However, the use of 
existing data regarding extrinsic factors (anticipated human population 
growth, likely future pressures on species) was poor, which could 
undermine otherwise effective mitigation covered by the HCP. Id. pg. 
19.
---------------------------------------------------------------------------
    When data are sparse, as they often are for listed species and 
usually are for other species covered by an HCP, it is difficult to 
confidently design an effective and efficient conservation strategy. 
This is why conservation biologists believe that optimal HCP 
development should be guided by the traditional scientific method of 
using experiments to prove or disprove a testable hypothesis concerning 
available conservation strategies. \126\
---------------------------------------------------------------------------
    \126\ Williams, supra note 14.
---------------------------------------------------------------------------
    The precautionary principle is one method for coping with 
incomplete or inadequate information pertinent to habitat conservation 
planning. The precautionary principle is used in many fields of 
environmental management, as well as fields as diverse as engineering 
and economics, where decisions must be made despite uncertainty. The 
principle holds that, in the face of poor information or great 
uncertainty, managers should adopt risk-adverse practices. \127\
---------------------------------------------------------------------------
    \127\ Id. pg. 40.
---------------------------------------------------------------------------
    In the HCP arena, applying the precautionary principle means 
dealing with data deficiencies in a manner that does not place the 
target species at risk due to irreversible loss of habitat but also 
does not make development impossible. The first step is to assess the 
sufficiency of available data. An inventory of available data and 
acknowledgement of gaps should be a routine requirement in the 
development of every HCP. Where necessary data are not available and 
cannot be practicably obtained, the planning process should proceed 
with caution commensurate with the anticipated risks and uncertainties. 
In extreme cases, an HCP should not be initiated or approved, for it 
would be wrong to call the HCP process scientific, or even rational, if 
it were not an option to halt the process in the absence of crucial 
information. \128\ In general, the precautionary principle counsels 
that: \129\
---------------------------------------------------------------------------
    \128\ Workshop Findings and Conclusions, supra note 16.
    \129\ These points are based on recommendations by NCEAS, supra 
note 12, pg. 41.
---------------------------------------------------------------------------
     The greater the impact of a plan, the fewer gaps in 
critical data should be tolerated. For example, the standard of data 
adequacy should be higher for irreversible activities such as are 
typical in urban development. A lower standard of data adequacy might 
be tolerated for activities where impacts can be reversed, as may be 
the case for water diversions that are made conditional upon protection 
of instream values.
     A scarcity of data on impacts of take should be handled by 
assuming a worst-case scenario when determining whether approval 
criteria have been satisfied.
     Take should be quantitatively assessed for large HCPs 
covering vast expanses of land.
     Mitigation measures should be implemented and assessed 
before take occurs where there is a scarcity of information to validate 
the effectiveness of mitigation.
     Monitoring needs to be very well designed in cases where 
the success of mitigation is unproven.
     Adaptive management needs to be a part of every HCP 
predicated on substantial data shortages, not just to deal with 
``unforeseen circumstances.''
    In sum, where critical information is scarce or uncertain, 
application of the precautionary principle counsels that resulting 
plans should:

  (1) be shorter in duration
  (2) cover a smaller area
  (3) avoid irreversible impacts
  (4) require that mitigation measures be accomplished before take is 
    allowed
  (5) include contingencies
  (6) have adequate monitoring

    All of these principles should be enshrined in the HCP approval 
criteria in Section 10 of a reauthorized Endangered Species Act.
    Review and analysis of HCPs to date has found that these 
corollaries of the precautionary principle have not been well applied 
in habitat conservation planning. In particular, HCPs based on less 
information or less certain information tend to be as long in duration 
and a real extent as those based on more adequate information. The 
degree of impact avoidance or minimization has not correlated with the 
sufficiency of data needed to determine the impacts of the proposed 
development activities. Finally, researchers have found that HCPs based 
on poor information tend to be more likely to include irreversible 
impacts. \130\ These results suggest that HCPs are not generally 
structured to be more cautious in cases where applicants are working 
with large data gaps.
---------------------------------------------------------------------------
    \130\ NCEAS, supra note 12, pg. 41.
---------------------------------------------------------------------------
     align regulatory assurances with adaptive management and the 
                   conservation performance of an hcp
Regulatory Assurances: Controversial but Necessary
    The Services are convinced that legal assurances are necessary to 
induce private rights holders to develop HCPs and to implement the 
conservation measures obligated therein. \131\ The increase in HCP 
activity in response to such assurances seems to confirm this 
assumption. Implicit in this belief is the fear that, unless owners of 
non-Federal lands and waters are induced to make conservation 
commitments, endangered species habitats will be surreptitiously 
destroyed or degraded as such properties are developed. While such take 
may be prohibited by the ESA, its occurrence can readily overwhelm the 
detection and enforcement capabilities of the Services. In essence, 
regulatory assurances provide the necessary inducement for habitat 
conservation planning by exempting development activities from new or 
additional mitigation requirements beyond those committed in the HCP. 
\132\ The major concern of the HCP performance reviewers is that such 
regulatory assurances can introduce rigidity in the conservation 
strategy that inhibits or precludes adaptive management.
---------------------------------------------------------------------------
    \131\ Many commentators concur with the Services that such 
assurances are necessary. For example, Robert Thornton believes that 
regulatory assurances make HCPs palatable to landowners and can be set 
up to be consistent with principles of conservation where the plan is 
designed to protect ecosystems rather than listed species. Thornton, 
supra note 20, pg. 655-656.
    \132\ Dept. of the Interior and Dept. of Commerce. Final Rule, 
Habitat Conservation Plan Assurances (``No Surprises''), 63 Fed. Reg. 
8859-8860 (Feb. 23, 1998) (hereinafter cited as ``DOI & DOC'').
---------------------------------------------------------------------------
    Assurances are also controversial because they tend to shift to the 
species, which can ill afford them, the risks associated with our 
imperfect knowledge about how complex biological systems respond to 
human interventions. Those risks are exacerbated by the practice of 
conferring assurances without regard to the quality or duration of the 
conservation plan. \133\ The property rights holder typically seeks to 
be absolved of further responsibility for the conservation of the 
species in exchange for the development concessions made in the HCP, 
irrespective of the future population trends for the covered species.
---------------------------------------------------------------------------
    \133\ The landowners' desire to reduce risks associated with 
economic projections typically determines how long plans apply. 
Defenders of Wildlife, supra note 7, pg. 83.
---------------------------------------------------------------------------
    Currently, the form of regulatory assurance provided by the 
Services is the ``No Surprises'' guarantee. \134\ The policy can be 
traced back to a House of Representatives Committee Report on the 1982 
Amendments to the Endangered Species Act. \135\ The Report stated that, 
in the event an unlisted species is listed after permit issuance,
---------------------------------------------------------------------------
    \134\ The ``No Surprises'' rule provides a ``bankable'' 
understanding that additional land or money will not be required on the 
``whim and caprice of the Services''--especially when the additional 
requirements derive from events beyond the control of the landowner. 
Thornton, supra note 27, pg. 66. Yet, some commentators worry that the 
rule could set a dangerous precedent in the way agencies deal with 
changing circumstances. For example, polluters should not be protected 
from the regulatory effects of new information indicating that a 
discharged pollutant is a poison. Similarly, land or water developers 
should not be protected from the effects of new information indicating 
that certain habitat management techniques interfere with recovery. 
Sher and Weiner, supra note 32, pg. 69.
    \135\ H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30, reprinted in 
1982 U.S. Code Cong. & Admin. News 2860, 2871-2872.

    ``no further mitigation requirements should be imposed if the [HCP] 
    addressed the conservation of the species and its habitat as if the 
    species were listed pursuant to the Act.'' \136\
---------------------------------------------------------------------------
    \136\ Ibid.

    The Report also stated that ``circumstances and information may 
change over time'' and that the original plan might need to be revised. 
To address this situation, the Committee ``expect[ed] that any plan 
approved for a long-term permit [would] contain a procedure by which 
the parties will deal with unforeseen circumstances.'' Finally, the 
---------------------------------------------------------------------------
Report specified that the Services may:

    ``approve conservation plans which provide long-term commitments 
    regarding the conservation of listed as well as unlisted species 
    and long-term assurances to the proponent of the conservation plan 
    . . .'' \137\
---------------------------------------------------------------------------
    \137\ Id.

    Today, the ``unforeseen circumstances'' clause is interpreted to 
mean that landowners are not responsible for the decline of listed 
species covered by their plan if that decline is attributable to events 
that the landowner could not have foreseen at the time the plan was 
approved. \138\ The Services formally adopted the policy as an agency 
rule on February 23, 1998. \139\
---------------------------------------------------------------------------
    \138\ FWS & NMFS, supra note 19, pg. 3-29.
    \139\ The policy was informally adopted in 1994 and included in the 
HCP Handbook in 1996. Ibid., pg. 3-29. Because the policy was adopted 
without benefit of public review or comment, conservationists sued the 
Services in 1997. Spirit of the Sage Council v. Babbitt, Civ. No. 96-
cv02503 (Dist. D.C. 1997). To resolve the lawsuit, the Services adopted 
the policy a formal rule. DOI & DOC, supra note 132, pg. 8860.
---------------------------------------------------------------------------
    The ``No Surprises'' policy has had a dramatic affect on the public 
perception of the ESA. It has muted political concern that the ESA is 
unworkable and too stringent. \140\ Yet, the policy has no shortage of 
critics, conservation biologists among the harshest. Some of the 
outstanding issues that biologists find problematic include:
---------------------------------------------------------------------------
    \140\ Baur, Donald C. The No Surprises Policy: Stepping Away from 
Sound Bites and Getting Down to Business. 14 Endangered Species Update: 
Habitat Conservation Planning 63 University of Michigan (July/Aug. 
1997).
---------------------------------------------------------------------------
     Unforeseen circumstances. The rule distinguishes between 
``unforeseen circumstances,'' which are events that could not 
reasonably have been anticipated, and ``reasonably foreseeable changes 
in circumstances,'' including natural catastrophes that normally occur 
in the area. HCPs need address only the latter; unforeseen 
circumstances do not impose any conservation burdens on the applicant. 
\141\ The rule thus requires contingency planning only for stochastic 
events rather than the more likely failure of mitigation measures to 
work as ``foreseen'' or anticipated, such as the common circumstance in 
which the HCP is implemented as agreed but species decline nonetheless. 
The risk of such ``unforeseen'' events dramatically increases for HCPs 
that last several decades, cover large areas, and cover many species, 
such as housing developments or timber harvesting. Yet the plans for 
these activities involving long periods of construction or operation 
contain the same assurances as do short-term, single species plans.
---------------------------------------------------------------------------
    \141\ In the event of unforeseen circumstances, the permittee 
``cannot be required to commit additional land, funds, or additional 
restrictions on land, water or other natural resources `` FWS & NMFS, 
supra note 19, pg. 3-29.
---------------------------------------------------------------------------
    In the event of a finding of ``unforeseen circumstances,'' the 
Services are free to take additional actions at their own expense to 
protect the species, provided that they have the financial means 
appropriated by Congress to do so, and provided that the affected 
landowners agree to cooperate. Curiously, in an era where the Services 
are only able to meet a fraction of their statutory responsibilities, 
\142\ the Services maintain that they have ``significant resources'' to 
provide additional protection for listed species subject to an HCP. 
\143\ The Services also have expressed confidence that many landowners 
would willingly consider additional conservation on a voluntary basis. 
\144\ However, given the wealth of evidence to the contrary, further 
explanation of this assumption is warranted.
---------------------------------------------------------------------------
    \142\ For example, an EDF study found that listed species are not 
improving on Federal land because the number of species being listed is 
out pacing the Services increases in funding. The funding for the 
endangered species program has increased nearly threefold since 1976; 
however, the number of listed species has increased fivefold during 
that same period. Environmental Defense Fund, supra note 6, pg. 6.
    \143\ DOI & DOC, supra note 132, pp. 8862, 8869.
    \144\ Ibid.
---------------------------------------------------------------------------
    In addition, the threshold for finding that circumstances are 
``unforeseen'' (and that the Service can therefore undertake additional 
conservation measures at its own expense and with the permission of the 
landowner) is unrealistically high. Under the rule, the Services ``have 
the burden of demonstrating that unforeseen circumstances exist, using 
the best scientific and commercial data available. The findings must be 
clearly documented and based upon reliable technical information 
regarding the status and habitat requirements of the affected 
species.'' \145\ The rule includes a number of specific factors that 
the agency must consider in determining whether it has demonstrated 
that unforeseen circumstances exist. \146\
---------------------------------------------------------------------------
    \145\ Id., pg. 8868.
    \146\ The Services will consider the following factors:
      (1) the size of current range of the affected species;
      (2) the percentage of range adversely affected by the HCP;
      (3) percentage of range conserved by the HCP;
      (4) ecological significance of that portion of the range affected 
by the plan;
      (5) level of knowledge about the affected species and the degree 
of specificity of the species;
      (6) conservation program under the plan; and
      (7) whether failure to adopt additional conservation measures 
would appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild. Id.
---------------------------------------------------------------------------
      Adaptive management. Conservation biologists worry that 
the ``No Surprises'' policy falsely assumes that we can predict all the 
consequences of implementing a particular HCP. Under the rule, the 
Services cope with gaps in biological data by either denying the 
application for a take permit or requiring that the applicant build an 
adaptive management program into the HCP. \147\ However, the rule does 
not deal with the situation where new data from the monitoring program 
or another source indicates that achievement of the conservation goals 
will require a change in the conservation strategy. The ability to 
require such modifications is what we mean by ``adaptive management.'' 
If modification of plans in response to new information is precluded by 
the ``No Surprises'' policy, failures to attain biological goals are 
inevitable. \148\
---------------------------------------------------------------------------
    \147\ Id., pg. 8864.
    \148\ Noss, et al., supra note 13, pg. 134.
---------------------------------------------------------------------------
      Regulatory assurances for conservation measures covering 
nonlisted species. While the ESA does not require landowners to protect 
unlisted but declining species on their lands, the Services encourage 
landowners to ``address'' any unlisted species in an HCP by conferring 
additional regulatory guarantees that further mitigation will not be 
required if such species is later listed. \149\
---------------------------------------------------------------------------
    \149\ Assurances are only extended to measures covering an unlisted 
species if the HCP meets the section 10(a)(2)(B) standards for the 
species. DOI & DOC, supra note 132, pg. 8867. This is consistent with 
the assurances contemplated in the ESA's 1982 amendments. H.R. Rep. No. 
97-835, 97th Cong., 2d Sess. 30, Reprinted in 1982 U.S. Code Cong. & 
Admin. News 2860, 2871-2872; Habitat Conservation Planning Assurances 
(No Surprises Rule) 63 F.R. 8859 (Feb. 23, 1998).
---------------------------------------------------------------------------
    A good example of the risks posed to unlisted species that are 
included in an HCP can be found in the Plum Creek timber plan. The Plum 
Creek plan allows the take of four species currently protected by the 
ESA: northern spotted owl, marbled murrelet, grizzly bear, and gray 
wolf. \150\ The HCP also addresses another 281 unlisted vertebrate fish 
and wildlife species. The planning area of 419,000 acres provides 
habitat for 77 mammal, 178 bird, 13 reptile, 13 amphibian, and 4 fish 
species. \151\ While Plum Creek's measures to benefit these species 
include greater riparian buffers and wetland protection than would be 
required under existing state law, the public is likely to be bound to 
these commitments if, in 100 years, one or many of these species need 
further protection.
---------------------------------------------------------------------------
    \150\ Plum Creek Multi-Species Habitat Conservation Plan on 
Forestlands owned by Plum Creek Timber Company in the I-90 Corridor of 
the Central Cascades Mountain Range (June 1996).
    \151\ Ibid.
---------------------------------------------------------------------------
    As another example, San Diego County's large-scale NCCP management 
plan shields local government and developers from providing additional 
commitments of land or money for conservation purposes so long as they 
comply with the plan. \152\ Such regulatory assurances apply to some 85 
listed and unlisted species and may be applied to additional species in 
the future if signatories to the MSCP agree that the species are 
``adequately conserved'' by the plan. \153\
---------------------------------------------------------------------------
    \152\ The Services may not even impose new mitigation measures that 
do not require additional land, land restrictions or money except in 
``extraordinary circumstances.'' Extraordinary circumstances are 
defined as either: (1) ``a significant, unanticipated adverse change in 
the population of any covered species or [its] habitat with the MSCP 
Area''; or (2) ``any significant new or additional information that was 
not anticipated by the [signatories] at the time the MSCP was approved 
and that would likely result in a significant adverse change in the 
population of any covered species or [its] habitat within the MSCP 
Area.'' Mueller, Tara. Natural Community Conservation Planning: 
Preserving Species or Developer Interests? 14 Endangered Species 
Update: Habitat Conservation Planning 27 University of Michigan (July/
August 1997).
    \153\ Ibid.
---------------------------------------------------------------------------
    If adequately addressed in an HCP, unlisted species could be 
protected from further decline so as to avoid a listing, thereby 
guaranteeing that the landowner will not be subject to further 
mitigation. \154\ Unfortunately, establishing conservation requirements 
for unlisted species is difficult since little is generally known about 
the requirements of the species. As a result, an applicant must be 
willing to invest in further biological studies to ensure that the HCP 
adequately covers unlisted species. In this case, a critical issue in 
HCP development is the early identification of those species or 
biological communities that the plan is to cover \155\ and a 
determination by the Services that enough is known about the species so 
that HCP proponents can construct an effective conservation plan.
---------------------------------------------------------------------------
    \154\ Defenders of Wildlife, supra note 7, pg. 20. The Services 
cite this same advantage in their HCP Handbook. The Handbook states 
that there are significant biological advantages when HCPs are 
comprehensive planning documents that address species' conservation 
needs collectively on a community, habitat-type, or even ecosystem 
level. The Services encourage this approach since it avoids 
inefficient, piecemeal land-use planning by encouraging landowners to 
trust that addressing the interests of wildlife serves their interests 
as well. FWS & NMFS, supra note 19, pg. 4-2.
    \155\ Thornton, supra note 20, pg. 640.
---------------------------------------------------------------------------
Reforming Assurances
    Given the importance of regulatory assurances to create an 
environment in which non-Federal property rights holders will make 
commitments to conserve habitat, we must explore options that do not 
shift to the vulnerable species the risks inherent in uncertain and 
untested conservation strategies. Adaptive management permits a 
flexible response that improves as results are monitored. However, 
adaptive management requires a fundamental change in the way the 
regulatory assurances are structured so that HCPs remain flexible and 
contingent rather than immutable, as they are now. One solution lies in 
converting the assurance package from regulatory immunity to regulatory 
indemnity. A policy of regulatory indemnity would mean that, if the 
monitoring program indicates that the species will continue to decline 
unless additional restrictions are imposed or additional mitigation 
measures are applied, these could be implemented without the consent of 
the property rights holder but also without economic costs to that 
entity. Instead, the biological risks would be absorbed by a 
compensation fund.
    The use of regulatory indemnity in the HCP process is analogous to 
risk insurance in that it converts the problem of how to allocate the 
risks associated with the biological uncertainties of HCPs to the 
problem of how to allocate the costs of funding the indemnity pool and 
how to determine eligibility for compensation. The compensation pool 
could be funded from ``premiums'' contributed by the ``beneficiaries,'' 
a category that includes both HCP applicants and the public at large. 
Indeed, most commentators recognize that some, perhaps most, of the 
costs of managing adaptively will have to be borne by the public at 
large. This is already beginning to happen in the California Central 
Valley water system, the Everglades, and other aquatic ecosystems. 
\156\
---------------------------------------------------------------------------
    \156\ Solving the issue of how to determine compensated loss in a 
manner that satisfies the private rights holder is simpler in the 
aquatic context than in the terrestrial because lost water supply 
reliability is both relatively easy to measure and to compensate for.
---------------------------------------------------------------------------
    One commentator notes that biological risks to economic development 
are not different in kind from the myriad of other risk factors for 
which the construction industry has found insurance coverage to provide 
the necessary certainty required by capital markets. \157\ In the 
construction context, parties do not argue about the need to provide 
certainty since they know from experience that surprises are to be 
expected; instead, they figure out how to minimize the risks and 
provide sufficient security to afford the lender comfort to finance the 
project. \158\ Carried to its logical conclusion, reducing the 
financial risks associated with land development under the ESA should 
lead to more favorable interest rates for development loans. Thus, 
potential also exists to fund a portion of the compensation pool 
through reductions in the cost of debt service for covered development 
projects on the premise that an indemnity arrangement does reduce the 
risks to development under the ESA.
---------------------------------------------------------------------------
    \157\ Thornton, supra note 27, pg. 65.
    \158\ Ibid. pp. 65.
---------------------------------------------------------------------------
    As discussed above, another suggested reform in regulatory 
assurances would calibrate the duration or rigor of the assurance to 
the quality or expected performance of the HCP's conservation strategy. 
Under this approach, the scope or duration of the regulatory assurance 
would depend on the magnitude of the HCPs contribution to the recovery 
of the target species. Plans that confer a net survival benefit would 
get longer and more comprehensive guarantees than those that simply 
maintain the current population level or allow some decrease. 
Similarly, plans for which the underlying data and analyses are judged 
to be superior would be entitled to superior guarantees. Stronger, more 
comprehensive, or longer-term assurances would be reserved for HCPs 
that have the following features:
    (1) Recovery goals;
    (2) An effective monitoring program;
    (3) An adaptive management program which identifies the significant 
risks of unsuccessful mitigation measures, includes a contingency plan 
that will be triggered in the event that the conservation measures do 
not achieve their goals, and commits sufficient funds to carry out this 
program; and
    (4) An effective enforcement mechanism in the event that the 
commitments in the HCP are not honored.
                               conclusion
    Empirical reviews of the performance of the habitat conservation 
planning experience during its first 15 years reveal substantial 
opportunities to restructure the process to improve the prospects for 
successful outcomes from the vantage points of both imperiled species 
and nonFederal property rights holders. These benefits can be 
accomplished without amending the statutory framework, although a 
modest ``tune-up'' of the Endangered Species Act would help enable 
these reforms. A marked change in the Federal administration of this 
program and a substantial increase in Federal investments in habitat 
conservation are the indispensable ingredients.
    In sum, these reforms would entail:
     Shaping individual HCPs to contribute to a landscape-
scale, bio-regional conservation strategy. Responsibility for 
developing bio-regional conservation strategies would fall to either 
the Federal Services or units of government at the state or local 
level. Increased involvement of government would shift much of the 
burden of gathering adequate scientific data onto the public sector as 
well as allow for more involvement by independent scientists and the 
interested public. The creation of landscape-scale HCPs would define 
objectives and strategies to which conservation efforts on non-Federal 
lands would be expected to conform. And it would provide necessary 
guidance as to the contribution toward those conservation goals that is 
needed from each parcel-specific HCP within the eco-regional planning 
unit. In addition, eco-regional planning would facilitate a more 
equitable distribution of responsibility for conservation between 
Federal and nonFederal rights holders.
     Aiming bio-regional conservation strategies at species 
recovery. The only biologically defensible goal for habitat 
conservation planning is the recovery of the endangered species. The 
Federal Government can advance recovery by managing public lands and 
waters to a higher conservation standard than the legal minima. 
Recovery would also be advanced incrementally by habitat acquisitions 
or restoration actions that more than offset the habitat losses (i.e. 
mitigation measures that create a net biological benefit). Where 
species recovery requires a greater conservation effort by the 
individual rights holders than is imposed by the current legal standard 
of avoiding jeopardy, Federal resources may be necessary to close the 
gap. This may often take the form of purchases of the highest-value 
habitats from willing owners. Occasionally, it may also entail 
involuntary, but fully compensated, acquisitions should Federal 
condemnation authority be eventually conferred.
     Reserving the decision on participation in the HCP 
negotiations for the Services rather than the permit applicants. If the 
Services act as ``gatekeeper'' to the HCP negotiations, highly 
qualified independent scientists and other representatives of the 
public interest can be included in what is now often a closed process. 
Scientific experts should be allowed to ``intervene'' in HCP 
negotiations on behalf of local communities and conservation interests 
to help shape a conservation program from its formative stages. Habitat 
conservation plans developed with independent scientific input are more 
likely to succeed in their conservation goals, thus diminishing the 
chances that the Services will need to revise development permits. 
Through innovative tools such as the HCP Resource Center, all 
stakeholders can all enjoy the benefits of expert scientific input in 
the HCP negotiation process without the proponent absorbing the cost.
     Incorporating adaptive management routinely in HCPs. This 
entails including in the chosen conservation strategy a process for 
structured learning and adjustment. This, again, will improve the 
prospects for success of the conservation venture. If coupled with an 
insurance arrangement, necessary adjustments can be accomplished 
without financial risk to the permit holder. This would reduce 
regulatory risk more effectively than the current ``No Surprises'' 
assurance, which, in any event, is legally infirm in the event of 
imminent extinction of a target species.
    Habitat conservation planning must be made to work better in the 
interest of all stakeholders. For preventable extinctions in the course 
of developing private lands will not long be tolerated by a people who 
have affirmed time and again in the political crucible the mandate that 
the web of life on which human welfare itself depends shall be 
conserved. Experience to date illuminates some of the pathways for 
better performance. It is time to harness these lessons and chart a 
more certain course.

                       HABITAT CONSERVATION PLANS

                              ----------                              

                       TUESDAY, OCTOBER 19, 1999

                               U.S. Senate,
         Committee on Environment and Public Works,
                  Subcommittee on Fisheries, Wildlife, and 
                                            Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:04 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Thomas, Reid, and Chafee [ex 
officio].
    Also present: Senator Baucus.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    Good morning and welcome to the third in a series of 
hearings by the Subcommittee on Fisheries, Wildlife, and 
Drinking Water, examining habitat conservation plans.
    The subcommittee began a listening and learning endeavor in 
July of this year to better understand the benefits and 
concerns related to habitat conservation plans. We heard from 
scientists, academics, forest products companies, and 
environmentalists about science and the adequacy of science, 
and the challenge of making land management decisions in the 
face of scientific uncertainty.
    Today, eight witnesses will offer testimony focusing on the 
policy questions of HCPs. At present, under the Endangered 
Species Act, HCPs are the only flexibility afforded to private 
landowners who wish to conduct activities such as forest 
management or development, when threatened or endangered 
species occupy a piece of their land or use it as habitat.
    We are joined today by representatives of the environmental 
community, county government, agriculture, homebuilding 
industry, the forest product companies and the energy industry 
to learn from their experiences and knowledge of HCPs. These 
are the people who have been directly involved in developing, 
negotiating, implementing, and litigating HCPs.
    A growing list of species protected under the Endangered 
Species Act and the need for property owners to comply with the 
Act while continuing to derive an economic benefit from their 
land has resulted in an expediential increase in the use of 
this beneficial tool. To date, the Fish and Wildlife Service 
has negotiated more than 250 HCPs, and has approximately 
another 200 in process.
    HCPs sound like the type of ``win/win'' solution that we 
would all like to see for threatened and endangered species, 
protection of the species, and flexibility for landowners to 
carry out activities on their land.
    It is unfortunate that the reality of negotiating HCPs has 
not tracked more closely with what the law and the subsequent 
policies have intended.
    While the Fish and Wildlife Service and the National Marine 
Fisheries Service have sought to improve the process of 
negotiating HCPs through its Habitat Conservation Planning 
Handbook and other guidance, the process remains fraught with 
obstacles for property owners seeking HCPs.
    Landowners involved in negotiations and those who have 
completed plans have demonstrated their willingness to conserve 
species by coming to the table, ready to engage in 
negotiations, and implementing measures on the ground. But all 
too frequently, the process has proved to be inadequate in 
getting HCPs completed.
    This is not a favorable outcome for the species in need of 
protection, or for property owners who must continue to make 
decisions about the activities that will be carried out on 
their land.
    I am keenly interested in making HCPs work better. 
Americans have a rich conservation history, and we have 
demonstrated a commitment to protecting our wildlife and 
fisheries resources, particularly those threatened or 
endangered.
    Private landowners do and can make important contributions 
to the endangered species conservation. But we must have 
mechanisms in place to allow property owners to make a living 
from their land. HCPs are definitely the right idea. But 
modifications must be made if they are to achieve their 
intended goal.
    I believe today's witnesses will provide the subcommittee 
with a better understanding of the problems that habitat 
conservation and planning present, so that we can consider and 
improve this tool, and make it a truly beneficial tool to the 
species and to the people.
    I will ask the chairman of the full committee, Senator 
Chafee, if you wish to make an opening statement.

OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Chafee. Well, thank you very much, Mr. Chairman. I 
want to commend you for holding these hearings on habitat 
conservation planning under the Endangered Species Act.
    I believe they are critical to our understanding of the 
important issue that is instrumental in the continued success 
of the ESA.
    Before exploring the policies we should adopt to protect 
endangered species, it seems to me we have got to explore the 
scientific foundation supporting these policies. And that, of 
course, is what you did when you had your hearings in July. We 
heard testimony from a number of witnesses who provided insight 
into the science underlying HCPs.
    I was particularly impressed by the general agreement among 
the scientists that HCPs, by and large, are essential for the 
conservation of species. And while improvements are needed, the 
basic principles behind the HCPs are sound.
    I want to compliment you, Mr. Chairman, on holding these 
hearings. And I anticipate that today's hearing will be equally 
informative. And I would ask that the balance of my statement 
be included in the record.
    Senator Crapo. Without objection.
     Senator Chafee. Thank you very much.
    [The prepared statement of Mr. Chafee follows:]
   Statement of Hon. John H. Chafee, U.S. Senator from the State of 
                              Rhode Island
    Thank you, Mr. Chairman. I want to commend you for holding these 
hearings on habitat conservation planning under the Endangered Species 
Act. These hearings are critical to our understanding of an extremely 
important issue that is instrumental in the continued success of the 
ESA.
    Before exploring the policies that we should adopt to protect 
endangered species, we must explore the scientific foundations 
supporting those policies. With respect to HCPs, the hearings that you 
chaired in July accomplished exactly that: we heard testimony from a 
number of witnesses who provided insight into the science underlying 
HCPs. I was particularly impressed by the general agreement among the 
academic scientists that HCPs by and large are essential for the 
conservation of species, and while improvements are needed, the basic 
principles behind HCPs are sound. I would like to complement you, Mr. 
Chairman, on holding those hearings, and I anticipate that today's 
hearing will be equally informative.
    The need to protect threatened and endangered species on non-
Federal lands could not be greater. (By non-Federal lands I mean those 
lands that are either privately or state-owned). Consider these facts: 
two-thirds of all listed species have over 60 percent of their habitat 
on non-Federal lands, and one-third of all listed species are dependent 
entirely on non-Federal lands. The conservation of these species thus 
rests largely, if not entirely, on the ability of non-Federal 
landowners to take appropriate measures. The primary tool under the ESA 
for their activities is the HCP.
    At the same time, landowners have long criticized the ESA for being 
inflexible and unworkable. HCPs provide liability coverage against the 
prohibitions of the ESA, but more importantly, they provide a 
management tool for landowners. With the new policies instituted by the 
Administration, HCPs have become economically and logistically feasible 
for landowners. Since 1994, more than 245 HCPs covering six million 
acres have been approved, with another 200 under review.
    However, there are still numerous questions regarding the 
development and implementation of HCPs. Conservation groups criticize 
the HCP initiatives, particularly the no-surprises policy, as 
undermining species conservation. Landowners complain that they still 
run into obstacles in both negotiating and implementing HCPs, and that 
the Administration does not always apply consistent standards.
    In addition, critics on both sides believe that the Administration 
has exceeded its statutory authority in implementing these new 
policies, and are challenging them in court. This morning, we will hear 
from two of the lawyers involved in the litigation challenging the no-
surprises policy.
    As you know, last Congress we attempted to reauthorize the ESA, and 
our bill included a number of provisions to address HCPs. As we 
consider new legislative initiatives on HCPs, it is useful to further 
explore the science and policy behind the current policies. Your 
leadership on these hearings, Mr. Chairman, is both timely and 
critical. I look forward to the testimony of our distinguished 
witnesses this morning.

    Senator Crapo. Senator Reid.

  OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Reid. Thank you very much, Mr. Chairman.
    Your predecessor, Senator Kempthorne, with the chairman of 
the full committee, Senator Chafee, the ranking member, Senator 
Baucus, and I, I think, did some of the best legislative work 
that I have ever been involved in, in my several decades 
involved in the legislative process. We came up with a 
Endangered Species Act.
    We had the language passed out of this committee. We were 
very proud of that. It got on the Senate floor and was not 
brought up.
    By the time we were ready to bring it up, a lot of darts 
had been thrown at it. We were unable to move that legislation. 
It was, I think, just a remarkably good piece of work. It is 
too bad that we did not move on it when we could.
    We have not, and now we are trying to enact bits and pieces 
of the Endangered Species Act. It may be the way to go.
    I would like to welcome all the witnesses today. Habitat 
conservation plans, I believe they are a useful, creative tool 
for the protection of both endangered species and private 
property rights.
    They have not given us a perfect answer, but they have 
moved us in the right direction. I think a fresh look at what 
we have learned is beneficial.
    The largest habitat conservation area in the United States 
is in the State of Nevada. People do not realize the State of 
Nevada is the most densely populated State in American, the 
most urban State in America. Ninety percent of the people live 
in two metropolitan areas, Reno and Las Vegas.
    We are more urban than Rhode Island, New York, California, 
Florida. It surprises some to learn that the largest habitat 
conservation area in the United States is in the most densely 
populated part of Nevada. That is the Las Vegas area.
    That habitat conservation plan for the desert tortoise 
encompasses almost 6 million acres, and has allowed for 
relatively peaceful coexistence of the threatened desert 
tortoise with as many as 10,000 new residents moving into Clark 
County every month.
    These new residents have brought with them one of the 
longest sustained building and economic booms in the history of 
the United States. Yet, all of it is taking place despite the 
presence of the desert tortoise, a species that was emergency-
listed in August 1989.
    Jim Moore, formerly the desert tortoise HCP coordinator for 
the Nature Conservancy of Nevada, is here this morning to 
describe the process and procedures that were used in Las Vegas 
to bring about what has been a very successful solution in 
southern Nevada.
    I am happy that Jim is here this morning and I certainly do 
not want to give away his testimony. I have read his testimony. 
It is extremely interesting and precise.
    It is safe to say that the HCP process that was followed in 
southern Nevada has been successful. The entire process was 
time consuming, and at times, very frustrating.
    The amount of public participation that went into the final 
plan was unprecedented, in addition to the amount of private 
money that went into the plan to make it successful. But the 
end result was a system that everyone could live with, and one 
that protects the species that have been listed.
    Earlier this year, when I sat down to discuss the agenda of 
this subcommittee with you, Mr. Chairman, I shared with you my 
concern that comprehensive reform of the Endangered Species Act 
was probably unrealistic this year, and probably in this 
Congress, especially given last year's fate of S. 1180.
    I think the committee can make substantial progress by 
taking an incremental bipartisan approach. As a group, there 
are many things we can and should address in the ESA.
    This hearing is the latest in a series of forums that this 
subcommittee has held this year on specific issues within the 
Endangered Species Act. Earlier this year, we held hearings and 
drafted up legislation concerning recovery habitat. That 
legislation is currently awaiting action on the floor.
    Based on what we hear and read, this committee may move 
forward to try to improve the procedures and processes 
surrounding habitat conservation plans.
    While the desert tortoise HCP has been very successful, 
other communities have struggled, particularly with issues such 
as: what level of assurance is required for both sides; what 
level of public participation should be required; and what 
happens in the event of a mistake? All of these are valid 
concerns, and there are others that we will hear about today.
    The things that we, as a group, can come to consensus about 
and act on to improve the use of HCPs, I think we should do 
that forthwith.
    However, before we move too far down the path on habitat 
conservation plans, I want to see the fate of our recovery 
habitat bill played out a little more.
    If the consensus and cooperation that mark this committee's 
work on S. 1100 carries through to full Senate consideration of 
that legislation, then I will be much more comfortable moving 
ahead in other areas of the ESA.
    So, Mr. Chairman, I thank you for agreeing to hold this 
hearing. Throughout the year, I have been very impressed with 
your knowledge of this subject, and your willingness to listen 
to different sides. And I look forward to this hearing.
    I do apologize, because of the duties that I have in the 
Capitol, I am not going to be able to stay for the entire 
hearing. My friend from Nevada will be on the second panel.
    Senator Crapo. Thank you very much.
    Senator Thomas.

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I am glad to be 
able to participate in this hearing today on conservation 
plans.
    I think the future of the endangered species is one of the 
most important issues that we have to deal with on this 
committee. And I agree with my friend from Nevada, that we had 
an opportunity last year, but unfortunately, were not able to 
put it into place.
    There are lots of examples of good intentions to recover 
endangered species that have gone astray. A lot of folks in 
Wyoming are clamoring for some type of reform.
    At the outset, let me say that even though today's meeting 
is focused on habitat conservation plans, I think we need to 
look at substantially more changes than that. I also have a 
bill that deals largely with listing and de-listing.
    We have found that the quality of science used in listing 
and nominating petitions falls short. They are of postage stamp 
petitions. We need to change them, rather than trying to shore 
them up.
    We need to take a look at HCPs as a tool. Apparently, they 
have been a better tool for large landowners than they have for 
small landowners. We need to take a long look at that. It is 
very costly for a small landowner. The incentives, I think, are 
not very high.
    In general, I just believe we have to have an Act that is 
more effective in trying to protect the local landowners and 
public land managers and communities.
    Our efforts are sure to fail if there is not some more 
cooperation among the Federal, State, and local governments. 
Many times, we say we are partners, and we are going to work in 
a partnership, but it is kind of a ``one horse, one dog'' 
partnership.
    The city of Douglas, WY, for example, just recently got 
caught up in the bureaucratic administration of it. The city's 
water main broke. Inside of the break, a Preble's meadow 
jumping mouse, was found.
    It took 2 months for the agency to issue a permit to fix a 
line, which left half the city of Douglas at risk for drinking 
water, and the whole city at risk in terms of fire protection.
    Now come on. One jumping mouse is hardly an excuse for 
doing that. So I think we have a lot of things to do. This, 
perhaps is one step, Mr. Chairman, and I appreciate it.
    [The prepared statement of Senator Thomas follows:]
         Statement of Hon. Craig Thomas, U.S. Senator From the 
                            State of Wyoming
    Mr. Chairman, thank you for holding this hearing to examine both 
the benefits and the policy concerns related to Habitat Conservation 
Plans (HCP). I think the future of the Endangered Species Act (ESA) is 
one of the most important issues we'll deal with in the Environment and 
Public Works Committee. Unfortunately, the Act has become one of the 
best examples of good intentions gone astray. Folks in Wyoming are 
truly concerned and are clamoring for some type of reform.
    Out the outset, I want to make it clear that even though our focus 
today is on Habitat Conservation Plans, we really need to look at 
making substantial changes to the entire Act. As you know, I've 
introduced a bill S. 1305, the ``Listing and Delisting Act of 1999'' 
that deals with the core of the Endangered Species Act--sound science--
specifically the quality of science used in the listing and petitioning 
process. Right now, it's basically a ``postage stamp'' petition: any 
person who wants to start a listing process may petition a species with 
little or no scientific support. We are simply going to have to make 
some real changes to an act that is not working.
    Unfortunately, given the political reality, the Endangered Species 
Act is what it is. By that, I mean it is not going to be repealed and 
most likely is not even amendable with the significant modifications I 
and others have offered. Given that grim scenario, I will discuss 
Habitat Conservation Plans. HCP's are tools for some landowners to help 
manage their lands once a species has been listed. However, HCP's seem 
to be a better tool for very large companies rather than the small 
private landowner. For a small landowner, the HCP's could be very 
costly--where is the incentive? In many cases, these people depend on 
their land for their livelihood.
    In general, we need to make the act more effective for the species 
we're trying to protect, and more effective for the local landowners, 
public land managers, communities and State governments who truly hold 
the key to the success of any effort to conserve species. If there's 
one lesson to be learned from the failures of the current act, it is 
that the only way we can successfully recover a species is through true 
partnerships.
    Truthfully, our efforts are sure to fail if there isn't cooperation 
between Federal, state, and local governments, as well as private 
interests. Many times, this is easier said than done. The average 
citizen of Wyoming or anywhere for that matter is extremely leery of 
Federal agencies and they have a right to be. The city of Douglas, 
Wyoming just recently got caught up in the bureacracy of the 
administering of the ESA. The city's main water line broke and at the 
site of the break, a Prebles Meadow Jumping Mouse was found. It took 2 
months for the Agency to issue a permit to fix the line which left half 
the city of Douglas at risk in terms of drinking water and the whole 
city at risk for fire protection. This example illustrates the 
inability of this particular Federal Agency to cooperate and deal with 
folks in a real world manner. Mr. Chairman, I look forward to hearing 
from our witnesses and working with you as we discuss and ultimately 
amend a law that is simply not working.

    Senator Crapo. Thank you very much.
    Senator Baucus.

  OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE 
                        STATE OF MONTANA

    Senator Baucus. Thank you, Mr. Chairman.
    I appreciate your holding this hearing. Maybe we can get 
something accomplished here on a matter which is extremely 
important--a lot of landowners feel hamstrung by the Act. A 
well-intended group people are limited by a well-intended law, 
and therein lies the problem.
    As has been mentioned earlier, we endeavored gallantly in 
the last Congress to come up with a basic solution to the 
reforms of the Endangered Species Act, which included habitat 
conservation plans. I thought it was a very good bill. It was 
virtually passed, but not quite.
    My main point, Mr. Chairman, is that we have got to provide 
cooperation and leadership here. I agree with the comments of 
my good friend from Wyoming, that sometimes when we talk about 
partnership, the people on the other side do not live up to the 
spirit of what is intended.
    But we are the Congress, and we make the laws. What we do 
here has an effect on what happens in the States whether in 
terms of what Federal agencies do, like the Fish and Wildlife 
Service or the Forest Service, or what States do.
    For me, there is really not much alternative because the 
law is the law. We should find a compromise that works, and 
provide the leadership for a compromise. If we pass something 
here that is effective, then we are going to get the 
cooperation of Federal, State and local agencies.
    An example that comes to mind, is the Safe Drinking Water 
Act. We found a common sense balance, and got the job done.
    Another example is a bill that I am introducing. It is a 
mining reclamation cleanup bill. The States are cleaning up 
hardrock mine sites, abandoned mines, but they are doing 
nothing about the water. The water just continues to leak out 
and contaminate. They are doing nothing about the water because 
of the Clean Water Act. There is virtually no way in the world 
a non-mining entity, a city or a town, can find the money to 
comply with the standards of the Clean Water Act; they are so 
stringent. I must say in my State, and I know it is true in 
most other States, polluted water is still running downstream, 
even though the abandoned mine site has been cleaned up.
    So what is the solution? My idea is to allow States to 
submit a remediation plan to the EPA with less than the 
standards of the Clean Water Act, but still with some kind of a 
cleanup. Either we have some cleanup, or no cleanup of the 
water. My view is that some cleanup is better than none.
    The same general philosophy applies here to the Endangered 
Species Act and habitat conservation plans. Either we do 
something or we do nothing. In my view, something is better 
than nothing.
    Perfection is not the enemy of the good. Let us do 
something good here. It is not going to be perfect. It cannot 
be perfect. We live in a democratic society. Everybody has got 
a different point of view. So, by definition, it is not 
perfect.
    So, again, I appreciate your holding the hearing, Mr. 
Chairman. And I implore all of us to get this problem solved, 
and put partisan politics aside. This place is much too 
partisan--this Congress, this Senate, this House. It is the 
most partisan Senate I have seen since I have served in the 
Senate, and it is not helping the country one bit.
    We have done a pretty good job on this committee, in some 
cases, in passing nonpartisan bills. The highway bill comes to 
mind, but nothing gets accomplished in this Congress unless 
there is agreement. Whenever there is partisanship, nothing 
gets accomplished. There is a lot of breast beating and a lot 
of complaining about the Government and a lot of finger-
pointing. But that is not why the people elected us. They 
elected us to solve problems; not to find problems, but to 
solve them. I hope that we solve this one.
    Thank you.
    Senator Crapo. Thank you very much.
    We will now move to the first panel. And as I call your 
names, we would ask you to come forward and take a seat at the 
table.
    Panel No. 1 is composed of Mr. Eric Glitzenstein, counsel 
for the Spirit of the Safe Council, the Defenders of Wildlife 
and Other Environmental Organizations; Mr. Rob Thornton, 
counsel for the Orange County Transportation Corridor Agencies 
and Other Intervenor-Defendants in the Spirit of the Safe 
Council versus Babbitt litigation; and Mr. William Pauli, 
president of the California Farm Bureau.
    I would like to explain, not only to this panel, but also 
to the panel that will come forward following this panel, that 
we do have a 5-minute time limit requirement. And I can assure 
you that your time will run out before you are done saying what 
you want to say.
    [Laughter.]
    Senator Crapo. And we ask you to watch the time limits, 
because we are all very busy, and we like to maintain the 
opportunity for some give and take in questions and answers 
between this panel here and you.
    And we do read your written testimony very carefully, and 
it will be made a part of the record. So if you do not get a 
chance to go through your entire written testimony in your 5 
minute presentation, do not feel that it has been lost or 
wasted. And please follow the time requirements.
    Mr. Glitzenstein, we would like to start with you.

  STATEMENT OF ERIC GLITZENSTEIN, COUNSEL, SPIRIT OF THE SAGE 
    COUNCIL, DEFENDERS OF WILDLIFE AND OTHER ENVIRONMENTAL 
                         ORGANIZATIONS

    Mr. Glitzenstein. Thank you, Mr. Chairman and members of 
the subcommittee. I appreciate the opportunity to be here and 
talk about these very important issues.
    My name is Eric Glitzenstein. I am a member of a public 
interest law firm, Meyer & Glitzenstein, which represents many 
environmental organizations on issues relating to 
implementation of the Endangered Species Act, and HCP issues, 
in particular.
    I am providing my own views, based upon rather extensive 
involvement in litigation, including litigation over what has 
come to be known as the ``No Surprises'' Policy which, as I am 
sure all members of the subcommittee know, has become a rather 
controversial subject in implementation of section 10 of the 
Endangered Species Act.
    I think it is important at the outset for me to say that I 
believe that the underlying intent of the whole HCP process was 
a sound one, when it was enacted in 1982.
    And as I read the legislative history, and some here may be 
far more conversant with it than I am, but as I read the 
legislative history, the basic concept was that there would be 
a tradeoff, in exchange for permission to take members of an 
endangered or threatened species, which I think all would 
agree, is a rather extraordinary kind of permission to give 
someone with regard to a species already deemed to be on the 
verge of extinction, the applicant for that permit would have 
to prepare a habitat conservation plan.
    And the word ``conservation,'' as defined in the Endangered 
Species Act, has very specific meanings. These are activities 
which must promote the recovery of the species, help bring the 
species to the point where it no longer requires the protection 
of the Endangered Species Act.
    So I think the concept underlying the HCP process was a 
sound one. We fear that when we look at some of the HCPs which 
have been, in fact, adopted and approved, especially by this 
Administration over the last number of years, many of these 
HCPs, regrettably, do not meet that basic set of requirements 
which we think was included in the 1982 amendments.
    I have one quick comment on a point that was made by 
Senator Baucus involving the balance and how we strike a 
balance on these kinds of issues. Certainly, trying to strike a 
balance is always desirable. And reaching an appropriate 
compromise is always a desirable policy objective.
    The problem, of course, as you all are intimately aware, 
when you are dealing with endangered species, the room for 
maneuverability and flexibility is, by definition, much smaller 
than it would be in other kinds of circumstances. These are 
species which already have been determined by scientists to be 
facing the prospect of becoming extinct in the foreseeable 
future.
    So I think one of the things for this subcommittee to keep 
in mind is, one of the objectives has got to be to prevent 
species from getting to the point where they actually have to 
be put on the list of endangered or threatened species. Because 
that is where opportunities for compromise and dialog and 
coming up with flexible solutions will be much greater than 
after a species is already in the emergency room, so to speak, 
and the opportunities for that kind of flexibility are, by 
definition, much smaller.
    In my testimony, I give some examples of what I think are 
HCPs which have not accomplished the objectives that Congress 
originally set out. One of them involved a species known as the 
Alabama beach mouse, which was listed in 1985, because its 
habitat had already been drastically reduced.
    Since it was listed as endangered in 1985, the Fish and 
Wildlife Service proceeded to approve at least five or six 
additional incidental take permits and HCPs, which allowed much 
more habitat to be destroyed, leading a Federal Judge, the 
Chief Judge of the Alabama District Court, to conclude that 
several of the most recent HCPs were, in that Judge's words, 
devoid of rationale basis, because they did not provide for the 
actual conservation of the species in exchange for the take 
that was being permitted.
    The mitigation measures ranged from what we would submit 
are truly laughable mitigation measures such as warning 
children not to run across sand dunes where there is an 
endangered mouse--and suggesting that that is actually going to 
help prevent that species from being harmed, to what the Judge 
decided was an extraordinarily paltry sum of money to 
compensate for a rather substantial loss of habitat.
    So I think that while there may be success stories which 
are worth learning lessons from, we also need to learn lessons 
from the very poor HCPs, which scientists and Federal Judges 
have now agreed have been approved.
    In terms of a couple of the policies that I have focused on 
in the written testimony, obviously, as I mentioned, ``No 
Surprises'' is a big concern of many in the environmental 
community and the scientific community.
    I think if you want to put that policy in perspective, it 
is useful to imagine the following scenario. Tomorrow, the Food 
and Drug Administration announces that henceforth, anyone who 
has received a license to market a drug or a medical device 
will receive an unprecedented guarantee that for the entire 
life of that license, even if we learn things about that drug 
or that medical device that threaten people in ways never 
previously anticipated, the recipient of the license will 
receive a guarantee that the license conditions will never be 
changed, no matter how much of a risk that may pose to the 
health of the public.
    Or with the Nuclear Regulatory Commission, we guarantee to 
nuclear permittees that for the next 50 years, even if we learn 
new concerns about the design of the nuclear power plant, we 
will never change the conditions under which that plant is 
permitted to operate.
    I think it is fair to say, however you come out on the ``No 
Surprises'' issue, it is a drastic departure from the set of 
assumptions that go into most Federal permitting and licensing 
approaches.
    If you look at what the Administration has done, the lesson 
to learn here is, if you are going to provide for any kind of 
``No Surprises'' assurance to the holders of incidental take 
permits, at least ensure that when surprises occur--and 
scientists say they will occur all the time, because nature is 
inherently variable and changeable--when they occur, ensure 
that there is some mechanism by which changes to the plans and 
the permits can take place. And that means providing a 
guaranteed supply of funding, so that, in fact, those kinds of 
changes can occur.
    And, also, we should recognize that there is variability in 
nature, and that you have to ensure that there can be different 
kinds of guarantees for different kinds of permits and 
different kinds of species.
    In the written testimony, I also talk about problems with 
public participation in the process, and how that has broken 
down. And, obviously, we would strongly suggest that any 
approach to this issue take into account the need to involve 
the public and independent scientists.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Glitzenstein.
    Mr. Thornton.

     STATEMENT OF ROBERT THORNTON, COUNSEL, ORANGE COUNTY 
     TRANSPORTATION CORRIDOR AGENCIES AND OTHER INTERVENOR-
DEFENDANTS IN SPIRIT OF THE SAGE COUNCIL V. BABBITT, IRVINE, CA

    Mr. Thornton. Mr. Chairman and members of the committee, I 
am pleased to be here. My name is Robert Thornton. I am 
appearing today as counsel to the Orange County Transportation 
Corridor Agencies, which are two regional transportation 
entities in Orange County, CA, that have played a leading role 
in the Southern California Natural Community Conservation Plan. 
I had the privilege of accompanying Senator Chafee a year or so 
ago on a tour of the nature conservation planning areas.
    I have labored most of my professional career to try to 
make the Endangered Species Act work. I am proud of the fact 
that I was the original advocate for what became the HCP 
provisions of the Act. And I have represented small landowners, 
large landowners, farmers, energy companies, timber operators 
on a variety of HCPs over the last 20 years.
    I have been coming back here now to Washington, after 
having worked here several years, for 20 years. And I am always 
struck by the ebb and flow of the testimony regarding the 
Endangered Species Act.
    I remember testifying before the House committee in 1992. 
And the concern on the part of the environmental community at 
the time was, how do we bring landowners to the table, because 
the Endangered Species Act, section 9, the hammers in the Act 
were not working to promote habitat conservation on private 
lands.
    We could not bring landowners to the table to deal with, as 
Mr. Glitzenstein commented, dealing with the problem before the 
species are in the emergency room.
    And the consensus, at that point in time--and, of course, 
that was a period of time when, politically, the Act was under 
attack--the consensus within the environmental community was 
what we need to have regulatory incentives. We need to have 
financial incentives. We need to encourage landowners to do the 
right thing, and to come to the table and engage in proactive 
planning.
    Habitat conservation plans and the ``No Surprises'' Rule 
are absolutely essential, in my experience, to bring landowners 
to the table.
    Now I want to deal directly with Mr. Glitzenstein's comment 
and the criticism that one hears of HCPs and the ``No 
Surprises'' Rule. And that comment is, ``Well, gee, biological 
systems are full of surprises. How can you have a so-called `No 
Surprises' rule?''
    The issue has been mischaracterized. We acknowledge--I 
certainly acknowledge that biological systems are full of 
surprises. That is not the issue. The issue is, who pays for 
those surprises?
     Fundamentally, the assurances rule is a mechanism to share 
the risks and burdens of habitat conservation between the 
Federal Government and, ultimately, the Federal taxpayers and 
private landowners. And it is an arrangement that is struck 
that in exchange for voluntary consensual conservation that a 
landowner commits to now, he will receive certain regulatory 
assurances that in the future, the deal will not be changed.
    As Secretary Babbitt has said it best, I think eloquently. 
I can not do any better. ``Take a bite at the apple. Take one 
good bite, and then a deal is a deal.''
    The problem that we have is, if you want landowners to 
engage in multi-species planning and address unlisted species, 
species that are not protected by the regulatory protections of 
the Endangered Species Act, if you want landowners to commit to 
conservation of corridors or linkages, which are not occupied 
with endangered species and, therefore, are not subject to 
regulation under section 9, you have got to provide them 
incentives. And regulatory incentives are the most powerful 
incentives that can be provided.
    The problem that we have with our legal systems--it is not 
a problem; it is a reality--is that we have private property 
rights in this society. We have the fifth amendment to live 
with. We know, as a matter of law, that when that landowner 
signs that grant deed over to a conservation agency or to a 
public agency, that his property rights are transferred. They 
are extinguished.
    And so the problem is, how do you rationally tell a 
landowner that you want him to sign that grant deed. You want 
him to provide funding for long-term conservation of endangered 
species, but you also want the ability to come back in 5 years 
or 10 years or 15 years and say, you know we have just 
discovered something new about this species and we have changed 
our mind. You have got to give us more property.
    It is not realistic. If you want landowners to participate 
in the endangered species conservation activities, and you want 
to keep species out of the emergency room, then regulatory 
assurances are essential.
    Now in the limited time, Mr. Chairman, that I have 
available, I have provided some graphics that sort of take you 
from the macro to the micro, to talk about what is going on in 
California, an area that I am very familiar with. I will just 
hold some of these up.
    The bright pink graphic tells the State of the issue in 
California. These colors represent basically the extent of the 
conservation needs in California. I see I am running out of 
time.
    The next graphic shows the conservation planning efforts 
that are under way in California. I have to say, these are 
driven almost entirely by the HCP policies of the Babbitt 
administration and, in particular, the ``No Surprises'' Rule.
    Finally, the last graphic I want to show is the 
conservation efforts that are emerging out of what has come to 
be called the Southern California Natural Community 
Conservation Plan.
    The green shown on this map represents several hundred 
thousand acres of private land that is in the process of being 
put into conservation status, with little or no cost to the 
Federal Government or the Federal taxpayer.
    And, again, the essence of the ``No Surprises'' Rule is, if 
you want to get that level of conservation commitment now, up 
front--and Senator Chafee saw these areas with me--then you 
have got to be prepared to provide regulatory assurances to 
these landowners.
    With that, I would be happy to answer questions. Thank you, 
Mr. Chairman.
    Senator Crapo. Thank you very much.
    Mr. Pauli.

   STATEMENT OF WILLIAM C. PAULI, PRESIDENT, CALIFORNIA FARM 
                     BUREAU, SACRAMENTO, CA

    Mr. Pauli. Good morning, Mr. Chairman and members of the 
committee.
    I am Bill Pauli. I grow wine grapes and Bartlett pears and 
Douglas Fir timber in northern California, which is in 
Mendocino County. I am president of the California Farm Bureau, 
and I am here today on behalf of the American Farm Bureau and 
the California Farm Bureau.
    I welcome the opportunity to present testimony on the 
practical implications of the HCP progress in agriculture. We 
have submitted a long written testimony that I hope you will 
have an opportunity to review and digest.
    This is extremely important as HCPs, in general, simply do 
not work for farmers and ranchers. In fact, our experience in 
California with the regional multi-species HCPs is that they 
are tools for encouraging urban sprawl and magnifying the loss 
of good farm land by forcing productive land into public 
habitat preserves.
    Generally HCPs fall under two types: single HCPs and multi-
species HCPs, like we have in California. The first, as shown, 
works for large, industrial or institutional landowners, hardly 
applicable to many small farmers.
    The second type of HCP is expensive and is time consuming, 
two factors that this type of program can not be used in 
agriculture. Only those changes in the use of the land can 
afford both the time and the money needed to participate.
    Land developers can use this program as they develop part 
of the land and mitigate for the rest. It is a speculative use 
of the land that has nothing to do with the present activity on 
that land. The costs are passed on to the purchasers of the 
property that have been developed. Farmers and ranchers can not 
do the same.
    Additionally, HCP authority also imposes permitting 
requirements on agriculture for activities that do not 
currently require permits. Often, such activities are normal 
farming practices that are necessary to continue the use of the 
land for farming purposes and for a family farming operation, 
that can not afford the cost nor deal with the paperwork 
requirements for the permitting process. It is no wonder that 
this land then becomes available for mitigation, development, 
or for sale.
    We would like to emphasize that given the proper protection 
and incentives, farmers and ranchers can play an important role 
in the protection and recovery of species. In fact, the 
agencies must have the cooperation of farmers, ranchers, and 
private property owners if the Endangered Species Act is going 
to work.
    We do a better job of protecting species than the 
Government. And we contribute to the local tax base, provide 
jobs, and are productive, while still supporting wildlife. 
Farmers and ranchers who own most of the suitable species 
habitat are especially important if ESA is to succeed.
    We hope that this committee would recognize the wide range 
of interest and agree that incentive-based programs work. When 
both the Farm Bureau and the Environmental Defense Fund can 
agree that we solve problems for species and landowners when we 
take this approach, we have a situation that begs for 
congressional action.
    The Farm Bureau has testified before this committee no less 
than six times in the last four Congresses, seeking such 
incentive programs as the Critical Habitat Program. Everyone, 
it seems, agrees that such a program will help species and tap 
into the conservation ethic of all farmers.
    Our rural communities reel under the regulatory excesses of 
the Endangered Species Act. Developers develop land that 
farmers can no longer afford to farm.
    Mr. Chairman, I know that your State is starting to get the 
taste of what California has gone through for the last 10 
years. I hope that you can learn from the mistakes made in 
California. Lawyers, bureaucrats, technicians, and politicians 
do not save endangered species. Farmers and ranchers can and 
want to. We are hoarse with telling Congress this fact.
    Take away the regulatory disincentives that create 
financial ruin in our rural areas. Provide funding and the 
commitment to put in place programs that work on the ground for 
not only the people, but the species.
    In the few seconds that I have left, let me say a couple of 
quick things. You know, you have got two concepts here. You 
have got industrial farming versus rural farming, agriculture 
as we have always known it.
    We provide habitat on our fence lines, around our creeks, 
around our streams. If you want us to destroy that, then 
continue with the kind of regulation you are talking about 
here.
     The easiest way for me to destroy habitat and to protect 
myself is to eliminate those areas along my fence lines and my 
creeks. Because if I protect the species that live there, some 
regulatory comes in says, ``Look, you have got these species. 
Now you are going to have to broaden that.''
    Why are the species there? Because they like where they 
are. They like what I have been doing. I have been protecting 
those species.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Mr. Pauli.
    I will ask the first series of questions. And I will just 
start out with you, Mr. Glitzenstein.
    From your written and your oral testimony, it is my 
understanding that one of your concerns with the ``No 
Surprises'' rule is that it essentially shifts responsibility 
for the funding, or for the maintenance and protection, of the 
species from the private landowner to the Federal Government.
    And the question I have is that if endangered species is a 
significant national priority, what is the philosophical 
objection to having the Federal Government participate in the 
recovery of species?
    Mr. Glitzenstein. I do not think there is any objection to 
having the Federal Government participate. And it does in a 
number of different ways, under the Act.
    I think the concern with shifting that responsibility under 
section 10 is that it really reverses decades, literally, of 
environmental regulation precedent, in which the basic concept 
is that the person who receives a permit to, in some fashion, 
harm the environment--and that is what an incidental take 
permit is--is responsible for paying for the damage associated 
with that, including paying for changes that might be 
necessary.
    In my testimony, I point out that that is basically the 
State of the law under the Clean Air Act, under the Clean Water 
Act, under the Resource Conservation and Recovery Act, and 
virtually every other field of Federal environmental law. So 
this is truly a revolutionary change in a historical approach.
    Having said that, if I could just add, I think there is an 
important philosophical question there. But I think the 
practical question is the greater one.
    Under the current scenario, where the burden for surprises 
is shifted to the Federal Government, we have a Fish and 
Wildlife Service and a National Marine Fisheries Service, which 
are woefully incapable, financially, of paying for the changes 
that might be necessary.
    We have Jamie Clark going in and filing affidavits in 
Federal court--and I can provide numerous examples to the 
subcommittee--saying we do not have enough money even to meet 
our mandatory, nondiscretionary duties under the Act. We do not 
have enough money to list species and designate critical 
habitat.
    So how in the world could we expect the Federal Government, 
under the current scenario, to take on the very obviously 
substantial burden of dealing with all of these unforeseen 
circumstances?
    So however you resolve the philosophical question--and it 
is a good one--the more important question is, if you are going 
to resolve the issue in favor of the Federal Government taking 
on that burden, at least make sure that there is an adequate 
source of funding, so that the Federal Government can do what 
it claims it should do, under the ``No Surprises'' approach.
    Senator Crapo. Are you aware of, or do you have any, 
information indicating what the cost would be to the Federal 
Government, if the funding were made available to implement the 
``No Surprises'' policy, and have the Federal Government 
participate as it should?
    Mr. Glitzenstein. That is a very good question. I have 
never seen that. I think, obviously, one of the problems is, 
these are, by definition, unforeseen circumstances.
    I would imagine the almost insurmountable difficulties in 
aggregating all of the unforeseen developments that could take 
place and affect incidental take permits.
    Senator Crapo. That is what I suspected. However, I also 
took from your answer, and I think I would agree with it, that 
the cost could be conceivably extremely high. We are talking 
about a very expensive cost here, in terms of recovery of 
species.
    Mr. Glitzenstein. Well, I think one of the things to keep 
in mind is--and I think Mr. Thornton would probably agree with 
this--the way in which the policy has currently been evolving, 
there has been a distinction drawn between what are called 
changed circumstances, which are different conditions which can 
be anticipated.
    They may not necessarily happen. But in an area which is 
hurricane prone or subject to various kinds of natural 
fluctuations, under the existing policy, the incidental take 
permit holder can be held responsible for those.
    If you look down the road in, say, 10 or 20 years, the 
plight of the species can change. Therefore, we should have 
what are called--and I know the scientific panel testified on 
this--adaptive management provisions.
    The ``No Surprises'' rule is intended to deal with what I 
think we all agree has become defined as a somewhat narrower 
set of circumstances--unforeseen developments, which even 
scientists who are familiar with the area and familiar with the 
species can not anticipate.
    So I think that the amount of money, cumulatively, may be 
much less than if you were dealing with responding to all kinds 
of changes which could take place, both changed circumstances, 
as they have been defined, and unforeseen circumstances. It may 
not be quite as expensive as you might surmise.
    Senator Crapo. All right. Mr. Thornton, what is your 
response to the argument that this is a different concept than 
is pursued in any of our other environmental laws; namely, 
having the Federal Government pay for the consequences of the 
recovery or the action required?
    Mr. Thornton. Well, I do not think that there is any 
Federal environmental statute that asks a landowner to give up 
property rights over a long period of time in order to address 
an issue that is not mandated under the Federal law. And that 
is what HCPs are all about.
    The essence of Mr. Glitzenstein's argument is, why don't 
you just leverage these requirements out of landowners, in 
return for obtaining a permit?
    The fallacy of that argument is that HCPs address what the 
environmental community said they wanted addressed; that is, 
they want large-scale, habitat-based plans that address species 
that are not on the Endangered Species list in addition to 
those that are.
    They want corridors. They want linkages. They want all of 
the things that the National Academy of Scientists and the 
conservation biologists tell us constitutes good conservation 
planning, good preservation design. In order to obtain those 
kinds of commitments, then you have got to provide certain 
incentives.
    Now we have a representative from the Farm Bureau. I have 
represented farmers. You have a different problem that exists 
with farm operations. A number of farmers in California, quite 
frankly, because of the Endangered Species Act, make sure that 
their property remains tilled from stem to stern, year after 
year, without regard to whether they are growing crops on it; 
why? Because they do not want to have the regulatory burdens of 
the Endangered Species Act imposed on them.
    So if we want to encourage farmers to engage in the kind of 
activities that will provide conservation benefits, then you 
have got to provide them regulatory assurances. That is what 
the HCPs are all about.
    Senator Crapo. Thank you. And Mr. Pauli, I know my time is 
running out here for my questioning period. But I think the 
essence of your testimony is that the HCPs, as they are being 
implemented, simply are not beneficial to agriculture.
    Can you see a way in which HCPs could work in a beneficial 
manner, that would provide incentives or encourage farmers to 
participate?
    Mr. Pauli. Well, you know, one of the things that we have 
been trying to do is to find solutions to protecting the 
species. I do not think that anybody is opposed to the concept, 
how do we effectively do it, recognizing the amount of 
urbanization we have in so many parts of the country; and how 
can we be effective in doing it.
    It has to be through an incentive-based program that does 
not put farmers in jeopardy such that when they get one lizard 
or one kangaroo rat, even though they are providing a lot of 
habitat, will lose the farm or the ranch.
    And how do you do that? It is going to have to be with a 
balanced, multi-species approach that tries to improve the 
habitat for all species. Where some of us have this problem 
under ESA, we want to try to protect as much habitat as we can. 
Ultimately, we all have to try to collectively do that.
    By the same token, there seems to be a drive on the part of 
many of the regulators, particularly from the Fish and Wildlife 
Service, to find a reason to put us out of business. Their real 
objective here is to take the land; not just let us continue to 
farm, find a way to farm, to balance off what it is we are 
doing; but really trying to extract our property from us.
    In the West is where we have such a conflict. These species 
have been there for years and years, and they are still there, 
but suddenly, everything we are doing is wrong, and they want 
to take our ground from us.
    In the West is where we have this real conflict. If what we 
are doing is so totally wrong, then why do the species still 
exist there? Yet, we are finding ways to improve the habitat, 
improve the balance of the species, overall.
    We are going to have to recognize, however, that some 
species may become extinct. We have been good stewards, but 
there are a lot of other impacts, from urbanization and growth 
around the country.
    Senator Crapo. Thank you. My time has expired.
    Senator Chafee.
    Senator Chafee. Thank you, Mr. Chairman.
    Mr. Thornton, you listened to Mr. Pauli when he gave his 
testimony. And it was kind of a discouraging presentation. He 
indicated that, in his view, the Endangered Species Act, and I 
am paraphrasing him a little bit, worked exactly contrary to 
its given purposes. Is that a fair summation of what you said, 
Mr. Pauli?
    Mr. Pauli. It certainly has not achieved its overall 
objectives of protecting species.
    Senator Chafee. Yes, and then he gave the illustration of 
the growth along river banks, stream banks, where endangered 
species were surviving.
    But now there is every incentive, as I understood what Mr. 
Pauli said, for the farmer to get rid of that protective 
growth, because they might find an endangered species there. 
And then all kinds of problems arise.
    Although I do think he is going a little far when he 
indicated that what the Government really wants is to take the 
farmers' land, I do not think that is quite fair.
    What do you say to all that? Here you are embracing, as I 
understood your testimony, the ``No Surprises'' policy. Why 
would that not work for Mr. Pauli?
    Mr. Thornton. Well, Senator, in my view, it can work, 
properly implemented. I think that farmers have some unique 
problems that clearly they have a setting that is different 
than an urbanized HCP. The HCPs in agricultural areas are 
different. I have worked on some agricultural HCPs.
    I completely agree with his testimony that the cost of 
processing a separate individual section 10 permit for a small 
farmer is prohibitive. Therefore, you have to do it on a 
municipal or regional basis.
    I have been working in Kern County, CA, for the last 10 
years, which is a major agricultural area, working with farmers 
and with energy companies, to put together a plan that is more 
of a market-based plan that just does not lock land up and not 
use it, but rather tries to provide various forms of assurances 
to encourage farmers to manage their land to retain habitat 
values.
    The problem that I have seen is that the Act, as it is 
currently structured and implemented, tells farmers if they get 
a Tipton kangaroo rat on their property in Kern County, they 
will not be able to put a crop in next season. It is not a good 
statute because the message to that farmer is, make sure there 
are no Tipton kangaroo rats on your property.
    But I think the HCP process can work. Clearly, agriculture 
presents a set of issues that are different from the urbanizing 
area.
    Senator Chafee. It is apparent that we will not be able to 
pass on the Senate floor and by both legislative bodies, a 
radical reform of the Endangered Species Act. We tried that 
under Senator Kempthorne's leadership, and we just did not 
prevail.
    But it seems to me that there is great merit, I believe, in 
the ``No Surprises'' policy. Are you a ``No Surprises'' 
supporter?
    Mr. Thornton. Absolutely, Senator.
    Senator Chafee. And how about you, Mr. Glitzenstein?
    Mr. Glitzenstein. I would certainly disagree with the 
current rule.
    If I could just make one comment about that. I think that 
one of the important areas in your question is that there are 
many different kinds of HCPs and many different kinds of permit 
applicants. The current rule says, ``thou shalt give ``No 
Surprises'' guarantees to each and every permit applicant, no 
matter who you are, whether you are a small farmer or a large 
multi-billion dollar timber company, no matter what species is 
affected, no matter how long the permit, whether it is for 2 
years or 100 years.
    The one thing I would really urge this subcommittee to take 
a look at, at an absolute minimum is at least give the Fish and 
Wildlife Service some flexibility to negotiate when ``No 
Surprises'' guarantees may be appropriate, to a particular 
farmer or someone else, and how long the guarantee should be.
    Some of the environmental groups have suggested you can 
give a guarantee in one situation, that a permit will not 
change for 5 years; but because of variability in nature in an 
area and a big landowner, 20 years would not be appropriate.
    But the current rule, which I am absolutely opposed to, as 
is every environmental group who commented on it and virtually 
every conservation biologist says that you must give ``No 
Surprises'' guarantees for every permit for the entire length 
of the permit, no matter how long it is. That, I submit, is a 
totally irrational policy.
    Mr. Thornton. Senator, if I might just quickly comment. 
This is the difference between the view from Washington and the 
view down in the trenches, as I like to call it, the ESA 
trenches.
    Believe me, every HCP that I have been involved in, and I 
have been involved in over 2 dozen major HCPs, are very heavily 
negotiated, and the Fish and Wildlife Service does not provide 
blanket assurances.
    There are negotiations over what species are covered. There 
are negotiations over the extent of the mitigation and 
minimization measures. There are negotiations over the term of 
the conservation agreement.
    There is a whole scope and variety of negotiations that go 
on. And believe me, that rule is not being interpreted down in 
the field to provide blanket assurances to landowners.
    Mr. Pauli. Can I make one comment? I think, Senators, one 
of the things we have to keep in mind here, and sometimes it is 
an over-simplification, but I do not really think it is. We 
have got very small versus very large. We have very different 
geographical locations in terms of the type of landscape and 
setting.
    If you go to my State, California, in the southern part of 
the State in the Imperial Valley are 600,000 or 700,000 acres 
of irrigated land. It is high desert with 2 inches of rainfall, 
a very different kind of problem. But when you go up into the 
north coast, we have 40 to 80 inches of rain every year, very 
unstable soils. It is completely different. Yet, we have this 
one big plan. Then, we have big property owners and little 
property owners who cannot deal with the regulatory process, 
where the best lands really are, and some of the best species.
    So you have got to keep in mind, it is not a one-kind-of-
thing-fits-all. And there are two other things. You have got 
the small and the big----
    Senator Chafee. Well, we are on my time here, so if you 
could summarize quickly.
    Mr. Pauli. OK, you know, Fish and Wildlife Service has lost 
the respect of the property owners. Because as you make an 
agreement, through all these negotiations, expense, and time, 
and the next week, you have got a different person, a different 
interpretation, and a whole other problem. So you need to try 
to look at that issue. I mean, you talk about an agreement, but 
it can not keep changing every week and every year and every 6 
months. That is a real problem.
    Senator Chafee. OK, thank you. Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much.
    Senator Thomas.
    Senator Thomas. Thank you. First let me just say, Mr. 
Chairman, that I do not think what we tried to do is a radical 
change to ESA. It does need to be reauthorized, but I think it 
can be changed without being radical. What is radical in Rhode 
Island is not radical in Wyoming, I might add.
    [Laughter.]
    Senator Thomas. Mr. Glitzenstein, is this your list of 
about 150 Ph.D.s and so on?
    Mr. Glitzenstein. That is one letter that was submitted. I 
think actually Ms. Hood in her testimony in July referred to 
another letter, which had many others.
    Senator Thomas. Would you think that all the nominations 
and listings are a result of full and complete scientific data?
    Mr. Glitzenstein. I think in the listing process, certainly 
there are examples where it may not comport completely with 
what scientists would prefer. These days, I think many species 
are not being listed that should be, because of what scientists 
would suggest.
    Senator Thomas. Do you think through a windshield, driving 
through a county and doing it on State and county lines is 
scientific?
    Mr. Glitzenstein. I am not familiar with that particular 
example.
    Senator Thomas. I am, and that is what has been done.
    You point to everything being scientific. The fact is that 
nominations are not in the least scientific.
    Mr. Glitzenstein. I am sure you mean petitions.
    Senator Thomas. Petitions, yes, sure.
    Mr. Glitzenstein. Well, the petitions that I am familiar 
with, with the groups I work with, I must unfortunately 
disagree with you.
    Senator Thomas. OK.
    Mr. Glitzenstein. Because the ones that I have seen, and I 
am not saying every petition that has ever been submitted has 
been scientifically sound, but the ones I am familiar with, 
with the groups I work with, are very thoroughly researched, 
and supported by as much science as possible.
    Senator Thomas. Well, the ones I work with are not. My 
point is, I do not think you can make the generalization that 
the scientific end does everything, and that we ought to just 
live with that. There are lots of things that go into this 
besides the scientific end, as a matter of fact.
    Mr. Glitzenstein. Well, I agree.
    Senator Thomas. Do you consider that a listing of jumping 
mouse changes for a number of years is the same as a nuclear 
listing, a nuclear power plant?
    Mr. Glitzenstein. Well, what I am trying to show with that 
example is, the basic way in which we have approached 
environmental regulation in this country.
    I think it is the same in the sense that if you are going 
to establish a set of criteria for getting a permit to take an 
action which would otherwise be unlawful, and it is critical to 
stress that the taking of an endangered species, under Federal 
law, is unlawful.
    And Congress, when it passed that requirement, said that it 
regarded endangered species as being of the highest possible 
priority, that the loss of any species would be incalculable. 
And some of these species which people----
    Senator Thomas. I understand. It is the idea that you do 
not mow your ditches or you do some things, that is hardly 
equal to a nuclear change.
    Mr. Pauli, have you had any experience with the 4(d) Rule? 
Have they used that at all with farmers and ranchers?
    Mr. Pauli. Yes, Sir, they have attempted to, in California. 
And I am not as familiar as I would like to be on that. I would 
prefer not to comment on that.
    Senator Thomas. But that is an opportunity, I think, is it 
not, to make it more acceptable, to make it more workable?
    We have one pending, as a matter of fact, that has not been 
completed now for a number of months that could make it 
workable, but has not been used.
    Mr. Pauli. One of the problems that we continue to find 
comes back to the relationship with the people, back to your 
windshield kind of view.
    The people on the ground do not have the kind of experience 
that many of us who farmed that ground or lived in that 
community for years and years have. And they simply do not 
understand the biology.
    One of the real problems is the credibility of the 
biologist. We talk about science. We say, ``Well, we should not 
have a contract for more than 5 years because, gee whiz, the 
science might change.'' Well, the science might change in a 
year or a month, but it also takes a long time for these things 
to trend.
    In California, we will have a drought for 5 or 7 years, and 
things are completely contrary to where they were before, when 
you were in rainy sessions for 5 or 7 years.
    Senator Thomas. Mr. Thornton, you have generally 
represented larger users, is not that correct, by the look of 
your maps and so on?
    Mr. Thornton. Well, no, Senator, I have represented public 
agencies. I have represented small landowners, large 
landowners, small developers, small farmers.
    Senator Thomas. Well, is not it easier for Chevron to do 
something or a Weyerhaeuser for 100,000 acres, than it is for 
someone with 250 acres?
    Mr. Thornton. Absolutely, clearly, large landowners have 
greater flexibility and more of the ability to work within the 
system.
    What has worked well, in my experience is, instead of a 
small landowner to attempt to process his own permit, but 
rather to work through a larger regional conservation plan. 
That is what we have done in Kern County. That is what we have 
done in various parts of southern California. And that is 
really more efficient. So then the local governmental agency 
takes on the processing chore of processing the plan.
    Now that does not make it an easy process. Some of these 
efforts literally have taken a decade or more to reach the 
sufficient consensus and wherewithal to get the plan together. 
But that is the way the small landowners have to do.
    The point that I try to make in my testimony is, we have 
got to come up with incentives. And regulatory incentives are 
just part of it. There has got to be financial incentives.
    Landowners, especially small landowners, have to see some 
reason to keep their property in conservation status.
    Senator Thomas. Thank you, Mr. Chairman.
    Senator Crapo. Thank you.
    Senator Baucus.
    Senator Baucus. Thank you, Mr. Chairman.
    Mr. Thornton and Mr. Glitzenstein. Let us assume the two of 
you were to go out. Do you drink beer?
    Mr. Glitzenstein. I do. I have been known to.
    [Laughter.]
    Senator Baucus. Let us assume the two of you were to, this 
evening, just go out and have a couple of beers together, and 
just sat down someplace, out of the spotlight of this hearing, 
away from your clients, just two guys that know each other 
pretty well, and looked at this issue pretty well.
    You are two fellows that are well meaning. I mean, you are 
doing what you think is right for this country. You are red-
blooded Americans.
    Where would you two agree on how you deal with ``No 
Surprises'' in habitat conservation plans? Because there is 
obviously a tension here. Landowners, appropriately, are 
concerned about all these Feds coming down. They are always 
changing their minds all the time. And most landowners are good 
people. They want to do what is right.
    On the other hand, we have got a very important national 
policy. It is protecting endangered species. It is extremely 
important. Because we do not want a society where we wake up 
one day and find the species gone, or at least a significant 
deterioration, as is the case in a lot of other countries.
    So there is an inherent tension between preserving species, 
you know, and adaptive management, say, on the one hand, and 
``No Surprises'', on the other.
    So where would you two start? You know, you are talking to 
each other. What is your first name?
    Mr. Glitzenstein. Eric.
    Senator Baucus. Eric. What is yours?
    Mr. Thornton. Rob, Senator.
    Senator Baucus. Rob?
    Mr. Thornton. Rob.
    Senator Baucus. OK, so Rob, you say, ``Eric, what do you 
think about this?'' And Eric says, ``Yes, Rob, that is a good 
idea. Yes, you know, I hear what you are saying.'' So Eric and 
Rob are having a couple beers together, alone.
    Mr. Thornton. Senator, I am not sure where Eric and I would 
come out.
    Senator Baucus. Well, I am asking just the two of you.
    Mr. Thornton. Right.
    Senator Baucus. Please answer my question.
    Mr. Thornton. But, actually, it is an interesting question, 
because I went through that exercise, 2 years ago, with 
representatives of the World Wildlife Fund, the Environmental 
Defense Fund, the Center for Marine Conservation, the National 
Wildlife Federation. And we spent about a year, along with 
representatives of the National Realty Committee----
    Senator Baucus. That is a lot of beer.
    [Laughter.]
    Mr. Thornton. That is a lot of beer. A lot of beer was 
consumed, Senator, I assure you.
    And there was a consensus reached. And it was ultimately 
articulated in what came to be known as the Endangered Species 
Working Group. Unfortunately, that particular proposal did not 
seem to get legs here on Capitol Hill.
    Senator Baucus. I am sorry, I am not worried about the 
process, here. I am just asking about substance.
    Mr. Thornton. Well, the substance, I would say----
    Senator Baucus. We do not have a lot of time here. So just 
cut to the quick. Where do the two of you tend to agree?
    Mr. Thornton. I would say that the consensus would emerge 
around the quality of the planning that is done. The level of 
public participation, which the environmental community is 
concerned about, although I think it is adequate in the 
existing process. Some commitments regarding some funding 
commitments in the future, to address unforeseen circumstances. 
And that might mean setting up a mechanism in Congress to 
establish some form of trust fund to fund unforeseen 
circumstances.
    Senator Baucus. Eric, what do you think?
    Mr. Glitzenstein. I can not disagree with what Mr. Thornton 
has said. I think, critically, we both agree that there has to 
be some guaranteed form of funding, when these changes are 
necessary.
    We have this philosophical concern that we talked about. 
But putting that to one side, somebody has got to pay for these 
things. And under current law, there is no clear answer to how 
that is going to happen.
    I think public participation is critical. I agree 
completely with that. I think independent scientific input on 
the validity of plans is critical. I agree with that. I would 
hope that the one other thing we could reach agreement on is 
that one-size-fits-all does not make any sense.
    Senator Baucus. OK, let us put the funding aside for a 
second. Do you agree with the concept of more public 
participation?
    Mr. Thornton. I, philosophically, Senator, am not opposed 
to it. And when I hear this criticism, and I offer my response 
to my environmental friends, which is to say----
    Senator Baucus. Slow down, we are not talking about 
criticism, here.
    Mr. Thornton. OK.
    Senator Baucus. Our goal here is to come together.
    Mr. Thornton. I think these planning processes have to have 
significant public participation for them to work.
    Senator Baucus. So more than currently is the case?
    Mr. Thornton. I think there is a lot of public 
participation in the plans that I am working on, but to the 
extent you want to codify and make them more formalized, I 
would not oppose that.
    Senator Baucus. OK, besides money and public participation, 
how are you going to deal with some of the changes that may 
occur? How do you deal with that, or what do you think?
    Mr. Thornton. I think you deal with it through adaptive 
management.
    Senator Baucus. What does that really mean?
    Mr. Thornton. Well, adaptive management means that the plan 
can change within certain parameters. And, ultimately, these 
negotiations, in my experience, get down to a place where the 
plan can change; how can it change, putting sideboards or 
parameters on the changes that can occur that are going to be 
paid for by the landowner.
    Senator Baucus. Do you think that you can agree with people 
in the conservation community as to what those parameters are?
    Mr. Thornton. Well, in my experience, you can reach 
agreement with components of the conservation community who 
have, in fact, endorsed a number of these plans. You can not 
reach agreement with everybody. That is clear.
    Senator Baucus. Well, my time is up. Eric, if you could 
just comment in 15 seconds on what Rob said.
    Mr. Glitzenstein. I think trying to come to an agreement on 
those points up front is critical.
    Senator Baucus. On the parameters.
    Mr. Glitzenstein. On the parameters, and what kind of 
adaptive management there should be. But the critical feature, 
also, which I hope we could come to agreement on, is that the 
small farmer gets different kinds of assurances than the multi-
billion dollar timber company.
    Senator Baucus. Well, that is clearly a problem.
    Mr. Glitzenstein. And those things can be negotiated, as 
well; how much of an assurance is appropriate, given the size 
of the HCP, the nature of the species, the length of the 
permits. Those things should be subject to some, I think, case-
by-case analysis. And I would hope that we could, if we sat 
down, come to some understanding of that, as well.
    Senator Baucus. I encourage you two to help us out here. 
Congress does not lead. Congress follows. Congress does what 
the people want done. So the more you guys are together, the 
more we are going to solve this. The more you are apart, the 
more we will not.
    I am asking you participants, the experts, who know this 
subject, to work this out together. Go have a couple of beers. 
I do not care what it takes. Just find some way to get some 
agreement here, because the more you are divided, this is not 
going to be solved here.
    Members of the House and Senate are going to follow their 
own constituent groups and special interest groups. Money gets 
spent on campaigns and you know what, and nothing happens. 
Congress follows. Congress does not lead. You have got to 
remember that.
    So if you want this solved, you have got to get together. 
You may not want it solved. If you do not want it solved, it is 
not going to be solved. But if you want it solved, you are 
going to have to do more than 50 percent of it yourselves, or 
it is not going to happen.
    Thank you.
    Senator Crapo. Thank you very much.
    Senator Chafee and I have no further questions at this 
point. Did you want to ask any more, Senator Baucus?
    Senator Baucus. No, thank you, Mr. Chairman.
    Senator Crapo. We do have more questions. And we will 
probably submit a series of questions to you in writing. But in 
the interests of time and keeping ourselves on schedule, we 
will dismiss this panel at this time. And we thank you very 
much for your appearance here.
    Our second panel, and please come forward, is Mr. Rudolph 
Willey, president of the Northern California Presley Homes; Ms. 
Brooke Fox, director of Open Space and Natural Resources of 
Douglas County, Castle Rock, CO; Mr. Jim Moore, director of 
Public Lands Conservation of the Nature Conservancy; Mr. Steven 
Quarles, counsel for the American Forest & Paper Association; 
and Mr. Don Rose, manager of the Land Planning and Natural 
Resources, Sempra Energy, of San Diego.
    We welcome you all. Were all of you here when I gave my 
admonition at the beginning about the fact that we are going to 
be seeing a red light before you are done saying what you want 
to say? And please keep your eye on the light, so that we will 
have time for interaction between the members of the panel here 
and yourselves.
    With that, we will start out with you, Mr. Willey.

