ESA-HABITAT CONSERVATION 

OVERSIGHT HEARING 

BEFORE THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

SECOND SESSION 

ON 

THE ENDANGERED SPECIES ACT WITH REGARD TO 

SECTION lO(a) PERMITS (HABITAT CONSERVATION 

PLANS) AND OTHER INCENTIVES 

35-090 cc 

JULY 24, 1996 

Serial No. 104-97 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1996 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-053714 -2 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California 

JAMES V. HANSEN, Utah EDWARD J. MARKEY, Massachusetts 

JIM SAXTON, New Jersey NICK J . RAHALL II, West Virginia 

ELTON GALLEGLY, California BRUCE F. VENTO, Minnesota 

JOHN J. DUNCAN, JR., Tennessee DALE E. KILDEE, Michigan 

JOEL HEFLEY, Colorado PAT WILLIAMS, Montana 

JOHN T. DOOLITTLE, California SAM GEJDENSON, Connecticut 

WAYNE ALLARD, Colorado BILL RICHARDSON, New Mexico 

WAYNE T. GILCHREST, Maryland PETER A. DEFAZIO, Oregon 

KEN CALVERT, California EN! F.H. FALEOMAVAEGA, American 

RICHARD W. POMBO, California Samoa 

PETER G. TORKILDSEN, Massachusetts TIM JOHNSON, South Dakota 

J.D. HAYWORTH, Arizona NEIL ABERCROMBIE, Hawaii 

FRANK A. CREMEANS, Ohio GERRY E. STUDDS, Massachusetts 

BARBARA CUBIN, Wyoming SOLOMON P. ORTIZ, Texas 

WES COOLEY, Oregon OWEN B. PICKETT, Virginia 

HELEN CHENOWETH, Idaho FRANK PALLONE, JR., New Jersey 

LINDA SMITH, Washington CALVIN M. DOOLEY, California 

GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto 

WALTER B. JONES, JR., North Carolina Rico 

WILLIAM M. (MAC) THORNBERRY, Texas MAURICE D. HINCHEY, New York 

RICHARD (DOC) HASTINGS, Washington ROBERT A. UNDERWOOD, Guam 

JACK METCALF, Washington SAM FARR, California 

JAMES B. LONGLEY, JR. , Maine PATRICK J. KENNEDY, Rhode Island 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

DANIEL VAL KISH, Chief of Staff 

ELIZABETH MEGGINSON, Chief Counsel 

CHRISTINE KENNEDY, Chief Clerk/Administrator 

JOHN LAWRENCE, Democratic Staff Director 

(II) 
CONTENTS 

Hearing held July 24, 1996 .................................................................................... . 

Statement of Members: Chenoweth, Hon. Helen, a U.S. Representative from Idaho ....................... . . Pombo, Hon. Richard, a U.S. Representative from California ........ ............ .. Smith, Hon. Lamar, a U.S. Representative from Texas .......................... .... .. Young, Hon. Don, a U.S. Representative from Alaska; and Chairman, Committee on Resources .. .................................... ..................................... .. . Saxton, Hon. Jim, a U.S. Representative from New Jersey ........................ . 

Statement of Witnesses: Brown, William R., Vice President for Resource Management, Plum 

Creek Timber Company .......... ... .......................... ........................................ . prepared statement ................................................... ........... .... ................ . Durham, Hugh, Wildlife Biologist and Forester, International Paper Company ...................................................................... .......... ............................... . Frampton, George T., Jr., Assistant Secretary for Fish and Wildlife and 

Parks, Department of the Interior .............. .................. ............ ................. .. 

Karrf.rTh~:~s~~a~b~h~if ~f.BCEP'i>~k·L;~d~~~~·;~·A~~~~i~ti~~··::::::::::::::: Larsen, Jack, Vice President of the Environment Weyerhaeuser Company 

(prepared statement) ............................. ...................................................... . Snape, William J., III, Legal Director, Defenders of Wildlife ........... .......... .. prepared statement .. ................................................ ...... .. ................... ..... . Stevenson, Shawn, President, Fresno County Farm Bureau ............ .......... . prepared statement ........................ .......................................................... . 

Walley, Kimberley K., Esq., on behalf of the Biodiversity Legal Foundation .... .. ..... .. ............... ...................................... .. ............... .... ......................... . prepared statement .... ................ ............. ...... .... ...................................... .. Wilson, David, Member, ESA Working Group, on behalf of the National 

Association of Home Builders .................................................... ................ .. Additional material supplied: 

Pacific Lumber Company and Maxxam Inc., statement on Habitat Con- servation Plan ................. .................................... ................ ................ ......... . United States Court of Federal Claims .................................... .... ................ .. Communications submitted: 

George T. Frampton, Jr., submitted the following letters ................ .......... .. Letter dated July 24, 1996, from Murray Pacific Corp. .. ...................... . Letter dated July 24, 1996, from Port Blakely Tree Farms ................ .. Thomas Kam, submitted the following letters ............................................. .. Letter dated April 10, 1995, from Travis County Commissioners' 

Court ........... ........... .. ............................................................................. .. Lonnie Moore submitted the follow letter .................................................... .. Letter dated April 17, 1995, to Members Austin Planning Commission .... . Letter dated July 25, 1996 from Department of the Interior to Hon. 

Don Young ................................................................................ ........ ............ . Letter dated August 16, 1996, from Valarie Bristol, Travis County Commissioner to Hon. Don Young ...................................... ............................... . 

Letter dated August 8, 1996, from Pacific Lumber Company to Hon. Don Young ............................................................. ............. ................... ....... . Letter dated February 20, 1996, from Paciific Lumber Company to Mr. Curt Smitch ................................. .. .................................................... ...... .... .. Letter dated June 28, 1996, from Department of the Interior to Mr. 

Tom Herman Pacific Lumber Company ................... ...... ........................... .. Letter dated August 8, 1996, from Pacific Lumber Company to Mr. Curt 

Smitch .......... .... ............. .............................. .. .............................. ...... ............ . 

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ESA-HABITAT CONSERVATION 

WEDNESDAY, JULY 24, 1996 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON RESOURCES, 

Washington, DC. 

The Committee met, pursuant to call, at 2:10p.m., in room 1324, 

Longworth House Office Building, Hon. Richard W. Pombo presiding. 

STATEMENT OF HON. RICHARD W. POMBO, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. POMBO. We're going to call this hearing to order. 

I am going to ask unanimous consent that my opening statement 

be included in the record. I know that Mr. Smith has another appointment that he has to attend, but I wanted to go ahead and 

start with him. 

I would also like to ask unanimous consent that the opening 

statement of Congressman Hastings be included in the record, and 

I will yield to him at this time 

Mr. HASTINGS. Thank you, Mr. Chairman. 

I would also like to have unanimous consent, if that's necessary, 

to submit questions for the witnesses of a subsequent panel. I have 

a conference committee that I have to go to and so I won't be able 

to be here. I would like to have that entered into the record. Mr. POMBO. Without objection. 

Mr. POMBO. Also, I would ask unanimous consent that Mr. Young's opening statement be included as well. 

[The statements of Members follow:] 

STATEMENT OF HON. DON. YOUNG, A U.S. REPRESENTATIVE FROM ALASKA; AND 

CHAIRMAN, COMMITTEE ON RESOURCES 

Good afternoon. I welcome all of you to this oversight hearing of the Committee on Resources on the implementation of the Endangered Species Act. This afternoon we will focus our attentwn on two of the most recent efforts of the Fish and Wildlife 

Service to implement the ESA. When I originally voted for the ESA in 1973, most 

of the Members of this Congress believed that we were protecting endangered and 

threatened species from intentional acts of humans to bring harm to these crea- tures. We did not wish to see wildlife and plants disappear from this earth because 

of the carelessness and wastefulness of some people. However, few of us realized 

that the law would be so broadly interpreted as to be able to bring farming, home 

building, ranching, timber harvesting, and other essential life sustaining activities 

to a halt. 

By 1982, we realized that there must be some procedure whereby these activities 

that are so important to human well being should be allowed to continue, even in some cases where it might result in the inadvertent taking of a listed species. So 

in 1982 Congress adopted Section 10(a) of the ESA to allow the Secretary to issue 

Incidental Take Permits, which allow these important activities to continue. However, the authority to issue permits was immediately challenged in the courts by 

(1) 
2 

those who wish to stop these activities. Until recently very few permits have been 

issued. During the last several months, the Secretary of the Interior has announced a flurry of activity, issuing a large number of permits. If the Secretary is to be believed, we are seeing a new era of cooperation and landuser friendly policies. How- ever, reports that the environmental community plans to challenge some of these 

permits have been published and notices of intent to sue have been served upon the 

Secretary. If these suits are successful, these HCP's could be ruled illegal and we are back where we started. 

Since this is a significant change in policy by the Fish and Wildlife Service, I believe it is important that the American people be fully informed regarding how the 

policy will work or not work as the case may be and that the people have a voice 

in how this policy is implemented. It is clear that the model adopted by the Service 

for Habitat Conservation Planning will not work in many areas of the country and 

will not solve the problems of the small individual landowner. According to the information sent to us by Mr. Frampton, the land area covered 

by either current or proposed HCP's is approximately 5.4 million acres or an area larger than the State of Massachusetts. This brings all of this land under intense 

Federal regulation and control. 

I am concerned that the public is being led to believe that their ESA problems are being resolved when, in fact, the conflicts are being postponed until some future 

date. 

I have to say that in many ways the Fish and Wildlife Service has moved in our direction, adopting at least in theory, some of the principles that have been advocated both in this Congress and in the previous Congress by many of the conserv- atives of this Committee, including Mr. Pombo, Mr. Tauzin, and many others. The 

devil is always in the details and the one true difference between our conservative 

approach and the approach taken by the Administration is that the Administration 

approach is based on a massive land preservation and set aside program that will 

not work, either for people or for wildlife. Some of the landowners covered by the 

agreements are willing owners but others have been included against their will. Our 

approach starts with the basic principle that private property rights must be respected and the civil rights of our citizens must be guaranteed. 

If we are to solve the problems associated with the ESA, there must be a com- prehensive and credible reform of the act. It must respect private property rights, 

balance human needs with resource protection, and minimize the costs to local governments and the States. It must also insure that our natural resources are wisely 

protected and conserved. If not, we will be here year after year debating these same issues over and over again. I am confident that we will be able to complete a com- prehensive reform that will accomplish the goals of the ESA in the upcoming Congress away from the heat and rhetoric of an election year. 

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE FROM NEW JERSEY 

Thank you, Mr. Chairman, for providing this opportunity to examine the purposes 

and possibilities of the Habitat Conservation Plans. Habitat Conservation Plans are a useful tool in the fight to reconcile the competing needs between species and property owners. Habitat Conservation Plans may 

not be the absolute answer to all of our Endangered Species problems. In fact, we must remember that they are only one tool of many we will need to incorporate in 

order to achieve some balance between the land uses of species and people. 

There are some divergent points of view represented here today. I hope that we will be able to determine the ways by which Habitat Conservation Plans and other 

tools can be used to improve the ways the Endangered Species Act works on the 

ground. Thank you for coming to Washington to testify on this important subject. This 

should be very informative. 

Mr. POMBO. Mr. Dooley, do you have an opening statement? 

Mr. DooLEY. No, Mr. Chairman. Mr. POMBO. If there are no opening statements, I would like to 

turn to our colleague, Congressman Smith from Texas, who will 

start as the first panel. 
3 

STATEMENT OF HON. LAMAR SMITH, A U.S. REPRESENTATIVE 

FROM TEXAS 

Mr. SMITH. Thank you, Mr. Chairman. 

Chairman Pombo and other members of the Committee who are 

here, thank you for inviting me to testify about the use of habitat 

conservation plans under the Endangered Species Act. 

Before we even consider habitat conservation plans, though, it's 

important to remember the context of this hearing. This hearing 

has been called because there's a broad consensus that the Endangered Species Act is broken. The Committee has recognized this 

broad consensus and worked to reform and improve the Endangered Species Act. Some in the administration who have opposed 

these common sense endangered species reforms claim that habitat 

conservation plans, or HCPs, are an alternative. The Balcones Canyonland Plan, or BCP, provides a good example 

of how habitat conservation plans cannot and do not fix the broken 

Endangered Species Act. In order to illustrate how the BCP fails 

both landowners and nature, I would like to recount the story of 

a constituent of mine, Margaret Rector. Margaret Rector is a 74 

year old Texan who purchased 15 acres outside of Austin in order 

to retire. In 1989, her property was assessed at a taxable value of 

$991,000. Shortly after this assessment, the Fish and Wildlife 

Service added the golden-cheeked warbler to its list of endangered 

species. 

This listing prohibited Margaret Rector from any productive uses 

of her property that would alter her land without a Section 10(a) 

permit from Federal officials. Obtaining this permit is highly un- certain and expensive. In six years, her property value has diminished from $991,000 to $30,000, and under the current Endangered 

Species Act, Margaret Rector was denied compensation. 

The Endangered Species Act is not just bad news for landowners 

like Margaret Rector. It harms the golden-cheeked warbler and 

black-capped vireo as well, species it was supposed to protect. Margaret Rector's story tells why the Texas Department of Natural Resources found that listing these rare birds increased rather than 

decreased the clearing of their habitat. It provides perverse incentives that discourage rational farmers, ranchers, or homeowners 

from good environmental land management. Some claim that the habitat conservation plans like the BCP fix 

these problems with the Endangered Species Act, that they provide 

fairness and flexibility to landowners like Mrs. Rector and improve 

conservation of species like the golden-cheeked warbler. But close 

examination shows that BCP does not correct these problems and 

that they create a whole new class of endangered landowners. Under the BCP, Margaret Rector would be permitted to use her 

15 acres only if she paid a "mitigation fee" of $5,500 per acre, or 

$82,500 to use her own private property. In Washington, this may 

be called fairness or flexibility. But in Texas, it's called extortion. 

Requiring landowners to pay a fee as a condition to use private 

property violates the Fifth Amendment to the Constitution. This is 

private property, Mr. Chairman. It is owned by Margaret Rector, not the Federal Government, not the Department of Interior. Requiring landowners to pay a fee to use private property won't 

correct the perverse incentives in the Act, either. If a landowner 
4 

knows that a rare plant or animal will cost $5,500 per acre if discovered, that's hardly an impetus for good management. What's worse, the BCP creates an entirely new class of endan- gered landowners in Texas-folks whose property lies within the 

BCP preserve. The mitigation fee will be imposed on property owners outside the preserve so that the BCP can acquire other lands 

to be preserved. But these fees will generate enough revenue to 

compensate these landowners only if land can be acquired at approximately $5-6,000 an acre. Later in this hearing, you will be 

hearing testimony from Thomas Kam that landowners estimate the 

value of preserve property at $28,000 per acre. Many landowners reject paying this mitigation fee to the govern- ment. Rather than pay the government a fee to develop their own 

property, they're willing to roll the dice and apply for a Section 

lO(a) permit, which as I said a few minutes ago can take many, 

many years and cost thousands of dollars. Landowners whose land 

lies within the BCP can hardly be assured of compensation. Rather 

than a sure, certain guaranty for landowners like Margaret Rector 

and Thomas Kam, the BCP appears a financial house of cards 

waiting to collapse on all involved. In addition to being unfair to landowners and financially insecure, BCP represents "Washington knows best" arrogance at its 

worst. In 1993, the voters of Travis County, which is where Austin 

is located, rejected a bond issue to pay for this project. These voters 

understand that conservation is important, but so are new schools, 

police protection, and other public services. The voters of Travis 

County have spoken. The BCP ignores their wishes entirely. Finally, the questions and doubts that I raise about the BCP 

have been advanced before. Unfortunately, these concerns have 

been unheeded. Even though BCP affects landowners more than 

any other group, the landowners played only a minor role in the 

BCP's development. Mr. Chairman, there is no substitute for real Endangered Species 

Act reform. I know that you agree with me on that. Fairness to 

landowners like Margaret Rector demands it, protection of rare 

plants and animals mandates it, and the Constitution requires it. But HCPs do not provide real reform. Real Endangered Species 

Act reform can only be through measures that restore protection 

for private property rights. HCPs such as the BCP do not restore 

or protect private property rights. They just return those rights to 

landowners like Margaret Rector in exchange for a ransom. 

Mr. Chairman, I thank you again for inviting me and allowing 

me to be here today, and I appreciate not only the opportunity to 

testify but also to say to you how much I have appreciated your 

support on this issue over the years and how much you've been a 

leader on this issue. 

Mr. POMBO. I thank you. I just have a couple of questions for 

you. 

In your statement you said that landowners played a minor role 

in the development of the BCP. Can you expand on that a little bit? 

Mr. SMITH. Yes. And there's really two responses to give you. 

First of all, the landowners who own the property within the preserve many times and most often were never consulted, never notified, didn't know what was going on, and now suddenly they're in 
5 

the position of a "Hobson's Choice", which is your choice is either 

to pay $5,500 an acre or your choice is to go through a long, 

lengthy and expensive permit process. 

That's no choice at all. That's a choice between being in the fire 

and being in the frying pan. Of course, what we would like to do 

is raise a third choice and say that perhaps the best solution, the 

best way to be flexible, is to amend the Endangered Species Act 

and get back to the original intent and inject some common sense 

into its enforcement. 

If I may, Mr. Chairman, I would like to add also that this socalled solution that the Federal Government has come up with, 

which is we're either going to force you to pay $5,500 an acre or 

go through the long and expensive permit process, all this does is 

encourage the Federal Government to declare even more land, 

more acres, as endangered habitat, so that they will be able to extract even more money from the private property owners to perpetuate this scheme of forcing the private property owners to buy 

property elsewhere. So the incentives are all wrong. 

That's a lengthy answer. The other part of the answer is that the 

taxpayers, who were consulted, actually voted against this plan, 

and their wishes are being ignored and the rights of private property owners are being ignored as well. Mr. POMBO. How would the proposed five-acre exemption be impacted on a plan such as this one? 

Mr. SMITH. I know the administration has made that proposal, 

and it's interesting that they-well, they have made it in this election year. We never heard anything about that when 19 of my 21 

counties in the 21st District were declared as possible critical habitat. 

But that, to me, is still not the answer. It is still carving out just 

a small number of individuals. I'm not here to brag, but in Texas, 

five acres doesn't take you too far when you're a rancher or a farmer. So five acres is really only addressing a small fraction of the 

problem, and it's also dividing the private property owners and creating different classes. I don't think that's part of the solution, ei- ther. 

Mr. POMBO. Thank you. Mr. Dooley, do you have any questions? 

Mr. DOOLEY. No questions. 

Mr. POMBO. Mrs. Chenoweth? 

Mrs. CHENOWETH. No, Mr. Chairman. 

Mr. POMBO. Mr. Metcalf? 

Mr. METCALF. No questions, Mr. Chairman. 

Mr. POMBO. Thank you very much for your testimony, and if 

there are any further questions that anyone has for you, I will have 

them submitted to you in writing. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. POMBO. Thank you. 

Mrs. CHENOWETH. Mr. Chairman, I do have a statement I would 

like to enter into the record. Mr. POMBO. Without objection, that will occur in the record. [Prepared statement of Hon. Helen Chenoweth follows:] 
6 

STATEMENT OF HON. HELEN CHENOWETH, A U.S. REPRESENTATfVE FROM IDAHO 

Mr. Chairman, thank you for holding this hearing on Habitat Conservation Plans 

(HCP) performed pursuant to the Endangered Species Act (ESA). This is an ex- tremely important issue to my constituents, and I am very much looking forward 

to hearing from our panelists. 

I want to extend a warm welcome to Mr. David Wilson from Ketchum, Idaho. 

David has come a long way to be here today and will be testifying on behalf of the 

National Association of Home Builders. I look forward to hearing from him. Mr. Chairman, the Endangered Species Act has had a profound impact on the 

economy of the western United States. In literal terms, family owned businesses have been forced to shut down. From 1993 through 1995, 66 timber mills were forced to close down in Oregon, California and Washington, alone. The nationwide 

impact has been equally severe. As ESA was first applied, if a threatened or endangered species were found on private property, a landowner's only option was to abandon or limit his use of the 

property, or risk civil and criminal prosecution under the Act. As a result, many 

landowners have been taking preemptive measures to prevent the accumulation of 

habitat on their property. Fortunately, Congress added Section lO(a) to the ESA, which authorizes the U.S. 

Fish and Wildlife Service (USFWS) to issue an incidental take permit to private 

property owners allowing them to incidentally "take" listed species as a result of 

otherwise lawful activities, provided the applicant meets certain requirements. One 

of those requirements is the submission of a "conservation plan" that seeks to minimize and mitigate all impacts on the species. The USFWS now calls these "Habitat 

Conservation Plans" (HCPs). 

Although HCPs are a step in the right direction, Mr. Chairman, I am gravely con- cerned that the cost of preparing an HCP is prohibitive to many small businesses. Major plans can take years and millions of dollars to finalize, with private land- owners bearing most of the costs. These enormous costs and delays associated with 

the HCP process make this otherwise attractive ESA option impossible for small 

businesses. The result is that only large, wealthy companies are able to take advantage of Section 10 HCPs. Mr. Chairman, I hope that the Members here today will be willing to find a solution to the detrimental impacts the ESA is having on our small business men and women. Having already taken steps to lessen the ESA's regulatory burden on large 

corporations, it is now time to do the same for small businesses. With that being said, Mr. Chairman, I look forward to hearing from our wit- nesses. 

Mr. POMBO. I would like to call up the second panel, Mr. George 

Frampton, Ms. Kimberley Walley, Mr. Thomas Kam, and Mr. 

David Wilson. 

Thank you all very much for joining us here today. I would like 

to start with Mr. George Frampton, who is the Assistant Secretary, 

Fish, Wildlife and Parks, from the Department of Interior. 

Mr. Frampton, you know all about the lights and everything else, 

so you can begin. 

STATEMENT OF GEORGE T. FRAMPTON, JR., ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR 

Mr. FRAMPTON. Thank you, Mr. Chairman. 

I am delighted to have an opportunity to talk this afternoon 

about what I think is one of the most successful initiatives of the 

Clinton Administration, which is our efforts over the last threeand-a-half years to pioneer the use of habitat conservation plans 

and similar voluntary agreements in which we bring together private landowners, developers, local and county governments, State 

government, Federal and State agencies, the development community, environmentalists and nonprofits, in a collaborative way to 

design long-term, individual or multi-species plans that both provide quite a bit more protection in many cases for species than we 
7 

would be able to obtain through regulation, and also a tremendous 

amount of certainty and predictability for developers. 

I think that this initiative is really a blueprint for the future because it enables us to go beyond regulation into the consensusbased protection process and provide relief and certainty for the 

landowner and developer community at the same time. 

Just to summarize a few of the areas in which we have active 

HCP programs, in the Pacific Northwest we have negotiated almost 

a dozen and have in the pipeline several more dozen habitat conservation plans with major timber companies, and with the States 

of Oregon and Washington. We recently concluded a habitat conservation plan with the Plum 

Creek Timber Company in the I-90 corridor-you're going to hear 

about that later today, 170,000 acres of their land. You're going to 

have testimony from Plum Creek. I have also, Mr. Chairman, letters here on two of the other recent HCPs that we've concluded, a habitat plan with the Murray 

Pacific Corporation, and one just last week with Port Blakely Tree 

Farms in Washington. Toby Murray, who is the VP of Murray Pacific, and the chairman and general partner of Port Blakely Tree 

Farms, have written letters which I would ask be included in the 

record, expressing their support for this process. Mr. POMBO. Without objection. [The letters may be found at the end of hearing.] 

Mr. FRAMPTON. Thank you, Mr. Chairman. In the last year we have concluded major agreements with Clark 

County, NV-that's Las Vegas-and Washington County, UT, which is St. George, two of the fastest growing parts of the country 

to protect the desert tortoise. We had the Balcones plan in May, 

in Austin, 633,000 acres. Contrary to the Congressman's testimony, that is a plan that has the support of the City of Austin, Travis 

County, who applied for the "incidental take" permit. It has taken 

a long time. I'm surprised that he didn't come to admit that he was 

wrong about this in his opposition to this collaborative process over 

the last few years. 

In Florida, in the southeast, we have had numerous agreements 

with timber companies. You're going to hear about one of those 

later this afternoon from International Paper, who has been a good 

partner in the southeast with cooperative agreements and habitat 

conservation plans. Finally, particularly in Southern California, a good deal of the 

open space remaining between Los Angeles and San Diego, Mr. 

Chairman, is being planned right now by a collaborative group of 

city, county and State officials, large landowners and developers, 

environmental groups and scientists. We have initialed two of those 

major plans in the last few months, the most recent in Orange 

County involving more than 208,000 acres, a good deal of the open 

space remaining in Orange County, CA. 

The one point I guess I want to make in my oral testimony is 

that there have been people who have said this is a very forwardlooking and progressive way to approach species protection, by 

bringing stakeholders to the table and reaching these agreements, and that's great for State and local government and for large landowners because they can afford it. Indeed, if you have agreements 
8 

covering hundreds of thousands or millions of acres for 25 or 50 

years, you would hope that some time, money and good science 

goes into that. 

But what about the little guy? Is this workable for the small 

landowner? The answer is that in the last year, year and a half, 

I think we have made a lot of progress in beginning to make the 

habitat conservation planning process available also, and useful to 

and for the smaller landowner. 

For example, in the Balcones HCP, basically the county issues a 

certificate of participation. A small landowner can join the program-it takes about two or three weeks-pay a mitigation fee if 

it's high-grade habitat that's going to be developed, and basically 

join the program without doing an individual HCP. 

In Georgia is another example of how we're trying to make these 

plans work for small landowners. In Georgia, we are about to conclude a statewide agreement on the red-cockaded woodpecker with 

the State Fish and Wildlife and DNR. The State then will take the 

rules that we negotiate and step them down into State regulation, 

so that as long as a private landowner lives with those rules, the 

private landowner, in effect, has enrolled for free and with no process in a statewide HCP, and we hope that most of the other southern States with woodpecker habitat will follow along behind that. 

"No take" MOUs, our safe harbor umbrella agreements, where 

individual landowners sign on without doing individual plans, and 

the handbook that we are about to bring out in the next month or 

two for low impact HCPs, are all additional ways in which we're 

making a streamlined process available to the small landowner. So 

I would say we're a year to a year and a half behind designing new 

ways to do this for the little guy, but the HCP and MOU process 

that we've pioneered I think is going to be, in the near future, just 

as useful for small landowners as large landowners. 

Thank you, Mr. Chairman. 

[Prepared statement of Mr. George T. Frampton, with attachments, may be found at the end of hearing.] 

Mr. POMBO. Thank you. 

Ms. Walley? 

STATEMENT OF KIMBERLEY K. WALLEY, ESQ., ON BEHALF OF 

THE BIODIVERSITY LEGAL FOUNDATION 

Ms. WALLEY. Good afternoon. 

My name is Kimberley Walley and I'm an attorney with the law 

firm of Meyer & Glitzenstein, which represents a number of conservation groups that have recently sent a 60-day notice letter to 

the U.S. Fish and Wildlife Service and the National Marine Fisheries Service contending that the "no surprises" policy violates the 

Endangered Species Act. On behalf of the Biodiversity Legal Foundation, one of the groups 

that sent the notice letter, I have been asked to testify as to why 

we believe the current "no surprises" policy violates ESA. I will 

touch upon some of the major reasons why the BLF believes this 

policy is deeply flawed, and then offer a couple of suggestions. The 

policy hasn't been discussed at this point, and so I will just give 

a brief overview of what it is. 
9 

Essentially what it means is when the Fish and Wildlife Service 

or National Marine Fisheries Service comes to the table to negotiate a habitat conservation plan, they will offer up general assurances to the landowner. Those assurances basically are, once you've 

entered into an HCP and you have committed to mitigation measures, no further money or land will be required of you, and essentially the Services bear the burden of any additional mitigation 

measures that may be required after the plan has been entered 

into. 

Let's say, after the plan has been entered into, they find out that, 

we need to do something extra to prevent a species' extinction, the 

species that's covered under the plan. It's the Service that bears 

the burden of then implementing those needed mitigation measures. 

The Service will definitely have to pay for the additional mitigation measures, and one of those things would be possibly purchasing the land that the additional mitigation measures are needed to 

be imposed upon. 

That actually leads to one of the problems that we see with this 

policy, that there is absolutely no provision in there that shows 

there's any kind of funding mechanism or money available for the 

Service to be able to pay for these additional mitigation measures. 

As we all know, the Service is under tight budgetary constraints. 

They're having problems even listing endangered and threatened 

species. So there is no guarantee that they would even be able to 

pay for these additional mitigation measures as they arise. 

Now, this "no surprises" policy has been in effect since August 

of '94, and has been applied to HCPs that have come out since 

then. Some of them are the Plum Creek Timber Company's HCP, 

which the permit that was issued has a duration of approximately 

50 years and covers 170,000 acres, and purports to adequately protect 286 species. 