  STATEMENT OF RUDOLPH WILLEY, PRESIDENT, NORTHERN CALIFORNIA 
                  PRESLEY HOMES, MARTINEZ, CA

    Mr. Willey. Thank you, Mr. Chairman and members of the 
subcommittee.
    Before Presley purchased land in San Jose in 1997, we were 
aware that the property once had been occupied by the 
threatened Bay checkerspot butterfly.
    We contacted the nationally recognized Stanford 
conservation biologist, Dr. Dennis Murphy, who addressed this 
subcommittee on July 20 on science and habitat conservation 
planning. We contacted Dr. Murphy, because he was the 
petitioner of the butterfly. And no scientist is more committed 
to this species than he.
    Stanford researchers who studied the species for decades 
told us that the butterfly had abandoned the site in the mid-
1990's, and that weedy exotic grasses had virtually replaced 
the host plants on which the butterfly survives, making it 
impossible to recolonize the site.
    Dr. Murphy worked with Presley to develop a plan to bring 
the butterfly back. Even though there were no animal species on 
the property, and thus, no incidental take permit required, 
Presley chose to pursue a section 10 habitat conservation plan, 
because it was prudent to obtain the No Surprise Assurance, and 
it was the right thing to do.
    We used the best scientific data available to produce a 
plan with extraordinary conservation commitments, with specific 
biological goals to achieve a 71-acre butterfly habitat, with 
17 acres of host plants, 20 dedicated plant conservation areas, 
the first agency sanctioned man-made tiger salamander pond, and 
an environmental trust, to which Presley will deed over 50 
percent of the 575 acres, and provide initial funding of $1.6 
million for recovery and restoration, and annual funding of 
$200,000 in perpetuity for professional management and 
monitoring.
    Given the voluntary nature and the progressive scope of the 
HCP, we expected the plan to be embraced by the Service.
    Senator Chafee. By the Service, you mean Fish and Wildlife?
    Mr. Willey. Fish and Wildlife Service, yes, Sir.
    But when we presented our draft at a large meeting, a 
Service-staffed biologist simply asserted that nearly the 
entire property constituted habitat for the butterfly, but did 
not offer any empirical or scientific evidence to support this 
assertion.
    It did not matter that annual surveys confirmed a complete 
4-year absence of the butterfly; nor, that the habitat was so 
degraded, the species could no longer re-colonize, without 
heroic restoration efforts.
    The Service then failed to comment in writing on the HCP. 
For nearly 4 months, we waited, called, and wrote, and even a 
letter to the Chief of California Operations went unanswered.
    Finally, we met with the supervisor in Sacramento, who said 
he had something in writing, but wanted to talk to Dr. Murphy 
before giving it to us.
    He listened to Dr. Murphy. And we pointed out that unless 
the Service engaged in a dialog to move this process along, we 
could legally proceed anyway, without an incidental take 
permit. He said he understood, and had told his staff that 
unless they cooperated, they would lose their opportunity to 
contribute to this project.
    He said he was powerless to override or direct his 
subordinates' actions, because he feared lawsuits from third 
parties' special interest groups. In the end, he gave us 
nothing in writing.
    We secured the appropriate permits from California 
Department of Fish and Game, Army Corps., and got a waiver from 
the Regional Water Quality Control Board.
    At every step of the way, the Service contacted these 
agencies, demanding they deny the permits. But each concluded 
the Service had no jurisdiction.
    In June, the city issued a grading permit, allowing for 
clearing the site, and work began. The Service had passed on a 
section 10, was denied a section 7 by the Army Corps., and had 
no grounds for a section 9. So now they elected to step outside 
the regulatory process altogether.
    First, they sent documents to private interest groups, 
which were used to sue another Federal agency, the Army Corps. 
Then, they sent the city of San Jose threatening letters and e-
mails claiming, without substantiation, that grading the site 
would cause illegal take of butterfly, for which the city would 
be held liable, under section 9. They demanded the city 
withhold any more permits.
    The city capitulated, explaining they could not upset the 
Service, because it was holding up $3.5 million in Federal 
funds for city projects.
    So we have been at a costly dead stop for 3 months now, and 
have lost a chance to construct any type of habitat, man or 
butterfly, until the dry season next Spring.
    We have contacted every level of the Service to get this 
resolved. And, at last, 2 weeks ago, they acknowledged there 
was no take, no grounds for a section 9 action.
    I asked for a simple letter to give to the city of San 
Jose. It arrived just this last Friday, and it was a qualified 
letter, at that.
    I ask you, where is the certainty in the regulatory process 
for me, as an applicant? The Administration promotes HCPs. Yet, 
mine was insufficient, with the species absent.
    And, finally, on behalf of all endangered species, is not 
this sending the wrong message, not to get involved in HCPs or 
restoration efforts? The butterfly has lost. And there is no 
escaping the irony, here. The developer attempts to protect and 
restore the species. And the Services blocks that effort.
    Thank you. I would like to make the committee aware that I 
will have James Meek, Project Manager available for technical 
questions, if any.
    Senator Crapo. Thank you very much, Mr. Willey.
    Ms. Fox.

   STATEMENT OF BROOKE FOX, DIRECTOR, OPEN SPACE AND NATURAL 
           RESOURCES, DOUGLAS COUNTY, CASTLE ROCK, CO

    Ms. Fox. Thank you.
    Mr. Chairman and members of the subcommittee, my name is 
Brooke Fox, and I am the Director of Open Space and Natural 
Resources for Douglas County, CO.
    I am honored to be here today on behalf of the Douglas 
County Board of Commissioners and the Coalition for Responsible 
Species Conservation to testify about our experience with the 
federally listed Preble's meadow jumping mouse, and our habitat 
conservation plans.
    Specifically, I would like to talk a bit about Douglas 
County, our HCP and ESA issues, and I will finish with just a 
few thoughts.
    Douglas County is located between Denver and Colorado 
Springs, the two largest cities in Colorado. We are 
conservative politically, and at the same time, our voters and 
elected officials are committed to protecting our beautiful, 
diverse landscapes and wildlife habitat. In fact, our voters 
have voted consistently three times since 1994 to tax 
themselves to preserve open space.
    Our county's master plan, zoning regulations, and open 
space preservation programs implement the county's commitment 
to preserve wildlife habitat. These documents, regulations, and 
programs consider wildlife, in general, and are not aimed at 
one specific species.
    Douglas County has successfully preserved over 26,000 acres 
through our open space preservation program, and through our 
development review process.
    I am sure you have heard numerous stories about the time 
and expense it takes to deal with the ESA. Briefly, here are a 
few of ours.
    The Fish and Wildlife Service in Colorado lacks the 
sufficient resources to review every day and long-term ESA 
issues in a timely manner. This affects us in two ways. Simpler 
issues needing attention before our regional HCP is approved 
take too long.
    For example, Douglas County recently purchased 150 acres to 
preserve Preble's meadow jumping mouse habitat and to provide 
some limited public access. Of the 150 acres, the trail could 
not avoid 400-square feet of mouse habitat. The required low 
effect HCP took 8 months to be approved.
    Second, we think given this experience, it is probably 
going to take us between 2 and 3 years, just to get our 
regional HCP approved.
    Because the Fish and Wildlife Service's goals and direction 
tend to change, everything takes longer. For example, many have 
relied on the proposed guidance provided in the Fish and 
Wildlife Service's proposed 4(d) Rule for the mouse.
    The 4(d) Rule was issued to provide clarity on what is and 
is not considered a take of mouse habitat during the period 
before the regional HCPs are approved. Well, the rule is about 
to be re-proposed. And we have heard that some of the 
guidelines such as extent of habitat will also be changed.
    I have outlined in my written testimony what we have and 
what we expect to spend to develop our HCP. I would like to 
make the point now that we are expected to spend upwards of a 
half a million dollars all to put our successful programs into 
a language that the Federal Government understands.
    My last issue is common sense. First, focusing on the 
``species du jour'' does not make good sense. Our efforts, the 
county's efforts to work toward preserving landscapes and 
wildlife habitat as a whole does make sense.
    Second, by the Fish and Wildlife Service imposing arbitrary 
mitigation ratios, they may actually create disincentives to 
preserve high quality, occupied habitat. The Fish and Wildlife 
Service's proposed mitigation ratios for the mouse actually 
provide incentives to restore or enhance marginal habitat that 
may yield questionable benefits for the mouse.
    To me, it makes more sense to provide incentives to ensure 
that the really good habitat, occupied habitat is preserved.
    And in conclusion, I have just a couple of quick thoughts. 
In our situation, the Fish and Wildlife Service must be 
provided with adequate resources to fulfill its legal 
obligations.
    We are faced with the scenario where we are going to be 
spending at least a half a million dollars to put in place just 
a plan. But we also may be required to pay for the Fish and 
Wildlife Service's NEPA requirements. We think that is an 
unfunded mandate.
    Second, we also encourage Congress to consider streamlining 
the HCP process. Third, we would like you to consider keeping 
the species preservation decisions as close to the local level 
as possible, to allow for common sense solutions.
    And fourth, and finally, I totally agree with a lot of what 
has been said today. We need to work on providing incentives 
for landowners to become partners in this preservation effort.
    I would be happy to answer any questions that you may have.
    Senator Crapo. Thank you very much, Ms. Fox.
    Mr. Moore.

 STATEMENT OF JIM MOORE, DIRECTOR, PUBLIC LANDS CONSERVATION, 
             THE NATURE CONSERVANCY, LAS VEGAS, NV

    Mr. Moore. Thank you, Mr. Chairman and members of the 
committee. Good morning, my name is James Moore. I formerly 
served as the Desert Tortoise HCP coordinator for the Nature 
Conservancy of Nevada.
    As you have heard from my colleague, Michael O'Connell in 
July of this year, the Nature Conservancy has been involved in 
conservation planning under the Endangered Species Act since 
section 10 was authorized in 1982.
    I was requested to come before you today to discuss a 
successful case study of an HCP, which began in 1989 in the 
unlikely setting for conservation of any kind, Las Vegas, NV.
    In the late 1980's, the economy of southern Nevada was 
booming, with an average of between 5,000 and 6,000 people 
moving into Las Vegas Valley every month.
    In August 1989, the Mojave population of the desert 
tortoise was listed by emergency rule as endangered, and by 
final rule as a threatened species in April 1990.
    Under section 9 of the 1973 Endangered Species Act, no take 
of the desert tortoise or its habitat could occur on private 
lands. Much of the private land in the Las Vegas Valley was and 
is to this day desert tortoise habitat.
    The surging Las Vegas economic train threatened to derail 
over an innocuous herbivorous reptile on the tracks. Numerous 
construction plans and commitments for large-scale projects 
such as school construction, flood control projects, and 
master-planned communities were delayed, while awaiting the 
outcome of court cases and appeals of the emergency listing.
    It was in this atmosphere of conflict that a little known 
provision of the ESA was brought into play. The Nature 
Conservancy had recently participated in a similar setting in 
the rapidly developing resort area of the Coachella Valley 
outside of Palm Springs, CA, when the fringe-toed lizard was 
listed as endangered.
    We assisted State and Federal agencies and private 
landowners to create and implement a successful conservation 
program under the auspices of section 10(a)1(B) amendment of 
the ESA.
    And following this example, Clark County, NV took the lead 
on resolving the desert tortoise listing conflict, and enlisted 
the aid of the Nature Conservancy to provide recommendations 
and environmental input into the development of an HCP to solve 
the needs of private landowners in the Las Vegas Valley. It was 
at this time I was hired as the Desert Tortoise HCP 
Coordinator.
    The first order of business was to assemble a steering 
committee of affected parties; stakeholders representing a 
diverse array of land uses and landowner issues in tortoise 
habitat.
    Livestock ranchers, miners, off-road vehicle enthusiasts, 
hunters, hikers, tortoise advocacy groups, national 
environmental groups, together with private property owners, 
representatives from four cities, State and Federal land and 
wildlife management agencies convened for some tension-filled, 
early, get-acquainted sessions.
    Land use rhetoric and entrenched bureaucratic positions 
abounded on all sides while the group sought a common 
direction. This seemingly impossible task fell to the skilled 
facilitator, Paul Selzer, also involved in the Coachella Valley 
HCP, to set the legal sideboards for the discussions and to 
mold this dynamic oil and water group into a coordinated, 
constructively engaged body.
    The uncertainties inherent in embarking on this relatively 
new provision and untested provision of the ESA attracted much 
scrutiny from environmental activists groups, who wished to 
ensure that a low standard was not set by this HCP.
    The projected lengthy timeframe required to develop a 
conservation plan for 20 or 30 years led the group to submit an 
application for a short term, 3-year HCP. During this time, the 
long-term plan would be developed using lessons learned from 
the short-term experience.
    The shorter timeframe of the 3-year HCP also provided more 
skeptical environmental groups with some assurances that take 
would be very restricted and would be commensurate with the 
conservation mitigation.
    In exchange for the limited take provided, mitigation would 
occur on public lands, where a majority of the best examples of 
viable and protectable tortoise habitat remained at a ratio of 
roughly 20 to 1. This was an extraordinary ratio of 
conservation to take, proposed under this provision.
    Some of the more notable accomplishments of the short term 
HCP were the purchase and retirement of livestock grazing 
permits from willing seller ranchers, encompassing over a 
million acres of public lands; the transfer of competitive off-
highway vehicle racing out of priority conservation areas and 
into areas less ecologically sensitive; the initiation of a 
tortoise relocation program to place tortoises removed from 
developing lands back into previously depleted areas of the 
Mojave Desert; and the reliable funding of public land 
management activities for the benefit of the desert tortoise.
    An additional byproduct of this process was the development 
of trust among the stakeholders involved in the conservation 
planning. This led to the successful negotiation of 
transitioning the short term into a long term desert 
conservation plan, which is now, as Senator Reid pointed out, 
the largest conservation plan in the United States.
    The subsequent successful transition from short term to 
long term also led to the now developing multi-species HCP, 
which is proposing to address the conservation needs of an 
additional 78 species.
    Many uncertainties exist for those additional species. And 
the multi-species plan proposes to integrate a strong adaptive 
management component into its conservation recommendations.
    It relies heavily on trust that the monitoring program will 
be sensitive enough to detect when management assumptions go 
awry for one or more of the covered species. And the appetite 
of landowners for these future adaptations of conservation 
provisions and mitigation measures is, as yet, untested.
    The jury is still out, in conclusion, as to whether or not 
this multi-species plan will pass what I consider the 
environmental smell test; that is, are the species proposed for 
coverage under this plan better off in the presence of a 
coordinated, well-funded conservation planning process than 
they would be in the absence of it? And I believe the answer 
will be yes, but that remains to be seen.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Moore.
    Mr. Quarles.

  STATEMENT OF STEVEN P. QUARLES, COUNSEL, AMERICAN FOREST & 
               PAPER ASSOCIATION, WASHINGTON, DC.

    Mr. Quarles. Thank you, Sir. I am Steve Quarles. I am 
counsel for and appearing today representing the American 
Forest & Paper Association.
    AF&PA believes that habitat conservation planning is an 
extraordinarily valuable tool to elicit from the private 
landowner support for species protection.
    A massive amount of private land has been enlisted in the 
cause of species protection as a result of the habitat 
conservation planning process. AF&PA's members alone have 15- 
to 20-million acres of land in HCPs for which incidental take 
permits have already been issued.
    We have strongly supported legislative reform to provide a 
more solid, statutory basis for habitat conservation planning, 
and to remove some of the more recent problems that have arisen 
in habitat conservation planning.
    More even than the amount of land including within 
incidental take permits is the quality of management on that 
land resulting from habitat conservation planning. Remember 
that the only obligation of a private landowner is to avoid 
take of individual members of the species. That typically means 
that a private landowner that is not engaged in a habitat 
conservation planning simply avoids or perhaps puts buffers 
around discrete pieces of the landscape, where identified 
members of the species are nesting, breeding, or otherwise 
conducting behavior important to their survival.
    And even this minimal habitat is usually not protected long 
term from fire, disease, insect, or simply growing out of the 
appropriate habitat conditions. It is only with HCPs that 
landowners agree to grow and replace habitat. It is only 
through HCPs that landowners are willing to invest the money, 
the time, and the effort to, in fact, ensure additional new 
habitat consistently.
    You know the statistics. Over 70 percent of all listed 
species have 60 percent of their habitat on private land. Over 
35 percent of endangered and threatened species have all their 
habitat on private land. Clearly, habitat conservation planning 
is important for species protection.
    It is also of importance to landowners. The landowner 
obligation absent habitat conservation planning is simple: to 
avoid take. But the consequences are severe: injunctions, 
imprisonment, penalties. Clearly, a landowner would like to 
avoid those consequences, and the habitat conservation planning 
process is the best way to do that.
    Landowners are under no illusion that the process is easy, 
timely or inexpensive. I refer you to a chart in my written 
testimony, I submitted to this committee 5 years ago, in which 
I compared how much more costly, lengthy, and procedure-laden 
is the process for private landowners to obtain incidental take 
protection under section 10, than the process for Federal 
agencies to obtain incidental take protection under section 7.
    But this Administration is to be complimented. It has 
invested significant energy, policies, and resources to make 
the HCP process work better. And the process has become a good 
business investment for landowners who can afford it.
    That is enough of the positive. My task today is to discuss 
the problems that our members have recently and more frequently 
encountered. We really do see a loss of focus and momentum in 
the habitat conservation planning process.
    A number of our members' HCP preparations have come to a 
standstill, with no prospect of obtaining a permit. In other 
cases, HCPs have been abandoned by the companies. And, finally, 
many more of our members are seriously considering whether they 
can justify participation in the habitat conservation planning 
process.
    We see six categories of problems, which I discuss in some 
detail in my written testimony, but I will only summarize here. 
First, are procedural problems that are escalating the costs 
and delays beyond the capacity of even the largest landowners 
to absorb. The Services' habitat conservation planning 
handbooks say that even the most complicated HCPs are supposed 
to be processed within 10 months. Today, we are finding 2-year 
processing time to be precipitous agency actions. We are 
looking at processing times of anywhere from 3 to 6 years. You 
heard Rob Thornton speak of a 10-year period.
    Second, the Services originally encouraged and now they are 
undermining multi-species HCPs by their demands.
    Third, we see the Services sacrificing science to 
administrative efficiency, by seeking boilerplate provisions 
for all HCPs addressing the same species, even though there are 
particular habitat conditions for each landowner, and by 
requiring arbitrary mitigation ratios.
    Fourth, we see threats in the courts and from the Services 
to the linchpin for landowner participation--the certainty that 
a deal is a deal. This, of course, is the certainty that is 
embodied in the ``No Surprises'' rule.
    Fifth, we see the imposition by the National Marine 
Fisheries Service of an inappropriate and unlawful standard of 
recovery as a condition of approval of HCPs--a standard that no 
landowner can meet, and is a principal reason why a great 
number of HCPs are now at a standstill.
    Sixth, and finally, we see a failure of the Services and 
Congress to provide an effective mechanism that allows small 
landowners to pursue the same incidental take immunity attained 
through HCPs.
    This obviously sounds like quite an indictment. It is. We 
are seriously concerned that the HCP program is faltering. But 
you have no greater fans of that program than the American 
Forest & Paper Association. We believe it is the strongest hope 
for species preservation on private lands.
    Thank you.
    Senator Crapo. Thank you, Mr. Quarles.
    Mr. Rose.

   STATEMENT OF DON ROSE, MANAGER, LAND PLANNING AND NATURAL 
            RESOURCES, SEMPRA ENERGY, SAN DIEGO, CA

    Mr. Rose. Good morning, Mr. Chairman and members of the 
subcommittee. My name is Don Rose. I work for Sempra Energy.
    My staff and I are responsible for the siting and route 
selections for transmission lines, gas and electric, and the 
siting of other facilities, like substations, and regulator 
stations. We also get the permits and the environmental 
clearances, so those facilities can be developed.
    Sempra is the parent company for San Diego Gas and Electric 
and Southern California Gas, which serves a great deal of 
Southern California.
    I appreciate the opportunity to appear here today on behalf 
of Sempra and the Edison Electric Institute, which is the trade 
association for shareholder-owned electric utility companies. 
We commend the subcommittee for conducting these hearings. We 
are very interested in the hearings. We are especially 
interested in the outcome of the hearings.
    Gas and electric systems are complex. And like lots of 
complex systems, they need constant care and maintenance. 
Without that care and maintenance, there are outages.
    Outages can have serious consequences, which can be 
economic. They can be serious to health. There can be fire. The 
environmental consequences can be quite serious. Because of 
that, the State and Federal Governments on which we must be 
permitted by require and mandate certain maintenance.
    To perform this maintenance, it frequently puts us in a 
conflict situation with the Endangered Species Act. 
Maintenance, typically, must be performed during, weather 
permitting, the nesting season for most of the protected 
species, that being Spring and Summer and Fall.
    During the bad weather, we can not do the maintenance. The 
maintenances for maintaining access roads, et cetera, has to be 
done during the good weather. Therefore, complying with one 
regulation puts us in conflict with another regulation. So the 
regulatory conflict is one of the biggest issues we have with 
the Endangered Species Act. HCPs help resolve that, to a 
degree.
    San Diego County, more than most places in the United 
States, is in this conflict situation. There are more listed 
species in San Diego County than any other county in the 
continental United States. So it is very difficult to go out 
into the natural environment, without encountering that kind of 
a situation.
    HCPs seem to be the solution, so we went for it, 
enthusiastically. We spent $1.2 million on a mitigation bank 
and about another $800,000 on training and all the things 
necessary to process an HCP.
    And it worked very well for about 3 years. We are able to 
do new construction without obtaining additional endangered 
species permits. We are able to do our maintenance year around, 
even during the sensitive time of the year. And we were able to 
maintain our access roads.
    Now the access roads are the most important part of that 
maintenance activity. Because it is the access roads that 
allows us to do all the other maintenance. We must have access 
to the facilities in order to do that.
    Well, along came the Quino checkerspot butterfly. Even 
though we had 110 species covered, that was not on the list. It 
was believed to be locally extinct. It was resurrected, and 
what do you know. It just seemed to love the plant life that 
would gravitate to our access roads. So we were not allowed to 
regrade our access roads.
    We talked about possible environmental consequences. The 
two main activities, at least the ones we do the most 
frequently are what we call insulator washing and line 
clearing. We must wash the insulators. If you do not, they will 
collect dust, and they will conduct electricity, and cause what 
is called a flashover. Tree trimming or line clearing does 
something similar, put out lines or starts fires.
    This is a flashover on a low-voltage line, 26,000 volts. 
The lines we are talking about are the lowest voltage 
transmission lines on our system of 69,000. Three times that, 
138,000 and 230,000 are the two most frequent lines that cross 
the country, and we have a 500,000-volt line.
    Now the ball of fire gets bigger. And I do not know if it 
is arithmetic or what, but it is bigger as the voltage goes up. 
This is not a wolf cry. This is real. We lost 20-square miles 
of very valuable habitat in San Diego County, due to a fire 
from poor maintenance.
    Our HCP is avoidance-based and it is habitat-based. It is 
not species-based like the act, itself. We put aside large 
numbers of acres. We have put our rights-of-way into preserves. 
Concerning our protocols, we completely changed the corporate 
culture, adopted new protocols for people who work in the 
field. They have to do things differently than they have 
historically.
    And I would say, at this point, I think SDG&E is probably 
the most environmentally-sensitive electric utility company in 
the United States, in the way that they do their maintenance 
and their new construction. I have a list of these kinds of 
protocols they must comply with, if you are interested.
    Certainty and comprehensive are the two key words. There is 
no certainty with your HCP. The Quino checkerspot came along. 
Our HCP is now nearly useless. We can not use our access roads. 
We can not wash our insulators. We can not trim the trees.
    It is not comprehensive. If another species comes along, 
even though it is habitat-based, it should be protected, as 
long as it lives in that habitat, but it is not.
    So what kind of things could we do to change that? One is 
that if you have a habitat-based HCP, anything that lives in 
there is afforded the same protection. And it ought to be 
included, unless it can be proved otherwise that there is 
special danger to it.
    But more important would be a separate career path for the 
Fish and Wildlife Service personnel that are managing HCPs, not 
the field biologists. Their charge is to go out and heroically 
protect those things that are on the brink of extinction, not 
to issue a take permit, as philosophically opposed to that. 
People with the broad view and the long view are needed to 
manage HCPs.
    Can I keep going on? I have a red light. But I would love 
to go on.
    Senator Crapo. Well, we probably should conclude with that. 
Your written testimony has been carefully reviewed.
    I will ask a few questions of the panel at this point. We 
thank you all for your testimony.
    I would like to start with you, Mr. Willey. You mentioned 
during your testimony that you hired Dr. Dennis Murphy to 
develop your HCP. And Dr. Murphy, of course, testified before 
this subcommittee in July on the question of the science of 
HCPs. I am assuming that your plan has been through a rigorous 
scientific examination, by not only Dr. Murphy, but others.
    The question is, is the Fish and Wildlife Service's basis 
for not approving your plan based on a problem with the 
science, or have they elaborated a reason for why they have not 
approved the plan?
    Mr. Willey. They did not elaborate a reason. And as I 
mentioned in the testimony, they never gave us any comments in 
writing, whatsoever.
    The comments that we did get from them were verbal and 
sporadic. They ranged from, ``this entire hill is habitat,'' to 
Dr. Murphy, ``you do not know how to count butterflies.'' This 
literally was said to Dr. Murphy.
    Senator Crapo. So at this point, you do not really have an 
understanding of exactly why the delays have occurred or why 
the approval has not been received?
    Mr. Willey. No. I have suspicions, but I have never been 
told. But, yes, our plan, which is right here and costs 
$300,000 to produce, before we even rang the doorbell over at 
Fish and Wildlife, was put together by H.T. Harvey and 
Associates and Sycamore Associates, and reviewed by Dr. Murphy 
and Dr. Ray White and Alan Lonner, the real experts on this 
species in the world. And it was good science. It was a good 
plan.
    Senator Crapo. Can you tell me how much it has cost Presley 
Homes to this point to develop the HCP?
    Mr. Willey. Half a million dollars, so far.
    Senator Crapo. And review with me, again, the amount of 
delay you have incurred.
    Mr. Willey. Well, we have made our formal application and 
submitted the draft HCP in October 1998, and presented it in a 
formal meeting in November 1998. We began grading this summer 
and were stopped after just a couple of weeks of grading. But 
the Service waited until we were out there actually doing work 
before they stopped us.
    Senator Crapo. Mr. Willey, many builders are small volume 
builders. They build between 10 and 25 homes a year or less. Do 
the concerns that you have outlined in your testimony apply 
across the board to small operations like that?
    Mr. Willey. Oh, absolutely. I could not imagine myself 
being a small volume builder, or worse yet, a private landowner 
who has had some land in the family for a few generations, and 
want to develop my property. I can not imagine somebody having 
to go to the Fish and Wildlife Service and go through the maze 
there.
    The private landowners, would not only have the money to do 
the types of mitigations that are demanded these days, but they 
would not be able to afford the scientific help to even get 
started.
    Senator Crapo. Thank you very much.
    Ms. Fox, as you stated, Douglas County is making enormous 
investments in a county-wide HCP. Would the county consider 
these investments without the assurances provided in the ``No 
Surprises'' rule?
    Ms. Fox. That is something that we have been concerned 
about, all along. I think that it would be very difficult for 
us to move forward without those assurances.
    Senator Crapo. You also indicated in your testimony that 
the NEPA costs were in the context, as you viewed them, 
essentially as an unfunded mandate. The cost of the agency's 
compliance with NEPA is being borne by the county.
    Could you elaborate on that?
    Ms. Fox. I think our biggest fear is that after we have 
spent a lot of money, to get to a point where we are 
negotiating our habitat conservation plan with the Fish and 
Wildlife Service, and that if we get to a place where we are 
agreeable, and the Fish and Wildlife Service says, ``Well, this 
is great, but we can not issue your permit, because we can not 
afford it.'' They do not have the money or the resources to pay 
for NEPA compliance. Then the county will have to come up with 
the additional funds.
    The county commissioners would have a pretty hard time 
justifying that, after we have already gone through an 
extensive amount of time and negotiation and cost to our 
taxpayers.
    Senator Crapo. I think that is understandable.
    I happen to have a constituent in Idaho who owns a ranch in 
Colorado, where his elderly mother resides. And that ranch is 
on the market and happens to be habitat for the Preble's meadow 
jumping mouse.
    A few months ago, an offer was made on the ranch, and 
subsequently withdrawn, because the buyers were concerned about 
the presence of the mouse.
    And although I do not know whether this ranch is located in 
Douglas County, I am wondering if the HCP that your county is 
developing would provide assurances to potential buyers that 
they would not be required to undertake burdensome conservation 
measures to protect the mouse, increasing their level of 
confidence in purchasing the property.
    In other words, if this ranch were in Douglas County, would 
the HCP that you are working on help them to be able to provide 
the necessary assurances to a buyer?
    Ms. Fox. One of the things that the county commissioners 
were very concerned about when we launched into this process 
was to do some things that not only covered the county's 
activities, such as building roads and bridges and trails. We 
have a significant amount of rural landscapes in the county and 
ranches. The county commissioners have a strong ethic toward 
agriculture. We wanted to include agricultural activities into 
our habitat conservation plan.
    So we are working with private entities, developers and 
others to work on the development of our habitat conservation 
plan, to make it acceptable to a wide variety of people, and 
take into account other activities besides just our county 
activities.
    Senator Crapo. OK, good.
    Mr. Moore, could the Clark County Desert Conservation Plan 
be used as a model for HCP species in other parts of the 
country, or is this also uniquely different in terms of the 
circumstances that we can not identify model aspects of 
projects such as this?
    Mr. Moore. That is a good question. The term model HCP has 
been used and thrown around quite freely by many of the 
different plans that have been successful in the past.
    The Clark County plan is unique in that the funding 
mechanism for the plan, very early and up front, was the same 
issue, if you will, that caused the listing in the first place. 
That is the rapid development and loss of habitat, also created 
the successful funding mechanism for the development of the 
plan. That is the imposition of impact fees on the private 
property owner that wanted to develop his or her land.
    On the whole, the Clark County HCP, I think, is somewhat 
unique in that both the species requirements, the fact that 
most of the species, the desert tortoise, existed on public 
lands, not private lands, allowed for a pretty flexible 
negotiation process with the Fish and Wildlife Service in terms 
of the mitigation would not be placed on the backs, if you 
will, of the private property owner, but would take place on 
public lands; that is, largely BLM owned and managed landscape.
    So there are components of the Clark County HCP, I think, 
that can not be duplicated elsewhere. But there are lessons 
learned, I think, that can be. And that is the fact that the 
Clark County HCP is recognized as one of the leaders in terms 
of public participation early and up front, which takes away a 
lot of the resistance at the latter part of HCP development.
    It definitely lengthens the process. And if you do not have 
the luxury of a funding mechanism to pay for that process, then 
a lot of public participation is probably not a desirable 
aspect of HCP development, especially for a smaller private 
property owner.
    Senator Crapo. I was interested in the lessons learned 
section of your written testimony and your presentation today 
with that point.
    You indicate that the resistance to the proposed mitigation 
measures was effectively diffused by the large amount of public 
input. Could you elaborate on that?
    I am interested in finding a common approach that could be 
modeled in other areas. Public participation is an area in 
which I have a significant amount of interest because I am 
concerned about the way we go about it under our environmental 
laws today.
    How did you do it there, and what made it so effective?
    Mr. Moore. Well, we did it by identifying not only those 
stakeholders that would be impacted by desert tortoise habitat, 
a take on tortoise habitat--those whose private property is 
actually within the critical habitat designation, but also 
those stakeholders that would be affected by the proposed 
mitigation strategies on public lands, which was not private 
property.
    So we adopted essentially a ``y'all come'' scenario. The 
meetings were open to everybody. The only requirement was that 
if you come in, you come in informed. Do your homework; read up 
on what has taken place before. Still, there was a lot of 
venting up front, a lot of tension.
    The meetings were frequent. We tried to distribute the 
meetings throughout the day, so that people that worked during 
the day could attend some meetings at night because the Las 
Vegas Valley or Las Vegas community is essentially a 24-hour 
town. There are three shifts of people operating at all times. 
We had to make sure that the key landowners or key stakeholders 
in the process had the opportunity to participate.
    One of the difficulties in that scenario, however, is the 
cost associated with participation over a long period of time. 
The thing that brought people to the table and kept them there 
was essentially the balance of terror. It was the belief, or 
the fear, that if they were not there, that something was going 
to be negotiated that they would not have a say in.
    So a lot of people, especially the smaller landowners, the 
small miners, OHV recreationists, who did not actually own the 
private property that affected livelihood or their recreational 
interests, all participated as much as they could.
    In fact, at times, the livestock ranchers dropped out of 
the process, because they did not see a benefit to themselves 
early on.
    Clark County essentially went out and hired an attorney 
known for her adoption of western land use issues, Karen Budd-
Falen. They hired her to represent the livestock interests. It 
was incumbent upon her to go out and solicit input from the 
ranchers and miners and other people that could not participate 
on a daily basis or on a monthly basis, and bring those 
interests to the meetings.
    Senator Crapo. Who was in charge of handling the meetings?
    Mr. Moore. Paul Selzer, the facilitator for Clark County, 
was hired by Clark County because of the success that he had 
had in negotiating the Coachella Valley, development.
    Senator Crapo. And did the Federal agencies involved 
attend?
    Mr. Moore. Yes, definitely, they were all ex officio 
members, from the State, Federal, and local government levels.
    Senator Crapo. How were decisions made? Was a consensus 
process followed?
    Mr. Moore. It was a consensus-based process. Many times, 
you know, we just talked issues out until either people were 
just brain dead or could not argue any more, or did not feel 
strongly enough or impassioned enough in their opposition to 
continue the arguments against a particular direction that we 
were taking.
    Senator Crapo. Then once those decisions were reached--
which Federal agency were you dealing with, in terms of the 
HCP?
    Mr. Moore. It was the Fish and Wildlife Service.
    Senator Chafee. Fish and Wildlife?
    Mr. Moore. Yes, Sir.
    Senator Crapo. How was Fish and Wildlife convinced to agree 
with the consensus that was reached in the meetings?
    Mr. Moore. Well, we were somewhat lucky in our scenario, in 
that the Service was an active participant. They still were 
straddling the NEPA regulations--they cannot pre-decide a 
policy or a decision, based on an application for an incidental 
take permit.
    They could provide the sideboards during the process and 
kind of tweak the process along the way, and let people know if 
they were heading off in the wrong direction.
    Also, we had the benefit of a recovery plan, which took 
kind of the big-picture approach of habitat-based conservation 
planning. So the service was engaged.
    For the development of the short-term plan, there was a 
consistent representation, not only in terms of the staff that 
were participating, but also in terms of the policy that was 
being forwarded by the Service to the committee.
    I have heard a continous strain throughout the discussions 
of various HCPs today--consistency in representation and 
consistency in commitment to policy guidelines that the Service 
representatives bring to the table is essential to negotiating 
an agreement that works.
    Senator Crapo. But if I understand it correctly, though, 
the Service effectively let the process work, and to the extent 
consistent with the legal requirements it was working under, 
accepted the recommendations or the consensus that was 
developed.
    Mr. Moore. Absolutely, and I think the reason behind that 
was that they had enough foresight to see that if they did not 
let the process run its course, if they did not let all the 
stakeholders have their say and have some input in terms of 
deciding how this negotiation was going to occur, and what the 
provisions in terms of the conservation proposal and the 
mitigation requirements was going to be, that they would get 
hammered at the end product. A big document would be produced 
at considerable cost, but it would lay on a shelf, because it 
would not be accepted by the key stakeholders involved.
    So they realized that the process, while lengthy and costly 
and tedious, was essential to getting a successful product at 
the end.
    Senator Crapo. Now do you have a ``No Surprises'' element 
in this plan?
    Mr. Moore. Yes, the ``No Surprises'' rule or guidelines 
came about late in the game. And I think it was in 1994 or 
1995, when we had already had a successful short-term plan, and 
had already submitted our long term 30-year desert conservation 
plan.
    But ``No Surprises'', I think, was operating at a constant 
level throughout the process. So it was not something that 
everybody insisted would be a new policy, integrated into the 
process, because it had been consistent throughout.
    Senator Crapo. It had basically been achieved in the 
consensus already.
    Mr. Moore. Yes, because it was such a high-profile HCP, the 
largest in the Nation, it attracted the attention of a lot of 
people at the upper levels. We needed the assurance to get 
especially the more politically powerful stakeholders and 
private property owners to sit at the table and agree to the 
mitigation.
    Senator Crapo. Do you think you could have achieved this 
consensus without that kind of agreement on ``No Surprises''?
    Mr. Moore. I think it would have been difficult if we had 
not had it kind of operating at a de facto level throughout. I 
do not think if the Service had changed courses during the 
development of the short term plan to the long term plan or the 
transition, then I think we would have lost some key 
constituents.
    Senator Crapo. All right, thank you.
    Mr. Quarles, you have raised an issue that I think is 
pretty important. Would you elaborate on your view that it is 
inappropriate to impose recovery standards on private 
landowners in the habitat planning process? And would you 
describe how you see this standard being imposed presently?
    Mr. Quarles. Certainly. If there is probably any principle 
of law that there is more agreement on, under the Endangered 
Species Act, it is that recovery is a responsibility only of 
the Federal Government, and not a responsibility of the private 
landowner. The private landowner has a much more modest 
responsibility, and that is to avoid take.
    You can find this principle both in the language and in the 
legislative history of the Endangered Species Act, the Interior 
Department's Solicitor's opinions, preambles to the rules of 
the Service, court opinions, even the Solicitor General's 
briefs to the U.S. Supreme Court in Sweethome, and in the 
Service's own Habitat Conservation Planning Handbook. That is a 
principle that has guided the Service until very recently in 
the administration of the law.
    ESA section 10 does have two additional requirements for 
landowners seeking incidental take permits that also are much 
more modest than the recovery standard. One of them is 
virtually identified to be not likely to jeopardize the 
continued existence of the species standard that is in the 
section 7 process for Federal agencies to obtain incidental 
take immunity.
    And the other standard is that the landowner, to the 
maximum extent practicable, is to minimize or mitigate the 
direct impacts of the incidental takes. This standard is very 
similar to the proportionality requirement of the Supreme Court 
in the Dolan decision, that government can not require more of 
landowners than to address the impacts of their own actions.
    These standards have been made irrelevant by the NMFS in 
particular salmon HCPs on the West Coast. NMFS now is requiring 
fully functioning or properly functioning habitat which the 
landowner must provide during the term of the HCP.
    That means that the landowner does not just mitigate the 
results of his or her own actions. The landowner has to 
mitigate all the impact upon the habitat that may have occurred 
long before the landowner acquired the property.
    This new NMFS standard is, by definition, not 
proportionality. By definition, it is recovery. You have to 
recover that land, that habitat, and recover it to the point 
that the species can recover on that land.
    The simple fact of the matter is that if this new standard 
were to prevail, there would be virtually no HCPs. Landowners 
cannot provide recovery. Their land usually does not cover 
enough of the landscape for that purpose. Even if they take all 
the necessary actions to supposedly provide a fully functioning 
habitat and the species do not come, then it is not a properly 
functioning habitat. The landowner can not bring the species. 
There may be all sorts of natural or human-caused reasons why 
they do not come.
    It is not an exaggeration to say that HCPs will not occur 
under this standard. Because to my knowledge, there is not a 
single HCP that, once NMFS has demanded fully functioning or 
properly functioning habitat, has proceeded to an incidental 
take statement. Each and every one of them has reached a 
standstill.
    Senator Crapo. If I understand you correctly then, 
essentially your position is that there is no legal 
justification for the imposition of this standard, but 
nevertheless it is being imposed in the HCP process?
    Mr. Quarles. Yes, by one agency. Interestingly enough, as 
far as we can tell, this is a fundamental disagreement between 
the Fish and Wildlife Service and the National Marine Fisheries 
Service.
    The Solicitor's opinions in the Department of the Interior 
and, as I say, the Solicitor General of the United States, are 
clearly on record as saying that conservation is not a standard 
to be applied--recovery is not a standard to be applied to 
landowners.
    Senator Crapo. And it is the National Marine Fisheries 
Service that is applying this recovery standard.
    Mr. Quarles. Yes, it is.
    Senator Crapo. One other aspect that you covered in your 
testimony is the difference between section 10 and section 7, 
and the question of whether Congress intended that HCPs 
developed under section 10 should undergo a section 7 
consultation.
    Would you evaluate or explain a little further your 
approach to that issue?
    Mr. Quarles. I will. First of all, there are two lawsuits 
that say that because you have to do section 7 consultation on 
an HCP whenever a new species is listed or new information 
arises the Services, either NMFS or the Fish and Wildlife 
Service, have the a right to re-initiate consultation on that 
original HCP, and make all sorts of additional demands for 
expenditures and set-asides of land. That completely 
contravenes the ``No Surprises'' policy.
    Second, there is another lawsuit, which simply says that 
under section 7(d), during the course of consultation, you can 
not make any irretrievable commitment of resources that could 
frustrate options for the incidental take permit. This would 
mean that landowners would not take any actions that would 
alter habitat during the entire course of the negotiations of 
the HCP which, as I said, can take anywhere from 2 to 6 years.
    Developers may be able to avoid that, because they do not 
disturb the ground until all the permits are in place. But 
farmers, forest land operators cannot forego land management 
entirely for years.
    And the final reason why it is of real importance is 
because section 7 gives the Services an excuse to consider 
issues and apply conditions in HCPs that Congress specifically 
decided not to apply to private landowners. One is the 
protection of critical habitat. Another is the protection of 
listed plants. So we believe that that is really a problem.
    In fact, we believe that the law states that section 7 
should not apply to HCPs, and that there are two separate 
processes--the section 10 process for incidental take permits 
and the section 7 process for incidental take statements.
    There are a number of proofs in the pudding. But perhaps 
the greatest one is that when Congress enacted both those 
processes in 1982, it took the principal standard of Section 7, 
the ``do not jeopardize'' standard and inserted it in the 
Section 10 process, clearly indicating they expected those to 
be two separate and mutually exclusive processes.
    Senator Crapo. Good, well, thank you, I appreciate those 
observations. They are helpful.
    Mr. Rose, in your statement, you recommended the 
development of a new career track at Fish and Wildlife. And I 
find that an interesting proposal. We are looking for solutions 
here that can work. And perhaps we need to look at the 
structural operation on the agencies.
    Why do you think a new career track is needed, and what 
would you propose there?
    Mr. Rose. Well, I have dealt with few agencies or 
organizations of any kind, that is so top heavy with a single 
discipline.
    About 90 to 95 percent--and this is casual observation from 
the regional offices that I am familiar with, but also just 
discussing with other people--of the professionals in the 
wildlife agency, the service, are biologists. They do not have 
the other disciplines necessary, in my opinion, to carry out 
what is needed for a comprehensive HCP.
    For the long term and the broad view, I think you need 
people like land planners. You need people maybe with some 
economic backgrounds and several other disciplines.
    And I will give you an example of what I mean. The wildlife 
biologists are very focused on implementing how they interpret 
the Endangered Species Act, to conduct heroic efforts to save 
these things on the brink of extinction.
    In San Diego and along most of the California coastline, we 
have a bird called the least tern. The least tern is protected, 
and it should be. There were only 600 known mated pairs left in 
the world. They are back to about 2,000 now. They nest in the 
open sand. When it is faced with less and less open sand, it 
has fewer places to nest.
    Some chose to nest on the runway of the San Diego Airport. 
It was open. They could see their enemies coming, so they 
nested there. Then more followed close by. They did not all 
nest on the runway. But some chose the runway, and there were 
some deaths. The service issued a biological opinion, saying if 
you kill three least terns, we have got to shut down the 
airport.
    In the biological opinion was a proposed mitigation. They 
wanted the airport to cut grooves in the runway and fill them 
with sand and shells, because that is what the least terns like 
to nest in. So they wanted to attract more least terns to the 
airport, so that more would get killed, and they would have to 
shut it down.
    It seems that decisionmaking and planning and discretion is 
not compatible with the comprehensive HCP, which is supposed to 
accomplish more than just the heroic efforts to bring something 
back from the extinction. It is supposed to expand things, do 
more.
    So I believe you need other disciplines and other focuses, 
and maybe even other philosophies.
    Mr. Willey. May I add to that, please, Mr. Chairman?
    Senator Crapo. Certainly.
    Mr. Willey. Mr. Rose, I think you understated that. That 
would not even be compatible with common sense.
    My experience with the Service is that--and maybe, Mr. 
Rose, you can back this up--sometimes it is very difficult to 
find anyone who can make a decision; or, if they do, they will 
be in conflict with other ones. They will even change their 
minds again, before you leave.
    We found we could find no one who would take 
responsibility; no one who would make a decision. The 
biologists, who like to refer to themselves occasionally as 
``combat biologists,'' make the decisions. No two are the same.
    But I think that this leads to complaints of having 
different mitigation for the same situations, of people being 
treated differently, and projects processed differently, 
depending upon what day you take them in or what person you 
talk to.
    So I agree with Mr. Rose, there does need to be a variety 
of different disciplines working at the Service. And someone 
needs to be in charge.
    Senator Crapo. Ms. Fox.
    Ms. Fox. In Colorado, that 8-month low-effect HCP, that I 
just mentioned in my testimony was the first habitat 
conservation plan issued in the State of Colorado.
    And we feel like we are hoeing entirely new ground. But, 
yet, we know that there are all these other HCPs that have been 
negotiated throughout the country.
    But our representatives at the Fish and Wildlife Service 
are new to all of this. So it would be great to have a little 
bit of cross-fertilization, because we feel like we are going 
through a whole new process.
    Senator Crapo. I think these are all good suggestions. I 
suspect that there is probably frustration within the agencies 
themselves with regard to the structures and the requirements 
they are required to face.
    Maybe we can find, as we look to build a reform, some way 
to suggest some institutional and structural changes to help 
decisionmaking occur and to have some consistency, and to have 
some timeframes within which it will be made, and some 
responsibility there.
    Mr. Rose, I also note that last year, in the Senate's 
comprehensive Endangered Species Act Reform bill that was 
reported out by the committee, there was a provision that 
provided for a ``low-effect activity incidental take permit''.
    What do you think of that kind of an approach, and how well 
would that address some of your problems; in other words, 
creating sort of a new category for very low-effect activities?
    Mr. Rose. I think the concept is OK, like the whole concept 
of HCPs. How would it be administered? Who would determine what 
is low effect?
    I think right now it would be back to that field biologist 
that wanted to shut down the airport. So the risk is high. But 
the concept sounds good.
    If it has rigid standards for some kind of application so 
that there is no discretion given to the field biologists on 
how it would be applied, I could look more favorably on it. But 
right now, I would be very concerned about the risks involved, 
and I would need to know a lot more about the specifics.
    Senator Crapo. Fair enough.
    Mr. Quarles.
    Mr. Quarles. Yes, if I may, that was one of my criticisms, 
and let me expand on that just a bit.
    All of us have the good intentions of trying to find a way 
to make this work for the smaller landowner. But I do not think 
we have found the answer yet.
    For example, the small-effects language in the committee's 
bill last year, still required a potentially expensive case-by-
case analysis.
    And the result is, even though the Service's handbook says 
that those small-effects HCPs, I believe, are supposed to be 
completed in 3 months, you heard something like 6 to 8 months. 
And, obviously, the high-effects ones were supposed to be 
completed within 10 months, and we are hearing 2 to 6 years.
    The Services, to their credit, have experimented with a 
number of other mechanisms, such as no take letters, for birds 
in Austin. They have also developed the Safe Harbor concept. 
But none of those has really received broad acceptance or use 
by smaller landowners. And many in the Services are opposed to 
the use of those mechanisms.
    AF&PA suggested to this committee last year, and we would 
love to have it considered again, that we authorize general, 
incidental take permits, like the general permits issued under 
the Clean Water Act, as a means of getting away from the case-
by-case process, and wrap in small landowners in a way that 
will allow them to obtain this incidental take immunity without 
significant cost.
    Senator Crapo. That is a good suggestion, also. Thank you.
    One last question for you, Mr. Rose. It seems to me as I 
read and listen to your testimony that what happened in your 
case is that you had a pretty extensive HCP, under which you 
managed your rights-of-way in a successful way to develop and 
maintain habitat.
    And then your efforts were trumped by the post-
implementation listing of a species, that essentially 
interfered with your ability to achieve the objectives of what 
you were seeking to do.
    But it also seems to be that it is very possible that that 
new species came there because of the habitat development 
efforts and the activities that you were undertaking.
    Was that ever an issue of discussion between you and the 
regulators?
    Mr. Rose. Yes, Senator, it was, but it was dismissed.
    Our contention is that the butterfly is, in fact, attracted 
to the plants that grow on our access roads. But it is 
attracted to other areas in our rights-of-ways that are not 
access roads. So the butterfly is there, and we are saving it.
    The plants and the road would be regraded every other year, 
but they come back. So the Service says, ``Well, it is a magnet 
for the butterfly.''
    Well, we say, ``It is good that it is there.'' Because if 
we cease to grade the access roads, that plant would not come 
back. It must have sun. If the sagebrush grew over the road, 
there would be no sun and the plants would not come back.
    So we felt that the butterfly has come back and is using 
our roads to do so. So that should be part of the Service's 
recovery plan. But they did not want to see it that way--
another shortcoming of the whole HCP.
    But that plan does not apply on Federal lands, and our 
facilities go for miles. They cross Federal lands; they cross 
wetlands. It does not apply there, only on the private 
property.
    So when we are talking about how that works for us, we are 
only talking about the private property aspects of our lines, 
not the miles on military reservations, forest service, et 
cetera.
    Senator Crapo. I understand.
    Well, I have a lot of other questions, and I also have run 
out of time. And I want to thank this panel for your written 
and your oral testimony, today.
    And I would just say to you and to everyone, here, 
obviously, we think this is a very critical issue that needs to 
be addressed, and is one of the issues that we hope has the 
potential for being able to be resolved, or we can find that 
consensus, if possible, to move forward on some meaningful 
reforms.
    We are in a political climate where, as I think Senator 
Baucus indicated, if we do not find an ability to move forward, 
we simply find ourselves at loggerheads and unable to move.
    But we also see real potential in some of these areas. And 
your efforts in helping us identify what is happening on the 
ground, so to speak, as we see difficulties in implementing the 
process will help us hopefully to find the way to build a path 
forward out of this difficulty.
    I would encourage all of you, not only those of you who are 
on the panel, but others who are interested in the issue, to 
continue to provide us information and observation and 
suggestions, as we move forward to try to identify a solution 
to this issue, and because we are going to be working on it 
very aggressively.
    With that, again, I thank everyone for your participation 
in the hearing. And this hearing is adjourned.
    [Whereupon, at 12:16 p.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
    
    
Statement of Eric R. Glitzenstein, Counsel, Spirit of the Sage Council, 
      Defenders of Wildlife and Other Environmental Organizations
    I appreciate this opportunity to testify on the benefits and policy 
concerns associated with Habitat Conservation Plans (``HCPs''), 
especially as those HCPs have been employed by the present 
Administration. I am a partner with the public-interest law firm Meyer 
& Glitzenstein which has brought lawsuits on behalf of a wide spectrum 
of national and grassroots conservation and animal protection 
organizations, including the Spirit of the Sage Council, Defenders of 
Wildlife, the Center for Marine Conservation, the Biodiversity Legal 
Foundation, the Sierra Club, the Fund for Animals, the National Audubon 
Society, the Humane Society of the United States, the Alliance for the 
Wild Rockies, the Earth Island Institute, the Center for Biological 
Diversity, the Environmental Defense Fund, and the Natural Resources 
Defense Council. I am also the President of the Wildlife Advocacy 
Project, a non-profit organization assisting grassroots organizations 
in advocacy on behalf of wildlife and other animals. In this testimony, 
I am providing my own perspective on the benefits and problems 
associated with HCPs, based on my extensive experience in litigating 
over these issues in Federal court.
          hcps are legal requirements, not voluntary ``deals''
    Before turning to some of these issues, it is important to 
understand precisely what role an HCP plays in the legal and regulatory 
structure established by the Endangered Species Act. As a matter of 
Federal law, an HCP is not, as some have suggested, a voluntary 
agreement reached by the Federal Government and a non-Federal party in 
which a compromise ``deal'' is struck that provides protection for 
endangered and threatened species. Rather, under section 10 of the ESA, 
the development of an HCP is a necessary quid pro quo for private 
parties who wish to engage in an activity that would otherwise be 
flatly unlawful under Federal law, i.e., the incidental ``taking'' of 
an endangered or threatened species through killing, harassing, 
harming, or adverse habitat destruction. Simply put, if a private party 
wishes to engage in the extraordinary and presumptively unlawful action 
of killing or harming members of a species that is already on the brink 
of extinction, that party must, under the ESA, prepare a Habitat 
Conservation Plan which, as the name implies, adequately offsets the 
permitted ``taking'' by promoting the ``conservation'' of the species--
defined by the ESA to mean that which is ``necessary to bring any 
endangered species to the point at which the measures provided pursuant 
to this chapter are no longer necessary.'' In brief, under section 10, 
the Federal Government is allowed to permit the killing or harming of 
some members of the species, in exchange for measures that will enhance 
the protection of the species as a whole.
    That Congress initially intended HCPs to actually promote the 
recovery of endangered and threatened species is made clear by the 
legislative history accompanying the 1982 amendments to the Act. The 
requirement that those seeking permits to ``incidentally take'' 
imperiled species (``ITPs'') must prepare a ``conservation'' plan was 
expressly ``modeled after a habitat conservation plan'' which had been 
developed for the San Bruno Mountain area of San Mateo County. 1982 
Conference Report at 30-31. That plan sought to address the 
conservation needs of endangered butterflies which ``face[d] threats to 
their existence[] even in the absence of any development,'' including 
`encroachment on the species' habitat by brush and exotic species.'' 
Id. at 32. In particular, according to Congress, the plan ``preserves 
sufficient habitat to allow for enhancement of the survival of the 
species,'' including by ``protect[ing] in perpetuity at least 87 
percent of the habitat of the listed butterflies.'' Id. at 32 (emphasis 
added). Based on that ``model,'' Congress made clear that the Federal 
Government could issue ITPs for many years, but only if those permits 
were accompanied by HCPs which were ``likely to enhance the habitat of 
the listed species or increase the long-term survivability of the 
species or its ecosystem.'' Id. at 31 (emphasis added).
    Regrettably, in its rush to approve ``deals'' which are far better 
for developers than the imperiled species the ESA was designed to 
protect, the present Administration has perverted Congress's original 
intent in enacting the HCP requirement. In effect, that provision has 
been converted from one intended to facilitate the recovery of species 
into one under which the wholesale ``taking'' of endangered species is 
authorized in exchange for woefully inadequate ``mitigation''--not 
``conservation''--plans which do little, if anything, to offset the 
extensive damage to the affected animals and plants.
 an administration ``success story'': the woefully inadequate alabama 
                            beach mouse hcps
    One notable example--in which several recent high-profile HCPs were 
declared illegal by a Federal judge in Alabama--is illustrative of the 
problems which plague many of the recent HCPs/ITPs approved by the 
Administration. That case involved ITPs issued to developers, which 
allowed the direct ``take,'' and destruction of habitat, of the Alabama 
beach mouse, a critically endangered species which plays a vital 
ecological role in combatting beach erosion, but whose coastal habitat 
has been ``drastically destroyed by `residential development and 
commercial development, recreational activity, and tropical storms.' '' 
Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1280 (S.D. Ala. 1998). 
Although the species had been listed as endangered precisely because of 
the catastrophic loss of its habitat, the Interior Department decided 
to issue several ITPs for massive beachfront developments which will 
destroy large chunks of the scant occupied habitat that remains.
    In exchange for this severe damage to a species already on the edge 
of oblivion, the Service did not even require the developers to 
implement plans which would actually promote the conservation of the 
species in any meaningful manner, e.g., by conserving habitat that 
would otherwise be destroyed and which was vital to the species' 
survival and recovery. Instead, the HCPs approved by the Service relied 
on ``mitigation'' measures which ranged from the truly laughable--
including the placement of signs warning young children that they 
should stay off sand dunes occupied by endangered mice--to the patently 
inadequate--such as meager cash payments for ``offsite mitigation'' 
which, the record showed, would not be sufficient to purchase even a 
fraction of the amount of habitat obliterated by the projects.
    In fact, even the FWS's own biologists concluded that these 
measures were totally inadequate to compensate for the grievous injury 
inflicted on the endangered species--a fact which the Chief Judge of 
the Federal District Court in Alabama stressed in declaring the ITPs/
HCPs to be contrary to the ESA:

          ``Remarkably, the FWS simply ignored the clearly expressed 
        concerns of the experts Congress intended the agency to rely 
        upon in making such discretionary decisions . . . [T]he Court 
        finds that the Administrative Record is devoid of any rational 
        basis upon which the FWS could have reasonably relied in 
        deciding to issue the ITPs for these two projects.'' 15 F. 
        Supp. 2d at 1282 (emphasis added).

    Regrettably, the Alabama Beach Mouse HCPs are typical, not 
aberrational, examples of the Administration's recent approach to HCPs/
ITPs. Indeed, these very plans--which a Federal judge declared to be 
``devoid of any rational basis''--have even been trumpeted by Secretary 
Babbitt as HCP ``success stories,'' including in ``The Quiet 
Revolution,'' the Interior Department's glossy but thoroughly 
misleading advertisement for the scientifically bankrupt HCPs which 
have becomes the Administration's stock in trade. Plainly, with 
``success stories'' like these, species such as the beach mouse--and 
its critical role in the coastal ecosystem--will soon be consigned to 
the pages of history.
    Making matters even more bleak for imperiled species are two 
sweeping policies which the Administration has adopted--one of which 
has been codified in a Federal regulation, and one which has not been 
formally adopted, but which is just as obvious to anyone who observes 
the Federal Government's ITP/HCP approval process. The former is the 
so-called ``No Surprises'' policy which ensures that awful HCPs like 
those driving the Alabama Beach Mouse to extinction will remain 
immutable for decades, and the latter is the Administration's unspoken, 
yet unmistakably clear, policy of avoiding meaningful public input on 
ITPs/HCPs, and instead negotiating back room ``deals'' with ITP 
applicants. If Congress wishes to seriously grapple with the problems 
plaguing ITPs/HCPs, it must squarely address both of these seriously 
misguided policies.
                            ``no surprises''
    Imagine the Food and Drug Administration announcing that, 
henceforth, companies which receive licenses to market drugs or medical 
devices will receive ``regulatory assurances'' that, even if the drugs 
or devices are found to suffer from unanticipated dangers--such as a 
risk of serious unexpected side effects--the licenses will still not be 
modified for as long as a century. Or imagine the Nuclear Regulatory 
Commission announcing that utilities operating nuclear power plants 
will, from now on, receive ``regulatory assurances'' that, even if 
their plants are found to be suffering from a previously unknown design 
defect which increases the risk of a nuclear accident by a factor of 
ten, the license to operate the nuclear plant cannot be changed for 
decades or longer.
    Imagine further that when the FDA's or NRC's policy is greeted by 
the inevitable public outrage, the agency explains its policy by saying 
that these ``regulatory assurances'' are necessary in order to give the 
drug company or nuclear licensee an ``incentive'' to comply with the 
law.
    There is no functional difference between these facially absurd 
scenarios and the ``No Surprises'' policy adopted by the Clinton 
administration, which guarantees ITP holders that significant changes 
will never be made in their decades-long permits, even if such 
modifications are essential to avoid the extinction of the species 
harmed by the permits. In plain terms, the ``No Surprises'' policy 
provides that, when conditions unexpectedly change to the detriment of 
an endangered species, the species loses and the developer wins every 
time. As hundreds of conservation groups and independent conservation 
biologists have argued, it is difficult indeed to imagine a policy more 
antithetical to the core purposes of the ESA.
    The ``No Surprises'' approach represents an extreme departure from 
the manner in which other environmental laws are implemented and, 
indeed, from virtually every sphere in which the Federal Government 
regulates third party activities that are deemed potentially harmful to 
societal interests. For example, when the Environmental Protection 
Agency issues permits for the discharge of emissions into the water and 
air, or for the storage of hazardous wastes--which would otherwise be 
unlawful under the Clean Water Act, Clean Air Act, and Resource 
Conservation and Recovery Act--it does not give dischargers an 
additional ``incentive'' to comply with these laws by promising them 
that their permit conditions will never change, even if the permitted 
activities turn out to be far more detrimental to the public health and 
environment than previously believed. To the contrary, although those 
permits are issued for far shorter periods of time than ITPs (only 5 
years for Clean Water and Clean Air Act permits, and 10 years in the 
case of RCRA permits), the EPA nonetheless retains explicit authority 
to modify the permits in response to new information.
    Yet in the case of species on the brink of extinction--where law 
and logic dictate an exceptionally cautious approach--the 
Administration has adopted a truly radical regulatory regime, which 
affords permittees unprecedented guarantees they receive literally 
nowhere else in Federal environmental law--or any other area of the law 
for that matter. Yet the Administration has never offered the public 
even a plausible--let alone convincing--rationale for why those who 
seek permits to kill or otherwise ``take'' imperiled species should 
receive far greater ``assurances'' than those who wish to discharge 
pollutants, operate nuclear power plants, market prescription drugs, or 
take any other action which is unlawful without Federal approval.
    This drastic policy was first announced by the Departments of the 
Interior and Commerce in 1994, without the benefit of any advance 
public notice or comment. When a coalition of grassroots conservation 
groups--led by the California-based Spirit of the Sage Council--
subsequently filed a lawsuit arguing that it was unlawful for the 
government to adopt this drastic change in the law without any 
consideration of the public's views, the government belatedly agreed to 
expose the policy to public comment, including the scrutiny of 
independent scientific experts.
    When the Interior and Commerce Departments subsequently proposed 
codifying the policy as a formal rule, the rule was opposed by every 
national conservation and animal protection organization which 
commented on it, as well as a host of regional and grassroots 
environmental groups from every part of the country, religious 
organizations, Native-American tribes, and ordinary citizens who 
expressed deep concern that the proposal would, if adopted, subvert the 
nation's longstanding commitment to endangered species conservation 
(Attachment A* lists the types of commenters who opposed the policy).
---------------------------------------------------------------------------
    *Retained in committee file.
---------------------------------------------------------------------------
    The proposal was also severely criticized by hundreds of 
conservation biologists and other scientists, including those in 
academic institutions, as well as those performing field research on 
endangered species. These commenters opposed the proposal on many 
grounds, including that it would make it impossible to prevent the 
extinction of species under innumerable circumstances--i.e., 
``surprises''--that occur in the natural world all the time, and hence 
that there must be some mechanism by which HCPs/ITPs that are approved 
for many decades can be modified in response to ``surprises such as new 
diseases, droughts, storms, floods, and fire.'' Statement on Proposed 
Private Lands Initiatives from the Meeting of Scientists at Stanford 
University (April 1997) (``Stanford Paper'').
    Thus, a letter signed by 168 scientists with experience in 
endangered species conservation--including 122 with Ph.D's in wildlife 
conservation, ecology, and related fields--warned that the proposed 
rule would ``greatly increase the risk of extinction of rare, 
threatened and endangered species in the wild,'' and hence that the 
proposal is ``antithetical to the Endangered Species Act.'' (Attachment 
B*) (emphasis added). These scientists further explained that adoption 
of the ``No Surprises'' policy as a final rule would:
---------------------------------------------------------------------------
    *Retained in committee file.

        ``disregard a large body of scientific evidence, along with the 
        professional opinions of many scientists, that surprises are 
        inherent in the distribution and abundance of both common and 
        rare species, as well as in our interpretation of nature 
---------------------------------------------------------------------------
        generally.''

Id. at 1 (emphasis added).
    Hundreds of other scientists have described the ``No Surprises'' 
approach in similarly ominous terms. For example, as many commenters 
noted, leading conservation biologists denounced the ``No Surprises'' 
approach following a meeting at Stanford University, opining that such 
a policy:

        ``runs counter to the natural world, which is full of surprises 
        . . . Surprises will occur in the future; it is only the nature 
        and timing of surprises that are unpredictable. Furthermore, 
        scientific research produces surprises in the form of new 
        information regarding species, habitats, and natural processes 
        . . . Unless conservation plans can be amended, habitats and 
        species certainly will be lost.''

    Similarly, Dr. Gary Meffe, author of the nation's leading college 
textbook on conservation biology, and Editor of the international 
journal Conservation Biology explained in his comments that the ``No 
Surprises'' approach ``runs counter to everything we know about natural 
systems and their management,'' and that the ``policy makes no sense 
from an ecological perspective and cannot help but put species in 
further jeopardy of extinction.'' (Attachment C*). Along with his 
comment, Dr. Meffe submitted a letter signed by over 160 leading 
conservation biologists from throughout the country, who again urged, 
in no uncertain terms, that the ``No Surprises'' approach:

        ``does not reflect ecological reality and rejects the best 
        scientific knowledge and judgment of our era. It proposes a 
        world of certainty that does not, has not, and will never 
        exist.''

    These scientists catalogued the many kinds of unforseen 
developments which can and do routinely affect endangered species, and 
explained that ``[e]very ecosystem of which we are aware changes over 
time: in species composition and abundance, in structural complexity, 
in nutrient dynamics, in genetic composition, in virtually any 
parameter we choose to measure.'' Id. at 1 (emphasis added). The 
scientists concluded that:

        ``the only thing certain about ecological systems is their 
        uncertainty. Because we will always be surprised by ecological 
        systems, the proposed `No Surprises' amendment flies in the 
        face of scientifically based ecological knowledge, and in fact 
        rejects that knowledge . . . `No Surprises' . . . not only 
        ignores all present scientific knowledge of ecological 
        systems[] but denies the ability to manage in an adaptive way 
        that welcomes and incorporates new information and allows and 
        encourages improvement.''

    One would hope that, when confronted with this vehement opposition 
by hundreds of independent conservation biologists, the 
Administration--which, under the ESA, is supposed to make decisions 
based on the best available science--would have reconsidered the wisdom 
of the ``No Surprises'' policy. But that was not the case because, as 
has become painfully apparent--and as respected scientists such as 
Peter Kareiva, Laura Hood, and Stuart Pimm testified to this 
Subcommittee in July--the Administration's approach to HCP policy is 
driven largely by politics, not objective science. Accordingly, the 
Interior and Commerce Departments codified the ``No Surprises'' policy 
as a formal rule in February 1998, stressing that, once an ITP is 
issued, ``no additional land use restrictions or financial compensation 
will be required of the permit holder with respect to species covered 
by the permit, even if unforseen circumstances arise after the permit 
is issued indicating that additional mitigation is needed for a given 
species covered by a permit.'' 63 Fed. Reg. 8859 (emphasis added). 
Under the rule, such assurances are automatically extended to the 
permit holder for as long as the permit is valid, which may be for as 
long as a century.
    In exchange for making these unprecedented assurances to permit 
holders, the final rule does not even require that HCPs actually 
promote the recovery of species--which, as noted above, was the 
original Congressional expectation for all HCPs. In other words, under 
the Clinton Administration's bizarre regulatory scheme, ITP holders get 
extraordinary, unprecedented ``regulatory assurances'' even where their 
actions confer no net benefits for endangered species but, instead, 
leave such species at even graver peril than before the permits were 
issued.
    Equally perplexing, the Administration's ``No Surprises'' rule does 
not even afford government officials any discretion whatsoever to 
decline to include a ``No Surprises'' guarantee in any particular ITP, 
or even to use it as a bargaining chip in exchange for additional 
conservation measures. Rather, the rule irrationally requires the 
Services to make ``No Surprises'' guarantees to all ITP holders for the 
entire duration of the permits, regardless of the degree of imperilment 
of the species affected, the length of the permit, the amount of 
habitat destroyed, or any other variables. The Administration has never 
furnished a coherent explanation for this ``one-size-fits-all'' 
approach, which simply disregards the inherent variability of nature, 
and strips government negotiators of the ammunition they need to secure 
the best possible result for endangered and threatened species.
    The farfetched premise underlying the ``No Surprises'' rule is 
that, when unexpected changes occur to the detriment of species, the 
Federal Government--i.e., Federal taxpayers--will be able to address 
those developments, rather than the ITP holders themselves, who have 
received extraordinary permits to kill, harm, or otherwise drive 
endangered species closer to extinction. As suggested previously, that 
premise reverses decades of Federal environmental policy, which is 
predicated on the assumption that those responsible for causing harm to 
the environment--and not Federal taxpayers--are obligated to pay for 
those damages.
    But even aside from that sharp break with precedent, the 
Administration's premise that it will have sufficient funds to respond 
to all unanticipated developments affecting species--e.g., by 
purchasing additional habitat for species harmed by ITPs--has no basis 
in reality, especially since high-ranking Administration officials 
(such as the Director of the Fish and Wildlife Service) have repeatedly 
sworn in affidavits filed in Federal courts that they lack the 
necessary resources even to meet non-discretionary statutory deadlines 
because of insufficient appropriations. On the other hand, many of the 
ITP holders who have received decades-long ``No Surprises'' assurances 
are multi-million dollar companies which obviously could afford to make 
necessary changes in their HCPs. For example, in 1998, the Plum Creek 
Timber Company had revenues of $669.4 millions, with a net income of 
$75.4 million. Another major beneficiary of the government's ``No 
Surprises'' policy--the Weyerhauser Corporation--had sales of $10.8 
billion in 1998 and earned $339 million. There is no sound reason why 
companies such as these cannot and should not be fully liable when 
their HCPs prove to be inadequate to compensate for the harm that the 
companies' actions are doing to endangered and threatened species.
                    lack of meaningful public input
    The Administration's false characterization of HCPs as ``deals''--
instead of legally required permits conditions, which is what they are 
under Federal law--has inexorably led to another devastating, albeit 
tacit, government policy. As recently set forth in a study of the HCP 
process by the University of Michigan School of Natural Resources, the 
Administration is failing to ``provide[] meaningful opportunities for 
public involvement in the HCP process'' because it has far ``higher 
priorities than public participation, including streamlining the HCP 
planning process, maintaining congressional support for the ESA, 
providing flexibility to landowners, and enticing landowners to pursue 
HCP agreements.'' University of Michigan School of Natural Resources & 
Environment, Public Participation in Habitat Conservation Planning 4 
(1998). Consequently--as occurred with the ``No Surprises'' policy--
even legitimate public and scientific concerns are completely ignored 
in the mad rush to approve HCPs at all costs. The University of 
Michigan report quotes one FWS biologist working on numerous HCPs as 
saying that:

          We have been bombarded from above with this sort of can-do 
        attitude--to get out there and work with the applicant and get 
        some product on the market. Anything that delays that or makes 
        it more difficult is not viewed favorably. The whole concept of 
        customer service has been really stressed with the applicant 
        being considered the only customer.

    Id. at 23.
    My firm is currently litigating a case, on behalf of Defenders of 
Wildlife and a Maryland conservationist, which reflects all to well the 
Administration's jaundiced attitude towards public involvement in the 
HCP process. The case involves an effort to build a housing project in 
the habitat of another desperately endangered species, the Delmarva fox 
squirrel. That species has been reduced to about 10 percent of its 
former range, with most of the remaining fox squirrels located in only 
four counties of Maryland's Eastern Shore which is experiencing rapid 
development. Many of the populations of fox squirrels that exist today 
are located in small, isolated groups which are directly threatened by 
the ongoing loss and fragmentation of their habitat. Collisions with 
cars associated with human development are the main cause of fox 
squirrel deaths, along with predation by pets and other human-caused 
disturbances.
    Despite these severe, ongoing threats to the species, the Fish and 
Wildlife Service has done virtually nothing to stem the destruction of 
fox squirrel habitat on private lands. Instead, the Service recently 
issued an ITP to a developer which expressly authorizes the razing of 
still more fox squirrel habitat, and allows the direct ``take'' of at 
least 15 endangered fox squirrels, out of a local population of only 
10-40 individuals. As compensation for this loss, the Service stated 
that it was requiring extensive ``mitigation,'' which consisted largely 
of the developer's commitment to preserve some offsite area which the 
FWS asserted was ``optimal'' fox squirrel habitat.
    Yet when the FWS solicited public comment on the ITP/HCP, it failed 
even to inform the public about the location of the offsite mitigation 
area, although it knew about the proposed location at the time it 
solicited public comments. And when a representative of Defenders of 
Wildlife--which has been very involved in fox squirrel conservation 
issues--informed the Service that it and other members of the public 
obviously could not provide meaningful comments without even knowing 
the location of the offsite mitigation area, the Service flatly 
conceded that the documents it had made available for public review had 
``not adequately defined'' the offsite area which is the centerpiece of 
the HCP. Incredibly, however, the Service then delayed providing 
identifying information about the offsite location until after the 
close of the comment period, so that the concerned public never had the 
opportunity even to submit comments on this critical feature of the 
HCP. Despite Defenders' repeated requests, the Service has refused to 
reopen the comment opportunity and, even in response to a Federal 
lawsuit, it is steadfastly insisting that it could approve the HCP 
without even hearing environmentalists' concerns regarding the value of 
the offsite mitigation area to fox squirrels.
    This case also shows that meaningful public input is not merely 
window dressing, but can be extremely valuable to the scientific 
integrity underlying the HCP/ITP process. As it turns out, the offsite 
mitigation area is not ``optimal'' fox squirrel habitat. To the 
contrary, according to the world's leading expert on the species, Dr. 
Vagn Flyger--who has studied the fox squirrel for the past 50 years and 
who, incidentally, was FWS Director Jamie Clark's masters advisor at 
the University of Maryland--the offsite area is ``exceptionally poor 
[fox squirrel] habitat'' and hence is of ``no conservation benefit to 
the subspecies.'' Of course, the public never even had the opportunity 
to submit such vital information to the Service because of the 
Administration's practice--as described in detail in the University of 
Michigan study--of treating public input as, at best, a minor 
inconvenience to be dispensed with as rapidly as possible.
                            recommendations
    In drafting any legislation addressing HCPs, I respectfully suggest 
that the Subcommittee consider the following:
    1. While there is no convincing policy rationale for making Federal 
taxpayers, rather than ITP holders themselves, pay for changes in HCPs 
which are necessary to address new circumstances, if there is any 
consideration to legislatively codifying some permutation of the ``No 
Surprises'' rule, Congress must at least ensure that there is an 
adequate, guaranteed source of funding to deal with such developments. 
The current scenario--under which ITP holders are let off the hook, 
while totally inadequate funds are appropriated to the Departments of 
the Interior and Commerce--will obviously doom many species to 
extinction.
    2. Any legislation should expressly require that all ITPs/HCPs 
contain detailed adaptive management provisions which make the ITP 
holders responsible for addressing all reasonably foreseeable 
developments which might adversely affect species whose taking is 
authorized by the ITP. While the Administration has, in response to 
criticism from the scientific community, acknowledged the importance of 
adaptive management provisions, it has never issued a regulation 
actually requiring them. Nor has the Administration required that all 
ITPs/HCPs include the kinds of comprehensive monitoring programs 
without which adaptive management requirements are useless.
    3. Congress should, under no circumstances, endorse the 
Administration's policy of automatically extending ``No Surprises'' 
guarantees to each and every ITP holder for the duration of the permit, 
irrespective of the size of the area affected by the permit, the nature 
of the endangered species impacted, who the ITP holder is, and other 
significant variables. As discussed above, such an approach erroneously 
assumes that all ITPs/HCPs should be treated in identical fashion, and 
also precludes government scientists from extracting, in negotiations, 
the best possible conservation measures for imperiled species.
    4. To ensure that the public has meaningful input into the ITP/HCP 
approval process, Congress should require that the public be involved 
sufficiently early in the process so that such public input does not 
come only after a ``deal'' has already effectively been struck between 
the ITP applicant and the Service. One way to accomplish this result is 
by requiring that the proposed ITP/HCP--and all underlying scientific 
documentation--be made available for public review before any 
substantive discussions occur between the developer and the Service. 
That way, the Service will receive the benefit of public and scientific 
input when it actually makes the critical decision of whether to 
approve the permit and, if so, on precisely what terms.
                               conclusion
    According to a nationwide survey of biologists recently announced 
by the American Museum of National History, ``seven out of ten 
biologists believe that we are in the midst of a mass extinction of 
living things, and that this loss of species will pose a major threat 
to human existence in the next century.'' Unlike prior extinctions, 
this crisis is ``mainly the result of human activity and not natural 
phenomena.'' These scientists ``rate biodiversity loss as a more 
serious environmental problem than the depletion of the ozone layer, 
global warming, or pollution and contamination.'' Indeed, the vast 
majority of scientists polled believe that ``during the next 30 years 
as many as one-fifth of all species alive today will become extinct, 
and one third think that as many as half of all species on the Earth 
will die out during that time.'' (A copy of the press release 
announcing these results is Attachment D*).
---------------------------------------------------------------------------
    *Retained in committee file.
---------------------------------------------------------------------------
    When confronted with what scientists agree is a ``mass extinction'' 
of living creatures, the last thing the U.S. Government should be doing 
is approving HCPs which harm, rather than help, endangered species; 
giving unprecedented regulatory guarantees to those who wish to 
``take'' such species; and going out of its way to exclude the public 
and independent scientists from the process by which HCPs are 
considered and approved. Sadly, though, that is precisely what this 
Administration is doing. Before it is too late for the Alabama Beach 
Mouse, the Delmarva Fox Squirrel, and countless other species for which 
time is rapidly running out, I urge this Subcommittee, and Congress as 
a whole, to consider and adopt legislation which restores scientific 
integrity to the HCP process, and reaffirms this nation's commitment to 
do what it can to stem the accelerating loss of animals and plants in 
this country and throughout the world.
                                 ______
                                 
Statement of Robert D. Thornton, Counsel, Orange County Transportation 
                           Corridor Agencies
                       i. introduction & summary
    I am Robert Thornton, general counsel to the Orange County 
Transportation Corridor Agencies--two regional transportation agencies 
in Orange County, California who have played a leading role in the 
Southern California Habitat Conservation Planning Program. These 
agencies are developing 68 miles of new regional transportation 
facilities. Since 1987, these agencies have spent well over $100 
million for the conservation of wildlife habitat and other 
environmental protection measures.
    I have labored most of my professional career to make the 
Endangered Species Act work on the ground--in the real world. I am 
proud of the fact that I was the original author and advocate for what 
eventually became the habitat conservation plan (``HCP'') amendments to 
the ESA in 1982. I have represented public agencies, landowners, 
developers, farmers and forest products companies in the negotiation of 
two dozen habitat conservation plans, including the first HCP approved 
by the Fish and Wildlife Service (San Bruno Mountain), one of the 
largest regional HCPs (Metropolitan Bakersfield), and one of the first 
habitat-based HCPs (Orange County Central/Coastal Natural Community 
Conservation Plan). Most recently, I acted as counsel to the Pacific 
Lumber Company with regard to the Headwaters Forest transaction and the 
related HCP concerning the Company's 200,000 acres in Humboldt County, 
California.
    The views expressed today are mine alone, though I believe they 
fairly reflect the views of many of the private landowners who I have 
represented on endangered species matters for the last 20 years.
    In Summary:
    1. Habitat Conservation Planning is at a crossroads. Whether 
landowners will continue to cooperate in conservation planning depends 
on the continued viability of the assurances (or ``no surprises'') rule 
and the other Babbitt reforms of the ESA. But certain elements of the 
environmental community are attempting to kill the Babbitt reforms 
through a concerted litigation strategy;
    2. Fundamentally, the assurances rule is a device to allow the 
Federal Government to share risks and burdens between the Federal 
Government and private landowners. The policy allows landowners and the 
Services to enter into consensual agreements under which the landowners 
agree to commit to significant investments in endangered species 
protection now, in return for the Federal Government assuming the risk 
and burden of future protection measures in the event of unforeseen 
circumstances;
    3. It is now widely accepted that habitat conservation plans are 
essential if the goals of the ESA are to be achieved. The National 
Academy of Sciences has commented favorably on HCPs because such 
regional conservation approaches are more consistent with principles of 
conservation biology than project-by-project, species-by-species 
regulatory approaches;
    4. Emerging underground interpretations of the ESA within the 
agencies will seriously undermine landowner cooperation in habitat 
conservation planning efforts. These underground interpretations 
include attempts to impose a recovery standard on HCPs and efforts to 
define ``jeopardy'' by reference to impacts on sub-populations;
    5. The authority in the ESA to prepare ``habitat-based'' HCPs 
should be solidified. One of the great potential advantages of the HCP 
process to the development community is the opportunity, in one 
planning effort, to resolve conflicts involving both listed and 
unlisted species through a single HCP. But the wildlife agencies and 
the environmental community are reluctant to agree to plans that 
absolve developers from the need to provide additional mitigation in 
the event that the unlisted species are subsequently listed--especially 
if the biological studies did not specifically survey for and study the 
species; and
    6. New market-based approaches to HCP planning are needed. Most of 
the HCPs developed to date have relied on command and control 
regulatory mechanisms. Typically, biological consultants identify areas 
that are the highest priority for future preservation. Lines are drawn 
around these areas prohibiting or greatly restricting development in 
the proposed preserve areas. Landowners developing habitat outside of 
the preserve areas are required to contribute to the acquisition of the 
preserves--usually through the payment of development fees. This model 
can work fine as long as the owners of land within the preserve areas 
are willing participants. Often, this is not the case. We need to 
develop market-based approaches, which provide economic incentives to 
landowners to engage in conservation planning.
          ii. habitat conservation planning is at a crossroads
    Secretary Babbitt breathed life into Section 10(a) through the 
adoption of the ``assurances'' policy, candidate conservation 
agreements, the ``safe harbor'' policy, and various other measures to 
encourage landowners to participate in habitat conservation planning. 
Secretary Babbitt's initiatives have exceeded beyond anyone's wildest 
dreams. Four hundred HCPs have either been approved or are under 
development. Beginning in the early 1990's, landowners and local 
governments initiated so-called ``habitat-based'' HCPs. These new form 
of HCPs attempt to move away from the ``species-by-species'' approach 
of the early HCPs and resolve conflicts with development activities 
through an ecosystem or habitat-based approach. Collectively, these 
plans will address tens of millions of acres of land and the habitat of 
hundreds of endangered or threatened species.
    It is now widely accepted that habitat conservation plans are 
essential if the goals of the ESA are to be achieved. The National 
Academy of Sciences has commented favorably on HCPs because such 
regional conservation approaches are more consistent with principles of 
conservation biology than project-by-project, species-by-species 
regulatory approaches.\1\ The former general counsel of the National 
Wildlife Federation has also recently documented the conservation 
benefits that are being realized through HCP planning efforts.\2\ The 
National Academy of Sciences has identified six tenets of conservation 
biology:
---------------------------------------------------------------------------
    \1\ Committee on Scientific Issues in the Endangered Species Act, 
Science and the Endangered Species Act, at 78-93 (National Academy of 
Sciences 1995) (hereinafter ``National Academy of Sciences Report'')
    \2\ O. Houck, On The Law of Biodiversity and Ecosystem Management, 
81 Minn.L.Rev. 869, 953-974 (1997).
---------------------------------------------------------------------------
    1. Species well distributed across their range are less susceptible 
to extinction than species confined to small portions of their range.
    2. Large blocks of habitat containing large populations of a target 
species are superior to small blocks of habitat containing small 
populations.
    3. Blocks of habitat that are close together are better than blocks 
far apart.
    4. Habitat that occurs in blocks that are less fragmented 
internally is preferable to habitat that is internally fragmented.
    5. Interconnected blocks of habitat serve conservation purposes 
better than isolated blocks, and habitat corridors or linkages function 
better when the habitat within them resembles habitat that is preferred 
by target species.
    6. Blocks of habitat that are roadless or otherwise inaccessible to 
humans are better than roaded and accessible habitat blocks.\3\
---------------------------------------------------------------------------
    \3\ National Academy of Sciences Report, at 88-89.
---------------------------------------------------------------------------
    The record of the last 20 years under the ESA strongly indicates 
that tenets are more likely to be achieved through regional 
conservation planning efforts than through project-by-project, species-
by-species approaches.\4\ This is the case because it is only through 
comprehensive, regional conservation programs that entire ecological 
systems can be effectively conserved.
---------------------------------------------------------------------------
    \4\ For a review of decisions under Section 7 of the ESA see, O. 
Houck, The Endangered Species Act and its Implementation By the U.S. 
Departments of Interior and Commerce, 64 Col.L.Rev. 63 (1993).
---------------------------------------------------------------------------
    Initially, the environmental community endorsed the notion of 
regional planning to conserve endangered species habitat and resolve 
conflicts with development.\5\ The endorsement appeared to be driven by 
a sincere realization that the traditional regulatory mechanisms of the 
ESA could not address effectively the immense challenge of habitat 
conservation on private land. As a leading environmental advocate has 
stated:
---------------------------------------------------------------------------
    \5\ Bean, M.J., S.G. Fitzgerald, and M.A. O'Connell, Reconciling 
Conflicts Under the Endangered Species Act: The Habitat Conservation 
Planning Experience (World Wildlife Fund 1991).

          Given that the ESA's only current tool to affect the behavior 
        of private landowners--the taking prohibition--does not 
        effectively address many of the most serious threats to rare 
        species, and given that fear of that tool has sometimes 
        prompted landowners to act against--rather than for--the best 
        interests of such species, other conservation tools are clearly 
        needed. Simply deterring harmful conduct--as the taking 
        prohibition seeks to do--is not enough. It is necessary to 
        encourage and reward beneficial conduct.\6\
---------------------------------------------------------------------------
    \6\ M. Bean, The Endangered Species Act on Private Land: Four 
Lessons Learned from the Past Quarter Century, 28 Envtl. L. Rep. 10701, 
10707 (Dec. 1998).

    Certain segments of the environmental community--including groups 
that previously endorsed multi-species conservation planning--are 
increasingly critical of HCPs and Secretary Babbitt's administrative 
reforms. A coalition of environmental groups have challenged the ``No 
Surprises'' rule under the ESA and the Administrative Procedure Act.\7\ 
Lawsuits challenging the San Diego Multi-Species Conservation Plan have 
been filed as have 60-day notices to challenge the Pacific Lumber HCP. 
Challenges to pending HCPs in other parts of the west are very likely. 
The outcome of this litigation will largely determine the future of 
habitat conservation planning on private land.
---------------------------------------------------------------------------
    \7\ Spirit of the Sage Council v. Babbitt, District of Columbia 
District Court No. 1:98CV01873(EGS).
---------------------------------------------------------------------------
    A number of innovations have emerged in recent years in the HCP 
process including the following:
    1. The emergence of multi-landowner regional habitat conservation 
plans;
    2. The development of multi-species and ``habitat-based'' 
conservation plans;
    3. The issuance of the ``no surprises'' policy by Secretary Babbitt 
and the emergence of workable interpretations of the policy in several 
HCPs;
    4. The use of free market mechanisms to conserve wildlife habitat; 
and
    5. New funding sources.
    Whether any of these new initiatives survive depends on the 
political debate in Washington, litigation over the ``No Surprises'' 
rule, and the fate of other attempts to undermine the Babbitt reforms 
of the ESA.
 ii. the assurances rule is essential to obtain the cooperation of the 
 private landowners and local public agencies in habitat conservation 
                                planning
    None of the Babbitt reforms have generated as much interest, or as 
much controversy, as the ``assurances'' or ``no surprises'' policy. In 
simple terms, the policy provides that once the Federal wildlife 
agencies have approved a HCP, they will not seek more land or more 
money from the HCP parties beyond the land and money committed through 
the HCP. Secretary Babbitt has eloquently described the rationale of 
the policy:

          [W]e need to codify the success stories that I've told you 
        about. The habitat conservation idea, signing these agreements 
        that say we can accommodate resource use and development with 
        protection guarantees. . . . With it comes a concept that we 
        call ``no surprises.'' It's a very important idea. We once 
        again learned this not here in Washington but out on the ground 
        in Southern California where the developers, after we had gone 
        through months of the intense difficult negotiations on the 
        ground, as we were nearing closure on the design of these 
        preserves, . . . the developers were saying, ``Now what happens 
        if we sign onto this and a year or two from now the Fish and 
        Wildlife Service comes back and says, `[W]e want a second 
        bite.' ''
          If we're going to make this Act work on the ground in the 
        real world, and ask timber companies and developers to make 
        those kinds of concessions,  . . we've got to establish one 
        simple common-sense principle, and that is one bite at the 
        apple--take a good one--thrash it out, then say to the 
        developer, ``OK, a deal's a deal.''\8\
---------------------------------------------------------------------------
    \8\ Address by Bruce Babbitt, Secretary of the Interior to the 
National Press Club Luncheon, at 5 (July 17, 1996).

    Although some environmental groups have derided the policy as a 
radical new idea, the policy was explicitly contemplated by Congress in 
1982. The legislative history of Section 10(a) indicates that Congress 
contemplated that a Section 10(a) permit approval would also encompass 
the FWS agreement not to impose additional mitigation, except as 
contemplated by the approved HCP. The conference report to the Act's 
---------------------------------------------------------------------------
1982 amendments stated the following in this regard:

          The Committee intends that the Secretary may utilize this 
        provision to approve conservation plans which provide long-term 
        commitments regarding the conservation of listed as well as 
        unlisted species and long-term assurances to the proponent of 
        the conservation plan that the terms of the plan will be 
        adhered to and that further mitigation requirements will only 
        be imposed in accordance with the terms of the plan.\9\
---------------------------------------------------------------------------
    \9\ H.R. Rep. No. 835, 97th Cong. 2d Sess. 31, reprinted in 1982 
U.S. Code Cong. & Admin. News 2860, 2872.

    This legislative history reflected the structure of the San Bruno 
Mountain HCP. The landowners and agency participants in the San Bruno 
Mountain HCP entered into an agreement which set forth the terms and 
conditions of the Section 10(a) permit. The agreement included 
covenants by the public agencies that they would not impose additional 
mitigation measures beyond the terms of the agreement.
    The policy emerged out of the southern California NCCP plans. In 
the southern California NCCPs, the parties to the planning processes, 
including the FWS, have agreed to ``no surprises'' language in the 
implementing agreements that would preclude the imposition of 
additional mitigation requirements that would require the contribution 
of additional land or more money. The effect of this approach is to 
shift a certain amount of the risk of ``unforeseen circumstances'' to 
the government. Given the disproportionate share of the burden of 
endangered species protection that is borne by the private landowners, 
this shift is entirely appropriate.
    In late 1996, several organizations challenged the ``No Surprises'' 
policy alleging that the policy was issued in violation of the 
Administrative Procedure Act and the ESA.\10\ The plaintiffs alleged 
that the APA required the policy to be adopted after notice and comment 
procedures. In early 1997, the government settled the litigation by 
agreeing to promulgate the rule through a noticed and comment 
rulemaking proceedings. The agencies promulgated the rule February 23, 
1998 with certain modifications.\11\ The plaintiffs in the earlier case 
have filed a new action challenging the rule on its face as a violation 
of the ESA and APA.\12\
---------------------------------------------------------------------------
    \10\ Spirit of the Sage Council v. Babbitt, District of Columbia 
District Court No. 1:96CV02503 (SS)(D.D.C.).
    \11\ 63 Fed. Reg. 8859-8873 (Feb. 23, 1998).
    \12\ Spirit of the Sage Council, et al. v. Babbitt et. al. District 
of Columbia District Court No. 1:98CV0187s (EGS). Cross motions for 
summary judgment are anticipated to be decided in late 1999.
---------------------------------------------------------------------------
    The ``No Surprises'' rule provides that an incidental take permit 
holder will not be required to provide more land, water, natural 
resources or financial commitments in the event of ``unforeseen 
circumstances'' if the HCP is being properly implemented. The term 
``unforeseen circumstances'' means a change affecting a species or area 
covered by an HCP that could not reasonably have been anticipated and 
that results in a substantial and adverse change in the status of the 
covered species. If the Services determine that additional mitigation 
is required due to unforeseen circumstances, such action must be 
provided on Federal land to the maximum extent possible. If those 
protective measures are insufficient, the Services may seek additional 
mitigation from the permit holder. Such additional mitigation must be 
limited to modifications of the HCP's operating conservation program 
for covered species, while maintaining the original terms of the HCP to 
the maximum extent possible.
    The rule makes a distinction between ``unforeseen circumstances'' 
(events which are not reasonably foreseeable) and ``changed 
circumstances'' (events which are reasonably foreseeable). Unlike 
unforeseen circumstances, HCPs are required to include measures to 
address the effect of changed circumstances. In the event of changed 
circumstances the Services may require the incidental take permit 
holder to undertake additional mitigation, but only to the extent 
described in the HCP.
    The defense of the rule is founded on the legislative history of 
Section 10. It is also founded on the principle of judicial deference 
to the interpretations of the administrative agency enunciated in 
Chevron U.S.A. Inc. v. Natural Resources Defense Council:

          When a challenge to an agency construction of a statutory 
        provision, fairly conceptualized, really centers on the wisdom 
        of the agency's policy, rather than whether it is a reasonable 
        choice within a gap left open by Congress, the challenge must 
        fail. In such a case, Federal judges--who have no 
        constituency--have a duty to respect legitimate policy choices 
        made by those who do.\13\
---------------------------------------------------------------------------
    \13\ 467 U.S. 837, 865-66.

    Plaintiffs' argument that the rule violates the Services' Section 7 
``no jeopardy'' obligation has been seriously undermined by the FWS 
promulgation of new standards governing the revocation of ITPs. In the 
regulation, FWS indicated that where use of their other authority would 
not avoid jeopardy, FWS will revoke an ITP to avoid violating the 
Section 10 permit issuance standards (which include the ``no jeopardy'' 
requirement).\14\ While the ITP revocation rule will likely assist in 
turning back the challenge to the ``No Surprises'' rule, it may 
diminish the level of assurances that can be obtained by landowners 
through a HCP and, in turn, deter landowners from participating in 
regional conservation planning efforts.
---------------------------------------------------------------------------
    \14\ 64 Fed. Reg. 32706 (June 17, 1999)
---------------------------------------------------------------------------
    Fundamentally, the ``no surprises'' rule is a device to allow the 
Federal Government to share risks and burdens between the Federal 
Government and private landowners. The policy allows landowners and the 
Services to enter into consensual agreements under which the landowners 
agree to commit to significant investments in endangered species 
protection now, in return for the Federal Government assuming the risk 
and burden of future protection measures in the event of unforeseen 
circumstances.
    Antagonists to the policy in the environmental community argue that 
the policy is flawed because surprises are inherent in natural systems 
and because the Federal Government may not elect to spend sufficient 
resources to address unforeseen circumstances--even if the government 
has a legal obligation to do so. Ultimately, this is a policy debate 
over the extent to which Federal taxpayers should shoulder the cost of 
endangered species protection, or whether the lion's share of this cost 
should continue to be borne by affected landowners and their customers.
  iii. emerging underground interpretations of the esa will undermine 
                         landowner cooperation
A. Attempts to Impose the Recovery Standard on Section 10 Permits
    The statutory standards for issuing a Section 10(a) permit are 
relatively simple. The applicant needs to demonstrate that the plan 
will minimize and mitigate the impacts of the development activity and 
that the taking will not reduce the likelihood of the recovery and 
survival of the species in the wild. This latter standard is the 
regulatory definition of the ``jeopardy'' standard applicable to inter-
agency consultations on Federal agency actions under section 7(a)(2) of 
the ESA.\15\
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    \15\ 50 C.F.R. 402.02.
---------------------------------------------------------------------------
    In several recent HCP negotiations, the Fish and Wildlife Service 
(``FWS'') and National Marine Fisheries Service (``NMFS'') are 
attempting to require the HCP applicants to do more than minimize and 
mitigate and avoid jeopardy. They are seeking conditions in the HCP to 
achieve the recovery\16\ of the species. For example, in several 
pending HCP on the west coast addressing the recently-listed coho 
salmon, NMFS biologists are seeking to impose restrictions on timber 
operations that NMFS asserts are necessary to achieve the recovery of 
the coho salmon. In other HCPs involving the marbled murrelet, the FWS 
is seeking to define ``jeopardy'' by reference to the impacts of the 
HCPs on sub-populations of murrelets within ``conservation zones'' in 
order to achieve certain recovery goals identified in the draft 
recovery plan.
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    \16\ In contrast the minimization concept in section 10, the ESA 
defines ``conservation'' to mean improving or recovering the status of 
a listed species ``to the point'' that the protections of the ESA are 
no longer necessary and the species can be de-listed. 16 U.S.C. 
Sec. 1532(3).
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    These agency demands are well beyond the requirements of the ESA. 
The section 7 regulations define the term ``jeopardy'' narrowly. The 
term ``jeopardy'' is defined to mean:

          [T]o engage in an action that reasonably would be expected . 
        . . to reduce appreciably the likelihood of both the survival 
        and recovery of a listed species in the wild. . . .\17\
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    \17\ 50 C.F.R. Sec. 402.02.

    The preamble to the regulations explained that the word ``both'' 
was added to the definition to make it clear that ``to find that an 
action is likely to jeopardize a listed species . . . the Service must 
identify detrimental impacts to `both the survival and recovery' of the 
listed species.'' \18\ The FWS and NMFS explicitly rejected proposed 
definitions of jeopardy that would have expanded the definition to 
include actions where the impact did not jeopardize the survival of the 
listed species. For example, FWS and NMFS rejected a definition of 
jeopardy that would have required a jeopardy finding when there was 
``injury to recovery for an already depleted species.'' \19\
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    \18\ 51 Fed. Reg. 19926, 19934 (June 3, 1986).
    \19\ Id.
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    The agencies' suggestion that HCP applicants are required to 
achieve recovery standards also ignores clear distinction in the ESA 
between the obligations of private parties and those of Federal 
agencies. A fundamental precept of the ESA is that the Federal 
Government in general and the Departments of Interior and Commerce in 
particular have special obligations under the ESA which are above and 
beyond the obligations of the private sector and State and local 
governments. Under section 7(a)(1), the Secretary is required to take 
actions in furtherance of the purposes of the ESA.\20\ The courts have 
interpreted this provision to impose special burdens on Interior and 
Commerce which do not apply to other Federal agencies--let alone non-
Federal entities.\21\
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    \20\ 16 U.S.C. Sec. Sec. 1531(a)(1).
    \21\ See, Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 
257 (9th Cir. 1984) [holding that Section 7(a)(1) of the ESA required 
the Department of the Interior to administer programs to further the 
conservation purposes of the ESA].
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B. Attempts to Define ``Jeopardy'' With Reference to Sub-Populations
    The Services' formal interpretation of the jeopardy standard (as 
enunciated in the section 7 regulations) is in sharp contrast to the 
assertion of certain Service representatives that it is appropriate to 
define jeopardy by reference to the impact on a sub-population of a 
listed species. If ``injury to recovery for a depleted species'' does 
not constitute jeopardy (as the FWS concluded in the section 7 
regulations), then it is difficult to understand the basis for a claim 
that jeopardy can be defined by reference to injury to a sub-
population.
    The attempt to define ``jeopardy'' by reference to impacts to sub-
populations is also contrary to the clear Congressional directive to 
limit the regulatory reach of section 7 of the ESA to distinct 
population segments and higher taxonomic units. During the 
consideration of the 1979 amendments to the ESA, Congress debated 
extensively an amendment recommended by the General Accounting Office 
to eliminate the authority to list separate populations. Although 
Congress ultimately retained the FWS authority to list ``distinct 
population segments'' of vertebrate species, it made it clear that it 
was retaining this authority in the ESA to provide the Services with 
greater (not less) management flexibility. Congress further emphasized 
that the population listing authority should only be utilized in very 
limited circumstances. The Report of the Senate Committee on 
Environment and Public Works on the 1979 amendments stated the 
following:

          [T]he General Accounting Office recommended that the 
        subcommittee consider an amendment . . . which would prevent 
        the FWS from listing geographically limited populations. . . . 
        [U]nder the GAO proposal FWS would be required to provide the 
        same amount of protection for the bald eagle population in 
        Alaska, which is healthy, as for the bald eagle population in 
        the conterminous states, which is endangered.
          [T]he committee is aware of the great potential for abuse of 
        this authority and expects the FWS to use the ability to list 
        populations sparingly and only when the biological evidence 
        indicates that such action is warranted.\22\
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    \22\ S. Rpt. No. 96-151, 96th Cong. 1st Sess. at 6-7.
---------------------------------------------------------------------------
    In other words, Congress authorized the listing of distinct 
populations in limited circumstances and only because it wanted to 
provide the FWS with greater management flexibility under the ESA. 
Throughout the lengthy ESA debate preceding the 1978, 1979 and 1982 
amendments, no one suggested that the section 7 ``no-jeopardy'' 
standard could be applied to sub-populations. As the above legislative 
history indicates, Congress considered eliminating entirely the 
authority to list distinct populations.\23\ It intended that the 
listing of separate populations should be a rare event. It never 
intended or contemplated that the jeopardy requirement would be applied 
to units below the population level.
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    \23\ The effect of this amendment would have been to require 
section 7 jeopardy determinations to be made with regard to the effect 
on the biological species as a whole. In the case of the murrelet, the 
amendment would have required the evaluation of the each HCP to 
consider the very large murrelet populations in British Columbia and 
Alaska.
---------------------------------------------------------------------------
    The above agency demands, if they become established agency policy, 
will almost surely put the brakes on the recent increase in regional 
habitat conservation efforts. If the FWS proposed standard were to be 
applied to other HCPs, it is extremely doubtful that landowners and 
local agencies would agree to participate in conservation planning for 
unlisted species.
    iii. esa authority to prepare ``habitat-based'' plans should be 
                               solidified
    Over the last decade, HCPs have become increasingly complex and 
sophisticated. They have grown from the relatively small scale of the 
San Bruno Mountain HCP (3,000 acres; three species) to large scale 
regional plans (such as the Metropolitan Bakersfield HCP) which 
addressed dozens of species over hundreds of square miles of habitat.
    The movement toward the development of large scale, multi-species 
HCPs is driven by two primary factors:
    1. The recognition that regional conservation issues often can only 
be effectively addressed on a regional basis; and
    2. The reluctance of private landowners to commit to permanent 
restrictions on development and other costly conservation measures in 
the absence of protection against additional regulatory restrictions as 
a result of future listings.
    One of the great potential advantages of the HCP process to the 
development community is the opportunity, in one planning effort, to 
resolve conflicts involving both listed and unlisted species through a 
single HCP. The inclusion of unlisted species in a plan is important 
because it provides some level of certainty that the FWS will not 
impose additional obligations on the permit applicant in the future in 
the event of the listing of a species.
    The conference report to the 1982 amendments expressed the 
congressional intention that HCP's not be limited to resolving 
conflicts involving only listed endangered and threatened species.\24\ 
But the wildlife agencies and the environmental community have been 
reluctant to agree to plans that absolve developers from the need to 
provide additional mitigation in the event that the unlisted species 
are subsequently listed--especially if the biological studies did not 
specifically survey for and study the species.
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    \24\ H.R. Rep. No. 835, 97th Cong. 2d Sess. 30.
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    The Stephens' kangaroo rat HCP in Riverside County, California is a 
good example of the folly of focusing a long-term HCP on a single 
species. Acquiring the proposed kangaroo rat reserves has cost tens of 
millions of dollars, yet there is no assurance that public acquisition 
will protect other species in the area sufficiently to obviate their 
listing under the ESA. Subsequent to the initiation of the Stephens' 
kangaroo rat HCP, the FWS listed the coastal California gnatcatcher and 
the quino checkerspot butterfly which are also found in Riverside 
County. There is very little enthusiasm in the development community 
for the imposition of development fees, and the expenditure of enormous 
resources, necessary to protect the kangaroo rat only to turn around 
and confront the same problem with the gnatcatcher and the quino 
checkerspot.
    The HCP process underway for the habitat of the gnatcatcher in 
Southern California have broken new ground on this issue. Certain of 
these so-called ``Natural Community Conservation Plans'' (or ``NCCPs'') 
have been developed using ``target'' or ``indicator'' species as 
planning surrogates for a larger list of species that occupy the 
coastal sage scrub ecosystem. A committee of nationally-recognized 
conservation biologists endorsed the target species approach.
    Secretary Babbitt approved the first NCCP plan--the plan for the 
Central/Coastal portion of Orange County, California--in July 1996. The 
FWS approved a second plan, for the southern portion of San Diego 
County, in late 1997. The Orange County plan establishes a reserve of 
over 37,000 acres and comprehensively resolves conflicts involving 
development within the coastal sage scrub habitat of the California 
gnatcatcher and a large number of other species.
    The biological rationale for the NCCP approach is that the 
gnatcatcher and the other target species are strongly associated with 
coastal sage scrub habitat in southern California, and thus, the 
adequacy of the protections for the target species will be a test of 
whether the HCP has adequately addressed the conservation of the 
coastal sage scrub system. The target or indicator species approach now 
being utilized in the NCCP process has also been advocated for HCP 
planning efforts in other parts of the country.
    In order to provide the kind of assurances typically required by 
banks in order to obtain project financing, Congress may need to amend 
the ESA to authorize explicitly the use of ``target'' and ``indicator'' 
species in the preparation of HCPs, and to authorize the issuance of a 
Section 10(a) permit for all species found within the habitat types 
addressed in the HCP, whether or not such species are specifically 
identified in the HCP.\25\ In the winter and spring of 1996, a 
coalition of environmental, real estate, timber, urban water, and State 
fish and game agency interests negotiated a set of amendments to the 
ESA to codify the NCCP approach in the ESA and explicitly to authorize 
the use of ``indicator'' species in habitat conservation planning.\26\ 
This effort failed--in part due to the continuing ESA gridlock in 
Congress, but also due to opposition from certain segments of the 
environmental community who are antagonistic to any form of regulatory 
assurances for private landowners.
---------------------------------------------------------------------------
    \25\ This concept is discussed in greater detail in R. Thornton, 
Searching for Consensus and Predictability: Habitat Conservation 
Planning Under The Endangered Species Act of 1973, 21 Environmental Law 
605, 654-656 (1991).
    \26\ For a discussion of these amendments see, C. Williams, Finding 
Common Ground: Conservationists and Regulated Interests Pursue ESA 
Reform Together 13 Endangered Species Update No. 6 (1996).
---------------------------------------------------------------------------
 iv. new conservation planning approaches are needed to stimulate pro-
                      active conservation planning
    Most of the HCPs developed to date have relied on command and 
control regulatory mechanisms. Typically, biological consultants 
identify areas that are the highest priority for future preservation. 
Lines are drawn around these areas prohibiting or greatly restricting 
development in the proposed preserve areas. Landowners developing 
habitat outside of the preserve areas are required to contribute to the 
acquisition of the preserves--usually through the payment of 
development fees.
    This model can work fine as long as the owners of land within the 
preserve areas are willing participants. Often, this is not the case. 
Unless the agencies are prepared to acquire all private parcels within 
the preserve areas at fair market value without deducting for 
constraints imposed by the ESA, the HCP soon devolves into a zero sum 
game with distinct winners and losers. In the case of the one HCP in 
which the preserve areas include thousands of landowners--the HCP for 
the Stephens' kangaroo rat in Riverside County, California--many of the 
landowners questioned the benefits of the HCP and, for some time, 
opposed it.
    The HCP process needs a new approach to address this problem--an 
approach that eliminates the zero sum game problem by allowing 
landowners that own valuable habitat to realize economic value from the 
conservation and enhancement of that habitat. One approach, proposed in 
Kern County, California, is a market-based system that would allow 
landowners to create conservation credits by dedicating or enhancing 
habitat and then sell those credits to developers as mitigation for 
impacts on wildlife habitat. Using this approach, the preserve system 
would emerge from market-based transactions rather than command and 
control zoning regulations.
    The plan under consideration in Kern County includes elements of a 
traditional regulatory component and a market-based system. Market 
driven transactions will determine the size, shape, timing and location 
of the preserves within broader ``conservation zones'' identified by 
the agencies. But the plan also includes a ``safety net'' that 
prohibits development receiving authorization under the HCP from 
exceeding a limit or ``cap'' on development in the conservation zones.
    A market-based system relies on the efficiency and creativity of 
the marketplace, rather than a command and control planning system to 
ensure the conservation and enhancement of natural resources for the 
protection of endangered species. A market-based approach has a number 
of important potential advantages. First, it avoids the zero sum game 
and resulting political and legal problems. Second, it ensures that the 
conservation plan that emerges will in fact reflect a deliberate 
conservation strategy rather than simply a politically feasible 
planning arrangement. Market-based strategies hold out this promise 
because the transactions using habitat credits would be required to 
conform to the underlying conservation strategy of the plan.
    Third, the market-based approach could be structured to provide 
strong incentives to landowners to restore habitat on their property to 
make money. Encouraging restoration holds out the promise of expanding 
the balance of wildlife habitat and alleviating emotional fights over 
the development of the last remaining endangered species habitat in an 
area.
    The approaches to market-driven solutions are potentially numerous. 
Over the last few years, we have seen the emergence of increasingly 
sophisticated and elegant market systems to encourage habitat 
conservation.\27\
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    \27\ For a discussion of one such market-based approach, see T. 
Olson, D. Murphy, and R. Thornton, The Habitat Transaction Method: A 
Proposal for Creating Tradable Credits in Endangered Species Habitat, 
in Fischer and Hudson, Building Economic Incentives Into the Endangered 
Species Act (Defenders of Wildlife 1993).
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                               __________
     Statement of William C. Pauli, American Farm Bureau Federation
    Good afternoon. I am William Pauli; I grow winegrapes in Potter 
Valley, in Mendicino County, California where I own Braren-Pauli Winery 
and Redwood Valley Cellars. Furthermore, I am President of the 
California Farm Bureau Federation, and am appearing today on behalf of 
the American Farm Bureau Federation and the California Farm Bureau 
Federation. I welcome the opportunity to present testimony on the 
practical implications of the Habitat Conservation Planning (HCP) 
process on agriculture. This issue is extremely important, as HCP's in 
general simply do not work for farmers and ranchers. HCP's do not work 
for small farmers and ranchers at all. In fact, our experience in 
California with the Regional Multispecies HCP's is that they are tools 
for encouraging urban sprawl, and magnify the loss of good farmland by 
forcing productive land into public habitat preserves.
    As an initial matter we would like to emphasize that, given the 
proper protection and incentives, farmers and ranchers can play an 
important role in the protection and recovery of listed species. In 
fact, the agencies must have the cooperation of farmers, ranchers and 
private property owners if the Endangered Species Act (ESA) is going to 
work. A report of the General Accounting Office\1\ found that over 90 
percent of listed plants and animals have some of their habitat on 
nonFederal lands, with 78 percent occupying privately owned lands. Only 
about 34 percent of all listed species occur entirely on nonFederal 
lands. Private landowners and private lands are clearly the key to the 
Act's success. They do a better job than the government and they 
contribute to the local tax base while they also support wildlife. 
Farmers and ranchers, who own most of the suitable species habitat, are 
especially important if the ESA is to succeed.
---------------------------------------------------------------------------
    \1\``Endangered Species Act: Information on Species Protection on 
Nonfederal Lands,'' GAO/RCED-95-16 (December, 1994)
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    Farmers and ranchers produce the food that feeds our Nation and 
many others in the world. They are a vital part of local economies. 
They support people who keep schools running, provide local jobs, and 
provide opportunities for newcomers to this country. Our productive 
farm and ranchlands are indispensable to our character and our future 
as a nation. Farm and ranch lands need to continue to be productive in 
order to continue meeting this considerable responsibility.
    You must understand that there are two types of HCP's. There are 
the HCP's for one or two species and one property--like the Red 
Cockaded Woodpecker Plan. These can work for some large institutional 
landowners--large timber operations for example or developers. Then 
there are the regional multispecies plans. These work well for 
developers, but their sole function is to mitigate for urban growth by 
taking farmland out of production--destroying its food-producing 
potential. Instead of preserving farms and ranches, the HCP process 
encourages the opposite result, by taking agricultural lands out of 
production and using them as mitigation lands for HCP-allowed urban 
development. It is critically important for all species, including 
humans, that we work with our farmers and ranchers to enhance the 
habitat value of their properties in a way that does not impair the 
present and future productivity of their land. Unfortunately, HCP's are 
designed and controlled by ``-ologists'' who care nothing for human 
needs, and by developers.
    Many farm and ranch activities, if allowed to continue, actually 
benefit listed species. Many species depend heavily on cultivated land 
or rangeland for their continued existence. In California, for example, 
a U.S. Forest Service study found that Swainson's hawks nesting in 
sagebrush habitats more than one mile from cultivated alfalfa fields 
suffered 100 percent nesting failure, while those nesting within one-
half mile of cultivated alfalfa fields enjoyed an 86 percent success 
rate in rearing broods.
    One of the largest nesting colonies of tri-color blackbirds, a 
candidate species, was recently found in a San Joaquin Valley 
grainfield. This species was recently determined not to be endangered, 
specifically because of the numerous colonies hosted by California 
farmers on their lands--at no cost to the American taxpayer.
    We have found that several species of federally-listed kangaroo 
rats are thriving in drip-irrigated vineyards after our members have 
adopted some simple kangaroo-rat friendly rodent control measures.
    Our western water supply networks, our levees, our water 
impoundments, all offer tremendous opportunities for endangered 
species--all wildlife--if only farmers and ranchers are helped and not 
hindered by wildlife agencies.
    Yet instead of encouraging farmers and ranchers to maintain and 
improve species habitat on their lands, the ESA actually discourages 
habitat conservation. The consultation requirements imposed by section 
7 of the ESA and the prohibitions against ``taking'' listed species 
imposed by section 9 of the ESA often impose blanket restrictions on 
human activity and land use that penalize farmers for necessary 
agricultural activities because some of the creatures supported by 
their farms may be ``taken.'' This necessarily creates a negative 
attitude of landowners toward listed species on their lands. The law is 
turning wildlife into a significant liability for the farmer and 
rancher.
    Farm Bureau believes that endangered species protection can be more 
effectively achieved by removing disincentives and providing incentives 
to private landowners and public land users rather than by imposing 
land use restrictions and penalties. Desired behavior is always more 
apt to be achieved by providing a carrot rather than a stick. There is 
no ``carrot'' provided by the Endangered Species Act as currently 
written. This is important because it bears directly on the nature of 
HCPs and why they were authorized.
      i. habitat conservation plans are not suited for agriculture
    The concept of the Habitat Conservation Plan had its origin in 
California, and California has more approved or pending HCPs than any 
other State by far. HCPs were envisioned as a mechanism to allow high-
value urban development of species habitat if other habitat were set 
aside in mitigation. It was designed to give some relief to private 
landowners from the otherwise absolute ``take'' prohibitions of section 
9 of the Act. As the process developed, mitigation took the form of 
either purchase or dedication of additional habitat, or payment of a 
predetermined sum of money into a mitigation fund. In return, the 
landowner was granted a permit for an ``incidental take'' of the 
species if it was in the course of the approved activity. Because these 
HCP's were designed for single project, one-time developments, in urban 
areas, they never considered the problems of co-existing with species 
in a working landscape. Farmers don't build and leave; they and the 
habitat they provide live together. This worked pretty well until the 
Endangered Species Act.
A. The HCP Process Is Not Affordable For Farmers, Ranchers And Most 
        Small Individual Landowners
    Habitat Conservation Plans came into being in order to accommodate 
land developers who were otherwise restricted from developing species 
habitat by the prohibitions of section 9. The HCP process incorporates 
a series of costly biological surveys and the development of an 
extensive planning process whose central theme is habitat mitigation. 
Once developed, the entire package must be approved by the Federal 
Government before it becomes operational.
    In practice, the HCP process has been costly, cumbersome and 
controversial. The process requires extensive and expensive biological 
data covering virtually every square foot of the proposed habitat area. 
The data collection alone can cost a million dollars. It also requires 
that a funding mechanism be in place to accomplish the mitigation 
purposes of the HCP. In addition, the data required under the process 
often takes several years to accumulate, making the process time-
consuming at best.
    But even after all of the data requirements have been met and the 
incidental take application has been accepted, it still must be 
approved by the U.S. Fish & Wildlife (FWS) Service, a process which can 
take several more years. Many applications have been pending with the 
FWS for several years. Recently, only 40 of the more than 150 Habitat 
Conservation Plans that had been submitted to the FWS had been 
approved. So far in California, only one multispecies regional HCP is 
complete and approved--a small one for the city of San Diego involving 
use primarily of public land enhancement for habitat mitigation. There 
is no guarantee that a carefully crafted and negotiated HCP will result 
in FWS approval. Our experience has been frustrating with FWS 
repeatedly raising new demands and endlessly renegotiating the HCP. 
Kern County has been working for the better part of a decade on its 
HCP.
    As a result of these factors, the HCP process is generally 
unsuitable and impractical for small private landowners like individual 
farmers and ranchers. The extensive data requirements alone price 
farmers and ranchers out of the HCP process. The mitigation 
requirements are also much too expensive and burdensome for farmers and 
ranchers to use on a practical basis. You simply cannot grow grain or 
row crops or even grapes if you are going to have to give the FWS an 
acre or more of land for every acre you plant.
    As noted before, the HCP process was not designed to address 
ongoing activities on land such as agricultural production. Rather, its 
mitigation policy was designed to accommodate one-time development of 
property that essentially removes that property as species habitat and 
replaces it with mitigated habitat. Such a process applied to 
agriculture serves neither the needs of species nor of people. Since 
species depend on agricultural lands for habitat, the goal of an 
agricultural habitat policy should be to find ways to maximize both 
agricultural production and species habitat on the same agricultural 
lands. We believe that such a policy can and would work.
    The addition of the concept of ``incidental take'' was a positive 
one. The ESA must be amended to allow this concept of habitat 
conservation to be used for their ongoing activities by farmers and 
ranchers who coexist with species, and not only by those who have high-
priced urban projects and can afford the exorbitant price tag. The 
current system has created a two-tier exemption program that is 
available to developers and the super-rich, but not to the smaller 
businessman or the family farmer and rancher. Family farmers and 
ranchers are being hurt most by the current application of the ESA.
    But even the perceived ``super-rich'' are now bailing out of the 
HCP process. A large industrial timber operation in California spent 
millions to complete an HCP. After years of work, the company finally 
dropped the entire process citing its cost, the inflexibility of the 
Federal agencies, and the endless litigation that is caused by the 
failure of the law to provide for a workable HCP process with real 
safeguards for the landowner.
    The current provision for HCPs in the ESA is too cumbersome and 
inflexible. The provision and implementing regulations contain fairly 
specific requirements that perpetuate the problem of making these 
procedures largely unavailable for most farmers, ranchers and small 
landowners. Section 10 and accompanying regulations provide such 
specific and detailed requirements for HCP and incidental take permits 
that there is little flexibility to adapt the HCP process. In order to 
achieve the flexibility that is needed for an agricultural HCP process, 
both the statute and the regulations will have to be amended.
B. Multi-Party Or Regional HCPs Fail To Adequately Consider The Needs 
        Of Local Agricultural Producers
    Many areas within California are seeking to develop HCPs on a 
county or regional basis. The advantage to such a process in theory is 
that such plans will cover a more comprehensive habitat area and will 
encompass a wider range of normal human activities. Instead of covering 
one entity or one land use, a regional HCP could cover many different 
types of normal activities within the HCP area. In practice, these 
regional multispecies HCPs do nothing to relieve the disincentives for 
the agricultural landowner, and only increase the conversion of 
agricultural land to urban uses because of the expensive mitigation 
such plans require. Land in these HCP's falls into two categories, 
developed or habitat. Under the current process neither use is 
consistent with maintaining a viable agricultural operation.
    Agricultural land is classified as a habitat type, depending on 
what species benefits the particular FWS staff office thinks it 
provides. There is no consistency in--Kern County, row crop land is 
given no habitat value (but landowners who build on it have to pay 1 to 
1 mitigation!), but in San Joaquin County, row crop land is given the 
second-highest habitat value. Mind you, this habitat ``value'' schedule 
means that farmers can't change from one type of farming to another 
without paying mitigation! FWS is in the business of agricultural 
market control. We may all have to eat what they think provides the 
best habitat value.
    The role of agriculture within a regional or multispecies HCP 
(MHCP) is different from nearly all other affected interests. This 
difference is not taken into account in establishing the MHCP or in 
setting its parameters. These basic differences are of such a nature 
that affected interests within the MHCP area often benefit at the 
expense of agriculture. Some of these differences are as follows:

    1. The mitigation schedules that are so harmful to agricultural 
production actually encourage conversion of agricultural land. 
Agricultural producers have the most land within a MHCP area but often 
have very little ready money. Developers and others who might take 
advantage of the HCP process usually have money, but very little land. 
Since the primary focus of the HCP process is on mitigation of habitat 
loss caused by urban development (involving dedication of additional 
lands for habitat), agricultural lands become prime targets for those 
mitigation areas because they are cheap compared to urban lands. In 
Kern County, for example, the mitigation ratio for using native lands 
as mitigation is 3:1 acre of developed land. The mitigation ratio for 
using agricultural lands for mitigation purposes is 1:1. The California 
process thus actively encourages the use of our most valuable 
agricultural lands for mitigation purposes under HCPs, thereby further 
reducing the amount of agricultural lands available for the production 
of food and fiber. By the same token, agricultural producers generally 
cannot afford the same process of mitigation to increase the 
productivity of their lands by changing crops, or to purchase more land 
for food production. This is not a minor issue. For example all of the 
land in San Joaquin County HCP is private farmland. In San Diego 
County, more than 100,000 acres would be designated in the North San 
Diego HCP, thus precluding any agricultural improvements on the land.
    2. For those HCPs that involve the payment of mitigation fees 
instead of purchase of mitigation lands by the applicant, developers 
can pass along the costs to the ultimate users of the property whereas 
farmers and ranchers cannot. Thus, for most within an HCP area, the 
mitigation fee is merely a cost of doing business, whereas for the 
farmer or rancher it is much more.
    3. Outside of the specific land that they have targeted for 
development, developers or the habitat authority itself care little 
about what land is used or purchased for mitigation purposes. For them, 
it is almost as if such land is a fungible commodity. However, for 
farmers and ranchers who actually use the land, every aspect of their 
land is unique in the role it plays within their operation.
    4. Developers can complete their mitigation by the one-time 
purchase of additional dedicated habitat or the payment of a mitigation 
fee. The purchase of the additional land or the payment of the fee does 
not affect the development because the land so purchased or mitigated 
is outside their development site. Farmers and ranchers, who own most 
of the suitable habitat within the HCP area must mitigate by setting 
aside part of their own property. Without compensation and/or 
incentives, the process of setting aside lands does not work for small 
farmers and ranchers. Frequently, the mitigation requires them to take 
more land out of production than they had desired to put in.
    5. In most cases developers are engaged in speculative uses of the 
land that involve future activity and not ongoing present activities. 
HCP restrictions on land uses within the habitat area that might result 
from required data collection activities or pending planning decisions 
only affect the timing of the development of the speculative uses 
without appreciable impact on present activities. In addition, once 
those developers have received their permit and finish their projects, 
they have no additional impacts. Farmers and ranchers, on the other 
hand, use their property on an ongoing basis so that the same 
restrictions placed by the HCP authority pending collection and review 
of data have significant present impacts on current operations. 
Furthermore, because their operations are ongoing, farmers and ranchers 
are impacted at every stage and by every decision of the HCP authority. 
Those impacts include continued liability for compliance with the 
section 7 consultation requirements and the section 9 take 
prohibitions.
    6. In our experience, the HCP authority also imposes permitting 
requirements on farmers and ranchers for activities that do not 
currently require permits. Such activities might include grading, 
plowing or discing land--activities considered normal farming practices 
that are necessary to the continued use of the land for farming 
purposes, and which cannot accommodate the uncertainty of the 
permitting process.
    7. Farmers and ranchers often use their property in ways that are 
beneficial to wildlife and listed species, whereas developers do not. 
Thus, in many cases farmers and ranchers can actually enhance habitat 
through application of normal farming practices. These benefits, 
however, are generally not considered or explored in the HCP process.
    8. Value of land within an HCP area generally goes down simply by 
virtue of its being included in an HCP. Theoretically, this value can 
be restored as mitigation opportunities are identified. Since 
agricultural lands are themselves the very ``mitigation opportunities'' 
that developers identify, the value of agricultural land is always less 
than designated. In the Stephens Kangaroo Rat HCP, the HCP authority 
became the only ``market'' for agricultural land, and the ``value'' of 
such lands included in the HCP area was at the mitigation fee of $1,950 
per acre--substantially less than actual market value outside the HCP.
    The mere inclusion of property within a HCP is a per se declaration 
that such property is habitat for a listed species, and its value drops 
accordingly.
    The practical impacts of these problems can be illustrated by a few 
examples.
Pleasant Valley Habitat Conservation Plan
    The impetus for this plan came from the town of Coalinga in western 
Fresno County, an area that contains habitat for the listed kit fox, 
blunt-nosed leopard lizard and the Tipton kangaroo rat. Coalinga is a 
town of approximately 9,000 people. The Pleasant Valley Habitat 
Authority sought to have a habitat area of approximately 250 square 
miles, of which only 2.3 percent encompassed urban uses. Yet the 
pressure for the HCP was from developers seeking to expand in urban 
areas. Of the remaining area in the proposed HCP, 76 percent of the 
land was either intensive agricultural lands or productive rangelands.
    It became apparent that the extensive agricultural acreage was 
proposed for inclusion in the HCP for only one reason--to provide lands 
for mitigation so the urban developers could undertake their projects. 
The plan was for these productive farm and range lands to be taken out 
of production and dedicated for habitat for the target species so that 
others could reap their own benefits. All of the benefits of this 
proposed HCP were geared to these urban developers, and all the burdens 
were projected to fall on agriculture. It was clear that there were no 
benefits to the farmers and ranchers whose lands would have been 
included in the HCP area.
    The Fresno County Farm Bureau objected to the development of this 
HCP on these grounds, and the HCP did not go forward.
Riverside County Habitat Conservation Plan
    Another example that illustrates the problems experienced by 
agriculture in the HCP process involves the Riverside County Habitat 
Conservation Plan (RCHCP) that is for the protection of the Stephens 
kangaroo rat.
    The RCHCP scheme involves the establishment of a mitigation fund 
administered by the Riverside County Habitat Conservation Agency. The 
funds will go in part to purchasing mitigation lands to be dedicated to 
habitat for the Stephens kangaroo rat.
    The mitigation fee that as established was $1,950 per acre. Payment 
of the fee and associated costs entitled the owner to make improvements 
on the property. The fee is the same for both developers and farmers, 
and therein lies its inequity. Agricultural production is a land 
intensive business that involves little or no building. Buildings that 
might be constructed are low density, low cost structures that pale in 
comparison of value to residential or commercial construction. Yet the 
mitigation fee is $1,950 per acre regardless whether the construction 
is residential, commercial or agricultural.
    An example will illustrate the point. A western Riverside County 
poultry operation constructed a 30,000 square foot agricultural 
building on 39 acres. The cost of the building was $340,000. The $1,950 
per acre mitigation fee cost the operation a total of $67,500, 
amounting to approximately 20 percent of the total cost of the 
building. On the other hand, a typical subdivision might include four 
houses per acre, resulting in mitigation fees of $487.50 per house. If 
the homes were built for $100,000 each, the mitigation fee would be 
less than .5 percent of the cost of construction. In addition, the 
costs of the mitigation fee for residential or commercial development 
can be passed on to the purchasers of such development. Farmers cannot 
pass the fee along to anyone.
    Farmers and ranchers in the RCHCP area have experienced other 
problems due to their inclusion in the HCP area. They have been 
prevented from discing or working their fields due to the suspected 
presence of kangaroo rats. Even if their lands do not actually contain 
the species, they are still prevented from using the land until it has 
been cleared as a possible habitat or mitigation site. Most cannot 
afford the $1,950 per acre mitigation fee it would take.
    This Committee has heard several horror stories from residents 
within the RCHCP area on previous occasions. Cindy Domenigoni has 
testified that the family farm that has been in her husband's family 
for several generations was prohibited from planting on over 800 acres 
for 3 years because the farm was in the RCHCP area and therefore 
kangaroo rat habitat. It was only after a government official remarked 
that the species had moved out of their lands earlier that the 
Domenigonis were allowed to resume operating on that portion of their 
farm. This of course happened after fires ravaged the area and 
eliminated the k-rat and their habitat.
    The Committee also heard from several other victims of forest fires 
in the area that occurred in 1993. Part of the restrictions for 
protecting the kangaroo rat habitat involved prohibitions against 
discing fields and removal of habitat. These prohibitions created 
conditions conducive to swift fire movement through the area. In 
addition, the discing prohibitions prevented people from creating 
firebreaks around their homes to protect their residences. Some people 
who obeyed the restrictions lost their homes to fire. Others who 
ignored the restriction kept theirs.
    By and large, the HCP process was designed to facilitate growth on 
the outskirts of urban areas. Section 10a was written for only the 
largest landowners who could afford the costs of the process and who 
could pass the costs on to the ultimate purchasers. The HCP process is 
poorly adapted to all segments of a community. There are few benefits 
to farmers and ranchers, if any, from participation in the HCP process 
as it is currently authorized. The entire process needs to be reviewed 
and revised.
    While titled ``habitat conservation planning,'' the HCP program 
deals very little with the conservation of habitat. By focusing on the 
``incidental take'' of individuals of a species as the end result of 
the HCP process, the program focuses less on habitat development or 
maintenance than on individual members of the target species. A revised 
HCP process that truly involves ``habitat conservation'' and that 
provides for the unique problems and benefits of the agricultural 
landowner is called for, and it must be accomplished by legislation.
ii. proposals to increase the effectiveness of the hcp process and make 
                   it more available for agriculture
    The process for change must begin with a consideration of the 
American farmer and rancher, and the role they play in the creation, 
maintenance and development of wildlife habitat. In order to be 
effective, the new HCP process must provide a ``carrot'' to the 
landowners instead of a ``stick.'' For most farmers and ranchers, 
removal of the ``stick'' would be welcome enough relief. Furthermore, 
we have to recognize the importance of our farm and ranchlands to the 
future of this country. We all know that we are losing more land than 
we can afford. If we are to provide a secure food base for next 
generation we can't afford to sacrifice our farm resource lands to 
wildlife habitat or concrete and houses. In California, we have lost 
nearly 400,000 acres to habitat in the 1990's alone (see attachment 1).
    Farm Bureau is working at different levels to develop programs that 
would remedy some of the problems described above.
A. Habitat Enhancement Landowner Program (H.E.L.P.)
    In the San Joaquin Valley in California, a coalition of 
agricultural organizations including the California Cattlemen's 
Association, the California Farm Bureau Federation and others has 
developed a proposal called the Habitat Enhancement Landowner Program 
(H.E.L.P.). The H.E.L.P. program would provide a general incidental 
permit program for participating agricultural regions. Under the 
program, participating farmers and ranchers would be allowed to conduct 
normal farm or ranch activities on their property and receive a general 
incidental take permit for such activities or for emergency response or 
repair activities. In exchange for dispensing with the normal section 9 
taking prohibitions for such activities on their property, regional 
committees of farmers and ranchers would agree to develop and implement 
actions to improve or enhance species habitat on their lands. It is 
designed to provide incentives for habitat management by removing the 
considerable disincentives that currently exist. We believe this 
program could usher in a new era of farming for food, fiber and the 
future of wildlife.
    As stated, the purposes of the H.E.L.P. program are as follows:

    1. To develop a general permit program that will remove current 
disincentives to habitat protection.
    2. Develop a voluntary program that will enable farmers and 
ranchers to conduct normal agricultural activities, and to undertake 
additional actions that may benefit listed species, without threat of 
liability for incidental take under either the State or Federal laws.
    3. Maximize what willing landowners can accomplish on their 
property by developing incentive mechanisms that will support species 
and habitat conservation practices while at the same time maintaining 
and protecting the long-term economic viability of their agricultural 
operation.
    The program is premised on the fact that farmers and ranchers want 
to preserve listed species and that given the proper incentives they 
will do so. For this program, the ``incentive'' is nothing more than a 
suspension of the considerable disincentives that currently drive the 
ESA. The program is also premised on the belief that farmers and 
ranchers can do a good job in protecting species and their habitat, and 
that normal farming and ranch activities are generally compatible with 
habitat protection. California Farm Bureau Federation tried negotiating 
with the Fish and Wildlife Service and the California Fish and Game 
Department for adoption of this program.
    Our own Fish and Game Department worked cooperatively with us--they 
understand the value of agriculture to wildlife. The Fish and Wildlife 
Service, on the other hand, sat silently at our meetings and refused to 
work with us--they raised objection after objection and could never 
commit to anything. As a result, this very valuable program for 
maximizing both farm value and habitat value is still just a dream of 
California farmers and ranchers. It's now clear that the only way this 
common-sense program will be adopted, will be for you to pass 
legislation mandating its adoption.
B. North Carolina Sandhills Habitat Conservation Plan
    This limited ``safe harbor'' agreement is currently in place in 
Moore County, North Carolina. This program is designed for the 
protection of red cockaded woodpeckers and their habitat. The major 
elements of this program are as follows:
    1. FWS conducts an inventory of red cockaded woodpeckers (RCW) on 
the lands proposed for inclusion in the program. This establishes a 
baseline population.
    2. The landowner agrees to manage the lands in such a way as to 
protect this baseline population, and to conduct habitat improvement 
activities on their lands. This is accomplished through a cooperative 
management agreement.
    3. There are no additional constraints on the landowner with regard 
to additional RCW that may subsequently inhabit the lands.
    4. As with the H.E.L.P. program, this program is voluntary with 
landowners. In addition, the RCW program allows landowners to opt out 
of the program at their option.
    5. There will be no additional restraints placed on landowners 
other than the management activities that they have agreed to 
undertake. The guidelines to be followed are those in effect at the 
time of execution of the agreement. Also, the habitat improvements 
carried out under the agreement will not result in any additional 
restrictions on the participating lands or neighboring lands.
    6. Program participants are responsible for monitoring compliance 
with the program.
    Program administrators believe that even if private landowners opt 
out of the program after a short time, there will still be benefits to 
the red cockaded woodpeckers. The red cockaded woodpeckers have been in 
decline on the private property within the program area for so long 
that any beneficial habitat enhancement--however short--will help 
reverse that decline.
    Although valuable for highly focused species conservation efforts 
keyed to critical needs of some species, this approach cannot be 
extended regionally to cover normal activities or for covering multiple 
species.
    The North Carolina program is the only ``safe harbor'' agreement to 
be approved thus far. Details on both programs will be provided for the 
hearing record.
    The safe harbor concept in North Carolina is positive. It shows 
that a single-species HCP can work for single landowners, where a 
positive working relationship is offered by the FWS. However, it does 
not show that HCP's can work for multiple species or for regional 
economic development. It will not work in the Western States, because 
it is based on the premise of trust and cooperation between the 
agencies and private landowners.
    It's clear that landowners under the ESA are not treated the same 
in the West when compared to other states. Where voluntary means to 
preserve species in are allowed in some states, they are rudely 
dismissed in the West where agency authority overrules everyone 
including Members of Congress.
C. Critical Habitat Reserve Program
    In addition to these specific programs, Farm Bureau has developed a 
proposal for a voluntary program called the Critical Habitat Reserve 
Program (CHRP) administered by the Secretary of Interior. Under the 
proposal, the Secretary of Interior would enter into contracts with 
willing landowners and public land users in areas designated as 
``critical habitat'' for a listed species. The private landowner/
operator would agree to implement a plan for the management of a listed 
species. Management plans would focus on actions that would enhance the 
species instead of blanket land use prohibitions.
    In return, the Secretary would provide the costs for implementing 
the CHR program, pay annual rental and management fees to the private 
landowners for the conversion of private property to CHR use, and 
provide technical assistance and management training to cooperating 
landowners.
    The program would be voluntary, and must protect the private 
property rights of both participants and non-participants alike. The 
program must contain assurances that participants in the CHRP will not 
be later restricted in the use of their property outside the terms of 
their voluntary agreements. Participants who enhance species habitat 
pursuant to their agreements to the point where other listed species 
might also take up residence should not be restricted because of the 
presence of these other residents.
    The CHR contract would be for a period of no more than 5 years, to 
coincide with the periodic species review mandated by the Act. In order 
not to de-stabilize the economic base of the community, the CHR would 
be restricted to no more than 25 percent of the total area of any one 
county.
    The program would also permit the enrollment of land that might 
already be enrolled in other government conservation programs, and 
would require consultation between the Secretaries of Interior and 
Agriculture to ensure harmony between the CHR program and other 
programs.
    We believe that, given the opportunity and proper support from the 
government, farmers and ranchers can do a better job of enhancing 
listed species than the government. As experienced, practical land 
managers who may have observed the species for a number of years, they 
bring a working knowledge that government scientists do not have. More 
importantly, they can offer day-to-day management of the species that 
the government certainly cannot do. Such a program will result in 
better management and greater chance for recovery of the species than 
is provided under the current law.
    We also believe that with the proper incentives and a respect for 
private property rights of participants and their neighbors, farmers 
and ranchers will be willing to participate in the program.
    We would be happy to discuss this program with you in greater 
detail.
D. General Provisions
    It's clear that changes are needed to authorize and improve the HCP 
process. The following elements are essential to the debate.
    1. Compensation to affected landowners. The promise of incentives 
alone will not work. The only way to ensure agency employees do not 
abuse the law is to require compensation when their activities 
undermine the use or value of the land. In those instances where land 
is identified as critical to the survival of listed species, it should 
be acquired by compensation, not regulation.
    2. Participation in any HCP must be voluntary. County-wide or other 
multi-species plans must not include any landowners who do not wish to 
participate in this process.
    3. HCP's must not be allowed that require any exterior habitat 
buffers on agricultural lands. They must instead, provide protection 
for adjacent landowners should listed species migrate onto their 
property. We must stop turning endangered species into a nightmare of 
liability for neighboring landowners.
    All four of these proposals are designed to maximize protection of 
species habitat while minimizing disruptive impacts to private lands. 
They are designed to avoid the ``train wrecks'' caused by species-human 
conflicts by removing the conflicts. Finally, and most importantly, 
they are designed to replace the ``stick'' of negative ESA enforcement 
through section 7 and section 9 restrictions with a ``carrot'' approach 
to habitat management. All sides to these proposals realize that this 
approach is a ``win-win'' situation for both species and for people. 
That is why the North Carolina proposal was in part supported by the 
Environmental Defense Fund. These changes are designed to encourage 
landowners protect and enhance species habitat because they want to, 
and not because they have to. This simple attitude adjustment makes a 
world of difference for habitat protection, and may turn the current 
horror stories of the ESA into success stories.
    But these changes will require legislation. Some believe that the 
current section 10a is sufficient to enact these subtle but important 
changes, but we have doubts whether the current statutory language 
would allow such provisions. The current section 10a may work well for 
the larger landowners and developers, and they may want to retain that 
section. One thing that Farm Bureau has learned through participation 
in several HCP negotiating exercises is that different landowners have 
different interests and goals as far as the HCP process is concerned. 
We believe that enactment of a separate section to protect agricultural 
producers and small landowners along the lines outlined in the four 
proposals above is appropriate and necessary if this Nation is to 
preserve both the capacity to produce food for its residents and 
protect species from becoming extinct.
                      iii. ``no surprises'' policy
    Under this policy, landowners entering into cooperative agreements 
for the protection and maintenance of habitat would not be required at 
some later time to undertake additional mitigation measures for species 
covered under the plan. In other words, the government would be bound 
by what it promised in any landowner agreement.
    This should be a necessary element of any agreement that any 
landowner would enter with the government. While it protects landowners 
from being hit with any additional requirements that they might not 
have agreed to, it does not begin to solve any of the problems that 
farmers and ranchers experience with HCPs or with the Act. If anything, 
even the need for such a policy illustrates the problems of dealing 
with the government, and the problems faced by farmers and ranchers 
under the ESA.
                               conclusion
    All of the proposals that we have discussed above benefit different 
elements of the public and at the same time benefit endangered or 
threatened species by conserving, managing and enhancing habitat. 
Different proposals use different methods and benefit different 
segments of the community. One plan does not fit all.
    Agricultural interests do not benefit from current HCPs because it 
is their lands that are eyed for mitigation. Further, they generally 
cannot afford the mitigation fees that can be paid by large developers 
and passed on to ultimate purchasers. The CHRP or the broader H.E.L.P. 
type of agreement is better suited for agricultural concerns. In 
addition, requiring compensation under this process keeps everyone 
honest when it comes to ESA regulations. Requiring the landowners 
consent to include land in a designated HCP is only fair.
    We urge the Committee to consider these proposals as a coordinated 
policy that benefits both listed species and people. It is a situation 
where everybody wins, and affected interests from all sides should 
embrace such an effort. Also, demonstrating that the interests of 
species and people can be accommodated through the enactment of such a 
coordinated policy might open the door to other necessary ESA reforms.
        conversions of productive farmland to habitat since 1990
    State Agricultural Land Acquisitions: 307,251 acres

    Federal Agricultural Land Acquisitions: 36,172 acres

    CALFED Agricultural Land Acquisitions: 40,023 acres

    All Government Agricultural Land Acquisitions Totaled: 383,446 
acres
     All acreage totals are either previously acquired, in the 
process of being acquired, or are actively being sought for acquisition 
(i.e., the agency is looking for willing sellers in the project area.)
     All of the aforementioned purchases involve agricultural 
resources, as far as we know. As better information becomes available, 
we will update these figures.
     Undoubtedly, more agricultural land conversions have 
occurred than we have listed in these figures.
     The best information available states land acquisitions in 
terms of whether agricultural resources are involved, and total acres 
of the project. This means that some of the acres purchased were not 
agricultural. Currently, there is no way to determine the acreage 
break-down for each project. Thus, if agriculture is involved, the 
whole project is treated an agricultural conversion.
     Definition of Agricultural Land = agriculturally zoned 
parcels, and/or parcels currently or previously in agricultural 
production.
     These land totals are basically the same parcels as 
depicted on our preliminary land acquisition map. The only change is 
the addition of 14,400 acres that are currently being purchased by 
State agencies. These additional parcels were discovered through State 
Clearinghouse records and conversations with Farm Bureau Executive 
Directors who are familiar with the circumstances of these projects.
    Northern California Water Association (NCWA) Publication on Land 
Conversions Land Acquisition and Habitat Protection in the Sacramento 
Valley, September 28, 1999 Attachment 1 to Statement of William Pauli 
on October 19, 1999. (Table 1)

                                 Table 1
------------------------------------------------------------------------
                  Program                               Acres
------------------------------------------------------------------------
DFG Wetlands Easements....................  2,371
State Wildlife & Ecological Reserves......  116,900
WCB Inlands Wetlands Conservation.........  3,565
DWR/Rec Board Mitigation..................  1,625
Department of Parks and Rec...............  700
State Lands Commission (a)................  12,000
NRCS Wetlands Reserve Program.............  12,397
BLM.......................................  12,574
USFWS Conservation Easements..............  26,781 (24,316 = acres in
                                             easements)
Sacramento NWR Complex....................  33,593
The Nature Conservancy....................  51,290
Bay-Delta Ecosystem Funding...............  5,090
  Total...................................  278,886 (W/O TNC=227,596)
------------------------------------------------------------------------
 These totals do not include access acquisitions or habitat
  restoration projects. (Table 1, FN 1.)
 Bay-Delta Ecosystem funding includes = Prop. 204, Category III,
  Federal Bay-Delta Act, and CVPIA Restoration Funds. (Table 1, FN 4.)
 These figures only refer to the Sacramento Valley.
  (Introduction)
 Approximately 3.6 million acres are contained within this area,
  of which 1.85 million acres are dedicated to irrigated agriculture.
  (Introduction.)
 The acquisitions in the NCWA publication will duplicate some of
  the FB generated ``agricultural land conversion'' data.

                  Table 2.--NCWA Proposed Acquisitions
------------------------------------------------------------------------
                  Program                               Acres
------------------------------------------------------------------------
Central Valley Habitat Joint Venture        54,400
 Wetlands.
Upper Sac. River Acquisitions--BLM........  4,000
BLM ``Exchange Lands''....................  10,000
Sacramento River Inner Zone...............  10,200
CALFED ERP Riparian Acquisitions..........  15,000-20,000
Inks Creek Conservation Easement..........  13,000
Stillwater Plains Conservation Area.......  2,667
  Total...................................  104,300-114,300 acres
------------------------------------------------------------------------

                                 ______
                                 
 Statement of Rudolph Willey, President, North California Presley Homes
    Before Presley purchased our land in San Jose in 1997, we were 
aware that the property had once been occupied by the threatened Bay 
checkerspot butterfly. We contacted the nationally recognized Stanford 
conservation biologist, Dr. Dennis Murphy (who addressed this 
subcommittee on July 20 on science and habitat conservation planning), 
because he was the scientist who petitioned the USFWS to list this 
butterfly, and no individual is more committed to this species. We were 
told by Stanford University scientists who studied this species for 
decades, that the butterfly had abandoned the site in 1990 and that 
weedy exotic grasses had almost entirely replaced the host plants which 
the butterfly requires to survive. The butterfly would be unable to re-
colonize this site on its own because of this weedy invasion.
    Dr. Murphy worked with Presley to develop a plan to conserve nearly 
two-thirds of the area onsite that was once occupied by the butterfly, 
eliminate the non-native weeds, restore native plants, and bring 
butterflies back to the site. (A condition that would never exist again 
without aggressive habitat management.) These objectives formed the 
basis of our draft HCP, which took many months and $300,000 to produce. 
Even though there was no listed animal species on the property, and 
thus no incidental take permit was required, Presley chose to purse an 
HCP and Section 10 permit voluntarily because it would be prudent to 
obtain the ``No Surprises'' assurances, and because it was the right 
thing to do. The HCP included extraordinary conservation commitments, 
with specific biological goals of:
     71 acre permanent butterfly habitat preserve, including 17 
acres of host plants
     20 major plant conservation areas--
     The first agency sanctioned man-made California tiger 
salamander pond
     Substantial avoidance/Translocation of listed plants
    The HCP also included an exemplary adaptive management plan with 
some of the following points:
     An Environmental Trust to which Presley will deed over 50 
percent of the 575 acres and provide initial funding of $1.6 million.
     Thereafter, the trust will receive $200,000 a year in 
perpetuity for professional biological management and monitoring of the 
preserved lands.
    Given the voluntary nature and progressive scope of the HCP, 
Presley expected the plan to be embraced by the Service. Instead, the 
Service has fought this project at every turn, and refused to act on 
the HCP at all. Presley met with the Sacramento Field office several 
times before drafting the HCP. We then submitted our HCP and Section 
10(a) permit application and fee in October 1998 and the following 
month had a formal meeting with Service staff to present our plan. At 
this and subsequent meetings, a Service staff biologist asserted that 
nearly the entire 575 acres constituted ``habitat'' for the butterfly, 
that the current unsuitability of the habitat for the butterfly did not 
matter, the fact that the species could no longer survive there without 
heroic management did not matter, and the 4 year complete absence of 
the species on the site (as confirmed by annual surveys) did not 
matter. He did not offer any empirical or scientific evidence to 
support any of these opinions. At the conclusion of this meeting, 
Service staff and management agreed to produce and deliver written 
comments to Presley's draft HCP within 2 weeks. The comments never 
came. After three and a half months of calls, and letters to the Chief 
of the Service's California/Nevada Operations Office which were never 
answered or acknowledged, we contacted the Field Supervisor of the 
Sacramento office. He said he had a letter from the Service to give us, 
but wanted to talk with us and Dr. Murphy first. We pointed out to the 
Field Supervisor of the Sacramento Office that since we had no listed 
animal species onsite we could legally grade without having an 
incidental take permit. He agreed, and said he had told his staff that 
unless they cooperated in this engagement that they would lose their 
opportunity to influence this project. He also said that he was 
powerless to override or direct his subordinates' actions since he 
feared lawsuits from third party special interest groups. He concluded 
with saying that he was not going to give us the letter.
    We then proceeded, obtaining the appropriate permits from 
California Department of Fish and Game, the U.S. Army Corps of 
Engineers and obtained a waiver from the Regional Water Quality Control 
Board. At every step, personnel from the Service repeatedly called and 
wrote these agencies demanding they deny Presley at every approval. In 
every instance, after extensive consultation, each agency agreed that 
the Service had no jurisdiction. In June, the Army Corps of Engineers 
authorized Presley to fill less than one half acre of wetlands and 
concluded that the Corps' permitting action would not affect listed 
species, thereby denying the Service a Section 7 consultation on the 
project. San Jose issued Presley a grading permit allowing for clearing 
of the site and Presley began work.
    The Service inexplicably passed on a Section 10, did not get a 
Section 7 consultation with the Corps and did not take Section 9 
enforcement action. Instead, they stepped completely out of the 
regulatory process. First, they sent documents to private interest 
groups which were then used by these groups to sue another Federal 
agency (the Army Corps) and Presley. Then they sent the City of San 
Jose threatening letters and e-mails asserting, with no substantiation, 
that grading the site would cause illegal ``take'' of the butterfly and 
the City would be held liable for such a ``take''. The Service urged 
the City to withhold any more grading permits. The City capitulated to 
these threats, explaining to Presley that the Service was holding up 
$3.5 million in Federal funds for City projects, that they did not want 
to upset the Service for fear that they would lose that money and would 
not issue Presley's further grading permits.
    We have been at a dead stop for almost 3 months now. We may not be 
able to grade until at least next spring at a cost of approximately $3 
million. We have contacted every level of the service to get this 
resolved. They did acknowledge 2 weeks ago that there was no take, 
would be no grounds for a Section 9 action, and said that I could have 
a letter to that effect to show the City of San Jose. Although it has 
been promised on almost a daily basis, we just received a qualified 
letter this last Friday, October 15.
    I ask you, where is the certainty in the regulatory process for me 
as an applicant? I ask you, how can it be acceptable to the Congress to 
have the Fish and Wildlife Service simply ignore the ESA and its duty 
to implement the Act, and instead wage an improper, ideological 
campaign to stop this project? What does the Service have against HCPs, 
especially one this generous? Unfortunately, for the endangered 
species, I'm afraid this is sending the wrong message to the 
development community, not to become involved in the HCP process. I 
think HCPs, in theory, are a great idea. Yet, we can't escape the irony 
here . . . the developer attempting to protect and restore the species, 
and the Service trying to block that effort.

                     Presley Homes List of Exhibits
------------------------------------------------------------------------
           Exhibit No.                      Exhibit Description
------------------------------------------------------------------------
  1.                               Executive Summary to Presley's draft
                                    HCP. A full copy of the HCP is
                                    available by contacting Sharla
                                    Moffet-Beall at Senator Crapo's
                                    office or by contacting Laura Murray
                                    at Presley Homes (925)229-8880.
  2.                               October 9, 1998 letter from H.T.
                                    Harvey and Associates to Bill
                                    Lehman, Chief of the Conservation
                                    Planning Division at the USFWS/
                                    Sacramento office. This is a short
                                    but comprehensive letter which
                                    accompanied the section 10(a)
                                    application and submitted the draft
                                    HCP.
  3.                               Pages 1-10 of the Environmental Trust
                                    for the Ranch on Silver Creek. A
                                    full copy of the Environmental Trust
                                    is available by contacting Sharla
                                    Moffet-Beall at Senator Crapo's
                                    office or by contacting Laura Murray
                                    at Presley Homes (925)229-8880.
  4.                               December 21, 1998 letter to Bill
                                    Lehman, Chief of the Conservation
                                    Planning Division at the USFWS/
                                    Sacramento office from David Moser
                                    of McCutchen, Doyle, Brown and
                                    Enerson, LLP, requesting written
                                    comments to the HCP promised by the
                                    service, now overdue.
  5.                               January 27, 1999 letter to Mike
                                    Spear, Manager, California/Nevada
                                    Operations Office from David Moser
                                    requesting written comments to the
                                    HCP now three and a half months
                                    overdue. This letter was never
                                    answered or acknowledged.
  6.                               March 28, 1999 letter to James Meek
                                    at Presley Homes from Dr. Dennis
                                    Murphy detailing his conversations
                                    with Service staff biologists. Even
                                    though Dr. Murphy is a leading
                                    expert on the butterfly, an agency
                                    staffer questions his competence.
  7.                               July 23, 1999--An e-mail from David
                                    Wright, a staffer at the Service, to
                                    the City of San Jose asserting a
                                    take and warning the City of its
                                    liability. ``Mass grading on the
                                    site would cause increased take of
                                    listed wildlife. Presley Homes does
                                    not have a permit from us for this
                                    take, nor does the City of San Jose.
                                    I think it's important you be aware
                                    that courts and cities and local
                                    governments can be liable for their
                                    actions that result in a take.''
  8.                               July 28, 1999 letter from Wayne
                                    White, Field Supervisor at the USFWS/
                                    Sacramento office to Joe Horwedel,
                                    Deputy Director of the city of San
                                    Jose Planning Department urging the
                                    city to deny Presley grading permits
                                    or the city may be held accountable.
  9.                               September 29, 1999--An e-mail from
                                    USFWS staffer, David Wright, to Joe
                                    Horwedel, Deputy Planning Director
                                    at the city of San Jose. This e-mail
                                    was sent after the Service told
                                    Presley that the official decision
                                    was no take and details how USFWS
                                    wants to approve site erosion
                                    control methods and implies that
                                    even the erosion control may result
                                    in a take and is offering to
                                    indemnify the city from it.
10.                                Service Recommended Helpful Hints vs.
                                    Actual HCP Process for the Ranch on
                                    Silver Creek. These ``helpful
                                    hints'' are excerpted from November
                                    1996 issue of the ``Endangered
                                    Species Habitat Conservation
                                    Planning Handbook'', a reference
                                    book for Service biologists and for
                                    applicants. In the left hand column
                                    are the helpful hints and in the
                                    right hand column are the actual
                                    experiences.
11.                                Aerial photo of the Ranch on Silver
                                    Creek. Note the housing projects
                                    surrounding the site as well as
                                    Highway 101 along the west side of
                                    the project.
------------------------------------------------------------------------

                                 ______
                                 

                               Exhibit 1

                           executive summary
    The 575-acre Ranch on Silver Creek is a master-planned residential 
and golf community designed and developed by Presley Homes of 
California. Located at the northern end of the Silver Creek hills in 
San Jose, California, the project comprises approximately 88 acres of 
homes in several residential neighborhoods, 280 acres of habitat and 
open space, 18 acres of common area open spaces, 13 acres of roadway, 
160 acres of golf course (including clubhouse, parking, and golf course 
maintenance facilities), and 16 acres of regional and public park 
facilities.
    The project site is located on the northern end of a northwest-
trending ridge of the Silver Creek Hills. Elevations range from 
approximately 819 feet national geodetic vertical datum (NGVD) at the 
top of the ridge on the southeastern boundary to 200 feet NGVD on the 
western edge of the site. The moderately steep, rounded hills support 
numerous rock outcroppings and broad drainages. The site is underlain 
at the surface by serpentine and sandstone. The northern half of the 
site drains to Silver Creek, a perennial stream that originates above 
the Silver Creek Country Club project, while the southern half of the 
site drains to an unnamed tributary (Hellyer Canyon). All flows from 
the project site eventually travel to Coyote Creek. The site is 
dominated by non-native annual grassland on a serpentine substrate (92 
percent). It also includes relatively small areas on non-native annual 
grassland on a non-serpentine substrate, Diablan sage scrub, freshwater 
ponds, seeps, and marshes, and central coast live oak riparian forest 
habitats.
    The species that will be covered by the HCP and Incidental Take 
Permit include the Bay checkerspot butterfly (Euphydryas editha 
bayensis; federally threatened), Santa Clara Valley dudleya (Dudleya 
setchellii; federally endangered), Metcalf Canyon jewel-flower 
(Streptanthus albidus ssp. albidus; federally endangered), Mount 
Hamiltion thistle (Cirsium fontinale var. campylon; CNPS 1B), and 
California tiger salamander (Ambystoma californiense; federal candidate 
species).
    The project site has historically supported populations of the Bay 
checkerspot butterfly. As late as 1993, it was estimated that 25 
percent of the northern Silver Creek Hills population (65 percent on 
Silver Creek Country Club and 10 percent on Chelmer/Wong) occurred 
onsite. However, extensive surveys conducted between 1996 and 1998 
failed to detected larvae and adult butterflies onsite. In addition, 
the quality and quantity of the habitat onsite had dramatically 
declined. Presently, no butterflies and no suitable habitat exist 
onsite for the butterfly.
    The project site presently supports numerous populations of Santa 
Clara Valley dudleya totally 21,947 individual plants. Several 
populations of the Metcalf Canyon jewelflower occur onsite that support 
approximately 75,000 plants and several populations of Mt. Hamilton 
thistle of 3,000 plants were also documented.
    A small pond (approximately 24,000 square feet) north of the old 
quarry onsite supports breeding for the California tiger salamander. A 
maximum area of approximately 25 acres circumscribes the total 
estivation habitat for this pond.
    It has been estimated that 3,836 individual dudleya plants (17.5 
percent of the onsite population), no Metcalf Canyon jewelflower 
plants, and 350 individual Mt. Hamilton thistle (11.7 percent of on-
site population) will be directly lost due to project implementation.
    Current development of the project site will likely not result in 
``take'' of any life stage of the Bay checkerspot butterfly because the 
species is absent from the site. The possibility of take, however, does 
exist if immigrant females entered the site, laid eggs, and the larvae 
succeeded in reaching diapause during the 1998 or subsequent seasons.
    The project would result in loss of breeding and estivation habitat 
for the California tiger salamander. The maximum impact would total 25 
acres.
    Impacts to the plants will be mitigated by the establishment of 20 
Plant Conservation Areas (PCA). These areas will be set aside and 
monitored into perpetuity. The objective of the dudleya mitigation is 
to replace through restoration all plants and the habitat lost during 
project implementation. On-site restoration will be comprised of 
several different elements, including: (1) salvage dudleya plants from 
serpentine rocks and transport them into suitable PCA's; (2) recreate 
dudleya habitat on suitable unoccupied habitat; (3) transplant 
container-grow plants into existing ``unoccupied'' rock outcrops; (4) 
create new habitat by fracturing unoccupied rock; and (5) plant dudleya 
seed collected during the salvage effort into recreated dudleya 
habitat. Mitigations for Mt. Hamilton thistle include: (1) salvage 
mature plants from within the impacted drainages and transport these 
plants into adjacent reaches that do not currently thistle; and (2) 
collect seed from both impact and non-impact plants and distribute into 
suitable unoccupied habitat onsite.
    An approximately 71-acre Butterfly Conservation Area (BCA) will be 
established and managed for the butterfly into perpetuity. The goal of 
the BCA is to support a minimum of several hundred Bay checkerspot 
butterflies on a long-term basis. Management goals of the BCA include 
the establishment of 17 acres of Plantago erecta in densities of 
several hundred plants per square meter. This is expected to be 
accomplished by manipulating areas of 5,000 to 10,000 square feet and 
then seeding these areas with Plantago erecta, the larval food plant. 
In addition, this area will be grazed in a winter/spring phase so as to 
maximize the competitive advantage of the Plantago erecta patches.
    The loss of tiger salamander habitat will be mitigated by 
preservation of offsite habitat (within a 40-50 mile radius) at a 1:1 
ratio (breeding and estivation habitat) and the creation of new 
breeding habitat onsite. The offsite area should consist of a breeding 
pond (or pond complex) and must include adequate estivation habitat. In 
addition to offsite acquisition, tiger salamanders would be salvaged 
from the impact site and transferred to the new breeding habitat.
    The incidental take permit will be in effect for 7 years from date 
of issuance. The permit will allow Presely Homes or its successors to 
take the species covered by this HCP over that time period within the 
geographical boundaries and during the implementation of otherwise 
lawful activities identified in this HCP.
                                 ______
                                 

                               Exhibit 2

                                  H.T. Harvey & Associates,
                                       Alviso, CA, October 9, 1993.
Mr. Bill Lehman,
Chief, Conservation Planning Division,
U.S. Fish and Wildlife Service,
Sacramento, CA.
Subject: The Ranch on Silver Creek (aka ``Cerro Plata'') HCP (PN 1315-
01)

    Dear Mr. Lehman: Enclosed is the Habitat Conservation Plan (HCP) 
and Endangered Species Act (ESA) Section 10(a) incidental take permit 
application for the Ranch on Silver Creek. Dave Moser (applicant's 
attorney) notified you in a September 24, 1998 letter that we would be 
submitting this application on behalf of Presley Homes. This HCP is a 
significant effort in coalescing all known data on the biology of 
several serpentine endemic plant and animal species. This document was 
prepared by staff biologists with significant experience with the 
relevant species from H.T. Harvey & Associates and Sycamore Associates. 
For example, several experts (a combined 80-plus years experience with 
research of the butterfly) of the Bay Checkerspot Butterfly contributed 
significantly to the sections related to the butterfly (e.g. Dr. 
Raymond White) or were consulted as reviewers of the document (e.g. Dr. 
Dennis Murphy). Other biologists contributed by conducting surveys on 
the site since the early 1990's (e.g. Drs. Alan Launer and Stuart 
Wiess).
    The Presley environmental team has met on five separate occasions 
with staff biologists of the Endangered Species Division (ESD). These 
staff members include Jim Browning, David Wright, Betty Warne, and 
Diane Elam. These meetings have included two meetings with the Service 
in Sacramento and three meetings on the project site. Not all Service 
staff members attended each meeting, but Browning. Wright and Warne 
were present at three of the five meetings. We invited (through ESD) a 
representative of the HCP group to one of the Sacramento meetings, but 
were informed that the HCP group would only become involved once an HCP 
was submitted to the Service for review. We also requested that the 
Service staff (i.e., Browning, Wright, and Warne) provide us any 
examples of HCP's they believed satisfactorily handled similar level of 
issues; recognizing an HCP addressing these same species may not be 
available. However, no examples were provided to us, so we relied on 
the HCP handbook and other accepted HCP's such as those prepared for 
the City of Bakersfield and the Natomas Basin.
    We believe this HCP represents a significant effort at avoidance, 
minimization, and compensation for impacts to the relevant species. 
This document should serve as a significant basis for the protection of 
significant populations of several serpentine plant species and allow 
rehabilitation of the site for the Bay checkerspot butterfly.
    To this end, we have based the general goals and objectives of this 
HCP, to the extent possible, on the goals and objectives of the Draft 
Recovery Plan for Serpentine Soil Species of the San Francisco Bay 
Area. Specifically this HCP will:
     Protect and restore 71 acres that formerly supported the 
Bay checkerspot butterfly. In addition, significant Plant Conservation 
Areas will be established onsite for Santa Clara Valley dudleya, 
Metcalf Canyon jewelflower, and Mt. Hamilton thistle. Nearly 18,000 
dudleya plants will be protected onsite, 4,000 dudleya plants directly 
impacted will be relocated and at least one of the plant conservation 
areas will protect a population of over 2,000 plants.
     Contribute research on co-management of dudleya and Bay 
checkerspot butterfly habitat. The Butterfly Conservation Area also 
supports a large population of dudleya.
     Require on-going monitoring of the butterfly and plant 
conservation areas.
     Allow translocation of butterflies to conservation area if 
allowed and feasible.
     Provide for adaptive management for all conservation areas 
onsite.
     Develop educational programs for homeowners, golfers and 
local residents of the unique resources onsite.
     Support research on various aspects of the Bay checkerspot 
butterfly biology and on seed germination, propagation techniques, and 
demographics of the plant species covered by the HCP.
    We believe this plan allows for the protection, preservation, 
restoration and adaptive management of the significant serpentine plant 
and animal resources onsite and look forward to discussing the approach 
and focus of this document. We hope that the HCP reviews process can 
speedily evolve into a productive and cooperative relationship between 
the Service and the Presley team. We recognize that comments on this 
document will tend to fall into the categories of form and content. We 
would propose that our initial efforts with the Service focus on 
content (e.g., the biology of the species and specific mitigation 
programs), leaving issues relating to form for later discussions.
            Sincerely,
                                    Rick A. Hopkins, Ph.D.,
                            Wildlife Ecologist and Project Manager.
                                 ______
                                 

                               Exhibit 3

     Environmental Trust for The Ranch on Silver Creek, San Jose, 
                         Santa Clara County, CA
                            i. introduction
    The plan for the Environmental Trust for The Ranch on Silver Creek 
(Trust) is a traditional concept that uses a modern approach. The Trust 
is rooted in the American tradition of land stewardship for 
environmental protection, and utilizes state-of-the-art knowledge and 
scientific approach for adaptive resource management. The essence of 
the concept is that Presley Homes, the project developer, will protect 
the resource-critical portion of The Ranch on Silver Creek (about 52 
percent of the site or 298 acres) by deeding it to the Trust and 
ensuring that the Trust has an adequate financial base to assure the 
best chance for survival and recovery from pre-existing conditions for 
endangered plants, animals, and habitats.
    The key to Presley's plan, and what sets it apart from nearly all 
other currently implemented resource management programs required as 
mitigation, is that the protection and scientific management of the 
sensitive resources is provided for in perpetuity rather than for a 
limited number of years.
                     ii. resources worth protecting
    The Ranch on Silver Creek has significant resources to protect and 
manage, including plant and animal species, wetlands and riparian 
habitat, and serpentine habitat (see Attachment A, Site Photographs). 
The project has been designed to avoid as many of these resources as is 
feasible. The following paragraphs summarize these plant, animal, and 
habitat resources that are present on the project site, and quantify 
the degree of avoidance that the project design has produced. The 
Project avoidance percentages listed below represent the amount of the 
onsite species population that has been avoided by the project.