Another HCP that contains the "no surprises" policy is the 

Central and Coastal Subregion NCCP HCP down in Orange County, CA, that was just signed by Secretary Babbitt. That HCP has 

a duration of 75 years, covering 47 species, and over 200 acres of 

land. 

I'm just going to talk about three problems that we see with this 

"no surprises" policy. The first is, as 164 scientists have said in a 

letter that I have attached to my testimony, a letter to Senator 

Chafee and Congressman Saxton, the "no surprises" policy basically ignores ecological reality and rejects the scientific knowledge 

and judgment of our era. Essentially, the "no surprises" policy ignores the fact that biological circumstances change, such as fires 

and disease, those things that arise that cause changed circumstances over the duration of a permit period, especially when 

you think about these permits lasting between 30 to 75 years. 

Other changes that may occur include political changes and social changes. A good example is the fact that just last year a salvage timber rider was passed that changed circumstances for HCPs 

that were entered into up in the Pacific Northwest. All of this is 

further exacerbated by the fact that many of the species that are 

covered in these HCPs and are given "no surprises" guarantees are 

species that are unlisted, candidate species, species that the Serv-
10 

ice has absolutely little to no scientific information about the habitat needs of these species. So how can they enter into these "no 

surprises" assurances that these habitat conservation plans are 

adequately protecting them over 75 years? They don't have any scientific information about the habitat requirements of these species. 

This leads me to a second problem, which Dr. Soule, one of the 

leading conservation biologists in this country, stated in another 

letter to Senate Chafee and Congressman Saxton. This policy essentially closes the door to adaptive management. Adaptive management being that, as circumstances change, you need to go back 

and reexamine what's been done and adapt in order to preserve the 

species. 

An example of that would be, if you assume when you're entering 

into a habitat conservation plan you need to do "x" to preserve a 

species, and ten years down the road you realize "oh, no, I can't do 

'x'; it has to be 'y"', you would have to go back and be able to adapt. 

Now, the last problem we have with this is the fact that it's a 

mandatory policy rather than a discretionary policy. This means 

that when the Fish and Wildlife Service comes to the table and enters into negotiations, they have to give these assurances to every 

landowner that asks them, and every landowner, obviously, is 

going to be asking for these assurances. This gives away a major 

bargaining chip for the Fish and Wildlife Service and actually, in 

a kind of perverse way, causes problems for the landowner. Because if a Fish and Wildlife Service biologist comes to the table and 

realizes they're going to be entering into a habitat conservation 

plan that lasts 75 years, and the mitigation measures that are in 

there are going to have to last for the duration of 75 years, and 

it's going to be very hard to change the mitigation measures in a 

plan, they may front-load the process, essentially requiring more at 

that period of time than may actually be necessary. 

Now, if I may be allowed, I'm just going to make two small suggestions to the current policy. 

One is that the policy not be mandatory, that instead it be discretionary, that it be done on a case-by-case basis. Essentially, you 

have to realize that you've got to look at the circumstances that 

arise and then assess whether we can give these kinds of assurances to the landowner; do we have the science to be able to back 

this up? 

Secondly, you cannot give ironclad guarantees in these kinds of 

circumstances. An HCP may need to be modified if the Service can 

show that unanticipated circumstances have arisen. It's kind of a 

reopener provision, which is very similar to what's been used in the 

Superfund, in CERCLA agreements, in that if new information 

comes up, you're going to have to go back and look at it again. 

For example, if you have a water permit and a factory says we're 

going to discharge "x" amount of pollutant into the river, and the 

EPA says OK, you can do that, and ten years later they discover 

that we didn't know it at the time but this is causing a great public 

health hazard, it's not unusual that the EPA would then go back 

and say we need to renegotiate this because of new information 

that has arisen. 

Essentially what I'm trying to say here is that we believe the "no 

surprises" policy is deeply, deeply flawed. It does not take into con-
11 

sideration some of the most basic biological principles, that nature 

is anything but predictable. It fails to allow for the incorporation 

of the best scientific information, and it gives away one of the Service's major bargaining chips. Therefore, we recommend that this 

policy not be incorporated into the reauthorization of the Endan- gered Species Act. Thank you very much. [Prepared statement of Ms. Kimberly K. Walley may be found at 

the end of hearing.] 

Mr. POMBO. Thank you very much. 

You heard all the bells going off. We have a vote and I'm going 

to have to apologize because we're going to have to recess the hearing. There are four votes on the Floor, so it's going to take us about 

30 minutes to get through that. 

I know Mr. Frampton didn't have anything else he wanted to do 

this afternoon. So we're going to recess the hearing, and as soon 

as we can get back, we will. I have to apologize, but I can't control 

the votes. We will be back as soon as we can. Mr. FRAMPTON. I'll await you eagerly, Mr. Chairman. 

Mr. POMBO. The hearing is recessed. 

[Recess.] 

Mr. POMBO. We're going to call the hearing back to order. Again, 

I apologize to our witnesses for the delay. 

We will go ahead and have Mr. Thomas Kam begin his statement. 

STATEMENT OF THOMAS KAM, ON BEHALF OF BCEP PARK 

LANDOWNERS ASSOCIATION 

Mr. KAM. Thank you, Mr. Chairman. My name is Thomas Kam. 

I'm a small landowner and I run a small practicing structural engineering firm in Austin, TX. In May of this year, U.S. Fish and Wildlife granted a 10(a) permit to the City of Austin and Travis County with the published intent of creating a preserve on the west side of the City of Austin 

for several birds which are alleged to be endangered. The plan will 

grant the city and the county an area wide 10(a) permit from Fish 

and Wildlife and places them in the Federal law and administration business (just what the City of Austin needs to be). . The plan's intent is to create multiple blocks of land totaling approximately 30,000 acres on the western edge of Austin. This is in 

addition to another federally funded preserve, intended for the 

identical purpose, of 45,000 acres immediately west of the BCP, also located in Travis County, noted as the Balcones Canyonland 

National Wildlife Refuge. 

Approximately 20,500 acres have already been purchased and acquired by government entities and conservation/real estate organizations for the BCP preserve. The balance of 9,500 acres to be acquired is currently privately owned. Many of these tracts have been 

in families for multiple generations. 

The plan proposes to acquire the remaining private land with a 

mitigation/extortion payment tax of $1,500 to $5,500 per acre on 

the land, with habitat, around the designated preserve. In addition 

to this fee, 100 percent of the increase in future Travis County 
12 

property tax revenue from the developed land will be diverted for 

continued land acquisition. 

As Mr. Lamar Smith pointed out earlier, the voters of Travis 

County actually voted down the bonds to acquire the land, but the 

County Commissioners circumvented the voters and created this 

bogus scheme to take tax revenue out and buy land. The plan authors have "hip shot" that this acquisition procedure 

will take up to 20 years, and that the average land acquisition cost 

will be $5-6,000 per acre. There has been some discussion that it 

may take 30 years or more to acquire the balance of the preserve. 

Despite actually nine years of work on a plan, the Fish and Wildlife Service, the State of Texas, Travis County, the City of Austin, 

nor the Texas Nature Conservancy have ever instigated or produced a professional appraisal or cost survey for the acquisition of 

the balance of 9,500 acres. There is no professional basis for the 

projected land acquisition cost of $5-6,000 per acre. 

As a direct result of this failure to provide a professional cost 

survey for acquisition, I initiated a survey, completed in the spring 

of 1995, of the current private landowners within the proposed preserve. This survey showed that only one-third of the private landowners were willing to sell, and that the average willing sales 

price, based on a summer of '95 closing, was $28,600 per acre . . I need to point out here that this land is immediately adjacent 

to urban and suburban development. This is not out in the boondocks. The eastern boundary of this land that they want to acquire 

is two to three miles east of the western boundary of the city limits 

of Austin. 

The city, county, and Federal Government land cost estimate per 

acre is off by a factor of five, at least five. While the city has acquired distressed RTC property for as little 

as $1,500 per acre, it has paid $20,000 to over $100,000 per acre 

for privately owned tracts in the preserve boundary within the last 

11 years. The landowners willing to sell asking price of $28,600 per 

acre is supported by closed sales and very defendable in a condemnation court. 

This private landowner survey was presented to and essentially 

ignored by the City Council, the Commissioners Court, U.S. Fish 

and Wildlife, and the working committee of the BCP. These government entities have produced no other surveys or appraisals of any 

type or kind. Based on the landowner survey of $28,600 per acre, 

and the 9,500 acre acquisition, the cost for this plan could be over 

$271 million. 

Over the last eight years, numerous tracts in the bird habitat 

area have received "bird letters", which effectively release them 

from any liability. In addition, many tracts are already developed, 

have completed individual 10(a) permits for their tracts, or are 

undevelopable due to access and terrain. The remaining land that 

is not in the preserve that can be taxed/extorted is very limited. Of 

the few remaining larger tracts, it will be more economical to do 

an individual 10(a) permit rather than participate in the BCP per 

acre extortion fees. 

I have repeatedly requested from Fish and Wildlife and Travis 

County a list of tracts which they can effectively tax in order to determine the potential income from their extortion fee. They have 
13 

responded that they have not done this study and have no intention to do so, and they are not required by law to do this. They 

have no idea how much projected income they will receive. 

From May 2nd to July lOth of this year, the county has issued 

only one permit with a total fee of $1,500 under this plan. This 

doesn't even cover a fraction of the overhead cost for the county. 

A 30,000 acre block of land west of town in government control 

will no doubt be beneficial to some special interest groups. This is 

being publicly touted by local officials as "Austin's Central Park." 

This reflects the true intent of this process: the creation of an 

urban park at little or no expense to the city or county by using 

a Federal program that creates an insurmountable encumbrance on 

the land, effectively removing it from the marketplace and condemning it without compensation. 

The Fish and Wildlife Service is also a beneficiary, as they show 

the creation of a preserve at no cost to the Federal Government. Everyone appears to be a winner, except the landowners, lenders, 

and the lienholders, who pay the exorbitant tax to get their land 

released , or the extremely unfortunate landowner/lender whose 

property is within the preserve, where it is locked away in a dead 

zone where the land cannot be used for production or collateralized 

for a loan. 

Through the entire eight-year process, the local and Federal Government agencies effectively stacked the local committees set up to 

review the Fish and Wildlife plan with bureaucrats and lobbyists, 

with only occasional minority nonpreserve landowner representation. Every nonpreserve landowner representative always objected 

vehemently to the plan, and his or her comments were summarily 

rejected by the committee. 

There has never been a preserve landowner or lender on any 

committee for the BCP. All preserve landowners input was summarily rejected or ignored. 

The plan finances are nonprofessional, unsubstantiated, and will 

fail to generate the required income. This is, however, not a problem, as the plan ensures that there will be no resolution and that 

the land remains effectively locked up in the desired State at no 

cost to the government. The landowners for all the habitat land within and around the 

preserve have been severely penalized simply because we have 

maintained our land in a condition favorable to the alleged endangered birds. 

Mr. POMBO. Mr. Kam, I'm going to have to ask you to wrap it 

up. 

Mr. KAM. OK 

Most of the city and county residents who will derive benefit 

from the preserve as parkland have been exempted from significant 

financial responsibility as a result of this plan. Again, this plan unjustly penalizes and burdens the landowners 

whose sole distinguishing trait is maintaining their land in a condition suitable for the birds. As a property owner within the preserve, I and my neighbors 

have effectively lost the actual use and collateral value of our land, 

with no compensation and no realistic expectation of compensation 

because of this HCP. 
14 

A couple of other things I would like to point out. Mr. Frampton 

is apparently not aware, that his statement of a voluntary agreement is totally false in this case. There was no voluntary agreement on any landowner to be a part of this plan. This plan was 

imposed, not agreed to. 

Thank you, Mr. Chairman. 

[Prepared statment of Mr. Thomas Kam may be found at the end 

of hearing.] 

Mr. POMBO. When we get to the questions part, I'm going to ask 

you about that specifically. 

We do have another vote on the Floor, on final passage of this 

particular bill. I'm going to recess the Committee very briefly and 

go vote, and then we'll be right back. This will be a very brief recess. 

[Recess.] 

Mr. POMBO. Again I apologize for the delay. I moved as fast as 

I could. 

Mr. Wilson, you may begin. 

STATEMENT OF DAVID WILSON, MEMBER, ESA WORKING 

GROUP, ON BEHALF OF THE NATIONAL ASSOCIATION OF 

HOME BUILDERS 

Mr. WILSON. Thank you, Mr. Chairman. 

My name is David Wilson and I'm a home builder from Ketchum, 

ID. I also serve on the National Association of Home Builders' Endangered Species Act working group and its government affairs 

committee. On behalf of the 185,000 member firms of the National 

Association of Home Builders, thank you for the opportunity totestify. 

You have asked my views on two issues: the Fish and Wildlife's 

"no surprises" policy, issued in August of 1994, and the regulation 

creating the five-acre exemption for threatened species. I would 

like to address the "no surprises" policy first. In my opinion, while 

"no surprises" is an attempt by the administration to correct many 

of the difficulties landowners face, in reality it is nothing more 

than a good sound bite. It lacks the force of law to make it truly 

useful to landowners. 

As you know, under the Endangered Species Act, Section 10(a) 

permits require the development of a habitat conservation plan. 

Unfortunately, the Section 10(a) process is not workable. Since 

1982, only 40 permits have been approved. To make matters worse, 

once approved, a landowner has no guarantee that the Federal 

Government will not come back and ask for more because another 

protected species was discovered-"more" being either more land or 

more money to be contributed to the HCP. 

In an attempt to provide certainty to the Section lO(a) process, 

Fish and Wildlife has adopted the "no surprises" policy. The purpose was for the Federal Government to provide assurances to private landowners who were participating in the HCPs that no additional land restrictions or financial compensation would be required 

from an HCP permittee if additional species are listed after the 

permit is issues. 

Builders could support this idea in concept. However, the policy 

has not been in effect long enough to evaluate its practical effec-
15 

tiveness. For the majority of the time that the policy has been in 

place, there has been a moratorium on ESA listings. There is a big difference, however, between the Federal Government saying it won't come back for more land or money and the 

Federal Government being prevented from doing so by statute. For 

example, the Act makes it unlawful to "take" an endangered species. The Act defines "take" as including "harm," and the Service 

has defined "harm" to include "habitat modification." There is no 

flexibility in these definitions. Consequently, a landowner can 

spend years cooperating with various resource agencies to develop 

an HCP, only to discover that a new species has been listed, with 

all of the absolute prohibitions in place again. Even if the government wanted to, given the way the ESA operates with its absolute 

prohibitions, there is nothing to prevent an outside party from 

suing the Federal Government or the landowner when a subsequent species is discovered, compelling greater land use restrictions. 

You have asked for my opinion on the exemption for threatened 

species. My answer is similar to that for the no surprises policy. 

It sounds good in theory, but it has limited practical application. 

The reason is simple. Of all the species protected under the ESA, 

most species are listed as endangered. Only one in four is listed as 

threatened. This exemption only applies to threatened species. 

There is no way for the Fish and Wildlife Service to unilaterally 

make this exemption apply to endangered species. The extreme 

prohibitions of the ESA prevent the administration or the Fish and 

Wildlife Service from creating a useful exemption for landowners. 

For the exemption to be truly useful, the ESA would have . to be 

amended. Until that time, the exemption is little more than window dressing. 

Take the Stephens' kangaroo rat, for example. When wildfires 

were destroying homes in California, residents were told that they 

were not allowed to build fire breaks to protect their property because it would destroy the kangaroo rate habitat. Those residents 

who built fire breaks saved their homes and violated the ESA. 

Many of those who did not had their homes destroyed. 

Unfortunately, the five-acre exemption has been held up as the 

solution to this problem, but in truth, it is not. The Stephens' kangaroo rat is listed as endangered, not threatened, and therefore the 

exemption would not have applied. The only means to make this 

exemption a true solution for landowners requires congressional action. It must be codified into law. It is important to remember, however, that codifying these policies will not solve all the problems for landowners. Although important, they must be accompanied by key ESA reforms, including better science, legal standing for those injured economically under the 

Act, a less broad definition of harm to a species, much improved 

public notice requirements, and compensation for lost land value 

due to actions under the Act. These are the kinds of reforms encompassed in the Chairman's 

bill, which NAHB continues to support strongly. It is only with reforms such as these that the Act can truly balance the need for economic growth and the goal for environmental conservation. 
16 

To summarize, the "no surprise" policy, however well intended, is just that-policy. It is not codified in the statute or regulations 

and therefore has no ability to be enforced. 

The five-acre exemption has limited application. Both of these revisions highlight the fact that real reform cannot be achieved in the 

Executive Branch. As much as Fish and Wildlife wants to be more 

flexible to implement these reforms, the fact remains that the Act 

needs to be rewritten. Congress should not and cannot abdicate its 

role to the Executive Branch. Congress needs to act to amend the 

statute. 

Thank you for the opportunity to speak today. Mr. POMBO. Thank you. Mr. Kam, in your statement you talked about private property 

owners and their inclusion in the process. If I'm misquoting you, 

you can correct me. But you said they were not included in the 

process of developing that particular HCP. Mr. KAM. That is correct. 

Mr. POMBO. Can you expand upon that? 

Mr. KAM. Let me break that down. 

There are preserve landowners-that is, landowners that have 

land within the designated preserve-and then there's the land 

outside the preserve that is subject to the mitigation fees. There 

was never a single landowner that was within the preserve on any 

committee throughout the entire process. 

Mr. POMBO. Just so that I understand you, you have land that 

is outside of the preserve that is eligible for development if a mitigation fee is paid? 

Mr. KAM. No. Mr. POMBO. You have land that was inside the preserve, and 

what can you do with that property? 

Mr. KAM. That's a good question. We're trying to figure that out 

ourselves. 

Mr. POMBO. It's my understanding that the BCCP has been 

signed and it's an active document that is no longer being negotiated. Were the conditions of what you can do with that property 

outlined anywhere within that document? 

Mr. KAM. No. The only provision made was that-the only thing 

we were told was that if you wanted to do something, you had to 

come in and do your own lO(a) permit. However, in the BCCP documents, it clearly states that the number of acres is the absolute 

minimum, and the preserve is not valid-the plan is not valid with 

any acreage less than that designated. 

So basically you're caught between a rock and a hard place. Yes, you can go submit your land as a lO(a) permit, but Fish and Wild- life can't release it because they've already issued a lO(a ) permit 

with your land as the designated preserve, with a clear statement 

that that's the minimum amount for the plan. 

Mr. POMBO. This concerns me because I've heard this associated 

with other HCPs, that the people who end up being the habitat, the 

permanent habitat, are not included in the decisionmaking process. 

They are the ones who really have the most to gain or lose by going 

through that process. 

Mr. Frampton, would you care to respond to that, to the statements of Mr. Kam? 
17 

Mr. FRAMPTON. I would, Mr. Chairman. 

The agreement that was signed between the city and Travis 

County and the Fish and Wildlife Service is not the Federal Government's plan. It's a plan that was originally brought forward 

years ago by concerned local citizens, including landowners and 

businessmen and public officials, who wanted to try to figure out 

an efficient way and a predictable way to accommodate the very 

strong pressures for growth in the Austin area, with the need to 

protect habitat and the desire to protect habitat for the goldencheeked warbler and other listed and sensitive species. So the plan 

is a plan that originates with the local people. 

Now, this has been one of the most visible, controversial issues 

in this area for seven or eight years, and there have been a lot of 

fits and starts. It has finally been brought to fruition. It is true that Travis County had an initiative vote several years 

ago, three and a half years ago, on a bond issue, that the voters 

narrowly rejected, to provide bonds for financing of some of the preserve. But it seems to me that Mr. Kam's complaint here is that those 

nasty county commissioners of Travis County, and the City of Austin, the Nature Conservancy and the Texas Wildlife Department, 

the Fish and Wildlife Service, and other public officials, as he said, 

who have touted this, all got together in a collaborative effort and 

developed a plan, which obviously has a lot of public support. 

The city did vote a $42 million bond issue, and that has been 

used in some part to acquire two-thirds of the preserve area, which 

is about 30,000 acres within the 633,000 acres all together. The remainder is being raised, in part, by cooperation from Travis County. 

Now, I don't know which individuals served on which committees 

over the last eight years, but the idea that landowners or anyone 

else who wanted to participate in this process has not had an opportunity to do so seems to me to be very misplaced. There is controversy about this plan, but Mr. Kam's problem seems to be, "well, 

now that the plan has been concluded, it's not going to work because the land is too expensive." I think there's a factual record 

that disputes that. 

Mr. POMBO. Do you feel that all of the property owners should 

have been included if they were not? 

Mr. FRAMPTON. I think there were probably many, many opportunities in the last seven years for property owners in Austin and 

Travis County to participate in this very public debate, and I'm 

sure they did. 

Mr. POMBO. Regardless of that, do you think they should have 

been included if they were not included? 

Mr. FRAMPTON. I think there should be opportunities for all landowners to participate in the process. But, you know, that's really 

the responsibility of the people who advance the permit and the 

plan. That's the City of Austin and the County of Travis. So the 

responsibility for inclusion here rests primarily-and Mr. Kam's 

complaint, if he has a complaint about process, is not with the Federal Government but it's with the city and county officials. 

Mr. POMBO. Was the Federal Government involved with the 

planning process of this particular HCP? 
18 

Mr. FRAMPTON. The Federal Government has been very involved 

in discussions over a number of years with the plan, but the plan 

itself and the process are developed by local people. So if Mr. Kam 

has a problem with that process, his problem is with the county 

and the city and the businessmen and landowners in Travis County and Austin who designed the planning process, not with the 

Federal Government, which did not design the State and local 

planning process. Mr. POMBO. Did Fish and Wildlife or the Department of Interior 

provide the maps of where suitable habitat was, or where critical 

habitat was? Were they involved to the degree where they were 

drawing out on the map what areas should be included and what 

areas shouldn't be included? 

Mr. FRAMPTON. My understanding is that scientists and managers from the city, the county, the State, the Nature Conservancy 

and the U.S. Fish and Wildlife Service and independent scientists 

have all been involved in the mapping and habitat identification 

process. 

Mr. POMBO. My time has expired, but I do have a few more questions. 

Mr. Metcalf, did you have any questions at this point? 

Mr. METCALF. Yes, I do. Thank you, Mr. Chairman. I understand this hearing is on habitat conservation plans, but 

my question is a little different. It's one that I've just been waiting 

to ask on a problem in our area. 

It's on the question of delisting species. Could you give me just 

a really brief idea of what you go through to delist a species when 

they have recovered? 

Mr. FRAMPTON. Well, it's roughly the same process that the law 

requires for listing a species. A petition can be entertained, or the 

Service can initiate its own consideration of a delisting. The best 

scientific information is gathered and there is a proposal that goes 

out for public review and comment, and then a final decision is 

made. Mr. METCALF. So it can be done internally, and I could submit 

a petition, or somebody could? 

Mr. FRAMPTON. That's correct. Mr. METCALF. Thank you. 

The reason I asked that question is because there has been a 

stunning success of the Endangered Species Act in my area, in the 

Puget Sound area, and that's with the bald eagles. When we first 

moved back there in 1974, we would see two or three, maybe, sit- ting on the sand bar at one time, and we would see one occasion- ally. Today, we have counted as many as 15 or so sitting on our 

sand bar, just this one little place. They agree that they have recovered everywhere in the Puget Sound area except on the top of 

the mountains in the Olympics, where they don't normally go. 

You know, this is a chance to declare victory and delist them. 

But they don't. The reason that they don't- and everybody feels 

this, and I know it's true-is because, once they delist them, they 

lose the power over various aspects. What do we do to get common sense back into this system? 

I guess what I'm really asking-and I don't want to take a lot 

of time today-€xcept to say I would like somebody who is respon-
19 

sible in this area to write me a letter and tell me why, scientifically, they have not delisted the bald eagle. 

Mr. FRAMPTON. Well, Mr. Metcalf, we would be happy to respond 

in writing. But you may or may not be aware that we did initiate 

and complete the downlisting of the bald eagle in the last yearthat got a lot of national publicity- from endangered to threatened, in recognition that around the country, in many places, eagles are 

coming back. We are clearly, now a year after that, en route to look 

at delisting all together. So we're moving in that direction. 

You're right. This is one of the success stories, which I think 

demonstrates that we can downlist, and if the evidence supports it 

on a national basis, in the next couple of years there is a substantial likelihood of a possible delisting. Mr. METCALF. And they can do that for the Puget Sound area 

without doing it for the whole Pacific Northwest or whatever? 

Mr. FRAMPTON. Well, under the law, you don't simply delist in 

this county or that State, or that area, in an arbitrary way. I mean, 

you look at the population as a whole. The same basis on which 

you list, you delist. 

I'm not familiar with the way in which the eagle was listed originally. There are some differences, for example, from Alaska and 

certain other parts of the country. It is possible that a regional population or subpopulation could be delisted, although that would depend on the science. It's very unlikely that we would, or that the 

law would permit delisting in one specific location like in Puget 

Sound and Long Island Sound but not in the rest of the country. 

Mr. METCALF. Western Washington even, because it's entirely 

different than eastern Washington. I guess I would like to have a letter from somebody telling me 

what they've done, backing up the reasons why they haven't. 

How do I go about submitting a petition? Just write a letter? 

Mr. FRAMPTON. Well, you could write a letter to the Director of 

the Fish and Wildlife Service, Acting Director John Rogers. 

Mr. METCALF. OK. Thank you very much. 

Mr. FRAMPTON. Or if you write it to me, I'll see that he gets it. 

Mr. METCALF. Thank you very much. I will do that. 

Mr. KAM. Mr. Chairman, I would just like to point out that in 

my packet there's the final signed report by the Citizens Committee on the BCCP, which was voted on last spring. You will see two 

signatures on the first page, which are a city councilman and a 

county commissioner, and then you'll see seven signatures on the 

second page, which are lobbyists or environmental groups. 

Then attached is a document by the sole landowner on the committee. There was one landowner. One out of ten was a landowner, 

and he was not even within the preserve. He was the landowner 

representative and he refused to sign it. There are two pages there 

on why he refused to sign it. 

So to say there's agreement with landowners is just a ludicrous 

statement. It's totally false and totally misinforming the public on 

this. 

When I did my survey back in the spring of '95, a full third of 

the people I contacted had no idea what was going on. Nobody had 

contacted them. Fish and Wildlife, the Parks Department, City of 

Austin, Travis County, the Federal Government, nobody had con-
20 

tacted them. I was the first contact to them that they were going 

to be in a preserve. A third of the people! 

The landowners in this plan were excluded. And the reasons are 

obvious. I'm not going to say our Travis County Commissioners or 

our Austin City Council are real bright people, but they're not stupid. I mean, if the Federal Government comes in with a plan and 

says, "Hey, guys, we're going to let you get 30,000 acres of parkland at no cost to you through this Federal program," what do you 

think? I mean, they're not stupid. That's what happened here. 

Thank you. 

Mr. POMBO. Thank you. Ms. Walley, you testified about the "no surprises" policy and your 

concern over that particular policy. I have been told that there are 

groups that are intent on challenging that, legally challenging that. 

Ms. WALLEY. Yes. 

Mr. POMBO. On what basis do you intend to legally challenge 

that policy? I don't expect you to give me a Supreme Court briefing, 

but just in layman's terms. 

Ms. WALLEY. Well, under the Endangered Species Act, essentially the 60-day notice letter that we filed, it was just Endangered 

Species Act claims that we raised. It basically is that, in a nutshell, the "no surprises" policy really 

narrows and almost precludes being able to-the Fish and Wildlife 

Service, when they enter into these plans, they have a duty to use 

all their authorities in order to preserve and protect a species, to 

not jeopardize a species, which is basically ensuring survival and 

recovery of that species. Basically what we're saying is that this 

policy does not further that and that the Service is in violation of 

that duty by enacting this policy. They are also violating really what the letter and spirit of Section 10 was when Congress enacted it in 1982. When Congress enacted Section 10, they were basically basing it on the San Bruno 

habitat conservation plan. They were using that as a model. In 

that plan, there was a section in there where they said essentially 

90 percent of the habitat, if further mitigation measures were going 

to be required, they would then go back and reevaluate the plan 

and assess further mitigation. In this instance, under the "no surprises" policy, the Services 

have essentially narrowed it down to where the mitigation measures are going to be limited to that, to the extent that only the Fish 

and Wildlife Service or the National Marine Fisheries Service will 

be able to implement further mitigation. 

The landowners aren't going to want to commit further money or 

land resources. It's now going to be up to the Fish and Wildlife 

Service to commit further land or resources, and they're going to 

have to pay for it. You know, I don't see anywhere in their policy 

where they show how they're planning to pay for this stuff. Mr. POMBO. The way that you describe this, if someone enters a 

county or a city, or a major property owner enters into an HCP, 

to mitigate multi-species in whatever they have listed at the 

present time in their particular area, and in order to pay for that, 

they have a mitigation fee-and we've seen a number of figures 

thrown around, but the one in the testimony here is $1,500. It 

would work out to $1,500 per house of new development. 
21 

So they develop this property and new housing goes in, and the 

people who buy those homes pay their $1,500 mitigation fee. Ten 

years down the road, there is another species that's listed. Do you 

propose that they go back to those home owners to put in more 

money to mitigate the new species that's being listed? 

Ms. WALLEY. You mean if the landowners put in a certain 

amount of money up front, they're not going to have to pay any 

more? 

Mr. POMBO. Well, the "no surprises" policy would be that this is 

all you have to pay, this is all the land you have to set aside. If 

you don't do that, what you're saying then is that we are now going 

to go back to those home owners who paid for the original HCP and 

we want them to kick in more money to mitigate against the next 

species. 

How would you propose that we go back to those home owners 

and have them re-up the money they're putting in? 

Mr. WALLEY. If the Fish and Wildlife Service can show that completely unforeseen circumstances have arisen, that they never could 

have anticipated at the time they entered into the HCP--

Mr. POMBO. I'll grant you that. 

Ms. WALLEY. [continuing]-and that they have to go back andrenegotiate the mitigation measures in order to prevent the extinction of a species, then they have to go back to the landowners and 

try to work out a way, to find out how to mitigate. If that requires 

the additional payment of money, it--

Mr. POMBO. Do you think, if that was the case, that anyone 

would enter into an HCP, if they knew they would be liable for the 

future? 

Ms. WALLEY. That has been the case. Before 1994, there were 

HCPs that were entered into and many HCPs that were in 

progress of being planned before this "no surprises" policy went 

into effect. It didn't stop those landowners from negotiating with 

the Fish and Wildlife Service. 

The other thing is, what we're trying to say is that, across the 

board, the "no surprises" policy is a bad idea. There are some circumstances that you could probably provide landowners with greater assurances, but to apply this policy in such a broad way, that 

is a bad idea. There may be instances where you have a very small 

project that's going in, and you have done all the scientific research 

and you know exactly what's going to be happening. You can pro- vide greater assurance. 

Mr. POMBO. But you wouldn't know-In your scenario that you 

drew out, this is for something that's completely unforeseen. I'm 

sure that when they're doing an HCP they think they've got the 

best science that they can have at the time and that's what they're 

basing their decision on. To me, it would not make a lot of sense 

to enter into an HCP unless you had some certainty that they were 

not going to come back on you. 

You know, I'm not totally opposed to HCPs, but a big part of the 

problem here is-you know, Mr. Kam talked about what happens 

to the private property owners in this process. That's one end, on 

the front end, as to what happens to those property owners who 

end up being habitat and what happens to their rights. What 

you're talking about is on the back end, where the people who al-
22 

ready felt like they mitigated their impact would be opened up 

again to the possibility of paying more into it. Because if you don't 

want Fish and Wildlife to pay for it, somebody is going to have to. That falls on the backs of the home owners again. This really opens 

up the door. Mr. Frampton, if she is successful, or if anyone is successful, in 

overturning the "no surprises" policy, or if a future administration 

were to repeal the policy of no surprises, how would that affect the 

HCPs who went in under the guise of their being a so-called "no 

surprises" policy? 

Mr. FRAMPTON. Well, the "no surprises" policy is just that. It's a 

policy. It's an announced intention to pursue a certain approach in 

these individual agreements, issued in 1994. The organization that Ms. Walley represents has sent us a 60-

day notice letter two years later saying they're going to challenge 

this policy because it wasn't sent out for public comment and it's 

not within the authority of the Act. We think that's meritless. When the policy has been used, and it's used differently in each 

case to adopt a specific agreement, with a landowner or a local or 

State government, then that agreement, it seems to me, is an 

agreement that the Federal Government has made with the individuals on the other side of the table and that agreement wouldn't 

be affected. Mr. POMBO. So what you're saying is that existing agreements 

would stand, but future agreements would be the ones that would 

be in doubt? 

Mr. FRAMPTON. Well, if a court were to rule that we did not have 

the authority to enter into these agreements, obviously, you know, 

it would put past agreements in some jeopardy. Mr. POMBO. And what would you do in that case? 

Mr. FRAMPTON. Well, we would probably-! think that's a hypothetical, but we would probably try to renegotiate the agreements 

to provide the same type of security, or they would be adjusted. We 

have said that we would like to see in reauthorization some provisions that help make it clear exactly what kind of assurances can 

and cannot be given and have that put into law. 

Mr. POMBO. Let me just ask you a final question. Has the administration put together in bill form, in legislative 

language, the proposals that you are describing that would codify 

the "no surprises" policy, changes that would be made to HCPs, 

ways to tighten up the science? Have you put in legislative language a proposal that would do that? 

Mr. FRAMPTON. I have to answer that by describing what we 

have done. As you know, two years ago we described the general principles 

of provisions we would like to see in a reauthorized act, that would 

help us in the HCP initiative. 

In the last six months, I and others working with me have put 

an enormous amount of time into working, in a very detailed way, with a number of both Republicans and Democrats in the House, and at times five days a week with staff for Senator Kempthorne 

and Senator Chafee and Senator Baucus, Senator Reid, to try to 

help them develop bipartisan provisions that the administration 

could support, based in some part on the Western Governors Asso-
23 

ciation proposals to do this. We have been working very closely for 

six months. So we have been engaged in incredibly detailed legislative drafting efforts for at least a year, to try to shape what might 

be in a consensus bill. 

Mr. POMBO. Is there a proposal that's been introduced? 

Mr. FRAMPTON. But we don't control the legislative agenda. 

Mr. Chairman, I saw that you put out a press release for this 

hearing that tried to blame the administration for the fact that the 

Endangered Species Act reauthorization hasn't moved forward. I 

mean, we don't control the Republican leadership. We have worked 

as hard as we can, for everybody who has asked us, on legislative 

drafting, to put forward the details of these bills. Ultimately, we 

can't tell the House of Representatives what to do. We would love 

to see the Act reauthorized. I think we've worked as hard as we 

can on the language of specific sections with Members on both 

sides of the aisle. We're very distressed by the fact that apparently 

this has all ground to a halt, but it ain't our fault. 

Mr. POMBO. Is there a proposal that has been introduced that the 

administration would support? 

Mr. FRAMPTON. I don't know that any of the Members we have 

been working with have introduced the proposals that we've 

worked with them on. I think there have been some things introduced that. have some of those provisions in them. The Western 

Governors Association produced a bill on these issues, which we 

largely supported. But I'm not sure that anything has been introduced in the last six months that reflects the efforts that have been 

going on by individual Members and Committee staff, to try to do 

drafting. 

Again, we don't control that. We can't-obviously, the administration can't introduce a bill itself. 

Mr. POMBO. You do control your own staff. Have you produced 

any legislative language as a proposal? 

Mr. FRAMPTON. The administration has not produced a bill, has 

not asked somebody to offer an administration bill. We have been 

trying to work with the majority and minority committee chairs 

and subcommittee chairs and staff to craft something that the administration could support, and we have spent an enormous 

amount of time on that in the last year. It's been very frustrating, 

I have to tell you. 

Mr. POMBO. I would like to thank the panel. Again, I apologize 

for the delays while you were waiting for us, but thank you very 

much for your testimony. 

I would like to also say that there may be additional questions 

to be submitted to you, and if you could answer those in writing 

as quickly as possible, we will hold the official record of the hearing 

open and give you time to do that. I'm sure there will be additional 

questions that will be presented to you. Thank you all very much. 

I would like to call up the next panel, Mr. Hugh Durham, Mr. Shawn Stevenson, Mr. William Brown, and Mr. William Snape. Mr. Durham, if you're ready, you can start. 
24 

STATEMENT OF HUGH DURHAM, WILDLIFE BIOLOGIST AND 

FORESTER, INTERNATIONAL PAPER COMPANY 

Mr. DURHAM. Thank you. 

Good afternoon. My name is Hugh Durham. I'm a wildlife biolo- gist and a forester for International Paper. My primary job responsibility is to manage threatened and endangered species issues for 

the company. I am here to share ideas about improving the Endangered Species Act, or ESA, from the perspective of private landowners and discuss some of our experiences with habitat conservation plans, or HCPs. 

Since 1993, our company has completed two habitat conservation 

plans. One was for the Red Hills salamander and covered 7,000 

acres of our land in south Alabama. The second, currently pending, 

was for the gopher tortoise. If approved, this will involve 194,000 

acres of company timberland in Mississippi and Alabama. 

A primary and overarching principle of my testimony today is 

that the HCP, while it can be a useful tool, is no "silver bullet." 

HCPs are expensive and not very many private landowners can afford them. Changes are needed in the law to make these plans 

more feasible for the folks who own most of the habitat in this 

country-the small, private, nonindustrial landowners. 

Our Red Hills salamander HCP requires us to halt timber harvest across 4,500 acres of the plan area. This land becomes a preserve for the salamander in perpetuity, and the company will receive no compensation for providing this public benefit. For the remaining 2,500 acres, we agree to manage timber in a modified way. It cost us $20,000 to develop the HCP, and we're spending another 

$5,000 a year in compliance costs. However, the most significant 

cost is in foregone revenue, about $2.5 million of timber that we'll 

leave standing in the preserve area, and will not harvest and regenerate. 

Our gopher tortoise HCP, because of the nature of the species, 

is less restrictive to our operations, but nonetheless represents a 

significant cost. Development costs have exceeded $75,000 and anticipated annual implementation costs will exceed $7,500. We will 

allocate 4,500 acres of our land to the management of longleaf pine 

and gopher tortoises as mitigation. In order to maintain adequate 

forage on the forest floor for the tortoise, we also propose carrying 

fewer trees per acre than we would otherwise carry absent the tortoise on that acreage and on acreage with existing tortoise colonies. 

Opportunity costs associated with maintaining fewer trees per 

acre over the life of a stand of trees to benefit the tortoise are significant. These actions will serve as our effort to minimize and 

mitigate incidental take on other lands we own with isolated tortoises in marginal habitats. So a point I make to you today is that HCPs can and do further 

the cause of conservation, but they can take years to develop and 

incur costs which are high for any landowner. Between the two 

HCPs we have entered into, we will forego millions of dollars of 

revenue on thousands of acres of land. Something must change to 

make the HCP a more viable option for the small landowner. After 

all, she is the one who owns most of the habitat. However, before 

I get into my recommendations, let me explain a little bit about 

who that landowner is. 
25 

I am about to share with you portions of a report we are currently developing with the University of Arkansas at Monticello 

that will be available to you in the early fall. Our report focuses 

on the forest ownership patterns among the private landowner 

community across 39 States in the eastern U.S. The information I 

present here summarizes just one of the regions included in that 

report and it includes seven States-Alabama, Arkansas, Louisiana, Mississippi, Oklahoma, Tennessee and Texas. There are 99 

million acres of total forest area in that seven State region. Twothirds, 66 million acres, are owned by private, nonindustrial landowners. Public forests make up just 10 million acres, 10 percent of 

that forested area. 

There are over 1.5 million individual landowners in this seven 

State region alone. Fifty percent own less than 500 acres. Twenty 

percent own less than 100 acres. In total, 52 million acres of the 

private forest are in individual ownership in this region. 

Twenty-two percent of the landowners are 65 years of age or 

older. Eighty percent live in the same county their land is in, and 

most have owned their land for over 20 years. 

HCPs and the ESA are not very attainable or attractive among 

these ownerships. Flexibility is needed to foster innovation, biological and political success, and to begin movement in that direction, 

here's what we would propose: 

Grant immunity from the Act to the private, nonindustrial landowner who voluntarily comes forward to develop and implement 

management plans for species of concern. This would facilitate 

early identification of these species and their conservation without 

excessive administrative cost. 

Now, this should be coupled with ongoing HCP initiatives by establishing mitigation banks. This would allow landowners like us 

the opportunity to generate income through the sale or trade of 

mitigation credits. Our company has already set aside thousands of 

acres as habitat through the two HCPs we've completed. There 

were no land swaps and no compensation from the government. 

As is the case within our tortoise HCP, we and other landowners 

are specially managing for listed species on our land. In return, we 

obtain permission to incidentally take across other portions of our 

land. The "other portions" I make reference to could just as easily 

be someone else's land, where fewer options are available. The 

ownership pattern in the eastern U.S. lends itself to an arrangement like this. This would allow the small landowner to engage 

HCPs and incidental take, but without obtaining his own HCP. Instead, he could operate in the Act via the bank's HCP and its incidental take permit. No surprises, safe harbor, mitigation banking, 

immunity for engaging early; all are good approaches, but none is 

fully effective unless all are available. None apply everywhere, but 

all will apply somewhere. When we say flexibility in the Act, this 

is what we mean. 

Skeptics will ask why big timber is an advocate of the little guy. 

The answer is because he owns the forest. His operating environment, in a sense, is ours. We compete for his fiber. Skeptics will 

also argue that immunity for the little guy will result in additional 

loss of habitat. This is invalid as habitat is being lost right now. 
26 

Adding the options I have discussed to the Act would establish 

a means for individual landowners to become participants in early 

species conservation efforts. Let's get started. Our company is willing to consider and engage the concepts discussed herein if they become part of a reauthorized Act. 

That concludes my testimony. Thank you for the opportunity to 

be here today. 

Mr. POMBO. Thank you. 

Mr. Stevenson. 

STATEMENT OF SHAWN STEVENSON, PRESIDENT, FRESNO 

COUNTY FARM BUREAU 

Mr. STEVENSON. Mr. Chairman, my name is Shawn Stevenson. 

I am presenting this testimony today on behalf of the American 

Farm Bureau Federation and the California Farm Bureau Federation. I am a farmer and rancher from the San Joaquin Valley in 

California. I serve as president of the Fresno County Farm Bureau. 

I am here today to testify about three subjects: the habitat conservation plan process under Section 10 of the Endangered Species 

Act; the proposed five-acre liability exemption; and the so-called 

"no surprises" policy announced by Secretary of Interior Bruce Babbitt. I will tell you why the HCP process and these two new policies 

provide no relief to the farmer and rancher. 

First, the so-called "no surprises" policy. This simply says that if 

you enter into an HCP agreement with the Fish and Wildlife Service, the incidental take permit will cover all species expressly provided for under the HCP, whether they are listed at the time the 

HCP is approved or later. However, the surprise in the "no surprises" policy is this: if the Service decides later that the HCP did 

not fully provide for an unlisted species, the HCP will have to be 

changed to add new protections or the permit will not cover that 

species. 

Additionally, there is no offer of take immunity for any species 

that was simply omitted from the plan because no one knew about 

it. The "no surprises" policy doesn't provide much security for farmers or other businessmen. As for the five-acre exemption, although it may help some residential landowners, it does nothing for the problems of the agricultural landowner. In fact, we believe it may unintentionally harm 

agriculture as well as endangered species by increasing the pressure for subdivision of agricultural lands to qualify for the exemption. As you know, our central valley agricultural lands are being 

lost at a tremendous rate to urban development right now. 

Now to address the habitat conservation plan process. There are 

basically two HCP processes-the single species, single project 

HCP, and the regional, multi-species MHCP. The HCP was designed to facilitate large, single landowner projects and urban developments. The regional MHCP was developed primarily for urban 

development on a broad regional scale. I stress this so that you will 

understand that both types of HCPs in California are ultimately in 

urban build-out permits. They do not help agriculture to deal with 

the ESA and, in fact, they make things worse. And here's why. 

Farmers can't afford an HCP. This is a terribly expensive process. Land surveys may take years to be conducted and financed. 
27 

Once the potential impacts on species are identified, mitigation 

must be paid. This mitigation involves either lump sum payments 

or arbitrary fixed land replacement ratios. Ratios of three to one 

minimum for conversion of rangelands and one to one for prime agricultural lands are common. 

HCPs, and especially the big MHCPs, tend to squeeze agricultural lands out of an area. First, we are displaced. Agriculture cannot relocate when urban sprawl pushes it out because agricultural 

products simply cannot cover the cost of mitigating the cultivation 

of new land. Second, the arbitrary mitigation ratios target ag land for acquisition by developers, since they pay less mitigation for the conversion 

of cultivated agricultural lands. 

Third, agricultural lands are targeted for use as habitat mitigation since zoning makes them the cheapest lands to acquire and enhance for habitat. Agricultural lands, in effect, become the mitigation for habitat conservation plans. 

I am not here today to tell you only about the problems with 

HCPs, but also to offer a potential solution. In California, a number 

of producer groups have developed and presented to the California 

Department of Fish and Game and the Fish and Wildlife Service 

a plan, referred to as HELP-the Habitat Enhancement Landowner Program. It would be a voluntary plan that would protect 

farmers and ranchers from liability under the Endangered Species 

Act, and at the same time encourage the protection and enhancement of habitat and endangered species. I will submit a copy of our 

proposed HELP program with my testimony, and I ask that you 

give it serious consideration. 

I will be happy to answer any questions from the Committee. 

Thank you. 

[Prepared statement of Mr. Shawn Stevenson may be found at 

the end of hearing.] 

Mr. POMBO. Thank you. 

Mr. Brown. 

STATEMENT OF WILLIAM R. BROWN, VICE PRESIDENT FOR 

RESOURCE MANAGEMENT, PLUM CREEK TIMBER COMPANY, 

ACCOMPANIED BY LORIN HICKS, DIRECTOR OF FISH AND 

WILDLIFE RESOURCES 

Mr. BROWN. Good afternoon, Mr. Chairman. My name is Bill 

Brown and I'm vice president with Plum Creek. I am accompanied 

by Dr. Lorin Hicks, who is our Director of Fish and Wildlife Resources. I appreciate the invitation to discuss our recently completed Cascades Habitat Conservation Plan. 

I would like to use my limited time to discuss three aspects of 

the plan, first, why did we decide to do it; secondly, the costs and 

benefits of the plan; and lastly, additional actions to address land 

exchange. 

The HCP encompasses about 170,000 acres of our land, the I-90 

corridor located in the central Cascades Mountains of Washington. 

To understand why we did this plan, two business realities must 

be understood: Plum Creek's landownership pattern and the impact 

on the company of existing and future regulations under the ESA 

and in the State of Washington. 
28 

This map here to my left is very typical of much of Plum Creek's 

two million acres in Montana, Idaho and Washington, which is 

intermingled with Federal land in a checkerboard ownership pattern. If I could just explain this further, this is about an hour east 

of the Seattle area. To the north is the Alpine Lakes Wilderness 

Area, the most heavily used recreation spot in Washington State. 

To the South is Mount Rainier National Park. The middle of that 

represents the eastern edge of the marbled murrelet territory. It's 

one of the richest spotted owl habitats in the State, and the northern half of that represents the southern portion of the Cascades 

grizzly bear recovery area. You can imagine how much fun we're 

having. 

So it was our decision in 1994 to begin negotiation with the Federal agencies on an HCP. Our HCP is significant, in that it not 

only mitigates for the spotted owl and three other listed species but 

281 unlisted species found in the area. 

In effect, we have agreed to provide benefits for all the numerous 

fish and wildlife species in the area, even before they reach the 

point where they're at risk and need to be listed. 

We are motivated to provide this level of benefit for two reasons. 

The first is due to the commitment made by the government to not 

impose additional regulations for species covered by our HCP 

should they ever be listed in the future , the pre-listing agreement. 

Second was the commitment of the government to not impose additional costs on the company, except in extraordinary circumstances, 

the "deal is a deal" or "no surprises" policy. 

We invested two years and over $1.3 million in the development 

of this habitat conservation plan. Although it was strictly a business decision, designed to produce a stable regulatory environment 

for the company's long-range planning, the public clearly benefits 

as well. We will exceed virtually every State and Federal standard 

for environmentally acceptable timber harvest in exchange for stability, to plan harvests, and obtain an acceptable economic return. 

The pre-listing agreement and the "no surprises" policy, criticized 

by some, are the most important elements of our agreement with 

the Federal Government. Without them, there would be no incentive, commitment or contract. This HCP is the product of two 

years-actually, many more years than that-of scientific work and 

unprecedented public input, involving the work of over 20 scientists 

and technicians, with review and input of over 47 outside peer reviewers. It included over 50 public meetings. 

It is important to note that the implementation, research and 

monitoring costs associated with the HCP are covered by the company. The Federal Government will not be asked to subsidize this 

plan. 

Mr. Chairman, you requested information on set asides and other 

costs. There are over 30 separate mitigation measures outlined in 

the plan. A few quick examples of this: we have agreed to defer 

harvest on 2,600 acres of spotted owl nesting habitat for at least 

20 years in order to protect productive owl sites and bridge the gap 

between short-term habitat loss and long-term recovery of habitat 

on Federal lands. 

We have also agreed to harvest selectively 3,200 acres in order 

to maintain habitat connectivity between late-successional forests 
29 

on Federal land in this complex checkerboard ownership. We will 

provide 200-foot forested buffers along fish-bearing streams. These 

buffers benefit a variety of fish as well as wildlife species, and represents millions of dollars of timber at today's values. 

My earlier description of the I-90 corridor indicated the difficulties we have with recreation, aesthetics and management efficiency. Clearly, a land exchange would offer an excellent opportunity to address these remaining issues for the company and for 

the Forest Service. 

We have identified about 39,000 acres currently unaccessed by 

roads, which have been prioritized through discussions with many 

public groups over the past two years. The Forest Service is in the 

process of identifying suitable timberlands that could be exchanged 

to Plum Creek. 

This Committee has been a voice for reform in many resource 

management areas, and I would like to suggest that one of the 

most positive steps that you could take would be to streamline the 

land exchange process to accommodate "win win" proposals such as 

this one. Over the past several months, Plum Creek has worked 

with Congressman Hansen on H.R. 2466, a bill designed to facilitate the burdensome and time-consuming land exchange process. 

In addition, we are encouraged that land exchange language has 

been made part of major ESA bills, including your proposal, cosponsored by others on this Committee. 

Mr. Chairman, this Committee can help public/private resource 

partnerships in many ways, but two specific suggestions will conclude my remarks today: 

Encourage Federal agencies to continue the prelisting and "no 

surprises" policies and streamline the HCP process to reduce costs 

and duplicative requirements. The best encouragement would be to 

provide explicitly for these mechanisms in the ESA. 

Secondly, enact H.R. 2466, Mr. Hansen's land exchange bill. 

Plum Creek is proud of its HCP, its conservation agreements and 

land exchanges to protect public resources and promote regulatory 

predictability. Although these processes are not perfect, as you 

have heard, they solve problems and deserve a chance to prove 

their worth. They represent both substantive conservation measures and sound business decisions. 

Thank you for your time. 

[Prepared statement of Mr. William R. Brown may be found at 

the end of hearing.] 

Mr. POMBO. Thank you. 

Mr. Snape. 

STATEMENT OF WILLIAM J. SNAPE, III, LEGAL DIRECTOR, 

DEFENDERS OF WILDLIFE 

Mr. SNAPE. Mr. Chairman, thank you for the opportunity totestify before your Committee this afternoon regarding habitat conservation planning and other private land initiatives under the Endangered Species Act. My name is William Snape and I am Legal 

Director for Defenders of Wildlife. 

Conservation of species on private land is, by far, the biggest 

challenge facing Congress as it seeks to reauthorize the Endangered Species Act. While Defenders is supportive of the concept of 

35-090 96-2 
30 

habitat conservation plans to address this challenge and, indeed, 

has supported some plans in the very recent past, we do possess 

concerns about the direction these plans now appear to be taking. 

Since 1993, the Clinton Administration has approved more HCPs 

than the Bush and Reagan administrations combined, and has 

many more in the pipeline. However, linked with this progress are 

serious conservation risks, probably best exemplified by the socalled "no surprises" policy. This policy, while well intentioned, 

unjustifiably places the burden of all future and natural events, 

human and natural, upon the public and wildlife without any 

meaningful contribution from the private property owner. I believe 

this dynamic is the result of political pressure by some to remove 

Federal oversight over all habitat protection. 

This is not at all to disparage the notion of regulatory certainty 

or to downplay its importance. However, if this nation is to keep 

its commitment-and I quote from the Endangered Species Act-

"to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved", 

then a regulatory certainty must be tempered by honest, scientific 

assessments of species trends and needs. New information or circumstances can reveal flaws in the noblest conservation objectives, 

leading to a species decline or even extinction. 

Now, I would actually like to discuss the recently approved Plum 

Creek HCP, which I wholeheartedly admit is a very good start, but 

that I believe possesses three problems. Those three problems are, 

one, the temporal scale, two, some continuing scientific questions, 

and three, the plan's monitoring requirements. First on the temporal scale. Plum Creek has received a 50-year 

permit, which makes adaptive management for wildlife almost impossible. For example, we do not believe anyone can predict the 

breeding and habitat needs for 285 vertebrate species between now 

and 2046. Could one imagine predicting the present breeding and 

habitat needs of the northern spotted owl in 1946, the year after 

World War II ended? I don't think so. For this reason, Defenders 

of Wildlife strongly believes that permits should be of more limited 

duration. 

Scientific questions. Throughout the plan, terms such as "forest 

health, watershed health," and "suitable vegetative cover" are used 

in ways that are either ambiguous or of great contention. There are 

also a number of highly optimistic assumptions about habitat quality and wildlife populations in the plan which impact the treatment 

of roadless reserves, wildlife corridors and riparian areas that Mr. 

Brown just spoke about. Many of the studies supporting these 

claims have not been peer reviewed, or some were done by Plum 

Creek itself. 

With regard to monitoring, monitoring is absolutely vital to any 

long-term conservation strategy. Unfortunately, we believe this 

plan lacks enough concrete and binding steps to monitor compliance. The burden should be on the profiteer, not the public, to demonstrate that a public resource-in this case wildlife-is not being 

damaged. 

Well, what are our solutions? There is no single solution to private land conservation. It is a great challenge. Still, the environmental community and, indeed, some industry representatives, 
31 

have begun to articulate three prominent themes that hold the potential answers to our questions. Those three themes are sound 

science, a secure source of funding, and public involvement. 

With regard to sound science, conservation agreements with nonFederal landowners must meet rigorous conservation standards 

and be based on sound science and recovery goals. Conservation 

plans that specifically include "no surprises" assurances should include measurable objectives for achieving conservation goals, distinct mechanisms to ensure their monitoring, and plans for adaptive management. 

With regard to funding, what in many ways, Mr. Chairman, may 

be the key issue facing our private land challenge. This Congress 

will only succeed in updating private land conservation if it directly 

confronts the long-standing problem of inadequate funding. 

We all know that the Act is underfunded. Yet, just this year, for 

the fiscal year 1997 budget for the Department of Interior's HCP 

program, the House cut that program by 25 percent. What I think 

we need is a dedicated funding source for the Endangered Species 

Act. 

Lastly, with regard to public involvement, we agree that everyone should be involved that wants to and need to be with habitat 

conservation plans. As HCPs become more common, we are hearing 

more complaints from local citizens about exclusion from some deliberations. 

Mr. Chairman, in conclusion, we are absolutely at a historical 

crossroads with regard to private land conservation. The Clinton 

Administration, I believe, deserves some credit for attempting to 

forge new ground. And while Defenders rejects the regulatory approach in some of the reauthorization bills of this Congress, we also 

like some of the incentive proposals contained in companion bills. We believe those provisions deserve continued attention. 

I predict that the 105th Congress will reauthorize the Endangered Species Act with bipartisan support for legislation that 

squarely addresses this private land challenge. Any legislative solution in the final analysis must be economically credible, but it 

must also be scientifically supportable and publicly accountable. 

Thank you, Mr. Chairman. 

[Prepared statement of Mr. William J. Snape, III may be found 

at the end of hearing.] 

Mr. POMBO. Thank you. 

Mr. Snape, there were a number of issues that you hit on specifically. One of those is questioning the science that's used in HCPs 

in general. One of the points you brought out was on peer review 

and who produced the science and so on. 

Is it your opinion that when you are establishing an HCP and 

developing biological data, that all of that data should be peer reviewed and go through the rigorous scientific process to determine 

that it's as accurate as possible? 

Mr. SNAPE. I don't think that would be very realistic. I certainly 

understand the fact that on some of the scientific issues that Plum 

Creek in particular based their conservation plan on, they had to 

do the best they could. But we did a little study with Defenders' 

staff on exactly how many of the articles and studies were peer reviewed. It was about 20 percent of all studies cited in the plan 
32 

were peer reviewed. If I'm incorrect on that, I would welcome to be 

corrected. I believe it was around 20 percent. I just think that number ought to be higher. We ought to be having the soundest science as possible. That's my point. I don't think 

we're ever going to get to a hundred percent, and I acknowledge 

that in some instances Plum Creek had no choice but to do their 

own studies. 

Mr. POMBO. But even if they do their own studies, should they 

not be peer reviewed to determine whether or not they were accurate? 

Mr. SNAPE. I think, while we are firm believes in science and implementation of the Endangered Species Act, you could effectively 

strangle any good-faith attempt at solutions with continued scientific analysis. At some point I acknowledge that you need to 

move forward. 

I think that's why I focus on this 50-year permit. I understand 

why Plum Creek wants certainty. I have talked with Plum Creek 

representatives about what they want out of this. I understand 

that. I just think 50 years is a bit too long. I think as Congress 

takes a look at the "no surprises" policy, I hope they take a look 

specifically at that time limit. You know, it's hard to know in 50 

years what we're going to need to do. There are many things that 

are out of our control. 