Listed Species
    Federally Endangered plants:
     Santa Clara Valley dudleya (Dudleya setchellii) [project 
avoidance 82 percent]
     Metcalf Canyon jewelflower (Streptantus albidus ssp. 
albidus) [project avoidance 100 percent].
    California Native Plant Society 1B-ranked plants:
     Mount Hamilton Thistle (Cirsium fontinale var. campylon) 
[project avoidance 88 percent]
     fragrant fritillary (Fritillaria lilacea) [project 
avoidance 89 percent]
     chaparral bush mallow or Hall's bush mallow (Malacothamnus 
fasciculatus) [project avoidance 100 percent].
    As indicated, these rare plants are largely avoided by the proposed 
project.
    The site is also habitat for the State species of special concern 
and Federal Candidate species, California tiger salamander (Ambystoma 
californiense). An onsite translocation project has been conducted in 
1999 for this species, relocating it into a pond newly created for the 
salamander. Please see Attachment B for a complete list of Special-
status plant and animal species, their status, and known or potential 
occurrence on The Ranch on Silver Creek project site, San Jose.
    Project mitigation includes management and restoration of pre-
project populations of dudleya and jewelflower. Transplanting, 
propagating, seeding, and enhancing and creating potential habitat are 
among the conservation measures planned to assure this success.
    The site also has noteworthy potential for the development of 
viable habitat for federally threatened Bay checkerspot butterfly 
(Euphydryas editha bayensis). Currently, this species is not present, 
but the Environmental Trust will create the proper host and food plant 
community to sustain the butterfly on 17 acres within a 71 acre 
preserve. The butterfly formerly occupied this portion of the site, 
therefore the soils, aspect, slopes are suitable to habitat 
restoration, provided a management regime favorable to the host plants 
is implemented.
Wetlands and Riparian Habitat
    Ninety-one percent of the 4.70 acres of wetland arid riparian 
habitats on the site are avoided by the project. Ninety-six percent (of 
the 10,270 linear feet) of the two major riparian corridors will be 
avoided: Silver Creek, consists of a main stem (3,200 feet 
in length) and a tributary (1,600 feet), and Hellyer Creek 
consists of a main stem (4,900 feet) and a tributary 
(1,000 feet). Lower Hellyer Canyon also includes an on-
stream pond of 15,190 square feet surrounded by 4,495 square feet of 
riparian habitat. Silver Creek is a rich riparian corridor with an 
abundant community of riparian forest and shrubs. In contrast the 
Hellyer Creek corridor consists of herbaceous vegetation and very few 
trees. A portion of the Silver Creek riparian corridor will be deeded 
to the City of San Jose as a part of the Silver Creek Linear Park; the 
balance of the riparian corridors is to be owned and managed by the 
Trust. There will also be an additional 0.75 acre of constructed 
wetlands in lower Hellyer Canyon and a California tiger salamander pond 
of 0.22 acre has already been built in upper Hellyer Canyon.
Serpentine Habitat
    Since this site is predominantly serpentine habitat, there are many 
endemic species which could occupy and potentially use the site. The 
Trust has a special opportunity to enhance this site for these species. 
The U.S. Fish and Wildlife Service in the Recovery Plan for Serpentine 
Soil Species of the San Francisco Bay Area (1998) points out that these 
are unique habitats worthy of protection. The Service also notes that 
in most cases the lands require active management in order to maintain 
and enhance habitat values for the 14 federally listed species and 14 
species of concern of plants and animals that occur exclusively or 
primarily on serpentine soils and serpentine grasslands in the San 
Francisco Bay Area.
                             iii. rationale
    The Ranch on Silver Creek project impacts natural resources of 
national, state, and local significance. Wetlands, endangered and 
threatened species, and critical habitats are being adversely affected. 
Mitigation measures usually required by regulatory agencies include 
avoidance, minimization, and/or compensation through habitat 
enhancement or habitat creation. The Ranch on Silver Creek has 
exercised significant avoidance and minimization of impacts, and 
provides for compensation.
    In most other resource management programs, open space is put into 
a permanent conservation easement and a funding mechanism, such as the 
local Homeowner's Association, provides for long-term management of 
these resources. Such easements and funding are frequently required as 
conditions of project approval. Unfortunately, permanent funding and a 
Homeowner's Association are not enough to assure permanent professional 
management of the resources. Such management is usually needed to 
provide a good chance of long-term survival for listed species and 
enhancement of habitat. Homeowner's Associations are ill-equipped to 
manage or oversee management of natural resources. Furthermore, 
effective long-term (i.e. permanent) management can only occur with 
certain administrative elements, which typically are not incorporated 
into the long-term plan. These elements include:
    (1) Permanent record keeping of materials on management procedures 
and practices including: environmental site documents, methodologies of 
measurement, results of prior studies, information on benchmarks for 
plot or sample locations, photography for repeat studies, and results 
from long term monitoring. Inadequate record keeping seriously 
undermines the validity of any management strategies or resource 
studies.
    (2) Regular professional staff assigned to the site/resource to 
continuously perform and/or oversee management practices, scientific 
studies, and data collection. This is especially important because, as 
the regulatory agencies have repeatedly pointed out in species recovery 
plans, developing the underlying scientific knowledge for effective 
management of many of these habitats and species will require years or 
even decades of studies, experiments, and experience with adaptive 
management and specific sites. Professionals are essential because of 
the complexity of the biological and habitat issues.
    (3) Coordination with other sites and studies which share similar 
resources or constraints. Progress toward understanding management 
issues requires knowledge of what has been learned in other study/
management sites.
    For the Ranch on Silver Creek, Presley Homes has taken the 
initiative to provide continuity and professional management of site 
resources, open space for restoration and mitigation, and conservation 
of easement sites. By making this commitment, Presley Homes is 
demonstrating a concern for the resources to the public and the 
agencies.
                         iv. mission statement
    The Environmental Trust for The Ranch on Silver Creek will actively 
provide stewardship of the Trust properties in perpetuity for the 
sensitive and unique plant and animal species, and sensitive habitats 
of concern including serpentine, wetland, and riparian habitats. The 
Trust will function in a scientifically, fiscally, and socially sound 
manner.
                             v. objectives
    In order to attain the goal embodied in the Mission Statement, a 
number of objectives need to be met. The objectives of the Trust 
include:
    Site Management
     Protect existing natural resources
     Maintain, repair, and replace physical property
     Maintain fences and signs
     Maintain public access in suitable areas
     Patrol habitat, report violations to law enforcement
     Work with the golf course to assure enforcement of out-of-
bounds areas
     Work with City of San Jose, Pacific Gas & Electric, and 
other stakeholders with easements or adjacent property to minimize 
impacts
     Monitor golf course maintenance to minimize impacts
     Collect golf balls from protected habitat
     Monitor and maintain permanent water quality best 
management practices (BMPs)
     Maintain appropriate fire buffers
     Communicate with other sites managing similar resources
    Science and Research
     Participate in the Northern California research community 
through ongoing communications, writing papers, attending and 
participating in conferences, and disseminating knowledge gained from 
studies conducted on the site
     Plan, facilitate, and conduct scientific studies
     Utilize the site for scientific studies
     Monitor and document resources and environmental 
conditions
     Maintain involvement of academic and research communities
     Propagate special status species
     Encourage California native plant horticulture through 
outreach to interested organizations
    Administration
     Maintain a science and management handbook
     Manage finances and staff
    Public Education and Relations
     Maintain and develop public education and raise local 
environmental consciousness [e.g. via an interpretive center and 
outreach including web site]
     Build a constituency for the site resources including 
volunteer involvement
     Promote public understanding of the natural history and 
history of the site
     Sell environmental materials including native plants, 
posters, local maps, nature art
     Educate community about using non-invasive species
    Library and Records
     Serve as a repository for a reference library of historic 
and contemporary documents (see Attachment C for a Preliminary 
Reference Bibliography)
     Maintain site and resource documents, records, and data
     Provide appropriate computer systems, including a 
geographic information system, and equipment for utilizing library 
materials including maps, aerial photographs and scientific data
     Provide public access to Trust library materials
    Mitigation and Compliance
     Mitigate for impacts resulting from The Ranch on Silver 
Creek project
     Ensure compliance with the Ranch on Silver Creek project 
city and agency Conditions of Approval, and FEIR and EIR Addendum 
mitigation measures
     Coordinate mitigation for projects affecting the site
                             vi. governance
    The Environmental Trust will be governed by a seven member Board of 
Directors who have the ultimate responsibility for fulfillment of the 
Mission of the Trust. They will set policy, prioritize major 
objectives, oversee management, hire and fire the Trust Manager, and 
provide primary fiscal responsibility. The Board must take care that 
directors, officers, and staff avoid conflicts of interest. It is 
essential that the Board limit its activities to protect its Non-
Profit, tax-deductible Status. See Attachments D and E, Draft Articles 
of Incorporation and Draft Bylaws.
                vii. staff, consultants, and volunteers
    The site will be managed by a Trust Manager. This individual, who 
will likely be associated with a consulting or resource management 
firm, will be responsible for overall management, as well as all the 
day-to-day aspects of the Trust including:
     Implementing the policies of the Board of Trustees
     Reporting to the Board
     Maintaining a strong scientific and historic knowledge of 
the site and its resources
     Overseeing adaptive management of the resources
     Managing day-to-day operations including financial matters
     Conducting meetings of the Advisory Panel
     Hiring, firing, and supervising employees and volunteers
     Maintaining facilities
     Meeting the Trust objectives
    The Manager will hire assistance as funding provides and needs 
require, and seek to build a cadre of volunteers to work with the 
program for environmental monitoring, educational activities, projects, 
public education and relations, and site/resource maintenance.
                          viii. advisory panel
    There will be an Advisory Panel made up of representatives of 
stakeholders in the area. The sole purpose of the Advisory Panel is to 
lend its membership's perspectives to scientific and management issues, 
generally advising the Trust Manager and/or the Board of Trustees on 
the full range of management concerns. The Advisory Panel will likely 
include a Bay checkerspot butterfly expert, a California Native Plant 
Society representative, an Audubon Society representative, the Ranch on 
Silver Creek Golf Course superintendent, a City of San Jose Parks 
Department official, a City of San Jose Maintenance District official, 
a United States Fish and Wildlife Service official, a California 
Department of Fish and Game official, a Regional Water Quality Control 
Board official, a member of the Kirby Canyon Habitat Conservation 
Trust, a local schools representative, a homeowners representative, and 
some interested citizens. All members and positions on the Advisory 
Panel will be subject to approval/removal by the Board of Directors.
  ix. adaptive scientific management as a resource management strategy
    The Trust will utilize an adaptive management approach, which 
allows the management plan to adjust to unforeseen circumstances. 
Adaptive management in conjunction with continued research is cited by 
the U.S. Fish and Wildlife Service in the Recovery Plan for Serpentine 
Soil Species of the San Francisco Bay Area to be a crucial component of 
serpentine species recovery. The primary reason for using adaptive 
management is to allow for changes in the strategies that may be 
necessary to reach the long-term goals of protection of a site and its 
resources, and to ensure the likelihood of the survival of target 
species in the wild. Under adaptive management, activities and 
ecosystems are monitored and analyzed to determine how they function 
ecologically and if they are producing the desired results. If the 
desired results are not being achieved, adjustments in the management 
strategy must then be considered. Monitoring is an integral tool in an 
adaptive management approach. Sampling and analyses will be designed in 
such a way as to ensure that data will be efficiently and properly 
collected, analyzed, archived, and used to adjust mitigation management 
strategies, as necessary.
    A key element of adaptive management is the establishment of 
testable hypotheses linked to the conservation strategies and their 
biological objectives. If monitoring determines that biological 
conditions are outside specific parameters or thresholds, the 
conservation strategies must be reviewed. The thresholds for review 
must be linked to key elements of the plan and should be measurable by 
the collection of monitoring data. The establishment of measurable 
parameters would dictate the types of monitoring to be done including 
the kinds and number of samples, distribution of samples, and use of 
controls.
                  x. related environmental management
    The Trust will provide other essential functions that dovetail with 
their management mission. As mentioned above, compilation and archiving 
of scientific documentation is essential. Providing public education 
about the Trust's sites and resources is necessary. The Trust will 
provide general oversight for problems with trespassing, fences, 
erosion, vandalism, off-road vehicles, etc., as appropriate. Trust 
personnel will contract for and oversee all site uses such as grazing, 
scientific studies, monitoring, repairs, construction, etc. Staff will 
participate in the public, professional, and agency dialog concerning 
the resources they manage.
                              xi. phase-in
    For a portion of the build-out period of the project, anticipated 
to be 3-5 years, Presley Homes may retain ownership of the Trust lands 
and hire an entity to manage the site in accordance with the project 
mitigation measures and the Trust Mission Statement. Initially the 
management entity will be Sycamore Associates LLC, an experienced 
environmental consulting firm which is intimate with the site as well 
as its resource and environmental permitting constraints. During this 
period, an Advisory Panel will be constituted to assist Sycamore in the 
complexities of instituting mitigation measures and management. The 
initial Advisory Panel members will include other consultants who may 
be paid. It will also likely include representatives of the golf 
course, architecture and engineering firms, construction firms, City of 
San Jose Parks Department, homeowners, regulatory agencies, species 
experts, the California Native Plant Society, and other resource 
professionals.
                        xii. land and facilities
    Trust properties and facilities will include the land, trails, 
office, native plant garden, weather station, plant nursery, workshop, 
storage, historic barn, and dudleya demonstration area. A substantial 
portion of the design of the facilities is being based on the Jasper 
Ridge Biological Preserve at Stanford University, Palo Alto, 
California.
A. Trust Lands
    The lands to be administered by the Trust are expected to be about 
298 acres (52 percent of the site) and are shown on the Attachment F. 
Map 1. It is expected that among the spaces administered by the Trust, 
are lands which the City of San Jose Maintenance District or the golf 
course will provide maintenance in cooperation with the Trust. Note 
also that PG&E has certain easements across the property. Attachment G. 
Map 2 shows the key species and habitats: Santa Clara Valley dudleya, 
Metcalf Canyon jewel-flower, Mount Hamilton thistle, fragrant 
fritillary, bush mallow, California tiger salamander, and wetlands/
riparian areas. It also shows the City Park and the Bay Checkerspot 
Butterfly Conservation Area. Several public trails outside of critical 
habitat are also planned to facilitate public enjoyment and foster 
appreciation of the open spaces without public endangering the natural 
resources.
B. Office
    The Trust will have an 800 square foot office in the Golf Course 
Clubhouse. This is where the all-important library will be housed and 
the professional staff will do most of their work. The office will also 
afford space for public contact and volunteers, and for the preparation 
of materials for educational functions.
    The Trust will have responsibility for and right to permanently set 
up educational displays in the hallways and rooms of the Clubhouse. 
These will be prepared and maintained by the Trust in keeping with the 
quality and taste of the Clubhouse decor. The displays will be in high 
visibility locations and not be less than 60 linear feet of wall space. 
Typical display topics would include: serpentine endemism, California 
tiger salamander ecology and life cycle, Bay checkerspot butterfly 
ecology, origin of serpentine habitat in coastal California, 
distribution of species of concern in Santa Clara County, California 
extinctions, and the Trust program description.
    With reasonable advance notice, the Trust will be assured access at 
a reasonable cost to Clubhouse meeting rooms and public spaces for 
public activities related to the Trust, including lectures and 
programs, children's nature-related activities, and receptions. On the 
Clubhouse grounds, the Trust will maintain a modest display garden of 
native plants and a weather station, to be maintained and monitored by 
the Trust.
    The library will include scientific data, reference documents, 
maps, aerial photographs, photograph collection, interpretive 
materials, reports, and permits. Appropriate equipment and software for 
the use of the library materials will be maintained in the office.
C. Field Station
    The Trust will maintain the historic 6400 square foot Hassler Barn 
near the Silver Creek entrance to The Ranch on Silver Creek. As a part 
of The Ranch Planned Unit Development Conditions of Approval, the 
structure will be restored, have a foundation installed, and be 
seismically reinforced in keeping with the guidelines established by 
the Secretary of Interior for historic structures.
    A structure will be placed within or adjacent the barn or in the 
adjacent City Park to provide a field office. Visual impact will be 
minimal. A plant nursery area for propagation of native plants, 
workshop, parking, and storage area will be provided at this location. 
It is anticipated that adjacent lands in the City Park can be used for 
complementary activities. Equipment, tools, and supplies for site 
maintenance will be kept in the field station. Appropriate research and 
laboratory equipment will be maintained at either the field station or 
office. Scientific equipment will likely include computer equipment, 
plant presses, microscopes, balances, drying oven, GPS receiver, and 
storage cabinets.
    The field station will also house a shower (essential because of 
poison oak on the site), small kitchen and accommodations. Researchers 
will be allowed to stay at nominal cost on the site for short periods. 
Note that motel accommodations in the area are very expensive and tend 
to be full.
D. Other Assets
    A 4-wheel drive vehicle will be maintained as a part of the Trust 
for use by staff. The Trust will have a designated parking spot at the 
Clubhouse.
                  xiii. financial and asset management
    Funds will be managed and accounted for in accord with the 
requirements of the Internal Revenue Service, the Franchise Tax Board, 
the Board of Directors, and the Prudent Investor Act. The Board of 
Directors assumes ultimate responsibility for all financial matters.
                        xiv. funding and budget
    Funding will be provided from two sources: an endowment to 
establish the facilities and some operations from Presley Homes, and a 
portion of the property tax for the portion of the property tax 
administered through the City of San Jose. It is anticipated that the 
annual budget will be approximately $200,000 (1999 dollars). Additional 
funds may be raised through grants, sales of educational materials and 
plants, contracted work for managing or doing science on nearby 
preserves, contracted work for onsite mitigation or monitoring for 
utilities or other entities, and other appropriate activities. See 
Attachment H. Preliminary Annual Budget.

                               Exhibit 4

                    McCutchen, Doyle, Brown & Emersen, LLP,
                              San Francisco, CA, December 21, 1998.
Mr. Bill Lehman,
Chief, Conservation Planning Division,
U.S. Fish and Wildlife Service,
Sacramento, CA.
Subject: The Ranch on Silver Creek HCP

    Dear Bill: As you know from my prior correspondence, Presley Homes 
is growing increasingly concerned with the Service's apparent lack of 
progress in processing our HCP and Section 10(a) application. I was 
very much hoping to speak with you last week before you left for 
vacation. When I reached you about 11:30, you indicated you were just 
leaving for lunch and would call upon your return. When I had not heard 
from you by 2:30 I called and was informed you had left for the day. I 
left you a voicemail message anywise, but did not hear back from you. 
Since I will be out of the office when you return, I will convey my 
requests with this brief letter.
    The start of the new year will mark 3 months since Presley 
submitted its HCP and application. It will also mark 7\1/2\ weeks since 
we met with you and your staff to discuss the HCP. At that meeting, the 
Service committed to providing us with written comments on the HCP, and 
to do so within a few weeks. Nevertheless, we have not received those 
comments. Also, though my December 2 letter to you asked for an update 
on the Service's progress, we have not received that either.
    I respectfully request your assistance in making every effort to 
provide us with the Service's comments as soon as possible. I also 
request a meeting with you and appropriate members of your staff during 
the first week of January to discuss whatever comments the Service may 
have, and to update you on the significant progress Presley has made in 
addressing issues we discussed in November. Marylee Guinon of Sycamore 
Associates will contact you the week of December 28 to set up that 
meeting.
    Presley remains firmly committed to this HCP, which will provide 
very significant conservation benefits to the Bay checkerspot 
butterfly. Presley is also firmly committed to the HCP processing and 
project construction schedule we discussed in November. Your assistance 
in processing our HCP and application would be greatly appreciated.
            Very truly yours,
                                                    David E. Moser.
                                 ______
                                 

                               Exhibit 5

                    McCutchen, Doyle, Brown & Enersen, LLP,
                               San Francisco, CA, January 27, 1999.
Mr. Michael J. Spear,
Manager, California/Nevada Operations Office,
U.S. Fish and Wildlife Service,
Sacramento, CA.
Subject: The Ranch on Silver Creek HCP--San Jose, California

    Dear Mike: This letter follows my letter to you of December 2, 
1998, in which I sought your early assistance on the HCP referenced 
above. A copy is attached for your convenience. Unfortunately, the 
frustrating situation which existed then has only worsened. I wish to 
meet with you at your earliest possible opportunity to discuss a 
situation which is intolerable to the applicant, and which should be 
unacceptable to Service management.
    It has now been 3\1/2\ months since my client, Presley Homes, 
submitted an HCP and Section 10(a) permit application to the Service's 
Sacramento Field Office. It has been 11 weeks since we met with Service 
staff to discuss the HCP. Although the Service at that meeting promised 
to provide us with written comments on the HCP within a couple of 
weeks, and although the Service's published target processing time for 
HCPs such as this is a total of 3-5 months, and although the Service's 
Customer Service Standards (National Policy Issuance 96-02) requires 
the Service and all employees to respond to its external customers in a 
timely and professional manner, Presley has yet to receive any written 
comments on the HCP, and Presley has yet to see the Service make any 
significant progress toward processing the HCP. Presley has continually 
requested action from the Service, but to no avail. Moreover, this HCP 
appears to be the victim of internal turf battles and disagreements in 
the Sacramento Field Office. Indeed, it now appears that responsibility 
for processing this HCP has inexplicably been removed from the HCP 
Division.
    You have been a leading proponent of HCPs on behalf of the 
Administration. As you know from my work on the San Diego MSCP and 
other projects, I have likewise been a strong advocate for HCPs. 
Unfortunately, and for reasons which are a mystery given the soundness 
of the Ranch on Silver Creek HCP and the benefits it will provide both 
to the Service and to the species resources at issue, on this HCP 
project the Service has consistently displayed a negative attitude, a 
lack of responsiveness, and an uncooperative manner. Not only is this 
unacceptable to Presley Homes, it undermines the entire HCP program.
    I will call you tomorrow to request a meeting as soon as possible 
to try and put this project on its proper course. Your involvement is 
necessary, and I hope I can count on your assistance.
            Very truly yours,
                                            David E. Moser.
                                 ______
                                 
                    McCutchen, Doyle, Brown & Enersen, LLP,
                               San Francisco, CA, December 2, 1998.
Mr. Michael J. Spear,
Manager, California/Nevada Operations Office,
U.S. Fish and Wildlife Service,
Sacramento, CA.
Subject: The Ranch on Silver Creek HCP

    Dear Mr. Spear: I represent Presley Homes, the developer of the 
Ranch on Silver Creek residential and golf course project in San Jose. 
In early October, following extensive consultations with the Service, 
Presley submitted a draft HCP. We have since had one meeting with the 
Service, followed by two letters from me identifying issues to be 
worked on. Copies are enclosed for your information, along with 
correspondence which both preceded and accompanied the HCP.
    My purpose in writing you about this project are twofold. First, 
this is a high-profile HCP within the Sacramento Field Office, and Bus 
one you should personally be aware of sooner rather than later. The HCP 
is high-profile in part, because of apparent fundamental differences of 
opinion as between the Conservation Planning Division and Endangered 
Species Division regarding this project. Second, I am quite concerned 
that given such disagreements, and personnel changes within the 
Conservation Planning Division (our assigned staff member, Meri Moore, 
is leaving the Service imminently, which is a significant loss to the 
Service and the HCP program as she was one of the best staff people I 
have ever dealt with), the HCP may not be processed in a timely manner.
    I would like to keep in touch with you regarding this HCP over the 
coming weeks and months, as Presley is counting on the Service to meet 
its published target times for processing the HCP. Any help you can 
provide in this regard would be greatly appreciated.
    In the meantime, as always, please do not hesitate to call me if I 
can provide any additional information.
            Very truly yours,
                                            David E. Moser.
                                 ______
                                 

                               Exhibit 6

                                      University of Nevada,
                                          Reno, NV, March 28, 1999.
Mr. James Meek,
Presley Homes,
Martinez, CA.
    Dear Mr. Meek:  I wanted to convey to you a brief summary of my 
conversation with the U.S. Fish and Wildlife Service in February 1999. 
On the phone to me from the U.S. Fish and Wildlife Service Field Office 
in Sacramento was David Wright, Ken Sanchez, and Diane Elam.
    I initiated the exchange with a 10-minute overview of the status of 
the bay checkerspot butterfly on the Ranch on Silver Creek property, 
including its history of population fluctuations there, its recent 
decline to disappearance, the well-documented near disappearance of 
habitat elements on the site, and a description of how conditions on 
the property relate to adjacent holdings, and current and recent roles 
of those holdings in supporting the butterfly. Having visited the site 
with Mr. Wright on 14 January 1998, I related my observations to that 
visit and described hoof the El Nino condition of 1998 and more 
moderate current weather conditions have affected habitat suitability 
on the property. I stated unequivocally that although once prime 
habitat for the bay checkerspot butterfly, the Ranch on Silver Creek 
property is no longer capable of supporting a viable population of the 
butterfly, that standardized field surveys indicate that neither larvae 
or adults of the species have occupied the site since the flight season 
of 1995, and that the decline of habitat value is not reversible 
without management intervention, including focused restoration efforts 
involving grazing and mechanical treatments.
    David Wright responded that he did not agree with my conclusions 
that the site had diminished in habitat quality to the point that it 
cannot sustain the bay checkerspol butterfly and that the butterfly no 
longer occupies the property. He offered these observations as 
assertions. He presented no empirical evidence to support his position 
on this habitat issue. He stated that the field techniques employed by 
scientists from Stanford University and consultants on the site were 
inadequate to establish absence of the butterfly.
    As the petitioner for the listing of the bay checkerspot butterfly 
under the Federal Endangered Species Act, I have had few opportunities 
to respond to a questioning of my scientific competence and my 
integrity of judgment regarding the species. I therefore responded. In 
reference to the butterflies onsite, both larval and adult focused 
surveys do indeed have a finite probability of missing the species at 
extremely low densities in any given sampling period. That likelihood 
is decreased when both life stages are adequately sampled in the same 
year And the probability is further diminished to vanishingly close to 
zero when surveys are carried out over 4 years in sequence. As the 
draft habitat conservation plan amply documents, the bay checkerspot 
butterfly no longer occupies the Ranch on Silver Creek property. As for 
habitat quality, the draft plan also describes the observed rapid 
decline in habitat quality on this site as measured by reductions in 
the butterfly's larval hostplants following cessation of grazing 
earlier in this decade. The dramatic decline of the primary hostplant, 
Plantago erecta, is demonstrated in the draft plan which describes 
localized orders-of-magnitude decreases in plant numbers, and complete 
disappearance of the species in many sample quadrats. Importantly, 
conclusions regarding the status of the butterfly and habitat quality 
on the site are shared by Drs. Alan Launer and Stuart Weiss of Stanford 
University and Dr. Raymond White of Harvey and Associates, who with me 
combined have more than 90 years of research experience with the bay 
checkerspot butterfly, and together have provided the entirety of 
available knowledge on this species at the site.
    All of the above was a repeat of information from the 14 January 
1998 site visit with David Wright, which you attended. I then pointed 
out on the ground the historical distribution of both the butterfly and 
its habitat, discussed its history on the adjacent Shea Homes property, 
and speculated on means of arresting the nearly complete invasion of 
the site by non-native grasses and forbs. When I noted the then 3-year 
record of non-occupancy by the butterfly, Wright stated that further 
surveys would not be necessary and that the data available would be 
sufficient to inform an HCP. One year later, he clearly has reversed 
his opinion on the sufficiency of existing data, yet offers no 
explanation for that reversal. During that same year, the recovery plan 
for the bay checkerspot butterfly was finalized arid published as part 
of a plan for other species that are restricted to serpentine soils. 
The butterfly plan was virtually entirely based on the research of the 
three biologists mentioned above and myself--including all data on 
distribution, abundance, habitat use, and risks to populations. Our 
research and observations were apparently sufficiently reliable to 
provide the empirical basis for the species' recovery plan, but not 
reliable enough to assess the status of the bay checkerspot butterfly 
and its habitat on your property in 1999. As the authority on this 
species, with dozens of peer-reviewed scientific journal articles, book 
chapters, and a dissertation on the species, I find it galling to have 
my competence questioned by an agency staffer with no first hand 
experience with the species. Moreover, Wright's recent campaign of 
lobbying other agencies (the Army Corps of Engineers among them) to his 
unsupported position and impugning me in the process is so far out of 
line as to be unprofessional.
    My differences of opinion with David Wright are not differences in 
fact. Wright has brought no new opposing data or observations to the 
dialog The disagreement clearly is a construct to force you to scale 
back development plans on the site. Since I have not discussed with you 
either the footprint of your development, the number of units proposed, 
or associated land uses, I can offer you no advice on those issues in 
your continued deliberations.
    I, however, can assure you that the information provided to you on 
the historical distribution and abundance of the bay checkerspot on 
your property is reliable, that my conclusions about its current status 
and the status of its habitat are sound, and that development 
activities will not result in take of the bay checkerspot butterfly on 
the Ranch on Silver Creek property That stated, my disappointment at 
the rejection by the U.S. Fish and Wildlife Service of your proposed 
habitat conservation plan for the site cannot be greater--it is a 
conservation opportunity lost for no good reason.
    I close by noting that I walked your site on 20 March. The invasion 
of non-native plants continues unabated and no butterflies were 
apparent under superior flight conditions.
    Should you wish a more detailed assessment or related information, 
do not hesitate to contact me. I can be reached at (775) 784-1303.
            Sincerely,
                                     Dennis D. Murphy, PhD.
                                                Research Professor.
                                 ______
                                 
                        Coblentz, Patch, Duffy & Bass, LLP,
                                 San Francisco, CA, August 2, 1999.
Mr. David Nawi, Esq.,
Regional Solicitor,
U.S. Department of the Interior,
Sacramento, CA.

Re: Presley Homes--Cerro Plata (a.k.a., The Ranch on Silver Creek), San 
Jose, California

    Dear Mr. Nawi: This concerns the unsigned copy of the letter from 
Professor Dennis D. Murphy to James Meek dated March 28, 1999 (which 
was attached as Exhibit ``A'' to Presley Homes, letter to Secretary of 
the Interior Bruce Babbitt and certain other Federal officials dated 
July 29, 1999). We are unable to locate a signed copy of the subject 
letter. However, enclosed please find a statement from Professor 
Murphy, dated today, to the effect that a signed original of the 
subject letter was sent by him to James Meek, of Presley Homes, on 
March 28, 1999.
            Very truly yours,
                                           Naomi Rustomjee.
                                 ______
                                 

August 2, 1999

    I represent that the original of the unsigned copy of the attached 
letter, from myself to James Meek of Presley Homes dated March 28, 
1998, regarding the absence of the Bay checkerspot butterfly on the 
Ranch at Silver Creek, San Jose, property, was signed by me on that 
date and sent to Mr. Meek.
                                    Dennis D. Murphy, Ph.D.
                                 ______
                                 

                               Exhibit 7

                            U.S. Fish and Wildlife Service,
                                     Sacramento, CA, July 23, 1999.

From: Darryl Boyd

To: Ruby, Tom

Subject: FW: Important you not approve grading Ranch on Silver Creek 
proj

    Darryl, Joe, and Gerry: I spoke to Gerry and left a message for 
Darryl earlier this morning. I understand the Planning department will 
have opportunity to review and say yes or no to a mass grading permit 
application for the Ranch at Silver Creek project, Presley Homes 
property, tentatively scheduled very soon.
    I recommend that the City of San Jose NOT approve this grading 
permit. Our office (Sacramento office of the U.S. Fish and Wildlife 
Service, which has jurisdiction over federally listed threatened and 
endangered species) have been telling the City for a long time that 
there are listed species and their habitat on the Ranch on Silver Creek 
site. Because of language in City Resolution 64913--EIR on Recycling 
Water and verbal assurances from Joe, and from Mike Enderby, your 
issuance of a grading permit for clearing and grubbing and other site 
prep work on July 7 took us by surprise. Since then we have advised 
Presley Homes, by telephone, fax and letter, that their actions on the 
site are likely to be causing prohibited unpermitted ``take'' of listed 
wildlife in violation of the Federal Endangered Species Act (ESA), and 
requested that they halt these activities immediately. We copied the 
City on some of this correspondence. Presley Homes said they would take 
this under advisement. It is our understanding that Presley Homes has 
agreed in relation to a separate lawsuit to stop all work on the site 
until August 5, so there should be no rush to issue the mass grading 
permit.
    Mass grading on the site would cause increased take of listed 
wildlife. Presley Homes does not have a permit from us for this take, 
nor does the City of San Jose. I think it's important you be aware that 
courts have found that cities and local governments can be liable under 
the ESA for their actions that result in take. Some cases: Strahan v. 
Coxe 127 F.3d 155 (1st Cir. 1997), U.S. v. Town of Plymouth, Mass., 6 
F. Supp. 2d 81 (D. Mass. 1998); and Loggerhead Turtle v. County Council 
of Volusia County, 896 F. Supp., 1170 (M.D. Fla. 1995).
    We would like the City to postpone its grading pervert decisions 
until after Presley Homes has obtained incidental take authorization 
from the Service consistent with City Resolution 64913 p. 43.
    As always we are available to discuss these issues. We are moving 
our office shortly (see attached) but will do our best to be responsive 
to you. Contact me or Ken Sanchez at the number below.
                                              David Wright,
                                                      Entomologist.
                                 ______
                                 

                               Exhibit 8

                                Department of the Interior,
                                     Sacramento, CA, July 28, 1999.
Mr. Joseph Horwedel,
Deputy Director,
Department of Planning, Building and Code Enforcement,
San Jose, CA.

Subject: Proposed Ranch on Silver Creek Project

    Dear Mr. Horwedel: This letter concerns the City of San Jose's 
(City) consideration of a mass grading permit for Presley Homes Ranch 
on Silver Creek project in San Jose, Santa Clara County, California. 
The U.S. Fish and Wildlife Service (Service) is concerned about the 
impacts of this project on the federally threatened bay checkerspot 
butterfly (Euphydryas editha bayensis), California red-legged frog 
(red-legged frog) Rana aurora draytonii), the endangered Metcalf Canyon 
jewelflower (Streptanthus albidus ssp. albidus) and Santa Clara Valley 
dudleya (Dudleya setchelli). These species are protected under the 
Endangered Species Act of 1973, as amended (16 U.S.C. Sec. Sec. 1531-
1543, as amended) (Act). In addition, the California tiger salamander 
(Ambystoma californiense), is present on the site and is a candidate 
for Federal listing.
    Issuance of a mass grading permit or other site activities permits 
by your office relating to this project is likely to result in take of 
listed species. Section 9 of the Act and implementing regulation (50 
CFR 17.21 and 17.31) prohibit ``take'' of threatened or endangered 
wildlife by any ``person.'' Section 3 (12) of the Act defines person to 
include ``any officer, employee, agent . . . of any State, 
municipality, or political subdivision''. Take is defined by the Act as 
``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or 
collect'' any such animal. Significant habitat modification or 
degradation is defined to be take where it actually kills or injures 
listed wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering (50 CFR 
Sec. 17.3). The Service is concerned that the mass grading, if 
authorized by the City, may cause, among other things, further killing 
of butterfly larvae and more severe degradation of the species' 
habitat. Any issuance of a grading permit that results in the loss or 
take of protected species or their habitat may put the City in direct 
conflict with the Act.
    The Service continues to be available to work with Presley Homes to 
identify an appropriate project design--one that avoids and minimizes 
impacts to listed species. Unless and until Presley has obtained the 
required permit from the Service, I ask that you withhold all approvals 
for ground-disturbance and other activities on the site, consistent 
with San Jose City Council Resolution No. 64913, which calls for 
Service approvals before the development is permitted to proceed.
    To discuss this matter please contact me at (916) 979-2710.
            Sincerely,
                                            Wayne S. White,
                                                  Field Supervisor.
                                 ______
                                 

                               Exhibit 9

                                              David Wright,
                                Sacramento, CA, September 29, 1999.
Mr. Joseph Horwedel.

From: David Wright

To: Joseph Horwedel

Subject: FW: Ranch on Silver Creek

Original Message

Subject: Ranch on Silver Creek

    Hello Joe, Congratulations to you and the City on winning the suit 
Presley brought against you. We appreciate the effort this was for you. 
We are working on a letter for you about site erosion control measures. 
Measures themselves are done, the concern that arose is that the City 
be protected against liability for incidental take that might occur 
from regrading etc., and how do we do that. Hopefully just will require 
careful language--we will ask our solicitors to review. What are your 
needs?
                                                        DW.
                                 ______
                                 

                               Exhibit 10

Service Recommended Helpful Hints vs. Actual HCP Process for the Ranch 
                            on Silver Creek
    ``Service biologists must combine flexibility, creativity, good 
science, and good judgment in providing technical assistance to HCP 
applicants and making the section 10 program successful. The following 
``rules of thumb'' should be helpful in meeting these challenges.''
    The above quote was taken from the November 1996 issue of 
``Endangered Species Habitat Conservation Planning Handbook'', 
published by the U.S. Fish and Wildlife Service and National Marine 
Fisheries Service, a reference handbook for Service biologists and for 
applicants alike. This handbook is just one example of the type of 
literature Presley used as research before beginning the HCP process 
for the Ranch on Silver Creek (as recommended in item 2 below). Please 
note that the left hand column is the list of the Services' suggested 
``rules of thumb'', and the right hand column is a comparison of the 
Service's actual follow-through to each of those items.

------------------------------------------------------------------------
USFWS ``Rules of Thumb''1 for its Staff   Presley's Actual Experience 2
------------------------------------------------------------------------
1. Review recovery plans for affected    Presley's HCP would have
 species and assess the extent to which   produced a net benefit to the
 HCP mitigation programs are consistent   species, and contributed to
 with them. Although FWS or NMFS cannot   recovery:
 mandate that HCPs contribute to          An environmental trust
 recovery, applicants should be           A 71-acre butterfly
 encouraged to develop HCPs that          habitat
 produce a net positive effect on a       20 major plant
 species. Recovery plans should be used   conservation areas
 to help identify strategies to           The 1st man-made CTS
 minimize and mitigate the effects of     pond
 the HCP. When recovery plans are not     Translocation of
 available, contact recovery teams or     listed plants. Nevertheless,
 other species experts to obtain          even after 1 year the Service
 information pertinent to HCP             refused to even consider the
 development. When appropriate, the       HCP.
 development of the HCP could involve
 more active participation by recovery
 team members and species experts by
 providing technical assistance to the
 applicant.

2. Keep up-to-date on applicable         The Service threatened Presley
 statutes and policies, including the     and the City of San Jose with
 ESA, its implementing regulations,       enforcement action without any
 this handbook and court decisions.       legal or factual support--it
 Understand the authorities and           was merely a bullying tactic.
 limitations of the ESA and NEPA. Be up-  The Service failed to process
 to-date on new biological developments   Presley's permit application.
 and state-of-the-art techniques such     The Service ignored the best
 as population viability analysis. Keep   available scientific and
 reference materials on hand concerning   commercial data.
 legal and biological issues applicable
 to the section 10 program.

3. The HCP is initiated by the           Technical assistance was never
 applicant and is the applicant's         provided. Applicant was unable
 document, not FWS's or NMFS's. The       to establish a constructive
 Services should assist the applicant     dialog with the Service. The
 and help guide the process by            Service failed to provide a
 providing sufficient staff and           single written comment on the
 technical advice. However, if the        HCP.
 applicant insists on measures that
 would not allow the HCP to meet
 section 10 issuance criteria, the
 Service will inform the applicant of
 the deficiencies in writing and offer
 assistance in developing a solution.
 If deficiencies are not corrected, the
 FWS or NMFS may ultimately have to
 deny the permit. Providing technical
 assistance early and continuously
 through the HCP development process
 will hopefully prevent such situations
 from occurring.

4. Help the applicant determine early    Presley developed a multi-
 in the process what species are to be    species HCP and should have
 addressed in the HCP. This will depend   obtained the benefits of the
 on what species occur in the project     ``No Surprises'' policy. But
 area, whether they are likely to be      the Service simply refused to
 affected by project activities, their    even consider Presley's permit
 listing status (listed, proposed or      application.
 candidate), the applicant's objectives
 and other factors. The Service will
 encourage permit applicants to address
 any species in the plan area likely to
 be listed within the life of the
 permit. This can benefit the permittee
 in two ways: (1) the ``No Surprises''
 policy applies to unlisted species
 that are addressed in an HCP; and (2)
 it prevents the need to revise an
 approved HCP should an unlisted
 species that occurs within the plan
 area but was not addressed in the HCP
 subsequently be listed. The Services
 should advise the applicant on this
 issue, but ultimately the decision
 about what species to include in the
 HCP is always the applicant's.

5. Work with the applicant to get        The Service deliberately waited
 important issues on the table as early   until the ``eleventh hour'',
 as possible in the HCP development       after Presley had begun
 stage. Make sure the applicant           grading, to threaten the City
 understands the section 10 issuance      of San Jose and Presley with a
 criteria and any regulatory or           section 9 take enforcement
 biological issues that will need to be   action, causing the City to
 addressed in the HCP. Avoid ``eleventh-  stop Presley's grading
 hour'' surprises that result in delays   permits.
 and bad feelings on all sides.

6. HCP mitigation programs will be as    Presley's Environmental Trust
 varied as the projects they address.     has a professional monitoring
 Some will be simple while those for      program and will report
 large-scale, regional planning efforts   annually to all interested
 may be quite complicated. There are      agencies. Despite complying
 few ironclad rules for mitigation        with this (and all other)
 programs but make sure they address      requirements, the Service
 specific needs of the species involved   refused to even consider
 and that they are manageable and         Presley's permit application.
 enforceable. A monitoring plan should
 be developed that establishes
 reporting requirements, biological
 criteria for measuring program
 success, and procedures for addressing
 deficiencies in HCP implementation.

7. Service Field Offices and Regional    Presley could not locate any
 Offices must coordinate regularly        one person in the Service who
 throughout the HCP process and work as   would take responsibility for
 a team, not as isolated, separate        making a decision or who could
 players. This is essential to ensure     negotiate a mutually
 that FWS or NMFS, as applicable,         beneficial resolution.
 provide consistent, dependable
 assistance to the applicant in
 developing the HCP and that internal
 differences in approach are resolved
 prior to the submission of an HCP
 proposal to the Regional of flee for
 formal processing.

8.                                       ...............................

9. Make sure the Services' section 7     Not only did the Service not do
 obligations as they apply to issuance    this, but when the ACOE denied
 of a section 10 permit are explained     them a section 7 consultation,
 to the permit applicant(s) and that      we believe Service personnel
 section 7 considerations are             contacted a special interest
 introduced into the HCP from the         group and urged them
 beginning of the planning process.       (successfully) to sue the ACOE
 Compliance of the HCP with section 7     and Presley in an attempt to
 and 10 of the ESA should be regarded     stop the project.
 as concurrent, integrated processes,
 not as independent and sequential.

10. The activities addressed under an    No action was taken by the
 HCP may be subject to Federal laws       Service.
 other than the ESA, such as the
 Coastal Zone Management Act,
 Archeological Resource Protection Act
 and National Historical Preservation
 Act. Service staff should check the
 requirements of these statutes and
 ensure that Service responsibilities
 under these laws, if any, are
 satisfied, and that the applicant is
 notified of these other requirements
 from the beginning. Service staff
 should, to the extent feasible for all
 HCPs other than low-effect HCPs,
 integrate analysis done in compliance
 with other environmental and cultural
 review requirements into the NEPA
 analysis prepared for the proposed HCP.

11. Work with the permit applicant in    No action was taken by the
 good faith but ensure that the HCP       Service.
 established clearly measurable and
 enforceable compliance standards,
 including written documentation of all
 applicable biological results

12. Once an incidental take permit has   The Service waited until
 been issued, monitor permit              grading had begun to allege
 compliance, and make sure monitoring     that a ``take'' had occurred
 activities are conducted and             and sent enforcement staff on
 monitoring reports are submitted as      an all day site investigation.
 defined by the HCP. Develop tracking     Over a month later, and only
 and accountability system for issued     after Presley consulted with
 permits. Report all violations of        Department of Interior
 permit conditions to the appropriate     officials, did the Service
 law enforcement personnel.               conclude that there was no
                                          basis for a section 9 action.
                                          Even so, the project is still
                                          at a full stop because Service
                                          officials have not informed
                                          the City of San Jose which
                                          refused further grading
                                          permits after threats from
                                          USFWS.
------------------------------------------------------------------------
1 November 1996 ``Endangered Species Habitat Conservation Planning
  Handbook'', published by the U.S. Fish and Wildlife service and
  National Marine Fisheries Service.
2 Based upon notes and correspondence between applicant, applicants
  legal counsel and consultants, and the Service.

                               __________
 Statement of Brooke S. Fox, Director, Open Space and Natural Resources
    Mr. Chairman, and Members of the Subcommittee, my name is Brooke 
Fox and I am the Director of Open Space and Natural Resources for 
Douglas County, Colorado. I am honored to be here today on behalf of 
the Douglas County Board of Commissioners to discuss our experience 
with the Endangered Species Act (``ESA'') and habitat conservation 
plans (``HCPs'').
    When I spoke with your staff person prior to coming out here, we 
talked a little bit about Douglas County's experience in dealing with 
the Fish and Wildlife Service, and what we have gone through in 
preparing our county-wide habitat conservation plan to address the 
Federal listing of the Preble's meadow jumping mouse as a threatened 
species. I explained that we probably did not have as many ``war 
stories'' as some, because we were just beginning the process of 
developing an HCP. ``After all,'' I said, ``the mouse has only been 
listed for about a year and a half.'' Although we both laughed, the sad 
reality is that we are no where close to having our county-wide HCP 
approved. This fact lead me to think about the three things that have 
affected us most when dealing with the Endangered Species Act: time, 
expense, and lack of common sense.
    While those three factors will be the focus of my testimony today, 
allow me to give a little background on Douglas County. Douglas County 
is located between two major metropolitan areas in Colorado: Denver and 
Colorado Springs. The County is said to be one of the fastest growing 
counties, by percentage growth, in the U.S. Despite the enormous growth 
that is occurring in our county, we have some of the most beautiful 
rural landscapes along the Front Range of Colorado. Douglas County is 
very conservative politically, and at the same time, our citizens and 
our elected officials are dedicated to protecting our unique landscape 
and wildlife habitat. In fact, our voters passed a ballot initiative in 
1994 to tax themselves to preserve open space, wildlife habitat, and 
agricultural land.
    Despite the commitment of the County to preserve our cherished 
natural resources, many are bewildered by the time, expense, and 
ultimately the wisdom or need for preserving habitat for a mouse. The 
County Commissioners have experienced the full range of emotions on 
this issue: disbelief, fear, anger, frustration, humor and finally 
resignation. After reviewing the listing decision with our attorney and 
biological consultant, the Commissioners resigned to the fact that the 
most logical way to proceed was to develop a habitat conservation plan. 
The County HCP will not only cover county-sponsored activities (such as 
building and maintenance of trails, roads, bridges, managing open 
spaces, and constructing county facilities), but we will also attempt 
to work with other groups and individuals (e.g., towns, metropolitan 
districts, ranchers and farmers, State Parks, Division of Wildlife, 
utility companies and others) to cover activities with low or moderate 
impacts on the habitat.
    With that brief background, let me talk about timing, expense and 
common sense. In expressing my concerns, I would like to make sure you 
understand that my remarks are aimed at the constraints of the 
Endangered Species Act and not at the individuals at the FWS with whom 
we work.
    First, timing. Again, it has been a year and a half since the mouse 
was listed as a threatened species. Secretary Babbit came to Colorado 
to announce the listing of the mouse in May 1998, and committed during 
his visit that a 4(d) Rule would be issued ``before the snow melted on 
the Rockies.'' The 4(d) Rule was intended to address certain activities 
and clarify what was and was not a prohibited ``take'' of the mouse 
during the interim time period before regional and subregional HCPs 
were developed. Lucky for Secretary Babbit that we do have some 
glaciers in the Colorado Rockies. The 4(d) rule has yet to be 
finalized, and in fact the FWS is contemplating reproposing the rule in 
November. Thus, the regulated community has had absolutely no 
regulatory relief (or even clarification as to what is or is not 
allowable conduct). Until something changes, each and every action that 
may potentially impact mouse habitat must be reviewed by FWS.
    This brings us to the issue of insufficient FWS staff resources 
available to review and evaluate project proposals which may impact 
mouse habitat. There are two individuals assigned to work on mouse 
issues. One works on Section 7 consultations (8 to 10 have been 
processed this year, with 30 to 40 in the works), and reviews mouse 
presence/absence reports (over 400 reports filed in 1999). The other 
employee is the only HCP specialist in the Colorado Field Office, and 
is working on at least 6 sub-regional HCPs (county-wide HCPs such as 
our's) and 6 to 10 individual HCPs that have been filed to date.
    Only two HCPs have been noticed for public review and both are in 
Douglas County. The first was for a ``low effect'' incidental take 
permit for one of our trail projects. The property where this trail 
project is located was purchased with the intent to preserve the 150 
acres for the mouse and other wildlife while providing some limited 
trail access. The total impact to mouse habitat was a grand total of 
400 square feet, but we are preserving 150 acres for open space. We 
filed our HCP in March of this year--we have just received the permit 
last Thursday. Because of the mouse however, Douglas County is 
suspending all trail construction on our previously planned regional 
trail systems until either our county-wide or a trail specific HCP is 
developed.
    The other permit request is from Robert Hier and Hal Gannon, 
private developers who have lived in Douglas County their entire lives. 
Bob and Hal were ready to break ground on their business park project 
in January. They had already put in a sewerline to the project when 
they became aware that they may have a potential conflict with the ESA. 
On advise of their attorney, the two businessmen approached FWS with 
the intent of doing the right thing and working through the issue 
together. On April 15, 1999, after months of delay, FWS issued Bob and 
Hal the first Section 9 fine issued in the State of Colorado for 
``activities that resulted in disturbance of previously undisturbed 
areas'' after the listing of the PMJM as a threatened species. With the 
delays and uncertainty of whether the business-park could be built, 
over $1 million in contracts for office space have gone away. FWS just 
issued a notice of availability and request for an incidental take 
permit on October 5.
    The second issue is expense. As public servants we obviously have 
to justify our expenditures to the public. Even though we have dealt 
with the ESA for a couple of years, it is one of the most costly 
Federal law we have had to comply with. To date, Douglas County has 
expended approximately $100,000 in funds for legal and technical 
expertise from outside consultants. I spend at least 50 percent of my 
time dealing with ``the mouse issue.'' In addition, the County has 
expended approximately $375,000 to preserve properties that will 
directly benefit the Preble's meadow jumping mouse and its habitat. We 
anticipate that the development of our county-wide HCP will take at 
least 2 to 3 years, at an estimated cost of an additional $250,000 to 
$350,000. Keep in mind.that this is for one species, and that $800,000 
just gets us to the table with FWS. Our biggest fear is that after we 
have spent those funds and proceed to negotiate a favorable HCP, the 
FWS will say, ``Sorry but we don't have the funds to complete our NEPA 
requirements.'' In fact, we have been told by our local FWS 
representatives that given their current funding scenario, that is 
precisely what may happen.
    Talk about unfunded mandates!
    My third issue is Common Sense. There are many areas in which the 
ESA does not allow common sense to prevail. For example, Section 9's 
take prohibition does not distinguish between essential populations and 
outlying populations or individuals, and so, an isolated population 
receives the same protection as larger more sustainable populations. 
This issue can be addressed in a regional or subregional HCP. However, 
absent our county-wide HCP, we and other individuals are having to 
address all populations equally for any activity impacting habitat 
before the overall HCP is negotiated.
    On a related issue, we hope to work with FWS to create incentives 
to allow preservation of occupied mouse habitat as a primary mitigation 
strategy. The mouse exists in Douglas County precisely because we have 
large amounts of high quality habitat. Under current guidelines 
proposed in the draft 4(d) rule; however, the ratio of 10 to 1 for 
preservation actually provides a disincentive to preserve this occupied 
habitat and an incentive to try to restore or enhance more ``marginal 
area.'' Douglas County is in the position of having an enormous amount 
of high quality habitat with a lot of mice. We have very little habitat 
that can be enhanced, restored or created. There is no scientific 
evidence addressing the success of enhancing, restoring or creating 
habitat for the mouse. Rather than imposing onerous and arbitrary 
preservation ratios that will yield questionable benefits, common sense 
tells us that removing threats to and preserving high quality habitat 
is the best strategy for ensuring the long-term viability of the mouse.
    Because Douglas County has so much good habitat and so many mice, 
it seems common-sensical that the stewardship practices employed by the 
County and its residents are consistent with preserving the mouse. If 
we can keep ranchers on the land, continue our good land planning 
practices and preserve open space, Douglas County will preserve the 
mouse. It is a shame that we have to spend so much time and money 
simply to put those ongoing practices into a language that the Federal 
Government understands.
    Another common sense issue has to do with the wisdom of protecting 
subspecies of otherwise abundant species. We have recently become aware 
of another species of concern in our area. We have been informed by a 
biological expert that while the species itself is quite prevalent, 
populations is often become isolated by natural boundaries. Once 
isolated they cannot breed. In our situation, we end up with what may 
be one subspecies on the north side of a creek and a separate 
subspecies on the south side. I question whether we should be 
protecting each and every subpopulation of these kinds of animals.
    In closing, we are concerned by the time it takes to develop, 
negotiate and get approval for HCPs. We are concerned by the unfunded 
cost burden the Act places on local communities and individuals. And, 
finally, we believe the ESA does not take into consideration on-the-
ground, common sense approaches to species conservation.
                                 ______
                                 
   Statement of James E. Moore, Public Lands Conservation Coordinator
    Mr. Chairman and members of the Committee, good morning. My name is 
James Moore, formerly the Desert Tortoise HCP Coordinator for the 
Nature Conservancy of Nevada. Thank you for the opportunity to address 
this committee on the case study of the Clark County, Nevada Habitat 
Conservation Plan for the Desert Tortoise.
    As you have heard from Michael O'Connell of our California office 
in July of this year, The Nature Conservancy has been involved in 
conservation planning under the Endangered Species Act (ESA) since 
Section 10(a) was authorized in 1982. We have played a major role in a 
number of HCP processes, including in Coachella Valley, California; 
Balcones Canyonlands in Texas, the Natural Community Conservation 
Planning Program in Southern California and the Clark County, Nevada 
example which I will address today. I would like to emphasize that this 
testimony reflects my experience with the development and 
implementation of the HCP case study in the Las Vegas area and does not 
necessarily reflect the views or opinions of The Nature Conservancy as 
an organization toward the larger question of the values or 
shortcomings of HCPs in general. I believe Michael O'Connell did a more 
than adequate job of discussing the scientific merits of current HCP 
policy.
                            a brief history
    In the late 1980's the economy of southern Nevada was booming, with 
an average of between 5 and 6 thousand people moving into the Las Vegas 
Valley every month. In August 1989, the Mojave population of the desert 
tortoise was listed by emergency rule as endangered and by final rule 
as a threatened species in April 1990. Under Section 9 of the 1973 
Endangered Species Act (ESA) no take of the desert tortoise or its 
habitat could occur on private lands. Much of the private land in the 
Las Vegas Valley was, and is to this day, desert tortoise habitat. The 
surging Las Vegas economic train threatened to derail over an innocuous 
herbivorous reptile on the tracks. Numerous construction plans and 
commitments for large-scale projects such as school construction, flood 
control projects, and master-planned communities were delayed awaiting 
the outcome of court cases and appeals of the emergency listing.
    It was in this atmosphere of conflict that a little known provision 
of the ESA was brought into play: the Section 10(a) allowance for both 
scientific take and incidental take permits could be used by qualified 
private landowners who adequately mitigated for the allowed take during 
the course of otherwise lawful activities, such as land disturbance 
associated with construction projects. A potential solution was set in 
motion.
    The Nature Conservancy had recently participated in a similar 
situation in the Coachella Valley outside of Palm Springs, California 
with the Fringe-toed lizard in the midst of that rapidly developing 
resort area. The Conservancy assisted State and Federal agencies and 
private landowners to create and implement a successful conservation 
program under the auspices of the Section 10(a)1(B) amendment of the 
ESA--more commonly referred to as an incidental take permit accompanied 
by a Habitat Conservation Plan (HCP). Following this example, Clark 
County, Nevada took the lead on resolving the desert tortoise listing 
conflict and enlisted the aid of The Nature Conservancy to provide 
recommendations and environmental/scientific input into the development 
of an HCP to solve the needs of private landowners in the Las Vegas 
Valley. It was at this time that I was hired as the Desert Tortoise HCP 
Coordinator for the Conservancy.
    The first order of business was to assemble a Steering Committee of 
affected parties--stakeholders representing a diverse array of land 
uses and landowner issues in desert tortoise habitat. Livestock 
ranchers, miners, off-road vehicle enthusiasts, hunters, desert 
tortoise interest groups, and national environmental groups, together 
with private property owners, representatives from four cities, and 
both State and Federal land and wildlife management agencies convened 
for some tension-filled initial meetings. Land use rhetoric and 
entrenched positions abounded on all sides while the group sought a 
common direction. This seemingly impossible task fell on the skilled 
facilitator Paul Seizer, also involved in the Coachella Valley HCP, to 
set the legal sideboards and mold this dynamic group into a 
coordinated, constructively engaged, body. Without a strong, personable 
facilitator the process would have undoubtedly strayed and 
disintegrated.
    The uncertainties inherent in embarking on this relatively new 
provision of the ESA attracted much scrutiny from environmental 
activist groups who wished to insure that a low standard was not set by 
this HCP. The projected lengthy timeframe required to develop a habitat 
conservation plan for a 20- or 30-year period led the group to submit 
an application for a short-term, 3-year HCP. During this time a long-
term HCP would be developed using lessons learned from the short-term 
experience.
    The shorter timeframe of the 3-year HCP also provided the more 
skeptical environmental groups with some assurances that take would be 
very restricted. Only a certain number of acres (22,352) of desert 
tortoise habitat and a limited number of tortoises (3,710) could be 
disturbed during the course of otherwise lawful activities under the 3-
year permit. In exchange for this limited take, mitigation would occur 
on public lands where the majority of the best examples of viable and 
protectable tortoise habitat remained, at a ratio of roughly 20:1 for 
conserved habitat acreage to disturbed habitat. A ratio of 20:1 was an 
astounding achievement for what amounted to an experiment in building 
local government, State and Federal agency partnerships in order to 
resolve a private property issue in the still-wild West.
    Some of the more notable accomplishments of the Short-term HCP 
were: the purchase and retirement of five livestock grazing permits 
from willing-seller ranchers that encompassed over a million acres of 
public lands; the transfer of competitive off-highway vehicle racing 
out of priority conservation areas and into areas less ecologically 
sensitive; the designation of roads throughout the conservation area as 
open or closed to reduce fragmentation of desert tortoise habitat and 
the likelihood of vehicle-caused tortoise mortality; the initiation of 
a tortoise relocation program to place tortoises removed from 
developing lands back into previously tortoise-depleted areas of the 
Mojave Desert; the creation of an innovative public information 
campaign; the hiring of extra law enforcement rangers for the Bureau of 
Land Management; the reliable funding of public lands management 
activities for the benefit of the desert tortoise; and the initiation 
of a highway fencing program to prevent further roadkills of tortoises 
in conservation areas bisected by heavily traveled highways.
    One by-product of the sometimes tedious meetings during the 
development and implementation of the Short-term HCP was the 
development of trust among the diverse stakeholder representatives. 
While very few converts were made from one side to the other, our 
positions were well understood and respected. Subsequent discussions 
and consensus-based decisions became less contentious and more 
productive since we knew each other's bottom lines. This burgeoning 
trust among the participants led to a much more productive process of 
developing the Long-term HCP now known as the Clark County Desert 
Conservation Plan which is currently the largest Section 10 permitted 
conservation plan in the country. This plan addresses the human land 
uses, land ownership and conservation needs of the desert tortoise 
across roughly 5.6 million acres of mostly public land.
    The successful transition from Short-term to Long-term in the mid-
1990's caused some key stakeholders, such as the Southern Nevada Home 
Builders and the Clark County government to ask ``what might be next on 
the horizon, in terms of future listings, and, what could we do to head 
those off now?'' The answer to those questions has been a now 4-year 
long process of developing the Multiple Species Habitat Conservation 
Plan (MSHCP). In addition to the desert tortoise provisions contained 
in the Desert Conservation Plan, this ambitious program is seeking 
Section 10 coverage for an additional listed bird species and Candidate 
Conservation Agreements with Assurances for another 77 species which 
could conceivably become listed if current habitat impacts remained 
unabated throughout the County. Many uncertainties exist for those 
additional species and the MSHCP proposes to integrate a strong 
adaptive management component into its conservation management 
recommendations. But, under this plan, conservation benchmarks are few. 
Take, however, is certain and the habitat conversion final. Much of 
this plan relies heavily on trust that the monitoring program will be 
sensitive enough to detect when management assumptions go awry for one 
or more of the covered species. The appetite of landowners, 
particularly the more politically powerful ones, for future adaptations 
of the conservation management provisions and mitigation measures is as 
yet untested. How flexible they will be should the regulatory 
environment change in response to unforeseen circumstances that 
adversely affect the covered species remains to be seen.
    The jury is still out on this Multiple Species Plan as to whether 
it will pass the ``environmental smell test''--that is, will the 
permit-covered species be better off under the provisions of this plan 
than they would be in the absence of such a coordinated and well-funded 
program? Time alone will have to tell us whether we've done an adequate 
job of integrating what we know now about the species and their habitat 
and whether we have built in enough flexibility to incorporate what we 
will undoubtedly learn about the complex interrelationships of the 
species. The pressures of development continue to this day with little 
slowdown in the rate of new residents moving into the Las Vegas Valley 
and surrounding communities. Habitat continues to fall under the 
bulldozer for new master-planned communities and hastily constructed 
schools to accommodate the incredible influx of the human population. 
But this construction is also the funding mechanism for an 
extraordinarily proactive conservation plan in one of the fastest 
growing communities in the United States.
    Thank you for the opportunity to present this successful case study 
to the Committee. I look forward to a thought provoking and challenging 
discussion.
                 clark county-specific lessons learned
     The Clark County Desert Tortoise HCP is ranked as the 
premier example of public participation in terms of crafting the terms 
and conditions of the conservation mitigation. While the time required 
to develop the Short-term and Long-term plans was relatively time 
consuming (2 and 5 years respectively), the resistance to the proposed 
mitigation measures was effectively defused by the large amount of 
public input throughout the process.
     One can either invest in the time during the process to 
avoid conflicts and public backlash, or pay the price afterwards when 
the plan comes under fire and the process is set back several more 
years trying to repair damaged public relations.
     A well designed and well-informed Recovery Plan can set 
the parameters (sideboards) within which an HOP can be tailored to fit 
the particular needs of the affected landowner(s) or local government, 
allowing the requisite flexibility, while insuring basic ecological 
standards are retained throughout the process.
     A skilled and apparently neutral party should be retained 
to facilitate the larger, more complex HCPs--trust is everything in 
keeping parties at the table, but equally important is maintaining the 
``balance of terror'' among the stakeholders (Reilly, 1997).
     Service participation during the course of crafting HCPs 
has been inconsistent from plan to plan, and even within plans. This 
has led to apparently contradictory decisions as to the adequacy of 
mitigation measures, and breeds distrust among HCP participants. No 
applicant should be surprised at the time of submission of a 10(a) 
permit application and accompanying HCP. If the Service has done its 
job the applicant(s) will know what will be required to meet the 
Service's approval. This can also be accomplished without direct 
participation in the meetings as long as the overarching conservation 
requirements are explicit and unambiguous in the Recovery Plan for the 
listed species.
     For a species such as the Mojave desert tortoise where 
nearly 90 percent of its habitat exists on federally managed public 
lands, it is important that the Federal Government play an equitable 
role in conserving its habitat. Private landowners should not shoulder 
the ``burden'' of conservation while critical habitat on public lands 
continue to be degraded through unimpeded multiple uses such as mining, 
livestock grazing, off-highway vehicle recreation, power and utility 
corridors and road construction.
     Section 7 of the ESA and Section 10 should play parallel 
and complimentary roles in achieving recovery of the listed species or 
prevention of further population and habitat declines for candidate 
species.
     Early buy-in and shepherding of other interests by the key 
stakeholder, Southern Nevada Home Builders, was probably integral to 
the success of acceptance of the mitigation terms in the Short-term 
HCP.
     The rapid growth in the Las Vegas Valley in the late 80's 
and early 90's provided not only the pressure for developing and 
maintaining a successful HCP, but also provided the crucial funding 
stream through impact fees charged for every acre of land that was 
developed during that period. Not all communities and local governments 
have the ironic ``luxury'' of such an economic boon to drive the 
process.
     The health of the southern Nevada economy, coupled with 
habitat conservation occurring on public instead of private lands, 
allowed for a good mix of responsibilities between the private and 
Federal entities to mitigate for the regulated take of the desert 
tortoise.
     Benchmarks of mitigation and conservation for the listed 
species in an HCP insure that ``take'' of the species and its habitat 
remains commensurate with on-the-ground conservation of critical 
habitat. After all, take is usually permanent and irreversible, whereas 
mitigation and conserved habitat can always be further eroded over time 
through gradual policy concessions, allowed uses of the land, and 
through unforeseen and uncontrollable stochastic events (natural 
disasters, disease, global climate change).
     The environmental ``smell test'' for HCPs should be the 
question posed: Is the listed species better off in the presence of a 
coordinated conservation effort with assured funding (the HCP) than it 
would be under a status quo situation where it is ``protected'' by a 
minimally funded ESA with no take allowed? If the answer is ``yes'' 
then an HCP is on the right track and should be strongly supported, 
although continuously monitored. If ``no'' then an HCP is not 
appropriate and should not be negotiable.
     There is a fine balance that must be maintained in the 
integration of science into an HCP--the landowner is seeking a 
predictable and assured environment into a set period of the future, 
whereas science dictates, and the natural world effectively requires, 
an adaptive approach to inevitably changing situations for the species 
and their habitat. The degree to which ``adaptation'' requires changing 
the protective provisions to the landowner will determine whether an 
HCP, or any of the new ESA policies such as Safe Harbor or Candidate 
Conservation Agreements with Assurances, remain attractive options to 
pre-listing habitat destruction, litigation, or other relief available 
to a private landowner.
     Multiple species HCPs should be encouraged wherever 
possible, but must be tempered with the realization that the time 
required to develop such a plan will be concurrently lengthened. The 
habitat conservation measures for one species may not satisfy the basic 
needs of other currently or potentially listed species. Therefore, the 
proposed mitigation may not be complimentary but additive in terms of 
acreage required or types of land uses that can or cannot be allowed 
under the provisions of an HCP. This will inevitably affect the degree 
of stakeholder ``buy-in'' for the larger, publicly driven planning 
processes.
     HCPs and CCAs represent an insurance policy against the 
unpredictable future for landowners who require or desire a stable 
planning horizon with fixed costs and known requirements for 
mitigation.
     Monitoring in and of HCPs should take place at many levels 
simultaneously to assure adherence to the intent, the terms, and the 
conditions that generated them. This includes monitoring the 
administration of the planning process and expenses incurred by the 
plan proponent; monitoring the species and its habitat for population 
health and stable or improved condition in light of the HCP; and 
monitoring the effectiveness of management in accomplishing the 
biological goals of the HCP program.
                general observations and recommendations
     Habitat Conservation Plans are important relief mechanisms 
for private property owners caught up in federally-listed species 
habitat protection via the Endangered Species Act, and as such, should 
persist as an option for landowners in the future.
     HCPs cannot be a ``one-size-fits-all'' program due to the 
peculiar life histories associated with the specific animal for which 
they are developed, as well as the unique needs of each HCP proponent.
     Flexibility in designing HCPs insures they remain an 
attractive option for private landowners, but the limits on the degree 
of flexibility must be set by the ecological tolerances (e.g. the 
habitat needs) of the species which they (the HCPs) are addressing.
     As long as there is another cheaper, quicker option that a 
landowner can pursue, they probably will because HCPs are high 
maintenance beasts, depending on the degree of public participation and 
scientific oversight required.
     HCPs are particularly appropriate for wide-ranging listed 
species for which numerous areas of habitat can be evaluated for not 
only ``take'' but also for which several options exist for 
conservation.
     Conversely, HCPs are inappropriate for narrow endemics--
situations where a one-and-only location exists for a distinct listed 
species. There are no other alternatives for habitat protection and 
numbers are typically perilously low, not conducive to regulated 
``take''.
     It is equally important to avoid playing the ``numbers 
game'' in either listing decisions or determining levels of take 
because it is more germane what is happening to the habitat of the 
listed species in the design of mitigation actions or in proposed 
``reserves''. Analogy of an airplane where the determination has been 
made that the bolts are degrading rapidly--it is less important how 
many of them there are--but more important to determine what can be 
done to remedy the situation (recovery strategy).
     Individual HCPs can be negotiated between single 
landowners and the Service without public input or oversight as long as 
there is an overarching recovery strategy in place that the small or 
single landowner HCPs contribute toward and that do not preclude or 
impede attainment of the Recovery goals.
     While there is currently no requirement for HCPs to 
achieve or attain ``Recovery'' of the listed species, they should be 
designed to progress toward that goal (cumulative progress).
     The reluctance of individual landowners negotiating HOP 
agreements with the Service in public forums where the interested 
public are really not ``affected stakeholders'' can be effectively 
addressed by the Service developing the overarching recovery strategy 
in a public forum, with science playing an influential role, but the 
general conservation strategies crafted with interested party input. 
This highlights the importance of the Service placing a priority on 
developing Recovery Plans for any listed species. The absence of 
sufficient data to determine what would be required for ``recovery'' of 
a species calls into question the adequacy of data to support the 
listing in the first place.
     The desire to maintain or enhance the ``user-
friendliness'' of the ESA in order to preserve its very existence, 
while a noble and probably highly practical goal, must not compromise 
the reason the Act was created in 1973--to protect this Nation's 
wildlife species from the eternity of extinction. The concern of many 
environmental groups is that HCPs have become so diverse and are 
proliferating at such a rate that it is impossible to effectively 
monitor their compliance to the aforementioned ``smell test'' of basic 
ecological benefit to the listed species.
     The key to maintaining the balance of responsibility of 
the Federal Government in terms of implementing the conservation 
provisions of largely private-land HOP mitigation strategies should be 
a fully funded and obligated Land and Water Conservation Fund (LWCF). 
This LWCF should be protected from the temptations to solve other, 
perhaps more politically popular or expedient, programs from budget 
dipping and creative bookkeeping at the expense of protecting this 
Nation's natural landscapes and imperiled species. To paraphrase 
Benjamin Franklin, a penny spent on proactive habitat protection for 
species and ecosystems is a wise expenditure versus the dollars that 
will be required to try to ``save'' species once they reach the 
endangered species list.
                                 ______
                                 
       Statement of Steven P. Quarles, Counsel, American Forest 
                          & Paper Association
                            a. introduction
    Thank you for the opportunity to appear before you today. I am 
testifying on behalf of the American Forest & Paper Association 
(AF&PA). The focus of my testimony is the process by which private 
landowners can achieve limited immunity from the prohibition in section 
9 of the Endangered Species Act of 1973 (ESA) against the ``take'' of 
any endangered or threatened species. In that process, the landowner 
submits a conservation plan--more commonly called a Habitat 
Conservation Plan or HCP--to the Fish and Wildlife Service or National 
Marine Fisheries Service that describes the land use activities the 
landowner wants to conduct and the mitigation, funding, and monitoring 
that the landowner intends to provide to protect the endangered or 
threatened species that could be affected by those activities. If the 
HCP meets the mitigation, funding and other requirements of ESA 
Sec. 10(a)(2) and is approved by the Service, the Service issues to the 
landowner an Incidental Take Permit (Permit). The Permit authorizes the 
landowner to engage in the activities covered by the HCP and removes 
the liability of the landowner for taking members of the species to 
which the HCP applies when the taking is incidental to those activities 
and the landowner is conducting the mitigation and other species-
protection actions set forth in the HCP.
    AF&PA strongly supports voluntary habitat conservation planning on 
private lands under the ESA. The obligation of private landowners 
toward endangered or threatened species imposed by the ESA is typically 
modest; in most circumstances, it requires no more than the avoidance 
of taking of individual members of those species. Although the 
obligation is modest, the consequences for failing to meet it can be 
severe--injunctions against productive use of the land, fines, and 
imprisonment. Worse, any actions landowners might undertake on their 
own to fulfill that no-take obligation and avoid those consequences--
even if those actions severely curtail use of the property--come with 
no guarantee that they will be successful.
    The habitat conservation planning process provides an 
extraordinarily valuable mechanism for the landowner to secure that 
guarantee that he or she can undertake the desired land use without 
risking those consequences and for the government to obtain far greater 
voluntary species and habitat protection than would be achieved if the 
landowner pursues only take avoidance.
    AF&PA commends Secretary Babbitt and the Services for their support 
of the habitat conservation planning process. They deserve credit for 
recognizing how important that process could be for species 
conservation on private lands and for dedicating the resources and 
providing the energy to give it life. Yet, AF&PA is deeply concerned 
that, after a robust beginning, the process is losing focus and 
momentum. To make this voluntary process a truly successful and 
integral component of this Nation's dedicated effort to provide 
permanent protection to species at risk of extinction, it must provide 
to the landowner reasonable certainty at a reasonable cost and must 
meld scientific credibility with business or economic sensibility. 
Recent departures from these principles which I will discuss, if left 
unchecked, will significantly reduce the incentives for voluntary 
private contributions to species preservation.
                 b. american forest & paper association
    The American Forest & Paper Association is the national trade 
association of the forest, paper, and wood products industry. Our 
organization represents nearly 200 member companies and related trade 
associations which grow, harvest, and process wood and wood fiber; 
manufacture pulp, paper and paperboard from both virgin and recycled 
fiber; and produce solid wood products. Additionally, AF&PA represents 
a vital national industry which accounts for over 8 percent of the 
total U.S. manufacturing output. Employing some 1.6 million people, the 
industry ranks among the top ten manufacturing employers in 46 states, 
with an annual payroll of approximately $45 billion.
    Members of AF&PA have developed or are developing HCPs covering 10 
to 15 million acres throughout the United States. AF&PA has been active 
in the Endangered Species Coordinating Council--an organization of 
trade associations, companies, and labor unions seeking reauthorization 
and reform of the ESA. One of the Association's most critical 
legislative objectives is the strengthening of the habitat conservation 
planning process by providing it with a more secure statutory 
foundation and removing the recently surfaced constraints on its 
effectiveness. Several members of AF&PA are also members of the 
Foundation for Habitat Conservation. Portions of my statement are 
shamelessly borrowed from the May 26, 1999, testimony of Jim Johnston, 
the Foundation's counsel, before the Committee on Resources, House of 
Representatives.
      c. the value of habitat conservation planning under the esa
    According to the General Accounting Office, over 70 percent of 
species listed as endangered or threatened under the ESA have over 60 
percent of their habitat on private or other non-Federal lands, while 
over 35 percent of the listed species are completely dependent on such 
lands for their habitat. Permits under ESA Sec. 10, principally 
Incidental Take Permits, are the only mechanisms currently available 
that provide incentives to the private sector to protect threatened and 
endangered species on those lands. Without the ESA-related certainty 
that the government can offer a private landowner through Incidental 
Take Permits, few if any landowners could afford, or justify, the broad 
and meaningful commitments of land and resources that have been and are 
being made in HCPs. And, for the Services, the alternative is a 
regulatory enforcement program that must be implemented on a property-
by-property basis. From either standpoint--most efficient use of 
government resources or participation of the greatest number of 
landowners--the habitat conservation planning process is advantageous.
    The value of HCPs can be measured both in amount of land covered 
and results produced. As I've said, millions of acres are now included 
in HCPs that were negotiated, and can be enforced, by the government. 
Absent HCPs, the land subject to government oversight would be limited 
to the few properties that the Services' officials could find time to 
visit. The vast acreage under HCPs is actively managed to provide 
protection or mitigation for listed species. Absent HCPs, officials of 
the Services are likely to visit only those lands that are managed 
without any consideration for listed species and where serious threats 
to their existence are thought to occur. Mostly, fundamentally, 
landowners' efforts to prevent ``take'' provide only limited protection 
to existing habitat by avoiding, and perhaps leaving buffers around, 
nesting, breeding and other areas where significant behavior occurs. 
This typically protects identified species' members presently occupying 
the habitat, but does not ensure the habitat's viability for future 
generations or greater numbers of the species. Indeed, the land may 
frequently be managed to avoid growing any new habitat, by harvesting 
trees in short rotations or not resting cropland for extended periods. 
The habitat conservation planning process removes the ``take'' 
prohibition's disincentive to enhance existing habitat or to allow non-
habitat to grow into habitat. Most HCPs for forested land provide for 
the growth of new habitat. When that cannot be accomplished, HCPs 
typically require the acquisition and permanent protection of existing 
habitat. The habitat conservation planning process results in the 
provision of more and better habitat, and the thoughtful accommodation 
of species protection with reasoned development.
        d. threats to the habitat conservation planning process
1. Overview
    Recent experiences of members of AF&PA who are attempting to 
develop HCPs--even those members that have had great success in 
securing Incidental Take Permits in the past--provide persuasive 
evidence that the habit conservation planning process has lost much of 
the focus and momentum it once had.
    Our members are under no illusion that the process is easy or 
painless. Four and a half years ago, I presented testimony for AF&PA 
before this Committee that included a chart (attached) showing how much 
more costly and time-consuming, with many more procedural hurdles, was 
the process for obtaining incidental take permits for private 
landowners under ESA Sec. 10 as compared with the process for obtaining 
incidental take statements for Federal agencies under ESA Sec. 7. Those 
landowner burdens were imposed by statute. Yet, habitat conservation 
planning grew and flourished in the mid-90's because many landowners 
perceived the product--Incidental Take Permits--to be worth this 
relatively steep price in processing time and costs. The Services' 
dedication to make the habitat conservation planning process work 
produced policies and applied agency resources that made investment in 
the HCPs a good business decision for the landowners who could afford 
it.
    The strong cooperation between landowners and the Services in 
habitat conservation planning that developed during the mid-90's now 
appears to be dissipating. The policies that made the process workable 
are being challenged by litigation or eroded by newer interpretations 
or new policies of the Services. And the previous zeal within the 
Services to make successful this process to enlist private land in the 
species protection effort seems to have waned. The result is that a 
significant number of HCPs--certainly in terms of acreage--have reached 
a standstill. And many landowners, including members of the AF&PA, are 
questioning whether their continued participation in the habitat 
conservation planning process can be justified.
    The most significant problems experienced by landowners arise from 
debilitating process, excessive demands, and loss of certainty. They 
include:
     Loss of leadership and staff dedicated to processing each 
HCP.
     Increasingly lengthy timeframes for developing HCPs and 
issuing Incidental Take Permits.
     The too frequent inability of the Services to reach timely 
``closure'' on key issues and to avoid the reopening of already closed 
issues.
     Tremendous escalation in the already expensive cost of HCP 
preparation.
     The Service's encouragement of, but failure to support, 
multi-species HCPs.
     Increasing advocacy of standardized HCP provisions that 
sacrifice good science for administrative efficiency.
     Imposition of significant burdens, and obligations to 
achieve broad species' recovering objectives not applicable to private 
landowners under the ESA and beyond what is reasonably related to the 
landowner's future potential impacts on the species.
     Litigation and policies that have the potential to 
undermine the degree of certainty that is provided by the ``No 
Surprises'' Rule and is the prerequisite for voluntary landowner 
participation in the habitat conservation planning process.
     The failure of Congress or the Services to develop an 
effective, broadly used alternative or streamlined process to enable 
small landowners who cannot afford HCP preparation costs to receive 
incidental take permission.
2. Process Problems
    The first four bullets are matters of process. We perceive their 
cause to be partly a matter of management and partly a matter of 
resources. Much of the early HCP momentum-building was fueled by strong 
leadership within the Services. Leaders were chosen and empowered to 
oversee the processing of each HCP. Teams were appointed to facilitate 
that processing. Now even when leaders are appointed and teams 
assembled, they come and go. Some landowners have witnessed as many as 
three complete staff turnovers during the processing of their HCPs. 
Others have seen staff disappear for extended periods to work on other 
matters, including other HCPs, perceived to have a higher priority. 
Inevitably this means less ownership of Service personnel in the 
success of any particular HCP preparation process and often leads to 
duplication of effort and changes in direction.
    At a minimum, the duplication of efforts will involve the 
acquainting of new staff with the landowner's operations and landscape 
conditions. The changes in direction may be as serious as revisiting 
the applicable science or reviewing previously agreed upon management 
or mitigation measures, or may be as seemingly insignificant as 
choosing a new format for the planning document. But, whatever the 
duplication of efforts or changes in direction may be, the inevitable 
result is frequent delays and mounting costs.
    Worse, in some cases this lack of dedicated leadership and staffing 
results in a total failure to resolve critical issues. Landowners are 
told their HCPs are inadequate but then their requests to resolve the 
differences go unanswered. On occasion, instead of being informed on 
how to ``fix'' an already prepared HCP, landowners are advised to 
submit a new proposal with little or no guidance on how it should 
differ from the last one. HCPs in these circumstances are not just 
delayed; they ultimately may be abandoned by the Services, the 
landowners, or both.
    Unlike the process for preparing environmental impact statements 
under the National Environmental Policy Act, there is no strong ``lead 
agency'' approach that provides a single point of agency contact and 
ensures--or at least makes more likely--coordination among the various 
agencies that have direct or indirect jurisdiction over an issue, such 
as riparian management, to be addressed in an HCP. Too often the 
landowner finds that he or she must deal with each agency separately--
shuttling back and forth between agencies with no agency assigned, or 
even feeling, the responsibility to reconcile conflicting policy 
interpretations.
    Finally, that attached chart comparing the differences between the 
landowners' Incidental Take Permit process and the Federal agencies' 
Incidental Take Statement process presented to this Committee--years 
ago pointed out that the Statement process has deadlines required by 
ESA Sec. 7, while the Permit process has no mandatory deadlines 
established by statute or regulations. That issue has become 
increasingly significant as the delays mount and even processing 
schedules which the Services have informally negotiated with the 
landowners are broken, if not entirely ignored. Although the Services' 
``Habitat Conservation Plans'' Handbook calls for processing of even 
the most complicated HCPs in less than 10 months, processing periods of 
as much as 3 to 6 years are becoming more frequent.
    I know this may sound like a severe indictment of the Services' 
performance. However, as serious as these problems are, the Services' 
performance must be put in perspective in three ways. First, any new 
agency program progresses from its early years of individualized 
attention and pioneering zeal to its maturity when it integrated and 
competing with the agency's numerous other programs. We would argue 
that, if this is what is occurring here, it is premature. The habitat 
conservation planning program cannot become routinized; it still 
warrants the special care and nurturing due to a novel, and unproven, 
initiative. Second, these process problems are particularly visible 
because they are silhouetted so starkly against the background of 
extraordinary performance by the Services in the mid-90's. This is 
emphatically not a program so mismanaged that it deserves a failing 
grade. Third, the Services are clearly handicapped by the limited 
resources available to them to support habitat conservative planning. 
In its legislative efforts, AF&PA has supported a dedicated funding 
source to implement the ESA. Too much of the Service's funding is 
siphoned off to accomplish other ESA tasks for which the statute has 
imposed, and the courts have enforced, deadlines--including species' 
listings, critical habitat designations, and consultations.
3. Multi-Species HCP Problems
    For a number of years, the Services have advocated multi-species 
HCPs. This has the advantage of focusing on the most critical component 
of species' viability--habitat availability. It is most compatible with 
the increasing emphasis on the twin land management concepts of 
ecosystem management and protection of biological diversity to which 
the Services and Federal land management agencies adhere. It is also 
cost-saving, since the Services do not have to process new HCPs or 
amend existing, HCPs each time a new species is listed. It provides the 
landowners with greater certainty that their operations will not be 
disrupted and investments lost with future listings. Multi-species HCPs 
are particularly valuable for members of AF&PA because the forested 
landscape can and does support a multiplicity of species, and the 
entire landscape will be managed over the long-term.
    Yet, we find that the Services are frustrating their own objective. 
Far from fostering, they are discouraging, preparation of multi-species 
HCPs. The Services have begun to require such extensive data on each 
specific species that to be covered in a multi-species HCP becomes too 
expensive and time-consuming to be feasible. More landowners are now 
finding that eliminating species from their HCP proposals presents the 
only viable option. Single-species HCPs are becoming a matter of 
procedural necessity, even if, as a matter of science, they cannot be 
crafted to provide the same measure of protection for as many listed 
species as do multi-species HCPs.
4. Sacrificing Science to Process
    Several problems concerning the sacrifice of science to process may 
arise from the same urge to routinize habitat conservation planning 
about which I speculated earlier. One example is the tendency of the 
Services to adopt a ``one-size-fits-all'' or a ``comparative'' 
approach. In this approach, the Services attempt to apply automatically 
measures from one HCP to another. They may take what one landowner 
agrees to and make it the baseline for another. HCPs are voluntary and 
individual to each landowner. The landscape conditions are unique to 
each HCP. In these circumstances, ``boiler-plate'' measures, as much as 
they might contribute to administrative efficiency, are inappropriate 
and constitute bad science.
    Another administrative short-cut that ignores good science is the 
increasing use of mitigation ratios. Too often, the Services estimate 
the likely number of incidental takes and then set arbitrary mitigation 
ratios--typically so many acres to be dedicated or so much money to be 
paid for each projected take. Not only are the Services often overly 
conservative in speculating on a high number of takes, but they seldom 
provide any rational justification for the numbers chosen for the 
mitigation ratios.
5. Attack on Certainty
    Above all, the government must offer landowners a guarantee of 
certainty in the conservation planning process if it expects them to 
participate and undertake broad species protection measures on private 
lands. The ``No Surprises'' Rule provides that certainty and was the 
catalyst for the extraordinary growth in HCPs and Incidental Take 
Permits in the mid-90's. This Rule, however, is under attack from 
within and outside of the Services. It is not an exaggeration or too 
dramatic to say that, if the Rule falls, so does habitat conservative 
planning.
    The attack from outside the Services is mounted by citizen suits 
and centered in the courts. The ``No Surprises'' Rule is challenged 
directly in litigation filed in the Federal District Court in D.C. 
Three coalitions of landowners--public and private--with HCPs, 
including AF&PA, have intervened in that case to defend the Rule.
    Indirect litigation attacks on the ``No Surprises'' Rule are of no 
less concern. These attacks are grounded in the ESA Sec. 7 requirement 
that Federal agencies consult with the Services when undertaking 
Federal agency actions. The Services have determined that each time 
they issue an Incidental Take Permit they have committed a Federal 
agency action. They, therefore, must consult with themselves. We 
believe this self-consultation on HCPs is not required by the ESA. The 
language of and legislative history of the ESA strongly suggest that 
Congress intended consultations under ESA Sec. 7 and issuances of HCPs 
under ESA Sec. 10 to be separate, mutually exclusive processes. 
Congress included the same test under ESA Sec. 7 consultation as a 
separate condition for issuance if Incidental Take Permits under ESA 
Sec. 10; there would be no reason for Congress to have done that if an 
HCP had to undergo both the ESA Sec. 10 and ESA Sec. 7 processes. If 
the landowner received an Incidental Take Permit under ESA Sec. 10, 
what earthly good does it do him or her to also receive an Incidental 
Take Statement under ESA Sec. 7? As the attached chart shows, the 
Incidental Take Permit process is both duplicative of, and more onerous 
than, the Incidental Take Statement process. It makes little sense to 
force a landowner who has survived the Incidental Take gauntlet once to 
turn around and race right back through it again. Finally, the 
principal benefit for the Services of requiring HCPs to undergo ESA 
Sec. 7 consultation is that it allows the agencies to force private 
landowners to accept additional restrictions that Congress deliberately 
chose not to impose on the private sector--particularly restrictions to 
protect listed plants and designated critical habitat.
    Having said this, absent a change in the Services' interpretation 
or the law itself, landowners are faced with the prospect of 
consultation on their HCPs. This ESA Sec. 7 process currently poses the 
single biggest risk to the ``No Surprises'' Rule outside of the D.C. 
Federal District Court. Citizen suits have been brought under ESA 
Sec. 7 that, if successful, would erode the Rule. In one suit, on 
appeal to the Ninth Circuit, environmental plaintiffs successfully 
argued that an Incidental Take Permit applicant cannot continue to 
engage in any everyday management activity that alters habitat under 
ESA Sec. 7(d), a provision that prohibits the Federal agencies and 
applicants from making irreversible or irretrievable commitments of 
resources after initiation of consultation that would foreclose 
adoption of conditions on Federal agency actions. The plaintiffs and 
the district court reasons that such alteration--otherwise an entirely 
legal activity--would foreclose a possible alternative that called for 
that particular habitat to be left unaltered under the HCP. This 
litigation challenged a forestry HCP; under the logic of the ruling, no 
harvest activity could occur during consultation. Moreover, the court 
construed ``consultation'' as including the entire time period that the 
applicant and the Services work together on preparation of the HCP. 
Thus, under such an interpretation, a Permit applicant who engages in 
consultation would have to cease all operations on the land covered by 
the HCP proposal the moment the first contact is made with the Service. 
No prudent manager would risk the expense, uncertainty, and disruption 
that would accompany the habitat conservation planning process if a 
suit for an injunction under ESA Sec. 7(d) might succeed.
    Another line of attack on the No Surprise Rule using ESA Sec. 7--
this one supported by some officials in the Services--is that 
consultation must be reinitiated on an existing HCP whenever a new 
species is listed that is not covered by that document but arguably is 
present in the area to which it applies. That new consultation in turn 
can cause the imposition of a whole new set of constraints on the 
Permit holder that otherwise would be barred by the Rule. At a minimum, 
the argument could be made that, once again, the landowner must shut 
down operations to comply with ESA Sec. 7(d) during the entire time the 
reinitiated consultation is conducted. The Services' regulations do 
require that a completed consultation be reinitiated when certain 
circumstances are present (where agency discretion or control over the 
Permit holder is retained, and some new information or a new issue 
arises). One court recently interpreted these rules to hold that, as a 
general matter, the mere existence of an HCP and Incidental Take Permit 
does not give a Service sufficient discretion or control to require 
reinitiation of consultation on that HCP and Permit just because a new 
species is subsequently listed. There are, however, circumstances under 
HCPs where some agency discretion is retained. A good example of this 
are certain adaptive management provisions, which I will discuss later 
in this testimony.
    Erosion from the outside may be matched by decay on the inside 
since the Services seem intent on reinterpreting the ``No Surprises'' 
Rule in a manner that lessens its guarantee of certainty to private 
landowners. On June 17, 1999, the Fish and Wildlife Service promulgated 
a final rule that announces the government's intention to revoke 
Incidental Take Permits ``as a last resort'' if their continued 
operation is determined to result in likely jeopardy to any species 
covered by the Permits and the Service has not been successful in 
remedying the situation through other means. Our understanding of the 
``No Surprises'' Rule prior to this regulation was that the Service, 
not the holder of the Permit, was responsible for responding to a 
jeopardy situation. Even though the Service states that it expects 
revocation of Permits under this requirement to occur only in ``narrow 
and unlikely situation[s],'' if the jeopardy standard is interpreted 
liberally, the ``No Surprises'' Rule itself will be in jeopardy. 
Moreover, even if the Service interprets the jeopardy standard 
conservatively, this new revocation regulation provides an attractive 
opportunity for citizen suits against landowners whose operations are 
covered by Incidental Take Permits but are opposed by the plaintiffs.
    On March 9, 1999, the Services adopted a new policy on adaptive 
management which also may pose a threat to the viability of the ``No 
Surprises'' Rule. Landowners understand that the guarantee of certainty 
under HCPs is not boundless. AF&PA recognizes that adaptive management 
provisions are appropriate elements of many long-term HCPs. Adaptive 
management--through appropriate monitoring and a focused ``feedback'' 
mechanism--can result in more efficient and effective management 
techniques. It can also be very valuable if it is used as a method to 
resolve questions of science that could delay development of the HCP. 
It can ensure that mitigation under an HCP will provide the intended 
results by starting with reasonable operating assumptions and allowing 
for appropriate adjustments.
    However, we remain concerned that adaptive management can be 
misused. It can become an easy substitute for an HCP reopener clause 
and used to force the landowner to adopt new mitigation measures that 
undermine the ``No Surprises'' Rule's certainty or to call for the set-
aside of more land or for additional species protection expenditures 
directly contrary to the Rule. Moreover, it is also inappropriate for 
the Services, in the name of adaptive management, to insist on very 
stringent restrictions--using ``worst case'' assumptions--and then 
require landowners to pursue expensive research to ``prove'' the worst 
case scenarios incorrect. Finally, although adaptive management is 
dependent on monitoring, it is not appropriate to require landowners to 
perform or fund research. And the monitoring for which landowners are 
responsible should be focused on actual events that do occur. In short, 
just as the ``No Surprises'' guarantee is not boundless, so too bounds 
must be established for adaptive management. The Services must be 
judicious in their demands for adaptive management in HCP processing, 
or that concept will subsume all notions of certainty which the Rule is 
intended to provide.
6. Inappropriate Imposition of a Recovery Standard in the Habitat 
        Conservation Planning Process
    The language and legislative history of the ESA, Interior 
Department Solicitor's opinions, preambles to ESA-related rules, court 
opinions, Solicitor General's briefs before the Supreme Court, and the 
Services' own ``Habitat Conservation Planning Handbook'' have all 
categorically stated that recovery of endangered and threatened species 
is a responsibility of the government only and that the private 
landowner's single obligation is the avoidance of ``take'' of those 
species. AF&PA is concerned that this governmental responsibility is 
becoming a standard for approval of private landowners' HCPs.
    ESA Sec. 10 does establish conditions beyond ``take'' avoidance for 
issuance of Incidental Take Permits to private landowners, but those 
conditions stop well short of any obligation to ensure recovery. As I 
noted, one condition is the same as the standard for consultation under 
ESA Sec. 7--that is, not to jeopardize the continued existence of the 
species. A second condition is that the holder of the Permit must, ``to 
the maximum extent practicable, minimize and mitigate the impacts'' of 
the incidental takes which the Permit authorized. In other words, the 
mitigation burden imposed on each landowner in the habitat conservation 
planning process is intended to address the impacts of taking that 
would be caused by the landowner's future activities. We believe that 
ESA Sec. 10 is consistent with the Supreme Court's Dolan decision--the 
burden imposed on the applicant must be proportional to the impacts 
that would be authorized by the Incidental Take Permit. This 
proportionality concept is abandoned if Permit applicants are asked to 
assume responsibility for--and agree to correct--all landscape 
conditions that are believed to be inadequate, including conditions not 
caused by the applicants. Unfortunately, this is just what the National 
Marine Fisheries Service (NMFS) has done. It has insisted in the 
negotiations on a number of West Coast HCP proposals that the 
landowners commit to restoring ``properly functioning habitats.'' Under 
this standard, applicants are being asked to develop ``ideal'' habitat 
conditions, without regard to the extent of the impacts on covered 
species that the landowners' future operations would actually cause or 
to the properties' pre-existing conditions. By definition, this is a 
recovery standard. By definition, there is no proportionality under 
this standard.
    Although we believe the properly functioning habitat standard to be 
unlawful, it is impractical as well. HCPs should not be measured on 
whether they ``guarantee'' achievement of certain population recovery 
goals. HCPs can only cover a portion of the landscape. The actions of 
others, including government, can profoundly affect a species' status. 
All Incidental Take Permit holders can do is provide habitat. Moreover, 
most species can move in and out of the area covered by an HCP. Whether 
members of a species actually use the habitat the Permit holder 
provides or whether the species continues to be adversely impacted by 
other causative agents--natural or human-induced--is often outside the 
control of the Permit holder. For example, if a Permit holder provides 
habitat for salmon, but fish are still not returning to the HCP due to 
passage restrictions, poor ocean conditions, predation by marine 
mammals, unnatural bird congregations, or over-fishing, that landowner 
should not be held accountable for fish populations. That 
responsibility can only be the government's, as only the government has 
the power to influence all pertinent factors.
    The effort by NMFS to impose a recovery standard on Incidental Take 
Permit applicants has resulted in the virtual paralysis of negotiations 
on the affected HCP proposals. Apparently, this issue can only be 
resolved by litigation or legislation.
7. The Lack of Alternatives For Small Landowners
    Earlier, I said that HCPs are a valuable tool for landowners who 
can pay their preparation costs. Many cannot. Relief from the ESA 
``take'' prohibition should not be available only to those who can 
afford it. There has been much talk in Congress and the Services about 
the need to adopt an alternative or streamlined process to provide 
small landowners with ``take'' immunity. The Services have provided 
occasional no-take letters, devised the ``safe harbor'' process, and 
proposed the ``low-effect'' HCP in their ``Habitat Conservation 
Planning Handbook.'' None of these approaches has been successful in 
providing opportunities broadly to small landowners to seek incidental 
take permission. Numerous bills, including the legislation reported by 
this Committee last Congress, have proposed incidental take processes 
better suited to small landowners. None has passed. Establishing such a 
process must be the highest priority of the Services and the Congress.
           e. the role of science and how to measure success
    Of late, much has been said about the role of science in HCPs. HCP 
critics raise the alarm that ``HCPs are not based on science.'' For 
starters, this flies in the face of the fact that some of the best 
science on endangered and threatened species is being accomplished 
today in the context of HCPs. This criticism ignores the important 
concept that HCPs are more than scientific documents. They are also 
business plans. AF&PA agrees that available scientific data should be 
used in developing the management and mitigation measures for HCPs. We 
do not believe however, that any useful purpose is served if each HCP 
becomes a written compendium of every known fact about a species. 
Demands for such encyclopedic content breed unnecessary costs and 
delays. Science should play an important role in formulating an HCP, 
but ultimately the document must balance the minimization of impacts 
with the notion of practicability.
    AF&PA also does not support the contention of some that an HCP may 
be inappropriate whenever there are significant gaps in science. There 
are and always will be gaps in knowledge, and how significant such gaps 
may be is not even known until long after they are identified. There 
are at least two reasons that denial of HCP coverage in the face of 
uncertainty is inappropriate. First, we adhere to the tenet that, if 
the Services knew enough to list a species, they know enough to address 
it in an HCP. Second, even if significant species-specific data are not 
available, often there are data concerning the general habitat 
requirements of other, similar species, and those available data can be 
used to craft an HCP that moves management toward protection of the 
target species. Furthermore, situations in which scientific gaps are 
identified could also be candidates for reasonable adaptive management 
provisions.
    The ``success'' of any HCP must be judged by a blend of both 
scientific and business criteria, tempered by practicability. Any 
purely ``biological'' or ``scientific'' review of HCPs misses a good 
deal of the equation. Perfection can be the enemy of the good.
    Thank you for the opportunity to testify. I was asked to discuss 
problems AF&PA's members are experiencing in the habitat conservation 
planning process. This task forced me to emphasize the negative. Just 
the same, AF&PA certainly wishes to be on record in stating its view 
that the habitat conservation planning process is a valuable and highly 
important mechanism to allow private landowners to both make productive 
use of their land and comply with the strictures of the ESA. We are 
prepared to offer solutions to many of the problems we address here. We 
understand that to be the purpose of the second hearing. We hope to 
submit for the record any of our suggested solutions that are not 
discussed on that occasion.
                                 ______
                                 