Mr. POMBO. Mr. Stevenson, we heard from two different property 

owners about the HCP process and what they went through. In your experience, do you feel that the process that they have 

described is a usable process for most property owners, particularly 

the farmers and ranchers like we have in the San Joaquin Valley? 

Mr. STEVENSON. Mr. Chairman, in my experience, while the 

HCPs, in theory, offer some hope and might be workable, I think 

in reality, especially for agriculture, they have proven to be otherwise. 

Again, to go back, cost has a lot to do with that. Also, just land 

patterns and landownership patterns. As we have seen in our negotiations with the Fish and Wildlife Service, they seem to be too 

stuck on the handbook right now rather than trying to figure out 

ways to come up with a plan that will actually work and improve 

endangered species habitat, and at the same time provide protections for private property owners. The way I view this process, we need to come up with plans that 

make both work, where you can accomplish habitat protection and 

protection for species and protect the interests of property owners 

at the same time. I think it's possible. 

Mr. PoMBO. In California, the average farm is somewhere around 

a couple hundred acres. It's much smaller than that in other 

States. You heard the process that was described that Plum Creek 

went through, that International Paper went through. How would you come to any kind of an agreement similar to 

what Plum Creek did if you've got 200 acres that you're trying to 

farm? 

Mr. STEVENSON. That's exactly part of the problem. Additionally, what about your neighbors? Let's say that you enter into an agreement with Fish and Wildlife and you encourage endangered species 

on your property. How does that impact your neighbors when those 
33 

species migrate over to their properties? So there are a number of 

concerns. 

Mr. SNAPE. Mr. Chairman, could I just add one thing that's relevant to California? 

Mr. POMBO. Sure. 

Mr. SNAPE. I actually think HCPs are workable. I have raised a 

number of criticisms about what I don't like in the Plum Creek 

HCP, but particularly in California, we would like to work with the 

California Farm Bureau on the San Joaquin kit fox HCP. In fact, 

we have called the Farm Bureau a half-dozen times and our phone 

calls haven't been returned. 

We think it is workable, and this is an invitation right now to 

work with you. I'm not saying it's going to be smooth sailing every 

step of the way, but I think, if you really put the effort into it, you 

can do it. I don't think it is unworkable and I think the San Joaquin kit fox is an opportunity to correct that. 

Mr. STEVENSON. Mr. Chairman, if I can respond, I brought a picture with me, which I think a picture oftentimes is worth a thousand words. 

On my right, your left, is a picture of a canal. It's what we would 

call "clean farming". Vegetation has been sprayed. Basically there's 

crop and infrastructure and that's it. There is no habitat in the 

field margins or anywhere else. The reason for that, in large part, is because of the disincentives 

that the Endangered Species Act and the current process holds for 

farmers and ranchers. Habitat and the presence of an endangered 

species is now a liability. 

I think that if the formula were to be changed to bring along the 

cooperation of landowners, you could have what you have on the 

left-hand side, which is a wetlands area which happens to be on 

my family's ranch, that was built by my grandfather. Now, I have talked about disincentives. That wetlands right 

there has actually caused us problems. Because of that, we've had 

the Army Corps of Engineers and others come in and want to begin 

to regulate because of that wetland area that we created and enhanced and allowed to exist. 

Again, we have got to find a way to remove the disincentives and 

increase the incentives, and bring along the landowner as a partner 

in the process. 

Mr. POMBO. Mr. Durham, in your statement you talked about the 

challenges that International Paper had, but you also brought out 

the land use patterns in the east, particularly in the southeast, and 

how you felt that there could be a way of bringing in some of the 

smaller property owners into this process. 

Do you think that it's realistic to be able to bring in small property owners with the land use pattern that you have in the south 

today, that it's realistic to be able to do that? 

Mr. DURHAM. Under the Act as it's currently structured now, I 

do not. The incentives to not lean into the Act if you're a small, private, nonindustrial landowner in the east, are just too great. I just 

don't think people are going to want to do it. 

When you look at the acreage and the numbers of people involved, it's going to take significant change, because you're talking 

about creating a movement that would really have to be significant 
34 

and affect millions of acres. That would be how I would respond. 

I do not think it's realistic. 

Now, if some changes were--

Mr. POMBO. With some of the realistic reforms that have been 

proposed over the past couple of years-and I know you're familiar 

with the bill that I introduced-if that were to become law, would 

it then be possible to bring in some of these small property owners 

and try to work out some type of a cooperative agreement that 

would be beneficial to the wildlife in that region? 

Mr. DURHAM. I think so. Yes, I think so. It would certainly create 

opportunities where they don't exist right now for a lot of those 

landowners, I think. 

I guess what I'm suggesting through my testimony here is, while 

we're at that point, why don't we just go ahead and supercharge 

it and go right to the heart of some of these things and, while we're 

hanging here on this opportunity, really try to leverage it. I think 

if we could do that, through some of the principles that you 

brought forth in your proposal that you mentioned, we would see 

greater participation among the small, private, nonindustrial landowners, or at least the opportunity for it would certainly be higher. 

I would agree with that, yes. Mr. POMBO. If we did that and increased the number of people 

that participate in that, the private property rights of those small 

property owners would be protected in that process, because then 

it would become a cooperative agreement, a voluntary agreement, 

to bring them in. Then the disincentive that Mr. Stevenson talks 

about would no longer be in existence. 

You know, I have been down in that part of the country and I 

have seen some of the same things in your part of the country. It's 

timberland, and in the San Joaquin Valley it's farmland. But we 

literally have people managing their properties in a way that is a 

disadvantage to the wildlife because of that. Mr. Brown, the process that you went through-and you went 

through a very extensive, long-term process that involved not only 

the HCP process but also attempting to do land exchanges in that 

to make it all work, to make it all fit together. How would small 

property owners be able to be brought into what you did? 

Mr. BROWN. Well, we have involved a handful of small property 

owners in this area in our work, we provided information to them, 

sort of a technology transfer if they choose to participate. We certainly haven't diminished their opportunity. We haven't assumed 

anything for them. So they can pretty much do as they please and 

are not impacted by our land management strategy. That said, if they wish to participate, I think the door is probably 

open for some sort of short form HCP at the office in Olympia, WA, 

where they don't have to start from scratch and do the research 

and spend the money we did. Mr. POMBO. Because that's what you've done, the research and 

all theMr. BROWN. We've done the work. All the owl work, there's 108 

owl circles on our land, and a lot of those owl circles, in fact, are 

on Federal land, other land. So we did the research over the total 

half million acre planning area. So they could come into it. 
35 

The State of Washington is already in that area. They're doing 

their own HCP. You heard that. Boise Cascade is doing some sort 

of landscape plan there. There is only a handful of small private 

owners. Frankly, their incentive is obviously to harvest their trees 

and not have spotted owls there, so it may be too late for that kind 

of protection. 

Mr. POMBO. So if you have a couple hundred acres, it would not 

be very realistic to venture into the kind of program that you guys 

did? 

Mr. BROWN. I think you would think hard and seriously about it. 

The other concern, though, for property owners in this area is not 

just the Federal Government strategy. The State of Washington 

has its own regulatory design in place. This is a special emphasis 

area. That's what they call it in the State of Washington. They 

have their own owl rule for this area. It's the third owl rule in the 

last five years. So a landowner needs to be concerned about State 

regulations as well. 

The HCP allows you to test out of some State rules, so there is 

some incentive for landowners to get into an HCP to avoid the 

State regulatory hammer. 

Mr. POMBO. Would the company have entered into this HCP in 

the event there was not a "no surprises" or "a deal is a deal" policy? 

Mr. BROWN. I think it would have been very difficult for us to 

make that business decision. As you heard earlier, we invested a 

lot of up-front money. We have made a significant permanent reduction in harvest, tens of millions of dollars. 

If we didn't have that kind of assurances, I think we would think 

seriously about another strategy, which frankly is not particularly 

in keeping with our environmental principles. It certainly wouldn't 

be friendly to the biology of the species in the area, ones that are 

unlisted particularly, as well as the spotted owl. The spotted owl 

circles in that area are moving circles. We would spend a lot of 

money chasing those owls around, finding out where they are, and 

we would be behind them harvesting to ensure that they wouldn't 

do well. 

I mean, our incentives would be perverse without the "no surprises" policy. 

Mr. POMBO. Go ahead, Dr. Hicks. Mr. HICKS. Congressman, I just wanted to comment on a few of 

the statements made here today. First of all, with regards to the "no surprises" policy, we essentially suspended the "no surprises" policy in some key areas within 

our HCP, and there is a chapter written in there on the notion of 

adaptive management. We identified some key leaps of faith in the 

HCP process, how models work, how riparian protection areas function, and we made those the target of specific research and monitoring activities with regards to targets that we hoped to achieve 

in the HCP. If we don't achieve those targets in the HCP, then that 

becomes the topic of conversation and revision in the HCP with the 

Service as we move forward. So we attempted to temper the "no surprises" policy with some 

good opportunities for adaptive management in viewing the HCP 
36 

as a management experiment, that we could then learn how to do 

some of these things. 

With regards to adaptive management and the strength of the 

science, I just wanted to point out the documents. This is the plan. 

These are the NEPA documents, the final draft environmental impact statement used to support the plan, and here are 13 peer reviewed technical reports that were used to provide the scientific 

foundation in two volumes. This provided us a lot of information 

to go on. 

But in terms of peer review on that, we did have the benefit of 

peer review by over 47 outside folks, including State and Federal 

biologists involved in the development of the President's forest 

plan. All reports were sent out for . peer review, and folks that had 

either contributed information or had expertise were given the opportunity to comment. 

So I feel we have made the best effort possible to obtain outside 

review and incorporate those comments in the final papers. We are 

now submitting those papers for professional publication in anumber of journals because they provide very good "stand alone" opportunities to evaluate resource conflicts in forested environments. As an example of adaptive management in our process, watershed analysis has been talked about here a little bit and I just 

wanted to say the watershed analysis process we are doing now is 

very collaborative, involving tribal, local landowners and agencies, 

and every five years the remedial prescriptions developed in the 

watershed analysis are sent up for review based on monitoring 

data acquired by us, the tribes, and other interested parties. So basically, that hasn't' changed in terms of the HCP. Every five years 

we'll be looking at watershed analysis, does it work in these basins, 

and we'll be doing watershed analysis in 20 basins in the HCP area 

and getting those all done within five years, and then evaluating 

them every five years after. So there's a considerable amount of review and revision of information as we acquire it. Nobody else would be acquiring this information if it wasn't for 

our HCP. We're providing all of the funding for that. The information we're gathering we're sharing not only with small landowners, 

to address your concern, but also with the State and Federal agencies. 

Mr. POMBO. Thank you. 

One final question that I wanted to ask Mr. Snape. I take it that 

you heard the testimony previously on the Balcones HCP, and 

there's been talk about the Riverside HCP, the Orange County 

HCP. 

If you set up an HCP like that-and this is something that's different than what Plum Creek did-if you set up an HCP like that 

and you have people that are inside and outside, and those that are 

outside can mitigate and pay into a fund somewhere, and those 

that are inside the habitat basically are restricted as to what they 

can do with that particular property, what do you foresee happening with the property that is inside the HCP that becomes habitat 

or preserve land? 

Mr. SNAPE. Well, I'm not convinced that the habitat value is 

going to decline to the extent certainly that was testified to. I am 
37 

not at all sure that some of the numbers thrown out had entirely 

to do with the Endangered Species Act. 

You know, on the mitigation costs being sort of labeled as "ransom", my view of how it is you put one of these plans togetherand the Balcones is a good example of that-is that you're talking 

about an infrastructure cost. You're talking about it as you would 

highways, as you would water systems. You're talking about the 

public coming up with a structure to deal with the costs of protecting wildlife. 

I'm not going to sit here and tell you that protecting wildlife is 

a free lunch. It's not. I think that's why we all need to talk about 

how we share that cost in a fair manner. Mr. POMBO. And for the people that are in the mitigation area, 

that are outside of the preserve, they are making a conscious decision. When they purchase a house, they know that they are purchasing that house-or at least in California they would have to 

know-that they're paying "x" number of dollars into a mitigation 

fund. They would have to know that and they would be making 

that decision, full disclosure. 

The people who are inside the preserve, though, are in a little 

bit different situation. What happens to them? Do they forever remain-in this instance we're talking about agricultural landwould it forever remain agricultural land? 

Mr. SNAPE. Well, the deal with the Balcones situation is that Assistant Secretary Frampton was right. The details of that were 

fleshed out at the local level. That model has not been mimicked, 

as far as I can tell, elsewhere around the country. That is not the 

plan that the Secretary of Interior, as I understand it, has for all 

other HCPs. Although I would be happy to research it and get back to you 

with my opinion, I am not ready to tell you right now exactly what 

I think happened to the people within that preserve. But that is 

not the common practice throughout all other HCPs. That is unique 

to that particular planning process. 

Mr. POMBO. What is unique about it? 

Mr. SNAPE. The fact that they have set up a preserve insideat least as you describe it, and again, I don't know the details of 

it. But if, indeed, it's being described as preserve that is "hands 

off', that is radically different in every other HCP that I have 

looked at. 

I have looked at almost every other HCP in California. Heck, I've 

looked at these documents as a lawyer and it gave me a headache. I have looked at a lot of these HCPs and none of them have that 

type of preserve "hands off' that has been described here today. I'm 

not sure whether that is a true characterization of that plan or not, but if it is a true characterization, it does not carry that that's the 

case with other HCPs. I know that for a fact. 

Mr. POMBO. I still want to go back to you, so don't push your 

microphone away. 

At International Paper, you have a preserve on your HCP? 

Mr. DURHAM. On the Red Hills salamander HCP, there's 4,500 

acres that is "hands off'. It has $2.5 million worth of timber on it. 

We don't cut trees there. Mr. POMBO. And did you--
38 

Mr. SNAPE. That's a part of a single ownership, though. Mr. POMBO. You didn't receive any compensation on that property that you set aside? 

Mr. DURHAM. No, sir. Mr. POMBO. So the Riverside example, the Riverside/San 

Bernardino HCP, they have land that is set aside as part of the 

HCP. The Orange County HCP has land that is set aside as part 

of the HCP. The South Coast HCP has land that is set aside as 

part of the HCP. 

I'm not exactly following-- Mr. SNAPE. The difference is, as it has been described in 

Balcones-and again, Balcones is one of the HCPs that I'm the 

least familiar with. But with regard to International Paper's HCP, 

with regard to Plum Creek's HCP, with regard to the Orange 

County HCP, you don't have a situation where the preserve is affecting multiple residential or commercial landowners. It is a part 

of a larger plan. Whereas part and parcel of allowing development 

in other areas in the planning area, where you're allowing incidental take of listed species, you're creating these preserves. That's what Congress intended in 1982. That is different than at 

least how it has been described to me in Balcones, where there are 

different individual landowners who have been somehow saddled 

and stuck with a preserve-at least that's how it was presented 

today by at least one landowner. What I'm saying is, that characterization is different than all other HCPs I haveMr. POMBO. Are you saying that in the Riverside HCP the land 

that was set aside was all owned by one person and that that 

was--

Mr. SNAPE. No, but that was a part of the original plan. Those 

landowners all-that was a part of the deal. 

I think in Riverside, I think that was an equitable result. 

Mr. POMBO. A deal with who? Between the people who wanted 

to develop and the Federal Government? 

Mr. SNAPE. Yes, and the local governments, yes. Mr. POMBO. What about the people who owned land within the 

preserve, or within the land that was set aside? Because I've heard 

from Riverside and the South Coast and Orange County, and the 

different HCPs that have been set up, that the people-and this is 

very similar to what you heard earlier in terms of what the gentleman was talking about with the Balcones-that the people who 

were in the preserve were not part of the agreement. They became 

part of the agreement when it was signed, but as it was being developed, they were not part of it. They become the habitat that allowed someone else to develop. Mr. SNAPE. In Orange County the situation was that they actually purchased that preserve. The whole HCP was premised upon 

that acquisition. In Plum Creek, you did have single ownership, and in the International Paper situation you did have single ownership. That's how 

those HCPs were framed. 

Mr. POMBO. One of my great concerns with this whole HCP process-and it's one of the things we tried to address in the bill that 

I introduced-is how you treat the individual property owners who 

end up being someone else's habitat. I know that's not exactly accu-
39 

rate because, you know, you can claim it's all habitat now. But they 

end up being, because of a land use decision, that is a Federal land 

use decision, they end up being put in a position of permanent 

habitat. 

This one example I have in front of me that deals with Orange 

County, it's a 75-year agreement, that that property is going to end 

up being set aside for 75 years. If I happen to be the person who 

owns that property, and I wake up one morning and find out that 

I'm habitat for the next 75 years, not only am I concerned shortterm but long-term I'm concerned about my ability to continue to 

farm that. 

Mr. SNAPE. I think the answer in those situations is the "safe 

harbor" policy, which again I have some concerns about the details 

of how it's implemented. I think the whole notion with the "safe 

harbor" policy-and it's true with the example we see with created 

wetlands here-is that the Fish and Wildlife Service is attempting 

to go out and say that if landowners do manage their land at a certain baseline level, that they're going to get a degree of regulatory 

certainty. Again, that basic play, that basic approach, I don't have 

a problem with. I do have a problem sometimes with how it is actually implemented with details. 

The other thing I would point out, too, about agricultural land 

in California, as you probably know better than I do, the biggest 

threat to agricultural land in California, particularly in northern 

California, is urban development, is developers. They want to put 

in condos, they want to put in strip malls. That's the number one 

threat to farmers, in my opinion, in northern California. 

I think that's when-you know, sometimes you ask the wrong 

questions. I think the right question would lead you to perhaps 

looking at estate tax relief for some of those agricultural owners in 

northern California. I don't think it's always the Federal Government and the Endangered Species Act that is singlehandedly creating some of these economic problems. 

Mr. POMBO. I would like Mr. Stevenson to respond to that part, 

in terms of safe harbor. Go ahead and respond to that first. 

Mr. STEVENSON. First of all, we will welcome any estate tax relief 

we can get. I would be happy to testify about that as well. 

Mr. POMBO. That was in my bill, too. Go ahead. 

Mr. STEVENSON. Specifically about safe harbor, the problems that 

we have seen in negotiating with the Fish and Wildlife Service are 

their ideas about establishing baselines and then the monitoring 

process. Right now, out there in the real world, there is tremendous distrust and animosity between landowners and the wildlife agencies, 

to the point that you will not get these kinds of HCPs or any other 

kind of cooperative programs through unless that level of distrust 

is dialed down, on both sides. 

The way I do that is addressed through the Habitat Enhancement Landowner Program, which would be an HCP safe harbor 

program that would be voluntary. It would come up with new ways 

to address the baseline problem and the monitoring problem, so 

that landowners could have a level of comfort, where, number one, 

they are being protected from the liability incurred because of habitat or the presence of endangered species, but at the same time 
40 

those landowners would agree to certain management practices, voluntary management practices, to enhance habitat. That's what 

I view as a "win win" situation. Mr. POMBO. We're going to wrap this up. Mr. Snape, I'm getting back to something I asked you before, but 

it kind of bothers me a little bit. Earlier in the week I had the opportunity to meet with a number of scientists who work for the 

Federal Government. There was probably close to two dozen of 

them that I talked to, over a period of a day or so. 

I asked them the question about peer review. They all responded 

the same way, that their agency would never consider releasing 

any kind of scientific information that had not been peer reviewed. 

And yet, when we talk about wildlife, when we talk about doing 

some of these things, everybody says we can't expect to have it all 

be peer reviewed, as if in this one particular scientific arena peer 

review is optional. 

Mr. SNAPE. I think the confusion is over the definition of peer review. I mean, when Dr. Hicks talked about peer review of their 

plan, I have no doubt that it was peer reviewed by the very folks 

within the Federal and State government that he said peer reviewed it. But that is different than independent peer review. 

This is the same debate that you've had with others on the listing process, and for the moment we've agreed to disagree. I think 

we're getting closer. But, you know, the Fish and Wildlife Service 

already does peer review of listing decisions. Now, is that peer review independent? 

Mr. POMBO. No. Mr. SNAPE. Probably not. Right. So what we're talking about isn't 

whether we're going to do peer review or not; we're talking about 

what type of peer review. I'll tell you, I would be more than happy to resolve the issue of 

peer review, because if there's one issue that we all agree on, it is 

that we should be basing these decisions on the best possible 

science. But I will repeat. Sometimes to have the best possible science 

will just put a stranglehold on any decision. So that is the challenge we have. But if you're asking me to support a proposal for 

sound science, I would--

Mr. POMBO. That's what made me come back to it. You said that 

about putting a stranglehold on any decision. That's what made me 

come back to it. Because these other scientists that are working in 

environmental areas, but it's a different area than wildlife, they 

don't understand how any scientist would release information, or 

any public agency would release any information, without it being 

peer reviewed. 

Mr. SNAPE. Again, what type of peer review? Again, that is the 

question. Mr. POMBO. What they're talking about is independent, competi- tive peer review by experts in the field that do not work for the 

same agency that's producing the work. They said, you know, that 

peer review is in the eye of the beholder, which you're well aware 

of. But they have established a system of outside peer review of all 

science that they're producing, so that they don't get into some--
41 

You know, today we've heard testimony about supposedly endangered, they claim they were endangered, they claim they were in 

this area. I mean, you've heard all of these things said. Well, if you 

were using decent science, the debate would not be as to whether 

or not it was endangered; the debate would be about how to recover 

it. 

Mr. SNAPE. I think we do use decent science. I actually think 

that that question-! can give an answer, but I think that question 

would probably be better answered by Dr. Hicks, in terms of 

whether he thinks, had his plan been peer reviewed, how far they 

would have gotten. I don't think very far. I'm not saying that to disparage the Plum Creek HCP, because 

again, I have already testified that I think it's a good start. I'm impressed with the effort that they've made. I have problems with it. But again, listing is a good example. My opinion is, and I know 

you disagree with it, were we to peer review in the fashion that 

was contained in your bill, I don't think we would ever have any 

listings. My opinion is that the effect would be to shut down the 

listing process. That, to me, is unacceptable. 

Conservation biology, of all the sciences, is a relatively new 

science. It is leaping by bounds daily almost. The very fact that a 

number of these studies within the Plum Creek HCP are going to 

appear in journals I think is a testament to that. There's exciting 

new stuff going on. 

I think you can always find a biologist who will tell you-and 

this happens with the NEPA analyses all the time-you can find 

any hired biologist, at any time, to tell you whatever it is you want 

to hear. That's the reality. 

Mr. POMBO. That's true in any scientific field. That's why you 

should do peer review. That's why I think that everything should 

be peer reviewed. 

Did you want to respond to that, Mr. Brown? 

Mr. BROWN. Let me just say one quick word about that. 

I think peer review sounds exciting, but, of course, the law requires that the Services balance "take" with the mitigation that's 

practicable. To try to balance economics with science, I'm uncom- fortable in allowing the scientific community to opine totally on 

whether a plan mitigates to the extent practicable and balances the 

economics. 

At the end of the day, this is not purely a biological decision. We're not trying to recover the species on our land. That's not the 

law. We're trying to mitigate to the extent practicable. It's essen- tially a good faith judgment decision on whether we use the best 

science available. 

We can certainly in the building blocks do peer review, and I 

think it was blind peer reviewed by Dr. Hicks' team. I think it was 

more than just Federal scientists who were involved in the plan. 

These are outside reviewers, third party, blind peer reviewers who 

had expertise. So I think it's a little more sound than--

Mr. POMBO. Mr. Brown, I understand that we're talking about 

apples and oranges when we're talking about the difference be- tween establishing an HCP versus a listing decision or a delisting 

decision. I understand those are not the same thing. 
42 

Mr. HICKS. I just wanted to follow up. Bill made an excellent 

point about the fact that the process itself is both science driven 

and driven by the economic realities of what a landowner can afford to do. 

In my situation, earlier this morning I made a presentation to 

the National Academy of Sciences about the work that we did in 

the HCP. They were very excited about that. When I mentioned the 

notion of peer review to them, they became very apprehensive. The 

reason they became apprehensive was because they said if every 

one of these plans starts tapping every scientist around to peer review it, and you're not doing something like paying them to take 

their time to look at these things, it will paralyze some of the scientists that are busy trying to do their own work and who would 

like to help out a fellow scientist. 

So the notion of all of these plans tying up many scientists in 

outside peer review for something like this, as opposed to a very 

important decision maybe on listing or not listing, could really tie 

up many members of the scientific community, at a very time when 

they're all trying to complete some of their very important processes. 

I experienced that with this. By asking a scientist with the Forest Service or with the Fish and Wildlife Service or with the State 

agency to take a look at this paper, I realized that this was taking 

away from his job. We didn't want to get into the situation where 

we were paying these guys to do this, because that seemed to be 

perhaps too mercenary. 

Mr. POMBO. Let me ask you a question. 

When it comes to wildlife, why is that the case, but when you 

talk about air quality, water quality, safe drinking water, the Federal agencies that handle those issues require that it be peer reviewed? Why are their scientists not too busy, and why are their 

scientists able to do it, but when we talk about wildlife biologists, 

conservation biologists, they're too busy, it would slow down the 

system too much, you know, we might have to pay them, why does 

all that come in? Is that just because we don't do it now so we're 

afraid to require it? 

Mr. HICKS. That's a very good question. I think part of the answer on that is that much of the wildlife science is currently developing, and much of it is still opinion oriented. With some of these 

papers and some of these proposals, there is not as much tabular 

data and hard concrete facts and figures and readings from scientific instruments that are being asked to be reviewed, and statistical analyses, as much as inferences and information. There is still 

very much some opinion involved coming on the wildlife side. 

And when you look at the multiple species kinds of things, and 

how many different kinds of-wildlife biologists are seldom experts 

on all species. There are some that know some particular groups, 

and others that know other groups. They all need to be somewhat 

wrapped into these kinds of plans. 

I know in my own situation, if I was to take one of these papers 

and send it through formal peer review for publication in the Journal of Wildlife Management, for instance, which is the major publication in my profession, that takes three years, because of referees 

and the time it takes for the editors to get information back from 
43 

referees and comments, and the time the authors have to respond 

to those comments. So it's a minimum of three years from submitting a manuscript to when it gets published. 

Now, that doesn't mean that a peer review would-it might not 

take as long. But you get some sense for the kind of timeframe 

you're dealing with, just to have five outside people take a look at 

an article for publication. 

Mr. SNAPE. There's another difference, Mr. Chairman, which is 

that when you look at wildlife biology, you're talking about relatively long-term evolutionary trends. When you're talking about 

air quality, for instance, you're talking about basically technologically-based tests that can be done right there and then. Again, 

I think you're talking apples and oranges, but with different types 

of sciences. Mr. POMBO. The scientists that I talked to earlier in the week I 

think would give you one heck of an argument as to whether or not 

what they're doing is evolutionary, whether or not what they're 

doing is changing by natural conditions or by man-made conditions, 

whether or not what they are doing is absolutely right, or if a lot 

of it is based on opinion. There's no difference. It's all full of opinion and you just do the best you can. 

But when you talk about wildlife-and no offense to the scientists-but when you talk about wildlife, they're just terrified that 

you're actually going to make them have all their work peer reviewed. Mr. SNAPE. Again, I do think that we're talking about the issue 

of technological fixes. As it relates to species extinction, I have always claimed that I have taken the more conservative view, which 

is I would rather make sure that we don't lose a key ecological cog. 

It's very hard within a one or two or three year period to make a 

determination about a trend of a species surviving or not surviving. 

That's what we're talking about. That is precisely why you have 

wildlife biologists who are extremely nervous to be definitive about 

whether a species is going to make it or not, because if you're 

wrong, the consequences are relatively severe. With air quality, they are severe. There are certainly public 

health issues with air, no doubt about it. But the technological ability to deal with clean air problems I think is much higher than it 

is to deal with a species that is irreversibly declining. I think that is a scientific fact. That is my opinion, and you may 

take issue with it. But I think there is a different situation between those two examples. 

Mr. POMBO. I think we're going to disagree on that. I think a lot 

of scientists would disagree with you on that. I mean--

Mr. SNAPE. I'm not sure about that. 

Mr. POMBO. That's your opinion, and I have mine. But I'm sure 

there would be broad disagreement in the scientific community 

with both of us. 

I want to thank you for your testimony. Again, I'm sure there 

will be further questions that people will have, and we will submit 

those to you in a timely fashion. If there are further questions that 

are submitted to you, I would request that you answer them as 

quickly as you can. The official record of the hearing will be held 
44 

open to give you an opportunity to do that. I would ask that you 

answer those as quickly as you possibly can. 

Thank you very much for your testimony. I apologize that we had 

to take a break in the middle of it all. Thank you. 

[Whereupon, at 5:25 p.m., the Committee adjourned; and the following was submitted for the record:] 

STATEMENT OF GEORGE T. FRAMPTON 

Thank you, Mr. Chairman for the opportunity to discuss the policies this Administration pioneered to improve the implementation of the Endangered Species Act 

(ESA), ease the regulatory burden on private landowners and enhance the conserva- tion of species. My testimony will focuse on this Department's efforts, over the last 

three years, to improve species conservation efforts on private lands, and especially our efforts to improve the Habitat Conservation Planning process. While we still 

have a great deal to do, our experience over the last three years demonstrates that 

the ESA can and does work. From the beginning, this Administration recognized the concerns that American's 

private landowners have with the implementation of the Act, and over the last three 

years the De~artment of the Interior has worked diligently to address these con- cerns. We beheve that successful species conservation must be mindful and responsive to the needs of the landowners of this country, both big and small. Drawing 

upon the 20 years of experience in implementation the Act, we saw that there were opportunities to improve its implementation; to sharpen the scientific standards 

that are the foundation of decision-making under the Act; and to develop innovative 

and flexible new approaches to conservation. With that in mmd, Secretary Babbitt and Commerce Undersecretary Baker an- nounced a series of ambitious administrative changes on June 14, 1994, as well as a 10-point ESA reform plan in March 1995, to accomplish these goals. In summary, these policies: minimize the social and economic impact of recovery planning under 

the Act; provide independent scientific peer review of listing and recovery decisions; 

require listing agencies implementing the Act to identify quickly and clearly activities on private lands that may be affected by a listing decision; create cooperative, ecosystem-based approaches to conserve listed and candidate species before crises 

arise; establish guidelines to ensure decisions made under the Act represent the 

best available scientific information; and provide a greater role for state and tribal 

agencies. Over the last three years, one very important instrument for species conservation 

that has emerged from relative obscurity to become a major tool for providing flexibility and certainty to landowners is the Habitat Conservation Planning process. 

The Department has taken a process which was once rarely used and turned it into one the most successful means by which we provide private landowners with cre- ative flexibility as a tool and certainty as a result. 

HCPs allow private landowners, after receiving approval of a plan and a l?ermit, to proceed with development projects on their lands that will result in the incidental 

take of listed species. They provide a mechanism under the ESA to resolve conflicts 

between species protection and economic activities, and the Service has used them 

to develop "creative partnerships" between the public and private sector to further 

species conservation. The HCP process encourages the permit holder to undertake 

mitigation or conservation measures for listed species in exchange for relief from the 

incidental taking provisions of the Act. For large-scale HCPs, it is a collaborative 

process and involves not only the permit applicant and the FWS, but respective 

states, local governments and other affected parties, as well. For example, in the 

Pacific Northwest, staff from both the National Marine Fisheries Service (NMFS) 

and FWS are located in the same building to coordinate development of HCPs. By 

including numerous stakeholders, the conservation of species is furthered, while 

minimizing the impacts on landowners. 

Landowners and developers who participate in HCPs are provided regulatory cer- tainty, on taking not only listed species, but also any proposed and candidate species that have been adequately address in the plan. This benefits the HCP applicant 

by ensuring the plan will not change over time with subsequent species listings. It can also provide early protection for many unlisted species that are adequately addressed in the plan, serving to prevent subsequent declines that might otherwise re- sult in the need to list the species. As a result of our efforts to reach out to landowners, streamline the HCP process, 

provide participants with certainty and improve the process based upon our experiences, we have overseen a tremendously positive response from landowners and a 
45 

corresponding increase in the use of HCPs. While only 14 HCP permits were issued 

between 1982 and 1992, over 163 permits have been issued since 1993, a 30 fold 

increase. In 1997, the Service anticipates working on about 300 additional HCP applications, some of which will be done jointly with NMFS. 

HCPs offer not only a great deal of flexibility in the types of species covered, but 

also in the size of the HCP planning area. The diversity and geographical size of 

HCPs can vary greatly. For example, an incidental take permit was recently issued 

to Orange County, CA covering 208,000 acres and addressing species including the 

California gnatcatcher and the Southwestern arroyo toad, as well as numerous can- didate species; contrast that to the HCP that was developed and approved for Mr. 

Richard V. Smith of Travis County, TX for the incidental take of one species, the 

Golden cheeked warbler, on a % acre. Attached to my testimony is a table showing 

all approved HCPs and those that have been formally submitted as an HCP application, giving the name of the applicant and acreage covered, and I request it be included in the record of this hearing. 

Increasingly, HCPs are evolving from a process utilized primarily to address single developments to broad-based, landscape level conservation tools. Examples include those developed pursuant to the State of California's Natural Communities 

Conservation Planning (NCCP) in Southern California. These large-scale, regional 

HCPs can significantly reduce the burden of the ESA on small landowners by providing efficient mechanisms for compliance, distributing the economic and logistical 

impacts of endangered species conservation among the community, and bringing cer- tainty to a broad range of landowner activities. 

The Service recognizes that landowners will not always be part of a regional or large-scale HCP, and has recently established a special category for those with relatively minor impacts, Termed "low-effect HCPs," they are defined as those permits 

that individually or cumulatively have minor or negligible effects on federally listed, 

proposed, and candidate species and their habitats that are adequately covered in 

the plan. The purpose of this category is to expedite the processing of these low effect HCP actions. For example, a "template" implementing agreement may be re- quired, and no legal review will be required. 

To further improve the HCP process, on September 15, 1994, the Service, in con- junction with NMFS, published a Preliminary Draft Handbook for Habitat Conservation Planning and Incidental Take Permit Processing. After a period of Fieldtesting the draft handbook, the Service is now completing final editing, and we ex- pect it to be printed and distributed by the end of August. The revised handbook 

will outline streamlining measures and other innovations, including greater flexibility in many procedural decisions and reduction in duplication of requirements found 

in section 7 of the Act (Interagency Cooperation) and overlap with the National Environmental Policy Act. Also included are guidelines limiting the length of time for 

processing completed incidental take permit applications once submitted for public 

comment and final approval (less than 3 months for low-effect HCPs, 3--5 months 

for HCPs with an Environmental Assessment, and less than 10 months for those 

requiring an Environmental Impact Statement). 

The HCP program has been able to bring together Federal, State, and local government agencies and private interests to address and resolve many endangered 

species' conflicts. State and local governments and private developers increasingly 

find that they can safely proceed with their planned activities and meet their obligations under the ESA by using this planning tool. 

The remainder of may remarks will focus on several other initiatives also being 

undertaken to increase the certainty provided to landowners and encourage con- servation benefits to species. The first I would like to highlight is the "No Surprises" 

Policy. In 1982, the 97th Congress recognized that the long-term commitments made 

by both the Federal government and the private HCP permit holder must be binding to encourage mutual trust; it is a key to the success of the HCP process. That 

Congress stated that it was its intent that the Secretary may utilize the section 10 

process: 

"* * *to approve conservation plans which provide long-term commitments re- garding 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 accord- ance with the terms of the plan. In the event that an unlisted species addressed 

in an approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed 

the conservation of these species and its habitat as if the species were listed pursuant to the Act." 

(H. Rep. No. 835, 97th Cong., 2d Sess. 30-31 (1982) 
46 

On August 11, 1994, The Departments of the Interior and Commerce announced 

the "No Surprises" policy to implement this intent. Also sometimes called " a deal 

is a deal," the purpose of the policy is to provide assurance to non-federal land- owners participating in HCPs that no additional land restrictions or financial com- pensation will be required for species adequately covered by a properly functioning 

HCP. Such certainty is essential for private planning, investment, and overall suc- cessful economic development. Significant development projects may take years to 

complete, and adequate assurances must be made to the development communities 

that the mitigation measures under an HCP permit will remain defined and predictable for the life of the project. The "No Surprises" policy provides those assurances. The policy provides that in negotiating "unforeseen circumstances" provisions for 

HCPs, the Service can not require the commitment of additional land or financial 

compensation beyond the level of mitigation which was provided for a species under 

the terms of the HCP. I would like to request that a copy of the August 11, 1994, announcement of the "No Surprises" policy, which provides greater detail, be provided for the record. 

Mr. Chairman, your letter of invitation also requested that may statement address any notices of intent to sue which we may have received regarding this policy. Your question is timely. On June 13th of this year, we were served with such a 60-

day notice of intent to sue on the "No Surprises" policy. (A copy of that notice is 

provided for the record.) Our Solicitors are currently reviewing this notice. 

Another policy currently being used to encourage conservation efforts by private 

landowners is the "Safe Harbor'' initiative. We are very aware that some landowners 

fear actions taken by them to successfully maintain or enhance habitat on their 

properties for species, may result in subsequent activities being restricted because 

of ESA provisions. This perception has in some instances created a disincentive for 

landowners to manage their lands for the benefit of listed, proposed, or candidate 

species and some may even manage habitat in a way to prevent occupation by listed 

species. To address this issue, the Service is seeking ways to encourage landowners 

to conserve our Nation's heritage by creating incentives. 

The "Safe Harbor" concept is such a program. It protects landowners from ESA 

restrictions when they voluntarily undertake land management actions to benefit 

listed species. In return, the Service provides assurances to the landowner that future activities would not be subject to ESA restrictions above those restrictions applicable to the property at the time of enrollment into the program. "Safe Harbor" assurances are formalized through a permit and an agreement between the land- owner and the Service. The Service is preparing a national policy for the efficient, 

effective, and consistent implementation of this concept. The first "Safe Harbor" agreement was the Sandhills Safe Harbor in North Carolina. The red-cockaded woodpecker is the tar~et species of this particular program. At least 3 other agreements have been finalized that include approximately 5,200 acres of private lands. Furthermore, there are at least 17 other agreements in var- ious stages of development. A table showing the location, acreage, and land use of 

these agreements is attached to my testimony. Considering that over 700 listed species are known to occur on private or non-Federal lands, this policy has great potential to enhance our ability to enhance the status of listed species. 

Another recent tool that we are providing to landowners is the so-called "No Take" 

Memorandum of Understanding. These MOUs are designed to confirm for land- owners that the actions specified under an agreement that will not result in the in- cidental take of species will not be hindered. It assists landowners by relieving them 

of the possible need to apply for an incidental take permit through the Habitat Conservation Planning process. The MOUs describe how the landowner can assist in the 

conservation of a listed species, and provide assurances that the defined activities 

the landowner wants to undertake on his or her property will not be curtailed. Again, we are providing certainty for landowners working to conserve species. 

Similar to the "No Take" option, the Administration is also encouraging private 

landowners to help conserve candidate species on their lands by entering into con- servation agreements with the Service. A conservation agreement is a voluntary, 

formal written document signed by both the landowner, and ideally the affected 

State fish and wildlife agency, and the Service. It specifies the actions and responsibilities of each party to decrease threats to candidate species. Proactive in nature, 

successful conservation agreements have the potential to lower a species' priority for 

listing or even eliminate the need for listing. Examples of actions landowners can take include: habitat protection; management or restoration actions, such as fencing, control of public access, stream rehabilitation, controlled burns; or even reintroduction of species to suitable habitat. Landowners benefit by knowing specifically what 

actions they can take to protect the species and what actions can be done on the 

property that will have no, or only minimal adverse impact on the animal or plant. 
47 

The process provides certainty to the landowner and aids in the conservation of species. 

Another area where flexibility had been under-utilized was under section 4(d) of 

the Act. Under this section, the Secretary can, for species listed as threatened, issue 

regulations necessary for the conservation of the species. The Fish and Wildlife 

Service has used this authority in the past to develop tailored regulations for species 

such as the Louisiana black bear and the California gnatcatcher and has proposed a special rule for the Northern spotted owl in Washington and California. These 

rules can significantly ease the burden of the ESA on private landowners. 

Last year, under the provisions found in section 4(d), the Secretary proposed a Small Landowner Exemption (5-Acre Exemption). On July 20, 1995, the Service 

published a proposed rule which would create a regulatory presumption exempting 

certain landowners and low-impact activities from the Act's requirements for threatened species. The proposal applies to species listed as "threatened" under the law, 

and would cover most current landowners who use their property as a residence, 

want to disturb 5 acres of habitat or less, or who undertake activities that have a negligible impact on the species overall. The Service would ultimately assess the applicability of this regulatory presumption on a species by species basis, applying it 

to future listing of threatened species where the applicant was deemed consistent 

with the conservation needs of a given species. It would also establish a general ex- emption for activities conducted in accordance with a State-authorized or developed 

habitat conservation plan for a threatened species. 

The public comment period on the proposal closed on September 18, 1995. The 

Service received 63 comments on the proposed rule, expressing a wide variety of re- actions. Many objected to the exemptions, believing they would lead to habitat fragmentation, significant cumulative impacts on species and enforcement problems. In 

contracts, others felt the exemptions would not provide sufficient relief to land- owners. State and local government agencies largely supported the proposed rule. In closing, I must point out that our efforts to increase our work with private 

landowners have been hampered by the severe budget cuts and fiscal uncertainties 

in 1995 and 1996. We have worked hard to continue providing landowner assistance 

through the HCP and Safe Harbor processes, but the cuts in the endangered species 

program have taken a toll on our ability to proceed with many of our efforts, including the completion of the Small Landowner Exemption. I urge Congress to fund the 

endangered species program, in the fiscal 1997, as requested by the President. Adequate funding is essential if we are to be able to fully implement the ESA reforms we have already developed and continue to develop innovative methods for ensuring 

that our endangered and threatened species are protected and recovered while minimizing adverse impact to private landowners. Thank you again for the opportunity to testify on the Department's highly suc- cessful efforts to improve implementation of the Act. I'd be happy to answer any 

questions the Members of the Committee may have. 
As of Hay 21, 1996 

Total PetJJits Iss ued: 163 

Total Amenctnents Issued: 15 

Total Applications Submitted: 30 

Total A.ppli catlons Pending or Underdevelopment: 142 

(Pending plans are not identified i n t his table) 

PLAN TITL E I.:OCA.TIOH 

San Bruno Mount ai n Sa n Mateo Co., CA 

CPRT 2·9818) 

San Bruno Mountain San Mateo Co . , CA 

Alrdt. #1 (South Slope) 

San Bruno Mountain San Mat eo Co., CA 

Amdt. 112 (County Park) 

San Bruno Kounta in San Mateo Co . , CA 

Arndt. lf3 (Rio Verde) 

San Bruno Mountain San Mat eo Co ., CA 

Arndt. 114 ( NE Ridge) 

<PRT 2·9818/746660) 

coachella Valley Riverside Co., CA 

(PRT·698685) 

County of Ri verside Riverside Co., CA 

Short - Term Permit 

{PRT-739678 ) 

County o f Riverside Riverside Co. , CA 

Short·Term Permit Arndt. 11 

<Temecula Addition) 

Co!Xl ty of Riverside Ri ve rside Co., CA 

Short-Term Permit 

BOI..Wldary Arrdt . #1 

County of Riverside Riverside Co., CA 

Short - Term Permit 

Boundary Arndt. #2 

22 amenctnents l 

STATUS* 

I (3/83) 

I <8!85) 

I (6/86) 

I (12/85> 

I (8f90) 

I (4/86) 

I (8/90) 

I (1/91) 

I (2/92) 

I <3!15/93) 

STAT US Of 

HABITAT CONSERVATI ON PlAHS 

fish and Uildll fe Service 

PRIMARY LISTED 

COMPLEX ITY* * SPECIES*** 

MBB, SBEB, SFGS 

MBB, SBEB 

SFGS 

HBB , SBEB 

SFGS 

HBB, S8EB 

SFGS 

MBS, SBEB SFGS 

CVFTL 

SKR 

SKR 

SKR 

SKR 

C

C

C

C

C

N

N

N

H

N
PRIMARY LISTED 

PLAN TITLE LOCATION ST AT US • COMPLEXITY .. SPECIES• .. 

Count y of Rivers ide Riverside Co., CA I (3/25/93) SKR N

Short-Term Permit 

Boundary Amd t . ft2 

(Moreno Hight ands Addition) 

County of Riverside Riverside Co ., CA I (2/24/93) 

Short-T erm Permit 

SKR N

Bounda r y Arnd t. #1 

Rec ons ide rat i on-Orangecrest 

County of Rivers ide Riverside Co. , CA I (4/30/93 ) SKR N

Short- Term Permi t 

Time Ext. w/ Amdts. 

County o f Riverside Riverside Co . , CA I SKR N

Short· Term Permit { 12/29/93 ) 

Time Ext . w/Amdts. 

Cal. Dept. of Correct ions Kern Co., CA I <1/90) SKJf N

Delano Pri son (PRT-744882) BNLL TKR 

Lennane Prope rties Sacramento co., CA I (8/90) VELB 

(PRT-730836) 

Cit y of Marysville YuPa Co., CA I (1/91) VELB s

CPRT -748819) 

Coat inga Cogenera tion fresno Co. , CA I (3/91) SJKF , BNLL 

(PRT- 75.t..027) 

Clark County (Short- term) Clar k C.o., NV I (7/24/91) OT 

(PRT -756260) 

Clark County (Short-term) Clark Co., NV 1 (7/29/94) OT 

Permit AfOOt . (Extension) 

(PRT-756260) 

Corona DeveloJ:lllent Co. Riverside Co., CA I (12/91) SKR 

(PRT-787639) 

Corona Deve l opment Co . Rivers ide co •• CA I <3/3/94) SKR 

Permit Amc:lt . (Extension) 

PRT-787639 
PRIMARY LISTED 

PLAN TITLE LOCATION STATUS* COMPLEXITY*- SPECIES*,.* 

Citation Builders Riverside Co., CA l (9/28/92) s<R N

Ridge at Cresta Verde 

(PRT- 760140) 

Simpson Timber Cort{lany Hl.llboldt, Del Norte, I (9/92) NSO 

(PRT-767798) Forest Plan Trinity Cos., CA 

Envi roCycle, Inc . Kern Co . , CA I (2/26/93) SJKF, BNLL 

(PRT- 771172) 

Yucca Valley Church Sites San Bernardino Co., CA I (8/26/93) DT 

( PRT - 7790983) 

Murray Pacific Corp. Mineral Tree farm I (9/24/93) NSO 

(PRT-778268) Forest Plan ~o~i s co . 

"' Mur ray Paci ftc Corp. Mine ral Tree farm 1 <6!26!95) HH H

Mencinent CPRT-n8268) e~o~i s Co., WA 

forest Plan 

Coyote Hills East Orange Co., CA I (11/93) CG 

'" 

(UnoCal HPRT- 768184) 

Granite Construct ion Fres no Co., CA I SJKf 

(PRT-n8268) <12/29!93) 

Valley of fire State Park Clark Co., NV I (1/20!94) OT 

<PRT-781039) 

Pacific Gateway Homes Riverside Co. CA I (5/27/94) S<R 

Sunland COI'I'ITLII1ities Inc. San Bernardino Co., CA I (6/13/94) DT 

(PRT-757505) 

Chalrflagne Shores kern Co., CA I <6/1/94> T<R N

(PRT-768386) 

Metropolitan Bakersfield Kern Co., CA I (8/24/94) SJkF, BNLL, Tt::R, 

CPRT-786634> 8C SJWT HWS 

Nye COt.nty Landt ill Nye Co., NV I (2/ll/95) DT 

CPRT·776604) 

Weyerbauser CHillicC~aa Tree Coos Bay, OR I (2/14/95) NSO N

Farm) (PRT~796822J 

Forest Plan 
PRIMARY LISTED 

PLAN TITLE STATUS* I COMPLEXITY** SPECIES*** 

John Laing Homes (PRT· Corona, CA I {3/22/95) SKR 

791930) 

Coast Range c;:oni fers Yachats, <JR I (3/21/95) NSO, MH N

<PRT~788945) Forest Plan 

Fi e ldstone (PRT-795759) San DiegO" Co . , CA I (6/7/95) CG 

City of ~aterford Stanislaus Co., CA I (6/9195) VELB 

<PRT-801047> 

Clark. County Long-Term Clark Co., CA I (8/11/95) DT 

Permit (PR1 · 801045) 

Regl i Estates (PRT-803749) Hl.tlboldt CA I (8/30!95) NSO HH, PF, BE M

Spring Mountains (Nevada Clark Co., NV I (9/1/95) pp 

Div . of State Parks) 

(PRT -802140) 

Oregon Dept. of Forestry Elliott State Forest, I (10/3/95) ABE, HSO , MM H

Forest Plan OR 

Col ton Transmission Line San Bernadi no Co., CA I OT 

CPRT-805901) <11/29/95} 

Lake Mathews (PRT-805839) Riverside Co, CA I (\2/S/95) SKR, CG 

San Diego Cas & Electric San Diego co., CA 1 Multi-species M

(PRT-809637) (1Z/18/95) 

Cushenbury Sand & Gravel San Bernardino Co . , CA I (1/02/96) or 

(PRT -795218> 

Chevron Pipet ine Kern Co., CA I (2/25/96) SJKF, BNLL, TKR, 

(PRT·807634) GKR 

ARCO ~estern Energy Kern Co., CA I (3/01/96) SJKF, BNLL, TKR, 

GKR 

Scofield Corporation Chelan Co., lolA 1 (4/03/96) NSO 

Forest Plan (PRT-811110) 

0.8.0. Oevelopnent Co . , "onterey Co . , CA I (4/25/96) SBB, SG, MSF B

Sand Cit 
PRIMARY LISTED 

PLAN TITLE STATUS• COMPLEXITY" SPECIES•** 

North of Playa Shopping Monterey Co., CA I (4/25/96) SBB B

Center 

Riverside County Multi- Riverside Co., CA I <5/3/961 CG M

species (NCCP) Plan 

City of Poway San Diego Co. CA CG, LSV, 

'"' Hu

Seascape Uplands santa Cruz Co., CA SCLTS No

Shell Oi I Yorba Linda , Orange CG 

'" 

(PRT-784571) Co. CA 

Kern County Sanitary Kern Co., CA SJKF, BNLL 

landfi I I 

Ocean lrai ls los Angeles Co., CA CG 

Port Blakely Tree Farm Mason Co. 

"' NSO, 

"" 

Orange Co. Centra l Coast Orange Co., CA CG, SAT, APF M

Multi -species {NCCP) Plan 

(Irvine COIJ'4'any) 

Robert Edga r Turkey Farm Tulare Co., CA 0 (5/15/91) SJKF, BNll, TKR 

(PRT-751021) 
8.<.9.i.oD....Z 

PRIMARY 

PLAN TITLE LOC ATI ON STATUS* COMPLEX I nu LISTED PR

SPECIES*** CA

Lak.e line MalL \,j j ll iamson Co . , TX I (2/13/92) BCCH, TCGB No

(PRT-762988) 

Canyon Ridge Tr avis Co., TX I (8/17/93) GCO Pl

(PRT-777083) mo

or

Canyon Ridge Arndt. Tr avis Co., TX I (2/15/95) 

"'" No

(PRJ - 777083) 

lake Po inte (PRT- 782 186) Travis Co., TX I (2/ 15/94) 

"'" No

Cedar Park Waterline Travis Co. , TX I (9/6/94) 

"'" 

(PRT-788842) 

Richland Bull Creek Assoc. Austin, TX I 02/16/94) GCO No

(Spicewood Parkway) 

(PRT-783564) 

Barton Creek Corrrwnity Travis Co. , TX I (2/16/95) GCO BS

CP:RT-782833) 

Westminster Glen Travis Co., TX I (2/24/95) GCO No

(PRT-793122) 

Davenport Ranch Travi s Co., TX I (3/7/95) GCO 

(PRT-782829) 

Richard J·. Smith (Lot Travis Co., TX I (4/4/95) GCII No

owner) 

CPRT-787880) 

Howard L. Burris, Jr. ( 16 Travis Co. , TK I (4/12/95) GCII 

Applic at ions: PRT-798294, (Jester Housing 16 Pennits 

798300. 798291 • 798296. Developoent ; Lots 

798290, 798286, 798238, 15, 17·25 , Z7-l8, 

798289. 798298, 798297. 33·37) 

798295 . 798302. 198293. 

798299 798292 798301) 

Char les Dixon (Lot owner) Travis Co., TX I (4/18/95) . GC\1 

PRT-798532 Lona Canvon 
PRIMARY 

PLAN TITlE LOCATION STATUS* COMPLEXITY** LI STED PR 

SPECIES"*"' CAN

Peter Van Cuylenbu rg Travis Co . , TX I (4/ 18!95) l GCW 

(lot owner) CPRT -798667> 

(Rob Roy Cr eek) 

Larr y I.J . James Travis Co. , TX I (4 / 18/95) l GC W 

(lot owner) 

(PRT-798674) 

\Jayne Bell Travis Co., TX J (5/1/95 ) L GCW 

Clot owner) (PRT-799946) 

Rex Rivers Travis Co . , TX I <5!1 / 95) l GCW 

(Lot owner) (PRT-799945) 

Richard Bagge tt Trav is Co . , TX I (5/23!95) l GCW 

(Lot owner) (PRT ·800131) 

<Long canyon> 

Steven Madere Trav is Co., TX I (5/23/95) l GCW 

(l ot owner) (PRT · 799B59) 

Stephen Adler Travis Co., TX I (5/24/95) l GCW 

(lot owner) (PRT-800130) 

t.arry Beasl ey Travis Co . , TX I (5/24 /95) l GCW 

(lot owner) CPRT -800080> 

(lake Tr avis Subdiv.) 