  Statement of Don Rose, Manager, Land Planning and Natural Resources
    Mr. Chairman and Members of the Subcommittee, I am Don Rose, 
Manager, Land Planning and Natural Resources for Sempra Energy. My 
staff and I are responsible for performing route and site selection for 
energy facilities, such as gas and electric transmission lines, 
obtaining permits for construction, and assuring compliance with 
environmental laws and regulations. Sempra Energy appreciates the 
opportunity to appear before the Sub Committee on Fisheries, Wildlife & 
Drinking Water to discuss the topic of Habitat Conservation Planning 
and the Endangered Species Act.
    Sempra Energy is the parent company of Southern California Gas 
Company and San Diego Gas and Electric (SDG&E), as well as several 
unregulated subsidiaries. Sempra Energy is a Fortune 500 company and 
has the largest customer base of any energy services company in the 
United States. As such, the need to expand the energy infrastructure 
and maintain existing facilities is a constant and massive undertaking 
and obligation. I appreciate the opportunity to appear before this 
Subcommittee on behalf of Sempra Energy, the Edison Electric Institute 
(EEI), and the more than 200 shareholder-owned electric utilities who 
are likewise members of the EEI. I commend the Subcommittee for the 
hearings you have been holding on the strengths and weaknesses of the 
current habitat conservation planning and ``incidental take'' process 
under the Endangered Species Act (ESA). The generation and delivery of 
electricity involves extensive uses of land and water. In order to 
deliver electric power to commercial users and individual citizens, 
electric utilities maintain more than 670,000 miles of transmission 
line rights-of-way (ROW). Hydro-electric projects often preserve 
significant project lands that can benefit various plants and animals. 
In addition, nearly 90 percent of the electricity used in the United 
States is generated from nuclear or fossil fuel in steam-electric 
processes that depend on water resources for cooling water, makeup 
water, and other operations essential to providing reliable 
electricity. Much of the remaining electricity comes from hydropower 
projects, which rely on the weight of falling water to turn turbines 
that generate electricity. All of these land and water uses afford 
opportunities to maintain and protect habitat.
    The service territory of SDG&E, essentially San Diego County and 
Southern Orange County in California, has more listed species under the 
Federal ESA than any other County in the continental U.S. There are 
more candidate species queued up waiting to be listed than any County 
in the continental U.S. While the likelihood of encountering listed 
species decreases north of San Diego, the density of endangered species 
in California is still higher than any State in the continental U.S., 
making it equally challenging for Southern California Gas Company (SCG) 
to do their work. Maintaining the energy delivery infrastructure in so 
vast a region is a significant challenge, and it is compounded by 
endangered species management concerns.
    SDG&E is the only public utility in the country with an adopted, 
system-wide, multiple species (110 species are covered) HCP. This HCP 
has been in operation since December 1995. The development of this HCP 
involved:
     commitment of $1.2 million for the creation of a 
mitigation bank
     development of an extensive and ongoing training program 
for construction maintenance personnel, including guidance literature
     establishment of an on-call environmental surveying team 
to monitor and insure compliance with the HCP
    As these steps indicate, Sempra has made dramatic changes in our 
corporate culture, imposing rigid standards on the design, 
construction, and maintenance of energy delivery facilities. I will 
discuss issues that Sempra's experience with HCP's, and the Endangered 
Species Act itself. Sempra has benefited from the implementation of our 
HCP in several ways. Our company is able to:
     initiate new construction without obtaining additional 
permits
     conduct maintenance activities year-round, including 
during nesting season
     conduct access road maintenance
    These operational advantages save our company time through avoiding 
unnecessary permit delays, and the investment in stewardship this HCP 
represents has paid dividends in establishing our company as a 
protector of the environment in the public eye. The U.S. Fish and 
Wildlife Service often cites our program when making recommendations to 
other developers and industries.
    Sempra has also encountered several problems implementing our HCP, 
and unfortunately, these few problems have the potential to neutralize 
all of benefits listed above. The problems, in my experience, lie not 
with the concept of HCP's but with the implementation. Sempra agrees 
with the concept behind HCP's, and recognizes their potential to 
benefit the species they protect. In fact, we would argue that HCPs 
should be used more often. In practice, however, HCPs and the 
administration of ESA have several significant problems that need to be 
remedied.
                      (1) conflicting regulations
    Like many other complex systems, electric and gas systems require 
periodic maintenance to avoid shut downs. The resulting outages can 
cause serious economic and human health problems. Because utilities 
provide an essential service necessary for public health, safety and 
welfare, the licensing agencies that regulate utilities, recognizing 
that poor maintenance will result in system problems, mandate much of 
the maintenance we do as well as dictating its frequency.
    For Sempra Energy, these maintenance activities include:
     insulator washing
     insulator replacement and repair
     repair and replacing conductors
     pole brushing (removal of flammable vegetation from base 
of wood poles)
     tree trimming
     access road re-grading and maintenance
     pole line inspection
     repair or replacement of structures supporting utility 
equipment
     pipeline erosion repair
     pipeline leak patrolling
     pipeline repair & replacement
     exposed pipeline repair
    All of these maintenance operations must be performed when needed 
and when weather permits. Unfortunately, this means most of these 
operations must be performed during the spring and summer, which is 
nesting season of many protected species. As a result, conducting 
utility field operations in natural areas presents an unavoidable 
opportunity for conflict with the Endangered Species Act (ESA).
    This regulatory conflict may also catch utility customers in an 
ongoing financial trap. In California our utilities operate under a 
performance-based rate system that factors in standards of maintenance 
and system reliability. Poor rates of return, triggered by delays in 
access to systems for maintenance, can translate into lowered financial 
ratings; which, in turn, would negatively affect customer rates. When 
our legal responsibilities conflict, the end result can harm the 
customer and the species.
                    (2) greater risks to the habitat
    Of the maintenance activities we conduct, the most important is 
access road re-grading and maintenance. Without driveable access roads, 
few of asset maintenance activities (as listed under item (1) can be 
performed. For electric systems, deferred maintenance has potentially 
serious consequences. Three of the most common are: outages, equipment 
damage, and fire. If insulators are not washed, flashovers are almost 
certain, and may be catastrophic. (See attached photograph.) A dirty 
insulator can conduct electricity on its surface thus causing a short. 
Flashovers can result in outages and potentially, catastrophic fire. If 
a flashover occurs, the equipment is always damaged and must be 
replaced. The flashover can also cause a surge that can damage 
sensitive customer-owned equipment which relies on the stable operation 
of the electrical system. Additionally, the reliability of the grid can 
be seriously compromised.
    Of greatest threat to the goals of the ESA, fire is a very possible 
consequence of these flashovers, especially in the fire prone regions 
of the desert southwest. If unperformed maintenance results in a fire, 
extensive damage to the habitat areas of concern, including the 
potential loss of many species can be expected. Ironically, the same 
activities that were prevented for the purpose of protecting habitat 
can facilitate that habitat's destruction by fire.
    Gas systems require less maintenance than electric systems because 
the majority of the system is underground and not exposed to the 
elements and other activity. However, when maintenance is needed, it is 
no less critical than for the electric systems. Outages, fire and 
damage to the environment are all potential consequences of deferred 
repair and maintenance. The magnitude of the consequences, as with 
electric equipment, increases with the capacity of the facility.
                  (3) unequal treatment under the law
    One of the problems that a utility finds with HCP's is that they 
appear to be designed for a one-time use, which is most typical of 
development versus continuous operations.
    Most development must mitigate for certain impacts caused by the 
development. So it should be. Utilities also mitigate when they develop 
their facilities, but it doesn't end there as it does with other forms 
of development. They must continue to mitigate repeatedly in order to 
operate and maintain these facilities. Even worse than the questionable 
continual mitigation requirements are the extensive and repeated delays 
incurred to complete these requirements.
    Another example from our experience illustrates what can happen 
when additional species are listed, and found to be located in the area 
of an otherwise thorough and exhaustive HCP. As mentioned before, the 
SDG&E\1\ HCP covers 110 species system-wide. When our HCP was 
initiated, the Quino Checkerspot Butterfly was not included in this 
species list. USFWS told SDG&E that the Quino Checkerspot was locally 
extinct in our region, and therefore it need not be included in the 
HCP. Three years later, however, the butterfly reappeared, alive and 
well, and in our service territory. We subsequently discovered that the 
butterfly's primary host plant appears to flourish along SDG&E's dirt 
access roads.
---------------------------------------------------------------------------
    \11\ In July 1998, after the implementation of the HCP, SDG&E and 
Southern California Gas Company were joined under the holding company 
Sempra Energy.
---------------------------------------------------------------------------
    As a result of the species re-emergence, the Service has asked 
Sempra to amended our HCP or apply for a separate Section 10 permit. 
The application processes for a Section 10 permit normally takes a year 
or more, during which time much critical maintenance work is shut down 
or perilously delayed. The Service has been flexible in allowing 
maintenance in some areas where they feel the butterfly is unlikely to 
be present. However, the butterfly survey protocols mandated by the 
Service to determine that the butterfly is not present are extremely 
detailed, protracted, difficult, expensive, and ultimately limit the 
time and type of maintenance that can be conducted.
    If a small window of opportunity is missed, one must wait an entire 
year in order to conduct an acceptable survey pursuant to the Service's 
standards, and performing surveys according to USFWS strict, prescribed 
standards is no guarantee of acceptance. Recently, the Service declared 
several surveys conducted by other companies unacceptable. Despite 
compliance with a rigorous survey protocol prescribed by USFWS, the 
surveys were not accepted because the surveyed area did not experience 
enough rain during the time of the survey.
    As the result of the USFWS approach to protecting Quino Checkerspot 
Butterfly, a comprehensive HCP with up-front mitigation, including 
significant financial and human resource commitments by Sempra, is now 
practically useless in lieu of the new listing. While an amendment to 
the HCP is now being prepared, there is no guarantee how the fix will 
last, and there is no way to recover the resources and time that have 
been lost since the new listing. Simply put, it runs counter to reason 
that such an extensive management program as the SDG&E HCP, created to 
protect 110 species, could be de-railed and rendered moot simply 
because of the addition of one additional species.
                        (4) a patchwork of rules
    An ironic aspect of HCP's of this nature is that they do not apply 
to Federal land. Thus they are void on lands owned by the same 
government agency which issued the permit in the first place. The 
linear nature of energy utilities requires regulation addressed in a 
more comprehensive manner. A transmission line may travel many miles, 
and cross military reservations, forest service land, national parks, 
national wildlife refuges, and other Federal lands. The terms of the 
HCP do not apply in these areas, and separate agreements must be 
negotiated in each case, limiting an otherwise system-wide HCP. 
Furthermore, other Federal actions, such as the re-
licensing of a hydroelectric facility, are not covered by HCPs on 
Federal lands. What ensues is redundant review of the same sorts of 
activities by the same agencies.
               (5) the appearance of conflicting missions
    The U.S. Fish and Wildlife employs hundreds of specialists in the 
fields of biology and species conservation. Electric utilities value 
this perspective, and we too employ biologists and other environmental 
professionals to focus our activities and insure that we protect the 
environment. As our HCP illustrates, the mission of the U.S. Fish and 
Wildlife Service and utility land managers need not be in conflict. Far 
too often, however, those who bring biological expertise to the 
management equation are unaware of the practical implications and 
stewardship opportunities of the management activity. In such cases, 
perhaps a multi-disciplinary approach would yield better results. 
Through cross training, the appointment of an HCP manager well versed 
in both the biological goals of HCP's and the technology being managed, 
or the appointment of more personnel in the USFWS with land management 
expertise, could forge a stronger connection between biological and 
management goals of an HCP.
                            finding remedies
    Sempra Energy is a strong supporter of the goals and intent of the 
Endangered Species Act, and we feel that the HCP process holds great 
promise. An operating HCP can be a very valuable tool for a utility. 
SDG&E has utilized its HCP on nearly a daily basis. That is, until the 
Quino Checkerspot butterfly was listed. But to further the goals of the 
ESA, some remedies to the HCP process should be considered. Some 
options to consider might include:
     Habitat-based HCPs should be recognized as protecting all 
inhabitants of such habitats. In the example we provided, if the 
butterfly has returned from regional extinction along the access roads, 
it has also returned to areas in the utilities' service territory other 
than the access roads. It therefore should be automatically included in 
the system-wide, habitat-based, SDG&E HCP that already covers and 
protects most of the habitats for the plants and animals in the area. 
In other words, the butterfly is afforded the same protection as the 
110 species covered in the plan today, as it resides in similar 
habitat. In this case, over 200 acres of mitigation bank had been 
purchased and deeded over for preservation. So, the wildlife agencies 
have the mitigation in place for future work, work that is being 
prohibited by the butterfly listing.
     HCP's should only require mitigation once for such things 
as building access roads. Maintenance should not require additional 
mitigation. However, this should not be interpreted as a license to be 
irresponsible to the environment. Utility crews must adhere to strict 
protocols when working in environmentally sensitive areas. This 
includes restoration of damaged habitat. Sempra supports and 
voluntarily enforces this program.
     Existing access roads could be given ``safe harbor'' 
status much like agricultural lands.
     HCP's should apply to all lands where habitats need 
protection and where work must be done, including Federal lands.
     There should not be a regulatory whipsaw created. A 
utility should not be found in violation of the ESA while performing 
regulatorily mandated functions.
     A separate career track should be developed within the 
U.S. Fish and Wildlife Service for HCP managers. Such managers would be 
trained not only in the biological aspects of habitat conservation, but 
well versed in the various land uses and technologies accommodated by 
HCPs. This official would be in a position to make long-term planning 
decisions with regard to individual HCPs. In cooperation with several 
Federal agencies including the U.S. Fish and Wildlife Service, the 
Edison Electric Institute supports a course to train Federal land 
management personnel in the specifics of electric utility operation. We 
strongly recommend that U.S. Fish and Wildlife personnel making HCP and 
ESA decisions, including final biological opinions, complete the 
Electric Systems Short Course and similar courses that cover the 
management of technology and development.
    As it stands today, the unreasonableness of the application of the 
ESA and HCP's to these maintenance activities threatens to undermine 
the tremendous level of support within utilities for the conservation 
objectives of the Act. Instead of providing a mechanisim that allows 
essential generation, transmission, and distribution, and generation 
activities to occur in predictable compliance with the ESA, the HCP 
program presents great uncertainty, cost, and risk.
    For well over a century, Sempra Energy's utility companies have 
operated in the naturally abundant but sensitive environment of 
southern California. Utilities nationwide play a role in the daily 
stewardship of our nation's natural resources. We place a high value on 
our role as an environmental steward, and offer these suggestions in 
the hope that we can find a way to further the underlying goals of the 
ESA. Working together with Congress and the administration, we hope 
that we can solve these problems.

                               __________
                                 Edison Electric Institute,
                                  Washington, DC., October 1, 1999.
Hon. Michael D. Crapo,
U.S. Senate,
Washington, DC.
    Dear Senator Crapo: The Edison Electric Institute (EEI) formally 
requests the opportunity to provide testimony to the Environment & 
Public Works Subcommittee on Fisheries, Wildlife, & Drinking Water in 
any hearings you may hold on the subject of Habitat Conservation Plans 
(HCPs) under the Endangered Species Act.
    EEI is the association of U.S. shareholder-owned electric 
utilities, associates, and international affiliates. Our U.S. utility 
members provide energy to over 70 percent of all consumers of electric 
power in the U.S. The generation and delivery of electricity involves 
extensive uses of land and water. In order to deliver vital electric 
power to commercial users and individual citizens, electric utilities 
maintain more than 670,000 miles of transmission line rights-of-way 
(ROW). These ROWs represent an important land resource that provides 
habitat to endangered species. Likewise, hydroelectric projects often 
preserve significant project lands that can benefit various plants and 
animals. In addition, the generation of electricity depends on water 
resources for cooling water, makeup water, and other operations 
essential to providing reliable electricity. In the case of hydropower, 
the weight of falling water generates the electricity.
    Our companies have often been in the forefront of trying to manage 
utility lands and water uses in a manner that promotes the health and 
sustainability of species and ecosystems, and one of our member 
companies was the first to execute a multi-species HCP with the State 
of California and the Department of the Interior. Nevertheless, our 
companies have found operation under the Endangered Species Act to be 
challenging at best. The approach taken by the Endangered Species Act 
to habitat protection is not well suited to linear facilities, such as 
electricity and other rights-of-way. Furthermore, the ESA provisions on 
habitat conservation plans as to private lands and section 7 
consultations as to Federal lands no not mesh well, and are causing 
difficulty not only for linear rights-of-way, but hydropower projects 
as well.
    EEI would welcome an opportunity to share with the Subcommittee, 
through an appropriate member company witness, industry concerns about 
how habitat conservation plans are developed and implemented, their 
effectiveness, the incentive structure associated with the process, and 
the efficiency with which the Services are able to administer the 
program.
    Because of our companies having a continuing obligation to meet the 
public need for safe and reliable electric energy, they have a strong 
interest in finding ways to achieve improved species protection while 
fulfilling their primary mission. The Endangered Species Act should not 
be an impediment to that objective. In fact, utility lands and rights-
of-way can provide important habitat for endangered, threatened, and 
other species. EEI looks forward to working with the Subcommittee and 
the National Endangered Species Reform Committee, of which EEI is a 
member, on the upcoming HCP hearings. Meg Hunt, EEI's Director of 
Government Affairs (202-508-5634), will contact you for further 
discussions.
            Sincerely,
                                           E. John Neumann,
                              Vice President, Governmental Affairs.

                       HABITAT CONSERVATION PLANS

                              ----------                              

                      WEDNESDAY, NOVEMBER 3, 1999

                                        U.S Senate,
Committee on Environment and Public Works, Subcommittee on 
                                  Fisheries, Wildlife, and 
                                             Drinking Water
                                                    Washington, DC.
    The committee met, pursuant to recess, at 10:05 a.m., in 
room 406, Dirksen Senate Office Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Thomas, Reid, and Boxer.
    Also present: Senator Baucus.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    We appreciate the presence of the witnesses who will 
participate today. We hope we are going to be able to find a 
strong bipartisan path forward to meaningful reforms--``win-
win'' solutions for species, the environment, private property 
owners, and the economy.
    I would like to take a few minutes as we begin this hearing 
to indicate that this is the first hearing of this committee 
since Senator Chafee passed away. I know it is the first 
hearing of this subcommittee.
    I just wanted to indicate that it is a different world. As 
we walked in here today, some of us were visiting about the 
fact that Senator Chafee was always here with that bright 
positive attitude that he had about finding solutions. He was 
always very interested in the issue of the hearing. He was 
particularly interested in finding a solution in the Endangered 
Species Act arena, and so I am sure that he would be glad to 
see this hearing going forward so promptly.
    I know that my predecessor as the chairman of this 
subcommittee, Senator Kempthorne, was working on these efforts, 
and Senator Chafee literally accompanied him around the country 
to identify issues and find solutions. I want to indicate that 
we all have a different feeling today because we miss him, but 
we know that he is with us in spirit as we proceed on these 
issues which were so dear to his heart.
    I don't have further comments. We have all given statements 
on Habitat Conservation Plans, but Senator Reid, would you like 
to make any comments?

      OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR 
                    FROM THE STATE OF NEVADA

    Senator Reid. Thank you, Mr. Chairman.
    One of the unique experiences that I've had was Senator 
Chafee's funeral. That was really quite a celebration. I was so 
impressed with his wife--her whole attitude during and after 
the funeral. It spoke well of their great family. We will miss 
him here. He had a great working relationship with our former 
chairman, now Ranking Member, Senator Baucus; they worked well 
together. They were partners in many things and I am sure that 
Max has a unique perspective. He worked with him more than 
anyone else on our side of the aisle.
    As I mentioned at our last hearing on this subject, I 
believe that Habitat Conservation Plans are a useful creative 
tool for the protection of both endangered species and private 
property rights. They have not been a perfect answer, but they 
have moved us in the right direction. I think a fresh look at 
what we have learned is a beneficial exercise.
    Joining us today are a wide array of professionals from the 
environmental community, State governments, private property 
owners, forest products industry, the Clinton administration, 
and one from a regional water authority in Nevada.
    David Donnelly is a Deputy General Manager of the Southern 
Nevada Water Authority and is one of the chief Nevada 
negotiators in the Lower Colorado River Multiple Species 
Conservation Program. In this latter capacity, David has worked 
extensively with counterparts in Arizona and California to 
develop a Conservation Management Program that balances the 
needs of species and the needs of millions of residents in the 
Southwest. The Colorado River is our lifeline in southern 
Nevada; without water from the river there would be little 
population in southern Nevada, instead of now the 1.5 million 
people that live there. As such, it is absolutely necessary 
that we do everything that we can to protect the Lower 
Colorado's ecosystem for future generations. David is going to 
describe in great detail the tri-State efforts that are under 
way to do just that. I am very happy, as I indicated to him 
prior to the meeting beginning that David is here.
    I am sorry that I am going to have to go to the Floor. We 
are trying to move that Caribbean Basin issue and I have got to 
get some time limits on the amendments and try to move that 
bill along.
    In addition to David Donnelly's perspective on the Multiple 
Species Conservation Program, we in Nevada, I think, have also 
gained experience from which people can learn about endangered 
species, generally in southern Nevada, especially with the 
Desert Tortoise.
    So I look forward to working with you further in this 
committee and also look forward to specifically moving this 
legislation.
    Senator Crapo. Thank you very much.
    Senator Thomas.

            OPENING STATEMENT OF HON. CRAIG THOMAS, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Thomas. Thank you Mr. Chairman.
    I too am interested in the hearing today; we have had 
several. I am particularly pleased that the Director will be 
here today.
    I understand that the hearing is to examine potential 
solutions to concerns about how HCPs are negotiated and 
implemented, the appropriateness and the adequacy of 
conservation measures in HCPs, and generally how to improve 
HCPs to provide greater conservation benefits and make them 
accessible. That has been the purpose of all of these hearings, 
but I must tell you I am not sure we've gotten to that. I hope 
that you who are testifying today can address these points.
    We hear that HCPs have become an important tool to help 
conserve listed species that depend on private property, and to 
provide needed flexibility. I have to tell you, in my State, I 
don't think that is true. I don't see that as an alternative. I 
don't know that there are any successful examples of this. We 
have talked about it a lot, since 1982, as an alternative, 
supposedly to accomplish our goal, without having to place a 
species on a protection listing. I am anxious for you to level 
with us on how successful that has been. If it hasn't, why not? 
We get many speeches, but the bottom line should be fairly 
simple.
    Senator Crapo. Thank you very much, Senator.
    Senator Baucus.

  OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE 
                        STATE OF MONTANA

    Senator Baucus. Mr. Chairman, I appreciate your continuing 
on with this subject.
    I do think it is important to remember our late chairman as 
we proceed, not only in this subject but in all subjects of 
this committee.
    As you know, Mr. Chairman, our full committee chairman was 
so interested in trying to find a resolution to this subject 
that he attended all the subcommittee hearings, but for one. He 
always sat at your right. He was fully present, not only in 
body but in spirit. In energy and drive he tried to find a 
solution to the Habitat Conservation Plans and the Endangered 
Species Act. Generally, he worked with groups to find a 
positive, constructive solution, not one that would drive down 
peoples' throats, but rather one that was agreeable and it made 
common sense to people. He was a great man. I urge us all to 
proceed in that same spirit, that spirit of ``carrying on,'' 
that spirit of, ``no naysayers.'' We knew John, he did not like 
naysayers. He wanted people to figure out a solution to a 
problem.
     I will never forget, Mr. Chairman, many times he'd call me 
up and say, ``Max, I want to come over and see you.''
     I'd say, ``John, you are the chairman. I will come over to 
your office.''
    ``Oh, no, no, no, I want to come over to your office, I'll 
come and see you.''
     And we'd have a good-natured argument over that, and sure 
enough, he'd prevail and he'd come over to my office, and we'd 
chat a little bit.
    Sometimes I'd go to his office as some of us have, and he 
would always be sitting there with his tea and honey. He always 
pour honey in his tea. Those of you who knew John, remember 
that was something that he liked to do. He'd always be there in 
good cheer, bright attitude, positive, constructive, upbeat.
    We would try to solve a problem, whatever it was; it could 
have been the TEA-21 highway bill. It could have been the Clean 
Air Act, Clean Water Act--John tried to put a solution 
together.
    Something else I admire him for is that he would always 
start our hearings on time.
    [Laughter.]
    Senator Baucus. When I first came to the Senate a long time 
ago, the rule was that hearings would always start, on average, 
maybe 20 or 30 minutes after the appointed time. And gradually, 
we kind of started a little more on time. But with John, maybe 
it was the Navy or the Marines; I don't know what it was, but 
he was on time. John was here and started exactly on time, and 
if the rest of us weren't here, that was that. I take a little 
credit for that because I suggested to him that he might think 
of that.
    When Senator Mansfield was Majority Leader, years ago, he'd 
hold a hearing at a certain time and if the Senators didn't 
arrive but the staff were there, it didn't make any difference; 
he just started the hearing. Or he started the meeting in his 
office, even if there were no Senators. Well, pretty soon the 
Senators got the idea and arrived on time. I hope, Mr. 
Chairman, that you continue the subcommittee chair in that same 
tradition.
    I also want to take this time to congratulate our new full 
committee chairman, who is not here right now. The chairman of 
the full committee is Senator Smith, and I very much expect 
this committee to continue to work in that same cooperative 
spirit shown by Senator Chafee when he was the chairman.
     I know we all look forward to a new era. Times do change. 
Nothing is permanent. Nothing is fixed, but we go on with the 
attitude of ``can do,'' and ``get things done.''
    I hope that the witnesses at our hearing, have that same 
attitude. How can we figure this out, instead of dig in to one 
point of view. That is not going to work. The only thing to 
work is to start like in ``To Kill A Mockingbird,'' to put 
ourselves in the other guy's shoes and walk around in his or 
her shoes a little bit, and see the problem from his or her 
perspective.
    Frankly, I have found that to work at home. Let me give you 
an example--it is really on this subject. Some of us as 
Senators have work days; we start at 8:00 a.m. and we have a 
sack lunch and we are there to work all day long. I worked in 
saw mills, waited tables, and went into the mines. I did this 
for years. One day, my work day was at the Jeff Witt ranch in 
Montana. The whole point of the work there--and this had been 
ongoing for about a week--was to rechannel a stream to a 
conserve habitat for Bull Trout spawning. This was at a ranch, 
and as we all know, in the old days, ranchers would take a 
stream and they would just virtually channel it to get rid of 
the brush so that they could use it for irrigation, or they 
could use it for watering; just for practical purposes. Well, 
of course it took away all the Bull Trout spawning habitat.
    So there we were. There was the rancher, Trout Unlimited, 
and residents of the community. A contractor from a local town 
donated his equipment, and we spent the whole time there 
rechanneling this stream. We were going to put it back to where 
it was. We could see where the old stream bed was. We moved 
boulders, planted willows, and stumps, and all kinds of things 
so that the stream would start to meander again. The point is, 
this was not a top-down solution. This was a solution that was 
provided there, right on the ground to help us in Montana, find 
a way not to be under the strictures of the Endangered Species 
Act.
    I believe, Mr. Chairman, that the Habitat Conservation 
Plans are right down this road. Of course there are going to be 
questions, and I very much appreciate the questions asked by my 
good friend from Wyoming. But I'd say, ``Let's move ahead.'' In 
the spirit of John Chafee, let's find answers to these 
questions and not let these questions become problems. Let's 
turn them into solutions. I just hope that we just keep 
remembering John Chafee, and we are going to do it.
    Thank you.
    Senator Crapo. Thank you.
    Senator Boxer.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you so much, Mr. Chairman. It is nice 
to see you.
    I just want to say a couple of words about John Chafee and 
then a couple of words about the subject before us.
    To me, Senator Chafee's legacy is his kindness, his 
decency, his bipartisanship, and his dedication to the 
environment. And I think, if we all look at that, it is a great 
model for all of us. So, this is our first hearing where he 
isn't among us, and I feel him in the room. And I see him 
sitting right next to you, Senator Crapo, where he normally 
does when the subcommittee was hearing a subject he cared 
about. And I think that as, Max Baucus has said, his spirit 
does resonate in this room and I think will, for a very long 
time to come.
    On the subject of Habitat Conservation Plans, Senator 
Chafee did come out to California about a year and a half ago 
and he saw what was happening on the ground.
    Habitat Conservation Plans are very prevalent in our State 
and are, for the most part, embraced by both parties, elected 
officials of both parties are trying to work together to make 
it happen and I think, as Senator Baucus has stated, that 
Senator Chafee wanted to make it all work.
    Senator Chafee began his work 20 years ago on this 
committee. And we look at every one of our major laws, 
environmental laws: Clean air, water, safer food, drinking 
water, more diverse wild life, and grander open spaces, he was 
involved in all of those.
    Just a few weeks ago, Senator Chafee delivered a key-note 
address at the Annual Conference of the National Trust for 
Historic Preservation, and he received a standing ovation from 
the 2,000 people who gathered at Washington's National 
Cathedral for the event. The year before he had received the 
organization's award for Outstanding Achievement in Public 
Policy for his work on an issue close to my heart: Historic 
preservation. It was a fitting tribute.
    You know, life is such a puzzlement because each of us has 
to find within us, the reasons why we are here, and what is it 
about, how do we make a difference, whatever our philosophy is. 
I think if we seriously look back on those who served in public 
life, who have really been remembered, it is those who have 
made life better for people. That may take on different 
philosophies, but I think he made life better for people. And 
that is what I'll always thank him for.
    In terms of the subject that is before us, earlier this 
year, President Clinton announced a proposal that would remove 
the American Bald Eagle from the list of threatened and 
endangered species under the ESA. With that announcement, the 
eagle joined other formally imperiled species such as the 
Paraguayan Falcon, the Gray Whale, the Aleutian Canada Goose, 
and the Gray Wolf that the ESA has helped to bring back from 
the brink of extinction.
    Now while this was all very good news, many of the over 
1,100 species listed as threatened or endangered under the Act, 
have not joined the eagle, whale, and wolf on the road to 
recovery. Because about 90 percent of listed species make their 
home on private property, it is critically important to ensure 
that Habitat Conservation Plans are designed to promote, not 
only the survival of the species but the recovery of the 
species. Now, I may be in a minority in this committee in 
drawing this distinction, but I really feel we should think 
about it. If the doctor says, ``You are going to survive,'' it 
is different than, ``You are going to recover.'' You are going 
to recover, you are going to be back to normal, you are going 
to be thriving. You are going to survive, maybe you're going to 
lie in a hospital bed you know, with tubes up and down you. So 
there is a big difference between those two words and so when I 
quibble over those words, Mr. Chairman, I feel it is important.
    I believe that not all HCPs are held to the recovery 
standard. They are held to the survival standard. So, I come to 
it in a fashion to try to strengthen them.
    The other issue I know we have to face is, what happens 
when a landowner completes the HCP but then, it is not working, 
and we don't have this recovery? Perhaps we don't even have 
survival. Do we then say to the landowner, ``Well, you did what 
we thought you had to do,'' or do we sit down again, roll up 
our sleeves and try to work it out. Clearly I would like to see 
us keep our eye on our goal which is to bring these species 
back.
     So, I think that seriously, that we can do better with 
better standards. I know we are going to have debates over 
this, but I would like to see the standard be for recovery. 
And, Mr. Chairman, you have always been most gracious to me and 
I appreciate that, and I look forward to working to with you on 
this and many other issues.
    Senator Crapo. Thank you very much.
    Senator Baucus. Mr. Chairman, if you don't mind, I got so 
carried away talking about John Chafee that I forgot to mention 
just a couple of points on the subject, if I could, please.
    Senator Crapo. Sure.
    Senator Baucus. Just give me a second. Thank you.
    I just want to list the questions which I think that we 
have to focus on. How do we establish a ``no surprises'' policy 
when as scientists constantly remind us, that nature is full of 
surprises?
    Second, how do we create adequate safeguards so that the 
public has a say in the development of large HCPs?
    Third, how do we provide some consistency so that 
landowners are treated pretty much alike?
    Fourth, what is the standard? Are we trying to merely stave 
off extinction, or promote recovery, the point that Senator 
Boxer raised? And what as a practical matter, is the 
difference? In addition to the philosophical, it is the 
illogical that matters.
    Next, how do we monitor, to make sure that the plan doesn't 
just look good on paper, but also works on the ground?
    Next, how do we adapt a plan to changed circumstances, or 
new scientific information?
    And finally, how do we make the benefits of HCPs available 
to small landowners?
    Those are my questions.
    Senator Crapo. Thank you very much Senator, and those are 
good questions to answer.
    We will begin with our first panel now, panel No. 1 is Ms. 
Jamie Rappaport Clark, the Director of Fish and Wildlife 
Service, and Mr. Don Knowles, Director of the Office of 
Protected Resources at National Marine Fisheries Service.
    And while Ms. Clark and Mr. Knowles are taking their seats, 
I would like to again remind them, and all witnesses today, 
that we have a time clock and as I have said many times before, 
the clock is going to run out before you feel that you have 
finished saying what you have to say, and we ask you to be very 
careful to pay attention to that because we would like to have 
the opportunity to engage with you in some questions and 
answers to the maximum extent possible.
    I can assure you we and our staff very carefully and 
thoroughly review your written testimony and so, if it is in 
your written testimony, it hasn't been lost on us and we'd like 
to ask all witnesses to be sure to follow the time clocks. I 
believe the yellow light comes on with 1 minute to go and when 
the red light comes on, we ask you to wrap up your thought at 
that point as quickly as you can and let us get onto either the 
questions or the next witness.
    With that, Ms. Clark, we will start with you.

STATEMENT OF JAMIE RAPPAPORT CLARK, DIRECTOR, FISH AND WILDLIFE 
      SERVICE, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC.

    Ms. Clark. Thank you, Mr. Chairman and Members of the 
Subcommittee. I am pleased to be here today to talk about the 
Habitat Conservation Planning Program.
    But before I begin my oral statement, I would like to say a 
few words in memory of Senator John Chafee, if I could. He 
chaired the full committee during my entire tenure as Director 
of the Fish and Wildlife Service.
    Senator Chafee was a very special friend to me, a wonderful 
role model, when provided me with important guidance both 
before and after I became Director. Our agency will dearly miss 
both his leadership and his friendship. I am particularly 
pleased that Congress has renamed the Pettaquamscut Cove 
National Wildlife Refuge for Senator Chafee with the support of 
the Fish and Wildlife Service. The John H. Chafee National 
Wildlife Refuge will remind us of all of his many contributions 
for the environment and to natural resources.
    Let me turn now to the topic of this hearing, Habitat 
Conservation Plans. The Service believes that HCPs are 
essential tools for the conservation and protection of 
threatened and endangered species. When President Clinton took 
office, the Service had only approved about 14 incidental take 
permits and associated HCPs. Today, the Service has issued more 
than 260 incidental take permits covering approximately 20-
million acres of land, 200 listed species, and many unlisted 
species. The Service anticipates being involved in the 
development and implementation of an additional 300-plus plans 
by fiscal year 2001. While this phenomenal growth is a 
testament to the popularity and utility of the program, it 
certainly brings with it additional challenges. Greatest among 
these challenges is that demand is exceeding our ability to 
effectively deliver the program as we would like.
    The major strength of the HCP program is that it is based 
on the development of local solutions to wildlife conservation. 
By encouraging the development of regional, landscape HCPs to 
cover many habitats, we have provided incidental take authority 
for many different land uses and landowners.
    The Service has shown creative and flexible approaches in 
assisting landowners to develop HCPs that fit unique 
circumstances presented in each case. We are committed to using 
a flexible approach in addressing each HCP with the type of 
innovative thinking that has proven successful.
     At the same time, the foundation of the HCP program is, 
and has to remain, sound science. We base our determinations on 
the best scientific and commercial data available. We develop 
our policies to balance concerns of applicants and species 
conservation, yet strive to reduce procedural burdens. We have 
taken action to improve and clarify the program by working with 
our colleagues in the National Marine Fisheries Service to 
publish the HCP handbook, to issue the ``no surprises'' final 
rule, and to propose the Five Point Policy to improve 
administration of the program.
     I'd like to address a suggestion raised at the October 19 
hearing before the subcommittee that section 7 consultations 
should not be conducted on HCPs. We support continuing to 
conduct section 7 review of HCPs because it fulfills two 
important laws. First, it provides for review by other Service 
biologists, not directly involved in the development of the 
HCPs as independent reviewers, and second, it insures that the 
HCP will not result in jeopardy or adverse modification of 
critical habitat for other listed species that are not covered 
by the plan.
    Applicants look to the Service to provide leadership, 
therefore the success of the HCP program is contingent upon the 
Service being thoroughly involved in the development, 
implementation, and monitoring of these plans.
    A central element in delivering an effective program is our 
ability to hire and train qualified staff to meet the 
increasing workload associated with monitoring existing HCPs 
and assisting applicants in the development of new plans. We 
are also finding it increasingly difficult to recruit qualified 
staff and to retain our experienced workers. The consequence of 
this is less than desirable levels of service as reflected in 
some of the testimony that you heard 2 weeks ago.
     In addition, the demand will continue to grow for the 
Service to provide adequate monitoring and adaptive management 
that will improve more and more of these HCPs. It is important 
that we have adequate funding to be able to fulfill these 
important responsibilities.
    Trying to deliver our commitments to the program and to 
respond to the increased workload, the Endangered Species 
Program budget for consultation HCPs experienced a decrease in 
fiscal year 1996, and only modest increases in 1997, 1998, and 
1999.
    We have requested increases and we hope that they will be 
addressed.
    As you have heard in the previous hearing, smaller 
governments and operators often don't have the staff to support 
the planning and coordination necessary to develop HCPs. We are 
devoted to assisting these communities in the development of 
their plans, and the President's 2000 budget request of $10 
million to support HCP development grants within the Land 
Legacy Initiative will provide the financial assistance 
necessary to launch these community-based multi-species plans. 
However, this request was zeroed out in both the House and the 
Senate.
    The President also requested, in year 2000 as part of his 
Lands Legacy Initiative, to support the Land-Acquisition 
Grants, a request that was not met in total.
    In conclusion, the Service is implementing an HCP program 
that empowers the applicants to integrate endangered species 
conservation into their activities, while using the best 
available science and approaches.
     I am proud of the ideas and of the hard work that is 
strengthening the HCP Program, but remain deeply concerned 
about the escalating workload without significant increases in 
resources.
    Mr. Chairman, this concludes my testimony and I will be 
happy to respond to any questions.
    Senator Crapo. Thank you very much Ms. Clark.
    Mr. Knowles.

    STATEMENT OF DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED 
RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC 
       AND ATMOSPHERIC ADMINISTRATION, SILVER SPRING, MD

    Mr. Knowles. Thank you Mr. Chairman.
    Members of the subcommittee, this is my first testimony 
here. I appreciate the opportunity to testify about HCPs. There 
are positive aspects and there are challenges.
    My name is Don Knowles. I am the Director of the Office of 
Protected Resources in the National Marine Fisheries Service, 
which is an agency of the National Oceanic and Atmospheric 
Administration. From 1980 to 1988, I was a staff member on the 
Appropriations Subcommittee for Interior and had some 
opportunity to interact with the chairman of the authorizing 
committee at that time and Senator Chafee was always a force to 
be reckoned with, and someone to contend with, in those 
battles, but I too enjoyed a good relationship with him, and we 
too will miss him.
    I have been in this position, my current position now, for 
about 6 weeks. The perspective I bring is perhaps, a bit of a 
fresh one as a result, because while I have known about HCPs 
and worked on them a bit over the past years, this is really 
the first time I have been involved with them on a day-to-day 
basis.
    Coming most recently from the Pacific Northwest, I have 
seen firsthand the benefit of coordinated Federal approaches 
and I am committed to working with the Fish and Wildlife 
Service to deliver one Endangered Species Act Program.
    My observation is that the Administration has done an 
excellent job breathing life into language that really sat on 
the books for a decade, largely unused.
    We know that we can't provide for biological diversity or 
species conservation on Federal lands alone. The General 
Accounting Office tells us that over 70 percent of the species 
listed have over 60 percent of their habitat on non-Federal 
lands. Over 35 percent of the species listed have essentially 
all of their habitat off of Federal lands. Incidental take 
permits are really the only vehicle currently available that 
provide incentives for non-Federal landowners to protect listed 
species. The National Marine Fisheries Service is responsible 
for over 50 species listed under the Endangered Species Act 
including marine mammals, sea turtles, plants, salmon and other 
fish. It is my belief that we can meet the challenge of 
recovering these species only when we cooperate with non-
Federal landowners such as States, Tribes, and local units of 
governments.
    We have issued permits associated with HCPs for two large 
scale projects in Washington and California that cover almost 3 
million acres. We have issued 10 incidental take permits 
associated with low-effect projects. And we are a party to five 
implementing agreements for HCPs. We are currently negotiating 
something like 35 additional HCPs in the Pacific Northwest and 
California. So far, all of the large scale NMFS HCPs developed 
by applicants involve Pacific salmonids. And this experience 
sharply colors our perspective and is a bit of a contrast with 
the Fish and Wildlife Service and the range of species that 
they have had to deal with.
    At the hearing in July we testified about the role of 
science in the development of HCPs. And I'd like to emphasize 
that the Endangered Species Act requires the Services to use 
the best available science in making its determinations, 
including the HCP application process. NMFS spends a 
significant part of its budget on insuring that our scientists 
stay up to date in their respective fields. In fiscal year 
1999, we spent about $8 million on science out of a budget of 
about $23 million, over a third of our budget.
    It's not a simple matter to provide for ecosystem 
protection in species across large landscapes. While we are 
comfortable that we have solid, reliable, quantitative 
information for some things like temperature, water flow, and 
fish passage, there are other things that we have less precise 
information about, such as nutrient cycling, food chain 
dynamics, biodiversity, population genetics, climate change. 
Few practical tools and methodologies have emerged today to 
help us with those.
    My statement has a number of examples of some of our 
successes, and our current HCPs in progress. Let me skip over 
those and talk a bit about our future challenges. We recognize 
the need to strengthen both our management and our science 
support. To me, it is readily apparent that one of our problems 
is that our HCP program is just not adequately funded. It is 
not receiving the funding set out in the Administration's 
request as necessary for future successes. In 1999, we have 
about $23 million available. The year 2000 budget was for an 
increase of around $24 million and it looks like we are going 
to get something less than $5 million of the increase in order 
to deal with the issues. I mean, don't get me wrong, we are 
grateful for what we have. We intend to do the best job that we 
can with it, but truly we feel like we could do a better job 
for folks all across the landscape if we had a bit more 
capability to deal with some of the issues.
    So in conclusion, we think the HCP program has many 
benefits. It is a program still in development. Our 
conservation planning efforts under 4(d), complement it well, 
and we are going to continue to work on that.
    Thank you for the opportunity to testify. I'll be glad to 
answer any questions you have.
    Senator Baucus. Mr. Chairman, I regret I must leave, but I 
do have a quick comment, if you would allow. I have a lot of 
questions, but don't have time to ask them all.
    I also wish that I could be here for the testimony of Jim 
Riley. With all due respect to you, Mr. Chairman, Jim Riley and 
you too may both think he comes from Idaho----
    Senator Crapo. He is from Idaho.
    Senator Baucus [continuing]. But actually we claim him in 
Montana, he is a real Montanan.
    Anyway, I wish Jim the best and know he will give great 
testimony as will all the other witnesses. Thank you.
    Senator Crapo. Thank you very much. Now we do have the 
opportunity as I'm sure you are aware, to submit written 
questions. We would welcome those.
    Senator Baucus. Thank you.
    Senator Crapo. I would like to thank both of you for your 
testimony and I'll start out with a couple of questions.
    I really wish that Senator Boxer were still here, she had 
to leave to another committee meeting that she had on her 
schedule. She raised the question of recovery versus survival 
from her statement, I think she and I are coming from a little 
different perspective on that issue and I would like to see an 
engagement on that.
    But, Mr. Knowles my first question is for you and it's on 
that issue. Section 10 of the Endangered Species Act provides 
that the Habitat Conservation Plans must not appreciably reduce 
the likelihood of the survival and recovery of the species in 
the wild. And this has been interpreted to be consistent with 
the jeopardy standard provided under section 7 of the Act. In 
other words, an HCP must not jeopardize the continued existence 
of the species. Regionally however NMFS has taken the position 
that Senator Boxer was discussing, that HCPs must meet the 
higher standard of enhancing the conservation of the species, 
in other words, the recovery. As I see it, NMFS is unilaterally 
imposing now a recovery standard on private landowners. What is 
the legal authority for NMFS's position with respect to this 
standard for approving an HCP?
    Mr. Knowles. We don't think we have a recovery standard, 
Mr. Chairman. Section 10 of the ESA applies a no-jeopardy 
standard that is expressed in terms of survival and recovery. 
When we are dealing with severely depleted wide-ranging species 
such as salmon, where in a lot of cases habitat is seriously 
depleted or degraded, it is difficult to draw a bright line 
between those habitat features needed for long term survival 
and those habitat features needed for recovery. Our scientists 
have worked on this, and we don't think there is a bright line 
that distinguishes the two.
    Senator Crapo. So are you saying that there isn't a 
difference between a recovery standard versus a survival 
standard?
    Mr. Knowles. I think that as a practical matter, what we 
are trying to do is to achieve a properly functioning condition 
of these aquatic riparian habitats. As a practical matter, our 
scientists tell us that they are not able to draw a line that 
would distinguish a survival standard from a recovery standard 
given the long time nature of the permits that we are 
developing.
    Senator Crapo. Well, I am not sure that I can agree with 
that, but I am certainly willing to engage further with the 
scientists. It seems to me that--assuming a situation in which 
we have a species in decline and a private landowner approaches 
the Service with a proposed HCP and requests an incidental take 
permit, that the actions that the landowner proposes should not 
cause any further decline to the species. At the end of the 
day, the species is not in any worse condition after the 
landowner's actions than it was before. Why could that not be 
sufficient? In other words, why should that landowner in 
addition be given a burden to improve the circumstances of the 
species?
    Mr. Knowles. Well, I really think it has to do with the key 
being the continued existence of the species. I think that is 
the key or the essence of the survival standard. If the habitat 
conditions are such that you are not going to be able to 
provide for long-term continued existence of the species, we 
think there is a problem with that standard.
    Senator Crapo. Let me ask a question in a conceptual 
framework. Would you agree or disagree that if a private 
landowner wants to undertake an activity that will not harm the 
species, that there is no good reason why we should not allow 
the landowner to undertake that activity. Is an argument being 
made that because the landowner acts, he should be given a duty 
to recover a species?
    Mr. Knowles. Well clearly, we don't think private 
landowners have the responsibility to recover species. The 
Federal Government has assumed that responsibility, and what we 
have here is essentially an exchange between the Government in 
the form of an incidental take permit and conservation actions 
by landowners. Our concern is that we don't make an exchange 
that threatens the continued survival of the species. So our 
habitat standard has been clear, it has been consistent since 
1997, I think, and we base that on the best science. We need to 
stick with the best science that we have. I too would be glad 
to have further discussions about it because, again, with my 
exposure to this, I am confident that I will learn additional 
things by further discussion. But based on our policies to 
date, this is where we are.
    Senator Crapo. If I understand your testimony correctly, 
the Service makes a distinction that a landowner can't have an 
action that simply doesn't hurt the species. It is either going 
to hurt the species or help recover the species, but it can't 
just be neutral.
    Mr. Knowles. Can I speak hypothetically for a second?
    Senator Crapo. Sure.
    Mr. Knowles. Just from a hypothetical point of view, what 
if a private landowner had land conditions or habitat 
conditions that were above some threshold, that were a pristine 
habitat? I mean, if you are asking, ``Could private landowners 
impact that habitat in a way to reduce benefits?,'' I think we 
would have to sit down and try to determine exactly what is 
proper functioning condition in that circumstance. But in 
general, that is not the condition that we face. In a practical 
sense, what we are trying to do is to provide habitat that 
provides for survival, which is long-term existence, which is 
very close to recovery.
    Senator Crapo. I think my 5 minutes is probably up, and 
with just two of us here we may get further opportunities, but 
Senator Thomas would you like to ask some questions?
    Senator Thomas. All right. Thank you. Thank you very much.
    Ms. Clark, I just listened to your testimony. The only 
problem that you see is not enough money. Is that right?
    Ms. Clark. That is certainly a big part of the problem----
    Senator Thomas. No, is that the only problem that you are 
going to deal with, is just more money?
    Ms. Clark. Well, in bringing on additional qualified staff, 
but certainly, Senator, money is the over-arching issue because 
it is compromising our ability to be responsive. I would agree 
with some of the exchange between Senator Crapo and Mr. Knowles 
that we still have some policy issues that need honing but 
clearly, with this exponential growth, the biggest compromise 
to the Fish and Wildlife Service is our ability to----
    Senator Thomas. Why isn't there any exponential growth 
where I live, do you know?
    Ms. Clark. A couple of reasons. First of all we are not 
seeing the exchange, and I know that you probably aren't going 
to necessarily believe this, particularly based on our 
conversations but, the direct collisions between economic 
growth and species conservation in Wyoming, like we are seeing 
in other parts like the Southwest or in California, we are not 
in some areas, equipped to provide that technical assistance.
    And so, what concerns me is in parts of the country, we are 
almost at the meltdown situation before we are trying to 
negotiate out a mutual beneficial solution to supporting 
continued growth and species conservation. So a lot of it has 
to do with our ability to be responsive, to educate the local 
public or private landowners on, this as a tool and we are 
going to get direct collisions.
    Senator Thomas. Aren't most of these where you have large 
landowners and timber companies and various kinds of things, 
instead of a series of small landowners?
    Ms. Clark. Well, certainly the larger landowners are better 
equipped to deal with it.
    Senator Thomas. And that's where most of the habitats are, 
isn't it?
    Ms. Clark. A lot of them are there, but we do have a lot of 
small landowners. That is one of the reasons that we have spent 
a lot of time working on statewide HCPs. There are HCPs that 
reduce the burden on a whole series of individual small 
landowners or small operators. It is not very reasonable to 
expect a whole series of small landowners to knock the 
capability to deal with individual HCPs, so we have looked at 
other ways to accommodate them through either statewide HCPs, 
like the bill in the State of Georgia, or some of these 
umbrella HCPs that small landowners can tie into.
    Senator Thomas. Well the fact is that it isn't widespread 
and it isn't involved with smaller landowners and it would seem 
to me that would be more of a problem you might talk about 
resolving, instead of just money.
    Ms. Clark. Absolutely.
    Senator Thomas. Speaking of money, when a small city in 
Wyoming had a sewer outage and a water outage and had to make a 
very small repair, your group spent the whole summer before 
allowing them to go ahead because of the jumping-mouse thing. 
Now is that the way you spend your dollars?
    Ms. Clark. Well, I don't know the specific case that you 
are referring to, Senator, but I will say that it is certainly 
our obligation to address species needs and to insure low 
jeopardy. I would be happy to look at what you are talking 
about.
    Senator Thomas. Well, you should because here was a 
situation where the town was threatened by not having adequate 
water supply for their citizens. They were working on this 
thing across the river and it only took a few yards on each 
side, and took the whole summer to get a section 7 consultation 
and a permit.
    Now when you come to us and you talk about needing more 
money, and you spend that kind of money doing those kind of 
things, it makes it pretty darn difficult.
    Ms. Clark. I would agree that is very frustrating. 
Listening to your story, I would certainly agree with that.
    But again, oftentimes our ability to be responsive and to 
have a quick response is a function of limitation of resources. 
And so, if we have the people ----
    Senator Thomas. I don't agree with that at all. I just 
don't agree with that at all. You have an emergency opportunity 
in the law to do some things.
    Ms. Clark. I agree.
    Senator Thomas. And you didn't do them, so not having the 
opportunity--I just get really frustrated when you come up and 
you think that all you need is more money but that isn't true. 
For instance, these are supposed to be cooperative kinds of 
things but most of the people who are involved say, ``Gee, 
that's cooperative, but it is about 90 percent on the side of 
the Agency and 10 percent on everyone else's side.'' A command 
and control problem. We're supposed to be sort of working 
together on these, aren't we?
    Ms. Clark. Yes, we are, I agree.
    Senator Thomas. I think you are going to hear today some 
evidence that is not the case. What are the incentives you 
talked about that you are going create for the landowners?
    Ms. Clark. Well, I was referring to a couple of them 
before. The incentives, long-term certainty, but mechanisms 
like umbrella HCPs or statewide HCPs which are the larger more 
comprehensive planning, regional planning opportunities that 
will obviate the need for individual HCPs for each small 
landowner, or each individual operator, that would, I think, 
accelerate the compliance issue of what allows, reduce the 
amount the expenditure for each individual landowner to address 
their HCP opportunity.
    Senator Thomas. I just agree with the idea of having an 
opportunity to encourage landowners to do some things that will 
avoid having to list. I can tell you that a lot of the folks I 
work with are scared to death because they know that the Agency 
is going to tell them exactly what they have to do. It is going 
to be run by someone who is not the landowner and they will not 
be much better entering into that arrangement than they would 
be by listing.
    Ms. Clark. I am not sure, Senator, what worked, cause I am 
obviously not talking about the same thing you are. Let me see 
if I can clarify it from my perspective.
    Negotiating HCPs, the trigger for an HCP is the likelihood 
that ``take'' will occur in its listed species. Some of the 
work that was done earlier when the mouse was dealt with in the 
candidate conservation arena, and that was trying to work out 
mutually agreeable plans so that the threat could be removed 
and therefore there would be a potential that we wouldn't have 
to list. So, we have two different issues. You have candidate 
conservation agreements that front end a listing decision, and 
then you have HCPs which deal with the granting of that 
listing. And we are probably talking about a combination of 
both, but I would agree that certainly we have a responsibility 
and an obligation to look for not only incentives, but 
streamlining mechanisms to address----
    Senator Thomas. Would 4(d) rules get into that thing?
    Ms. Clark. 4(d) rules are listing, absolutely.
    Senator Thomas. Well that is right and that's where we all 
despise listing. I am trying to share with you that the 
optimism you expressed in your statement with the exception of 
financing, is not shared generally by a lot of the people. So 
we need to take a long look at that. Thank you.
    Ms. Clark. Certainly.
    Senator Crapo. Thank you. I'd like to ask another couple of 
questions.
    Mr. Knowles, getting back to you, after my first round of 
questions to you, I was reminded that we have heard that 
several landowners have in fact, suspended HCP negotiations 
because NMFS is in fact requiring a recovery standard. From 
your testimony today, I understand that there may be a 
terminology difference here that we are talking about, but I'd 
like to get it clarified on the record today that NMFS does not 
impose a recovery standard. Is that correct?
    Mr. Knowles. I think that is correct.
    Senator Crapo. And so in those types of HCP negotiations, 
they can rely on a record of this hearing if NMFS officials 
begin trying to impose a recovery standard?
    Mr. Knowles. And if I am wrong, I am sure I will hear about 
it.
    [Laugher.]
    Senator Crapo. Well, we are going to rely on that today.
    Mr. Knowles. Just one comment. In general, the objective of 
NMFS is the same in every HCP, which is to achieve during the 
term of the plan, the essential habitat functions required for 
long-term survival of anadromous fish in exchange for allowing 
for incidental take. That is our objective HCP by HCP.
    Senator Crapo. I understand and we do probably have a 
difference of opinion on whether there is a distinct and 
identifiable difference between simply avoiding jeopardy or 
avoiding injury to the survival of the species as opposed to 
recovering it.
    Mr. Knowles. If I can ask ----
    Senator Crapo. Yes, go ahead.
    Mr. Knowles [continuing]. If you will provide some details 
about that, I will try to follow up for you, if you would like.
    Senator Crapo. On those other cases?
    Mr. Knowles. Yes, sir.
    Senator Crapo. Yes, I'd be glad to do that.
    Does the Fish and Wildlife Service agree with the standard 
that HCPs should restore functioning ecosystems, and if so, 
what is the legal basis for that standard?
    Mr. Knowles. The Fish and Wildlife Service or NMFS?
    Senator Crapo. Oh, excuse me, NMFS.
    Mr. Knowles. OK. Functioning ecosystems includes a very 
broad sort of concept and what we are trying to do HCP by HCP 
is provide the kind of essential habitat functions required in 
the HCP, for the long-term survival of listed species, and also 
to allow for incidental take. So, we are not asking individual 
landowners to take care of the ecosystem in the broadest terms, 
we are asking landowners to provide a properly functioning 
condition to provide for long-term survival of the listed 
species.
    Senator Crapo. So, if I understand you correctly, even 
though in your testimony you indicated that NMFS takes the view 
that HCPs should restore functioning ecosystems, you are not 
imposing that on the landowners?
    Mr. Knowles. Within the context of the HCP, we are asking 
for properly functioning conditions. That is correct. Maybe 
semantically that is trying to restore functioning ecosystems, 
but I always think of ecosystems as broader than under the 
control of any individual landowner.
    Senator Crapo. Well what we may be getting at here, both in 
this context as well as in the recovery debate context, is I'm 
very confident that what Congress intended in authorizing HCPs 
was that private landowners be enabled to undertake activities 
on their lands through an HCP arrangement as long as they did 
not engage in an incidental take or as long as they were not 
further endangering the species. But the Congress did not 
intend for private landowners to be given the duty that is the 
responsibility of the Federal Government to recover the 
species.
    And frankly there is a concern on the part of some of us in 
what we are hearing from the field in terms of what is 
happening. That some of the agencies, and NMFS in particular, 
may be using HCPs as a method to achieve other objectives of 
the Act. And using the HCP opportunity to further other 
objectives into forcing landowners to participate in either 
ecosystem recovery or recovery of species, which is not 
something that was intended by Congress to be placed at their 
doorstep. Could you comment on that further?
    Mr. Knowles. Our goal, again, is long-term survival. We are 
having 50 years and longer HCPs. We think, we know, what 
salmonids need for long-term survival, and its properly 
functioning conditions, and that is our goal. Our scientists 
tell us that we are not able to draw a bright line between the 
standards required for long-term survival and the standards 
required for recovery.
    Senator Crapo. You are imposing a long-term survival 
standard on HCPs?
    Mr. Knowles. Yes, sir.
    Senator Crapo. Perhaps we ought to explore that a little 
further because, it seems to me, let's assume again, a 
situation in which a species is in decline and if nothing is 
done, the species is not going to survive.
    Mr. Knowles. That's right. That is why it is listed.
    Senator Crapo. A landowner who has private property in 
which there is an involvement with that species, makes a 
proposal about something that isn't going to change the current 
situation in any way. In fact in the terms of the statute he 
will not appreciably reduce the likelihood of survival. Now the 
species is still going to be extinct, but the landowner is not 
causing that and his actions are not accelerating it. Is the 
landowner then going to be given the responsibility to assure 
the long-term survival of the species?
    Mr. Knowles. My understanding is that what the landowner 
wants is, the protection on the incidental take side, and so it 
is clear that the action proposed by the landowner would 
further reduce the survivability of the species.
    Senator Crapo. Are you saying that the landowner's actions 
will further reduce?
    Mr. Knowles. That's the nature of the permit that we are 
providing them, an incidental take permit.
    Senator Crapo. So you are saying that the language of the 
statute cannot occur. I mean, the statute accommodates 
circumstances in which the landowner would not appreciably 
reduce the likelihood of survival. But you are saying that if 
he is seeking an incidental take permit, that he is going to 
reduce the likelihood of survival?
    Mr. Knowles. No, I am saying that the reasonable landowner 
is negotiating with us for an incidental take permit and an 
HCP, as an action that they'd like to undertake. They need to 
submit a conservation plan that indicates the kind of actions 
and the kind of mitigations. Our review standard is: Are the 
actions as mitigated going to appreciably reduce? Our goal is 
to provide proper functioning conditions for the life of those 
permits so as to provide for the long-term survival of the 
species, and not reduce the likelihood of that long-term 
survival.
    Senator Crapo. So that we understand ourselves here, are 
you equating incidental take with jeopardy?
    Mr. Knowles. I don't think so.
    Senator Crapo. OK, so----
    Mr. Knowles. I mean pragmatically, again, these species are 
listed, depressed, we know that in most cases the cause of that 
has been the lack of properly functioning conditions and 
habitat. So our goal, as part of the HCP process, is to work in 
that direction.
    Senator Crapo. Well, I want to be sure that I understand 
today what your position is, which is why I keep hitting at 
this, but again, the statute clearly contemplates that a 
private property owner can undertake an activity that will not 
appreciably reduce the likelihood of survival. I mean, that is 
the wording of the statute.
    Clearly, that is understood in the context of an incidental 
take permit because that is the whole concept of HCPs.
    Mr. Knowles. Right.
    Senator Crapo. But I am hearing you say that if the 
landowner is going to be seeking an incidental take permit, 
therefore, he is reducing the likelihood of survival, which 
means that what is in the law NMFS takes the position can never 
happen--a landowner seeking an incidental take permit in the 
context of an HCP that would not appreciably reduce the 
likelihood of survival. You are saying that if there is an 
incidental take, there is a reduction of the likelihood of 
survival. Am I correct?
    Mr. Knowles. I don't think that is what I meant to say.
    Senator Crapo. Well, why don't you make a stab at it and 
try to clarify it for me.
    Mr. Knowles. Section 10 applies a no-jeopardy standard 
expressed in terms of survival and recovery. We are considering 
the severely depleted, wide ranging species such as salmonids. 
Our goal in these HCPs is to achieve during the term of the 
plan the essential habitat functions required for long-term 
survival. The conservation plan submitted by the applicant 
would lay out for us how the effect of the action would be 
mitigated.
     If the question is, does any additional incidental take 
trigger the threshold, I'm not sure how to evaluate that 
theoretically. It is very difficult for us to draw a line 
between those actions, or to draw a line between those 
prescriptions needed for survival over the long term and those 
prescriptions needed for recovery.
    I'd be glad to try to follow up with you, if I can, and try 
to give you a more on-point response.
    Senator Crapo. Well, we may need to do that. I think that I 
am understanding you but, if I understand you right, I think 
that either Congress was wrong or NMFS was wrong. And either 
Congress was asking for something that cannot happen or NMFS is 
saying something can't happen that really can.
    Mr. Knowles. Well, in that case I am confident that I have 
misspoken.
    Senator Crapo. We'll explore that further.
    Let me shift to you, Ms. Clark, and without going into the 
whole series of questions again, do you have any comments on 
this dialogue that we have been having here in terms of the 
context of Fish and Wildlife?
    Ms. Clark. Let me see if I can try to wade in.
    Senator Crapo. I am inviting you to wade in.
    [Laughter.]
    Ms. Clark. I am trying to figure out where to start. The 
standard of section 10 does not appreciably reduce the 
likelihood of survival and recovery of the species in the wild.
    Senator Crapo. Right.
    Ms. Clark. Recognizing that in the specific circumstances 
that Don is referring to, especially the salmonids, those 
species are really on the brink, in real serious trouble, very 
close to extinction, in severely degraded habitats, poor 
returns, and one could argue, are real close to extinction. 
When you have a species like that, and it is like that for some 
of the species that we deal with, like some of the Colorado 
River Fish for instance, we're sitting on what I term a 
jeopardy baseline. That these species are in trouble, their 
survival and recovery in the wild is already in question. And 
so, when you have an action, a Federal action, which would be 
the approval of a permit to incidentally take a listed species, 
we are obliged to insure that any action that we approve, which 
would be to grant an incidental take permit under section 10. 
The granting of an HCP doesn't jeopardize the species. The way 
that I will presume to interpret what NMFS is saying, what 
would certainly make sense to me, is that when you have a 
severely depleted species, you have a species sitting on a 
jeopardy baseline, and that we are charged with insuring low 
jeopardy.
     The National Fisheries scientists are looking at the 
salmonids, particularly for wide-ranging salmonids, to describe 
what a properly functioning condition would look like. And 
that's the tack or the threshold or the status of the landscape 
that they are trying to achieve to ensure equity across the 
rule to the species.
    Mr. Knowles. That is correct.
    Senator Crapo. I think that I am understanding you but if I 
understand you correctly, then what you're saying is HCPs are 
basically not an option, in that circumstance.
    Ms. Clark. Not necessarily. The one issue that I will agree 
with is that that doesn't appreciably reduce the likelihood of 
survival and recovery in the wild. You have that clarifier. If 
that is the jeopardy standard, then for species that are 
sitting on a jeopardy baseline, we have to create a mechanism 
to ensure or create a lift in the landscape, if you will, to 
ensure that those species are not further compromised.
    So, Mr. Chairman, it is certainly a greater challenge for 
species that are on the brink, but I don't believe that it is 
impossible.
    Senator Crapo. Let's see if we can reach agreement on one 
policy issue, leaving aside whether as a practical matter it is 
achievable. Even in the situation that you discuss where there 
is a species on the jeopardy baseline, if a private landowner 
could show that a proposed HCP plan that the landowner was 
offering would not appreciably reduce the likelihood of the 
survival of the species, would not take it any further below 
the jeopardy baseline or whatever, would that as a property 
matter qualify for an HCP that shouldn't be approved?
    Ms. Clark. If the action that the private landowner was 
endeavoring to undertake on internal review by the Fish and 
Wildlife Service, for instance, would be determined to not 
appreciably reduce the likelihood of survival and recovery in 
the wild, that action would go forward, that action would be 
passed.
    Senator Crapo. OK, and it would not be proper for you, or 
any agency to go further and impose a higher standard of action 
on the part of the landowner. Again, leaving aside for now the 
debate as to whether that's possible or not, but as a policy or 
theoretical matter, there is no basis in law for imposing a 
higher standard on the landowner, is there?
    Ms. Clark. The standards are as they are on section 10. 
Correct.
    Senator Crapo. Do you agree with that Mr. Knowles?
    Mr. Knowles. I think so. The standards are as they are on 
the statute, clearly I do agree with that. I think our concept 
is if the habitat conditions are below properly functioning 
condition at the current time, if nothing happened over the 
long term, the conditions would return or improve to properly 
functioning condition. Essentially, the activities covered by 
the incidental take permit slow down the rate at which 
conditions return to our goal, our long term survival goal of 
proper functioning condition. So, I think the answer is yes.
    Senator Crapo. All right. We still probably have a big 
debate over what is achievable, but I want to be sure that we 
aren't in disagreement over what the statute says the standard 
is.
    Ms. Clark do you agree that the role of HCPs is to restore 
functioning ecosystems?
    Ms. Clark. No. I don't, but I also don't believe that 
National Marine Fisheries Service is saying that either. The 
role of HCPs is to ensure the appropriate balance between 
economic growth or economic development, and species 
conservation; the standards of which are set out. I really do 
believe this small segment that is causing this knot in the 
discussion is for those species that are in real deep trouble, 
in dire straights, and sometimes when you are sitting on a 
jeopardy baseline for a species, it actually might be necessary 
to try to improve the ecological condition to prevent 
extinction. And I think that might be what we're dealing with 
some of the species that we deal with and certainly probably 
very clear in the salmonid situation.
    That is different than the ``big functioning ecosystem 
issue,'' but I think, these debates get more focused on a case-
by-case basis, and especially with salmonid, that the National 
Marine Fisheries Service is dealing with.
    Senator Crapo. Aren't you glad they've got those?
    [Laughter.]
    Ms. Clark. Yes I am.
    Mr. Knowles. Yes, we are too.
    [Laughter.]
    Senator Crapo. I have a lot more questions but I also have 
a lot less time for the next two panels than I would like to 
have, as well. So, I believe that we will excuse this panel.
    Wait a minute, I'm sorry, I do have one more question that 
I want to ask of both of you before we go on.
    There is a common concern that has been raised to us by 
other witnesses and others who we've been working with what I 
wanted to ask both of you to comment about. And it is a 
question that is raised in a very pragmatic sense about the 
fact that as we are negotiating HCPs between private landowners 
and agency personnel, that staff changes or a lack of staff, 
which you have raised here earlier, make it very difficult to 
negotiate.
    The indication we've received is that every time there is a 
staffing change which is far too often, the process seems to 
just go back to, not maybe to zero but way back down the chain 
and start pretty much over again and start moving forward. And 
the problem with delays and consistency in working with the 
agencies is becoming one that is constantly being brought to 
our attention.
    First of all, I guess my question is, are you aware of 
this, and do you have a suggestion as to how we can address it?
    Ms. Clark, do you want to start out?
    Ms. Clark. I would be happy to. I am painfully aware and 
share the frustration that many of the applicants are 
expressing, because I have seen it happen and it is starting to 
happen at an alarming rate. We are losing folks due to the 
sheer enormity of the workload and the pressure of this demand. 
Staff are either leaving or changing to other jobs just because 
of workload stresses. The transitioning of staff in and out of 
the program is extremely frustrating, not only to us who are 
trying to provide that consistency and streamlining, but I am 
sure that it is very frustrating to those that are on the 
receiving end.
    We have done other things, first of all we have the 
flexibility of trying to improve our bench strength by 
providing backup in some of these cases, but that doesn't 
exist, particularly it doesn't exist in most of the country 
except for in some focused areas.
    We are also, through our National Conservation Training 
Center in Shepherdstown, WV, been putting on a series of 
training courses to try to get more folks more broadly and 
quickly trained, in not only the area of habitat conservation 
planning, but in the areas of technical negotiations and 
teamwork, to try to better equip folks for some of these 
complex negotiations. But we are looking for ways to address 
this retention challenge in the program all the time.
    Senator Crapo. Well, thank you. I encourage you to do that 
and to work closely with us as we address not only the funding 
issues, but the structural management issues as well.
    Ms. Clark. Absolutely. Be happy to.
    Senator Crapo. Mr. Knowles.
    Mr. Knowles. We have between 20 and 30 people in the 
Northwest region and the Southwest region working a combination 
of full-time or part-time on various conservation activities, 
including 4(d)s and HCPs. And if one assumes a normal turnover 
rate, it is inevitable that we are going to have some of these 
problems.
    Notwithstanding that, our goal on the management side is to 
reduce the frustrations that private landowners suffer at our 
hands in the HCP process. Currently we can't achieve our goals 
without landowners feeling like they're getting good customer 
service, and that they are getting clear guidance in a timely 
way. That is our challenge. Frankly, more funds would help. I 
don't think they're the only answer, but I do think they'd make 
a significant contribution.
    Issues like bench strength, and adequate planning and lead 
time would be very much easier to accommodate with these 
changes.
    Senator Crapo. One suggestion that has been brought to our 
attention is the idea that perhaps HCP Swat Teams could be put 
together, and I don't know if you've heard them called that 
but, these are teams for specific species or specific regions 
who could work together in negotiating HCPs, in other words use 
their expertise and common experience so that they could bring 
rapid response to a species or a region without having to sort 
of recreate the world every time we get into an issue.
    Is this something that you are both familiar with and what 
are your thoughts about it?
    Ms. Clark. I am. We, in actuality do call in Swat Teams, 
actually. It has worked with a fair degree of success in the 
Northwest. I will tell you, Mr. Chairman, that we just don't 
have the luxury of Swat Teams when we are one deep. We are one 
deep over most of the country and you've probably heard that 
from Senator Thomas, that we just don't have the bench strength 
to be as responsible as we'd like. Certainly as you migrate 
east it gets more challenging.
    When we do have Swat Teams, they work interactively with 
each other and provide that backup in the event that there is 
transition out of the program, or there is a need to focus in a 
specific area. They get accustomed to the kinds of HCPs, the 
kinds of habitats and the kinds of species. So in areas of 
California and the Northwest, that has been working much better 
than in areas where we don't have SWAT teams. So I am very 
supportive of them.
    Senator Crapo. Thank you.
    Mr. Knowles.
    Mr. Knowles. Yes, I would agree with that. I think we have 
something like 35 HCPs that we are currently working on and I 
think we have got fewer people than that. So the concept of 
Swat Teams needs to be taken in that context.
    Senator Crapo. Well, thank you. I do have a lot more 
questions. Maybe I will submit them to you in writing and get 
your written responses to them and I appreciate your taking the 
time to come here today. Something I omitted at the outset 
which I intended to say was that we know that you have become a 
new mom since the last time you were here, Jamie.
    Ms. Clark. I have.
    Senator Crapo. And we congratulate you on that.
    Ms. Clark. Thank you. I appreciate that.
    Senator Crapo. And I hope everything is going well.
    This panel is excused. Thank you once again for your 
attention.
    Our second panel is Mr. Jimmy Christenson, Council for the 
Department of Natural Resources of the State of Wisconsin, and 
Mr. David Donnelly, Deputy General Manager of the Southern 
Nevada Water Authority.
    Gentlemen, thank you for coming. I assume you heard the 
instructions about the lights and we ask you to please try to 
pare down what you say so we can have some give and take. And I 
again reassure you that we do very carefully review your 
written testimony and it will be very carefully reviewed.
    Mr. Christenson, would you like to start?