Cecil Ethridge 

( Lot owner) (PRT- 799863 ) 

Travis Co. , TX I (5/24/95) l GCW 

JPI TexaS Deve l opment Tr av is Co . , TX 1 (6/12/95) l GCW 

<PRT - 790130) 

Bette Pressler (lot owner) Travis Co., TX I <6!13/95) l GCW 

(6 applicat ions: (Wes t Lake Mil ls 6 permits 

(PRY ·800438 · 800443) Developaent; Lots 

1-6) 

carolyn Pratt Travis Co . , TK I <7/24/ 95) l GCW 

Clot owner) (PRT- 801373> 

(Wirdni ll Bluff) 

Ralph .:ester Trav is Co., TX I (7/24!95) l GCW 

(Lot owner). (PRT-801381) 

Cardinal Hitls l ot 133 ) 

Ji• Herbert lravis Co., TX I <7/24/95) l GCW 

lot owner PRT -601839 
1:: PRIMARY 

PLAN TITLE LOCATION C<W,.FYnY .. LI STED PR

SPECIES*** CA

Bobby Thomas Travis. Co., TX I (8/28/95) GCO 

(lot owner) (PRl -801 588) 

(Georgetowne Street) 

Albert Graci (lo! owner> Travis Co . , TX I (8/28/95) GC" 

(3 applications: PRT- (620 Oaks, Lots 3 permits 

801823, 801837 801838) 17-19) 

Chris Hi lam (Lot owner) Travis Co., TX I (8/28/95) GCO 

<4 appl !cations: PRT- (River Hi lls, Lots 4 permits 

803131-803133, 801135) 1·4) 

Joseph Hilt T-ravis Co. , TX I (8/28!95 ) GCO 

( l ot owner) (PRT -803148) 

( l odge Acres) 

Overtook at Cat Mountain Travis Co., TX I (8/31/95) GCO N

<PRT- 782824) 

David DiJ oy Travis Co., TX I (10/10/95) GCO 

(Lot owner) CPRT-804125 ) 

(Rob R:oy on Lak.e) 

Richland SA, Ltd Travis Co., TX I (10/10/95) GCO 

(13 applicati ons) (Canyon Mesa , Lots 13 permits 

(PRT- 804126·804 113, 1-10, 12· 14) 

PRT-804135·804139) 

Gulf Coast Pra i r i es southern TX I (1 1/2 1/95) APC, HT H

'Safe Harbor• 

'Bhuprinde r Bhasin Will iam.s Co., TX I <11/21!95) GCO 

(formerl y 1(. Townsend) 

(Lot owner) CPRT-795603) 

Wallace Tract Travis Co., TX I (2/19/96) GCO BS

(PRT-782991) 

Andrus Stb:tivision Tr avis Co., TX I (2/23/96) GCO 

CPRT-806828) 

Balcones Canyonlands Trav is Co . , Tl( I (5/2/96) BCV, GCW, 5 Cave N

(PRT-788841) Invertebrates 

Paul / Ange la Mursk.i Travis Co., TX I (3/29/96) GCO 

Lot owners PRT-806824 
Jl::us• PRIMARY 

PLAN TITLE LOCATION . COMPLEXIJY*"r LISTED PR 

SPECIES*"* CA

Janis Goynes Travis Co., TX I (3/29/96) l GCO 

(Lot owner) (PR -806825) 

(Cardinal Kills lot 8) 

louie lfausman Travis Co., TX I (3/29/96} l GCO 

Clot owner) (PRT-806829) 

(Ca rdinal Hills Lot 13) 

Lance Brubaker Travis Co., TX I (3/27/96! l GCO 

Clo t owner) CPRT-806827) 

(Cardinal Hilts Lot 56) 

Douglas Barclay Travis Co . , TX I (2/19/96) M GCO 

CPRT-808691) 

P-YB Joi nt venture Travis Co., TX I {3/ 12/96) GCO 

(PR T-808694) 

Park 22 Travis Co . , TX [ (5/16/96) GCO 

(PRT -807192) 

Albert Graci <620 Oaks Travis Co., TX I (8/28/95> l GCO 

l ot 17) <PRT-801823) 

Albert Graci (620 Oak:s Travis Co . , TX I (8/28/95) l GCO 

Lot 18) (PRT -80 1823) 

Albert Graci (620 Oaks Travi s Co. , TX I (8/28/95) l GCW 

l ot 19) (PRT-801823) 

Hit ltown Travis Co., TX A l GCW 

CPRT-791946) 

The .Volente Group Travis Co., TX A M GCO 

(Housing DeveloprnE!nt) 

(PRT-806831) 

ChU<:k Clinton Travis Co., TX • l GCW 

(Yucca Htn> CPRT·812703) 

l ake Pointe II Travis Co., TX A l GCO 

.Amdt. #1 

CPRT-781186) 

Bee Cave Oaks Oev. Inc. Travis Co., TX A l GCW 

(PRT - 812688) 

Ivp,hoe, Inc . Travis Co., TX A l gcw 

PRT -812670 
I 

PLAN TITLE II STATUS* ~ II PR

~~~~~~~·~

LOCATION 

Robert A. Baker 

(Rob Roy on Lake} 

CPRT-809217} 

Robert. C. Paris 

(Lake George town) 

(PRT-809218) 

Mt. Larson (slmtlit) 

(PRT-808719) 

Hill town 

(PRT-791946} 

Lakeway Property Co. 

CPRT-812690} CR. Hol) 

Lakeway West Investment 

(PRT-812696) (High) 

Lakeway Land Ltd. 

CPRT-812695) (Schrarml) 

Davenport Ranch 

Arndt. #1 (PRT-782829) 

Paul A. Locus 

(Patterson Lane Lot 4) 

CPRT-808721) 

Jalil/Judlth Mirzade"gan 

C PRT -809220) 

PLAN TITLE 

Piping Plover HCP 

(State of Massachusetts) 

PRT-8136"i3 

Travis Co., TX 

~.jJlliamson Co., TX 

Travis Co., TX 

Travis Co., TX 

Travis Co., TX 

Travis Co., TX 

Travis Co., TX 

Travis Co., TX 

Travis Co., TX 

Travis Co., TX 

I LOCATION STATUs• 

Essex, Plymouth, I (4/12/96} 

Barnstable, & 

Bristol Co~. MA 

N

GCW 

GCW 

GCW 

GCW 

GCW 

PRIMARY 

COMPLEXITY** LI SlED PRIMA

SPECIES*** CANDI

M pp 
&<.9J.Jm...i 

PRIMARY 

PLAN TITLE LOCATION STATUS* COMPLEXITY ... LISTED PRIH

SPECIE S*** CAND

Ni cho l S/Hendr i•t Post N. Key Largo, Fl I <1986) Key Largo r oden ts None 

(PRT-691992} 

Dri s co ll Properti es N. Key Largo, Fl I (1990 ) Key La r go rodents None 

(PRT-736470) 

Wal·Ha r t Corporation High land Co. , Fl I (3/ 11/93 ) FSJ, EIS GF, 

(PRT-774703) 

Inte r nati ona l Paper Sou thern Al I ( 10/ 19!93) RHS None> 

<PR T- 78091 4) 

SeaHist , Inc . Baldwin Co., Al I ( 12/27/ 93) ABM None 

CPR T-784126) 

D&E Investments, l td. Baldw i n Co. , AL I (5/ 3/94) ABM 

CPRT-787172) 

Fel · Kran PLYTbing Baldwin Co., AL I (5/9/94 ) PKBM 

PRT • 787698> 

Ocean Ridge , limited Breva rd Co. , Fl I (6/ 1/94 ) FSJ 

<PRT - 787965) 

H. Pres ley (lot owner) Br evard Co., fl I (6/10/ 94) FSJ 

(PRT-789188) 

\1 . Tapper (lot owner) Brevard Co., Fl I (7/19/ 94) fSJ 

(PRl -790906) 

Balnoral (O.C. Mendu) Brevard Co . , Fl I (8/10/ 94) FSJ None 

(PRT -791224) 

Brandon Capitol Corp. Br eva rd Co., Fl I (8/ 12/ 94 ) FSJ 

( Vi II ages of Tran10re) 

{PRT- 791241) 

Ge('eral Real Es tate (Ba l Brevard Co •• fl I (10/27/94> FSJ 

Karbor) 

<PRT - 794539) 

Sarah Bradley Monr oe Co,, AI I (1212/ 94 ) RHS 

PRT - 795455 
- PRIMARY 

II ~~ -

PLAN TITlE LOCATION STATUS* COMPLEX ITY .. LISTED 

SPECIES*** 

Stallworth PreserYe Wa l ton Co., FL I (2/2/95) CBM 

(PRT-796769) 

Coconut Point I I Brevard Co . , fl I (2/21/95) fSJ 

(PRT-797088) 

Cavalear Co. (Cloisters) Brevard Co . , FL I (3/28/95) FSJ 

PRT-795856) 

HIS RC\.1 Coordi na t or Sandh il ls Reg ion , I ( 4/ 21 / 95) RCO 

CPRT-798839) NC 

' Safe Harbor ' 

Gre gory Luc e- (Lo t a..mc.-) 8a l d1.11n Co ., Al I (t./25/ 95 ) ABM 

CPRT-797979) 

RNR Pr opert i es (Cypress Brevard Co., fl I ( 5/ 3/ 95) FSJ 

Creek - -Phase I) 

(PRT-798698 ) 

Ft. Macaulay Oeve t opment Brevard Co ., fl I (5/ 16/ 95 ) fSJ 

Co. (l.lindsor Estates) 

(PRT-799977) 

Robert Farr (lot owner} Ba ldwin Co., AL I (5/24/95) ABM 

CPRT-798697) 

Red Oak Timber Co. Vernon Pa rrish, I (7/17/95) RCW 

(PRT-800149) LA 

Pinebelt Regional MS I (9/22/95) GT 

Landfill Authority 

CPRT-804406) 

Jack Prirrus Tract Coast a l SC I (10/ 24 / 95) RCW 

(PRT-804465) 

Ar~v Baldwin Co • • Al I C 1/26/ 96) ABM 

CPIH ·802986) 

Potlatch .. I !2/ 28/96) RCW 

CPRT-807592) 

Joseph Hill (lot owner) Brevard Co., 

" I (4/16/96) f SJ 

(PRT-8061SO) 

Gasque/Felkel sc I (3/28/96) RCW None 

PRT-810934 
PRIMARY 

PLAN ltTlE LOCATION su..ws• COMPLEX ITY .. LISTED PRIMARY 

SPECJEs u• CANDIDA

Brett Real Esta te Orange Beach Al l (4/18(96) ABM 

l,jaterside Down ( Coc h ran ) Brevard Co., fl l (5 /21(96) fSJ 

(PR T· 800150) 

l.l indover Farms/Pineda Brevard Co., fl 

"" 

Crossing 

On Top of the \lortd Marion Co . fl RCW 

Vo lus ia Cot.n t y Vo lusia Co., Fl 

"" lolonc 

Uoo lbrigh t Ven t ure Ind ian River, fl fSJ 

(Ho10ard Schar I in) 

Sage Oevelo~ent Al ABM 

(PRT- 811416} 

Hacmi llan-B l owdel AL RHS 

i!=.2n...l! 

PRIMARY 

PLAN TITLE LOCATION 

I 

STATUS• COMPLEXITY .. li STED PRIMARY 

SPECIEs••• CANDIDA 

Flandro Quarr y Salt Lake, UT I (2/10/94} APf 

(PRT·784336) 

Heritage Arts lJashington Co., I <3/3 1/95> OT Chud:wa 

Foundati on UT 

(PRT-798634) 

Col ~n Coflllany Cedar City, Ir on 1 (9/20 /95) UPO None 

(PRT-804404} Co. UT 

l.lest Hills l. L.C. Cedar City, Ir on I (9/20!95) UPD None 

Co ., UT 

Washington County l,jashington Co. , I (2 /23 /96 } DT, OPP, i.'M, VRC, 27 caf"ld 

UT APF, ABE, SPC 

Smead Manuf a c tur i n9 Iron Co ., UT UPO 

COIJl)any 

(PRT -81 4008) 
w 

(}1 

6 

<D 

0 

<D 

(]) 

I 

w 

= pt an in progress 

=plan coq>leted and permi t issued 

=permit denied = l ow complexity or sm

a ll geog raphic area 

= rnedilXfl complexity 

=plan comp leted and perm

=plan wi thdrawn and/or a

=high complexity, ITJ .. llti ·spec ies, or large geographic area 

•** Prjmar y Ljsted Species and prj ma ry Candidates 

ASS American burying beetl e 

AP F American peregr ine fal con 

BCB Bay chec.kerspot but tcrf l y 

BLL Bl ack legless Lizard 

BP Brown pelican 

CBM Choctawhatchee beach mouse 

CLT Ca lifornia least tern 

~ CSB Call ipe si Lverspot butterfl y 

DN Ditch navarittia 

DT Des ert tortoise 

FGS FLorida grasshopper sparrow 

GB Grizzly bear 

GKR Giant kangaroo rat 

HWT Hoover 's wooly-threads 

LBV l ea st Bells• Vireo 

LCT La Graciosa thistle 

MFB Mariana fruit bat 

MH Mar bled ITI.Jrrelet 

NSO Northern spotted owl 

OSB Oregon silverspot butterfly 

PKBM Perdido Key beach mouse 

RBWE Rota bridled white·eye 

II:HS Red Hills salamander 

SBB Smith's blue butterfly 

SBEB San Bruno elfin butterfly 

SJVS San Jac1nto Valley sat tbush 

SHS San Marcos sa I amander 

SS Sacranento splittail 

ST Sur f thistle 

TKR Tipton kangaroo rat 

VRC Virgin River chub 

WSP Western snowy plover 

P: \ DES\DOHNERC\HCP\HCPTBABR. 520 

ABE Ameri can bald eagl e 

APC Greate r AttwatC,·

•s prair ie 

BCCH Bee Cr eek Cave ha rve::. t man 

BNll Bl unt· nosed l eopard I izard 

BTC Bonytai l chub 

CJF California jewelflower 

CMO Canyon mock orange 

CTS California tiger salamande

OPP Dwarf pear poppy 

EIS Ea stern indigo snake 

FSJ Fl orida scrub jay 

GCW Goldencheeked warbler 

GT Gopher tortoise 

KBB Karner bl ue butterfly 

LCR light- footed clapper rai I 

MSB Mi ssion blue butterfly 

MGS Ma riana grey swiftlet 

HP Micrones ian megapode 

NST Nes ting sea turtles 

PP Pahrl.ll1' pool fish 

PRPP Puerto Rican plain pigeon 

RS Razorback sucker 

Serianthes (plant) 

SBEB San Bruno elfin butterfly 

SFGS San Francisco garter snake 

SJWT San Joaquin wooly·threads 

SP Serpehe 

STA Short- tailed a lbatross 

SWF Southwes tern willow fl ycat

UPD Utah prairie dog 

~ Woundf in minnow 

YCR Y~.~na c lapper rail 
62 

STATEMENT OF KIMBERLEY K. WALLEY 

TESTII\IOi'iY OF KIMBERLEY K. WALLEY 

ON BEHALF OF THE BIODIVERSITY LEGAL FOUNDATION 

BEFORE THE COMMITTEE ON RESOURCES OF THE 

L".S HOUSE OF REPRESENTATIVES 

(July 24. 1996) 

1 thank the Committee lor this opportunity to testifY regarding the "No Surprises" policy 

which the U.S. Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") 

(collectively the "Services") has made a part of habitat conservation planning under the Endangered 

Species Act ("ESA"). I am an attorney with the law firm of Meyer & Glitzenstein. which represents 

a number of conservation groups that recently sent a "60-day notice letter" to the Services. 

contending that the ·'No Surprises·· policy violates the ESA. On behalf of the Biodiversity Legal 

Foundation ("BLF"). one of the groups which submitted the notice letter. I have been asked to testifY 

as to why we believe that the current ·'No Surprises'' policy violates the ESA. I will discuss why the 

BLF believes the current "No Surprises" policy is a step in the v.TOng direction for habitat 

conservation planning and. in particular. why this policy violates the letter and spirit of the ESA. 

I will then offer some general recommendations regarding the implementation of a "No Surprises" 

provision as part of habitat conservation planning under section 1 O(a) of the Act.' 

WHY THE BLF IS CHALLE:"'GING THE "NO SURPRISES" POLICY 

A. A Brief Overview of the ESA and the Adoption of the "No Surprises" Policy. 

Under the ESA. it is illegal for anyone--~. Federal and State agencies. local governments. 

and private landovmers --to "take" an endangered or threatened animal. 16 U.S.C. § 1538(a)(1 ). 

The term "take" means "to harass. harm, pursue. hunt. shoot. wound. kill. trap, capture, or collect. 

or to attempt to engage in any such conduct." 16 V.S.C. at§ 1532(1). Since "[h]abitat ... is 

absolutely crucial to species survivaL" National Research Council, Science and the Endangered 

Species Act (1995) at vii, the FWS defined "harm" to include "significant habitat modification or 

degradation" that "kills or injures wildlife." 50 C.F.R. § 17.3. Thus, the ·'take" prohibition applies 

to almost any activity that would directly kill or harm a listed species, as well as many activities that 

cause only indirect harm. 2 

For the Committee's convenience. attached is a copy of the above-referenced 60-

day notice letter. ("Attachment A"l. 

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 

, 115 S Ct 2407 (1995). the Supreme Court upheld the FWS's regulatiOn defimng ··harm" to 

include habitat modification or degradation. 
63 

Until !982. there was no mechanism in the Act that allowed for any "take" that might occur 

"incidentally" during development or other similar activities by private landov.ners. Thus. in 1982, 

Congress amended Section 1 C of the ESA by adding an exception to the Act's strict "take" 

prohibition which allowed the Services to issue an "incidental take permit" ("ITP") to a private 

party, granting that party permission to "take" listed species. provided that the take is "incidental" 

to ·'otherwise lawful activity" and is accompanied by a ··conservation plan" that has been approved 

by the Services.l!i at§ I 539(a)( 1 )(13).' 

In particular. before the Services may issue an ITP. they must find, atier an opportunity for 

public comment. that ( 1) "the taking will be incidentaL" (2) ·'the applicant will to the maximum 

extent practicable minimize and mitigate the impacts of such taking;" (3) "the applicant will ensure 

that adequate funding for the plan will be provided;" (4) "the taking will not appreciably reduce the 

likelihood of the survival and recoverv of the species in the wild;" (5) "the measures. if any, 

required" by the Services as necessary or appropriate. "will be met;" and (6) the Services have 

"received such other assurances as [they] may require that the plan will be implemented." lli at§ 

1539(a)(2)(B) (emphasis added);= also 50 C.F.R. §§ 17.22, 17.32. 

Congress modeled its HCPTI"P exception "atier a habitat conservation plan developed by 

three Northern California cities. the County of San Mateo. and private landowners and developers 

to provide for the conservation of the habitat of three endangered species and other unlisted species 

of concern within the San Bruno Mountain area of San :VIateo County." H.R. Rep. No. 835, 97th 

Cong .. 2nd Sess. 31 (1982). Congress focused on four main elements of this plan-- known as the 

San Bruno HCP --when it enacted section 10. l!i These elements were as follows: (1) the HCP 

protected "in pemetuitv at least 87 percent of the habitat of the listed" species: (2) the plan 

established a funding program which provided "permanent on-going funding;" (3) the plan 

established "a permanent institutional structure to insure uniform protection and conservation of the 

habitat throughout the area:" and ( -l) there was "a formal agreement between the parties to the plan 

which ensure[d] that all elements of the plan will be implemented ... lli (emphasis added). 

In creating the HCP process under section lO. Congress also "expect[ed] that any plan 

approved for a long-term permit will contain a procedure by which the parties will deal with 

unforeseen circumstances ... H.R. Rep. No. 835. 97th Cong .. 2nd Sess. 32 (!982) (emphasis added). 

For example, under the San Bruno HCP. the parties agreed that the FWS could impose further 

mitigation measures on almost 90°/o of the habitat in the event of unforseen circumstances. 

According to the FWS. these modification procedures were important because they would "ensure 

both that the atlected species will be conserved regardless of changed circumstances and that the 

The conservation plan -- which is otherwise known as a "habitat conservation 

plan" or ·'HCP'' --must specify what the impacts of the taking on the species will be and how 

those effects will be mitigated. how the species will benefit from the plan, and what alternatives 

the applicant considered and wh: those alternatives are not being utilized. See !.4:. at§ 

1 539(a)(2)(A). 

2 
64 

applicant's activities are not unduly interrupted when the new conditions take effect.'' 50 Fed. Reg. 

39681. 39684 (September 30. 1985). Thus. under the Services' published regulations. HCPs =1 

include specitic measures fo r addressing untorescen circumstances before a permit may be issued 

by the FWS. 50 C.F.R. §§ 17 2~(b). 17.32tb). and 222.22. 

The Department of the Interior and the Department of Commerce signiticantly revised how 

unfore seen circumstances are to be addressed in HCPs when they jointly issued a new "policy" 

entitled "No Surprises: Assuring Certainty For Private Landowners In Endangered Species Act 

Habitat Conservation Planning" (the "No Surprises" policy) on August II. 1995. ~ ("Anachment 

I" to Anachment A). This revision was made effective immediately and promulgated without any 

prior opportunity for public notice and comment. hL 

Under this ·'new" policy. the Services =t provide landowners with the following "General 

Assurances." First. after an I·ICP has been approved and an ITP has been issued. the Services cannot 

even contemplate any additional mitigation measures aimed at conserving endangered or threatened 

species until they have demonstroted that "extraordinary circumstances" exist that warrant such 

additional protection. Attachment I at 8.' 

Second. even if"extraordinary circumstances" are shown to exist. the Services "shall not seek 

additional mitigation for a species from an HCP permittee where the tem1s of a properly functioning 

HCP agreement were designed to provide an overall net benetlt for that particular species and 

contained measurable criteria for the biological success of the HCP which have been or are being 

met." llL (emphasis added). Rather. "the primary obligation for such measures" will rest with the 

Services. "not[] with the 1-ICP permittee." llL 

Finally. even in "e.xtraordimry circumstances," all additional mitigation measures "shall be 

limited to the original terrns of the HCP to the maximum extent possible and shall be limited to 

moditlcations within Conserved Habitat areas or to the HCP's operating conservation program for 

Under the policy. the Serv·ices bear the burden of demonstrating that 

"extraordinary circumstances" ex ist based on the fol lowing factors: ( I) size of current range of 

affected species; (2) percentage of range adversel y affected by the HCP; (3) percentage of range 

conserved by the HCP : (4) ecological signitlcance of that portion of the range affected by tile 

HCP: (5) level of knowledge about the affected species and the degree ofspeciticity of the 

species conservation program under the HCP: (6) whether the HCP was originally designed to 

provide an overall net bcnotit to the affected species and contained measurable criteria for 

assessing the biological success of the HCP: and (7) whether failure to adopt additional 

conservation measure would appreciablv reduce the likelihood of survival and recovery of the 

affected spec ies in the wi ld. Sec l\L The Services must use the best scientitlc and commercial 

data available and their tindings must be clearly documented and based upon reliable technical 

intormation. hL 
65 

the atfected species." l.Q_, Any "[a]dditional mitigation requirements shall not involve the payment 

of additional compensation or apply to parcels of land available for development or land 

management under the original terms of the HCP without the consent of the HCP permittee." I.Q_, 

(emphasis added). 

Therefore. under this new approach to HCPs. if either (a) circumstances change for listed 

species which show that changes in the HCP are needed to conserve the species or (b) species which 

are not listed at time of the HCP arc subsequently listed and their habitat falls within the HCP area, 

the types of. and instances in which. additional mitigation measures may be implemented are 

substantially restricted. For enmplc. if the FWS tinds. after it has entered into an HCP. that a 

particular species needs certain additional mitigation measures. and the lando\\>Tler refuses to allow 

the implementation of those measures. the Service must bear the burden of finding a way to 

implement the needed mitigation measures. The only way the FWS could then ensure that the 

mitigation measures are implemented would be to buy the land in question. See Attachment 1 (to 

Attachment A) at 8. However. even assuming the landowner is willing to sell the property, the 

purchase of lands. especially lands that are attractive to developers, is extremely costly and the 

Services have olfered no assurance in this policy, or anywhere else. that adequate funding will be 

available to purchase these lands. Indeed. in light of existing budget constraints. such a guarantee 

is unlikely to be forthcoming any time in the foreseeable ti.lture. 

Since its enactment. this radical new "policy" -- once again. having been exposed to !!Q 

public input --is being applied to HCPs at an dizzying pace. Currently. there are more than 150 

I-! CPs being negotiated nationwide-- all of which must contain assurances under this new policy that 

all species covered in the plans are considered by the Services to be "adequately" protected by the 

terms of the plans. See Testimony of George Frampton before Endangered Species Task Force of 

the House Resources Committee on the ESA (:V!ay 25. 1995). :V!any of these HCPs are scheduled 

to last for up to I 00 vears, cover tens to hundreds of thousands of acres of land, and assure the 

continued survival and recovcn· ufhundrcds of listed and unlisted ("candidate") species. 5 

In fact. just last week. on Julv 17. 1996, Secretary Babbitt signed olf on the Orange County. 

California. Central and Coastal Subregion Natural Communities Conservation Plan and HCP which 

is for a 75-year permit for construction. infrastructure. development grazing, mining and recreation 

covering 208.713 acres of which approximately 78% of the total acreage will be allowed to be 

developed under the project. This plan purports to adequately assure the continued survival and 

recovery of 47 species. including seven threatened and endangered species and four proposed 

threatened and endangered species. Another recently approved HCP is the Plum Creek HCP in the 

State of Washington which covers 170.000 acres. and purports to adequately ensure the continued 

The pace of HCP issuance has accelerated over the years since 1982. While only 

fourteen HCPs were completed between 1982-92. since 1992. the FWS has completed more than 

60 additional HCPs. l.Q_,; ~also Lehman. William. "Reconciling Cont1icts Through Habitat 

Conservation Planning:· Fndanoered Species Bulletin Vol. XX. No. I (Jan./Feb. 1995) 16. 18. 

4 
66 

survival and recovery of286 species. including the threatened northern spotted owl. wo lf and grizzly 

bear. Y ct this plan defers tim her harvest on only 2.600 acres of the 170.000 total acres 

(approximately 15% of the total acreage) for a 20 year period. and the permit is schedu led to last 

between 50 to I 00 years. Another recently approved HCP --the Balcones Canyonlands HCP in 

Austin. Texas-- covers 555.000 acres of which up to 60.000 acres are projected to be developed over 

the 30-year lifetime of the permit. This plan calls for the preservation of 30.428 acres of blackcapped vireo and golden-cheeked warbler habitat. and is supposed to adequately protect 44 species. 

These and other massive HCJ>s contain the "No Surprises· assurances so that if the plans do not 

prove to be adequate to protect the affected species it will be almost impossible to revise them.' 

B. The Current "No Surprises" Policv Flies In The Face Of Sound Science, 

Realistic Species Management. and Basic :-<eeotiating Principles. 

After examining the duration of these HCI's. the acreage that each plan covers, and the 

enormous numbers of species that are supposed to be adequately protected under each of these plans. 

one of the most obvious questions raised by the Services' radical ''No Surprises'' policy is the 

following-- how can the Services conceivably assure that a ll of the affected species will continue 

to survive and recover under the terms of these plans throughout the duration of the permit period? 

Indeed, it is this very question. and the lack of any reasonable answer to it. that has caused 164 

biologists -- including some of the premier conservation biologists in the world -- to write letters to 

members of this Committee expn:ssing their serious concern that the .. No Surprises"" approach in 

habitat conservation planning "docs not rdlect ecological reality and rejects the best scjen.lifk 

knowledge and ju d~ment of our cru." ~ Letter to Senator John Chafee and Congressman James 

Saxton from Dr. Gary K. Meffe. Senior Ecologist, Savannah River Eco logy Lab. and Professor. 

University of Georgia. ~ilL (July 22. 1996) ("Attachment !3") at I (emphasis added): ~;ili,Q Letter 

to Senator John Chafce and Congressman James Saxton from Dr. Michael Soule. Professor. 

University of California. Santa Cruz (J une 18. 1996) ("Attachment C"). 

According to these kadin ~ scientists. the ":--io Surprises" policy is deeply tlawed for two 

interrelated reasons. First. it is extremely unlikely that biological conditions during the life of an 

HCP, especially an HCP that is expec ted to last for 50- 100 years. wi ll remain static. Indeed. 

·•uncertainty. dynamics. and !lux" arc the "best descriptors of ecological systems." Attachment B 

at I. Some of the sources of uncertainty include "unpredictable. localized environmental events such 

as fires, disease outbreaks. [and ! storms that aher (habi tatJ structurt;::' .. losses or changes of genetic 

structure in small populations that aflt!ct tht!ir future adaptability.·· ·'the influence of random events 

Other recently nrrrnvcd II CPs include (I l the Fieldstonc/La (\)sta Associates and 

City of Carlsbad HCP which a ll ows li>r the loss of up to 1,237.7 1 acres within a 1.940.2 acre 

project o.rca over a 30-year permit pt.:riod. and covers 63 species including ft)ur endangered or 

threatened species: and (2) San Diego (i"s & Electric HCP which allows for the loss of up to 400 

acres over a 55-ye"r rermit period. and covers II 0 species including 19 endangered or threatened 

species and 14 proposed endangered nr threatened species. See Attachment 2 to Attachment A. 
67 

on survival of very small populations:· and ··ti]nsufficient knowledge." l!Lat2. Thus, according 

to these scientists. their "collective sc ienti lic experience indicates that there will be manv surorises 

in conservation planning."' IlL (emphasis added). 

Uncertainty. however. is not limited to "biological" changes alone; common sense dictates 

that ··political''and "sociological" changes are also likely to change over the course of 50 to 100 

years. For example. last year Congress passed the logging rider which required salvage logging of 

dead, diseased or dying trees without the hencfit of any environmental anaiysis. As a result of this 

rider, HCPs that had been developed assuming full protection of species habitat within President 

Clinton's Northwest Forest Plan are sudden ly faced with "changed circumstances'' that may affect 

the status of a species that is covered bv an HCP. As such. even the FWS has acknowledged that 

the rider has thrown these plans ·'out of balance" thus potentially requiring additional mitigation 

under those HCPs. ~"Rider may cause FWS to revisit HCPs," Endangered Species and Wetlands 

Report (March 1996) at 5 ("Attachment D"). 

This level of uncertainty is further exacerbated by the fact that many of these HCPs include 

numerous species, which have yet even to be listed. As to most of these '·candidates," scientists have 

not even begun to assess what is required for their survival and recovery. Thus, the question arises, 

how can the measures in an HCI' "adequately assure'' the continued silrvival and recovery of a 

species if scientists do not even know what the needs of a species are when the HCP is approved by 

the FWS'' This very same concern was acknowledged in the Keystone Report. which resulted from 

a dialogue between FWS ot1icials. developers. and scientists. in which the participants stated that 

there was a ·•concern about the application of the ·~o Surprises policy to unlisted species if there 

is no later opportunity to review whether the HCP has contributed to the decline of the species if the 

species is subsequently listed' ' The Kevstone Dialogue on Incentives for Private Landow11ers to 

Protect Endangered Species (July 25. 1995) at 25. Simply put, there is no way that the FWS can 

know that mitigation measures in an HCP will adequately protect a species which has been subjected 

to little or no sc ientitic scrutiny prior to listing. 

The biological and political reality of changing circumstances leads to the second flaw 

identitied by the scientists in their criti que of the "No Surprises" policy. As circumstances 

surrounding an HCP and the species it covers are likd y to change over the course of an HCP, the 

logical response would be to revise the management of the plan in response to these changes --an 

approach commonly relerrcd to as "adaptive management."' Attachment Bat 2. However, the "No 

Surprises'' policy '"close[s! the door to adaotive mana~ement by saying that, once an agreement is 

made, new and better scientific information will not alter it" unless the landow11er agrees to the 

alterations or the FWS tinance the alternations. IlL (emphasis added). 

As a relatc:d proposition. lhc policy also undermines the right of affected individuals and 

conservation groups to comment on whether. and under what circumstances, an ITP/HCP will be 

issued. ~ 16 U.S.C. § 1539(c). Since the policy (which itself was issued with no notice and 

comment) provides that "no surprises" guarantees will be included in every HCP. regardless of 

circumstances. it effectively forecloses the public's ability to "comment" on whether such a 

6 
68 

guarantee is biologically advisable and damaging in anv particular circumstances. For example, with 

regard to the Orange County Central and Coastal Subregion HCP. commenters criticized the 

application of the "No Surprises" policy tuthe HCP as restricting the FWS's ·'no jeopardy" duty 

under section 7 of the ESA. The FWS responded to this criticism by summarily stating that the HCP 

accurately reflects the FWS's new polic! 

Indeed, even trom the agencies' standpoint in implementi ng.section I 0. it is impossible to 

comprehend why the agencies have not at least retained the regulatory fl ex ibil ity to determine, on 

a case by case basis. whether a "no surprises" guarantee will further the purposes of the Act in any 

particular instance. Instead, the agencies have. in effect. "shown their cards" before even entering 

into negotiations with those wishing to take endangered or threatened species. In other words. the 

policy effectively forfeits the use of a "no surprises" assurance as a bargaining chip to secure better 

conservation commitments because it mandates that ;ill landowners will have the benetit of these 

assurances irrespective of the conservation commitments they are willing to make. Now, developers 

come to the bargaining table expecting that these assurances will be given by the FWS. and even 

demand that these assurances will cover any species that exists. or may exist, on the land in question. 

See,~. Plum Creek HCP (covers 286 listed and unlisted species); San Diego Gas & Electric HCP 

(covers I 10 species): Central and Coastal Subregion :--iatural Communities Conservati on Plan and 

HCP (covers 47 species); and Fieldstonc'Las Costa Associates and City of Carlsbad HCP (covers 

63 species). Hence. the policy not on lv forec loses case by case public input into the degree to which 

particular HCPs should be susceptible to new mitigation measures. but it also irrationally ties the 

hands of the agencies' ovm biok)gists and nther officials in negotiating meaningf ~ biologically 

sound HCPs. 

C. The "No Sum rises'' Poljcv Violates The ESA. 

In light of the above problems with the "~o Surprises'' policy. the BLF. along with nine other 

organizations and individuals. sent a letter to the Services informing them that they violated a 

number of duties under the ESA "hen thev· issued this policy. 

I. The ;'No Surprises" policy 'iolates the Services· duty to ··carry[] out programs for 

the conservation of endangered species and threatened spec ies." 16 U.S. C. § 1536(a)( I). In other 

words, the Services must "usc [) all methods and procedures which are necessarv to bring any 

t=ndangcred species o r threatened species to the point at which !he measures provided pursuant to 

[the Act] are no longer necessary ... l!L at ~ 1532t 3) (emphasis added). 

Under the "No Surprises" po licy. however. the Services have severely limited both the 

instances in which they may prescribe additional mitigation measures for the conservation of 

endangered md threatened species and the types o f mitigation measures they may prescribe. Indeed, 

once a HCP is approved. and an ITP is issued. if the Services find that additional mitigation 

measures are critical to the continw:d sun·i\·al and recoverv o f an c:ndannered or threatened species, 

the Services must bear the obligation llf implementing those measures. If that is not feasible for any 

reason, then the species \Viii go ~xtinct. 
69 

Such an approach can hardly be described as "provid[ing] a means whereby the ecosystem 

upon which endangered and threatened species depend may be conserved." 16 U.S.C. § l 536(a)( l). 

Rather. after an HCP has been approved. measures whic h are needed to conserve a species and its 

ecosystem will be allowed m in the exceedi ngl y unlikely event that the landovmer/deve loper 

agrees to the measures or the Sef\·ice buys the land in question. Therefore. in adopting this "No 

Surprises" policy, the Services have effectively foreclosed their ability to "use all methods and 

procedures necessary" to conserve species. whose habitat happens to fall within an HCP. and hence 

they have plainly violated their duties under sections 2 and 7(a)( I) of the ESA. 

2. This policy violates the Services' duty to ·• insure that any action authorized. funded, 

or carried out by [either) agency'' -- an HCP and !TP -- ''is not likely to jeopardize the 

continued existence of any endangered species or threatened species .. .. " 16 U.S. C. § 1536(a)(2). 

Under the section 7 consultation process. if an agency determines that an action "may affect" a listed 

species, the FWS must prepare a "biolo!!ical opinion" which "detail[s) how the agency action affects 

the species." 16 L:.S.C. § l536(b)(30(A). and sets fo nh the FWS's opinion as to whether the action 

is "likely to jeopardize" the continued existence of the species. SO C.F.R. §§ 402.14(g)(, (h)(l)-(3).1 

If the FWS or NMFS concludes that an action is likely to jeopardize a species. the FWS or 

NMFS "shall suggest those reasonable and prudent alternatives" which. if implemented. would not 

result in a violation of the Act. 16 l! .S.C. § l536(b)(3)(B). Finally. if formal consultation has 

already occurred. but new information is brought to light that "may affec t listed species or critical 

habitat in a manner or to an extent no previousl y considered" or a "new species is listed or critical 

habitat is designate that may be affected by the identilied action." section 7 consultation must be 

reinitiated. 50 C.F.R. § 402.16. 

But, under the "No Surprises" approach. the Services are essentially prohibited from 

perfonning any meaningful re-examination of the HCP because the policy predetennines whether 

additional mitigation measures may be enacted in the tirst place and. if mitigation measures may be 

enacted, what kinds of measures may be taken to co nserve the species by placing the burden of 

additional mitigation onto the Services. Such an aniticial narrowing of the scope of consultation 

violates the ESA's mandate that the Services "illill.! . .. insure that~ authorized. funded, or 

carried out by such agency ... is not likely to jeopardize the continued ex istence of any endangered 

Since the decision to issue an fTP is an "action authorized by a Federal agency," 

the FWS requires all section 10 lTPs to he subjec t to section 7 consultation. 50 Fed. Reg. at 

39683; illl!lli! i.\i., 9.!.inl: H.R. Rep. No. 835. 97th Cong .. 2nd Sess. 29-30 ("Congress expressly 

linked [ITPs] with the consultation requirement by including one of the section 7(a)(2) standards 

as a necessary criterion for issuing an [ITP]"). Thus. according to the FWS, "section lO(a) 

reinforces the consultation requirement with respect to [ITPs] by requiring a non-jeopardy 

finding (or a jeopardy finding with reasonable and prudent alternatives that are implemented by 

the Federal agency or applicant) as a precondition to issuance of a permit. " 50 Fed. Reg. at 

39683. 

8 
70 

species or threatened species .... " 16 U.SC. ~ 1536(a)(2) (emphasis added)' 

In tact. unde r the po licy. it any new intormation arises that requires the Services to take 

ano the r look at the HCP. the standard tor reevaluating the HCP and its accompanying biological 

opinion wi ll not be that the Services sha ll insure that the action is not likelv to jeopardize the species 

-- as required by the ESA. Rather. the standard will now be that avoidance of jeopardy will be 

"assured" only where a landowner co nsents to the measures or the Services have the funds to 

purchase the land in question. In all other circumstances involving unforeseen circumstances the 

Service will have to allow the project even if it jeopardizes the species. Thus, under this policy, 

since the Services can no longer "insu re" that the HCPs that they approve are "not likely to 

jeopardize the continued existence" of a endangered or threatened species, the Services have violated 

the plain terms and clear purpose o f section 7(a)(2) of the ESA. 

J. The ·'No Surprises" policy violates both the lener and spirit of section 10 of the ESA. 

Under section I 0, Congress directed that an HCP may not be approved and issued until the Services 

find that. among other things. the "conservation plan[] spec ifies the impact which will likely result 

from such taking. what steps the applicant will take to minimize and mitigate those impacts. what 

other alternatives that would not result in the takings were analyzed, and why those alternatives were 

not adopted." H.R. Rep. ~o. 835. 97th Cong .. 2nd Sess. 29 ( 1982); ~ llliQ 16 l!.S.C. § 

1539(a)(2)(B) ("the applicant wi ll. to the maximum extent practicable, minimize and miti gate the 

impacts of such taking"). 'VIoreover. the Services must "base [their] detennination as to whether or 

not to grant the permit. in pan. b~ using the same standard as found in section 7(a)(2) of the act . 

. that is. whether the taking will appreciab ly reduce the likelihood of the survival and recovery of 

the species in the wild." H.R. Rep. No. 835, 97th Cong .. 2nd Sess. 29 (1982); ill ;iliQ 16 U.S.C. 

§ 1539(a)(2)(B) ("the applicant will. to the maximum extent practicable, minimize and mitigate the 

impacts of such taking" and "the taki ng will not appreciably reduce the likelihood of the survival and 

recovery of the spec ies in the wil d"). 

While section l 0 plain lv· req uires that an HCP "applicant will. to the maximum extent 

practicable. minimize and mitigate the impacts" of the taking, 16 U.S.C. § 1539(a)(2)(B), under the 

·'No Surprises" policy. alter an HCP has been approved. the applicant no longer must bear the 

As for species that are proposed fo r listing after an HCP is approved, it is 

especia lly hard to imagine how the Sen ·ices will be able to " insure" that the actions approved in 

an HCP will not ·'jeopardize the contin ued ex istence" of those species. 16 U.S. C.§ 1536(b)(2). 

As noted above. it is highlv unlike ly that the Services will have compiled in-depth information 

regarding what is required to cons~rv\! each and every unlisted species "covered" under an HCP. 

Such informati on is usually collected during the listing process-- which. for unlisted species, 

will be conducted at\er the HCP has been approved ami the Services have "assured" the 

landowners that no additional mitigation measures will be required (unless the landowners agree 

to the measures). Thus. without this critical information, it is extremely unlikely that the 

Services will be able to evaluate thoroughly the effects of an HCP on unlisted species and thus 

assure that these species will a lways be adequate ly protected by the plan. 

9 
71 

burden of "minimiz[ing] and mitigat[i ngj the impacts" of the taking "to the maximum extent 

possible. " Instead. the Sen ices must bear this burden. In addition. since section I 0 requires that 

the Services insure that an HCP and ITP is ··not likely to jeopardize .. any species covered under the 

HCP --and. as discussed abow. since the polky violates section 7(a)(:!) of the ESA. this policy 

necessarily vio lates section 10 of the ESA for that reason as we ll. 

In add ition to violating the plain language of section I 0 of the Act. this policy also 

contravenes the purpose of the provision. When Congress enacted section 10, it did not envision 

such limitations on the contents of HCPs. fo r instance, the San Bruno HCP. which served as 

Congress' model. allowed the implementation <> r additional miti~ ion measures re~ard ess of what 

the landowner/gpplicant wanted in almost 90% of the habitat covered in the plan. Thus. Congress 

intended that an HCP shall contain provisions that al lows the Services to accommodate and adjust 

the management under the plan as ·· unfo rseen circumstances .. arise. Congress did not intend for 

HCPs to ignore changed circumstances simpl y because the landowner refuses to allow for further 

mitigation and the Services cannot implement the measures because they cannot purchase the land. 

In addition, when Congress enacted section I 0. it envisioned that HCPs would "enhance the 

habitat of the listed species or increase the lon~ term survivability of the species or its ecosystem." 

H.R. Rep. No. 835, 97t h Cong .. 2nd Sess. 3 1 ( 1982). Now. under this new policy, the goal of 

"increas[ing] the long-tenn survi vability" oro spec ies and its ecosystem has been abandoned in favor 

of providing landowner/deve lopers with u ti xed plan that can only be revised if the landowner 

consents or is paid ot"fby the Se rvices. Thus. instead of the interests of the species dri ving the HCP 

process, as Congress had originally intended. the interests of the landowners are now driving the 

process. 

Therefore. in light of the above. the Service's imposition of such limitations o n the contents 

ofHCPs, through the implementation of this policy. violates both the letter and spirit of section 10 

of the ESA. 16 U.S.C § !539(a). 

GE~ERAL RECOMMENDATIONS 

Since "[!Joss of habitat is a major tact or in species extinction when the cause of extinction 

is knov,n," it i3. now more than ever. critical that habitat conservation planning be based on the best 

scientific information. National Research Council. Science and the Endangered Species Act (! 995) 

at 58. When done in accordance with Congress' original intent. habitat conservation planning offers 

the opportunity to preserve and protect threatened and endangered species while. at the same time, 

allowing landowners a reasonab le opportunity to engage in activities that do not threaten imperilled 

species. To return to that original purpose and in stark contrast to the radical "No Surprises'' policy 

adopted by the Services. we suggest the to! lowi ng approach. First. lim: policy should be made 

discretionary. not mandatory·· !k. as discussed above. it is completely irrational to~ that 

every single HCP. regardless of circumstances. must contain "No Surprises .. assurances. Such a 

mandate strips the Services of a powerful bargaining chip during the negotiation process and it 

ignores the fact that there may be instances in which the Services may not have enough scientific 

infom1ation be fore them to make these kinds o r hroad assurances regarding a species survival and 

10 
72 

recovery. Instead. as suggested in Dr. Soule's letter. FWS biologists must have the authority to 

negotiate HCPs -· including th~ h:n~l and extent of assurances to landowners-- on a case bv case 

basis. in light of the specilic biological. ecologicJI and other circumstances applicable to a particular 

situation. Sec Attachment C at 2. 

Second, instead of offering .. ~o Surprises" assurances as iron clad guarantees. any approach 

to this issue must ensure that an HCP may be modi lied if the Services can show that unanticipated 

circumstances have arisen that require further mitigation measures. If the Services can show. based 

on developments that the parties did not reasonably anticipate at the time the HCP was negotiated, 

that implementation of additional mitigation measures are needed in order to provide for the 

continued survival and recovery of a species. the Services must retain the flexibility to revise the 

HCP/ITP. 

This kind of reasonable "reopener" provision -- which essentially establishes a~ 

presumption that new mitigation measures will not be necessary -- is already a well-established 

feature of fede ral environmental law. Indeed. such a provision is regularly found in natural resource 

agreements negotiated pursuant to the Comprehensive Environmental Response. Compensation. and 

Liability Act ("CERCLA'') -- in which settling parties agree that the government may require 

additional contribution from polluting parties for injury to. destruction of, or loss of natural 

resources, of a type unknown as of the date of the agreement. Attachment E and F 

(portions of natural resource wnsent decrees entered into in Califo rnia by the State of California, 

the Depanment of Commerce. ami private parties). 

CO:SCLUSION 

As Secretary Babbitt stated one ~ca r ago in his testimony before the Senate Subcommittee 

on Drinking Water. Fisheries and Wildlife. "[i]fsound science and wise management of our natural 

resources guide our actions. we will benetit not only threatened and endangered species. but the 

human species as well." Testimony before the Subcommittee on Drinking Water. Fisheries and 

Wildlife of the Senate Environment and Public Works Comminee on the Endangered Species Act 

(July 13 , 1995) at 13. However. as the ·so Surprises" policy now stands. it ignores the most basic 

of biological principles -- that .. nature is anything but predictable' -- fails to allow for the 

incorporation of the best scientilic information into HCPs. strips the public of the ability to offer 

meaningful comment on HCPs, and gives away one of the Services' major bargaining chips even 

before the parties reach the tab le. Thus. if"sound science and wise management" are truly to guide 

the government's actions. the "No Surprises" policy, in its present form. must be abandoned. By 

no means should this ill-concei,·ed policy-- which will hasten. rather than avoid. extinctions-- be 

codified as a part of any reauthori zation of the ESA. 

II 
Katherine A. Meyer 

Eric R. Glitzenstein 

Kimberley K. Walley 

D.J. Schubert 

(Wildlife Biologist} 

By Certified Mail 

Bruce Babbitt 

Secretary 

U.S. Department of the 

Interior 

1849 C Street, N. W. 

Washington, D.C. 20240 

John Rogers 

Acting Director 

U.S. Fish and Wildlife Service 

1849 C Street, N.W. 

Washington, D.C. 20240 

73 

Meyer & Glitzenstein 

1601 Conncctit: ut Avenue, N. W. 

Suite 450 

Washington , D.C. 20009-1035 

June 13, 1996 

Michael Kantor 

Secretary 

Telephone (202) 588-5206 

Fax (202) 588-5049 

U.S. Department of Commerce 

14th and Constitution Ave .. N.W. 

Washington, D.C. 20230 

Roland A. Schmitten 

Assistant Administrator 

National Marine Fisheries 

Service 

1315 East-West Highway 

Silver Spring, MD 20910 

Re: Notice of Violation of the Endangered Species Act In Connection With The DOl and 

DOC's Issuance Of An August II , 1994, Memorandum Which Instituted A New 

"Policy" Entitled "No Surprises: Assuring Certainty For Private Landowners In 

Endangered Soecjes Act Habitat Conservation Planning" 

Dear Secretary Babbitt, Secretary Kantor, Acting Director Rogers, and Assistant Administrator 

Schmitten: 

On behalf of Spirit of the Sage Council ("Sage"), Leeona KJippstein, The National ESA/HCP 

Network. the Biodiversity Legal Foundation ("BLF"), The Fund For Animals, San Bruno Mountain 

Watch, David Schooley. Shoshone Gabrielino Nation, Chief Vera Rocha, and Dolores Welty, we 

hereby provide notice, pursuant to section ll (g) of the Endangered Species Act, 16 U.S.C. § 1540(g) 

("ESA"), that the U.S. Fish and Wildlife Service ("FWS"), and National Marine Fisheries Service 

("NMFS") (collectively referred to as the "Services") violated their duties under the ESA when they 

jointly issued a memorandum -- without any prior public notice and comment --announcing a new 

"policy" in which the Services substantially revised the rules regarding the revision of approved 

Habitat Conservation Plans ("HCPs") under section 10 of the ESA, 16 U.S.C. § 1539. 
74 

BACKGROUND 

A. Habjtat Conservation Planning under Sections 9 and 10 of the ESA. and Its 

Implementing Regulations. 

Under section 9 of the ESA, 16 U.S.C. § 1538(a)(l), it is illegal for anyone to "take" an 

endangered or threatened animal. Stt liliQ 50 C.F.R. §§ 17.21, 17.3 1. The term "take" means "to 

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any 

such conduct." 16 U.S.C. § 1532(1). Section 10 of the ESA contains an exception to this strict 

prohibition under which the Services "may permit, under such terms and conditions as [the Services] 

shall prescribe ... any taking otherwise prohibited by section [9] ... if such taking is incidental to, 

and not the purpose of. the carrying out of an otherwise lawful activity." !Q. at § 1539(a)(I)(B). 

This permit is commonly referred to as an "incidental take permit" ("ITP").' 

Neither FWS nor NMFS may issue an ITP unless the applicant submits a conservation plan 

(known as a "Habitat Conservation Plan" or "HCP") which specifies: (I) "the impact which will 

likely result from such taking;" (2) "what steps the applicant will take to minimize and mitigate such 

impacts, and the funding that will be available to implement such steps;"(3) "what alternative actions 