STATEMENT OF JIMMY CHRISTENSON, COUNSEL, DEPARTMENT OF NATURAL 
       RESOURCES, STATE OF WISCONSIN, MADISON WISCONSIN.

    Mr. Christenson. Mr. Chairman, Members of the subcommittee. 
My name is Jim Christenson. I am an attorney for, and am 
appearing on behalf, of the Wisconsin Department of Natural 
Resources.
    And we thank you for the opportunity to appear before you 
today.
    My testimony is largely based on my experience with the 
recently completed grant to the statewide Karner Blue Butterfly 
Habitat Conservation Plan in Wisconsin.
    HCPs often suffer from lengthy review processes and delays, 
very high non-federal financial costs, and difficulty in 
gaining the participation of private landowners. Wisconsin's 
Karner Blue Butterfly HCP demonstrates this need not be the 
case.
    I can admit that the HCP process can and does work to 
provide further conservation efforts for endangered and 
threatened species, especially on private lands. But we must 
work to remove obstacles pertinent to achievement of this 
success. A couple suggestions: Delays--Agency staff must treat 
HCP processes as a high priority. They must embrace the vision 
that partnerships can accomplish what agencies cannot do alone, 
and they must participate early in the process. I am glad to 
say that in Wisconsin we enjoyed that.
    Federal agencies must seek and encourage participation in 
the State conservation agencies. They are the resident species 
managers in the State. And I suggest that they also should seek 
funding and provide it where needed to continue the process and 
keep it moving so as to reach completion. State agency funds 
are limited, we must depend on partnerships and we sometimes 
need help to keep it going. Their delays will undermine both 
the enthusiasm and commitment of partners to this process, and 
we witnessed that with the Karner Blue Butterfly Conservation 
Plan.
    How do we gain partnership?
    Excuse me, first let me talk about financial costs. From 
the Karner Blue process, the cost of developing and 
implementing the HCP is significant but need not be out-of-
pocket dollars.
    Landowners often have significant knowledge about species 
on their land and how their management may affect them. Their 
contributions of land management with consideration of species 
and participation in HCP implementation oversight is 
invaluable. This kind of contribution must be considered as 
adequate funding mechanisms under the incidental take 
provisions of the Endangered Species Act.
    How do we gain partnership with private landowners? I 
submit that we can gain partnership when the species allows, 
through the incorporation of conservation measures and 
strategies into their land management rules and land use 
consistent with their objectives, as long as they are 
incorporated in a manner that will not significantly interfere 
with those objectives. In this manner we can achieve not only 
conservation but gain long term land stewardship.
    Those real estate agents who are the leaders of the HCP 
process must be willing to commit necessary time and assistance 
to potential landowners to gain their participation and their 
trust. Time and trust are invaluable tools we cannot do 
without.
    Participating State conservation agencies in the process 
can often help by bringing to the collaboration scientific 
expertise, biological information, facilitation capabilities, 
and long-term administrative commitments to a conservation 
plan.
    A correction which has been discussed much today. The 
Wisconsin Department of Natural Resources as a conservation 
agency, views recovery as ultimate success. We must be cautious 
about pursuing it through an HCP unless participants are 
willing when seeking private landowner participation, and they 
in my experience balk at committing to recovery. We must, of 
course, recover species, and I believe that we will continue on 
that road. I believe that many landowners will participate with 
us, but that is later in the process.
    Again, Mr. Chairman and the subcommittee, I thank you for 
this opportunity to testify and I am available for questions.
    Senator Crapo. Thank you Mr. Christenson.
    Mr. Donnelly.

 STATEMENT OF DAVID DONNELLY, DEPUTY GENERAL MANAGER, SOUTHERN 
  NEVADA WATER AUTHORITY, LAS VEGAS, NV; ACCOMPANIED BY JEFF 
    KITELINGER, THE METROPOLITAN WATER DISTRICT OF SOUTHERN 
 CALIFORNIA AND CHRIS HARRIS, THE ARIZONA DEPARTMENT OF WATER 
                           RESOURCES

    Mr. Donnelly. Thank you Mr. Chairman. Again my name is 
David Donnelly. I am with the Southern Nevada Water Authority 
in Las Vegas.
    Accompanying me today is Mr. Jeff Kitelinger with the 
Metropolitan Water District of southern California, and Mr. 
Chris Harris with the Arizona Department of Water Resources.
    For many years in this committee's hearings and in bills 
reported out of committee related to species and habitat 
conservation, we have endorsed public private partnerships to 
preserve habitat. This committee has worked to encourage 
worthwhile Federal, State, and local habitat conservation 
programs. The Lower Colorado River Multiple Species 
Conservation Program is just such an effort. We want to take 
this opportunity today to familiarize you with our project and 
to ask that this Committee and this Congress help make this 
ambitious habitat conservation concept a reality.
    But why is the MSCP important?
    The Lower Colorado River is the lifeblood of the Southwest. 
Over 1.8 million acres of agricultural land is irrigated with 
its waters. Twelve billion kilowatt hours of power are 
generated from its flows. Twenty-two million people receive 
their drinking water from the Colorado River. Billions of 
dollars in recreational benefits are derived from the river, 
and while we are trying to satisfy all of those needs, we are 
also trying to find a balance to help conserve the river's 
ecosystem.
    On August 2, 1995, the United States and the States of 
Nevada, Arizona, and California entered into a historic 
agreement to develop a Lower Colorado River Multi-Species 
Conservation Program. The MSCP participants include the water, 
power, fish, and game agencies of Nevada, California, and 
Arizona; The Department of Interior, Native American Tribes, 
local governments, and other stakeholders. Nearly one hundred 
species and their habitat will be addressed in this program.
    While much is known about some of the species in the MSCP; 
there is little information about a number of others. To fill 
the gap in our knowledge we must have a program that can 
integrate adaptive management techniques into the active 
conservation measures.
     The MSCP will identify and conserve critically-needed 
habitat including back waters, marsh, and riparian Mesquite 
habitats. It will seek to recreate and restore historic 
ecosystem functions.
    Mr. Chairman, I know you are very aware of the character of 
water development and delivery in the Western United States. In 
the West we have a mix of Federal, State, and private 
development of water resources which sometimes result in a 
substantial inequity among users on the River. This is 
particularly true in the Lower Colorado River. The Secretary of 
the Interior is the water master for the Lower Colorado River, 
and the Federal Government has significant holdings and trust 
responsibilities along the River. But some water users who 
receive water from a conveyance with a Federal nexus, the 
classic certainty that exists in section 10 of the Endangered 
Species Act for Habitat Conservation Plans does not exist. 
These water users sometimes with identical needs, identical 
commitments to habitat conservation, and identical financial 
commitments as their neighbors do not receive the section 10 
``no surprises,'' but rather continuing uncertainty of a 
section 7 consultation for the Bureau of Reclamation.
    We believe that a plan to provide conservation equity 
should be developed. As you are aware, those whose livelihood 
depends on a Federal facility are subject to uncertainties of 
continuing consultation under section 7 of the Act. 
Conservation equity would assure the same level of certainties 
among Federal and non-Federal parties.
    As you can appreciate, the development and coordination of 
the Lower Colorado Multi-Species Conservation Program is a 
major undertaking. It is at times difficult to keep all the 
participants committed to the MSCP process. This is 
particularly true when the efforts under the ESA are not 
certain.
    We need congressional support for this ecosystem-based-
approach to ESA conservation. We need Congress' endorsement of 
the cooperative partnership reflected in the MSCP. Authorizing 
statutory language to ratify the ecosystem-based approach 
agreed to by the parties and extended regulatory assurances to 
resource users of the Lower Colorado is needed. Federal 
participation in the MSCP must also be funded. Together we can 
conserve habitat and develop the resources of the Lower 
Colorado River benefiting both species at risk and citizens who 
rely on that resource.
    Thank you.
    Senator Crapo. Thank you very much Mr. Donnelly. I 
appreciate your coming here to testify.
    Mr. Christenson, I will start out with you. First of all, I 
thank you for the Karner Butterfly pin which I am wearing. We 
hope there are successes and achievements across the country on 
species that will generate these types of focus.
    I'm sure you heard the testimony and the exchange between 
myself and the first panel on recovery issues. Could you tell 
me what role recovery plays in the Karner Blue Butterfly HCP, 
and did recovery raise issues with the other partners?
    Mr. Christenson. Well as I mentioned in my statement, the 
issue of recovery especially by the private landowners was a 
very sensitive issue. From the first day, 5 years ago, anytime 
recovery was raised as an issue by the Fish and Wildlife 
Service staff, they basically went through the ceiling--
primarily based upon this issue: of what is the role the HCP is 
intended to achieve and what role should non-Federal partners 
play in recovery? In fact in our plan, Wisconsin DNR is 
committed to recovery. We've had a lot of successes; we are 
going to have more in the future and there is no doubt in 
Wisconsin if it's not recovered already, it will be, we think 
within the permit period.
    Probably the biggest issue that we have in the State of 
Wisconsin is that we still do not have a final recovery plan. 
We have spent 5 years engaged in the HCP and we have now 
completed it. There is a draft but no final recovery plan, 
which does make it somewhat difficult to immediately try to 
gain commitments from private landowners for recovery.
    I might also add though, that a number of the 26 partners 
we have including DNR, including a number of county forest 
participants, the Nature Conservancy has committed to do 
recovery activities. Again the process is somewhat stagnant at 
this point in time because we don't know exactly what the 
target is.
    One other issue that we are struggling with is 
invertebrates, because invertebrates, by the law are treated 
range-wide. There is no opportunity for distinct population-
segment treatment. In Wisconsin we couldn't even meet the 
threshold to list the Karner Blue Butterfly as a State 
threatened or endangered species. We have an abundance of 
butterflies. So in terms of recovery and where we go in the 
future, those are a couple issues that we have to deal with. 
How successful can we be in Wisconsin, and secondarily how does 
that play in to a range-wide listing of invertebrates?
    Senator Crapo. Do you think the private landowners would 
have ultimately agreed to the HCP if the recovery standard had 
been enforced?
    Mr. Christenson. No, I would assume that the majority of 
the partners would not have, at least private landowners. 
Again, we are lucky we have quite a bit of public land but the 
private landowners would have gone there. I will say, that I 
think once we have an HCP and once we have demonstrated how 
successful this can be, I am pretty confident that some of 
those private landowners will help and assist with recovery. 
But they have to be able to demonstrate that commitment they 
are making at this time to their shareholders, or to their 
managers, or to themselves in terms of what they can do in the 
foreseeable future. But again, I have had some of them tell me 
that once they have met their commitment they will probably go 
beyond that but they certainly can't sell to their businesses 
or their shareholders any more at this point in time. I don't 
mean reluctance to engage willingly, and that was our 
threshold.
    Senator Crapo. And the lead agency you were dealing with 
was Fish and Wildlife Service?
    Mr. Christenson. Fish and Wildlife Service, Region 3, in 
the Green Bay Field Office. They were well-equipped to deal 
with that.
    Senator Crapo. Did Fish and Wildlife raise recovery efforts 
or seek to impose recovery standards?
    Mr. Christenson. Oh, absolutely. Absolutely. And we still 
have biologists working on the project that will seek to 
discuss that every chance they can get. We understand where 
they are going on this. But we have been very firm that as we 
want recovery in Wisconsin, we're not there with this process. 
This process will probably help but we're not there.
    Senator Crapo. Did the Department have a complete 
understanding of the magnitude of the commitment it was making 
when it agreed to the HCP?
    Mr. Christenson. Well I don't believe so. I think the 
management of the Department met with the Region 3, 5 years ago 
and probably thought this might be a quick deal. But as one of 
the people who have devoted 30 to 40 percent of their time in 
the last 5 years, I don't think anybody understood that it 
would take that kind of time. But it is a commitment.
    Senator Crapo. Did the length of time that it took to 
negotiate and achieve the HCP impact or create any particular 
problems that you could advise us about?
    Mr. Christenson. Well I think the biggest issue is the fact 
that if you are involved in a long-term process, people come 
and go. The attorney we dealt with Fish and Wildlife Service 
who really was very instrumental in getting us where we wanted 
to go left. We really didn't engage in any problems trying to 
get a new attorney involved, but the staff both in the Green 
Bay Field Office and Region 3 have been there consistently. 
There was a scare that the program coordinator may leave last 
year but she did stay around. In addition, some of the people 
that we had as potential partners left. I think the issue 
becomes how long can you keep it on the front burner? And some 
of them decided that they were not going to wait around.
    Senator Crapo. I want to ask a question about that, but I 
wanted to indicate to you that I very strongly agree with your 
testimony about the value of partnerships rather than a command 
and control decisionmaking process. I am very committed to 
seeing if we can work this into Federal and environmental law 
as a process in many other arenas as well as this one.
    I do want to ask you one last question. With regard to the 
exchange that we had with the first panel, there is a 
distinction between not causing--I am forgetting the statutory 
language now--but between the recovery standard and basically 
not causing further jeopardy. Do you agree that distinction is 
achievable, that we can in negotiating HCPs work off of that 
policy distinction.
    Mr. Christenson. Well, we do. The goal of the Karner Blue 
Butterfly HCP is basically no-net-loss of habitat. That is 
where we start. Some of the partners will be involved in long-
term enhancement which we think is a little different issue, 
and probably more of a mitigation issue than a recovery issue. 
But we think that we can start there by not appreciably 
reducing the likelihood of recovery.
    Again, we are absolutely committed to recovery. That is our 
goal as a conservation agency and many of our partners'. But we 
still see this HCP process as getting these people to the table 
and working with them. We didn't think when we get to the 
recovery efforts they will probably be with us. But we've got 
to demonstrate that we can work on conservation.
    Senator Crapo. I agree with you, and it gets back to the 
notion of either a collaborative decisionmaking process that 
involves partnerships or a command and control decision making 
process that involves suspicion.
    Mr. Christenson. Exactly. Worse.
    Senator Crapo. Mr. Donnelly, you have testified that the 
Lower Colorado Multi-Species Conservation Plan is using an 
ecosystem-based approach.
    Mr. Donnelly. Yes.
    Senator Crapo. Could you explain what this means and why it 
is a useful concept for application to your efforts and why you 
believe that authorizing legislation would be helpful in that 
approach?
    Mr. Donnelly. Certainly. In the ecosystem approach, what we 
are trying to do is try to just restore the historical 
ecosystem of the whole river system and consequently we think 
this will provide benefits to a number of species, not only the 
currently listed species. And the goal of our program is to 
move toward recovery, we think this will do this.
    This Lower Colorado River is several hundred miles long. 
The regulation that deals with each species through section 7 
just doesn't work. We need a more comprehensive program.
    Senator Crapo. Do you have suggestions on what statutory 
language might be needed?
    Mr. Donnelly. The biggest concern we have is that we are 
spending millions of dollars on the various agencies and at the 
end of the day there are really no assurances because the 
section 10 ``no surprises'' doesn't extend to section 7. So 
consequently a big issue for all the stakeholders is that they 
need some assurances that activate a defenses program, spend 
these millions of dollars, that there will be some assurances.
    Senator Crapo. I know that in your written testimony the 
section on conservation equity that you discuss--I wanted to 
let you know that I agree very strongly with your notion there 
that, well, not only that in the MSCP arena, that we need to 
have some type of certainty as you describe.
    I also picked up in your testimony a distinction between 
how we are treating landowners and issues relating to water. 
Water is the lifeblood of virtually all of our communities. In 
fact if you think about it, in the Pacific Northwest or even 
just in the West, where do people live? Where the water is. 
That is what they use for drinking, for recreation, for 
species, for quality-of-life issues, for flood control matters, 
for power generation, and for transportation. It seems that 
there is virtually no aspect of our lives that isn't directly 
related to water. I think that you raise a very good point in 
that context.
    Do you believe that as we address conservation equity, that 
the approach that we to achieve HCPs, namely ``no surprises,'' 
is the right direction?
    Mr. Donnelly. Yes, I think that some type of assurances in 
the section 7 process is necessary. Again, when you deal with 
millions of dollars, taking years to develop these programs, 
you need some sort of assurance that there won't be another 
species listed and then you'd be back to square one. That is 
what a lot of the stakeholders see happening with the current 
framework.
    Senator Crapo. One other issue was central in our last 
hearing. How do we as a Nation impose or successfully enact a 
``no surprises'' policy when we don't know what the future will 
bring--whether there will be another species identified that is 
in jeopardy or whether there will be environmental 
circumstances that we did not take into consideration as the 
plan was being developed. How do you respond to that issue?
    Mr. Donnelly. Well we have a program, not a plan, we think 
there is a big difference. And our program is to be adaptive. 
We have goals. And one of the goals that I mentioned a second 
ago is to prevent future listings. One of the goals is to move 
toward recovery. And there is a whole list of other goals. 
Through this adaptive route we think we can address that. As 
the situation changes, our plan changes but our goal stays the 
same. We just have to maybe get to it in a different direction.
    Senator Crapo. Now what happens if, as the situation 
changes and you adapt your plan, some of the people who have 
signed off on the previous plan don't agree with the 
adaptation. Are they then caught in a process that sweeps them 
along to the new change or can they step out at that time if 
they don't agree?
    Mr. Donnelly. Well, we haven't reached that point in the 
process yet, so I am really not sure how they would respond to 
that, but certainly, assurances are what people are looking for 
right now. We want to know that if we move forward today that 
we have some assurances that at least for the short term, and 
for what we know today, that we can get some protection.
    Senator Crapo. Would you agree, or would you state that the 
assurances or the certainty that the participants in this plan 
are seeking, is key to its success?
    Mr. Donnelly. Absolutely.
    Senator Crapo. All right, as with the other panel, I do 
have a lot of other interesting things that I would like to go 
through but we are already working on a timeline here.
    I would like to thank you both for your participation, both 
on the panel as well as your written testimony. And I invite 
you to keep us informed as insights come to you or as issues 
arise that you believe we should address.
    I believe that we are going to move forward and make some 
significant progress on this issue as we build this 
collaborative process here in Congress to try to move forward.
    Thank you very much.
    Mr. Donnelly. Thank you.
    Mr. Christenson. Thank you.
    Senator Crapo. We now invite our third and final panel to 
come forward. Ms. Maureen Frisch, the vice president of the 
Public Affairs of the Simpson Investment Company; Mr. Dan 
Silver, coordinator of the Endangered Habitats League; Mr. 
James Riley, executive director of the Intermountain Forest 
Industries Association, and Mr. Michael Bean, Environmental 
Defense Fund.
    We thank all of you for joining us.
    I remind each of you also, once again, to please follow the 
lights so that we can have an opportunity for an exchange.
    And we will start out with you, Ms. Frisch. Please proceed 
with your statement.

 STATEMENT OF MAUREEN FRISCH, VICE PRESIDENT, PUBLIC AFFAIRS, 
            SIMPSON INVESTMENT COMPANY, SEATTLE, WA

    Ms. Frisch. Good morning. Thank you Senator. It is a 
pleasure to be here.
    Senator Crapo. Thank you.
    Ms. Frisch. My name is Maureen Frisch. I am vice president 
of Public Affairs for Simpson Investment Company, which is 
headquartered in Seattle, WA. Simpson Investment Company is the 
holding company for Simpson Timber Company. We are a privately-
held company, owned and managed by the same family for almost 
110 years. We own approximately 870,000 acres of timberland in 
California, Oregon, and Washington.
    I am here today testifying on behalf of Simpson; The 
Foundation for Habitat Conservation, which is headquartered in 
Seattle; and a similar organization, The Coalition for Habitat 
Conservation, located in Laguna Hills, CA.
    The entities I am representing strongly support viable 
voluntary habitat conservation planning under the ESA. HCPs are 
an increasingly important conservation tool, however I must 
stress that HCPs will remain viable only if they are allowed to 
provide reasonable certainty at a reasonable cost, blending 
both scientific credibility and business sensibility.
    Making your way through the HCP process is extremely 
challenging for the regulator and the regulated. As a private 
landowner we simply ask that we keep the focus on finding a 
balance, one that reflects not only the very real need to 
protect species and habitat, but one that also enables private 
landowners to maintain viable businesses. Science and common 
sense both have an important role to play in this process.
    Some of the best applied science being done today is in the 
context of HCPs, however it is important to recognize that HCPs 
are more than scientific documents. They are also management 
and business plans. Science, as I said, needs to play an 
important role in formulating an HCP, but ultimately the plan 
must balance the minimization of impacts to habitat with the 
notion of practicability. That minimization having to do with 
any direct impacts the private landowner may have on that 
species, under the course of his or her business.
    Adaptive management as an important component of many HCPs, 
the ability to monitor what is happening, conduct further 
research, learn and make necessary changes as we implement the 
provisions of the HCP are designed into the plan.
    I'd like to talk about a couple of very important 
successes. And there are some successes out there which I think 
we need to duly note. Since I'm from the other Washington, I 
feel compelled to mention a recently crafted, statewide 
conservation agreement specifically designed to address both 
ESA and Clean Water Act issues. Anticipating the listing of 
Chinook Salmon and other aquatic species and having had an up-
close and personal experience several years ago with the 
Northern Spotted Owl, the State Forest Products Industry began 
planning in 1996 for a new round of what we call in the State, 
Timber Fish and Wildlife negotiations. Lots of discussions and 
use of the most current research available led to what has now 
become known as the Forest and Fish Agreement. Under this 
agreement, onwards of 8 million acres of forestland have 
committed to a substantively improved set of forest practices 
for all of the State's non-federal forest landowners. Over $2 
billion of timber and tree growing capacity is being set aside 
to provide effective stream side buffers and habitat protection 
to ensure cool clear water for fish and other aquatic species. 
This significant and volunteer commitment would not have been 
possible if not for the ability and willingness of the National 
Marine Fisheries Service and the Fish and Wildlife Service to 
offer long-term certainty to landowners. The Forest and Fish 
agreement also recognizes the difficulty small industrial 
landowners have in meeting stringent requirements of the ESA 
and a special compensation element was included in the 
legislation to compensate small landowners for lands restricted 
under their agreement.
    At the same time, Simpson was the first private landowner 
to obtain an HCP for the Northern Spotted Owl, covering our 
California lands. In its sixth year of implementation, we have 
banded almost 1,100 owls, on or near our primarily secondary 
forests in Humboldt and Del Norte Counties in northern 
California. The owl seems to be doing just fine, thank you, in 
forests in which the early scientists told us that they could 
not survive. And we have been able to carry out a successful 
timber operation that provides hundreds of jobs in rural 
communities in California's North Coast. Strong agency 
leadership, desire to get it done made a big difference to this 
process in the early 1990s.
    That same leadership has also made a big difference to 
Simpson in Washington State where it recently submitted a draft 
habitat conservation plan for a multi-species aquatic-approach 
covering 261,000 acres of our ownership in Washington State. 
This is also a plan that will bridge the ESA and the Clean 
Water Act serving as a draft TMDL once it is approved. Once 
again, we had tremendous cooperation at the regional levels in 
a number of agencies, NMFS, the Fish and Wildlife Service, the 
Environmental Protection Agency, and numerous State agencies 
that needed to be involved in this process.
    With ongoing and hopefully successes in the HCP area, 
Simpson has also experienced some troubling challenges with the 
program as have others, and our experience is in California. 
Over 5 years ago, we began the process of developing another 
HCP covering aquatic species on our California lands. We are 
still in that process; we remain committed to it but we have 
noted a lot of difficulties there and challenges that many 
other landowners have also had to address. Many of those have 
been mentioned, I have detailed several of them in my 
testimony. But let me just cover a few of them.
    One is having to do with timeliness. One solution could be 
to require agencies to commit up-front to specific timetables 
in writing, for HCP processing and deliverables. Progress, 
comments, and concerns, and an action plan be addressed 
efficiently and should be routinely provided to both the agency 
staff and the HCP applicant.
    Agencies should also be required to provide written 
examples of what the agency would consider to be reasonable 
alternatives to specific issues in the applicant's plan that 
need to be addressed.
    Make ``no surprises'' the law. It is the most important 
element to ensure the program's success.
    Volunteer support for multi-species plans, minimize 
conflicts created by overlapping jurisdictions and try to 
streamline the process, perhaps explore approaches to identify 
single lead agencies or even the special SWAT teams we talked 
about earlier that can address HCPs on a regional basis.
     Keep the focus on science at all times, and make sure the 
HCPs are affordable and can be completed in a timely manner.
    Thank you. I'd be happy to answer any questions.
    Senator Crapo. Thank you very much Ms. Frisch. I 
appreciated that and you got through it all pretty well, pretty 
fast.
    [Laughter.]
    Senator Crapo. I was following along here. You did a good 
job of that.
    Mr. Silver.

   STATEMENT OF DAN SILVER, COORDINATOR, ENDANGERED HABITATS 
                    LEAGUE, LOS ANGELES, CA

    Mr. Silver. Good morning Mr. Chairman. For the last 9 years 
I have been at the front lines of habitat conservation planning 
in southern California.
     In 1991 the listing of the California Gnatcatcher was 
predicted to cause an economic meltdown. Instead responsible 
people from all sectors took a risk that a cooperative approach 
was better than confrontation.
    Collaborative efforts have occurred under the California 
Natural Community Conservation Planning or NCCP program. NCCP 
is basically a large-scale HCP for multiple species, a Federal-
State-local partnership with stakeholder involvement. People 
from all sides are likely to call these path-breaking efforts a 
qualified success, which says a lot. A large scale HCP provides 
streamlined permitting, it provides certainty for the 
ecosystem, and open space for people. In fact, the preserves 
are often touted as environmental infrastructure, by elected 
officials, as necessary for future regional competitiveness as 
more traditional infrastructure.
    In Orange County a 37,000-acre preserve covering 39 species 
is in place. In San Diego County a 172,000 acre preserve 
involving hundreds of landowners is approved, covering 85 
species. Comparable programs are underway in Riverside, 
Southern Orange, northern San Diego, and these efforts have 
both business and environmental support. It can be done.
    What have we learned? A regional scale is critical. For 
example, piece-meal HCPs will not achieve recovery objectives, 
also a multiple rather than a single species scope is necessary 
to get ahead of the listing curve. With sufficient scale, sound 
scientific principles can be applied. State-Federal-local 
partnerships are essential. For example, local Land Use 
Authority helps assemble preserves. Federal planning funds have 
provided the means to undertake the efforts. I stress 
partnership rather than delegation. Only with intensive 
stakeholder involvement will implementable mechanisms be 
crafted to put the plans into place. In fact, in southern 
California stakeholders often drive the process. Given the 
opportunity people will work together and solve problems. 
However, only actual listings provide sufficient motivation for 
the parties to come to the table. The ingredient of independent 
scientific input is also important and an open process in which 
data is shared continuously establishes confidence. Assurances 
to species must be commensurate with assurances to applicants. 
To justify ``no surprises,'' HCPs should be large-scale, 
multiple-species, meet recovery objectives, have adaptive 
management, and scientific input. However for HCPs which rely 
primarily on managing renewable resources, changes in 
management may be a private sector responsibility.
    One of the most important factors for success in Southern 
California was linking species protection to related public 
purposes. That's open space and recreation provided by a 
preserve system to help a community achieve a vision for its 
future.
    Finally the provision of public land acquisition funds is 
an absolutely urgent need, despite significant mitigation from 
the private sector. Reaching biological goals requires major 
land acquisition. Perhaps this gets to your question, in the 
simplest terms, private mitigation gets us survival. Public 
funds get us recovery. And I think that if we keep that as a 
framework, I think we can really get somewhere.
    In conclusion, I urge you to reinvigorate the HCP process 
through large-scale-multiple-species HCPs and by allowing the 
public sector to do its share financially. I simply cannot 
stress the funding aspect enough. In my view, if you are 
serious about HCP reform, you will permanently and fully fund 
the Land and Water Conservation Fund. I have to tell you the 
frustration felt by people of all sides who have worked long 
and hard to produce solutions. But if you fully fund Land and 
Water, you will provide stakeholders the essential tool for HCP 
success and allow our shared conservation values to flourish.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Silver.
    Mr. Riley.

  STATEMENT OF JAMES RILEY, EXECUTIVE DIRECTOR, INTERMOUNTAIN 
        FOREST INDUSTRIES ASSOCIATION, COEUR D'ALENE, ID

    Mr. Riley. Thank you, Senator Crapo. I am Jim Riley. I am 
the executive director of the Intermountain Forest Industry 
Association in Coeur d'Alene, ID. We also have a biology office 
in Missoula so I can claim credit for two States.
    Senator Crapo. Well, he's not here so you don't need to go 
into it.
    Mr. Riley. OK, I'll be careful then. I am particularly 
honored to share the panel today with Michael Bean. A lot of 
our current thinking on how to bring HCP benefits to landowners 
in Idaho and Montana come from discussions Michael and I had 
some 3 or 4 years ago on some very cold days in Missoula. We 
were sitting around and talking about how to revise this entire 
Act, so I want to give credit where credit is due.
    I am here today to talk, not about the lag part of 
landowner HCPs that have been so well discussed before this 
committee, but to talk about how perhaps we've been thinking 
about bringing HCP benefits to the smaller landowners 
particularly the smaller forest landowners in Idaho and 
Montana. Pontica Timber Company, for example, is working on the 
most current HCP for native fish in these States. They have got 
2-million acres, they spent 2 years and invested $2 million and 
still have not brought this to conclusion. And we are talking 
about landowners who have far less than that and perhaps might 
be able to amass $20 to invest in the outcome.
    Our thinking really is about fish; it is about native fish, 
those are the listed species or the candidate species in the 
States that impact private land, and our thinking really begins 
with efforts in both States led by the Governors' offices to 
see if we could develop conservation plans for the Bull Trout 
and other fish, long prior to their listing. Our goal then was 
to see if we couldn't arrive at voluntary actions by all 
landowners to preclude a listing, a goal that has proved to not 
be reachable in either State.
    So, we are today with a listed species of the Bull Trout 
and the potential petition listing for other cold water native 
fish that we are trying to deal with. Our thought is to see if 
uniquely we can bring about a voluntary enrollment umbrella HCP 
that private landowners could examine as standards, and then 
voluntarily choose to enroll their lands or not, under that 
program. If they enrolled, compliance with those standards 
would be mandatory. They also--if they enrolled, the assurances 
afforded other landowners through HCPs and the long-term 
certainty of their management programs would be assured. We 
think that this is accomplishable because of the science that 
has been developed so far both by large private landowning 
companies and by our previous efforts on conservation 
agreements.
     The science really supports two general conclusions. The 
first is that there is not a ``take'' occurring in the classic 
sense by existing forest practices in either State. It is not a 
question of trying to define a baseline ``no take'' standard, 
but a question of what more can be done to enhance the habitat 
for these species. The second conclusion is exactly that. Are 
there reasonable measures that private landowners of any size 
can follow to provide a better habitat for the species on their 
lands without commitments of their assets or the investments? 
If such measures are available, the landowners who enroll the 
opportunity should be provided HCP assurances.
    So that began our work on a voluntary-enrollment HCP idea. 
We've had lengthy discussions within our membership, among 
Federal Government agencies, and particularly with the State 
governments about how to do this. It's inconceivable as you 
heard about the Karner Blue Butterfly example on the other 
panel, which was one of the examples we looked at, to view the 
voluntary enrollment HCP without the partnership of State 
government. They are the ones that help form the standards, and 
also the ones that help bring about implementation in 
enrollment in a program as we are thinking about.
    So I am pleased to report that in both States, in both 
Idaho and Montana, we have the strong commitment of the 
Governors of both those States to help us in this endeavor to 
try to evolve this type of program.
    The conflict we believe offers some pretty important 
benefits. The first, it's the quickest way to bring about 
improvements for the species across all landownerships.
    Second, it focuses attention on action rather than 
disputes.
    Third, it provides an incentive-based plan, not a 
regulatory tap-down directive plan for private landowners.
    And fourth and perhaps most importantly, it expands the 
range of choices available to private landowners and provides 
them the certainty that they are looking for.
    As requirements to get this done I mentioned the 
partnerships with the State; that is going to be essential. We 
often need the active support and cooperation of the Federal 
agencies.
    And you need to get past these naughty questions that have 
been addressed and the other problems about how one defines 
``take'' versus recovery, versus survival, versus some other 
concepts here that come into play. I think with some careful 
thinking and some reasonability about that we can do that.
    We need to assemble the necessary resources, and I want to 
thank the leadership of this committee as well as Senator 
Baucus for the effort in this appropriation cycle that resulted 
in the $300,000 appropriation in the next years Appropriation 
bill to the State of Montana so that they could do some work on 
this. We are still seeking a similar appropriation for the 
State of Idaho and are working on that at this time.
    And forth, and essential to the key to success is the 
ability to get over some of these legal questions to be sure 
that we can extend with certainty the legal assurances to 
landowners who enroll.
    I want to tell you I have great hope that this program will 
create some new ground and will provide a framework that 
everybody can participate in, both species recovery and HCP 
assurances.
    As a final matter, I would mention as my time is up, is 
that one of the most pressing issues now that I hope this 
committee will address itself to, is the nature of the 
interaction of the Clean Water Act and its standards with HCPs 
for fish. Under a recently proposed rule by the Environmental 
Protection Agency, reraises the whole questions of what 
assurances really exist, if you just deal with Endangered 
Species Act HCPs.
    That concludes my oral statement. I'd be happy to answer 
any questions as they might arise.
    Senator Crapo. Thank you very much, Mr. Riley.
    Mr. Bean.

STATEMENT OF MICHAEL BEAN, ENVIRONMENTAL DEFENSE FUND, CHAIRMAN 
     AND SENIOR ATTORNEY, WILDLIFE PROGRAM, WASHINGTON, DC.

    Mr. Bean. Thank you, Senator Crapo.
    If I may, I'd like to begin with a brief remembrance of 
Senator Chafee. I started my career with the Environmental 
Defense Fund the same year he began his career as a Senator and 
so I had many opportunities to interact with him in this 
committee. I have many fond memories, but the one I'll share 
concerns a symposium that the Smithsonian Institution held 
about 10 years ago on the occasion of Earth Day. It was a 
weekend symposium on the subject of conserving biological 
diversity. Senator Chafee was the keynote speaker. I have to 
admit, I don't remember what he said in his speech but that 
speech was given on Friday night and on Saturday morning the 
working part of the conference began. It was a beautiful spring 
day in Washington; the sort of day you ache to be outside. None 
of us expected to find Senator Chafee there the next morning, 
but he was there as Senator Baucus pointed out, right on time, 
and he sat through the entire day taking copious notes as one 
speaker after another spoke about the various technical issues. 
Frankly, in the more than 20 years here in Washington, I've 
never seen another Senator do that and probably never will. So 
he was a very special man and I certainly miss him and know 
that you do as well.
    Senator Crapo. Thank you.
    Mr. Bean. Let me briefly summarize some of the points that 
I've tried to make in my testimony.
    I have basically offered a number of recommendations, some 
of which are frankly directed at the agencies and can be done 
administratively, and some by the Congress. I'll quickly 
summarize those.
    Senator Baucus made the point that there is a need for 
consistency among HCPs and there certainly is a perception of 
inconsistency in how mitigation requirements among various HCPs 
are derived. I think one thing that the Services can do is to 
develop what I have called ``mitigation principles,'' or 
mitigation standards, either for individual species or for 
groups of associated species. They have done that for just a 
handful of species, but where they have done it, it has been 
helpful in letting regulated parties know in advance what their 
responsibilities are likely to be and I think it will reduce 
the cost of HCPs for participants.
    I've also made an argument in my statement for not allowing 
mitigation to be accomplished on Federal land. I think that is 
an unfortunate trend that has become established in a few cases 
and I think it is undesirable and should not be pursued.
    The third point I make is that increasingly Habitat 
Conservation Plans are utilizing the tool of conservation 
banking, or mitigating banking as it is sometimes called, as an 
element of the mitigation strategy. The problem with that is 
that at this point, neither the Fish and Wildlife Service nor 
the National Marine Fisheries Service has any guidance at all 
on that topic. As members of this committee know, there is a 
fairly long history now of the use of mitigation banking in the 
wetland context and it took the development of interagency 
Federal guidance in 1995 to regularize that and to put that on 
an even keel. I think the Fish and Wildlife Service needs to 
catch up in the endangered species context by putting out some 
clear guidance and policy on the use of mitigation banking in 
HCPs.
    The fourth point I have addressed is the standards for 
approval of HCPs. There was quite a discussion of that this 
morning. I think I can shed some light on the history of the 
confusion there but I prefer to do that after the lights go out 
since it will take a little time to do that.
    Senator Crapo. I will give you a chance.
    Mr. Bean. OK.
    [Laughter.]
    Mr. Bean. The last point I would make is to echo what a 
number of speakers have already said about the real need for 
resources. When I have talked to landowners and business 
interests, the common complaint that one always hears is that 
the Fish and Wildlife Service can't respond in a timely manner 
to their needs. I don't think that's because the Fish and 
Wildlife Service is simply ``stiffing'' them, I think the Fish 
and Wildlife Service simply is stretched so thin that it can't 
often deliver timely responses. And it is not just landowners 
and regulated interests. My organization is right now 
negotiating, with the Fish and Wildlife Service, hard for a 
permit to enhance the survival of endangered species on behalf 
of a number of rural landowners. It is a permit that will be 
helpful to endangered species, something the Fish and Wildlife 
Service recognizes will serve their interest, if it happens. 
Yet, because of their resource demands, it is extremely hard 
for us to get enough of their attention in a timely enough 
fashion to move this forward quickly.
    The last point that I would make is in reading the 
testimony of the American Farm Bureau Federation from 2 weeks 
ago, I noticed that they commented favorably on the Safe Harbor 
HCP that was developed for forest landowners in North Carolina, 
but they erroneously characterized that as the only safe harbor 
agreement that has been approved to date, and suggested that it 
may be a solution that only works there. In fact, there are now 
quite a number of safe harbor agreements around the country, 
many of which include rural landowners and small landowners. If 
I may, I'd like to submit for the record, a brief publication 
that we have prepared in collaboration with the National 
Cattleman's Beef Association, explaining this new tool and 
pointing out how it can, in fact address many of the concerns 
of rural and small landowners.
    Senator Crapo. You certainly may, we'd welcome that.
    Mr. Bean. Thank you.
    Senator Crapo. Does that conclude your testimony?
    Mr. Bean. That concludes my statement. Thank you, Sir.
    Senator Crapo. Thank you very much. Let me go back and just 
start over at the beginning again. Ms. Frisch. In fact this 
comment goes with regard not only to you, but virtually to all 
of the witnesses today. I appreciate the testimony because not 
only has it been helpful on the specific issues that you were 
asked to present information on, but it has contained a 
significant amount of specific suggestions about how we can 
improve either the Administration or the policy with regard to 
HCPs. Yours, Ms. Frisch did so very well.
    One of my first questions for you is, what kind of 
restrictions did the forest products companies agree to, in the 
Forest and Fish Agreement?
    Ms. Frisch. Well, in the Forest and Fish Agreement, let me 
note that it was a process of well over almost 2 years of 
negotiations between all of the stakeholders. The Fish and 
Wildlife process in the State is a process that is finalized; 
it has been in place for a number of years. It brings together 
numerous stakeholders to talk about and negotiate difficult 
conservation issues.
     In looking at current State rules in the State, an 
assessment was made that the rules were not adequate to protect 
water quality, primarily in the Riparian Management Zones, and 
that changes needed to be made, and so this is what brought the 
group together.
    So through a long series of discussions, lots of science, 
and certainly having every stakeholder with an important role 
at the table, a new package of rules is now working its way 
through the legislative process that will increase buffer 
zones, address water quality issues, some harvest-management 
issues, and it also has a very significant adaptive management 
component. Over time, as we learn more by doing and learning, 
we can make some changes to that plan to address the 
conservation goals of the plan itself in the agreement. So it 
is a plan. It is also based on continuous improvement but the 
restrictions are pretty significant; we are looking at 
significant ``leave-behinds'' of trees in riparian zones.
    Senator Crapo. Thank you.
    In your testimony you indicate that the significant supply 
industry to conserve fisheries resources would not have been 
possible had you not had a willingness of the Services to offer 
long-term certainty to the landowners.
    The question I had is, what assurances were they able to 
provide without issuance of an incidental take permit?
    Ms. Frisch. Well, what will happen with this plan, 
eventually, the life of the plan is 15 years. There are 
assurances there for protections against changing regulations 
in the future, but I want to admit also, that there is this 
adaptive management component. This is an agreement now, that 
has moved its way through the legislature, it has been signed 
into law by the Governor; it is now in the regulatory process. 
It is now being examined as an urgency rule, then a final rule, 
ultimately it will be a 4(d) rule, we understand that it will 
be part of the statewide recovery plan and a 4(d) rule that 
will be a draft 4(d) rule that will be introduced or released 
in mid-December in the State, and then eventually it will be a 
statewide HCP, with an incidental take permit. So it has a long 
way to go.
    It took us a couple of years to get where we are now, and 
we see a lot of work ahead. But we are hoping that we can keep 
the parties true to the agreement, which will be important for 
everyone to stay true to what we agree to probably many years 
before it ends up being a fundable HCP. That will be our 
challenge over the next several years, I think.
    Senator Crapo. Why is that going through the emergency rule 
route and so forth, rather than going directly to negotiate an 
HCP chosen?
    Ms. Frisch. We had to do that. We had to make changes at 
the regulatory level, at the rural level, to be prepared to 
move into a 4(d) rule, and then an HCP.
    We also realize that it is going to take us, probably 3 or 
4 years to negotiate an HCP, that it is going to be a very 
complex process. We wanted to make sure that we had provisions 
in place that could offset potential litigation which we think 
will be coming as a result of Chinook Salmon listings in that 
region, and other species, and also to address, frankly, 
section 7 consultation issues, moving forward to make sure that 
we could operate with a certain level of certainty over a 
period of time.
    Senator Crapo. You have testified that long term certainty 
is critical for the success of this effort but you have also 
testified about adaptive management and how that is, I assume, 
built into the concept of what you are working on. Could you 
clarify that, a little bit?
    Ms. Frisch. Well, the adaptive management, the components 
that we are agreeing to actually manage research and perhaps 
open up for changes, are agreed to and negotiated to up front. 
So there are some side bars in what will happen as a result of 
that. So, we seek the long term certainty of the regulatory 
process.
    The plan, the Forest and Fish plan does bridge, once again, 
the ESA and the Clean Water Act, so there is some certainty 
there on the water quality side, and yet we have negotiated an 
adaptive management component that is confined within the 
agreement itself and will stipulate when and what changes, what 
kinds of studies are needed, and how the plan will be modified 
in the future with the agreement of the stakeholders. So, that 
is a key component of it also, that the stakeholders who got us 
to this point win part of that process going forward with an 
adaptive management component.
    Senator Crapo. Now you say that the plan bridges the 
Endangered Species Act and the Clean Water Act. How? What I am 
getting at is that there isn't any process under the Clean 
Water Act is there, that gives you the kind of certainty that 
you need?
    Ms. Frisch. We were able to work with the Environmental 
Protection Agency and the Department of Ecology in the State 
to, because of the water quality component, to the plan itself, 
and the protections that are included there, and the benefits 
we think that we will accrue on that plan, we were able to seek 
some assurances on TMDLs, on processing TMDLs, a period of time 
where we would have an assurance that the current rules would 
satisfy, and that at some point down the future, of course, 
when we normally review, that it would go through that process.
    Senator Crapo. And the EPA did that voluntarily?
    Ms. Frisch. Yes. They did the same thing, by the way, or a 
similar approach in our draft HCP, which appears in the Federal 
Register a week or so ago, where this draft HCP will serve also 
as a draft TMDL, once approved.
    I really do want to comment on the tremendous cooperation 
we had out there in the region from the EPA office, Chuck Clark 
in particular, and others who really provided a lot of 
leadership. They wanted to show that the Acts could be 
compatible, that we could craft a plan that could bridge them 
and this will be the first individual plan to do that and we 
hope it will serve as a good model for others and perhaps lead 
the way for similar agreements.
    Senator Crapo. We all hope so, too. It looks like something 
that could really be a model that could be used.
    One last question, we have heard a lot about ``one-size-
fits-all'' concerns. On the other hand we are starting to see 
that there are a lot of areas in which standardization or the 
wisdom of previous negotiations and actions can be very 
beneficial in developing HCPs. Do you have any thoughts about 
where a greater standardization and approach might be helpful 
or appropriate?
    Ms. Frisch. Well, I think certainly we can learn from the 
plans that are working well, that we've crafted in the past. 
Standardization and processing perhaps some models in how to 
actually do it, how to process it, some efficiencies that could 
be used. I think it is important to recognize though, that the 
landowners' obligation under the ESA is to mitigate direct 
impacts on the species.
    I think it is also important to recognize that conditions 
are different depending on where your lands are located, 
habitat conditions, past activities, and current conditions. 
So, we feel it is important to stress, that though we 
appreciate the fact that standardization helps in some ways, 
and where it can be a benefit, that is great, but science needs 
to drive us and we really need to be able to craft plans that 
respond to and reflect the conditions and the mitigation steps 
that we are trying to impact on that land.
    Senator Crapo. Well, thank you very much. You provide us 
the materials that you've been working on with Secretary 
Babbitt.
    I assume those negotiations or those discussions with 
Secretary Babbitt are ongoing?
    Ms. Frisch. Yes, they are.
    Senator Crapo. I would welcome you to keep us informed of 
their progress and if there are further ideas that are 
generated from that.
    Ms. Frisch. We'd be happy to. Thank you.
    Senator Crapo. Thank you.
    Mr. Silver, you, in your testimony indicated that, let me 
put it this way, there is a big concern among environmental 
community folks with respect to the ``no surprises'' policy. 
And you have testified that you don't really have a strong 
objection to the kinds of assurances being given that are being 
discussed in this debate, as long as there is a commensurate 
protection for species that is assured as well. Could you 
explain a little more about what you have in mind there, and 
what assurances-policy might be able to be developed that could 
be acceptable from both perspectives?
    Mr. Silver. Sure. To provide a little bit of background, I 
think there is a distinction between the type of HCPs we are 
doing in southern California which are permanent preservation, 
permanent loss, and the sort of HCPs that are done on forest 
lands, or in renewable resources, water systems, which are in 
essence management plans. I can't really comment on ``no 
surprises'' for that type of HCP.
    Senator Crapo. I understand.
    Mr. Silver. I can comment on the type we're doing. And in 
the type we're doing, what really matters, is how good the plan 
is on day one. In fact, that is the only thing that matters. 
Fifty years from now, if there is a surprise in southern 
California, I don't care whose responsibility it is, 
fundamentally you are not going to be able to do anything about 
it because we are having permanent conservation and permanent 
loss. So, the important thing is how good the plan is on day 
one. It is not who pays for a surprise, and that is my own 
personal perspective. So how to get the plan as good as it can 
be on day one, a list of things: It needs to be large scale; it 
needs to cover multiple-species; it has to have that 
comprehensive approach; I believe it needs to meet recovery 
objectives because for a large-scale plan, in essence, that is 
the extent of conservation in that plan area, so you need to do 
your recovery objectives in the plan; you have to have adaptive 
management, scientific input. If those things happen, I have 
absolutely no problem with giving the ``no surprises'' 
assurances to the landowners. So, there is disagreement within 
the conservation community on that point, but it is my own 
belief that the people who are disagreeing with it are not as 
close to the ground as I am.
    Senator Crapo. It seems to me that the type of HCP you are 
talking about is much more of an ecosystem-based HCP. Am I 
correct?
    Mr. Silver. Definitely. But I also want to say that I do 
see a difference with the HCPs which are management. And I am 
not sure that it makes sense, it may be that changes in 
management over time, should be a responsibility of the private 
sector as time goes on in a management-of-renewable-resource 
type HCP.
    So, what I am saying is that when I am talking about my 
position on ``no surprises'' it applies to the type of HCP I'm 
doing, it may not apply to these forest plans, which seem to me 
to be fundamentally different. And I would leave it to others 
who have expertise in that.
    Senator Crapo. I think that you have raised an interesting 
distinction that I hadn't focused on heavily before, and that 
is that there may be different brands of HCPs. We've always 
talked about large-scale versus small landowner and so forth, 
but there may be some fundamental differences there that may 
require a differential treatment. Is that what you are saying?
    Mr. Silver. I believe that there may be. Yes.
    Senator Crapo. How are the large-scale HCPs addressed to 
the needs of the small landowner?
    Mr. Silver. Every place is different. Typically in the 
plans we are doing, there is, a biological mitigation ordinance 
crafted so that when any property owner comes in, they can 
simply read the ordinance, figure out how it applies to their 
property, and they know exactly what their obligations will be.
    These plans in southern California apply even to thousands 
of property owners. Typically, if it is a low-value habitat, 
the person will have a mitigation ratio that is known in 
advance. It is just written down; this is your ratio. If it is 
in a high value area, there may be an avoidance requirement, 
you ``avoid'' as your primary step. But it applies across the 
board to these landowners, large or small, and because we have 
a framework for conservation we can understand how it all fits 
together. Without that framework it is chaos. But these 
multiple-species plans have given us a framework in which to 
plug in the small property owner and see how that land fits in, 
and I think it is working.
    Senator Crapo. You indicated that you think that recovery 
is a proper standard for HCPs, and I am taking you to say that 
in the context of the type of HCP that you are talking about?
    Mr. Silver. Yes, I think we almost need a new term. I mean, 
I agree that the standard for an HCP is not to appreciably 
reduce the likelihood of survival and recovery. I am kind of 
using the term large-scale HCP to really mean something else, a 
different ``animal,'' as it were. A natural community 
conservation plan, or a different sort of plan that has a 
private contribution and a public contribution.
     In my view, the private contribution gets you the 
survival. There is a rough proportionality, there is a nexus 
test. They can only do so much. When you bring in the public 
contribution which is local, general public, State, and 
Federal, then you can get to the recovery objectives. And this 
new ``animal,'' you call it a large-scale HCP or you call it an 
NCCP or some other name perhaps; that is the recovery standard. 
Then you can get to the recovery standard. I agree with you 
completely. An HCP is not a recovery standard. Period. But to 
get to that in my view, you need this partnership approach. The 
individual property owner does their share, the public does 
their share.
    Senator Crapo. And in the context that we are talking about 
here, I am understanding you to say that as you move to this 
new ``animal,'' or new plan, it is determined by whether we are 
dealing with multiple species, full large-scale ecosystems, and 
the like, and has the participation of multiple landowners of 
different governmental entities or public sectors and so forth, 
and you start then, evolving into more of an ecosystem-
management approach as opposed to a landowner activity that 
needs to be addressed. Is that the distinction that you are 
trying to get at?
    Mr. Silver. Yes, absolutely. Absolutely. And I think we 
almost need a new name for this, because the term HCP really is 
confusing in that context.
    Senator Crapo. All right, thank you very much. I appreciate 
that.
    On another point that you raised, I agree with your premise 
that the process has to be transparent at each step, and can 
you talk for just a minute about your experiences in which 
participation and a transparent process have been successful?
    Mr. Silver. Sure. For example right now in Riverside 
County, we are working on a plan. It is extremely stakeholder 
driven. The advisory committees are almost the primary policy 
vehicle because the elected officials realize that if the 
stakeholders can't agree, we are probably not going to 
implement a plan.
    And in terms of scientific input, the County of Riverside 
has contracted with the University of California to provide a 
scientific review panel. That panel will review data at a 
series of milestones. They will have written reports available, 
publicly; this will all be on the Internet. It will be 
transparent at every step. There will be scientific review, not 
at the end, but at every step along the way. We'll have 
scientific review of preserve design methodologies, we'll have 
scientific review of preliminary rationales for species 
coverage. And what has happened in southern California is that 
we have kind of had a learning curve. The early plans weren't 
very good at this, but as time has gone on we've gotten better.
    Senator Crapo. All right. Thank you very much.
    Mr. Riley, once again, thank you for being here with us.
    Being the Senator from Idaho, I should have given you the 
big introduction at the beginning. But I didn't and I 
apologize.
    Mr. Riley. No apology needed.
    Senator Crapo. It seems to me that the most prevalent theme 
in your testimony is the need to assure that the HCPs are 
voluntary and that we give the necessary assurances to achieve 
that voluntary status. I know that most Senators on the 
committee understand that HCPs are already considered a 
voluntary process of negotiation with the Fish and Wildlife or 
NMFS, and that no obligation attaches to a private property 
owner from the negotiations. But why is it that considering the 
voluntary nature of the process, you focus so much on the 
voluntariness issue? I think there is something here that needs 
to be brought out further.
    Mr. Riley. Again, there are different types of these HCPs, 
as it has been talked about. An umbrella HCP, or a set of 
standards that would be available to landowners like the 
Washington State Agreement, some people think about visiting 
those upon landowners in a mandatory fashion, where the concept 
I have advanced to you, is that it would be required that it 
would be voluntary.
    Senator Crapo. I see what you mean. So as we look at 
possibly a distinction between the broader larger-scale HCPs 
versus the smaller-scale HCPs, what you are saying is that we 
have to remember as we move into the broader arena, that it 
still is a voluntary program?
    Mr. Riley. That is correct. And so it has got to be the 
individual landowner's decision whether to sign up for those 
standards, to operate by other standards, or to negotiate for 
themselves maybe a different HCP. But it is not the intent of 
this concept to visit upon landowners mandatory standards.
    Senator Crapo. In your earlier remarks, you indicated, and 
I don't remember it exactly, but you had maybe some further 
thoughts on how to get past this ``naughty'' problem of 
defining the difference between survival and recovery, and take 
and jeopardy, and so forth. Could you elaborate a little 
further on what you were thinking about there?
    Mr. Riley. Well, you know, we have struggled with that 
quite a bit. Here is how I view it.
    Taking an action which is not inconsistent with recovery or 
with survival is a thoughtful position, I think, to rest the 
obligation of a private landowner in the HCP standard. Not 
inconsistent with those things.
    Senator Crapo. You can debate at great length how to write, 
particularly umbrella standards, that will ensure survival, 
ensure recovery. And the reality is that the science is 
uncertain. The response of the situation is uncertain. And in 
the case of fish, that we only control a small piece of what 
happens to the population dynamics. You might do exactly what 
is necessary for the habitat, but find that the fish is harmed, 
or otherwise doesn't recover for a whole lot of reasons that 
are not a result of the habitat. So how do you form a standard 
and how do you track participation in this standard?
    Mr. Riley. The frustration of this process becomes, as you 
heard from the first panel, when the parties at negotiation, 
can't agree as to what they are negotiating for. There is the 
feeling of distrust, and other problems that develop because 
you just don't know how to get there. The goal post always 
moves on you.
    Senator Crapo. In your involvement with the Bull Trout and 
other species, have you experienced the agencies that you are 
dealing with, seeking a recovery standard, sort of speak, as 
opposed to the standard that you describe?
    Mr. Riley. I have talked enough with the agency folks that 
we hoped that we would be working with and evolving this 
concept to know that their aim, which we would share, their 
goal which we would share, is doing reasonable things for 
landowners which can be accomplished to improve the habitat for 
these fishes, without having to get tangled up in the question 
as to whether that is recovery or not, or----
    Senator Crapo. So just avoid the debate.
    Mr. Riley. Right. Because, interestingly enough, with the 
fish, we know where they are. They are inside the banks of the 
stream, it is not as though they wander all over the land that 
we are on. And we know that there are things to do, that will 
make those fish better off than any other fish that are in 
there. And so, this is a difficult process. It would be much 
easier if we could define those terms more precisely, but that 
is what we rest the premise of our discussion on now.
    Senator Crapo. And you indicated also in your testimony 
that we need to find a way to deal with the Clean Water Act as 
well as the Endangered Species Act, as we move through this 
process. From the recent actions in the Silver Valley out in 
Idaho, it is very obvious that, that, as well as maybe other 
Federal statutes, like Superfund and so forth, get brought into 
these issues, on occasion. Could you give further ideas as to 
how we would approach this question of bridging the Clean Water 
Act and Endangered Species Act, or encompassing them in a 
comprehensive approach to put a system together here that would 
work?
    Mr. Riley. I think that as a starting point, the work that 
has been done that Ms. Frisch identified, both with her 
company's HCP and with the Washington State process about how 
to try to address the compliance with the Clean Water Act, is 
the first step.
    Part of the burden, as I look at this, is the multiple 
agency problem. Looking at the HCPs we're thinking about for 
these small landowners, we're going to have three agencies 
involved once we get through with EPA, the National Marine 
Fisheries Service, and the Fish and Wildlife Service. You have 
sort of three different points of view about what compliance 
actually means. And then you have some real legal questions 
about how you ensure compliance, particularly with the Clean 
Water Act when it is done.
    And so I don't know if I have a precise answer to that yet, 
but I would tell you that I am most troubled by this new rule 
proposal that would require a Federal permit under some 
circumstances for a small private landowner, even one that we 
might have encouraged to enroll their lands in an HCP, that I 
have talked about, to take care of fish--before they cut a 
Christmas tree down in the back forty of their property. That 
is a very frightening prospect.
    Senator Crapo. Well, it is something that we see regularly 
here, not just in the environmental arena but I do find a 
problem under the rivet of one statute which is being 
administered by one agency or whatever; and then we fix that, 
and another statute which is managed by another agency hasn't 
been fixed, and the other agency has a different point of view 
on how to achieve the objectives of their statute that they are 
working under. And hopefully we are going to be able to lasso 
everything here into the same solution and get results. So, I 
encourage your future thoughts and input on that.
    Mr. Riley. I'll be happy to provide that for the record.
    Senator Crapo. Thank you.
    Mr. Bean, the environmental community has, in large part, 
been pretty critical of the ``no surprises,'' or the assurances 
policy, and in fact they have challenged it in court at this 
point. Could you imagine a scenario in which the, and I'm not 
speaking about one entity, but the general environmental 
community that is opposed to ``no surprises,'' could you 
imagine a scenario in which that community would embrace or 
support an assurances policy of some kind? Is there something 
that we could do to alleviate the objection?
    Mr. Bean. Well, I can't speak for everybody in the 
environmental community but I would say that I think there are 
a couple of important considerations. One is the point that Dan 
Silver made a moment ago. It is critically important that on 
day one the plan be as good as it can possibly be. And I think 
that takes us directly to the question of what the standards 
for approval of the plan are. So if there are good standards 
for approval of the plan, then I would say if there is some 
reasonable assurance that when surprises do occur, as they 
almost certainly will occur, that there will be resources 
available from the Federal agencies, if the Federal agencies 
have agreed to take the responsibility to address those 
surprises, then the whole controversy about the ``no 
surprises'' policy becomes a whole lot less important. It is 
important today, largely because the standards for approval are 
perceived to be not very strong, and because the likelihood 
that the Federal Government will, in fact, be able to step in 
at the breach when a surprise occurs, is viewed as very small.
    Senator Crapo. There is no assurance of that either? In 
other words, if you could have a ``no surprises'' policy on 
that side, you might feel more comfortable.
    Mr. Bean. I think you need to think of it as reciprocal 
assurances. It is certainly the case for landowners and private 
businesses, that having some certainty as to what their future 
obligations will be, is a strong incentive for them to 
participate in these HCPs. At the same time however, unless 
there is some assurance that the HCP or the mechanisms that are 
put in place in the event of its shortcoming, are adequate to 
address the surprises that will occur down the road, then there 
is no assurance that we are actually doing what the Endangered 
Species Act says is its goal: Protecting those species.
    Senator Crapo. Do you agree with the distinction that Mr. 
Silver was drawing with regard to the larger-scale HCPs being 
literally a different thing than the small-scale HCPs?
    Mr. Bean. Yes, I do agree with that. I also think it is 
important to recognize some important distinctions between HCPs 
in what I call the working-landscape context, the context of 
forest lands, ranch lands, and farmlands, versus the urbanizing 
context. What Dan has worked in, and I think has done a very 
good job in, is the context where we are converting natural or 
semi-natural habitat into concrete, and it will be lost 
forever. The solutions, and indeed the approach that one takes 
in that context are different, I believe, from the solutions 
and the approach that are called for in the working landscape 
context. There the question is not whether you are going to 
sacrifice for all time the value of a particular habitat, but 
rather whether you can manage your land for forestry or 
ranching or farming purposes in a way to achieve the objectives 
of the landowners while at the same time, advancing the 
objective of conserving endangered species. That is a 
fundamentally different task.
    Senator Crapo. I think those are both very helpful 
distinctions. And may give us a way to address some of these 
very difficult controversies or disputes that we find ourselves 
in with regard to HCPs.
    You indicated in your testimony that you had some thoughts 
on this discussion we had with the first panel. Why don't you 
share those thoughts with us?
    Mr. Bean. Yes, I listened very carefully to the questions 
you were putting to the witnesses, and I think I can put my 
finger on the problem here.
    This is a very confusing issue and it is confusing because 
the interpretation of the statutory language has never quite 
squared with what it appears to say. Or at least it hasn't 
squared recently with what it appears to say. Also, the 
agencies have not always been consistent in how they have 
interpreted it. But, meaning no disrespect to him, I think that 
the confusion has its origins in a legal opinion that a former 
assistant solicitor of the Interior named 
J. Roy Spradley issued in 1981. At that time, Mr. Spradley was 
trying to work through the jeopardy standard which is in 
section 7, and which was interpreted through a set of Fish and 
Wildlife Service definitions which are now found in the Statute 
as the standard for approval of HCPs; that is ``not appreciably 
diminish the prospects for survival and recovery.''
    Mr. Spradley came up with a very novel, and I think wrong 
interpretation of what that meant. Basically his idea was as 
follows:

         If you think of a species as occupying a space somewhere 
        between recovery ``up here,'' [motioning] and a hopeless lost 
        cause, ``down here,'' if the species is somewhere in between 
        that continuum, then what the standard of ``not appreciably 
        diminishing the prospects for survival and recovery'' means, is 
        that you can push that species down lower and lower and lower 
        until you get to that floor, but you can't go beyond that 
        floor.

    And that was his legal opinion in 1982 and it has continued 
to be reflected in the actual implementation of this standard, 
not only in section 7, which is what Mr. Spradley was talking 
about in his opinion but, later in section 10 for HCPs.
     The statute has rarely, if ever, in practice meant what it 
appears to say, and what you in your questions assumed that it 
must mean, and that is that diminishing a species from where it 
now is, runs afoul of that standard. Mr. Spradley's notion was, 
``No it doesn't, it only runs afoul of that when it hits this 
floor, and to go below that floor you run afoul of standard.'' 
That introduced the fundamental confusion in this.
    I think the National Marine Fisheries Service, which for 
many years had very few endangered species, very little to do 
frankly, under section 7 or section 10, has suddenly taken a 
look at the way in which the Fish and Wildlife Service has 
historically interpreted this and said, ``That doesn't make any 
sense. It can't mean what they have been interpreting it to 
mean all these years, it has to mean something else.''
    Whether NMFS has come up with the right solution, I don't 
know, but I do think it is quite clear that the fundamental 
confusion is what I have just described, because frankly, many 
HCPs with which I am familiar, clearly result in species having 
a much reduced chance of survival from what they had before 
hand.
     I know that when Jim Christenson spoke a minute ago, he 
said that the goal of the Wisconsin HCP was no-net-loss of 
habitat for the Karner Blue Butterfly. That is not a goal that 
very many HCPs can meet. Almost all of the HCPs with which I am 
familiar do contemplate a net loss, indeed, a rather 
substantial net loss, not only of habitat but of the likelihood 
of survival of the species.
    Senator Crapo. And that has come about as a result of this 
1982 decision and its implementation by Fish and Wildlife?
    Mr. Bean. That is my opinion. Yes.
    Senator Crapo. Well, that might explain some of the 
conflict that we see coming from the fact that that 
interpretation was wrong. However a lot of the input that we 
are receiving is, and this probably comes from the NMFS 
reaction, is that it is trying to push the bar up, require the 
landowners to push that level up closer to the top. Would you 
also agree that is not the right interpretation?
    Mr. Bean. What I'd like to agree with, is what Mr. Riley 
here, my friend Jim Riley, said a moment ago. It is probably 
more fruitful to figure out what you are going to do, than to 
agree on what you are going to call it.
     My sense is, that Jim was right when he said a moment ago 
that, ``They know what is necessary to make the fish better off 
than they now are.'' And if HCPs can accomplish that, that will 
be a very worthy thing for HCPs to do, whether somebody says, 
``that is recovery,'' ``that is survival,'' or something else, 
is of less consequence to me than if the net result of these 
HCPs is that we at least don't make these species any worse 
off, and if we possibly can, in the context of these larger-
scale HCPS, particularly the ones that embrace a very 
substantial portion of the entire range of the species, 
actually make those species better off. That is what I would 
prefer to see as the outcome, and indeed I would recommend that 
Congress try to make clear that is the objective of HCPs. I 
think it is an achievable objective, not only in the Bull Trout 
example he described, but in many others. It is an eminently 
achievable objective, and I would suggest that ought to be the 
goal.
    Senator Crapo. You know I think, that as I listened to the 
testimony today from the first panel to this point, it seems to 
me that, that point of view may carry more weight the closer 
you get to the type of large-scale HCP that Mr. Silver was 
talking about. And frankly, I think it carries less weight the 
closer you get to the individual landowner and the need for 
that landowner to know just what he or she can do on his or her 
land without having to get arrested, or run afoul of and get 
into some enforcement action. And there is a continuum there.
    As we get to a situation in which we have multiple 
governments, and multiple public sector or private sector, 
multiple landowners, multiple species, and large areas of land 
being managed, you clearly get into more management-oriented 
decisions that are focused on just not doing harm, and actually 
improving the situation as opposed to trying to allow a narrow 
exception of activity for a private landowner, and just not do 
any harm.
    So, I think that distinction in this whole discussion has 
raised an interesting perspective on how to develop a good 
approach to HCPs, and it may have to be an approach that 
creates more than one type of solution depending on what we are 
doing, and recognizes that there are real differences not just 
in finding different ways to solve problems for different 
species, but real differences between the types of plans that 
might actually make them different things. And that is 
something we will have to struggle with. But it does seem to me 
that we are at a practical level right now, just being 
bombarded with complaints from the private sector about how 
this just isn't working, and bombarded with complaints from the 
environmental community about how frankly, in a lot of areas it 
is not working, or what is being proposed is not going to work 
and is going to make it worse. And maybe we are just missing; 
the communications are about different things.
    And so an idea has come out of this hearing today as to 
whether we should be more specific in the way we address the 
terminology and the context and the concepts.
    I have already run over into the next meeting at which I am 
supposed to be, and apologize to all of you that we can't have 
an even longer discussion, but invite you to continue the 
discussion that we were having, in whatever context. If you 
have further thoughts, or suggestions as to how we can either 
better elaborate a concept that we've been discussing or 
identify a solution that hasn't yet been identified, please 
share those with us as we work forward.
    I am convinced that in the line of what was said earlier by 
some of the other Senators when they were here in terms of 
wanting to build a collaborative step forward, which can be 
bipartisan and can have broad-based support in the community, 
that there are ways to do that. I share the positive attitude 
that Senator Chafee brought to these issues and believe that we 
can do it. It is not going to be easy. And there are those who 
say that we can't. But we will not accept that answer and we 
are going to move forward to try to find a solution and we 
encourage your participation.
    Again, thank you all for coming and for your patience, and 
this hearing is adjourned.
    [Whereupon, at 12:41 p.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
    Statement of Jamie Rappaport Clark, Director, Fish and Wildlife 
                  Service, Department of the Interior
                              introduction
    Mr. Chairman and Members of the Subcommittee, I am pleased to be 
here today to talk about the Habitat Conservation Planning program. The 
Fish and Wildlife Service believes that habitat conservation plans 
(HCPs) are essential tools for the conservation and protection of 
threatened and endangered species. My testimony will discuss our 
commitment to this successful program and the challenges we are facing.
 habitat conservation planning is an innovative and successful program
    In direct response to this Administration's goal to reconcile 
conflicts between development and conservation, the Habitat 
Conservation Planning program has expanded tremendously during the 
1990s. When President Clinton took office, the Service had approved 
only 14 incidental take permits and associated HCPs. Today, the Service 
has issued more than 260 incidental take permits covering approximately 
20 million acres of land, 200 listed species, and many unlisted 
species. The Service anticipates being involved in the development and 
implementation of about 300 additional plans by fiscal year 2001. HCPs 
cover more area, more activities, and more species than ever before due 
to the incentives we have created. While this phenomenal growth is a 
testament to the popularity and utility of the program, it brings with 
it additional challenges. Greatest among these challenges is that 
demand is exceeding our ability to deliver the program as effectively 
as we would like.
    The major strength of the HCP program is that it is based on the 
development of local solutions to wildlife conservation. By encouraging 
the development of regional, landscape HCPs to cover many habitats, we 
have provided incidental take authority for many different land uses 
and landowners. Here are just a couple of success stories.

          Kern Water Bank.--In Kern County, California, the Kern Water 
        Bank Authority's HCP illustrates how the Service can help the 
        agricultural community and the State accomplish both water 
        conservation and environmental objectives. The goals of the HCP 
        are to allow the economic development of water recharge and 
        recovery facilities; preserve compatible upland habitat and 
        other sensitive natural areas; conserve the area's 161 covered 
        species; provide a conservation bank for third-party 
        mitigation; and permit farming. This HCP received two 
        incidental take permits--one for the operation of the water 
        bank; the other allows the transfer of incidental take 
        authority to third parties through purchase of mitigation 
        credits in a conservation bank. The plan streamlines ESA 
        approval for small landowners within the service area of the 
        HCP.
          La Rue Housing HCP.--The University of California, Davis, 
        received an incidental take permit for their low-effect HCP. 
        The project involved the construction of student housing and a 
        plant science teaching center. The application was received in 
        January 1999, and the permit was issued in March 1999. In order 
        to minimize and mitigate the take of the valley elderberry 
        longhorn beetle, the HCP called for the planting of elderberry 
        shrubs at a mitigation site that is protected in perpetuity and 
        owned by the University. The University will also monitor the 
        mitigation site to ensure that the conservation goals are being 
        achieved.

    The Service has shown creative and flexible approaches in assisting 
landowners to develop HCPs that fit the unique circumstances presented. 
Though we strive for consistent application of the HCP program, we have 
learned from experience, no one template fits all HCPs. The benefit to 
affected species, the nature and extent of the habitat covered, and the 
concerns and limitations of the landowner will vary from HCP to HCP. 
The specific circumstances will determine whether a single species, 
multiple species, or landscape scale HCP will be appropriate. The 
duration of the permit, the use of adaptive management, and the 
incorporation of other key components also will vary. We are committed 
to using a flexible approach and addressing each HCP with the type of 
innovative thinking that has proven successful.
    The Sonoran Desert HCP is a good example of the innovative, 
successful merging of conservation and development. When completed, 
this plan will address the needs of threatened and endangered species 
throughout Pima County, Arizona. This visionary planning effort will 
actually help to shape urban development within Pima County while 
providing for the protection of natural and cultural resources. Listed 
species that will be protected include the jaguar, Sonoran pronghorn, 
desert pupfish, cactus ferruginous pygmy-owl, pineapple cactus, and 
Mexican spotted owl. Pima County and numerous public and private 
entities actively support the planning effort, recognize their ESA 
responsibilities, and are eager to join in.
    The creativity that has served the HCP Program so well is also 
leading to innovative solutions for small landowners. The Lewis County 
Forest Stewardship HCP, which is under development, would establish a 
programmatic approach to cover small timber operations. This approach 
would enable small timber operators to receive incidental take coverage 
by adopting management practices. It will greatly enhance our ability 
to work with small landowners by reducing the need to negotiate each 
HCP individually. Similarly, the Statewide Conservation Plan for red-
cockaded woodpeckers in Georgia, which was recently released for public 
comment, will provide all landowners in the state the opportunity to 
participate in two options for receiving incidental take coverage. The 
Wildlife Resources Division of the Georgia Department of Natural 
Resources elected to pursue a statewide Plan to cover private land in 
an effort to resolve continuing conflicts over management of small, 
isolated red-cockaded woodpecker populations on private lands. The 
agency sought an approach that would offer benefits to red-cockaded 
woodpeckers and flexibility to landowners. The resulting plan provides 
two options to landowners: (1) mitigated incidental take--the HCP 
option, and (2) management agreements--the Safe Harbor option. Other 
States within the range of the red-cockaded woodpecker are considering 
using this Plan as a model for providing private landowners a flexible, 
streamlined process for resolving conflicts with conservation.
    The foundation of the HCP program is sound science. We base our 
determinations on the best scientific and commercial information 
available. We also must approach the use of science on an HCP-specific 
and species-specific basis, so that general principles are not 
translated into ``cookbook'' approaches that may be misapplied across a 
range of HCPs and fail to conserve species.
                we are actively managing the hcp program
    The HCP program has seen a lot of change since its beginning in 
1983. The ideas generated by the Service, applicants, the environmental 
community, and other concerned individuals and groups have strengthened 
the HCP program. We remain open to learning from our experiences and 
considering new ideas in developing and revising our regulations, 
policies, and guidance. We develop our policies to balance concerns of 
applicants and species conservation yet strive to reduce procedural 
burdens. The collective knowledge gained from past experience is 
available to the public in a joint Handbook for Habitat Conservation 
Planning and Incidental Take Permitting Process (HCP Handbook). The 
goals of the handbook are threefold: (1) to ensure that the goals and 
intent of the conservation planning process under the Endangered 
Species Act are realized; (2) to establish clear guidance and ensure 
consistent implementation of the section 10 program nationwide; and (3) 
to ensure that the Service and NMFS offices retain the flexibility 
needed to respond to specific local and regional conditions and a wide 
array of circumstances. Specifically, the HCP Handbook gives, among 
other things, instructions for processing permit applications, hints 
for approaching different issues, suggestions for helping applicants 
develop their HCPs, and guidance for meeting regulatory and statutory 
standards of the HCP program. The HCP Handbook not only provides 
consistent guidance to Service staff; it is a popular and useful 
resource for applicants.
    Since the HCP Handbook was finalized, the Service has continued to 
provide national direction for the HCP Program. As the program has 
matured, the Service and NMFS recognized that a clearer policy 
regarding the assurances provided to landowners entering into an HCP 
was needed, and subsequently codified those assurances into regulation 
with the No Surprises final rule (63 FR 8859; February 23, 1998). The 
Service and NMFS also recognized a significant need to elaborate on the 
principles included within the handbook, so we issued a draft addendum 
to the HCP Handbook, which is commonly known as the ``five-point 
policy.'' The policy requires all HCPs to include biological goals and 
objectives; provides additional guidance on the role of adaptive 
management strategies in HCPs; encourages those developing HCPs to 
involve the public in the planning process; clarifies the role of the 
Service, NMFS and permittees in conducting compliance and effectiveness 
monitoring; and provides clarification on how to determine an 
appropriate duration for incidental take permits. We have reviewed the 
public comments that were submitted and are in the process of 
addressing them. We expect to issue the final policy shortly.
    Beyond issuing written policies and regulations, the Service 
manages the HCP program by facilitating communication about HCP issues. 
We hold annual national HCP workshops that foster consistency within 
the national HCP program, provide for the exchange of experiences among 
regions, and facilitate discussions of solutions. The Washington office 
holds monthly conference calls with the regional HCP coordinators and 
instructors for our National Conservation Training Center's HCP course 
to discuss current topics. We are providing more information to the 
public through the Internet and are starting to announce public comment 
periods and provide HCP documents electronically. The National HCP 
webpage is currently under revision and will be maintained to provide 
up-to-date program information and access to the National HCP database. 
The regions hold regional workshops for the purposes of advanced 
training of Service staff or for introducing potential applicants to 
the HCP process. For example, the Southwest Region recently held a 
workshop for State and county officials, and other stakeholders 
involved in the Sonoran Desert Conservation Plan.
    The Service's National Conservation Training Center (NCTC) is also 
playing an active role in managing the HCP program. NCTC puts on one or 
more sessions each year of the HCP course and these sessions are often 
attended by potential applicants or State agency officials in addition 
to Service employees. In addition, NCTC offers many other courses that 
support Service biologists working in the HCP program. Example courses 
include: Interagency Consultation (section 7); Scientific Tools for 
Endangered Species Conservation; Introduction to Conservation Biology; 
Natural Resource Law; Natural Resource Policy; Complex Environmental 
Negotiations; Community-Based Consensus Building; Extraordinary 
Customer Service; Conserving Endangered Species on non-Federal Lands; 
and Scientific Principles and Techniques for Endangered Species 
Conservation.
    We recognize the pivotal role private lands play in conserving 
threatened and endangered species and the necessity of creating 
incentives for non-Federal landowners to engage in conservation 
activities. The numbers of HCP applicants today clearly shows that 
these incentives are effective. We are also committed to reducing 
burdens to the applicants. For instance, we are developing guidance 
regarding the role of section 7(d) in the HCP program. Section 7(d) of 
the ESA states that after consultation has been initiated, the federal 
agency or permit applicant ``shall not make any irreversible or 
irretrievable commitment of resources . . .'' A recent district court 
decision [Environmental Protection Information Center v. Pacific Lumber 
Company, 1999 WL 669191 (N.D. Cal)] asserts that section 7(d) applies 
to formal and informal consultation conducted under section 7(a)(2) of 
the ESA. As a result of this ruling, potential HCP applicants are 
concerned that entering into discussions with the Service or NMFS 
regarding an HCP will result in their ongoing activities being halted. 
This type of response from the private sector may have a negative 
effect on the development of some HCPs, so the Service and NMFS 
recognized the need to clarify how section 7(d) and the HCP process 
should interface.
    The Service disagrees with a suggestion raised at the October 19 
hearing before the Subcommittee that section 7 consultations should not 
be conducted on HCPs. We support continuing to conduct section 7 review 
of HCPs because it fulfills two important roles: (1) it provides for 
review by other Service biologists not involved in the development of 
the HCP to ensure that the taking will not appreciably reduce the 
likelihood of the survival and recovery of the covered species in the 
wild; and (2) it ensures that the HCP will not result in jeopardy or 
adverse modification of critical habitat for other listed species that 
are not the target of, or covered by the plan.
    In some cases reinitiation of consultation may be required. I want 
to clarify that reinitiation of consultation or any meaningful 
reexamination of the HCP does not nullify the No Surprises assurances 
attached to an incidental take permit. The Service and NMFS will not 
require the landowner to provide additional mitigation measures in the 
form of additional land, water, or money if they are properly 
implementing their HCP. However, additional mitigation measures can be 
provided by another entity. Similarly, the No Surprises rule does not 
preclude the Service or NMFS from shifting emphasis within an HCP's 
operating conservation program from one strategy to another in an 
effort to enhance an HCP's overall effectiveness, provided that such a 
shift does not increase the permittee's costs. Moreover, if the Service 
or NMFS reinitiates consultation on the permitting action, and if 
additional measures are needed, we will work together with other 
Federal, State, and local agencies, Tribal governments, conservation 
groups, and private entities to ensure additional measures are 
implemented to conserve the species.
    Our commitment to the HCP program was affirmed earlier this year by 
the Secretaries of Interior and Commerce in a memorandum directing both 
the Service and NMFS to make the HCP program work for both species and 
landowners. We will continue to advance the Administration's commitment 
to forging ESA partnerships through HCPs, by adhering to the following 
principles:
    Timeliness.--We must demonstrate that HCPs can, and will, be 
developed and processed efficiently and without undue delay by working 
with applicants at the outset of the process to establish and implement 
an agreed upon work plan and joint time line for developing each HCP.
    Credibility.--We expect applicants to bring meaningful proposals to 
the table and to deal with Federal officials in good faith. For each 
HCP, we will abide by the commitments and agreements made throughout 
the development process and not revisit old issues once agreement has 
been reached. If ongoing and new information is expected to emerge 
during the negotiation process, the agency officials must explain this 
at the outset and discuss the effect the information could have on the 
process.
    Coordination.--The Service and NMFS will coordinate their efforts 
whenever possible. Interagency teams must ensure that all involved 
players on the Federal side coordinate their review efforts and assert 
consistent positions.
    Efficiency.Agency officials need to coordinate and process each HCP 
application without undue delay or cost and ensure that the information 
being requested of the applicant is truly necessary to the process. 
Efficiency is important at all phases of HCP development. However, the 
agencies must continue to ensure that the quality of HCPs is paramount.
    Creativity.--In the past, both the Service and NMFS have 
demonstrated creative and flexible approaches in assisting landowners 
to develop HCPs that fit the unique circumstances presented. Agency 
officials are encouraged to retain this approach and view each HCP with 
a commitment to the type of innovative thinking that has proven 
successful.
    Commitment to Success of Permits and HCPs.--The creativity required 
for development of HCPs must also be applied to the implementation of 
the permit. The Service and NMFS remain committed to the success of 
each and every incidental take permit issued.
    Sound Science.--The foundation of the HCP program is sound science. 
In reviewing proposed HCPs, the Service and NMFS must ensure that the 
best available science is taken into account and exchanged with the 
applicant.
    Public Participation.--The draft Five-Point Policy Initiative calls 
for increased public participation in the HCP process by extending the 
public comment period of most HCPs and reaffirming the Service and 
NMFS' commitment to encouraging public notification and involvement. We 
appreciate that this commitment increases the complexity of the HCP 
process, but expanding our public outreach will advance support for our 
HCP program.
    Communication.--Applicants look to the Service and NMFS to provide 
leadership in HCP negotiations in the form of forthright, explicit 
guidance. Effective communication by the agencies does not overshadow 
efficiency and the use of sound science, but facilitates the HCP 
process and improves the agencies' credibility.
    The challenges to accomplishing the goals of the ESA are constantly 
growing. The Federal Government's response must rise to this task. The 
points presented in the Secretaries' memorandum represent the direction 
for the Service and NMFS to meet the challenges of promoting 
cooperative partnerships to advance the goals of the ESA through this 
innovative and critically important program. The Service is making a 
concerted effort to advance these goals.
    delivering a high-quality hcp program requires adequate funding
                              and staffing
    Applicants look to the Service to provide leadership, and, 
therefore, the success of the HCP program is contingent upon the 
Service being thoroughly involved in the development, implementation, 
and monitoring of these plans. An essential element in delivering an 
effective HCP program is our ability to hire and train qualified staff 
to meet the increasing workload associated with monitoring existing 
HCPs and assisting applicants in the development of new plans. However, 
while trying to deliver our commitments to the HCP program and to 
respond to this increased workload, the Endangered Species Program's 
budget for consultation and HCPs experienced a decrease in fiscal year 
1996 and only modest increases in fiscal years 1997, 1998 and 1999. For 
example, in FY 1999, we requested $36.5 million for consultation and 
habitat conservation planning but were appropriated only $27.2 million. 
Similarly, for FY 2000 we requested $37.4 million but the recent House-
Senate conference report provides less than $31 million after 
subtracting new earmarks and uncontrollables.
    Funding at the levels requested by the President is essential to 
the continued success of the HCP program. Because of the increasing 
demand for HCPs and the increasing complexity of the program, our HCP 
biologists are pushed to their limits. We are finding it increasingly 
difficult to recruit qualified staff and to retain our experienced 
workers. The consequence of this is less than desirable levels of 
service, as reflected in some of the testimony this committee heard two 
weeks ago. In addition, the demand will continue to grow for the 
Service to provide adequate monitoring and adaptive management, as we 
approve more and more HCPs. It is important that we have adequate staff 
and funding to be able to fulfill these responsibilities.
    As you heard in the previous hearing, smaller governments and 
operators often do not have the staff to support the planning and 
coordination necessary to develop HCPs. For instance, Foster Creek 
Conservation District is coordinating the development of an HCP with 
wheat farmers in Douglas County, Washington. These farmers are 
enthusiastic about proactively planning for the protection of wildlife 
in their County while receiving assurances for their farming 
activities. However, it has been difficult for them to find the 
planning resources necessary to develop a regional, multispecies plan. 
Similarly, small timber operators in Lewis County, Washington also wish 
to develop a regional, multispecies plan so that they can receive the 
same benefits as large timber corporations. Smaller, less wealthy 
counties, such as Laramie County, Wyoming, are hesitant to embark on 
regional HCPs because of the demands placed on their existing planning 
staff. The Service is devoted to assisting these communities in the 
development of their plans. The President's FY 2000 budget request of 
$10 million to support HCP development grants within the Land Legacy 
Initiative would provide the financial assistance necessary to launch 
community-based, landscape-level, multispecies plans that would benefit 
the small landowners within these communities. However, this request 
was zeroed out in both the House and Senate.
    The President also requested $26 million in FY 2000, as part of his 
Lands Legacy Initiative, to support HCP Land Acquisition grants that 
could be used by States to support approved HCPs. This popular program 
is a significant tool in our toolbox and provides tangible assistance 
to HCP permittees and the species that are covered by the plans. The 
demand for this program has rapidly grown during the program's three 
years of existence. In FY 1997 we requested, and received, $6 million. 
For FY 2000, the President's Budget requested $26 million, 
unfortunately, the House-Senate conference provided only $8 million.
                               conclusion
    The Service is implementing an HCP program that empowers the 
applicants to integrate endangered species conservation into their 
activities while using the best available science and approaches. I am 
proud of the ideas and the hard work that has strengthened the HCP 
program, but remain concerned about the escalating workload without 
significant increases in resources. In facing the challenge of managing 
the HCP program, we will continue to enlist the support of others in 
the HCP process, including environmental and scientific communities, 
state, local and tribal governments, landowners, and other 
stakeholders. In doing so, we will enrich species conservation and 
accommodate economic development. All of us involved in species 
conservation must continue to look for new and better ways to improve 
the HCP program.
    Finally, I cannot emphasize enough the importance of funding the 
HCP/Consultation program as requested in the President's budget. The 
increasing demand for development of new plans, combined with the needs 
associated with implementing and monitoring the approved plans, is 
seriously straining our ability to provide the high-quality customer 
service that the American people deserve.
    Mr. Chairman, this concludes my testimony. I would be happy to 
answer any questions that the Subcommittee may have.
                                 ______
                                 
 Statement of Don Knowles, National Marine Fisheries Service, National 
     Oceanic and Atmospheric Administration, Department of Commerce
    Mr. Chairman, my name is Don Knowles and I am Director of the 
Office of Protected Resources in the National Marine Fisheries Service, 
an agency of the National Oceanic and Atmospheric Administration 
(NOAA). Thank you for the opportunity to testify on our program for 
approving Habitat Conservation Plans (HCPs) submitted to our agency in 
application for an incidental take permit under the Endangered Species 
Act (ESA), as well as some of our concerns.
             the importance of hcps in species conservation
    I have been in my position for about six weeks. The perspective I 
bring is, maybe, a fresh one because while I have been aware of the HCP 
program peripherally for a few years, I have not worked on it on a day-
to-day basis until now. My observation is that this Administration has 
breathed life into language that sat mostly unused on the books since 
1982.
    The HCP program allows landowners, states, Tribes, and others to 
take the initiative and submit proposals. It encourages local, 
inventive approaches to balance the needs of species with the goals of 
private citizens. It offers landowners something of value (an 
incidental take permit) in exchange for providing something of value 
(long-term conservation benefits). It is new enough that improvements 
are still possible. It does not compel private citizens to do anything 
unless they want an incidental take permit. The voluntary nature of the 
program ensures that landowners who want to can work with the Services 
to improve the certainty the landowners need.
    We cannot provide for biological diversity, or even species 
conservation, on Federal lands alone. The General Accounting Office 
estimates that over 70 percent of species listed under the ESA have 
over 60 percent of their habitat on private or other non-Federal lands. 
Over 35 percent of these listed species are totally dependent on these 
lands for their habitat. Incidental take permits under section 10 
(a)(1)(B) of the ESA are one of the vehicles currently available that 
provide incentives for non-Federal landowners to protect listed species 
on these lands. With the benefits provided by the Federal government's 
HCP program, landowners are provided an incentive to commit land and 
resources to better species protection and recovery. The only 
alternative would be to enforce the ESA ``taking'' prohibition on 
individual properties.
    If the goals of the ESA are to be achieved, it is widely accepted 
that HCPs will play a pivotal role. The National Academy of Sciences 
view HCPs as a vehicle for achieving a regional conservation approach 
which is more consistent with the principles of conservation biology 
than a project-by-project or species-by-species approach.
    NOAA is responsible for over 50 species listed under the ESA, 
including marine mammals, sea turtles, plants, salmon and other fish. 
It is my belief that we can meet the challenge of recovering these 
species only when we cooperate with non-Federal landowners such as 
states, Tribes, counties, and private entities to do this important 
job.
    For example, we have the enormous challenge of ensuring the 
survival and recovery of salmon across an area of land and water that 
spans the Pacific coastline from the Canadian border to Los Angeles. 
The highly migratory nature of Pacific salmon places them in many areas 
in numerous states, impacting large numbers of stakeholders, many of 
whom are private citizens who hold large tracts of land valued as 
commercial property as well as salmon habitat.
    The long-term management of habitat, such as that done through most 
HCPs with non-Federal landowners, has proven to be one of the most 
effective means of conserving species. HCPs are a popular tool for both 
the private property owner and NMFS. We have issued permits associated 
with HCPs for 2 large-scale projects in Washington and California that 
cover almost 3 million acres. We have issued 10 incidental take permits 
associated with low-effect projects such as state fish hatcheries, and 
we are a party to 5 Implementing Agreements for HCPs. We are currently 
negotiating about 35 additional HCPs in the Pacific Northwest and 
California. So far, all of the large-scale HCPs developed by applicants 
involve Pacific salmonids.
    To meet the challenge of processing HCPs and their accompanying 
permits and agreements, NMFS has issued joint guidance with the FWS on 
how to assist applicants in developing HCPs. Our HCP handbook describes 
the information applicants need to submit for us to evaluate whether 
these plans will be effective and accomplish their goal of minimizing 
and mitigating, to the maximum extent practicable, the effects of 
taking threatened and endangered species. The Services assist the 
applicant in exploring alternatives, and we try to be flexible when 
prescribing mitigation measures.
    We work with applicants to ensure that their HCP meets the criteria 
specified under the statute and our regulations. However, we tailor 
each one to fit the biological needs of the species as well as to 
accommodate the landowner's special requirements. For example, if an 
applicant provides an unusual, but scientifically credible analysis of 
effects, or a creative but effective solution for mitigating the 
effects of incidental taking, we seriously consider that approach.
    Our 5-point policy addition to the HCP handbook, which is in final 
preparation with the U.S. Fish and Wildlife Service, reflects the 
experience gained by the Services over the past few years during the 
tremendous growth of the HCP program. The 5-point guidance covers 
biological goals, adaptive management, monitoring, permit duration and 
public participation.
    One of the important aspects of this policy is adaptive management 
which is an essential component of HCPs when there is significant 
uncertainty or an information gap that poses a significant risk to the 
species. Rather than delay the process while sufficient information is 
gathered to predict the outcome accurately, the Services and applicants 
jointly develop an adaptive management strategy, aimed at assuring all 
parties of a suitable outcome. For example, a cautious management 
strategy could be implemented initially, and through exploration of 
alternate strategies with an appropriate monitoring program and 
feedback, the permitter could demonstrate that a more relaxed 
management strategy is appropriate.
    Flexible implementation of the ESA has become the hallmark of this 
Administration's efforts to conserve species, and it is evidenced no 
where more emphatically than in the HCP program.
                                science
    At the hearing in July, NOAA testified about the role of science in 
the development of HCPs. I would like to emphasize that the ESA 
requires the Services to use the best available information in making 
its determinations, including all HCP permit decisions. This means that 
our agency is legally required to utilize the best available science--
data, analysis, models, and synthesis. NMFS spends a significant 
portion of its budget on ensuring that our scientists stay up-to-date 
in their respective fields, and use state-of-the-art analytical 
techniques and methods to assess and understand the species and 
ecosystems to be managed under HCPs. In fiscal year 1999, NMFS spent 
about one-third of its salmon budget on science.
    It is not a simple matter to manage areas, particularly when this 
management includes significant human alterations from resource 
extraction to infrastructure human alterations development. While we 
are comfortable that we have solid, reliable, quantitative information 
on the temperature, water flow, fish passage, and water quality needs 
of salmon, there are other aspects of ecosystem processes and functions 
that will determine the long-term success or failure of ecosystem and 
endangered species management. Some of these are only beginning to be 
understood. Our knowledge of nutrient cycling, food chain dynamics, 
biodiversity, population genetics, and climate change is at an emerging 
stage, and few practical tools and methodologies have emerged to date.
    We recognize this uncertainty in the documents we issue in 
association with HCPs. Therefore, we design our permits and agreements 
to manage biological risks. Where we have solid, quantitative 
information, such as the temperature needs of juvenile salmon, we can 
set specific, quantitative temperature targets that the management 
regime must achieve. In areas where the science is less developed, HCPs 
typically include more qualitative goals, such as a multi-tiered forest 
canopy with a diverse age structure or maintenance of insect prey 
biodiversity. Because we are at the limits of our scientific capability 
and knowledge for some species, extensive monitoring and adaptive 
management strategies are essential. If the applicant and the Services 
do a good job of monitoring, and if adaptive management has been 
provided for in an HCP, our successes and failures can be applied in 
the future implementation of this HCP and others.
          highlight of current hcps completed and in progress
    At this time, I would like to discuss some of completed HCPs and 
those that are in progress.
    The pace of implementation of the Pacific Lumber (PALCO) HCP in 
northern California, issued in February 1999 by NMFS and FWS, is 
picking up. Federal and state agencies, as well as PALCO, are hiring 
multiple staff to assist with review of timber harvest plans and 
formalizing watershed analysis and monitoring programs. The foundation 
of this plan rests upon watershed analysis, which is the process used 
to tailor site-specific prescriptions to conserve salmon on a watershed 
by watershed basis.
    The Mid-Columbia River draft HCP now under development is an 
excellent example of how NMFS is using performance-based goals in 
addition to prescriptive measures. This HCP focuses on improving 
survival of salmon migration through the Mid-Columbia segment of the 
Columbia River near Wenatchee, Washington. Historical fish losses at 
the Mid-Columbia dams have been significant--an average 15 percent loss 
of juvenile salmon per dam. The goal of the HCP is no net impact to 
salmon from the three hydro-electric dams and associated reservoirs 
operated by two Public Utility Districts (PUDs), Douglas County PUD and 
Chelan County PUD. Specific methods to attain the 91 percent project 
survival target are not described, but are left to the project 
operators for the first five years of the HCP, after which it will be a 
joint process with the PUDs, NMFS, and FWS.
    NMFS is also working with FWS on implementation of a multi-species 
HCP associated with a permit issued to the Washington Department of 
Natural Resources. The HCP covers over a million acres of state-owned 
forest lands west of the Cascades. NMFS recently added 5 species of 
anadromous fish to the permit.
                            challenges ahead
    We recognize the need to strengthen both our management and 
scientific programs in support of HCPs. In my short time in my current 
position, it is readily apparent that of the funding set out in the 
Administration's request, this new, innovative and creative locally-
driven program is not receiving what is necessary for future success. 
It seems particularly obvious that land-owner's complaints about our 
lack of timeliness, staff turnover, lack of follow through on 
monitoring and other concerns will continue as a direct result of 
inadequate support of the Administration's budget requests.
    For example, in FY 1999, NMFS spent about $23 million to foster the 
recovery of Pacific salmonids. This included recovery planning, section 
7 consultations, and HCP development. The NMFS FY 2000 ESA salmon 
recovery budget initiative requests $24.7 million in new funding to 
strengthen our management and scientific capabilities.
    Without these increased resources, the pace and scope of HCP 
development will be greatly constrained.
                               conclusion
    Our HCP program has as well as Federal agencies; however, it is 
still a work in progress. HCPs are one of the major actions we are 
taking to meet the challenge of recovering salmon and other endangered 
and threatened species. While HCPs may not be the perfect vehicle for 
landowners, they are certainly more constructive than any previous 
approach to working with non-Federal partners to protect listed 
species.
    Mr. Chairman, thank you for this opportunity to testify. I look 
forward to answering any questions.
                                 ______
                                 
      Statement of Jimmy S. Christenson, Wisconsin Department of 
                           Natural Resources
                              introduction
    Thank you for the opportunity to appear before you today. I am 
testifying on behalf of the Wisconsin Department of Natural Resources 
(WDNR). The focus of my testimony is the process by which state 
agencies and public and private landowners can achieve limited immunity 
against the ``take'' of an endangered or threatened species while 
applying conservation measures to lands through their ongoing 
management and use. My experience, and that of the agency I represent, 
is based on the recently completed Habitat Conservation Plan (HCP) for 
the Karner blue butterfly. An incidental take permit was issued in 
September, 1999. That HCP/EIS may be viewed at http://
www.dnr.state.wi.us/org/land/er/publications/karner.
    The Karner blue butterfly (KBB) HCP is a statewide conservation 
plan. The WDNR applied for the incidental take permit in collaboration 
with 25 other private and public partners. Their resource management 
strategy is to assure the long-term sustainability of KBB habitat and 
the persistence of KBB on the Wisconsin landscape. The partners 
include:

Industrial Forest Companies
    Consolidated Papers, Inc.
    Georgia-Pacific Corp.
    Johnson Timber Co.
    Thilmany-International Papers
    Wausau-Mosinee Paper Corp.
    Wisconsin River Power Co.
Wisconsin State Agencies
    Department of Agriculture, Trade and Consumer Protection
    Department of Natural Resources
    Department of Transportation
Utilities
    Alliant
    ANR Pipeline Co.
    Lakehead Pipe Line Co.
    Northern States Power Co.
    NW Wisconsin Electric Co.
    Polk-Burnett Electric Co-op
    Wisconsin Gas Co.
    Wisconsin Public Service Corp.
County Forests
    Burnett County
    Clark County
    Eau Claire County
    Jackson County
    Juneau County
    Monroe County
    Washburn County
    Wood County
Non-Profit Conservation Organization
    The Nature Conservancy

    In addition to the partners, development of the HCP relied heavily 
on people representing various associations and organizations. These 
organizations have contributed extensive and continuous time and effort 
to the process and include groups such as the Sierra Club, the 
Wisconsin Audubon Council, the Wisconsin Woodland Owners Association, 
and the Wisconsin Paper Council.
    The conservation plan is built on individual plans and strategies 
committed to by partners through a separate Species and Habitat 
Conservation Agreement entered into between the partner and the WDNR, 
who is the Permittee. The WDNR developed the same type of conservation 
strategies for its lands and efforts and included them in its 
Implementation Agreement it entered into with the U.S. Fish and 
Wildlife Service (USFWS).
    This innovative approach to endangered resources conservation is 
designed to move industry and the regulated community beyond compliance 
and into efforts to proactively apply conservation measures on the 
land. After all, Congress, in establishing the incidental take permit 
(ITP) provision of the ESA, expressed the hope that it would encourage 
creative partnerships between the public and private sectors and among 
governmental agencies in the interest of species and habitat 
conservation and provide a framework to permit cooperation between the 
public and private sectors. Those goals are achieved, in my opinion, in 
the KBB HCP and arise out of a solid and diverse grassroots effort in 
Wisconsin.
    The KBB is dependent on continuous disturbance regimes or 
management programs designed to assure that the habitat is not lost 
because of the natural succession of competing vegetation. The HCP, 
with its biological approach, focuses on geographic areas and 
activities which provide the highest potential to safeguard or enhance 
KBB habitat. The participation strategy seeks to reach all landowners 
and users, but will vary in approach and process. It is an effort 
designed to gain and incorporate the support of landowners and land 
users throughout Wisconsin. It identifies which landowners or land 
users are required to apply to the WDNR for inclusion and obtain a 
Certificate of Inclusion from the USFWS. It also identifies landowners 
and land users which are covered by the Permit and do not need 
additional process for coverage. Those landowners or users needing a 
Certificate of Inclusion include larger forest land owners; those 
involved with the development or maintenance of corridors, such as 
utilities or highway development and maintenance entities; and those 
involved in activities that will permanently destroy habitat, such as 
construction of buildings, parking lots, etc. Landowners or land users 
not requiring further process for coverage will be subject to extensive 
public outreach, education and assistance efforts to gain their 
voluntary support of and participation in this conservation effort.
    The KBB HCP, in addition to its participation strategy, is built 
upon a sound scientific and biological foundation, a strong public 
participation process, a sound monitoring plan, a commitment to 
adaptive management, a reasonable funding plan, and a review process to 
assure the goals of the HCP are being achieved.
    The WDNR also prepared, with appropriate review by the USFWS, the 
EIS on the HCP for purposes of compliance with the Wisconsin 
Environmental Policy Act (WEPA) and the National Environmental Policy 
Act (NEPA). The USFWS provided funding for printing and dissemination 
of the HCP/EIS and coordinated public comment on it.
            the hcp process and value to wisconsin's kbb hcp
    The collaborative HCP for the KBB is a demonstration that the HCP 
process can offer to private and public landowners and users the 
opportunity to proactively conserve a species while engaging in ongoing 
land management and use.
    The KBB HCP is innovative and flexible and is consistent with the 
Endangered Species Act (ESA) in moving the focus away from the small 
land parcel to a broader statewide approach. The finite resources 
available, including funding, to state and federal agencies to develop 
and implement conservation plans do not lend themselves to an 
individual landowner or user approach.
    The USFWS staff at the Regional and Green Bay Field Offices were 
cooperative in accepting this innovative approach and worked 
responsibly in their assistance and review of the HCP.
             problems with and solutions to the hcp process
Length of Process
    The Wisconsin KBB HCP took 5 years to develop. A great deal of that 
time was spent on public participation and creating trust between the 
partners and participants. The trust relationship is extremely 
difficult to build between federal and state agencies, its regulated 
communities, and other public and private competitors and land 
managers. We were fortunate that the USFWS staff were responsive. 
However, their limited staff resources required that the partnership 
work to keep the KBB HCP on USFWS staff's priority list. Without that 
pursuit of priority treatment, I am confident that a minimum of one 
year could have been added to the process. The enthusiasm of 
conservation partners and cooperators will die, or at least diminish, 
during extensive delays. We witnessed this dynamic in the KBB HCP.
    The process time for HCP's can be reduced if USFWS staff are able 
to give priority time and assistance to the process. It appears that 
staff reluctance and caution in putting the final stamp of approval on 
an HCP and incidental permit application is a contributor to the 
already lengthy process. Case by case treatment to each HCP process, 
adequate federal agency staff availability, and a vision of flexibility 
and creativity should reduce the length of time necessary to complete 
an HCP.
Partnerships Rather Than Command and Control
    All too frequently progress on HCPs may be hampered by the USFWS' 
feeling that administering the ESA and HCPs process they must be a 
command and control process. Some view this approach as a 
``preservation'' mode rather than one of proactive conservation.
    Conservation of endangered and threatened species must be applied 
on private lands. Regulatory protection for the species do not and 
cannot proactively address the needs of the species and their habitat. 
Collaborative approaches to conservation involving partnerships between 
public and private agencies, landowners, and users can.
    State conservation agencies can be a valuable, and sometimes 
essential element in a successful HCP or conservation plan. State 
agencies can bring valuable assets to the plan. Those assets may 
include biological and scientific expertise, knowledge of state flora 
and fauna they manage and protect, facilitation skills, and possible 
long-term administration of a conservation plan. However, for state 
agencies, or other public agencies, some funding is needed. State 
agencies recognize this. Currently, the International Association of 
Fish and Wildlife Agencies, through Pat Graham, Chair of its Threatened 
and Endangered Species Committee, is considering how state conservation 
agencies can or should be involved in or further multi-state and multi-
species conservation plans.
    Opportunities that may be presented by agencies, entities, and 
individuals must be captured. Capturing the opportunities will likely 
require significant time and effort being spent with the landowner or 
user, whether in the board room or across the kitchen table. This 
attention is needed to gain their trust and, ultimately, success.
Funding
    In the case of the Wisconsin KBB, funding beyond the resources of 
the WDNR, and not available from the other partners, was needed. 
Activities such as research and the development of a scientific 
monitoring strategy were funded with assistance from the National Fish 
and Wildlife Foundation. The printing and dissemination of the HCP/EIS, 
although drafted by the WDNR, was funded by the USFWS. This type of 
funding to facilitate development of an HCP and conservation effort is 
likely to be needed for development and implementation of an HCP and is 
a very good investment in proactive conservation that cannot be 
achieved by the USFWS alone. The need for funding may be alleviated or 
reduced by in-kind contribution of expertise and application of 
conservation strategies on the land. Conservation plans that interfere 
with land management and use threaten the landowners and often result 
in outcries of regulatory takings or interference with their 
investment. Conservation plans that are built upon, and are consistent 
with, land management and use offer long-term stewardship in favor of 
the species.
    The Wisconsin HCP builds its plan on long-term private land 
cooperation. Millions of dollars worth of in-kind services have and 
will be directed to this conservation plan. Few dollars will be spent 
out-of-pocket by the partners. The history of expenditure of 
significant dollars for consultants and other services common to 
limited development projects need not be the template for landscape 
HCPs in the future.
Flexibility and Creativity
    The USFWS or other federal agency administering the ESA must 
recognize that a ``one-size-fits-all'' strategy is not reasonable for 
rare and unique species conservation. HCPs address natural systems. 
Such systems are dynamic. They are species driven. As such, an HCP must 
address not only the pertinent species but the opportunities that may 
be present to apply to the conservation effort. The vision of federal 
agencies administering the ESA, therefore, must be flexible and 
creative enough to capture the opportunities in each conservation plan. 
What seemed to have worked in another setting or with another species 
may be totally inappropriate for the species being addressed in a new 
effort.
    The development of Handbooks and other guidelines, and implied 
requirements that they be followed, can work a severe disservice to 
conservation. A vision of flexibility, creativity, and partnership to 
scientifically address conservation is more appropriate. Strict 
adherence to ``guidelines'' by federal staff is an interpretation or 
application that must be challenged. Guidelines like the Handbooks are 
just that, guidelines.
Focus on Conservation Not Recovery
    Our goal as conservation agencies is to recover species. That is 
true success. However, federal agencies administering the HCP 
provisions must be cautious in its zeal to address recovery by forcing 
recovery activities in an HCP. Recovery is the responsibility of the 
federal agencies. Although a conservation effort under an HCP may not 
interfere with recovery of a species under the law, nonfederal 
participants collaborating on it are not responsible for recovery. 
Federal agency staff have implied that an HCP not including recovery 
efforts might be inadequate.
    Federal agencies administering the provisions of the ESA respecting 
HCPs should make very clear the role of the HCP in recovery and explain 
to the participants the pertinent recovery goals and how they may be 
reached. Landowners may voluntarily commit to recovery efforts. They 
more likely will not participate in recovery efforts if pressed to 
engage in them under threat that an HCP will not be approved. The 
opportunity to recover and delist a species is incentive enough for 
many to participate in recovery. Again, the availability of federal 
funding for voluntary recovery or restoration efforts is necessary to 
gain the support of willing landowners without resources, or a 
willingness, to lend to them to recovery activities.
                                summary
    Success in proactive conservation of endangered and threatened 
species depends on partnerships between agencies and public or private 
landowners. They have the potential to be far more successful if 
conservation strategies are consistent with ongoing management and use 
objectives of landowners. Landowners may then become natural stewards 
of the lands by applying long-term conservation efforts for the 
species. Partnerships are difficult to establish. They require 
commitment of all concerned and often require an extensive commitment 
on behalf of federal and state agency staff to make them work.
    Thank you for the opportunity to testify. Although I was asked to 
discuss problems and solutions respecting habitat conservation 
planning, our experience with the KBB HCP process was and remains very 
positive. The HCP process may continue to be a valuable and very 
important process to achieve the cooperation of private landowners and 
the application of conservation measures to their land. Their bottom 
lines, whether they be related to a business venture or an individual's 
investment in the land, must be recognized. Proposed conservation 
efforts will be jeopardized if they significantly interfere with 
landowner objectives. Our challenge as conservation agencies is our 
commitment to obtaining mutually satisfactory stewardship plans that 
will benefit the species and be acceptable to private landowners.
                                 ______
                                 
 Testimony of David Donnelly, Deputy General Manager, Southern Nevada 
                            Water Authority
                              introduction
    Mr. Chairman, my name is David Donnelly, and I am the Deputy 
General Manager, of the Southern Nevada Water Authority. The State of 
Nevada is a member and supporter of the Lower Colorado River Multiple 
Species Conservation Program (MSCP). The MSCP is an innovative and 
forward-looking approach to conservation management. We are attempting 
to find the balance that the stakeholders believe lies between the 
needs of species and the needs of the millions of residents of the 
southwest United States. The stakeholder participants have invested 
substantial funding and a great deal of time to put active conservation 
to work in this region because we recognize the need to protect species 
and people too.
    The scope of this project and the needs that this project addresses 
are sometimes difficult to conceive. The Lower Colorado River provides 
over nine million acre feet of water to the Southwest United States. 
Over 1.8 million acres of agricultural land is irrigated with this 
water resource. 12 billion kilowatt hours are generated from its flow. 
22 million people get their daily drinking water from the Lower 
Colorado River. Billions of dollars in recreational benefits are 
derived from this river that is the lifeblood of the desert southwest. 
And while we are trying to satisfy all of those need, we are also 
trying to find the balance that helps restore the ecosystem of the 
river.
    For many years, in this Committee's hearings and in bills reported 
out of Committee related to species and habitat conservation, you have 
endorsed public/private partnerships in the preservation of habitat for 
species. This Committee has worked tirelessly to encourage worthwhile 
Federal/State and local habitat conservation 
efforts. We believe that the MSCP is just such an effort. We wanted to 
take this opportunity to familiarize you with our project and to ask 
that this Committee, and this Congress, work with us to make an 
ambitious dream of habitat conservation a reality.
        the lower colorado river multi-species conservation plan
    On August 2, 1995, the United States and the States of Nevada, 
Arizona and California entered into a historic agreement to develop a 
Lower Colorado River Multi-Species Conservation Program. The intent of 
the MSCP is to conserve habitat and work toward the recovery of species 
included in the plan within the Lower Colorado River floodplain 
pursuant to the Endangered Species Act (ESA). The parties agreed to 
work together to reduce the likelihood of additional species listings 
under the ESA while at the same time accommodating the current water 
diversions, power production and optimizing opportunities for future 
water and power development.
    The MSCP participants include the water, power and fish and game 
agencies of the states of Nevada, Arizona and California; the United 
States Department of Interior; Native American Tribes; local 
governments and other stakeholders. The geographic area of the MSCP 
encompasses the mainstem of the Colorado River below the Glen Canyon 
Dam to the southerly international boundary, including the 100-year 
flood plain. (A more complete list of MSCP participants can be found in 
Appendix A to this statement.)
    The MSCP is directed through the Program Steering Committee. The 
Steering Committee is composed of federal, state, local, tribal and 
private governments and corporations which operate on a consensus based 
approach to joint decision-making. The parties agreed to pursue an 
ecosystem-based approach in developing the MSCP for interim and long-
term compliance with applicable endangered species and environmental 
laws and to implement conservation and protection measures for included 
species and habitats.
                       the conservation challenge
    The Lower Colorado River habitat is diverse and extensive. The 
focus of the MSCP is to move threatened and endangered species toward 
recovery and to prevent the future listing of ``at risk'' species. More 
than 50 Federal-or state-listed, candidate and sensitive species and 
their associated habitats, ranging from aquatic, wetland and riparian 
habitats to upland areas, will be addressed. (See Appendix B for a list 
of species). Even though the federal government has a significant role 
in the river, the states of the lower basin all retain trust 
responsibility for fish and wildlife resources within each of the 
respective states.
    The extent and complexity of this task is complicated by the fact 
that while a great deal is known about several of the listed species in 
the MSCP area, there is little information about a number of other 
species that would benefit from the MSCP. Consider for a moment the 
plight of the southwestern willow flycatcher and the opportunities such 
a program could have on its future. Historically, the range of the 
southwestern willow flycatcher included all of the American Southwest, 
from Western Texas to Southern California. Until recently, the 
southwestern willow flycatcher was thought to be extirpated as a 
breeding species along the lower reaches of the Colorado River. All 
breeding populations of southwestern willow flycatchers are considered 
regionally significant. The total number of remaining flycatchers is 
estimated at approximately 300-500 pairs. The threats to the flycatcher 
remain and the declines are continuing. The factors responsible for the 
decline of the southwestern willow flycatcher in the United States 
include the loss and degradation of native riparian habitats, 
parasitism by brown-headed cowbirds, increased predation and other 
threats.
    Prior to formulating management needs for this species, surveys of 
potential habitat to determine population status and life history 
studies are needed. However, so far these studies have been unfunded. 
Parenthetically we should state that, like the Pacific Northwest 
salmon, no matter how much we do to conserve, protect and restore the 
ecosystems in the United States, there are critical elements of 
flycatcher recovery which are outside of the United States. Progressive 
deforestation and development in Central and South America is 
destroying winter habitat for the flycatcher and Congress needs to be 
aware that we can spend untold millions of dollars to restore breeding 
habitat for a species that is being extirpated outside our boundaries.
    We can only make educated guesses about their habitat needs and 
their place in the biological diversity that makes up the Lower 
Colorado River ecosystem. Additionally, habitat restoration technology 
is generally in an early stage of development. In order to fill in the 
gaps in our present knowledge we must develop a program that can 
integrate adaptive management techniques into active conservation 
measures. By doing this we can approach active conservation as a 
scientific experiment with a clear statement of expected outcome; 
carefully designed controls and MSCP monitoring that will permit 
scientific analysis of process and results. As data is collected and 
analyzed, the new information is then used to modify elements of the 
project in order to test and utilize the new information.
                           the plan approach
    The MSCP will develop two classes of species: priority species--
those that are federally or state listed threatened or endangered 
species and indicator or ``planning species''--those that are prevalent 
in the general vicinity or in a particular micro-habitat.
    Priority species in this group will effectively ``drive'' the 
planning process and development of conservation alternatives. Species 
in this group are a priority for receiving incidental take permits and 
will be analyzed individually, with consideration of species-specific 
locations and species-specific management and monitoring measures, to 
determine if federal and state standards for issuing take permits are 
met by the plan. Species in this group meet all three of the following 
criteria:
    1. The species is federally or state listed, proposed for listing 
or a candidate for listing or has a high likelihood of being listed 
during the planning horizon of the MSCP.
    2. The species has regionally significant populations in the study 
area that is dependent on the resources in the study area.
    3. The species or subspecies is likely to be affected by the MSCP.
    Planning species are indicators of very specific habitat types or 
micro-habitats and will require species-specific or site-specific 
conservation, management, and monitoring actions. Thus, these species 
will be considered in ensuring a truly ecosystem-based conservation 
effort. Like the priority species, these species will be analyzed for 
coverage under the plan, based on adequate conservation and management 
of species-specific locations or of locations having appropriate 
microhabitats. Species in this group may be listed or not listed.
    The MSCP will use information on habitat requirements and limiting 
factors from the species to focus scientifically based planning and 
management decisions. These planning and management decisions will 
pursue the biological objectives for each species. The MSCP will 
protect, conserve, and enhance all priority and planning species and, 
in particular, work toward recovery of listed species and attempt to 
reduce the likelihood of additional species listings under the 
Endangered Species Act.
    Our preliminary goals for species are based on reasonable 
assumptions, extrapolated from our knowledge of other similar species. 
As part of the planning process, alternative conservation strategies 
will be evaluated based on a number of factors, including level of 
conservation, available opportunities, cost, feasibility, impacts on 
land and water use and other resources, and overall plan objectives.
                          conservation equity
    Mr. Chairman, I know that you, perhaps better than any member of 
Congress, are aware of the character of water development and delivery 
in the Western United States. In the West, we have a mix of federal, 
state and private development of water resources, which sometimes 
results in a substantial inequity among users on the river. This is 
particularly true along the lower Colorado River. The Secretary of 
Interior is the ``watermaster'' for the lower Colorado River and the 
federal government has significant holdings and trust responsibilities 
along the river. For some water users who receive water from a 
conveyance with a federal nexus, the ``classic'' HCP certainty that 
exists in Section 10 of the Act does not exist for them. These water 
users, sometimes with identical needs, identical commitments to habitat 
conservation and identical financial commitments as their neighbors do 
not receive section 10 ``no surprises'', but, rather, the continuing 
uncertainty of a section 7 consultation for the Bureau of Reclamation.
    We believe that a theory of ``conservation equity'' should be 
developed. ``Conservation equity'' would assure that same level of 
certainty available to some private property owners under section 10 of 
the ESA would be shared by western water users who rely on a water 
conveyance with a federal nexus and therefore exposed to the 
uncertainty of continuing consultation under Section 7 of the Act.
                           public information
    Because of our commitment to keeping the public informed, in July 
of this year the Steering Committee published a public information plan 
(PIP). The goals of the PIP are to:
    (1) Develop a program to provide information to the public about 
the MSCP and its potential impacts on the physical, biological, and 
social environment.
    (2) Establish a framework to provide meaningful opportunities for 
the public, Native Americans, and appropriate agencies to identify and 
discuss potential issues that affect them.
    (3) Identify key issues that must be addressed in the environmental 
review process.
    (4) Provide access for all interested and affected parties, groups, 
and agencies.
    (5) Provide forums for the solicitation and exchange of ideas and 
divergent views.
    (6) Actively engage interested parties in the development and 
evaluation of proposed conservation measures and Lower Colorado River 
MSCP alternatives, including alternative formulation criteria.
    (7) Develop a public involvement process that is visible to and 
understood by interested or affected parties.
    This preliminary PIP has been developed with input from the joint 
Federal lead agencies and the other stakeholders. This PIP is intended 
to address public outreach during each phase of the process. The PIP 
will be reviewed during each phase to ensure that the intent and goals 
of the PIP are being met and that the needs of the public and affected 
agencies are being addressed.
                       conservation opportunities
    We have identified 22 potential conservation areas within the Lower 
Colorado River western river corridor as an inventory of sites. From 
these, we will select core conservation areas to serve as initial 
habitat conservation research sites for priority and endemic species.
    We intend these core areas to be developed as adaptive management 
conservation sites under a conservation plan. The MSCP will identify 
and select the core areas that will serve as living research 
laboratories on which to apply adaptive management techniques that will 
best serve to develop data on habitat conservation, improvement, 
development, restoration and maintenance.
    The MSCP will focus on developing critically needed habitat for 
priority and a range of sensitive species, including backwaters, marsh, 
riparian and mesquite habitats to recreate and restore historic 
ecosystem function to theses sites and to test or research other 
habitat conservation and restoration technologies or methodologies. The 
MSCP shall identify the most appropriate habitat restoration 
technologies and methodologies for implementation through a Lower 
Colorado River conservation plan.
                          congressional action
    Unfortunately, as you can appreciate, the development and 
coordination of the MSCP for the Lower Colorado River is a major 
undertaking. As with any such undertaking, it is important that the 
stakeholders remain committed to the program. Considering the 
uncertainty over the efficacy of the HCP effort in the ESA, maintaining 
this commitment is all the more important. The level of support from 
federal sources, particularly the Bureau of Reclamation, has been 
severely lacking. We need Congress's support for this ecosystem based 
approach between the parties. We need Congress's endorsement of the 
cooperative partnership between the United States and the States, 
Tribal and local governments and the participation of the private and 
public sectors in developing and supporting the MSCP.
    Authorizing statutory language, to ratify the ecosystem-based 
approach agreed to between the parties with sufficient assurances to 
provide the resource users of the Lower Colorado certainty, is needed. 
Federal participation in the MSCP must be funded. Together we can 
protect the habitat and develop the resources of the Lower Colorado 
River benefiting both the species at risk and the citizens who rely on 
that resource.
    Mr. Chairman, thank you for the opportunity to bring the Lower 
Colorado River Multi-Species Conservation Plan to the attention of the 
Committee. Clearly, we are a solution in search of a partner.
                                 ______
                                 
                               Appendix A
    lower colorado river multi-species conservation program program 
                            member agencies
U.S. Department of Interior

    U.S. Bureau of Reclamation
    U.S. Fish and Wildlife Service
    Bureau of Land Management
    Bureau of Indian Affairs
    National Park Service

U.S. Department of Energy

    Western Area Power Administration

State of Arizona

    Arizona Game and Fish Department
    Arizona Department of Water Resources
    Arizona Power Authority

State of California

    California Department of Fish and Game
    Colorado River Board of California

State of Nevada

    Colorado River Commission of Nevada
    Nevada Division of Wildlife

Lower Colorado River Basin Indian Tribes

    Colorado River Indian Tribes
    Cocopah Indian Tribe
    Chemehuevi Indian Tribe
    Fort Mojave Indian Tribe
    Fort Yuma-Quechan Indian Tribe
    Hualapai Indian Tribe

Lower Colorado River Basin Water and Hydroelectric Power Resource 
        Management Agencies

    Central Arizona Water Conservation District
    Coachella Valley Water District
    Imperial Irrigation District
    Los Angeles Department of Water and Power
    Metropolitan Water District of Southern California
    Nevada Power Company
    Overton Power District No. 5
    Palo Verde Irrigation District
    San Diego County Water Authority
    Silver State Power
    Southern California Public Power Authority
    Southern Nevada Water Authority
    Valley Electric Association
    Wellton-Mohawk Irrigation and Drainage District

Environmental and Conservation Organizations

    Five Seats Not Currently Occupied
                                 ______
                                 
                               Appendix B
Invertebrates

    California Floater
    Grand Wash Springsnail
    Kanab Ambersnail
    MacNeill's Sootywing Skipper
    Moth Lacewing
    White Desertsnail

Amphibians

    Arizona Toad
    Colorado River Toad
    Couch's Spadefoot Toad
    Lowland Leopard Frog
    Northern Leopard Frog
    Relict Leopard Frog

Fishes

    Bonytail Chub
    Colorado Squawfish
    Desert Pupfish
    Desert Sucker
    Flannelmouth Sucker
    Humpback Chub
    Moapa Dace
    Moapa Speckled Dace
    Mohave Tui Chub
    Razorback Sucker
    Roundtail Chub
    Totoaba
    Virgin River Chub
    Virgin Spinedace
    Woundfin

Birds

    American Bittern
    American Kestrel
    American Peregrine Falcon
    American White Pelican
    Arizona Bell's Vireo
    Bald Eagle
    Belted Kingfisher
    Burrowing Owl
    California Black Rail
    California Brown Pelican
    California Clapper Rail
    California Condor
    Clark's Grebe
    Common Barn Owl
    Common Black-hawk
    Common Nighthawk
    Cooper's Hawk
    Elf Owl
    Ferruginous Hawk
    Fulvous Whistling Duck
    Gila Woodpecker
    Gilded Flicker
    Great Blue Heron
    Great Egret
    Greater Roadrunner
    Great Horned Owl
    Harris' Hawk
    Large-billed Savannah Sparrow
    Lesser Nighthawk
    Light-footed Clapper Rail
    Loggerhead Shrike
    Long-eared Owl
    Merlin
    Mississippi Kite
    Mountain Plover
    Northern Harrier
    Osprey
    Prairie Falcon
    Red-tailed Hawk
    Rough-legged Hawk
    Sharp-shinned Hawk
    Short-eared Owl
    Snowy Egret
    Southwestern Willow FlycatcherSummer Tanager
    Swainson's Hawk
    Turkey Vulture
    Western Least Bittern
    Western Snowy Plover
    Western Yellow-billed Cuckoo
    White-faced Ibis
    Yuma Clapper Rail

Mammals

    Allen's Big-eared Bat
    California Leaf-nosed Bat
    Cave Myotis
    Colorado River Cotton Rat
    Desert Pocket Mouse
    Fringed Myotis
    Greater Western Mastiff Bat
    Houserock Valley Chisel-toothed (Marble Canyon) Kangaroo Rat
    Hualapai Southern Pocket Gopher
    Long-legged Myotis
    Mexican Free-tailed Bat
    Occult Little Brown Bat
    Pale Townsend's Big-eared Bat
    Prospect Valley Pocket Gopher
    Searchlight Pocket Gopher
    Small-footed Myotis
    Southwestern River Otter
    Spotted Bat
    Vaquita
    Yuma Hispid Cotton Rat
    Yuma Myotis
    Yuma Puma (Yuma Mountain Lion)
                                 ______
                                 
  Statement of Maureen S. Frisch, on behalf of Simpson Timber Company
                              introduction
    My name is Maureen Frisch. I am honored to have the opportunity to 
testify on Habitat Conservation Plans.
    I am vice president of public affairs for Simpson Investment 
Company, which is headquartered in Seattle, Washington. Simpson 
Investment Company is the holding company for Simpson Timber Company. 
We are a privately held company, owned and managed by the same family 
for almost 110 years. We own approximately 870,000 acres of timberland 
in California, Oregon and Washington and operate several wood 
processing facilities in California and Washington. Simpson was the 
first private landowner to obtain a Habitat Conservation Plan for the 
Northern Spotted Owl, and, we have just recently submitted a draft HCP 
and Implementation Agreement covering primarily aquatic species on 
261,000 acres of our timberland in Washington State. This draft HCP, 
when approved, will also serve as a draft TMDL for our lands, thus 
bridging, for the first time in an individual HCP, the Endangered 
Species Act and the Clean Water Act. We are also working on a multi-
species plan, once again with great focus on aquatic species, covering 
our California lands.
    I am testifying today on behalf of Simpson, the Foundation for 
Habitat Conservation, headquartered in Seattle, and a similar 
organization--The Coalition for Habitat Conservation--located in Laguna 
Hills, California.
    I am pleased to appear before the Committee today to discuss 
Habitat Conservation Plans and the opportunities and challenges these 
plans face. The entities I am representing today strongly support 
viable voluntary habitat conservation planning under the Endangered 
Species Act (ESA). HCPs are the primary mechanism through which private 
landowners can effectively and legally address listed species residing 
on their lands, to both preserve those species and their habitat, by 
crafting management approaches that strike a balance between species 
and habitat protection and maintaining a viable business entity. HCPs 
are an increasingly important conservation tool, with more than 240 
such plans in place around the country, protecting more than 400 
species on 18 million acres of land. However, I must stress that HCPs 
will remain viable only if they are allowed to provide reasonable 
certainty at a reasonable cost, blending both scientific credibility 
and business sensibility.
                the foundation for habitat conservation
    The Foundation for Habitat Conservation (www.habcon.org) is a not-
for-profit (501(c)(6)) organization formed in April of 1998. The 
Foundation supports Habitat Conservation Plans and related voluntary 
private conservation efforts through research, education and 
communication. Membership is open to holders of HCPs, scientists and 
consultants who work on HCPs, and other interested parties who support 
HCPs.
    The Foundation's purpose is to ``research, communicate, and support 
the workings, role, and benefits of habitat conservation plans and 
related, incentive-based private conservation initiatives.'' The 
Foundation has participated in a number of forums discussing HCPs and 
ways to improve them. The Foundation has recently produced a Habitat 
Conservation Plan Resource Guide, which was distributed to the 
Committee at a hearing held in July of this year. This resource guide 
recaps 18 HCPs around the country, covering deserts, cities, forests 
and ocean dunes. Some of these plans protect a single animal species 
while others cover hundreds of species of wildlife and plants.
    The Foundation's members include a number of landowners that either 
hold HCPs, are developing HCPs, or both. At present, the members of the 
Foundation have over 820,000 acres of land managed under HCPs in three 
states, and have HCPs in final stages of development on over 2 million 
additional acres in a total of seven states. Foundation members own 
timberland and focus mainly on forestry HCPs, while the Coalition for 
Habitat Conservation includes large land developers who develop 
property covered by current and proposed regional HCPs.
                 the coalition for habitat conservation
    The Coalition for Habitat Conservation is a group of Southern 
California property owners and public utilities that together own more 
than 300,000 acres of land in Orange, Riverside and San Diego counties. 
It was formed in 1991 as a 501(c)(6) corporation to pursue the mutual 
interests of its members in finding solutions to endangered species 
issues that are sound environmentally and economically.
    The Coalition has supported California's Natural Communities 
Conservation Planning Act as a vehicle to create large-scale HCPs that 
protect multiple species, and has promoted these plans in forums 
throughout the region. Coalition members have participated in several 
HCPs that involved the creation of habitat preserve systems totaling 
more than 210,000 acres in Southern California, and are currently 
participating in the development of plans that will cover significant 
additional acres. A signature of these plans is that, while landowners 
make large contributions of private lands to the HCPs, others are able 
to participate as well. In the case of the Orange County Central & 
Coastal Natural Communities Conservation Plan, for example, a private 
landowner contributed 21,000 acres and 17,000 acres were contributed by 
a transportation authority and state and local jurisdictions. All of 
these public and private entities are dedicated to the success of the 
plan.
         hcps foster voluntary, private contribution to species
    HCPs facilitate voluntary contributions to species by many private 
landowners. In every region of our country, significant populations of 
threatened and endangered species are found on privately owned lands. 
Section 10 of the Endangered Species Act is the only mechanism 
currently available that gives incentives, primarily in the form of 
regulatory certainty, to the private sector to voluntarily provide 
extensive land and resources to protect threatened and endangered 
species. Without the ESA-related certainty that the government can 
offer a private landowner through the HCP program, few if any 
landowners could afford or justify making the kinds of commitments that 
have and are being made in the context of HCPs.
    Before proceeding, I would like to emphasize that we know there are 
many talented, dedicated and highly professional people working at the 
state and federal level to effectively implement the Endangered Species 
Act and all of the complexities associated with the Act. We know this 
because we have worked with many of them over the past several years. 
Making your way through the HCP process is extremely challenging for 
the regulator and the regulated. As a private landowner, we simply ask 
that we keep our focus on finding a balance one that reflects not only 
the very real need to protect species and their habitat but one that 
also enables private landowners to maintain viable businesses. Science 
and common sense both have an important role to play in this process.
    I would also like to acknowledge earlier testimony to this 
committee and the House by Steve Quarles who represented the American 
Forest & Paper Association and Jim Johnston, of the Perkins Coie law 
firm in Seattle, who testified before the House Committee on Resources 
earlier this year on behalf of the Foundation and Coalition. My 
testimony incorporates many of the points each made, while also 
emphasizing some outstanding successes associated with the HCP program.
     multi-species hcps and single-species hcps are viable options
                             for landowners
    Many current landowners, including Simpson, are working on multi-
species plans. Such plans are a particularly valuable part of the HCP 
program, as they are most likely to focus management or development of 
property from the broadest possible fish and wildlife habitat 
perspective. And, by covering unlisted species, they provide certainty 
to long-term land managers that financial and conservation investments 
made today are likely to result in meaningful returns tomorrow.
    From the perspective of fish and wildlife, multi-species plans also 
provide tangible benefits to species that are not yet listed and for 
which no regulatory or ``take'' restriction exists. I don't want to 
infer, though, that single or limited species plans are not viable. 
These plans must also remain an option for landowners. They are equally 
appropriate in some settings either because of landscape-specific 
circumstances, landowner and agency priorities or simple landowner 
preference.
        adaptive management is a critical component of many hcps
    Many current and proposed HCPs include an Adaptive Management 
component. Adaptive management provisions are appropriate and critical 
elements of many long-term HCPs. Adaptive management--referred to also 
as ``learning by doing''--can result in more efficient and effective 
management techniques. Adaptive management applies the concept of 
experimentation to the design and implementation of natural resource 
and environmental policies. As such, adaptive management can provide a 
reliable means to assess and evaluate the HCP's mitigation measures, 
improve ecological knowledge, and develop appropriate modifications in 
planning elements. This can result in the HCP performing more 
effectively as we learn more--by improving results without increasing 
burdens on the HCP holder beyond that incorporated into the adaptive 
management provisions established during development of the HCP.
    Of course, adaptive management must be based on something 
measurable. These measurables include research and monitoring, setting 
thresholds for triggering corrective action, analyzing causative 
actions and modifying the plan's management and mitigation elements. In 
other words, setting the framework for continued acquisition of data 
and plan modification, based on credible science and documentation.
    Some of the best applied science being done today is in the context 
of HCPs. However, it is important to recognize that HCPs are more than 
scientific documents. They are also management and business plans. 
Science should play an important role in formulating an HCP, but 
ultimately the plan must balance the minimization of impacts to habitat 
with the notion of practicability. With adaptive management as an 
important component of many HCPs, the ability to monitor what is 
happening, conduct further research, and learn and make necessary 
changes as we implement the provisions of the HCP are designed into the 
plan.
    I would now like to point out just a few of the successes we are 
experiencing and by doing so, attempt to highlight what has worked, 
while recognizing that the HCP program faces some very real challenges.
              the washington state forests and fish report
    Since I am from the other Washington, I feel compelled to mention a 
recently crafted statewide conservation agreement specifically designed 
to address the 
Endangered Species Act and Clean Water Act. Many of the members of the 
industry and Foundation in Washington State have been active 
participants in the development of a collaborative state-private-
federal-tribal effort to establish a new regulatory template in the 
state.
    Anticipating the listing of Chinook salmon and other aquatic 
species, and having had an ``up close and personal'' experience several 
years ago with the Northern Spotted Owl, the state's forest products 
industry began planning in 1996 for a new round of what we call in the 
state, Timber, Fish & Wildlife negotiations. The Timber, Fish & 
Wildlife process is a negotiating forum through which key stakeholders 
come to the table to frame issues and try to reach consensus on 
regulatory changes needed to address the protection of public resources 
such as fish, wildlife, water quality, and capital improvements. Months 
of discussions and use of the most current research available led to 
what has now become known as the ``Forests & Fish Report,'' an agreed 
upon direction for future management of riparian and aquatic resources. 
This Report was the basis for legislation that was approved by the 
Washington Legislature this year and has been signed into law by the 
Governor. The Report is now being considered in the state and federal 
regulatory process; first as an emergency forest practices rule 
package, then as a permanent forest practices rule package, then as a 
Federal 4(d) rule and finally, we all hope, as a Habitat Conservation 
Plan.
    Under the Forests and Fish Report, owners of 8 million acres of 
forestland have committed to a substantively improved set of forest 
practices for all of the state's non-federal forest landowners. Also 
included in the Report is an agreed to adaptive management program that 
will have a detailed process to ensure continuous improvement of forest 
practices as science dictates. Over 2 billion dollars of timber and 
tree growing capacity is being set aside to provide effective 
streamside buffers and habitat protection to ensure cool, clear water 
for fish and other aquatic species. The Report, in recognition of these 
timber values, calls for a limited tax credit to landowners for trees 
left standing in these riparian zones.
    This significant and voluntary commitment would not have been 
possible if not for the ability and willingness of the National Marine 
Fisheries Service (NMFS) and U.S. Fish & Wildlife Service (FWS) to 
offer long-term certainty to landowners regarding fish and six stream-
breeding amphibians that are or might become listed under the ESA. The 
extensive and long-lasting benefits of such a program cannot be 
seriously questioned. It is also difficult to imagine what other 
mechanism could enable the government to secure an agreement covering 8 
million acres of land under what will be very effective conservation 
measures and an adaptive management program to guide changes as 
necessary.
    washington's forests and fish report: focus on small landowners
    The Report also recognizes the difficulty small, non-industrial 
landowners have in meeting the stringent requirements of the Endangered 
Species Act. A special compensation element was included in the 
legislation to compensate small landowners for lands restricted due to 
impacts on their lands associated with the Forests & Fish Report. Under 
the Forests & Fish Report, a Small Forest Landowner Office, whose work 
will be funded by state funds, will be created within the Washington 
State Department of Natural Resources. This feature of the Report calls 
for applying the same riparian and related buffers to small landowners 
as applied to all other forest landowners, but provides partial 
compensation to those small landowners that volunteer to enter into 
easements covering riparian areas. This program is intended to help 
maintain the viability of non-industrial forest landowners and to 
provide an incentive to keep the small landowners' forestland base in 
forestry.
    The Small Forest Landowner Office will serve as a resource and 
focal point for small landowner concerns and policies. It will also 
administer the Forest Riparian Easement program, through which small 
landowners will be compensated for lost forest values attributed to 
restrictions imposed as part of the Forests & Fish Report. In addition, 
the office will recommend rules pertaining to the valuation of 
easements for small landowner compensation purposes; contract with 
qualified consultants to appraise the timber as needed to implement the 
easement program, and make technical guidance available to small 
landowners.
    This small landowner feature was critical in winning support from 
many such landowners in the state. The Report's success is a tribute to 
the dedicated efforts of private industry, both small and large, and 
state, local, federal and tribal governments, working cooperatively to 
address the habitat of threatened fish species in the Pacific 
Northwest.
                 the simpson timber company experience
    I would not be a loyal employee of Simpson Timber Company if I 
didn't take this opportunity to mention my company's involvement in the 
HCP process. Our successes with our governmental partners, as well as 
some frustrations with those same partners, point to what is working 
and to areas that need some attention.
    A good measure of the value of HCPs is to compare results under 
them with results in their absence. Under the ``no take'' rules, for 
example, circles around owl or gnatcatcher nests are protected, but 
landowners are left to harvest or develop other areas, thus effectively 
preventing the development of new habitat over time. The ``take'' 
prohibition creates a powerful disincentive, we believe, to ever allow 
non-habitat to grow into habitat. However, under the Simpson Timber 
Company HCP in Northern California for the Northern Spotted Owl, for 
example, some incidental take is allowed but the HCP is devised to 
allow habitat to grow and increase over our ownership over time, 
because the HCP removed the ``no take'' disincentive. Owls have 
prospered on our ownership and owl habitat is and will continue to 
increase significantly over the life of the HCP. Our Northern Spotted 
Owl HCP was signed in 1992, and we have submitted our sixth annual 
report to the U.S. Fish & Wildlife Service, as required under the terms 
of the agreement. To date, we have banded almost 1100 owls on or near 
our primarily second-growth forests in Humboldt and Del Norte Counties 
in Northern California. The owl seems to be doing just fine thank you 
in forests in which the early science told us they could not survive. 
And, we have been able to carry out a successful timber operation that 
provides hundreds of jobs in the rural communities of California's 
north coast.
    Beyond the extensive research we conducted on our own lands to 
prepare for the Northern Spotted Owl HCP process and the outstanding 
work of many of our employees, we benefited from the strong and focused 
commitment of U.S. Fish & Wildlife managers in the region and in 
Washington DC. Strong agency leadership--a desire to just get it done--
made a big difference to this process in the early 90s.
    This same committed leadership has also made a big difference to us 
over the past few years in Washington State. As I mentioned earlier, we 
have just submitted a ``final'' draft Habitat Conservation Plan and 
Implementation Agreement for a multi-species aquatic plan covering 
261,000 acres of our ownership in Washington. Once again, we spent a 
tremendous amount of time learning all we could about our lands, 
classifying all stream channels on our properties. This is a highly 
prescriptive conservation management approach which we are certain will 
improve water quality and fish habitat over the life of the plan. This 
effort reflects a highly collaborative effort with three federal 
agencies, the National Marine Fisheries Service, the U.S. Fish & 
Wildlife Service and the Environmental Protection Agency, and state 
agencies, tribal interests and the public.
    This proposed HCP, if approved, will be the first to bridge the 
Endangered Species Act and the Clean Water Act. The HCP will also serve 
as a draft Total Maximum Daily Load (TMDL) for the area covered by the 
HCP. I don't want to infer that this was an easy process or one without 
frustrations. It is also one that took four years much longer than we 
thought it would take when we started, but then all such complex 
negotiations take more time than we initially anticipate, and it 
involved significant costs. We'll now focus on the public comment 
period. If all goes well, and we believe it will, we hope to have a 
signed agreement early next year.
    With ongoing and hoped for successes in the HCP arena, Simpson has 
also experienced some troubling challenges with the program, 
particularly in California over the past few years. Over 5 years ago, 
we began the process of developing another Habitat Conservation Plan 
covering aquatic species on our California forestlands. We began as we 
always have when we address key conservation and management matters; we 
made sure we knew more about out land and its habitat conditions than 
anyone else. We did this so that we could craft riparian management 
activities that would address specific potential impacts associated 
with our forestry operations, while providing necessary protections for 
listed species and their habitat.
    I think the issues we have experienced are representative of what 
others have 
experienced and they are illustrative of why some landowners have grown 
weary of the process. I must point out, though, that we haven't given 
up on the HCP program in California, we are working hard to 
reinvigorate the process and to work with the Services in the state to 
re-focus our efforts.
    The delays and program challenges we have experienced in California 
can be covered under broader HCP processing and program management 
activities and key policy matters. We believe they can all be addressed 
to improve the overall HCP program.
   opportunities and challenges ahead: issues and possible solutions
    A number of forest products industry executives have met with 
Secretary Babbitt over the past several months to discuss the HCP 
program to make numerous suggestions on how it can be improved. We 
raised many of the points during these meetings that I am going to 
share with the Committee today, along with some possible solutions. I 
think these points are particularly valid coming from those who have 
successfully negotiated HCPs, see many areas where processing and 
policy can be improved, yet remain committed to the program.
    I would first like to recognize Secretary Babbitt's dedication and 
commitment to the HCP program. We appreciate his leadership in this 
area and we are committed to continue working with him, other federal 
agencies, state agencies and Congress to maintain and enhance the 
program.
    Before meeting with Secretary Babbitt we spent quite a bit of time 
considering what it was that enabled such successes under the program 
and what needs to occur to maintain a viable and effective HCP program 
in the future. We saw many early successes in the program, but had been 
dismayed over the past few years at a lack of progress, particularly in 
Northern California and the Pacific Northwest regions. In fact, other 
than the HCP approved for Pacific Lumber Company, under what we believe 
were extraordinary pressures and incentives, the last HCP signed in the 
Pacific Northwest was the Plum Creek Timber Company HCP in June of 
1996.
    We now, of course, are seeing some progress in this arena, 
including the historic Forests & Fish Agreement and recently proposed 
HCPs by Simpson and Crown Pacific. But there has been a lapse, with 
some landowners becoming frustrated with the entire HCP program. That 
frustration is precisely why the group I described came together to 
meet with Secretary Babbitt. We believe those meetings were helpful in 
some cases and that the Secretary's strong and continuing commitment to 
the program is critical.
    The areas we focused on with Secretary Babbitt included HCP program 
management and policy concerns covering a number of areas: HCP 
negotiating and processing delays, the imposition of excessive demands 
and extraordinary obligations on the landowner, a diminishing role for 
science in the process, efforts to impose a ``one size fits all'' 
approach to the process, and the loss of certainty, which is critical 
to the success of the overall program. As we told Secretary Babbitt, 
and I am here to reiterate today, we think all of these program 
challenges can be addressed and we are committed to working 
cooperatively to find solutions.
                          hcp policy concerns
Attacks on the ``No Surprises'' Policy Erodes Certainty
    The No Surprises Rule is the heart of the HCP program for private 
landowners. It represents the primary guarantee of the minimal 
certainty essential for voluntary conservation planning by a landowner. 
It also represents certainty on the part of the wildlife agencies that 
the plans have a sound design, and are, in effect, low-risk 
propositions. Yet, the No Surprises Rule is under heavy attack. 
Interest group and legal challenges have sought to erode its strength. 
Without a reasonable No Surprises Rule, voluntary HCP commitments will 
cease, and the effective species protections afforded by large-scale 
HCPs will end.
    A possible solution.--Both the Coalition and Foundation believe 
that Congress should codify No Surprises; it is the most important 
element to ensure the program's success.
Section 7 Consultation Reduces Certainty
    Other than an adverse outcome in the current lawsuit challenging 
the No Surprise Rule, Section 7 of the ESA currently poses the biggest 
single risk to the continued viability of the HCP program. Section 
7(a)(2) requires that all federal agencies ``consult'' with NMFS or 
FWS, as appropriate, prior to issuing a permit or funding an activity 
whenever the agency believes that such action ``may adversely affect'' 
a listed species. The agencies see Section 7 consultation as applying 
to their issuance of an incidental take permit when the HCP is 
approved. Accordingly, the agencies ``consult'' with themselves before 
approving an HCP. Finally, the strictures of Section 7(d), and the 
risks presented by citizen suits associated with 7(d), add yet another 
``hurdle'' to be overcome by HCP applicants.
    The purpose of consultation is to determine whether the proposed 
agency action ``is not likely to jeopardize'' the continued existence 
of any listed species or result in the adverse modification of critical 
habitat. As covered in NMFS/FWS regulations, if the determination is 
``no'', then the agency action can proceed. If the determination is 
``yes'', then the consulted agency must propose reasonable and prudent 
alternative measures that would mitigate the likely jeopardy. In 
developing an HCP, the applicant and agencies are engaged in the 
focused consideration of how to minimize and mitigate the impacts on 
the species to the maximum extent practicable. If an activity is found 
to pose jeopardy to the species, it will not meet the test under the 
HCP standard of ESA Section 10.
    A possible solution.--If the consultation concept is believed to 
``add value'' to the HCP process, we believe that it should be 
incorporated into the Section 10 HCP development and evaluative 
processes and eliminated as a separate step in the process.
                     hcp process management issues
    Process management concerns cover many areas, all of which have the 
potential to add significant time delays and costs to the process.
Need for strong agency lead to manage the HCP process
    Successful HCPs have a common element: a ``can do'' attitude, 
combined with strong inter-agency cooperation facilitated through a 
strong agency lead who served as the focal point for agency decision 
making and policy guidance. This becomes increasingly important as the 
HCP program comes under orchestrated pressure from various groups 
intent on undermining the program. A strong team lead can keep the 
momentum going and serve as a buffer between field staff and external 
groups pressing for restrictions and oversight beyond the appropriate 
scope of the HCP.
    A possible solution.--Reinforce the government's strong commitment 
to the HCP program as embodied in the joint directive the Secretaries 
of Interior and Commerce issued to their agencies earlier this year.
Absence of process deadlines
    An open-ended process, without clear timetables for activities and 
decisions can drift in what often feels like an endless pattern of 
delay. Without specific deadlines, the ordinary incentive for parties 
to reach agreement is reduced.
    A possible solution.--Require the agency, in concert with the HCP 
applicant, to develop, during the initial stages of the process, a 
timeline for the process that includes key milestone dates and specific 
process deliverables. Updates to this timeline should be provided to 
agency heads and the HCP applicant on a regular basis, with discussions 
held to address processing concerns if and when they arise.
Inability to reach closure on key issues
    In some cases, the agency and the applicant cannot reach closure on 
key issues, with no definitive plan or schedule to resolve the issues 
and no clear statements by the agency on what information they need, 
what kinds of mitigation measures they are seeking or why those 
measures are actually needed. What are we trying to fix, why and how?
    A possible solution.--Require agencies to provide, in writing, 
reasonable alternatives to outstanding issues in the negotiating 
process.
Reopening of agreed upon issues
    Matters definitively resolved or agreed upon are reopened later, 
long after landowners have evaluated and made internal trade-offs that 
permitted them to reach the agreement in the first place.
    A possible solution.--Declare, once again in writing, closure on 
specific issues and define what extraordinary circumstances, if any, 
could reopen the issue for further discussion.
Concerns about shifting agency staffing
    For some applicants, agency HCP staff have been reassigned, causing 
delays through staff shortages at key times, resulting in lost time and 
increased expenses due to transition. In some cases, the new staff have 
different perspectives and attempt to change prior commitments or the 
agreed upon ``architecture'' of the plan.
    A possible solution.--Some personnel changes are inevitable, of 
course, however, issues already closed and timelines and deliverables 
agreed to, should not change. Written confirmation of closed issues and 
reports on progress to agency heads could be helpful in keeping 
everyone on track.
Need for more effective agency coordination
    Another tremendous challenge has to do with the fact that we must 
deal with multiple agencies, sometimes with conflicting standards and 
often with duplication of effort. With the listing of anadramous fish 
(salmon, for example, fish that spawn in freshwater but live part of 
their lives in saltwater), many of us who have been involved in the HCP 
program are now working with an additional agency, the National Marine 
Fisheries Service. If you are working on a multi-species plan that 
includes species that fall under the jurisdictions of both the National 
Marine Fisheries Service and the U.S. Fish & Wildlife Service, you must 
deal, of course, with both agencies. Add to this the desire to try to 
simultaneously address water quality issues, such as the TMDL program, 
and you add yet another federal agency, the Environmental Protection 
Agency, into the mix. Landowners are often required to deal with the 
agencies on a piecemeal basis on some issues, often resulting in having 
to go back and forth between the agencies to address the same or quite 
similar issues. At times, conflicting interpretations of policy may 
arise from different agencies. This results in additional delays, 
increased costs, duplication of effort, and frustration. It is also 
important to note that the issue of coordination is compounded where 
the landowner is pursuing a parallel state process and/or must also 
work with various state agencies with oversight responsibility 
concerning listed species.
    Recent proposed rules by EPA highlight this multi-agency problem. 
Under the proposed rules, an HCP holder that has negotiated and agreed 
to a package of commitments protecting aquatic resources could 
subsequently be required to ``start over'' again with yet another 
agency EPA through implementation of an independent TMDL effort and 
``activity-by-activity'' permitting under the Clean Water Act. 
Occurring independent of and without coordination with the more 
holistic, landscape level approach to aquatic resources management that 
is facilitated by the HCP process, this type of proposal has a similar 
impact on landowner uncertainty as the loss of No Surprises.
    A possible solution.--Explore approaches to identify a single lead 
agency on ESA matters, with involvement, of course, from other agencies 
with needed experience end expertise concerning the species listed or 
environmental compliance issue being addressed.
    All of these process management issues have the potential to add 
significant costs to the HCP process, not only for the HCP applicant, 
but also for the government, and therefore, the public. It is in 
everyone's interest the public, the landowner, the government, the 
resource and the species to make sure the HCP program remains viable 
and effective. I would now like to turn to some concerns about the role 
of science in the process and our belief that Habitat Conservation 
Plans must reflect the habitat conditions, potential operational 
impacts and conservation and management objectives of the landowner. 
These issues are reflected in concerns about the diminishing role of 
science in the process and attempts to impose extraordinary obligations 
on a landowner.
Diminishing role of science
    There is growing concern that the important role of science in 
determining conservation measures is being replaced with a ``one-size-
fits-all'' or a ``comparative'' approach. HCPs are voluntary and 
individual to each applicant. To some extent, it appears that agency 
personnel seek to apply measures from one HCP to another. While 
consistency in policy matters is a laudable goal, plans must be 
tailored to the particular landscape, past management practices, and 
landowner involved. A good example of this is that some landowners are 
experiencing demands for wide, fixed-width buffers with little regard 
to what scientific data and on-the-ground research shows is reasonably 
sufficient.
    In other cases, an effort has been made to take what one landowner 
agreed to in one situation and make it the ``baseline'' for another--
without regard to what the resource conditions appear to be. Simpson 
has run into this troubling approach in Northern California, as we 
encounter regulators at both the state and regional office level who 
have tried to overlay certain provisions of the Pacific Lumber Company 
HCP on our management activities, regardless of the conditions on our 
lands. We feel strongly that HCPs must reflect each landowner's unique 
habitat and water quality conditions, resource management objectives 
and the need to mitigate specific impacts associated with the 
landowner's management activities. In other words: How will the 
landowner's management activities impact the listed species and what 
must the landowner do to effectively address those impacts?
    We understand how challenging the ESA arena can be and the pressure 
agency staff face in the HCP process; it's challenging for all of us. 
However, ``one-size-fits-all'' is an easy way out if you are doing the 
regulating, but it can be an excessive, unnecessary and costly 
imposition for a private landowner that is willing to participate in 
the HCP process, but unwilling and unable to accept matrix-like fixes 
that don't address real impacts.
Multi-species HCPs appears to be diminishing
    Landowners are often required to provide such extensive amounts of 
species-specific data that multi-species plans are becoming less 
feasible. For some applicants, dropping species out of the HCP becomes 
the only viable option. This negates the ability of landowners to 
develop landscape approaches to conservation planning and narrows the 
focus of the plans. This discourages habitat-based plans for a broad 
range of species.
Requiring landowners to accept extraordinary obligations
    The mitigation burden imposed on each landowner in the HCP permit 
process is intended to be entirely dependent upon the impacts caused by 
the landowner's future activities and to be proportional to those 
impacts. Requiring landowners to assume responsibility for--and agree 
to correct--landscape conditions not caused by the applicant or to 
develop ``ideal'' or ``properly functioning habitat'' conditions on 
their ownership, regardless of the extent of the impacts on the 
species, often results in the imposition of an enormous burden on some 
applicants and adds significant costs to the HCP.
    We believe that HCPs offer the most constructive way for private 
parties to contribute to the ultimate goal of recovery, while meeting 
their requirements to mitigate impacts to the species on their lands. 
We do this, of course, for the privilege of obtaining an incidental 
take permit. While recovery is the government's responsibility, care 
must be taken not to let that overall governmental goal become 
translated into the standard for HCP approval. I do want to stress, 
though, that many HCP holders and applicants willingly exceed current 
regulatory requirements. We do so to secure some type of negotiated 
element of the plan and to gain greater regulatory certainty. I believe 
all of these plans will, over time, result in improved habitat 
conditions over the landscape and make a positive contribution to the 
species and the resource.
            supporting a viable hcp program into the future
    To support a viable and effective HCP Program into the future, I 
would like to briefly recap some potential solutions to program 
challenges:
     Require agencies to commit to specific timetables for key 
HCP processing deliverables. Progress, processing concerns and an 
action plan to address deficiencies should be routinely reported to 
both agency leadership and the HCP 
applicant.
     Require agencies to provide written examples of what the 
agency would consider to be reasonable alternatives to specific issues 
in the applicant's plan that need to be addressed.
     Make ``No Surprises'' the law.
     Fix the Section 7 consultation issue. Either Section 7(d) 
should not be applicable to HCPs or consultation for HCPs should be 
streamlined and incorporated into Section 10 of the ESA.
     Bolster support for multi-species plans. We commend 
Secretaries Babbitt and Daley, along with leadership in the agencies, 
for their support of such plans.
     Minimize conflicts created by overlapping jurisdictions 
(including the Clean Water Act TMDL process and individual activity-by-
activity permitting process).
     Keep the focus on science in listing, recovery, de-listing 
and HCP development activities.
     Make sure HCPs are affordable and can be completed in a 
timely manner.
     Find creative, workable approaches to address small 
landowner interests. (Perhaps the Washington Forests & Fish Report's 
small landowner focus could provide some helpful insight. Copy provided 
to staff.)
    Mr. Chairman, both the Foundation and Coalition are working on 
solutions to these issues and stand ready to assist you in whatever 
manner we can. Thank you for the opportunity to testify.
                                 ______
                                 
          Statement of Dan Silver, Endangered Habitats League
    Good morning, Chairman Crapo and Subcommittee Members. I am Dan 
Silver, of the Endangered Habitats League (EHL) in Southern California. 
For the last nine years, I have been ``in the trenches'' of habitat 
conservation planning under section 10(a) of the Endangered Species 
Act. Southern California is the epicenter of extinction in the 
continental United States. With our rapid growth, the potential for 
economic conflict is high. In fact, in 1991, the listing of the 
California gnatcatcher was predicted to cause an ``economic meltdown.'' 
What occurred was far different. Responsible people from all sectors 
took a risk-a risk that a cooperative approach would yield greater 
benefits to all interests than would continued confrontation. This 
venture is working, but also needs your help.
    These cooperative efforts have occurred under the State of 
California Natural Community Conservation Planning, or NCCP, program. 
An NCCP is basically a large scale habitat conservation plan for 
multiple species, organized as a federal-state-local partnership, with 
stakeholder involvement. With them, we are well on are way to getting 
ahead of the listing curve, and along the way, found more consensus 
than anyone thought possible. People from all sides are likely to call 
these pathbreaking efforts a qualified success, which says a lot. Yet, 
because lack of land acquisition funds has produced serious flaws in 
preserve design, Congress should 
urgently address this problem.
    The goals of the NCCP program are various. An NCCP provides 
streamlined permitting for development, certainty for ecosystem 
protection, and open space and quality of life for the human 
population. In fact, the preserves are often touted as ``environmental 
infrastructure'' by elected officials--as necessary for the future 
economic competitiveness of our region as more traditional forms of 
infrastructure. The obstacles to such planning--multiple jurisdictions, 
thousands of properties, contentious interest groups--have all been all 
overcome.
    An overview of the Southern California efforts is as follows:
    In Orange County, the Central/Coastal NCCP is complete. In this 
part of Orange County, a single, massive ownership allowed for 
relatively orderly development and for a reserve system with relatively 
unfragmented lands. The reserve design process involved a ``gap 
analysis'' between already-planned open space (exactions obtained 
through the land use process and earlier purchases) and maps of overall 
habitat quality and ``target species'' presence. The result-a preserve 
of 37,378 acres ``covering'' 39 species--combined the pre-existing open 
space with smaller, though important, new additions. There are also 
connectivity improvements and new management obligations.
    The covered species list of the Central/Coastal NCCP relies upon 
umbrella species methodologies, upon variable amounts of survey data, 
and upon judgments of habitat sufficiency. When planned restoration of 
agricultural lands is factored in, the result is particularly 
defensible for coastal sage scrub. As in all the NCCP plans, monitoring 
and adaptive management are major program components.
    Another huge ownership is involved in the Southern Orange County 
NCCP. An absence of already-planned land uses in this area makes it a 
test case for the NCCP program. Progress here has been much slower than 
anticipated due to complex wetlands planning, but there is outstanding 
conservation potential.
    In San Diego, the logistically and politically daunting Multiple 
Species Conservation Program, or MSCP, involves multiple jurisdictions 
and hundreds of landowners. After extensive public and stakeholder 
participation, a 172,000 acre preserve, covering 85 species across a 
full range of habitats, has been approved at the framework level and by 
three of the five jurisdictions involved. Included are 90,000 acres of 
currently private lands, two thirds of which will derive from 
development exactions, and the remainder acquired at an estimated cost 
of $300,000,000 (to be shared by local, state, and federal sectors).
    The preserve design process appropriately began with the 
compilation of standards and guidelines for preservation of vegetation 
communities and for maintaining ``viable populations'' of 90 target 
species of plants and animals. Due to incomplete survey data, a habitat 
quality map was prepared using a matrix of indices, and then a map of 
``biological core areas and linkages'' was produced. After adding in 
local land use factors, preserve design alternatives were developed, 
and evaluated for species coverage.
    All together, about three-fourth's of the best remaining habitat is 
slated for protection, and maintaining connectivity across an already 
fragmented landscape is a very significant benefit. The San Diego 
National Wildlife Refuge has been created in the most intact remaining 
landscape, and is helping assemble landscape-level units. Large parts 
of the preserve is to be assembled over time according to pre-
deterrnined criteria, such as mitigation ratios.
    In the fragmented landscape of northern San Diego County, five 
cities are finishing work on the Multiple Habitat Conservation Program, 
or MHCP. This plan will patch together smaller habitat patches and 
provide connectivity into Camp Pendleton Marine Base.
    In Riverside County, county government is leading an ambitious and 
visionary effort to simultaneously integrate a Multiple Species Habitat 
Conservation Plan with comprehensive land use and transportation 
planning. The habitat plan will provide greenbelts between communities 
in this rapidly growing county. The multiple species reserve will build 
upon an earlier, single species preserve which, by limiting its scope 
to the Stephens' kangaroo rat, did not resolve economic or 
environmental problems. The stakeholder Advisory Committee is 
considering market mechanisms to assemble the preserve system and 
fiscal incentives for agricultural interests.
    Progress on an NCCP in the Palos Verdes Peninsula in Los Angeles 
County has been slow. In San Bernardino County, the local governments 
unfortunately have not put together a multiple species effort, which 
could have averted many of the difficulties associated with the 
endangered Delhi Sands flower loving fly.
    I would lilac to summarize the lessons of the Southern California 
experience:
     Only a regional scale allows biological objectives to be 
met.--The goal of the ESA is ecosystem protection and recovery of 
species. A multiplicity of small, piecemeal HCPs will not meet these 
objectives. Large scale HCPs should meet recovery objectives, as they 
will probably define the full extent of conservation which ultimately 
occurs within their boundaries.
     A multiple species focus allows proactive conservation and 
the avoidance of future listings.--Long term certainty for economic and 
environmental interests alike is provided by a comprehensive scope, 
covering both rare and common species.
     Sound science can be demonstrated when the scale is large 
and multiple species are targeted.--Nature is complex, and it takes a 
comprehensive approach to truly achieve ecosystem protection. Only at a 
large scale can the basic scientific tenets of preserve design be 
realized.
     HCPs should be tailored to individual, local 
circumstances.--A large scale HCP in an agricultural area will be far 
different from that in an urbanizing area, requiring flexible 
approaches.
     Partnerships with state and especially local agencies are 
essential.--The most important yet underappreciated aspect of the NCCP 
program is its partnership with local government. Only local government 
has the land use authority necessary to build an interconnected 
preserve system on private lands. For example, the U.S. Fish and 
Wildlife Service cannot easily regulate unoccupied habitat on private 
land, although such habitat may be a crucial wildlife corridor. A 
critical aspect of the partnership, however, is the provision of 
federal planning funds to state and local agencies.
     Listings are necessary to bring the parties to the 
table.--Without actual listings--the California gnatcatcher in San 
Diego or quino checkerspot butterfly in Riverside--there is simply 
insufficient motivation for parties to undertake and carry out multi-
year, difficult planning processes. Also, in our experience, delegation 
to the states, without the federal government as a full partner, will 
not be successful.
     The process must be transparent at each step.--If the 
preserve design process is subject to continual scrutiny from its 
earliest stages, it can be understood and accepted. Alternative 
preserve designs and species coverage rationales must all be open to 
review early in the process, where citizen input can still have an 
effect. Building-in independent scientific review is extremely 
important. To this end, Riverside County is contracting with the 
University of California.
     Stakeholder involvement is a precondition for success.--
Implementing large scale HCPs is challenging, and varies in each unique 
area. Only the skill and knowledge of the affected stakeholders can 
shape implementation so that it serves everyone's needs. If you give 
people of different interests the opportunity, they will rise to the 
occasion, work together, and solve problems.
     Assurances to private parties are acceptable if 
commensurate certainty exists for species.--In order to justify ``no 
surprises'' assurances, HCPs should be large scale, multiple species in 
scope, meet recovery objectives, and have adaptive management and 
scientific input. In the type of plan we are doing in Southern 
California--a balance between permanent conservation and permanent 
loss--it is only the size and quality of the plan on ``day one'' which 
will really make a difference 50 years later. This is different, 
though, from HCPs which consist of managing renewable resources, such 
as forests or rivers. There, changes in management over time may well 
be an appropriate responsibility of the private sector.
     The biological goals to related public purposes.--Species 
protection produces precious open space in developing areas. All the 
preserve systems in Southern California are open to low-impact 
recreation, and they have a much greater chance of adoption when tied 
to such compatible objectives. A large scale HCP can help a region 
achieve a vision for its future, as is happening in San Diego and 
Riverside Counties.
     The provision of public land acquisition funds is an 
urgent priority.--Despite very significant exactions from the private 
sector, reaching biological goals will require large sums for land 
acquisition. Some properties simply cannot be split down the middle. 
Species cannot be ``mitigated'' into recovery. Particularly damaging 
has been the lack of early acquisition funds, because timing is often a 
critical factor. There is local, state, and national benefit to the 
preservation of America's heritage through HCPs. Funds from each of 
these levels of government are needed, and must be reliable and 
adequate.
    In conclusion, I urge you to reinvigorate the HCP process in two 
major ways. First, pursue large scale, multiple species HCPs with the 
characteristics I have described above. These should be prioritized, 
and federal planning funds provided to local agencies. Secondly, the 
public sector must do its share financially. Funding is needed for the 
federal government's fair share of the multiple species plans. It is 
also needed for an expansion of the National Wildlife Refuge system, 
which is another way that biodiversity can be protected before the 
crisis point is reached.
    I cannot stress the funding aspect enough: If you are serious about 
HCP reform, you will, in my view, fully and permanently fund the Land 
and Water Conservation Fund on an urgent basis, before this session of 
Congress is over. I want to tell you the sense of frustration people of 
all sides feel, people who have worked for years to produce potential 
solutions which will achieve national conservation objectives and also 
make their communities better places to live. We have been let down. 
However, if you fully fund the Land and Water Conservation Fund, you 
will provide stakeholders the essential tool for HCP success, and allow 
our shared values for conservation to flourish.
    Thank you for allowing me to testify today.
                                 ______
                                 
      Testimony of James Riley, Executive Director, Intermountain 
                           Forest Association
    Mr. Chairman, my name is Jim Riley and I am the executive director 
of the Intermountain Forest Association. The focus of my testimony will 
be on our recommendations for changes to Section 10 of the Endangered 
Species Act (ESA) and how the Habitat Conservation Plan (HCP) process 
can be used to solve the problems facing private property owners and 
States in complying with the ESA. The Intermountain Forest Association 
is a professional association of foresters and the forest industry in 
Idaho and Montana committed to sustaining forests and the forest 
businesses, jobs, products, water, wildlife and recreational 
opportunities that forests provide.
                               background
    Of the 53 million acres that is Idaho, 41 percent, or 22 million 
acres, is forested. Some 14 million acres of those forested lands are 
considered commercial forest, lands capable of growing repeated crops 
of commercially valuable timber, and not used for any other commercial 
purpose.
    We at IFA are committed to finding the balance between productive 
use and natural sustainability. We recognize that there is a rising 
tide of ``environmental chauvinism'' in this country that has had a 
very serious impact on our businesses and is actually harmful to the 
forests it claims to benefit. What we call environmental chauvinism is 
the preference, in some quarters, for the importation of minerals or 
timber from countries without laws to protect workers or the 
environment. It is the fulfillment of our national need for these 
products while implicitly participating in the literal destruction of 
global ecosystems. We at IFA stand ready to provide American jobs in an 
environmentally responsible fashion.
    Idaho's timber businesses employ 16,500 people, and from Boise 
northward, approximately 40 percent of the economy is dependent upon 
timber. Although much of the forested land in Idaho is owned and 
regulated by the Forest Service, a portion of state land is also in 
productive use as well as private timber landholdings. Over three 
million acres, or 23 percent, is privately owned by commercial and non-
commercial private landowners. The State of Idaho and other smaller 
public ownerships account for about 1.6 million acres of forested land.
    As a responsible Sustainable stewardship'' association, IFA 
supported this Committee's bill in the last Congress. In no small part, 
one of the reasons we supported that legislation is because of the 
emphasis that legislation placed on Habitat Conservation Plans (HCPs).
               making the act work for species and people
    It is indisputable that the Endangered Species Act needs 
improvement. We must work to make the Act more effective for species 
and for people. Every member of this Committee, the Secretary of the 
Interior and the business and environmental communities all agree that 
pragmatic reform of the Endangered Species Act is a necessity. I was 
always struck by the testimony delivered by Michael Bean of the 
Environmental Defense Fund in the 105th Congress that the only 
alternative to habitat conservation was no habitat conservation.
    Although there are many areas of the Act that need reform, the 
testimony that has been offered to this subcommittee reflects the 
critical need for reform of Section 10, the Habitat Conservation Plan 
provisions of the Act, in this Congress. Congress has a responsibility 
to address the attacks that have been levied against a policy that 
remains, in the words of the subcommittee chair, ``one of the few 
options to property owners in the Act.''
1. Making the Act Work Better for Small Landowners
    A bill to reform Section 10 of the ESA should allow smaller 
landowners to get a tried-and-true conservation plan--an affordable 
plan already made for the wildlife in their backyards that will allow 
him or her to build a house or harvest trees without the threat of 
interference. It should provide for natural systems and multiple 
species conservation plans that would allow landowners to negotiate 
comprehensive agreements so that they can conduct activities (usually 
on large sites) that will affect more than one spears.
2. Providing Certainty
    A bill to reform Section 10 of the ESA should provide landowners, 
and any non-federal person, the assurances they need to be enticed by 
such a plan. The bill must authorize a no surprises policy included in 
all conservation plans. Without the certainty of no surprises, no 
private landowner would agree to the potentially endless mitigation 
requirements of an incidental take permit. With no surprises, 
landowners know that they will not be required to do anything else for 
species included in a conservation plan. Without that certainty, the 
law would continue to disenfranchise private landowners and place more 
and more reliance on public lands to save species. This committee is 
aware that the no surprises policy is being attacked in litigation in 
the Federal District Court in D.C.
3. A Commitment to Planning
    A bill to reform Section 10 of the ESA would revive the commitment 
to habitat conservation and the HCP process which once existed in the 
Administration but has been lost over the last few years The direct 
result of this loss of direction has been extended delays in developing 
and completing HCPs, and the issuance of incidental take permits. The 
Fish and Wildlife Service and the National Marine Fisheries Service 
(the Services) are widely viewed as lacking the early momentum that 
they had to complete HCPs in a timely manner. Staff turnover, 
reassignment and reprioritization have slowed the process. Lack of 
commitment to the process means lack of ownership in the results. The 
record is replete with complaints about HCP science issues, once 
resolved, being revisited and previously agreed upon management or 
mitigation measures being re-reviewed.
    Without a commitment from Congress, the Administration's commitment 
to HCPs will continue to flag. The cost of HCPs will be pushed higher 
and away from private landowners who might see HCPs as a viable 
alternative to their existing disenfranchisement. Instead of trying to 
address an agency's perceived problem with a particular HCP, landowners 
may be left to ``stab in the dark'' by submitting a new proposal with 
little or no guidance.
    Furthermore the existing permit process includes no mandatory 
deadline established by statute or regulations. This must be changed in 
the reform act. Although the ``Habitat Conservation Planning Handbook'' 
calls for HCPs to be completed in less than 10 months, negotiating 
periods as long as 3 to 6 years are becoming more frequent.
    A bill to reauthorize the ESA must re-establish the commitment to 
multi-species HCPs. Multi-species HCPs, and Natural Systems HCPs are 
cost effective for large landowners and can deliver the highest quality 
of habitat conservation. In Idaho's forests, a multiple species plan to 
protect different species of non-anadromous fish as well as indicator 
species of fish prey species could have an enormously beneficial effect 
on the habitat of the watersheds. Multi-species HCPs save money because 
they are self-sustaining without having to be amended for each new 
species which is added to the plan.
    Unfortunately, because of the criticism the Services have taken 
from HCP opponents, they have begun to require extensive data on each 
specific species. Landowners are considering limiting the scope of 
their HCPs to limit the cost of the plans. This decision results in 
less protection for landowners, less conservation for species and, 
ultimately, duplication of effort for the Services if the landowner 
chooses to amend the plan to add species at a later date.
4. A Commitment to Science
    Sometimes the Services substitute standardization for science. We 
have been told of a rhetorical comment by one of the Services to a 
Senate office that the Service would reject innovative solutions to 
problems if it would cost them more time or more effort to verify the 
result than it would to impose a pre-existing ``one-size-fits-all'' 
solution.
5. Avoiding Disincentives
    A bill reforming Section 10 of the ESA must avoid the temptation to 
impose a recovery standard in HCPs. I can think of no disincentive more 
persuasive, no greater invalidation of HCPs as a workable system for 
habitat conservation than the imposition of a recovery standard for 
HCPs. I know that this committee has received testimony from people who 
support such a standard. These people compare mitigation for an 
incidental take permit with other activities where the, ``federal 
government regulates third party activities that are deemed potentially 
harmful to societal interests'' (Testimony of Eric Glizenstein, Senate 
Environment and Public Works Committee, Subcommittee on Fisheries, 
Wildlife and Drinking Water, October 19, 1999).''
    A property owner is required by the statute to minimize or mitigate 
the impact of his or her activities on private property. A property 
owner is not required, nor should they be required, to mitigate against 
the past acts of untold numbers of parties, over untold numbers of 
years, which might have lead to the listing of a species on the 
Endangered Species List. To require this of an individual property 
owner shifts the burdens of societal mismanagement on to one party. To 
require this is not to regulate Third party activities that are deemed 
potentially harmful to societal interests'', but, rather, to ignore the 
actual impact of contemplated third party activities in order to find a 
deep pocket for federal priorities.
6. Assuring Voluntary Participation
    In Idaho, and elsewhere in the West, there are people who are 
deeply suspicious of HCPs. There are many reasons for this distrust. 
Some reasons are valid. HCPs can be extremely expense and time 
consuming for small landowners. Without the technical expertise 
necessary to compete with federal negotiators, some people might feel 
that they would be overwhelmed at the bargaining table.
    For others, distrust of HCPs is not borne out of fact but of 
unreasoned fear. Many in the West feel abused by the Act and the 
administration of the Act by those responsible for its regulation. Many 
feel that any agreement with federal regulators is tantamount to 
federal interference and cannot be tolerated. Unfortunately, that 
unreasoned fear only results in a failure to respond to challenges and 
fosters a fortress mentality that will deprive public policymakers of 
initiative and innovation. There is no way to reason with this fear. 
But we can assuage it.
    We must make it clear that the HCP negotiation process is 
voluntary. This fear may be borne out of a lack of familiarity with 
HCPs, but we cannot emphasize this issue enough. Although it may be 
clear to those of you who deal with policy in Washington D.C. that the 
HCP negotiation process cannot be imposed on any individual, there is a 
deep fear that will become mandatory. The strictly voluntary nature of 
the HCP negotiation and application process must be reinforced.
                      the challenge of bull trout
    The bull trout in Idaho and Montana was listed on the Endangered 
Species List on June 10, 1998. Native to the Pacific Northwest the bull 
trout has some of the most demanding habitat requirements of any native 
trout species because it requires water that is cold and clean.
    The listing of the bull trout on the Endangered Species list has 
placed the State of Idaho in a very difficult position. In Idaho alone, 
of the 2,629,633 acres of state-owned endowment land, over half, more 
than 1.5 million acres, is bull trout habitat. This area comprises an 
area larger than Rhode Island or Delaware.
    State endowment land in Idaho is cared for professionally and used 
productively. Were it not for non-native fishes that compete with bull 
trout, its future would be bright. At the same time, receipts from the 
public and private use of statement endowment land are used to fund 
public education in Idaho. Every school child in Idaho, every 
institution of higher learning, has a vested interest in the 
responsible and productive use of state endowment land. Timber sale 
proceeds from state lands go into the state's ``endowment fund.'' Much 
of the earnings from this fund, approximately $27.9 million in 1989, 
supports Idaho public schools.
    Despite this win-win situation, the ESA gives environmental 
chauvinists the opportunity to claim that any human activity in the 
habitat of these species violates Section 9 of the ESA, claiming those 
actions result in a ``take'' of a member of a listed species. Given the 
current science of forestry and fish, such a claim would be difficulty 
to support. However, the vagaries of the ``take'' standard and the time 
and expense involved in defending this position are not appealing. 
Further, the resources required to defend such a case would be far 
better employed if invested in active enhancement of habitat and fish 
populations. Timber harvest, mining operations, grazing or any other 
activity on state land could bring an accusation of violating the 
``take'' prohibition. The Fish and Wildlife Service, or any citizen 
litigant, could seek an injunction in court prohibiting further use of 
this land until the state proves that there is no ``take''. This is a 
difficult and time consuming burden particularly in the face of a 
recent listing.
    Until a court finds that the activities complained of do not create 
a Take'' of the habitat of a member of the species, the state could be 
enjoined from allowing uses of state land which might modify habitat. 
It will be expensive to defend these cases, despite the strong 
professionalism of Idaho's forest managers. The attendant revenue 
stream to the state from state land use could be temporarily, or 
permanently, halted. The ramifications to the educational system in the 
State of Idaho, from a challenge by an independent third party to 
activities that permit a ``take'' of habitat of this species as a 
result of state land uses, are very serious.
    The State of Idaho, and the State of Montana have been active in 
finding ways to save the bull trout. But the sheer size of the habitat, 
over a million acres in Idaho alone, means that finding ways to move 
quickly enough to address the needs of the fish and the needs of the 
schools is beyond the ability of just one state. Including personnel 
and direct expenditures, the State of Idaho last year spent 
approximately $400,000.00 on bull trout recovery. This expenditure does 
not include many of the ongoing activities of state agencies working on 
habitat reconstruction, water quality, best management activities, 
etc., which would benefit bull trout.
    Faced with the above facts, Idaho's Governor Dirk Kempthorne came 
to the inescapable conclusion that an HCP with an incidental take 
permit under Section 10 of the Endangered Species Act, negotiated with 
the Fish and Wildlife Service, administered and monitored by the state, 
would be appropriate and necessary in Idaho to protect an educational 
system that is funded from receipts from the state endowment fund.
    The preferred strategy is to have the State of Idaho negotiate an 
HCP for state lands. There would be no requirement that once 
negotiations have begun that an HCP would be agreed to. If the federal 
agencies demand more mitigation than the states are willing to offer, 
the states could terminate the negotiations and would be no worse off 
than they are in today.
    The state-negotiated HCP would not include private property owners. 
However, private property owners could still negotiate their own HCPs, 
as Plum Creek has chosen to do, or choose to proceed without an HCP.
    The goal is to have the State of Idaho successfully negotiate an 
HCP, simultaneously with development of a voluntary enrollment HCP 
available to private landowners, that would include state-owned land 
for which the state would receive an incidental take permit. The state 
would administer and monitor the private land enrollment program. 
Private landowners who wished to participate in the HCP for their 
private land would be eligible to subscribe into the HCP and recede and 
incidental take permit by complying with the mitigation requirements, 
and other requirements, in the state land HCP.
    I am pleased to announce that just such a plan has been included in 
the FY 2000 Interior Appropriations Bill for the State of Montana. The 
money will allow Montana to explore a partnership plan with federal and 
state agencies to negotiate and implement a voluntary, statewide HCP 
for the threatened bull trout and other cold-water fish. The plan also 
would be available on a voluntary basis to private forest interests.
    This plan will be a way for Montanans to work together to protect 
an important species in a common-sense way that encourages small 
landowners to get involved. It will also help the Montana highway 
program because the listing of the bull trout has caused concern about 
the potential effect on highway construction. By providing clear 
guidance, the habitat conservation plan should ensure that the bull 
trout and the state's highway program both can thrive.
    Montanans have long recognized the need to balance their dependence 
on renewable natural resources with the necessity to maintain wildlife 
habitat, like that of the bull trout. The bull trout HCP will allow us 
to use sound scientific principles to preserve important habitat, while 
also preserving a way of life that many Montanans depend on.
    Mr. Chairman, I feel confident that in the not too distant future 
Idahoans will also be able to share in the opportunities provided by 
such a program and will do so in a way that protects species, jobs and 
school kids. It is a very promising opportunity. Starting with the 
foundation of good science, we are eager to begin exploring ways to 
provide good fish habitat while still allowing other forest uses. Our 
environmentally responsible forest practices can continue to guide 
habitat management where bull trout and our members live.
                                 ______
                                 
        Statement of Michael J. Bean, Environmental Defense Fund
    Habitat conservation plans often cost landowners and regulated 
interests more than they should, while accomplishing less than they 
could for the conservation of imperiled species. Reform of habitat 
conservation planning should aim to reduce its cost and increase its 
effectiveness. Not only are these two goals compatible, but achieving 
both of them is the only way for all sides in this controversy to come 
out ahead. And without that, Congress is unlikely to achieve the 
consensus that has eluded it for the past seven years.
    How can the cost of habitat conservation planning to landowners and 
regulated interests be reduced and its conservation effectiveness 
increased? The testimony that follows offers five suggestions that, I 
believe, will do so. Three of them require action that the Services 
(both the U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service) can take under existing authority. One requires 
legislative change and the last requires money.
         develop ``mitigation principles'' to guide hcp efforts
    What we have come to call ``habitat conservation plans'' are, in 
most instances, really mitigation plans. They attempt to mitigate the 
negative effects of an environmentally harmful, and generally 
prohibited activity the taking of an endangered species, usually 
through destruction of its habitat. Mitigation requirements can be 
developed in either of two ways: as an entirely ad hoc exercise in 
which the depth of a permit applicant's pockets, or his political 
connections, often influence how much or how little mitigation will be 
required; or as a more principled exercise in which mitigation 
requirements are determined in accordance with preexisting standards or 
criteria. In practice, the Services have developed such standards or 
criteria for virtually none of the species, or associations of species, 
for which they are responsible. As a result, the mitigation 
requirements in any given HCP often appear to be pulled from the air, 
inadequately explained, and inconsistent with the requirements imposed 
in other, seemingly similar, situations. The absence of clear 
mitigation standards or principles also means that mitigation 
requirements are negotiated afresh in each new HCP, prolonging (and 
making more expensive) the planning process and introducing 
considerable uncertainty into it.
    To overcome these problems, the Services ought to develop clear, 
and clearly explained, mitigation principles that will guide permit 
applicants, and the Services' own field staffs, when developing 
subsequent HCPs. Such principles are especially needed for those 
species, or associations of species, that, because of where they occur, 
are likely to be the subject of several different HCP efforts. 
Implementing this recommendation is neither easy nor cheap, but it will 
make HCPs more predictable, less costly to develop, and better 
insulated from inappropriate pressures.
 disallow hcp mitigation on federal land except when no other options 
                              are feasible
    In a number of HCPs, mitigation takes the form of a payment by a 
private landowner to a federal land managing agency so that the federal 
land managing agency can undertake some action beneficial to the 
affected species. Several HCPs pertaining to the red-cockaded 
woodpecker are of this variety. The rationale for this type of 
mitigation appears to be that federal land managing agencies lack 
sufficient appropriated funds to carry out positive conservation 
actions for imperiled species, so mitigation payments derived from 
private parties can help meet the budget shortfall. As a result, 
beneficial actions that might never have been undertaken, or that would 
have been significantly delayed, can be carried out quickly.
    One of the dangers of this seductive logic is that it is likely to 
become a self-fulfilling prophecy. Federal land managing agencies have 
an affirmative duty to further the conservation of endangered and 
threatened species on their land by carrying out actions and programs 
that help move those species toward recovery. Congress has placed this 
affirmative duty squarely on the shoulders of these agencies. The 
funding to meet this congressionally-imposed duty ought to come from 
congressional appropriations, not from private parties who have their 
own, separate duties to mitigate for harmful actions they carry out.
    A further reason to question the propriety of this form of 
mitigation is that it becomes impossible, as a practical matter, to 
assess the efficacy of HCP mitigation. Mitigation fees are seldom, if 
ever, segregated from other sources of funding for conservation efforts 
on federal land. As a practical matter, it is nearly impossible to sort 
out the contribution of private mitigation payments to the success or 
failure of conservation efforts undertaken on federal lands.
    For all these reasons, HCP mitigation should generally not be 
allowed on federal land. There may be limited circumstances where such 
mitigation is the only feasible option. In those limited situations, an 
exception to the general prohibition may be allowed, but even then 
special care must be taken to identify and evaluate the 
efforts funded by such mitigation payments, separate from other efforts 
being undertaken by the federal land managing agency.
promulgate a clear policy regarding the use of mitigation banks in hcps
    Several recently approved or recently proposed HCPs entail the use 
of ``mitigation banks.'' Mitigation banks are a mechanism under which 
mitigation ``credits'' can be earned by preserving, restoring, or 
enhancing endangered species habitat in advance of any action requiring 
mitigation. Those credits can then be used by the party whose action 
created them, or sold to third parties, to meet the mitigation 
requirements of subsequently approved projects. Mitigation banking is a 
familiar, though controversial, practice in meeting the requirements of 
the wetlands program under Section 404 of the Clean Water Act. It is of 
much more recent vintage under the Endangered Species Act.
    The first endangered species mitigation bank, the Carlsbad 
Highlands bank in San Diego County, is less than five years old. Until 
quite recently, nearly all the endangered species mitigation banks were 
in California, where most were created in response to the state's 1995 
formal policy on what California calls ``conservation banking.'' 
Increasingly, however, mitigation banking is being made a part of HCPs 
elsewhere. Some recent examples include: the announcement this year by 
the North Carolina Department of Transportation that it had established 
a mitigation bank to meet red-cockaded woodpecker mitigation 
requirements for future road projects; a pending HCP that would 
establish a mitigation bank for the nightingale reed-
warbler on the Island of Saipan; a pending HCP that includes a 
mitigation bank for future development projects affecting the Delhi 
Sands flower-loving fly; a pending HCP that calls for both public and 
private mitigation banks to meet the needs of several different 
endangered species in San Joaquin County, California; and a 
recently approved International Paper Company HCP that contemplates the 
establishment of a mitigation bank for the red-cockaded woodpecker.
    Despite the clearly increasing level of interest in the use of 
mitigation banking under the Endangered Species Act, the Services have 
no written policies or guidance on this topic. If one lesson can be 
drawn from the experience with mitigation banking under the Clean Water 
Act, it is that having a clear, uniform policy on the topic is very 
important to ensure that mitigation banking proposals are well 
conceived and properly evaluated. The continued development of 
endangered species mitigation banks in the total absence of any written 
policy on the topic runs the risk that poorly conceived banks will be 
approved, and that those potentially interested in establishing banks 
will be uncertain of the requirements for approval of them. These 
problems are especially important in light of the fact that a 
California bank, 
intended to meet mitigation requirements under both the California and 
federal Endangered Species Acts, was recently sidetracked by litigation 
brought in state court. Therefore, the Services should promptly fill 
this void by issuing a clear and detailed policy regarding the use of 
mitigation banks under the Endangered Species Act. 
Appended to this testimony is a suggested policy that the Environmental 
Defense Fund, in cooperation with Sustainable Conservation, prepared as 
part of a project on mitigation banking undertaken with the support of 
the National Fish and Wildlife Foundation. We commend it to the 
Subcommittee and to the Services.
     require that large-scale and certain other hcps achieve a net 
           improvement in the prospects for species survival.
    At present, many HCPs encompass very large areas. Even some smaller 
ones encompass all or most of the range of the species they address. 
Like all HCPs, they are being reviewed and approved under standards 
that allow a species to end up with a reduced likelihood of survival 
and little realistic prospect of recovery. It is rather surprising to 
me that the single most controversial aspect of habitat conservation 
planning appears to be the ``no surprises'' policy initiated in 1994. 
Far more important, in my view, is the fact that the standards for 
approval allow already imperiled species to be left worse off as a 
result of an HCP than they were without it. Current law allows a 
species to be made worse off by an HCP, provided only that it not be 
made so much worse off as to jeopardize its continued existence. So 
long as an imperiled species is not pushed below this very low floor, 
an HCP applicant's only duty is to minimize and mitigate the adverse 
impact to the species ``to the maximum extent practicable.'' In 
practice, that is a standard that can and does allow an HCP to leave a 
species considerably worse off than it was originally.
    In 1982, when Congress launched its HCP experiment, no one could 
clearly foresee how these standards would work in practice. With the 
benefit of seventeen years of experience, it is appropriate that they 
be reexamined. In doing so it is important to keep in mind that the 
model on which Congress constructed the HCP idea was a California plan 
(the San Bruno Mountain HCP) that Congress itself described as 
improving the chance of survival of the species it affected, even while 
allowing some of the habitat they occupied to be permanently destroyed. 
That was possible because the San Bruno plan promised not just to leave 
a portion of the habitat undeveloped, but to manage that undeveloped 
portion actively so as to combat invasive, non-native grasses that 
threatened to render even the undeveloped portion unsuitable as habitat 
for the rare species. Thus, as both the plan's proponents and Congress 
characterized it, the San Bruno plan had a net positive impact on the 
prospects for conservation of the species it covered. While offering 
this as the model for future HCPs, Congress failed to articulate 
standards that would assure that future HCPs would have the same net 
positive impact as the model.
    The adequacy of the standards for approval of HCPs is especially 
important now that a policy of providing regulated interests with long-
term assurances has been made a part of the HCP program in order to 
induce their participation. Providing such assurances for plans that 
have high impacts on the survival prospects of the species they affect, 
low approval standards, and no assurance that the government will have 
the resources needed to step in when an unforeseen problem arises puts 
at risk the very species that the ESA seeks to protect. To address this 
problem, it is imperative to improve the conservation standards by 
which HCPs are judged.
    Requiring that large scale HCPs achieve a net improvement in the 
conservation prospects of affected species will not impose a difficult 
or unreasonable burden. In most cases, it can be accomplished by 
ensuring that HCPs meaningfully address the many threats to species 
survival that lie beyond the reach of the ESA's prohibition against 
taking endangered species. Large scale HCPs that include substantial 
programs to control exotic species, restore fire or other natural 
disturbance regimes to protected lands, connect isolated habitat 
fragments, restore rare species to formerly occupied sites, and 
otherwise actively manage protected areas should have no difficulty 
meeting this standard.
  provide the services with the resources necessary to do the job you 
                            have given them
    One of the most frequently heard complaints from landowners and 
local officials developing HCPs is that the Services lack the resources 
to participate effectively, and in a timely fashion, in the development 
of HCPs. Repeatedly, business representatives have said to me that for 
them, time is money, and that if they could only get decisions more 
quickly, they could commit more to conservation up front. The Services 
know this, but are unable to do anything about it, for a simple reason: 
they lack sufficient resources. Unless Congress recognizes and remedies 
this problem, the result will be that landowners and regulated 
interests will continue to suffer the frustration of waiting--and 
bearing the carrying costs of financing for their projects--while an 
underfunded and understaffed Service makes its way through a never-
diminishing backlog of permit applications, interagency consultations, 
listing petitions, recovery plan drafts, and a myriad of other duties 
Congress has given it. From my vantage point, it has often appeared 
that some in Congress have sought to keep the Services from having the 
resources they need to carry out their statutory responsibilities as a 
way of hamstringing the Services. Ironically, however, they have ended 
up hamstringing the very landowners and business interests whom they 
purport to champion.
                                 ______
                                 
    Recommended Policy on the Establishment, Use, and Operation of 
           Mitigation Banks Under the Endangered Species Act
                        introduction and purpose
    This draft policy provides guidance for the establishment, use, and 
operation of mitigation banks for the purpose of mitigating adverse 
impacts to threatened or endangered species under the Endangered 
Species Act (ESA). Although Section 9 of the ESA generally prohibits 
the ``taking'' of endangered or threatened species, Section 10 
authorizes the issuance of permits allowing such species to be taken 
incidental to the carrying out of otherwise lawful activities. To issue 
such a permit, the Service (either the U.S. Fish and Wildlife Service 
or the National Marine Fisheries Service, depending on the species 
affected) must find, among other things, that the permit applicant has 
prepared a conservation plan that ``will to the maximum extent 
practicable, minimize and mitigate the impacts of such taking.'' In 
implementing this provision, the Service has, on several occasions, 
allowed the requirement to mitigate the impacts of authorized taking to 
be met by the purchase of credits from various ``mitigation banks.'' In 
addition, Section 7 of the ESA requires federal agencies to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify or destroy their critical habitat. 
To meet this requirement, federal agencies (or those whom such agencies 
authorize or fund) often include a mitigation component in their 
proposed activities, and the Service has sometimes encouraged them to 
establish mitigation banks as a means of anticipating and minimizing 
the impacts of their future activities.
    The interest in, and use of, mitigation banks to meet the ESA's 
requirements are growing. At present, however, the Service has neither 
a formal policy nor any official guidance pertaining to the 
establishment, use, or operation of mitigation banks for endangered 
species conservation purposes. Without policy or guidance, decisions 
about mitigation banks have been ad hoc and uncoordinated. To provide 
better coordination within the Service and more consistent and useful 
information to parties outside the Service, the Service proposes to 
adopt the Policy on the Establishment, Use, and Operation of Mitigation 
Banks Under the Endangered Species Act.
    In preparing this draft policy, carefully consideration was given 
to the 1995 interagency Federal Guidance for the Establishment, Use, 
and Operation of Mitigation Banks under the Clean Water Act and the 
Food Security Act. The 1995 Guidance addresses the mitigation 
requirements of those laws with respect to wetlands and other aquatic 
resources. Also considered was the Policy on the National Wildlife 
Refuge System and Compensatory Mitigation Under the Section 10/404 
Program, published on September 10, 1999. This latter draft policy also 
pertains only to mitigation requirements relating to wetlands and other 
aquatic resources. Although the interagency guidance and refuge policy 
consider many issues common to any form of mitigation banking, their 
conclusions are not necessarily transferable to endangered species 
mitigation. There are important differences between wetlands and 
endangered species and the goals and requirements of the laws 
pertaining to each, differences that often dictate different policies 
governing mitigation banking for wetlands and endangered species.
                      part 1. scope of the policy
    This draft policy applies to the use of mitigation banks by 
nonfederal parties to meet the requirements to minimize, mitigate, or 
compensate for adverse impacts to listed species of authorized 
activities under the ESA. Such activities include those authorized by 
permits under Section 10(a)(1)(B) and those reviewed under 
Section 7.
     part 2. mitigation banks as distinguished from other forms of 
                               mitigation
    Mitigation under the ESA has many forms. In some cases, to 
compensate for adverse impacts to listed species, land (or water) is 
deeded to a public or nonprofit agency for conservation purposes. In 
other cases, land remains with its current owner, but its use is 
restricted in some manner to benefit listed species. In still other 
cases, mitigation takes the form of monetary payments to a public or 
nonprofit agency, with the payments used to acquire land for 
conservation purposes, to manage already acquired land, or to perform 
some other specific task. Mitigation also can be through the purchase 
of defined ``credits'' from an approved ``mitigation bank.''
    Several features distinguish mitigation banks from other forms of 
endangered species mitigation. Typically, in a mitigation bank, the 
mitigation is carried out before the action that causes the impact to 
be mitigated. Mitigation banks are therefore anticipatory, established 
in anticipation of some future demand for mitigation to compensate for 
the effects of future actions. Mitigation banks are also typically 
designed to provide a means of mitigating, at a single, larger site, 
the impacts of future activities at many smaller sites. Thus, 
mitigation banks are aggregative; they consolidate at a single site the 
mitigation for activities that may be widely dispersed. Mitigation 
banks can be designed to meet the future mitigation needs of either 
those who establish them or third parties. When mitigation banks have 
been established to meet the future mitigation needs of third parties, 
the sale of the bank's credits to third parties is typically at a price 
dictated by the market and is negotiated between the bank and the third 
party. Once the Service has approved mitigation through the purchase of 
bank credits by a third party, the legal responsibility for the 
mitigation, including the responsibility to remedy any failings of the 
mitigation efforts, is assumed by the bank.
    Some habitat conservation plans have features that superficially 
resemble mitigation banking but differ in other ways. For example, many 
habitat conservation plans allow individual landowners to meet their 
obligations by paying a local government a fixed, per-acre assessment 
on land they develop, with the proceeds used to finance a conservation 
program by the local government. These payments are sometimes called 
``wildlife impact fees.'' The rationale of these plans is that because 
the local government has authority over land use within its 
jurisdiction, it shares the legal responsibility for any incidental 
taking of endangered species that results from permitted development. 
In mitigation banking, however, the banker typically has no control 
over or legal responsibility for the actions of others. Only by selling 
credits to others does it assume their responsibility for mitigation. 
In habitat conservation plans financed by special local assessments, 
mitigation is also typically carried out either concurrently with or 
after development. The core idea of a mitigation bank is that the 
mitigation is accomplished first and ``banked'' for use later. These 
differences are what set mitigation banks apart from many local or 
regional habitat conservation plans.
    Mitigation banks should also be distinguished from arrangements in 
which the party carrying out an action that requires mitigation simply 
pays a set amount into an established fund operated by a natural 
resources agency or nonprofit conservation organization. These 
arrangements are commonly referred to as in lieu payment programs, 
because a payment is made in lieu of actually taking any specific 
mitigation measures. Payments into such funds are generally intended 
for future conservation actions by the party administering the fund, 
not for a specific, identifiable mitigation activity.
                          part 3. definitions
    For purposes of this policy, the following terms have the following 
meanings:
    a. Bank sponsor.--A bank sponsor is any public or private entity 
responsible for establishing a mitigation bank.
    b. Creation.--Creation refers to the establishment of habitat for 
an endangered or threatened species where no such habitat previously 
existed.
    c. Credit.--A credit is a unit of measure representing the accrual 
of conservation benefits for an endangered or threatened species at a 
mitigation bank.
    d. Debit.--A debit is a unit of measure representing the loss of 
conservation benefits at an impact or project site.
    e. Mitigation bank.--A mitigation bank is a site where habitat for 
endangered or threatened species is preserved, created, or restored for 
the purpose of providing compensatory mitigation in advance of 
authorized impacts to similar resources elsewhere.
    f. Preservation.--Preservation refers to the protection, usually in 
perpetuity, of habitat for an endangered or threatened species through 
the implementation of appropriate legal and physical mechanisms.
    g. Restoration.--Restoration includes activities designed to 
restore habitat for an endangered or threatened species at a site where 
it formerly existed, as well as activities designed to improve the 
quality of degraded habitat for such species.
    h. Service.--Service refers to either the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service, or both.
    i. Service area.--Service area refers to the designated geographic 
area or areas within which the credits associated with a particular 
mitigation bank can be used to compensate for authorized impacts on 
endangered or threatened species.
                    part 4. planning considerations
    Carefully designed and appropriately sited mitigation banks can 
contribute to the conservation of threatened or endangered species. 
Threatened or endangered species often face a wide array of threats, 
only some of which fall within the scope of the ESA's prohibition 
against taking such species. Conservation prospects can be improved by 
securing management commitments that effectively address those other 
threats (e.g., invasive exotic species, disruption of natural 
disturbance regimes, cowbird parasitism), increasing the likelihood 
that sites currently occupied by threatened or endangered species will 
remain occupied. Currently occupied sites may be too small or too 
distant from other occupied sites for listed species to be likely to 
survive in them over time. Mitigation banks that effectively enlarge 
such sites or buffer them from external threats thus can improve 
conservation prospects. Mitigation banks can also protect sites that 
are not currently occupied by listed or threatened species but that may 
be important to the future recovery of such species.
    Two issues of paramount importance in planning any mitigation bank 
are the siting of the bank and its management program. Persons 
contemplating the establishment of a mitigation bank should confer in 
advance with the Service about both. Although recovery plans for 
individual species will rarely, if ever, identify particular parcels as 
desirable sites for mitigation banks or other conservation actions, 
they often identify broader areas within which recovery efforts will be 
focused. By siting mitigation banks in these areas, banks can create 
mitigation opportunities that both increase the options available to 
regulated interests and contribute to the conservation of the species. 
For species without recovery plans, or with plans that do not clearly 
identify those areas where recovery efforts will be primarily focused, 
conferral with the Service is especially important, to identify those 
areas it regards as of particular value in conserving the species.
    For many species, individual mitigation banks are seldom large 
enough, by themselves, to support a viable population of a threatened 
or endangered species over the long term. But if the bank is located 
next to an existing area managed for the conservation of that species, 
even a small mitigation bank may increase the likelihood that a viable 
population can be maintained there. Similarly, if banks are sited to 
encourage dispersal between two areas managed for the conservation of 
the species, the bank may increase the likelihood of the species 
surviving at both locations. In some instances, banks may be able to 
provide replacement habitat for species currently occupying nearby 
unmanaged habitats at risk of becoming unsuitable because of 
succession. Sites that otherwise appear to be good locations for 
mitigation banks may turn out, on closer examination, to be 
inappropriate because of anticipated land-use changes in the 
surrounding area. These and other considerations relevant to the siting 
of a mitigation bank should be taken into account at the outset and 
discussed with the Service to ensure that the would-be banker's 
objectives and the Service's objectives for the species are compatible.
    No less important than siting is the bank's management program. 
This, too, should be the focus of early discussion with the Service. 
Seldom will the needs of a threatened or endangered species be met on a 
completely unmanaged piece of property. More commonly, an active 
management program--to control invasive 
exotic species, replicate natural disturbance regimes; prevent an 
area's use by off-road vehicles, illegal garbage dumpers or others; and 
address myriad other threats--is essential to ensure that the potential 
conservation value of a particular property is realized and maintained. 
These management needs should be anticipated and provided for in any 
mitigation banking agreement.
    As with siting considerations, recovery plans provide a logical 
starting place for identifying needed management measures for a 
proposed mitigation bank. Because actual management needs at any site 
depend on its particular circumstances, early conferral with the 
Service to identify appropriate management measures at that site is 
advisable.
         part 5. development of a mitigation banking agreement
    A mitigation banking agreement between the bank sponsor and the 
Service documents the agency's agreement with the objectives, proposed 
administration, and management of the bank. The agreement should 
describe in detail the physical and legal characteristics of the bank 
and how the bank will be established and operated. In general, the 
following information should be included:
    a. The bank's goals and objectives, including identification of the 
species for which the bank is to be primarily operated.
    b. An accurate legal description and map of the bank property and 
identification of the bank's owners and managers.
    c. A detailed description of existing conditions at the bank site, 
including the nature and extent of its use by the species for which it 
is to be primarily operated.
    d. A description of the specific management measures to be carried 
out at the site for the conservation of the species for which it is to 
be primarily operated.
    e. The methods for determining credits within the bank and debits 
outside the bank, setting performance standards to calculate the 
availability of credits, and devising accounting procedures to track 
the creation and use of such credits.
    f. The geographic service area within which credits from the bank 
can be used to mitigate the impacts of other activities.
    g. Provisions for long-term management and maintenance.
    h. Monitoring, inspection, and reporting requirements.
    i. Contingency and remedial action responsibilities in the event 
that the sponsor does not fulfill the obligations of the agreement or 
the bank is transferred to another entity.
    j. Financial assurances.
    k. Provisions for amending the banking agreement.
          part 6. coordination with other levels of government
    Mitigation banks covered by this policy are those established to 
meet the requirements of the ESA. State or local laws may also impose 
requirements that can be met by the measures provided for in a 
mitigation bank. When that is the case, the Service requires that the 
relevant state or local government entity be given an opportunity to 
participate in the development of a mitigation banking agreement and to 
become a party to it. The Service will endeavor to coordinate its 
requirements with those of state or local government entities to the 
extent possible in order to minimize expenses, burdens, or duplicative 
requirements for bank sponsors, project proponents, and other 
governmental agencies. Although the Service will encourage the 
appropriate state and local governmental agencies to participate in the 
development of mitigation banking agreements and to become parties to 
them, the failure of such other agencies to participate in developing, 
or to sign an agreement that otherwise meets the requirements of this 
policy and of the ESA, shall not preclude the Service from entering 
into such an agreement.
                   part 7. public review and comment
    Section 10 of the ESA requires that for applications for permits 
authorizing the taking of listed species, notice must be published in 
the Federal Register and an opportunity for public comment provided. 
Establishing a mitigation bank will not ordinarily necessitate an 
application for a permit. However, the use of credits from an 
established bank to mitigate subsequently approved actions will require 
a permit application, notice, and opportunity for public comment, if 
done pursuant to Section 10. If there are significant public concerns 
about the design or operation of a mitigation bank, it is better to 
discover them before approving a banking agreement than afterward. 
Therefore, before entering into a mitigation banking agreement under 
this policy, the Service will publish in the Federal Register advance 
notice of its intent to do so and invite public comment on the proposed 
agreement in the same manner as it does with respect to applications 
for permits under Section 10. In some instances, a mitigation banking 
agreement may be considered at the same time as a related permit 
application. When that is the case, the notice and comment requirements 
for each may be combined.
                         part 8. service areas
    Every mitigation banking agreement must specify the geographic area 
within which credits earned by the bank can be used to mitigate the 
effects on listed species of actions authorized by the ESA. Service 
areas should be determined with a view to using mitigation banks to 
advance the conservation of the affected species. Thus, banks generally 
should be located within areas designated in recovery plans as focal 
areas for recovery efforts, and their service areas should correspond 
to the recovery areas in which they are located. If there is no 
applicable recovery plan, banks should be sited, and service areas 
should be designated, to serve a comparable purpose.
    Two exceptions to the preceding general guidance should be noted. 
First, some projects may be located outside a designated focal area for 
recovery. Banks located within areas designated as focal areas for 
recovery efforts should be able to provide credits for such projects. 
In such situations, the project to be mitigated will have little or no 
detrimental impact on recovery prospects, and the mitigation bank will 
aid those prospects.
    A second exception to the general guidance regarding service areas 
concerns projects located in focal areas for recovery efforts and 
undertaken after the recovery objectives for those areas have been 
achieved. Such projects should be able to buy mitigation credits from 
banks located in other recovery focal areas. Allowing such projects to 
do so will help achieve the recovery objectives in the focal area where 
the bank is located, without hurting these objectives in the area of 
the project requiring mitigation.
           part 9. credits, debits, and accounting procedures
    Credits and debits are the terms used to designate the units of 
trade (i.e., the currency) in mitigation banking. Every mitigation 
banking agreement should specify the methods for determining credits 
within the bank and debits outside the bank, setting performance 
standards to calculate credit availability, and devising accounting 
procedures to track the creation and use of such credits. If several 
mitigation banks are created for the same species, the Service will use 
a consistent methodology for determining credits in each of them and 
make that methodology publicly available. That methodology should also 
be consistent with the methodology used to determine mitigation 
requirements for activities mitigated by means other than the purchase 
of credits from mitigation banks.
    Credits associated with a mitigation activity (as well as debits 
associated with an activity requiring mitigation) should reflect an 
assessment of the degree of beneficial (or detrimental) impact of the 
activity on the prospects for the affected species' survival. In 
theory, population viability analyses could be used to quantify the 
degree of impact on survival prospects. In practice, however, the 
information needed for rigorous population viability analyses is often 
unavailable. As a result, the units of currency may take the form of 
surrogates for the extent of impact on population viability, such as 
occupied acres or nesting pairs beneficially or detrimentally affected. 
In determining credits or debits, the same types of activities may be 
weighted differently depending on where they occur (e.g., nearby or far 
from existing protected areas), or other factors (e.g., quality of 
habitat at the affected site). The rationale for any differential 
weighting schemes should be clearly articulated in the mitigation 
agreement or elsewhere.
    In some instances, banks may be designed to conserve habitat types 
that are typically used by several listed species. In such cases, it 
usually is necessary to determine that the species of concern generally 
associated with the habitat type do in fact use the mitigation bank 
site. If some of the species typically associated with a particular 
habitat type do not actually use the mitigation bank site, it may be 
inappropriate to mitigate the impacts of activities affecting that 
habitat type elsewhere by using credits from the mitigation bank.
    In general, three types of activities of mitigation banks can 
generate credits: (1) habitat preservation (the preservation of 
specified, existing habitat through a conservation easement, transfer 
of fee title ownership to a conservation entity, or other appropriate 
means); (2) habitat restoration (the restoration of habitat for an 
endangered or threatened species at a site where it formerly existed or 
the restoration of a degraded habitat to an improved condition); and 
(3) habitat creation (the creation of a specified habitat where it did 
not previously exist). When deciding whether the preservation of 
existing habitat is appropriate as the sole basis for generating 
credits at a mitigation bank, consideration should be given to whether 
that habitat is under a demonstrable threat of loss or substantial 
degradation due to activities not otherwise likely to be effectively 
controlled (such as invasion by exotic species or ecological succession 
due to the absence of natural disturbance regimes). Typically, 
mitigation banks involving either habitat creation or restoration 
activities also require preservation of the restored or created 
habitat. Some mitigation banks encompass all three types of activities. 
The mitigation banking agreement should identify both the activities 
that will produce the credits and the methodology for quantifying them. 
In the case of habitat creation and restoration activities, the banking 
agreement should specify the performance standards that, when met, will 
result in credits being created at the bank site.
    Credits ``mature'' and become available for use at different times, 
depending on the nature of the activity producing the credits. In 
general, credits for preserving existing habitat are available for use 
as soon as an easement, title transfer, or other satisfactory mechanism 
ensuring dedication of the site to conservation and management in 
accordance with a particular plan is in place. Credits for creating or 
restoring habitat are available for use only after the creation or 
restoration activities have been successfully implemented and an 
easement, title transfer, or other satisfactory mechanism ensuring 
dedication of the restored or created habitat has been put in place.
    The price of credits sold to a third party shall be agreed on by 
the bank sponsor and the third party; the Service will play no role in 
setting the price of credits. The mitigation banking agreement should 
require that the bank sponsor establish and maintain an accounting 
system (i.e., a ledger) to document all transactions involving bank 
credits. Each time a bank makes an approved credit/debit transaction, 
the bank sponsor should submit a statement to the ServiceThe bank 
sponsor should also submit to the Service an annual ledger report for 
all mitigation bank transactions.
      part 10. provisions for long-term management and maintenance
    In general, mitigation banking agreements should provide that the 
habitat resources in such banks will be conserved and appropriately 
managed in perpetuity through mechanisms such as conservation easements 
or transfer of title to a governmental resource agency or nonprofit 
conservation organization, accompanied by an adequate endowment for 
long-term management. When conservation easements are used to ensure 
permanent protection, they should effectively restrict harmful 
activities that could jeopardize the purpose of the bank, but they need 
not restrict activities or uses that are compatible with the bank's 
purposes. In appropriate circumstances, real estate arrangements may be 
approved that provide for less than permanent protection of the habitat 
resources in a bank (such as when the adverse effects of the project 
requiring mitigation are temporary or the habitat resources at the site 
of the project requiring mitigation are unlikely to remain there for 
long, with or without the project). An alternative and generally 
preferable way of dealing with these latter circumstances is to adjust 
the amount of credits required to compensate for the anticipated 
adverse effects (i.e., the mitigation ratio) in light of the expected 
duration of those effects.
      part 11. use of a mitigation bank versus on-site mitigation
    This policy does not presume that the use of a mitigation bank is 
generally preferable to on-site mitigation, or vice versa. Rather, the 
purpose of the policy is to ensure that mitigation banks are sited and 
managed so as to contribute to the conservation of the affected 
species. Unless mitigation opportunities at the site of the proposed 
project are also likely to improve the conservation prospects of the 
species, a mitigation bank should be preferred to on-site mitigation.
           part 12. use of public lands as a mitigation bank
    Federal land management agencies, like all other federal agencies, 
have an affirmative responsibility, under Section 7(a)(1) of the ESA, 
to use their various authorities to advance the ESA's purposes by 
carrying out programs for the conservation of listed species. This 
affirmative duty is independent of any separate duty of nonfederal 
persons to mitigate the adverse effects on listed species of activities 
that they carry out. Accordingly, mitigation of the adverse effects of 
nonfederal actions should, whenever possible, be carried out on 
nonfederal lands, and mitigation banks should not be sited on federal 
lands. Mitigation banks may be sited on other public lands (such as 
state or local government lands). Mitigation credits generated by banks 
of this nature should be based solely on those values in the bank that 
are supplemental to the public program already planned or in place. 
Existing values represented by ongoing or already planned public 
programs, including preservation value, should not be counted toward 
bank credits.
    Similarly, federally funded conservation projects undertaken by a 
separate authority and for other purposes, such as the Wildlife Habitat 
Improvement Program or the Partners for Fish and Wildlife Program, 
cannot be used for generating credits in a mitigation bank, at least 
during the period that the landowner is required to maintain the 
projects. However, these other authorities typically allow a landowner 
to remove restored or created habitat at the end of a specified period. 
If a landowner agrees to preserve such areas beyond the term of the 
original agreement, mitigation credits may be issued for doing so. 
Similarly, a landowner's agreement to protect in perpetuity habitats 
originally created or restored pursuant to endangered species safe 
harbor agreements can serve as the basis for credits in a mitigation 
bank.
                    part 13. monitoring requirements
    The bank sponsor is responsible for monitoring mitigation banks 
based in whole or in part on habitat restoration or habitat creation 
activities, in accordance with the monitoring provisions in the 
mitigation banking agreement to determine the level of success and any 
problems requiring remedial attention. Monitoring provisions should be 
specifically described in the banking agreement and be based on 
scientifically sound performance standards prescribed for the bank. 
Monitoring should be conducted at time intervals suitable for the 
particular project type and until such time as the Service has decided 
that it has been successful. The bank sponsor should submit annual 
monitoring reports to the Service.
    In addition to the monitoring activities required of the bank 
sponsor, the mitigation banking agreement must allow for the Service's 
right to enter bank lands in order to evaluate compliance with the 
banking agreement, the results of habitat creation or restoration 
activities, and the implementation of required management activities.
                       part 14. remedial actions
    The mitigation banking agreement should stipulate the general 
procedures for identifying and implementing remedial measures at a 
bank. These remedial measures should be based on both information in 
the monitoring reports and the Service's inspections. The Service, in 
consultation with the bank sponsor, will decide on the need for 
remediation.
                     part 15. financial assurances
    The bank sponsor is responsible for securing sufficient funds or 
other financial assurances to cover contingency actions in the event of 
the bank's default or failure. In addition, the bank sponsor is 
responsible for securing adequate funding to monitor and maintain the 
bank during its operational life and to endow its proper management 
thereafter. The total funding requirements should reflect realistic 
cost estimates for monitoring, long-term management, and contingency 
and remedial actions.
    Financial assurances may be in the form of performance bonds, 
irrevocable trusts, escrow accounts, casualty insurance, letters of 
credit, or other approved instruments. Such assurances may be phased 
out or reduced once the bank has demonstrated that it has met its 
performance requirements as described in the banking agreement.
                                 ______
                                 
   The Environmental Defense Fund, Prepared in Cooperation with the 
                 National Cattlemen's Beef Association
safe harbor: helping landowners help endangered species--introducing a 
    new concept in endangered species conservation on private lands
    Conservation comes naturally to many landowners. America's farmers, 
ranchers, and other landowners know that if they exhaust the soil, 
abuse the land, or pollute the waters, their fields, pastures, streams, 
and woodlots will become less productive. And so, for generations, they 
have tried to be good stewards. They embrace conservation because it 
makes economic sense to them and because they love their land.
    Many landowners have also worked diligently to attract wildlife to 
their property. Whether because they enjoy hunting, fishing, or just 
watching and listening, most landowners are happy to share their land 
with wildlife. Indeed, the chance to have interesting plants and 
animals close by has long been one of the real joys of land ownership.
    Today, however, some of these landowners are wondering whether they 
should keep the welcome mat out for wildlife. it's not because they no 
longer enjoy wildlife, but because they fear that the presence of some 
animals--especially endangered species--could restrict what they can do 
with their land. There is an unfortunate irony to this. Most endangered 
species will need more and better habitats if they are to recover, and 
who better than America's landowners to provide those places? Yet if 
landowners believe that creating these habitats threatens their own 
future, they are not likely to do so. And who can blame them?
    A lot of ideas have been put forth to address this dilemma. This 
handbook describes one very effective and flexible approach: ``safe 
harbor'' agreements. All sorts of landowners are taking part in these 
easy-to-negotiate agreements, including farmers, forest landowners, 
resort owners, and even residential and corporate landowners. Together, 
they are making hundreds of thousands of acres of privately owned land 
available to America's disappearing wildlife and are doing so without 
new government regulations. This handbook describes safe harbor 
agreements and the way in which they work. It aims to help you decide 
if a safe harbor agreement makes sense for your land. Safe harbor 
agreements aren't appropriate in every situation. Nor, as this handbook 
will explain, will they solve every problem faced by landowners whose 
property is home to endangered species. But they can solve some 
important ones and, in doing so, assure landowners that their continued 
stewardship won't lead to land-use restrictions.
                    what is a safe harbor agreement?
    The basic idea behind a safe harbor agreement is that people who do 
good deeds shouldn't be punished for doing them. And so, in a safe 
harbor agreement, a landowner commits to doing a ``good deed'' for 
endangered wildlife--usually by restoring or enhancing habitats for 
endangered species--and the government pledges not to ``punish'' the 
landowner for doing that good deed. This may seem lilac such a sensible 
idea that there shouldn't be any need to enter into an agreement to 
accomplish it. But, actually, there is.
    The reason is that under Federal law (Endangered Species Act), and 
sometimes under state law, the presence of an endangered species on a 
property may result in restrictions on activities undertaken on that 
land that may be harmful to that species. Thus if landowners were 
simply to restore wildlife habitats on their property, and those 
habitats became homes to endangered animals, they might find themselves 
in a predicament. A landowner might, for example, have to apply for a 
permit to cut the stand of trees he planted, to drain the wetland he 
created, or to convert the prairie he restored into productive 
cropland.
    A safe harbor agreement avoids dilemmas like these. It assures 
landowners that if they do what they have agreed to do (e.g., plant the 
stand of trees, create the wetland, or restore the prairie), they won't 
incur any new restrictions on the use of the land if their actions 
result in endangered species taking up residence. That is, they are 
free to develop that land, even if endangered species have shown up 
there in the meantime. Note, however, that safe harbor agreements don't 
affect any preexisting restrictions that mall append to a property as a 
result of endangered species already living there. This is an important 
point for landowners to understand, and it is discussed in greater 
detail elsewhere in this handbook.
    Safe harbor agreements are a relatively new conservation tool and 
have never been formally tested in the courts. However, since the first 
safe harbor agreement was developed in 1995 to protect red-cockaded 
woodpeckers in the Sandhills of North Carolina, the idea has been 
praised by many landowner and environmental groups alike. In an arena 
where controversy has been all too common, safe harbor agreements to 
protect endangered species have generated uncommon enthusiasm.
    Safe harbor agreements come in two basic forms. One is an 
individual agreement between a landowner and the Federal agency 
responsible for conserving the species (the agency is usually the U.S. 
Fish and Wildlife Service, but for some fish species is the National 
Marine Fisheries Service). The landowner agrees to do something 
beneficial for endangered species in exchange for a guarantee of being 
subject to no additional regulatory restrictions related to the newly 
restored or enhanced habitat. The other is an ``umbrella'' agreement. 
In this type of agreement, an intermediary (which can be a state fish 
and game agency, state or Federal agricultural agency, or even a 
private conservation organization) develops a safe harbor program for a 
specific area, such as a county or group of counties. Once the Fish and 
Wildlife Service or the Marine Fisheries Service approves that program, 
the intermediary works with individual landowners to develop written 
agreements that are covered by the intermediary's umbrella agreement. 
The result for the landowners is exactly the same--they can now restore 
habitats for endangered species without fear of new regulations--but 
much of the red tape is handled by the intermediary that holds the 
permit.
Woodpeckers in the Sandhills of North Carolina
    The license plate on Dougald S. McCormick's Nissan truck bore an 
eye-catching message: ``I EAT RCWS.'' The ``RCWS'' part of that message 
referred to red-cockaded woodpeckers, an endangered species found in 
the longleaf pine forests of the Sandhills region of North Carolina, 
where McCormick's family has long owned about 5,000 acres of 
forestland. Like many landowners in the Sandhills, McCormick was once 
wary of having this rare bird on his property. But not any more. Now 
Dougald McCormick is one of nearly two dozen landowners in the 
Sandhills who have enrolled their land in the nation's first safe 
harbor program. By doing so, he has put out the welcome mat on his own 
property for this elusive bird. Satisfied that the safe harbor program 
protects his interests as well as those of the bird, he now says, ``I 
want to see this succeed.''
    The red-cockaded woodpecker inhabits mature southern pine forests 
and requires periodic fire to regenerate the fire-resistant pines and 
to suppress the growth of hardwood trees in the understory. The 
woodpecker's numbers have declined dramatically throughout its range as 
a result of the logging of mature pine forests, the suppression of 
fires, and other threats. Many landowners in the Sandhills and 
elsewhere were concerned that by allowing their pines to mature or by 
utilizing fire or other means to control hardwood undergrowth, they 
could attract woodpeckers to their property and potentially incur land-
use restrictions as a result of the birds' presence.
    Yet many Sandhills area landowners were more than willing to 
undertake activities to improve the woodpecker's habitat were it not 
for this concern. For example, many landowners rake the needles shed by 
the longleaf pines and sell the pine straw as a landscaping mulch. In 
Sandhills forests, in fact, pine-straw production is often more 
lucrative than timber production. Managing forests for pine straw 
creates ideal woodpecker habitat. In addition, many golf courses in the 
Sandhills contain mature pine forests with relatively open 
understories. Both course managers and golfers value the aesthetic 
appeal of park-like pine forests. However, even though improving 
woodpecker habitat was consistent with their land-management 
objectives, pine-straw producers, golf course owners, and other 
landowners were nervous about doing anything to attract endangered 
species to their properties. The safe harbor program was established 
with these landowners in mind.
    Under the Sandhills safe harbor program, landowners enter into an 
agreement with the local office of the Fish and Wildlife Service under 
which they pledge to protect habitat for any woodpeckers that may 
already be on their property and to restore or enhance habitat that 
additional woodpeckers may use. In return, the landowners are assured 
that they will not be subject to any new restrictions if the population 
of woodpeckers increases on their property. In addition, neighboring 
landowners are protected against additional regulations if new groups 
of woodpeckers are attracted to the participating landowners' property 
and utilize habitat on the neighboring property.
    Two dozen landowners with over 19,000 acres have enrolled in the 
program. They include Jerry Holder, a leader in the North Carolina Pine 
Needle Producers Association, who earns income by raking pine straw 
from his own land and that of other landowners with whom he contracts. 
The land enrolled in the Sandhills safe harbor program supports 
approximately 50 family groups of woodpeckers and has enough habitat 
for perhaps twice that number. The landowners have enhanced red-
cockaded woodpecker habitat by using prescribed burns, drilling 
artificial nest cavities for woodpeckers, mechanically removing 
hardwood undergrowth, lengthening forest rotations, and other actions.
    Safe harbor not only has been beneficial to the woodpeckers, but 
also has fostered better relations between the Fish and Wildlife 
Service and landowners. In the fall of 1996, for example, Hurricane 
Fran roared through the Sandhills, taking many old pines with it. One 
of them, on the property of a participating landowner, had a nest 
cavity for the woodpeckers. This landowner promptly called the Fish and 
Wildlife Service to request that a biologist be dispatched to drill an 
artificial cavity in another tree so as not to lose the woodpeckers on 
his property.
    Those who have joined the Sandhills safe harbor program include the 
owners of small woodlots, horse farms, and even some of the nation's 
best known golf courses. According to Brad Kocher, maintenance director 
at the famous Pinehurst Golf and Country Club, ``Everybody wins with 
this.''
         what can a landowner do under a safe harbor agreement?
    Landowners can do many things to help endangered wildlife under 
safe harbor agreements. The possibilities are as varied as the species 
and their needs. For example, a lot of endangered species occur in 
habitats that are created or maintained by fires. Such animals include 
Kirtland's warblers in Michigan, which nest exclusively in stands of 
young jack pines; Karner blue butterflies in New England and the Great 
Lakes states, whose caterpillars feed on only lupines in sunny 
clearings; Plymouth red-bellied turtles in Massachusetts, which require 
open, sunny pond shores for successful egg-laying; and red-cockaded 
woodpeckers in the Southeast, which live almost exclusively in open, 
park-like pine forests, where hardwoods are kept at bay by frequent 
fires. In many of the places where these species occur today, regular 
prescribed burning or other actions (mechanical or chemical management 
of hardwoods, controlled grazing, regulated timber harvesting) that 
replicate the effect of fires are used to maintain and enhance the 
habitats. Pledging to carry out such management practices may qualify a 
landowner for a safe harbor agreement, as in the case of several dozen 
forest landowners who have enrolled their land in safe harbor programs 
in North and South Carolina. In other cases, landowners have agreed to 
forgo cutting trees on a portion of their property for a specified 
period of time so that the trees can grow old and tall enough to be of 
value to species that depend on older forests. Thus safe harbor 
agreements can eliminate the incentive for ``panic cutting'' that has 
prompted some landowners to cut their woodlots sooner than they 
otherwise would have, just to avoid the possibility of facing harvest 
restrictions if endangered species showed up on their property.
    Landowners can also actively restore prairies (sometimes by using 
livestock grazing as a management tool), riparian zones, and other lost 
or degraded habitats that may become suitable once again for endangered 
species. Returning former cropland or a tree farm to naive vegetation 
may also provide needed habitats for rare species, as can the removal 
of noxious weeds and other non-native plants and animals. All these 
types of activities may qualify for a safe harbor agreement because, in 
all cases, the landowners are performing good deeds for endangered 
species that they are not obligated to perform under any law or 
regulation.
    Finally, safe harbor agreements can be used to reintroduce an 
endangered species into areas where it formerly occurred. Texas 
ranchers are doing just this for the northern aplomado falcon, the 
rarest falcon in North America.
Northern Aplomado Falcon
    Safe harbor not only is a useful way to encourage private 
landowners to undertake land-management activities to benefit 
endangered species, but also can be used to reintroduce endangered 
species to areas where they Once occurred without subjecting landowners 
to increased regulation. Witness the case of the rarest falcon in North 
America: the northern aplomado falcon.
    The northern aplomado falcon once roamed the grasslands of Arizona, 
New Mexico, and Texas south to northern Central America. By the middle 
of this century, the falcon was all but gone from the United States, 
with the last documented nesting pair recorded in New Mexico in 1952. 
In 1986, the falcon was officially listed as endangered by the Fish and 
Wildlife Service.
    The disappearance of the falcon in the United States is believed to 
be largely a result of the conversion of grassland savannas to 
agriculture and other uses. The widespread use of certain pesticides, 
such as DDT, also may have contributed to the falcon's demise. In 
addition, the suppression-of fires allowed dense brushy vegetation to 
overtake the open grasslands required by the falcon. Interestingly, 
livestock grazing maintains suitable open habitat for the northern 
aplomado falcon; consequently, falcons continue to live in and around 
cattle ranches in Mexico and Central America.
    The future of the northern aplomado falcon in the United States 
relies in large part on a captive-breeding program established by The 
Peregrine Fund, a nonprofit conservation group, in the 1970's. The 
first captive-bred falcons were released on public lands in southern 
Texas in the 1980's. Yet early on in the program, both The Peregrine 
Fund and the Fish and Wildlife Service saw the need to reintroduce the 
birds on private ranch land, which composes the overwhelming majority 
of the bird's potential habitat in southern Texas. Unfortunately, 
ranchers were unwilling to allow such releases after the bird was added 
to the endangered species list for fear of becoming subject to 
increased land-use restrictions. Peter Jenny, a biologist with The 
Peregrine Fund, explains the ranchers' reluctance: ``[Landowners] were 
scared to death that the [Endangered Species] Act would limit their 
land-use options. The key to unlocking it was safe harbor.''
    Under a recently initiated safe harbor program, northern aplomado 
falcons are to be released or, 1.24 million acres of ranch land in 
southern Texas. Some of the released birds have even begun nesting in 
the wild. The program is administered by The Peregrine Fund so the 
landowners work directly with the fund's biologists. Landowners simply 
agree to allow the biologists access to their land and to permit the 
fund to construct release towers where the falcons are first acclimated 
and then released. In addition, Peregrine Fund biologists are granted 
extensive access to the release sites in order to monitor the young 
falcons. In return, participating landowners don't have to worry about 
the Endangered Species Act as it applies to the falcon. If they 
eventually decide to develop or alter their property in any manner they 
wish, the presence of the birds will not prevent them from doing so. 
Moreover, because northern aplomado falcons are so rare, some 
landowners may be able to charge birdwatchers for the privilege of 
viewing falcons on private ranches. And, of course, thanks to safe 
harbor, the northern aplomado falcon is free to once again soar over 
the grasslands of southern Texas.
       what can a landowner not do under a safe harbor agreement?
    Safe harbor agreements do not free landowners from the obligation 
to avoid harming those endangered species that already are present on 
their property. In other words, safe harbor agreements do not allow 
landowners whose property already supports red-cockaded woodpeckers, 
Karner blue butterflies, or any other endangered animal to develop or 
alter the existing, occupied habitat in ways that are harmful to the 
species (they might be able to do so under a different type of permit, 
but that is a subject outside the scope of this handbook). But 
landowners who are interested in creating new habitat for endangered 
species or enhancing existing habitat will not face any new regulations 
or restrictions under the Endangered Species Act on the habitats they 
create or improve. In some cases--for example, when a landowner creates 
a wetland--there may be requirements stemming from other laws, such as 
state or Federal statutes that regulate the filling of wetlands, that 
affect the landowner's future obligations. You should inquire about 
this possibility before deciding to enter into a safe harbor agreement.
              when is a safe harbor agreement appropriate?
    Safe harbor agreements make sense whenever landowners are 
interested in restoring or enhancing habitats for endangered species, 
but are concerned about incurring additional regulatory restrictions on 
the use of their land. Of course, the Fish and Wildlife Service will 
expect a landowner to do something that is reasonably likely to benefit 
the conservation of an endangered species before it approves a safe 
harbor agreement. A property owner cannot simply put up a birdhouse in 
her backyard and expect the Fish and Wildlife Service to enter into a 
safe harbor agreement for her entire farm or ranch. But if she makes a 
serious effort to create new habitats or improve existing habitats for 
endangered species, she should have no trouble meeting the requirements 
for a safe harbor agreement. Obviously, the more substantial the 
undertaking, the more likely it is to receive priority attention from 
the Fish and Wildlife Service. The Service may not have the resources 
to respond to every landowner's request for such an agreement and may 
have to choose among them.
    Species that inhabit ecosystems that are created or maintained by 
fire are good candidates for safe harbor agreements because landowners 
can often use prescribed burning or mowing to create new areas for 
them. Species whose habitats are being destroyed by non-native weeds or 
feral animals are also appropriate subjects for safe harbor because 
landowners can restore or improve the endangered animals' habitats by 
pulling up the weeds or keeping the feral animals out of sensitive 
areas. There are many examples along these lines. The key point is 
that, in all cases, landowners are going out of their way to better the 
lives of endangered species by improving habitats. In some cases, these 
improvements have other benefits as well. In the Hill Country of Texas, 
for example, creating habitat for the endangered black-capped vireo 
will also provide an excellent environment for white-tailed deer, a 
valuable game species. And in southern Texas, restoring coastal prairie 
for the very rare Attwater's prairie-chicken can improve the range land 
for cattle.
    Bear in mind that not all habitats can be readily restored or 
enhanced, and not all endangered species will respond quickly to 
favorable management. It may take decades or even centuries to grow a 
forest suitable for northern spotted owls. And even if a landowner 
creates the habitat, the endangered species may not come, especially if 
the nearest surviving populations are far away. Thus it makes sense for 
landowners to discuss their plans with knowledgeable people before 
investing lots of time or money in restoration projects.
Attwater's Prairie-chicken
    The endangered Attwater's prairie-chicken, once a common inhabitant 
of the coastal prairies of Louisiana and Texas, is now one of the 
rarest birds in the world. Although it was one of the first species 
added to the endangered species list in 1967, its numbers have steadily 
declined in the intervening 32 years. Presently, fewer than 50 remain 
in the wild. A more substantial population is maintained in captivity.
    Like most other endangered species, the prairie-chicken is 
threatened by the destruction of its habitat. The conversion of native 
prairie to crops and other land uses, the poor management of livestock, 
the suppression of fires, and the invasion of alien woody plants, 
including Chinese tallow and McCartney rose, have resulted in the loss 
and degradation of the bird's preferred habitat.
    Like that of many other endangered species, much of the prairie-
chicken's habitat is on privately owned land. Thus for it to recover 
from its perilous state, it will need the cooperation of private 
landowners willing to restore native prairie. Thanks to a safe harbor 
program administered by the Sam Houston Resource Conservation and 
Development Area (SHRCD), the bird's future may be measurably brighter 
in Texas.
    Under this safe harbor program, ranchers and corporate landowners 
are restoring native prairie along the Texas coast. Prairie restoration 
not only will improve habitat for the prairie-chicken, but also will 
provide better forage for cattle. That's right--by restoring native 
prairie, ranchers expect the amount and quality of forage to increase. 
Thus, there is an economic reason for them to join the safe harbor 
program. Even so, restoration can be an expensive task and require 
technical expertise that not all landowners have. Therefore, SHRED is 
providing landowners with technical assistance and cost-share money to 
help them in prairie restoration.
    Since the program was initiated in 1995, 11 landowners have 
enrolled over 31,000 acres of land in the program. They have received 
more than $100,000 of cost-share money to assist them in restoring 
habitat for the prairiechicken. Yet the benefits of safe harbor for 
this bird and other endangered species cannot be reduced simply to the 
number of landowners enrolled or the acreage of habitat protected or 
the amount of cost-share money distributed. Safe harbor has produced 
less tangible, but no less important, benefits. In particular, safe 
harbor has generated considerable good-will among landowners toward the 
conservation of endangered species. Brian Dinsmoor, who manages the 
Amoco Corporation's Chocolate Bayou chemical plant, is enthusiastic 
about his company's participation in the program: ``This is a great way 
to enhance the environment around our plant without restricting future 
use of the land.''
        how does a landowner enter into a safe harbor agreement?
    If you think that a safe harbor agreement might be appropriate for 
your property, the first steps to determine if there are endangered 
wildlife species in your area and if your land contains suitable or 
potentially suitable habitat for such species. If you don't know, you 
may want to contact your state fish and game department, the nearest 
Natural Resources Conservation Service office, the Fish and Wildlife 
Service, The Nature Conservancy, or another knowledgeable organization 
Consulting foresters or consulting biologists can often provide this 
information as well. If your land contains suitable or potentially 
suitable habitat for endangered species, you should learn more about 
the types of actions that could benefit them (again, biologists with 
these organizations and agencies should be able to assist you). If such 
activities are consistent with your land-management objectives for your 
property, you may want to pursue a safe harbor agreement. The fish and 
game department of your state will know if an umbrella safe harbor 
program is already in operation in your area and whether it covers the 
species that may utilize your property. If there is no umbrella 
agreement, you should contact the Fish and Wildlife Service office in 
your region.
    You may be reluctant to contact the Fish and Wildlife Service until 
you are sure that a safe harbor agreement will be in accord with your 
land-management objectives. If this is the case, it may be preferable 
to work closely with a state agency or a consultant that you know well 
and trust to evaluate your property before going forward with a safe 
harbor agreement.
                        determining the baseline
    If you own land on which an endangered wildlife species lives, a 
safe harbor agreement could be just as useful as it is for land without 
such a species. It may be possible, for example, to create ore habitat 
for that species or to improve the habitat that already exists, both of 
which undertakings qualify for a safe harbor agreement. The safe harbor 
agreement, however, must reflect the fact that an endangered species 
already inhabits the property. The existing populations become part of 
your ``baseline.'' A safe harbor agreement doesn't change preexisting 
baseline responsibilities (in other words, it doesn't change the 
responsibilities you may have toward the animals and their habitats 
that are already present on your property), but it does guarantee that 
you won't incur any added obligations as a result of helping those 
endangered populations increase in number.
    If you think that you may have an endangered species on your land, 
you may want to have an independent biologist visit your property 
before deciding to enter into a safe harbor agreement. If you decide to 
go forward with a safe harbor agreement, the Fish and Wildlife Service 
will want to know how much land is occupied by endangered species and 
the condition of that land so that these baseline conditions can be 
written into the agreement. For example, if you have five families of 
red-cockaded woodpeckers on your property and you want to create enough 
habitat for three more, a safe harbor agreement will allow you to 
eliminate the habitat for those three new families at a later date, if 
you choose to do so. But the safe harbor agreement will not permit you 
to eliminate the habitat of all eight families because five of them 
were already on your land before you signed the agreement and began to 
create more woodpecker habitat.
    The baseline often is expressed in terms of the number of acres of 
habitat of a particular type and quality, rather than in terms of the 
number of individual animals on the property. Red-cockaded woodpeckers 
are somewhat unusual in that they tend to remain in the same locations 
for many years. Other species move around from year to year, or their 
populations rise and fall in response to the weather, the availability 
of food, and other factors. For these types of animals, it is a lot 
easier (and more sensible) to express the baseline as some quantity of 
existing habitat that is currently being used by an endangered species. 
As this brief discussion makes clear, determining a baseline can 
involve some fairly technical issues. Be sure to speak to employees of 
the Fish and Wildlife Service or other knowledgeable people about your 
baseline responsibilities and how they will be measured.
    Identifying the species that already are on your property may be 
useful for several reasons. At the very least, it will clarify your 
existing responsibilities. Often, landowners have felt frustrated about 
their inability to get straightforward information about what they 
should or should not do on their land because of the possible presence 
of endangered species. With a clear baseline in a safe harbor 
agreement, landowners know their rights and obligations.
                         adjusting the baseline
    Sometimes endangered species disappear from an area for reasons 
beyond a landowner's control. A hurricane may knock down the pine trees 
inhabited by red-cockaded woodpeckers; a prolonged drought may 
eliminate an isolated population of rare butterflies living in a wet 
meadow; or predators, disease, or other unanticipated events may 
decimate a small and isolated population of endangered animals. If that 
happens to all or part of the baseline population of endangered species 
on your property, it may be possible to get the Fish and Wildlife 
Service to reduce your baseline responsibilities.
    Assume, for example, that your land supports a baseline of five 
families of red-cockaded woodpeckers. If a storm knocks down all the 
trees inhabited by two of those families and renders the habitat 
unsuitable for them, the Fish and Wildlife Service will reduce your 
baseline responsibilities to three families. This does not affect your 
ability to destroy or develop at a later date the habitat you create 
for any additional woodpecker families under your safe harbor 
agreement. It's important, however, to discuss any baseline adjustments 
with the Fish and Wildlife Service long before you contemplate 
developing your property to avoid any misunderstandings. Indeed, it's a 
good idea to contact the Fish and Wildlife Service as soon as possible 
after the fire, flood, drought, or other natural disturbance has struck 
your property if you thinly that it has resulted in the loss of 
baseline habitat.
    As discussed later in this handbook, under certain circumstances, 
you might voluntarily agree to adjust your baseline upward. Such a 
modification may serve as mitigation for activities carried out by you 
or another landowner. Indeed, it may be possible to generate income 
from having successfully restored or enhanced habitat for endangered 
species (see ``Marketing safe harbor `credits' '').
                           access to the land
    Most landowners restrict access to their land in some manner. Safe 
harbor agreements do not require landowners to allow public access to 
their property for hunting, fishing, camping, hiking, birdwatching, or 
any other purpose. Landowners can permit as much or as little public 
access to their land as they please.
    Safe harbor agreements do, however, necessitate that landowners 
allow access to their property for the limited purposes of determining 
the baseline, ascertaining compliance with the agreements, and perhaps 
capturing and relocating species at the expiration of the agreements. 
In order to determine the baseline, some type of survey by a qualified 
person is generally necessary. This baseline survey can be carried out 
by an employee of the Fish and Wildlife Service or by a qualified 
person acceptable to the service and the landowner. If an umbrella safe 
harbor program is in place for a particular area, baseline surveys are 
often done by the intermediary that holds the umbrella permit.
    Many landowners are understandably reluctant to allow employees of 
the Fish and Wildlife Service onto their land to survey for endangered 
species. There are a couple of ways to handle the baseline survey if 
you do not want it to be conducted by the Fish and Wildlife Service. 
You can hire a consultant, provided that his or her expertise is 
acknowledged by the Fish and Wildlife Service. Or you can ask your 
state fish and game department to perform the survey. The important 
step is to discuss the issue of access with the Fish and Wildlife 
Service early in the process, before you spend money on a consultant. 
Remember that the Fish and Wildlife Service wants property owners to 
improve habitat for endangered species; its staff should be eager to 
accommodate you, although their limited time may necessitate that they 
give first priority to the most significant projects.
    Bear in mind, too, that the baseline survey need cover only the 
particular species in question. It is not an invitation to the Fish and 
Wildlife Service, the state fish and game department, or anyone else to 
conduct a search for any and all endangered species on your property. 
You can ask the person conducting the survey to focus on only the 
endangered species whose habitat you intend to restore or enhance. If 
you want to help Karner blue butterflies, for example, the survey need 
address only Karner blue butterflies. The one exception to this rule is 
that the Fish and Wildlife Service cannot approve a safe harbor 
application that purports to help one endangered species by harming 
another. In other words, the Fish and Wildlife Service will not let you 
convert important habitat for bald eagles into habitat for red-cockaded 
woodpeckers as part of a safe harbor agreement. But this situation has 
not arisen in any of the safe harbor agreements that have been 
developed or proposed to date.
    Once an agreement is finalized, it will be necessary for the Fish 
and Wildlife Service or the intermediary (under an umbrella permit) to 
visit the property to make sure that the landowner has complied with 
the terms of the agreement. The timing, frequency, advance notice 
requirements, and other aspects of such visits can be individually 
negotiated.
    Some safe harbor agreements stipulate that if landowners decide to 
use the habitat that has been restored or enhanced under the 
agreements, such that endangered species are likely to be harmed by 
that activity, the landowners will give advance notice of their 
intention to do so. They must allow the Fish and Wildlife Service or 
its designee to try to capture and relocate any animals in harm's way. 
Thus access for such rescue and relocation efforts may also be required 
in a safe harbor agreement.
                            confidentiality
    The willingness of landowners to enter into safe harbor agreements 
might depend on the baseline calculation. But many landowners won't 
necessarily know in advance what the survey is likely to reveal. As a 
result, they may reason that if the baseline turns out to be high, they 
would prefer to keep that information to themselves and perhaps not 
enter into safe harbor agreements. Is there a way for landowners to 
find out what their baseline responsibilities would be while keeping 
that information confidential? The answer is yes.
    These concerns about confidentiality can be addressed to the 
satisfaction of most landowners. A landowner who is particularly 
concerned about what a baseline survey might reveal can simply hire a 
competent biologist to examine the property carefully in advance of the 
official survey. The preliminary survey should give the landowner a 
pretty good idea of what species reside on the land and thus what the 
baseline survey is likely to discover. The landowner can then decide 
whether to go forward.
    If a landowner is considering enrolling his land under an umbrella 
safe harbor agreement, the agency or organization that is acting as the 
intermediary for that agreement may be one with which he has worked and 
in which he has a high degree of trust. The landowner may be able to 
enter into an agreement with the intermediary to keep the results of 
the baseline survey confidential unless he decides to participate in 
the umbrella agreement.
    One other aspect of confidentiality requires mention. If an 
individual landowner enters directly into a safe harbor agreement with 
the Fish and Wildlife Service or the National Marine Fisheries Service, 
the agency is required by law to publish notice of the proposed 
agreement in an official government publication called the Federal 
Register. Anyone who wants to comment in writing on the proposed 
agreement may do so, usually within 30 days after publication. If an 
intermediary agency or organization wants to establish an umbrella safe 
harbor agreement, the agreement is subject to the same procedure: 
publication of a notice in the Federal Register, followed by an 
opportunity for written comment. Once an umbrella agreement is in 
place, however, the subsequent agreements between the intermediary and 
individual landowners don't have to go through this process. Records 
kept by Federal agencies about either type of agreement are public 
records and are generally subject to disclosure.
            what is the duration of a safe harbor agreement?
    Two closely related questions pertain to the duration of a safe 
harbor agreement: How long is a landowner obligated to carry out or 
maintain the positive improvements required by a safe harbor agreement? 
How far into the future does the right to undo those improvements 
extend, notwithstanding that endangered species may have come to occupy 
the improved areas? There is no one fixed answer to either of these 
questions. The answers to both can be individually negotiated between 
the landowner and the Fish and Wildlife Service. The service will want 
to be sure that the positive actions to be undertaken by the landowner 
extend over a long enough period of time to be beneficial to the 
animals. How long that will be depends on a number of factors, 
including the endangered species in question, the type of habitat it 
requires, and the planned improvements to that habitat. Some habitat 
improvements, such as restoring certain types of wetlands, can be 
completed in a single season and will offer conservation benefits for 
decades; other improvements, such as prescribed burning in some 
habitats, must be repeated every couple of years to offer significant 
conservation benefits. Thus in the former case, a safe harbor agreement 
may obligate a landowner to restore a wetland only in the coming year, 
whereas in the latter case a safe harbor agreement may obligate a 
landowner to carry out a triennial prescribed-burning program for at 
least 15 years.
    It is important to understand that although the landowner's 
obligation under a safe harbor agreement will be to undertake or 
maintain certain improvements for a specified period of time, her right 
to undo those improvements will extend over a longer period of time. 
This timeframe is also subject to individual negotiation. Both the 
landowner and the government have good reasons to want the safe harbor 
rights to continue well into the future. No conservation benefit is 
served by requiring a landowner to eliminate the habitat improvements 
that she has made in order to protect her rights. Typically, the 
government will want the duration of the safe harbor assurances to last 
as long as the habitat improvements can reasonably be expected to offer 
conservation benefits to the affected species.
    Because the duration of safe harbor agreements is so flexible, 
there is room for creativity. For example, one possibility is a 
continually renewing agreement. That is, an agreement could be for a 
certain period (say, 20 years), but each year it automatically renews 
for another year-thus always extending 20 years into the future unless 
one party elects not to renew it. Safe harbor agreements can deal in a 
variety of ways with situations in which a landowner chooses to 
terminate his agreement prematurely. Assume, for example, that a 
landowner who agreed to conduct biennial prescribed burns over a 
specified number of years experiences a change in circumstances and 
wants to stop earlier. In general, the authority conferred by a safe 
harbor agreement for a landowner to do whatever he wishes on his land 
regardless of its impact on endangered species applies only if the 
Andover has complied with all the terms of the agreement. In some 
circumstances, however, an agreement may allow a landowner to terminate 
it early and still enjoy the full benefit of safe harbor assurances, 
especially if the agreement contemplates that a landowner will carry 
out specified actions over an extended period of time. Landowners 
should be sure they understand their obligations if the agreement is 
terminated prematurely.
     how is a neighbor's land affected by a safe harbor agreement?
    Landowners who wish to restore the habitats of endangered species 
on their property sometimes wonder how their actions might affect their 
neighbors' lend. Fortunately, safe harbor agreements typically include 
provisions to minimize any conflicts with neighboring landowners that 
might result from the participating Landowners' actions to improve the 
habitat of endangered species on their property. The terms of the 
agreements can vary from situation to situation, so landowners should 
make sure that they understand the stipulations of their particular 
agreements.
    The Fish and Wildlife Service, for example, customarily expects 
landowners to protect a specified amount of forested land within a 
certain radius of the nest trees of each family of red-cockaded 
woodpeckers. What happens, therefore, if a family of woodpeckers 
becomes established just inside the boundary of the property of a 
landowner who is participating in a safe harbor program? Does that 
landowner's neighbor, who may not have enrolled in the program, have to 
protect her forests on behalf of the woodpeckers? This question has 
been addressed in several safe harbor agreements thus far, and the 
answer is no. In those particular agreements, neighbors are not 
responsible for providing habitat for woodpeckers that are part of a 
safe harbor program on adjacent property.
    Another question concerns the movement of endangered species that 
are released on a parcel of land enrolled in a safe harbor agreement. 
If those animals move onto a neighbor's land, and the neighbor is not 
enrolled in the safe harbor program, is he obligated to protect them? 
Once again, a safe harbor agreement can be written to address this 
possibility. In the Southeast, for example, biologists are trying to 
establish new populations of red-cockaded woodpeckers by moving birds 
onto the properties of landowners enrolled in a safe harbor program. 
Each of the translocated birds is tagged with a unique combination of 
colored bands placed on its legs. Should any of these banded birds show 
up on a neighbor's property, they are recaptured and returned to the 
safe harbor property. Under safe harbor agreements approved thus far, 
if the banded birds persist in moving onto the neighbor's land, the 
neighbor is not obligated to provide habitat for them.
    There is another way that neighbors' potential concerns can be 
addressed. They, too, can enter into a safe harbor agreement and 
thereby help conserve endangered species without incurring new 
restrictions on the use of their property. If you are concerned about 
how your enrollment in a safe harbor program might affect your 
neighbors, be sure to raise this issue with the Fish and Wildlife 
Service. There is usually a way to work things out.
                         changing circumstances
What happens when the land is sold?
    Safe harbor agreements are effectively transferable from owner to 
owner. The buyer of land enrolled in a safe harbor agreement can 
arrange with the Fish and Wildlife Service to take over the agreement, 
simply by signing a new, identical agreement with the same original 
baseline and management actions. This is good news for the seller, 
whose property does not necessarily drop in value as a result of the 
creation of more habitat for endangered species. It might even enhance 
the value of the land if the buyer is conservation-minded and wants a 
property that supports unusual wildlife.
    If you are planning to sell your property, contact the Fish and 
Wildlife Service office that issued the permit to discuss how to make 
sure that the agreement remains in effect. In the case of an umbrella 
agreement, contact the agency or organization that holds the permit.
What happens when a landowner dies?
    Not only are safe harbor agreements effectively transferable from 
owner to owner, but the rights and duties they confer can be passed 
down from generation to generation. Those who inherit property that is 
under a safe harbor agreement will have the same rights and 
responsibilities as the landowner who originally enrolled the land in 
the safe harbor program.
               safe harbor and other incentives programs
    Landowners who participate in other conservation incentives 
programs may find it desirable to use safe harbor agreements in 
conjunction with those programs. For example, property owners who are 
restoring streamside forests or otherwise creating wildlife habitats 
using funds from the Conservation Reserve Program of the Department of 
Agriculture may wish to enroll their land in a safe harbor agreement in 
case any endangered species move into the newly restored habitats. 
Without such an agreement, it may be difficult to put the restored 
habitats back into agricultural production at a later date if they have 
been colonized by endangered species. The same applies to landowners 
enrolled in the Wetlands Reserve Program, Wildlife Habitat Incentive 
Program, or Partners for Wildlife Program of the Fish and Wildlife 
Service. Of course, there is little reason to pursue a safe harbor 
agreement if the types of habitats being restored are unlikely to 
attract endangered species. Contact the Natural Resource Conservation 
Service, the Fish and Wildlife Service, the state fish and game 
department, or an outside consultant if you are unsure whether the 
improvements you are planning are likely to attract endangered species.
                   marketing safe harbor ``credits''
    It may even be possible to earn money by participating in a safe 
harbor program. Once you have signed a safe harbor agreement and 
completed the management actions specified in it, you have essentially 
received permission from the Fish and Wildlife Service to develop the 
habitat of an endangered species. Of course, it's habitat that you 
created and that wouldn't exist without your hard work. But it's 
habitat all the same, and you have the right to develop it. Now suppose 
that another landowner in your community has the same type of 
endangered species on her property but wants to develop her land 
nonetheless. Assuming that her property isn't covered by a safe harbor 
agreement, she has only two choices: she can forgo her plan to develop 
the land, or she can ask the Fish and Wildlife Service for permission 
to do so, notwithstanding the harm it will cause the endangered 
species. Under Section 10 of the Endangered Species Act, the Fish and 
Wildlife Service can grant her permission to develop her land, but only 
if she agrees to some type of mitigation for the loss of habitat. This 
compensation can take the form of the landowner paying you not to 
exercise your right to develop the land that you have enrolled in the 
safe harbor agreement. In other words, she can pay you to increase your 
baseline. You now become obligated to protect a larger amount of 
habitat for endangered species, she can develop her property, and the 
endangered species is none the worse off.
    This scenario may seem pretty far-fetched, but, in fact, it is 
beginning to happen. You shouldn't count on a safe harbor agreement as 
a money-making proposition. But if you think that you might be willing 
to forgo developing the safe harbor portions of your land in exchange 
for money, you can advise the Fish and Wildlife Service that you would 
sell your safe harbor rights if the service found a suitable buyer.

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