to such taking the applicant considered and the reasons why such alternatives are not being utilized;" 

and ( 4) "such other measures that the [Services] may require as being necessary or appropriate for 

purposes of the plan." !Q. at§ 1539(a)(2)(A). 

The Services "shall issue the permit" if they find, after an opportunity for public comment 

on the ITP application and the related HCP, that 

(I) "the taking will be incidental;" 

(2) "the applicant will, to the maximum extent practicable, minimize and mitigate the 

impacts of such taking;" 

(3) "the applicant will ensure that adequate funding for the plan will be provided;" 

(4) "the taking will not appreciably reduce the likelihood of the survival and recovery of 

the species in the wild;" 

(5) "the measures, if any, required" by the Services as necessary or appropriate, "will be 

While Section I 0 requires an ITP only for the "taking" of endangered species, the 

FWS has extended the ITP requirement to encompass threatened species. 50 C.F.R. § 17.32. 

NMFS, on the other hand, has not extended this requirement to threatened species. Instead, the 5 

species listed by NMFS as threatened are protected by special regulations implemented under 

section 4(d) of the ESA, 16 U.S.C. § 1533(d). ~50 C.F.R. part 227. 

2 
75 

met;" and 

(6) the Services have "received such other assurances as [they] may require that the plan 

will be implemented." 

!d. at§ 1539(a)(2)(B); see l!llil50 C.F.R. §§ 17.22, 17.32. 

In enacting section 10 of the ESA, Congress modeled section 10 "after a habitat conservation 

plan developed by three Northern California cities, the County of San Mateo, and private landowners 

and developers to provide for the conservation of the habitat of three endangered species and other 

unlisted species of concern within the San Bruno Mountain area of San Mateo County." hL at 31. 

Congress focused on four main elements of this plan -- known as the San Bruno HCP -- when it 

enacted section I 0. I d. These elements were as follows: (I) the HCP protected "in per:petuity at 

least 87 percent of the habitat of the listed" species; (2) the plan established a funding program which 

provided "permanent on-going funding;" (3) the plan established "a permanent institutional structure 

to insure uniform protection an conservation of the habitat throughout the area ;" and (4) there was 

"a formal agreement between the parties to the plan which ensure[d] that all elements of the plan will 

be implemented." H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32 (1982) (emphasis added). 

Congress also recognized the need for HCPs to accommodate "unforeseen circumstances." 

hL at 31. Indeed, Congress stated that it "expect[ed] that any plan approved for a long-term permit 

will contain a procedure by which the parties will deal with unforeseen circumstances." hL In 

accordance with this intent, both the FWS and NMFS regulations expressly provide for 

modifications of HCPs in appropriate circumstances. Thus, the FWS regulations contain a 

provisions which requires the "[i]ncorporation of modification procedures into a conservation plan." 

50 Fed. Reg. 39681,39684 (September 30, 1985). According to the FWS, modification procedures 

are important because they will "ensure both that the affected species will be conserved regardless 

of changed circumstances and that the applicant's activities are not unduly interrupted when the new 

conditions take effect." !d. Thus, under the regulations, HCPs must include specific measures for 

addressing unforeseen circumstances before a permit may be issued by the FWS. 50 C.F.R. §§ 

17.22(b), 17.32(b).2 

Finally, since the decision to issue an lTP is an "action authorized by a Federal agency," the 

FWS requires all section 10 ITPs to be subject to section 7 consultation. 50 Fed. Reg. at 39683; see 

llllili£L 9!i.ng H.R. No. 835, 97th Cong., 2nd Sess. 29-30 ("Congress expressly linked [ITPs] with 

the consultation requirement by including one of the section 7(a)(2) standards as a necessary 

criterion for issuing an (ITP]"). Thus, according to the FWS, "section lO(a) reinforces the 

NMFS regulations are essentially the same as the FWS's. See 50 C.F.R. § 222.22. 

Like the FWS, NMFS also requires that "any plan approved for a long-term permit must contain 

a procedure by which NOAA Fisheries and the permit holder will deal with unforseen 

circumstances." 50 Fed. Reg. 20603,20605 (May 18, 1990). 
76 

consultation requirement with respect to [ITPs] by requiring a non-jeopardy finding (or a jeopardy 

finding with reasonable and prudent alternatives that are implemented by the Federal agency or 

applicant) as a precondition to issuance of a permit." 50 Fed. Reg. at 39683. 

B. The Serrice's Joint Aueust 11. 1994 Announcement of Their New "No Surprises" 

Policy. 

On August II, 1994, the Department of the Interior and the Department of Commerce jointly 

issued a new "policy" entitled "No Surprises: Assuring Certainty For Private Landowners In 

Endangered Species Act Habitat Conservation Planning" (the "No Surprises" policy) which 

significantly revised the rules regarding habitat conservation planning under the ESA. See 

("Attachment I"). This revision was made effective immediately and promulgated without any prior 

public notice and comment. !.li The Services have also failed to publish this policy in the Federal 

Register, although it is being routinely applied to HCPs. 

Under the "No Surprises" policy, in negotiating the "unforseen circumstances" provisions 

for HCPs, the Services~ provide landowners with the following "General Assurances." First, 

after an HCP has been approved and an lTP has been issued, the Services cannot even contemplate 

any additional mitigation measures aimed at conserving endangered or threatened species until they 

have demonstrated that "extraordinary circumstances" exist that warrant such additional protection. 

Attachment I at 83 

Second, even if"extraordinary circumstances" are shown to exist, the Services "shall not seek 

additional mitigation for a species from an HCP permittee where the terms of a properly functioning 

HCP agreement were designed to provide an overall net benefit for that particular species and 

contained measurable criteria for the biological success of the HCP which have been or are being 

met." !.li (emphasis added). Rather. "the primary obligation for such measures" will rest with the 

Services, "not[] with the HCP permittee." !.li 

Under the policy, the Services bear the burden of demonstrating that 

"extraordinary circumstances" exist based on the following factors: (I) size of current range of 

affected species; (2) 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 

HCP; (5) level of knowledge about the affected species and the degree of specificity of the 

species conservation program under the HCP; (6) whether the HCP was originally designed to 

provide an overall net benefit to the affected species and contained measurable criteria for 

assessing the biological success of the HCP; and (7) whether failure to adopt additional 

conservation measure would appreciably reduce the likelihood of survival and recovery of the 

affected species in the wild. ~ilL The Services must use the best scientific and commercial 

data available and their findings must be clearly documented and based upon reliable technical 

information. ld. 

4 
77 

Finally, even in "extraordinary circumstances," all additional miti gation measures "shall be 

limited to the original terms of the HCP to the maximum extent possible and shall be limited to 

modifications within Conserved Habitat areas or to the HCP's operating conservation program for 

the affected species." !Q. Any "[a]dditional mitigation requirements shall not involve the payment 

of additional compensation or apply to parcels of land available for development or land 

management under the original terms of the HCP without the consent of the HCP permittee." !Q. 

(emphasis added). 

Therefore, under this new approach to HCPs. if either (a) circumstances change for listed 

species which show that changes in the HCP are needed to conserve the species or {b) species which 

are not listed at time of the HCP are subsequently listed and their habitat falls within the HCP area, 

the instances in which additional mitigation measures may be required, and the type of measures that 

may be implemented, are rendered virtually non-existent.' 

DISCUSSION 

A. The No Surorjses Policy Violates Sections 2. 7. and I 0 of the ESA. 

I. Sections 2 and 71all I) of !he ESA. 

According to section 2 of the ESA, the purpose of the Act is "to provide a means whereby 

the ecosystem upon which endangered and threatened species depend may be conserved .... " 16 

U.S.C. § 153l(b). Conservation is defined by the ESA as "the use of all methods and orocedures 

which are necessary to bring any endangered species or threatened species to the point at which the 

measures provided pursuant to [the Act] are no longer necessary. !Q. at§ 1532(3) (emphasis added). 

Section 7(a)(l) requires that the Services "shall review other programs administered by 

(them) and utilize such programs in furtherance of the purposes of this chapter by carrying out 

programs for the conservation of endangered species and threatened species .... " J>l at § 1536(a)(l ). 

Thus, under section 7(a)(l), the Services "have (an] affirmative obligation to conserve" threatened 

and endangered species. Pyramid Lake Paiute Tribe v. US. Pept ofNavv, 898 F.2d 1410, 1417 

(9th Cir. 1990). 

Under the "No Surprises" policy, the Services have severely limited both the instances in 

which they may prescribe additional mitigation measures for the conservation of endangered and 

threatened species and the types of mitigation measures they may prescribe. As discussed above, 

~ at 4-5, once a HCP is approved, and an liP is issued, if the Services find that additional 

mitigation measures are required for the continued survival and recovery of an endangered or 

This new "No Surprises" policy has already been incorporated into a number of 

HCPs -- some of which cover more than I 00 species. Attached is a summary of some of these 

HCPs. ~Attachment 2. 
78 

threatened species, the Services must bear the obligation of implementing those measures. 

In addition, the mitigation measures must be limited to modifications within Conserved 

Habitat areas or to the HCP's operating conservation program for the affected species, and such 

measures cannot result in the payment of additional compensation by the landowner or apply to 

parcels ofland available for development or land management under the original terms of the HCP 

without the consent of the HCP permittee. Thus, under this policy, if the Services find that a 

mitigation measure is contrary to any of the above-described limitations, the measure may not be 

implemented even if it is deemed by biologists to be critical to the survival and recovery of the 

species.' 

Such an approach can hardly be described as "provid[ing] a means whereby the ecosystem 

upon which endangered and threatened species depend may be conserved." 16 U.S.C. § 1536(a)(l). 

Rather, after an HCP has been approved, measures which are needed to conserve a species and its 

ecosystem will be allowed illlbc in the exceedingly unlikely event that the landowner/developer 

agrees to the measures or the Service buys the land in question. Therefore, in adopting this "No 

Surprises" policy, the Services have effectively foreclosed their ability to "use all methods and 

procedures necessary" to conserve species, whose habitat happens to fall within an HCP, and hence 

they have plainly violated their duties under sections 2 and 7(a)(l) of the ESA. 

2. Section 7Call2l of the ESA. 

As discussed above, supra at 2-4, not only does section 10 employ the "jeopardy" standard 

under section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), the FWS also requires section 7 

consultation for all ITPs. Under section 7(a)(2), each federal agency, including the FWS and NMFS, 

"shall ... insure that any action authorized, funded, or carried out by such agency ... is not likely 

to jeopardize the continued existence of any endangered species or threatened species .... " 16 

U.S.C. § 1536(a)(2). 

Under the consultation process, if an agency determines that an action "may affect" a listed 

species, the FWS must prepare a "biological opinion" which "detail[s] how the agency action affects 

the species," 16 U.S.C. § 1536(b)(30(A), and sets forth the FWS's opinion as to whether the action 

is "likely to jeopardize" the continued existence of the species. 50 C.F.R. §§ 402.14(g)(, (h)(! )-(3). 

If the FWS or NMFS concludes that an action is likely to jeopardize a species, the FWS or 

The only way for the FWS to circumvent these restrictions on mitigation 

measures is by buying the land in question from the landowner. ~Attachment I at 8. 

However, the purchase of lands, especially lands that are attractive to developers, is extremely 

costly and the Services have offered no guarantee in this policy, or anywhere else, that adequate 

funding will be available to purchase these lands. Indeed, in light of budget constraints, such a 

guarantee is unlikely to be forthcoming any time in the foreseeable future. 

6 
79 

NMFS "shall suggest those reasonable and prudent alternatives" which, if implemented. would not 

result in a violation of the Act. 16 U.S.C. § 1536(b)(3)(B). Finally, if formal consultation has 

already occurred, but new information is brought to light that "may affect listed species or critical 

habitat in a manner or to an extent no previously considered" or a "new species is listed or critical 

habitat is designate that may be affected by the identified action," section 7 consultation must be 

reinitiated. 50 C.F.R. § 402.16. Thus, any action that has undergone section 7 consultation and been 

approved by the FWS may be re-examined if new information is brought to light, and new 

requirements may be put in place by the FWS to prevent "jeopardy" to the species in question. 

But, under the "No Surprises" approach, the Services are prohibiting any meaningful reexamination of the HCP by predetermining whether additional mitigation measures may be enacted 

in the first place and, if mitigation measures may be enacted, what kinds of measures may be taken 

to conserve the species. Such an artificial narrowing of the scope of consultation violates the ESA's 

mandate that the Services ":illlill .. . ~ that ~authorized, funded, or carried out by such 

agency . is not likely to jeopardize the continued existence of any endangered species or 

threatened species . ... " 16 U.S.C. § 1536(a)(2) (emphasis added).' 

In fact, under the policy, if any new information arises that requires the Services to take 

another look at the HCP, the standard for reevaluating the HCP and its accompanying biological 

opinion will not be that the Services shall insure that the action js not likely to jeopardize the species 

-- as required by the ESA. Rather, the standard will now be that avoidance of jeopardy will be 

"assured" only where a landowner consents to the measures or the Services have the funds to 

purchase the land in question. In all other circumstances involving unforeseen circumstances -- i.&... 

the overwhelming majority of them ··the Service will have to allow the project even if it jeopardizes 

the species. Thus, under this policy, since the Services can no longer "insure" that the HCPs that 

they approve are "not likely to jeopardize the continued existence" of a endangered or threatened 

species, the Services have violated the plain terms and clear purpose of section 7(a)(2) of the ESA. 

As for species that are proposed for listing l!fW: an HCP is approved, it is 

especially hard to image how the Services will be able to "insure" that the actions approved in 

an HCP will not "jeopardize the continued existence" of those species. 16 U.S.C. § 1536(b)(2). 

For instance, it is highly unlikely that the Services have compiled in-depth information regarding 

what is required to conserve each and every unlisted species "covered" under an HCP. Such 

information is usually collected during the listing process -- which, for unlisted species, will be 

conducted after the HCP has been approved and the Services have "assured" the landowners that 

no additional mitigation measures will be required (unless the landowners agree to the measures). 

Thus, without this critical information, it is extremely unlikely that the Services will be able to 

evaluate thoroughly the effects of an HCP on unlisted species and thus assure that these species 

will always be adequately protected by the plan. 

7 
80 

3. Section I 0 of the ESA. 

As discussed above, >l!llffi at2-4, an ITP, and its accompanying HCP. may not be approved 

and issued until the Services find that, among other things, the "conservation plan [) specifies the 

impact which will likely result from such taking. what steps the applicant will take to minimize and 

mitigate those impacts, what other alternatives that would not result in the takings were analyzed, 

and why those alternatives were not adopted." H.R. Rep. No. 835, 97th Cong., 2d Sess. 29 (1982); 

see also 16 U.S.C. § 1539(a)(2)(B) ("the applicant will, to the maximum extent practicable, minimize 

and mitigate the impacts of such taking"). 

In addition, under section 10, the Services "will base [their] determination as to whether or 

not to grant the permit, in part, by using the same standard as found in section 7(a)(2) of the act . . 

. that is, whether the taking will appreciably reduce the likelihood of the survival and recovery of 

the species in the wild." Id.; ~a so 16 U.S.C. § 1539(a}(2)(B) ("the applicant will, to the 

maximum extent practicable, minimize and mitigate the impacts of such taking" and "the taking will 

not appreciably reduce the likelihood of the survival and recovery of the species in the wild"). 

The "No Surprises" policy violates both of those requirements. First, while section I 0 

requires that an HCP "applicant will, to the maximum extent practicable, minimize and mitigate the 

impacts" of the taking, 16 U.S.C. § 1539(a)(2)(B), under the policy, after an HCP has been approved, 

the applicant no longer bears the burden of"minimiz[ing] and mitigat[ing] the impacts" of the taking 

"to the maximum extent possible." Instead, the Services must bear this burden. Second, as 

discussed above, since section 10 incorporates the substantive standard from section 7(a)(2) of the 

Act, and the policy violates section 7(a)(2) of the ESA, see >l!llffi at 6-7, the policy necessarily 

violates section 10 of the ESA for that reason as well. 

In addition to violating the plain language of section I 0 of the Act, this policy also 

contravenes the purpose of the provision. When Congress enacted section I 0, it did not envision 

such limitations on the contents of HCPs. For instance, the San Bruno HCP, which served as 

Congress' model, allowed the implementation of additional mitigation measures reeardless of what 

the landowner/applicant wanted in almost 90% of the habitat covered in the plan. Under the policy, 

here, if an HCP only protects 20% of a species habitat in "Conserved areas," then additional 

mitigation measures will not be allowed (unless the landowner agrees) in the remaining 80% of the 

habitat. 

In addition, when Congress enacted section I 0, it envisioned that HCPs would "enhance the 

habitat of the listed species or increase the long-term survivability of the species or its ecosystem." 

H.R. Rep. No. 835, 97th Cong., 2nd Sess. 31 (1982). Now, under this new policy, the goal of 

"i ncreas[ing] the long-term survivability" of a species and its ecosystem has been abandoned in favor 

of providing landowner/developers with a fixed plan that can only be revised if the landowner 

consents or is paid off by the Services. Thus, instead of the interests of the species driving the HCP 

process. as Congress had originally intended, the interests of the landowners are now driving the 

process. 
81 

As a related proposition, the policy also undermines the right of affected individuals and 

conservation groups to comment on whether, and under what circumstances, an ITP/HCP will be 

issued. £« 16 U.S.C. § 1539(c). Since the policy (which itself was issued with no notice and 

comment) provides that "no surprises" guarantees will be included in every HCP, regardless of 

circumstances, it effectively forecloses the public's ability to "comment" on whether such a 

guarantee is biologically advisable and damaging in any panicular circumstances. For example, with 

regard to the Orange County Central and Coastal Subregion HCP, commenters criticized the 

application of the "No Surprises" policy to the HCP as restricting the FWS's "no jeopardy" duty 

under section 7 of the ESA. The FWS responded to this criticism by summarily stating that the HCP 

accurately reflects the FWS 's new policy. 

Indeed, even from the agencies' standpoint in implementing section I 0, it is impossible to 

comprehend why the agencies have not at least retained the regul atory flexibility to determine, on 

a case by case basis, whether a "no surprises" guarantee will further the purposes of the Act in any 

panicular instance. Instead, the agencies have, in effect, "shov.n their cards" before even entering 

into negotiations with those wishing to take endangered or threatened species. In other words, the 

policy effectively forfeits the use of a "no surprises" assurance as a bargaining chip to secure better 

conservation commitments because it mandates that ill landowners will have to benefit of these 

assurances irrespective of the conservation commitments they are willing to make. Hence, the policy 

not only forecloses case by case public input into the degree to which particular HCPs should be 

susceptible to new mitigation measures, but it also irrationally ties the hands of the agencies' own 

biologists and other officials in negotiating meaningful, biologically sound HCPs. 

Therefore, in light of the above, the Service's imposition of such limitations on the contents 

ofHCPs, through the implementation of this policy, violates both the letter and spirit of section 10 

of the ESA, 16 U.S.C. § 1539(a). 

CONCLUSION 

In order to avoid litigation over these violations of the ESA, as well as other violations of law 

in connection with the policy, we request that the Services rescind their August II, 1995 "policy" 

as promptly as possible. 

Eric R. Glitzenstein 

Attachments 

9 
Office of the Secretary 

82 

U .S . DEPARTMENT OF THE INTERIOR 

NEW RELEASE 

August 11, 1994. 

For Release: DO!: Bob Walker, Georgia Parham, DOC: Lauri Arguelles 

ADMINISTRATION'S NEW AsSURANCE POUCY TELLS LANDOWNERS: "No SURPRISES" IN 

ENDANGERED SPECIES PLANNING 

The Clinton Administration today announced a significant chans.e in policy that 

will give more economic certainty to landowners involved in reconciling endangered 

species conservation with land use development. 

Landowners who have endangered species habitat on their property and agree to a Habitat Conservation Plan (HCP) under the Endangered Species Act will not be 

subject to later demands for a larger land or financial commitment it the Plan is 

adhered to even if the needs of the species changes over time. The term of an HCP can be as long as several decades. 

"A DEAL IS A DEAL" 

"We're telling landowners that a deal is a deal," Babbitt said. "This "No Sur- prises" policy says if, in the course of development or land use, you invest money 

and lana into saving species, we won't come back ten years from now and say you 

have to pay more or give more." 

"The key issue for non-federal landowners is certainty," said Babbitt. "They want 

to know that if they make a good faith effort to plan ahead for species conservation, 

and do so in cooperation with the relevant agencies, then their plan won't be ripped 

out from under them many years down the road." 

"We'll work with state, municipal and private landowners to set the rules," said 

Babbitt. "This assurance policy makes it clear that we won't change those rules in 

the middle of the game." 

''This is a good examrle of how the Department of Commerce as represented spe- cifically by its Nationa Oceanic and Atmospheric Administration (NOAA) is working with other federal agencies to make the Endangered Species Act work more effectively," said Secretary of Commerce Ronald H. Brown. "While the Habitat Conservation Plans may not be appropriate in every case, where used, they will provide certainty for Businesses that need to address longterm planning and at the same time_provide the flexibility needed to meet the longterm needs of various species," said NOAA's Undersecretary for Oceans and Atmosphere at Commerce, Dr. James Baker, who participated in the press conference 

today with Babbitt. · NOAA's National Marine Fisheries Service (NMFS) and the Interior Department's 

Fish and Wildlife Service are the two federal agencies responsible for enforcing the 

Endangered Species Act. As such, they are also empowered to approve HCPs. "The assurances offered by this new policy should stimulate greater use of habitat 

conservation planning to reconcile development and conservation conflicts," said Michael Bean, of the Environmental Defense Fund. "Successful habitat conservation plans are win-win situations-economic activity continues and our heritage is protected for future generations to enjoy," said John 

Sawhill of The Nature Conservancy. 

POSITIVE REACTION IN THE BUSINESS COMMUNITY 

"This new initiative may resolve the business community's most intractable con- cerns about the Endangered Species Act," said Jim Whalen, a spokesperson for the 

Alliance for Habitat Conservation, a group of major landowners holdmg more than 

70,000 acres in San Diego County. "A major impediment to property owner participation in a Habitat Conservation 

Plan is the fear that, after the costs and resource management restrictions of the 

Plan are accepted, the rules will change and the entire matter will be reopened," 

said Don Christiansen, Chairman of the Western Urban Water Users Coalitions. ''This policy sets an important new direction by which the key federal agencies are committing to stand by their agreement. In the West, we value that commitment." 

The Western Urban Water Coalition's support is significant because it represents 

18 major water utilities from seven Western states serving more than 30 million 

water users. Included are systems serving Denver, Salt Lake City, Phoenix, Las 

Vegas and other Nevada cities, Portland, Seattle, Los Angeles, San Francisco and numerous other California cities. 
83 

"Private forest landowners need stability and certainty to make the long term investments necessary to manage private forestlands," said Charley Bingham, 

Weyerhaeuser Company's Executive Vice President. "We commend the Secretaries 

for advancing ideas that will help provide stability forest landowners who develop 

and implement habitat conservation plans." Weyerhaeuser is currently developing an HCP for spotted owls in Oregon and pioneering a multi-species HCP in Washington. 

"Since the inception of the Natural Communities Conservation Plan (NCCP) con- cept, we have been working with representatives of the Fish and Wildlife Service 

to develop assurance for landowners which are commensurate with their commitments to habitat protection," said Richard Broming, Vice President of the Santa 

Margerita Company, a major southern California developer. "This action goes a long 

way toward providing those assurances and potentially leads tot he successful negotiation of the NCCPs." 

(Under California law, the NCCP process is similar to the HCP process under federal law. NCCPs currently in the drafting stage are designed to meet both state and 

federal endangered species requirements, thereby allowing for development in areas where threatened or endangered species occur.) 

"Lack of certainty has been a major obstacle to large scale private conservation 

planning," said Monica Florian, Senior Vice President for the Irvine Company. "The 

concepts outlined in this policy announcement are an important show of good faith 

that the government intends to live by its commitments in approved NCCPs." 

LANDOWNER CONCERNS LED TO ACTIONS 

At a June 14 press conference, the two Departments announced a series of policies 

aimed at improving the Endangered Species Act's effectiveness while enhancing its 

flexibility for business and private landowners. 

Babbitt and Baker said today's announcement was spurred by private, state and 

municipal landowners, who have complained that, despite their willingness to work 

with the federal government to protect species on their land, the federal government 

had been reluctant to assure them in return that an HCP would not be reopened or changed at any time. 

In the past, landowners have feared being informed at a later date that despite 

their earlier good-faith conservation efforts, the demand for additional protection measures for species would halt planned development and land use or result in ad- ditional restrictions and require more private funding. Babbitt said today's an- nouncement gives landowners an incentive to get involved in an HCP planning effort by assuring them that the federal government will stick by its deal with the 

HCP permittees who abide by their conservation commitments in good faith. 

The new policy assures that landowners participating in a single- or multi-species 

HCP will not be subject to additional restrictions or costs at a later time, even if 

unlisted species adequately covered under the terms of an HCP are subsequently 

listed as endangered or threatened. If extraordinary circumstances subsequently indicate the need for additional action to protect such species, the new policy states 

that the obligation for additional action shall not rest with an HCP permittee. 

HCP's are authorized under section lO(a) of the Endangered Species Act as a means of reconciling endangered species conservation and habitat protection with 

private land development that might otherwise be impossible without violating the 

Act. An HCP requires a landowner to develop a long-term, private conservation pro- gram for listed species affected by development or land use, and involves private financial construction to help implement the plan. 

Landowners participating in an abiding by the plan are covered by an incidential 

"take" permit, which gives them immunity from prosecution if a threatened or en- dangered species is accidentally killed or harmed during construction or land use activities within the boundaries of the HCP. 

MORE HCPS AS A RESULT 

"The new policy will be good for the endangered species program because it will 

encourage developers to make substantial commitments to HCP's," Babbitt said. "At 

the same time, it will be good for the private landowners because they will be as- sured that they will have time to complete significant development projects or to 

manage their lands with certainty for years to come, without the possibility of facing 

additional costs or restrictions for endangered species protection." 

Under the new policy, if additional mitigation measures are subsequently deemed 

necessary to provide for the continued existence of a species in the wild, the primary 

obligations for such measures shall not rest with an HCP permittee who has been 

complying in good faith with his or her obligations under an HCP. 
86 

PURPOSE: 

The pwpose of this policy is 10 provide assurances 10 non-federal landowners participating in 

Endangered Species Act Habilat Conservalion Planning (HCP) that no additional land restrictions 

or financial compensation will be required for species adequately covered by a properly 

functioning HCP in light of unforeseen or extraordinary circurilstances. 

SUPPLEMENTARY INFORMATION: 

The HCP process promotes endangered species conservation and habitat protection within the 

context of land use or development. Ideally, HCPs contribute 10 the long-term conservation of 

federally listed and unlisted species, while providing predictability and economic stability for 

non-federal landowners. 

Species =eive a variety of benefits under a properly functioning HCP. Private financial 

resources supplement limited federal funding, essential habilat areas arc often preserved, and 

comprehensive conservation programs arc developed and promptly implemented. Although 

landowners must ultimately demonstrate that a species has been covered adequately under an 

HCP, the major benefit from the HCP process from the perspective of the development 

community is cerlainty. In exchange for adherence 10 long-term conservation commitments, an 

HCP permittee is provided assurance that development may move forward despite the incidental 

taking of protected species. 

Significant development projects often talce many years 10 complete, therefore adequate 

assurances must be made 10 the financial and developmental communities that an HCP permit 

will remain valid for the life of the project. In authorizing the HCP process, Congress 

recognized that permits of 30 years or more may be necessary to trigger long-term private sector 

funding and land use commitments for species conservation. Congress also recognized that 

circumstances may change over time, gencnting pre:sure to reconsider the mitigation 

commitments in an HCP agreement. Often referred to as • unforeseen • or extraonlinary 

circumstanc::s, Congress intended that additional" mitigatior. requirements not be imposed upon 

an HCP permittee who has fully implemented his or her cvnservation commitments except as 

may be provided for under the terms of the HCP itself. 

POUCY: 

In negotiating "unforseen circumstances" provisions for HCPs, the FWS shall not require the 

commitment of additional land or fmancial compensation beyond the ·level of mitigation whic:h 

was otherwise adequately provided for a species under the terms of a properly functioning HCP. 

Moreover, FWS shall not seck any other form of additional mitigation from an HCP permittee 

except under extraordinary circumstances. 
87 

A. Genc:ral Assurances Provided to Landowners 

• If additional mitigatioo measures are subsequently deemed necessary to provide for the 

conservation of a species that was otherwise adequalely covered under the terms of a 

property functioning HCP, the primary obligation for such measures shall not rest with 

the HCP permittee. 

• FWS shall not seek additional mitigation for a species from an HCP permittee where the 

terms of a properly func:tionine HCP acr=ment were designed to provide an overall net 

benefit :or that particular species and contained measurable criteria for tl.e bioloeical 

success of the HCP which have been or are being met. 

• If e%traordinary circumstances warrant the requirement of additional mitigation from an 

HCP permittee who is in compliance with the HCP's obligations, such mitigation shall 

limit changes to the original terms of the HCP to the maximum extent possible and shall 

be limited to modifications within Conserved Habitat areas or to the HCP's operatine 

conservation program for the affected species. Additional mitigation requirements shall 

not involve the payment of additional compensation or apply to parcels of land available 

for development under the original terms of the HCP without the consent of the HCP 

permittee . . 

B. Determination of Extraordinary Circumstances. 

• 

FWS shall have the burden of demonstrating that such extraordinary circumstances exist, 

u~ llg the best scientific and commercial data available. FWS findings must be clearly 

documental and based upon reliable technical information regarding the S!lllus and habitat 

requirements of the affected species. 

ln deciding whether any extraordinary circumstances exist which might warrant requiring 

additiJDal mitigation from an HCP permittee, the FWS shall consider, but not be limited 

to, the following factors: 

the size of the current range of the affected species 

the percentage of range adversely affected by the HCP 

the percentage of range conserved by the HCP 

the ecological significance of that portion of the range affected by an HCP 

the level of knowledge about the affected species and the degree of specificity of 

the species' conservation propam under the HCP 

whether the HCP was originally designed to provide an ovenll net benefit to the 

affected species and contained measurable criteria for assessing the biological 

success of the HCP 

whether failure to adopt additional conservation measures would appreciably 

reduce the likelihood of survival and recovery of the affected species in the wild 
88 

C. ADDmONAL CONSERVATION AUTHORITY 

• Nothin& in this policy shall be construed 10 limit or constrain FWS or any other 

governmental agency from taking any additional actions at its own cost with respect 10 

the conservation or enbaru:ement of a species which is included under an HCP. 
89 

AII ACHMENI 2 

EXAMPLES OF SOME INDIVIDUAL HABIT A I CONSERV A IION PLANS 

IN WHICH THE "NO SURPRISES" POLICY HAS BEEN APPLIED 

When reviewing the below-described HCPs it is imponant to keep in mind that, pursuant 

to the "No Surprises" policy, the FWS has agreed to issue an "assurance" that all species covered 

in the HCPs are considered by the Service to be "adequately" covered by the terms of the plan. 

In other words, if the FWS subsequently discovers that any of the species require additional 

mitigation measures in order to prevent extinction or if any of these species-- that are not already 

listed under the ESA --are subsequently listed, the Service may implement such mitigation 

measures in the event that either (I) the landowner agrees to the measures; or (2) if the 

landowner refuses to agree to the measures, the FWS purchases the property in question from the 

landowner. Thus, unless the landowner agrees, at no time will the landowner have to pay for l!!!Y 

additional mitigation measures, commit any further land for habitat, or modify the existing 

mitigation measures under the HCP even if it means jeopardizing the survival and recovery of a 

threatened or endangered species. 

Fieldstone/La Costa Associates and Cjty of Carlsbad HCP: 

Approved on June 7, 1995. 

Allows the loss of up to 1237.71 acres within a 1,940.2 acre project area over a 30-year 

permit period for the development of properties for urban residential uses in the 

southeastern protion of the City of Carlsbad in San Diego County. 

Covers 63 spedes including four endangered or threatened species and six proposed 

endangered or threatened species. The HCP allows the takjng of between 28 and 30 of 

the 48 oairs of gnatcatchers (threatened), about 171 of I ,025 individuals of Del Mar 

manzanita (proposed endangered) and about I ,200 of7,000 individuals of thread-leaved 

brodiaea (proposed endangered). 

To mitigate the impacts of this project, the developers and City of Carlsbad have agreed 

to 702.5 acres of habitat on-site and 240 acres of habitat off-site. This means thatin 

exchange for destroying 1237 71 acres 942.5 acres of habitat will be preserved. 

San Diego Gas & Electric HCP: 

Approved on December 18, 1995. 

Allows the Joss of UJl to 400 acres over a 55-year permit period for the use. maintenace, 

•nd pair of existing gas and electric lines and the cxpunsion of those systems. 

Covers 110 spedes including 19 endangered or threatened pe~ics and 14 proposed 

endangered or threittuned ~~~cies . 
90 

To mitigate the impacts of this project, SDG&E agreed to the following mitigation 

measures: (I) develop operational protocols for workers in the fi eld; (2) develop 

restoration protocols for temporary impacts; (3) dedicate certain fee-owned rights-of-way 

as corridors for wildlife by only permitting SDG&E activities to occur within the 

cooridors; and ( 4) establish a conservation bank of approximatley 196 acres that may be 

replenished as needed. 

Colton Transmission Line and Substation Project HCP: 

Approved on November 29, 1995. 

Allows the loss of up to 4.6 acres during a 1 0-year permit period for the construction, 

operation, and maintenance of electrical transmission line and substation facilities in the 

City of Colton, San Bernadino County, California. 

Covers four species: (I) the highly endangered Delhi Sands fl ower-loving fl y; (2) the 

endangered Santa Ana Wooly-star; (3) the endangered slender-homed spineflower; and 

(4) the Category I candidate San Bernadino kangaroo rat. 

The focus of this HCP is on the loss of 4.6 acres of known Delhi Sands flower-loving fly 

("DSF") habitat. More than 97.5 percent of the historical habitat for the DSF has been 

eliminated and the remaining populations of the DSF occur on private lands subject to 

agricultural, residential, and commercial development, and receive no management. Qn!x 

one known DSF pooulatjon has any permanent protection and this p<lpulation occurs on 

a relatively isolated I 0 acres of wbjch 4.6 acres wjll be impacted by the project. 

To mitigate the impacts of this project, the project applicant agrees to acquire, conserve, 

manage, and restore/improve conditions on 7.5 acres of occupied habitat which directly 

adjoins the larger patch of occupied habitat at issue. However, according to the FWS, the 

7.5 acre proposed reserve is relatively small, is not the ideal shape in terms of 

conservati on strategy, and may not support a viable DSF population in isolation. 

Central and Coastal Subregion Natural Communities Conservation Plan and HCP: 

Issued Biological and Conference Opinions on May 24, 1996; final approval pending. 

The 75-year permit for construction, infrastructure, development, grazing, mining, and 

recreation covers 208,713 acres. 

Covers 47 species including seven threatened or endangered species, four proposed 

threatened or endangered species. 

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The focus of this Plan is on the loss of? 444 acres of coastal sage scrub-- habitat that is 

critical to the survival ofthe threatened California gnatcatcher which has already lost 

well over 80% of its historical habitat. Of the 7,444 acres of coastal sage scrub slated for 

destruction, I 217 acres are currently occupied by the threatened gnatcatcher. 
92 

June 12, 1996 

Safe Harbor Initiative: An Accomplishment Report 

I. Successes 

To date a total of four initiatives that offer safe harbor assurances to private landowners have 

been finalized. These initiatives have been extremely successful in the last year or so in 

garnering private landowner support for the safe harbor concept and promise to provide a 

wealth of opportunities to benefit listed species. Below we provide a brief overview of each 

initiative. It is important to note that this approach can provide regulatory assurances to not 

only large landowners (e.g., timber companies), but also to small landowners. The voluntary 

nature of the safe harbor concept makes it extremely attractive to private landowners. 

A. Sandhills Safe Harbor 

The first of these initiatives, the Sandhills Safe Harbor, has been extremely successful. The 

target species for this initiative is the red-cockaded woodpecker. However, the entire 

ecosystem and more importantly species associated with this marvelous system will also 

benefit from these restoration and management efforts. To date 16 landowners have entered 

into agreements under this initiative with over 10,000 acres of land covered by these 

agreements. Individual parcels of land range in size from 2.5 to 2,000 acres. Land uses 

also show a wide range, from farm houses and residential areas to private forests and golf 

courses. Such a varied land use and ownership is clear evidence that listed species 

conservation need not to exclude other land uses. 

Current Sandhills Safe Harbor Participants 

Participant Land Use Acreage Woodpecker Baseline Expected Increase 

Resorts Pinehurst, Inc golf Course 2000 7 7 

William Clark private forest 2000 4 4 

Forest Creek Golf golf course 1263 4 2 

Club 

Longleaf Associates golf course 115 I I 

Jerry Holder private forest 100 0 I 

Tony Creed private forest 140 0 I 

Pinehurst No. 8 Golf course 800 0 I 

Joseph Rosy private forest 550 I I 
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Participant Land Use Acreage Woodpecker Baseline Expected Increase 

TALAMORE golf course 335 2 1 

Pinehurst Plantation golf course 180 1 1 

J.H. Carter, III residential 2.5 0 1 

Lindsay Taliaferro, house farm 16.96 0 1 

Deerpath 

Vince Zucchino residential 8.5 0 I 

Country Club of NC golf course 1850 8 6 

Pine Needles Lodges golf course 760 6 4 

Mid Pines golf course golf course 250 I I 

Tom Wood, private forest 2700 5 5 

Callaway' 

Legacy Golf Links' golf course 570 0 2 

McCormick Family private forest 2700 4 4 

Farm' 

M.P. Clark' private forest 1800 3 3 

Total 18140.95 47 48 

B. Hawaiian Stilt Safe Harbor 

The Service entered into a cooperative agreement with Chevron USA, Inc. Hawaiian 

Refinery under which management actions will be undertaken for maximum Hawaiian stilt 

productivity. Within the refinery, stilts and other migratory shorebirds utilize ponds and 

adjacent wetland habitats. Some of these areas represented unavoidable hazards to both 

Hawaiian stilts and other migratory birds. By providing safe harbor assurances to Chevron, 

those hazardous areas, which are necessary for safe refinery operations, will be modified to 

minimize any potential impacts to not only stilts but also to the numerous species of 

migratory shorebirds. In addition to those actions, Chevron will manage other areas of their 

property for the maximum reproductive output and population numbers of Hawaiian stilts by 

modifying curent management practices. These areas supported a total of 37 Hawaiian stilts 

in 1992. It is expected that with proper management the same areas will be able to harbor 

Awaits signature 

2 

35-090 96-4 
94 

between 60 and 68 stilts. The safe harbor assurances offered under this agreement provide 

Chevron with the necessary certainty regarding restrictions on their operations while keeping 

the necessary components for the safe operation of their refinery. 

C. Oregon Silverspot butterfly Safe Harbor 

This is a great example of how small landowners can obtain regulatory certainty and relief 

through the safe harbor concept. Mr. and Mrs. Cartwright own a little over 5 acres of land 

of which 2.88 acres are currently suitable and occupied habitat for the Oregon silverspot 

butterfly. Given the history of fire suppression of the area this habitat will, in the 

foreseeable future, become unsuitable for the butterfly. The Cartwrights planned to build a 

residence on the property, however, they also needed to comply with the ESA. The Service 

approached the Cartwrights with the prospect of a long-term management scheme with Safe 

Harbor assurances to accomplish both party's goals: build the residence and enhance and 

maintain the butterfly's habitat. The Service and the Cartwrights entered into such an 

agreement with incidental take coverage and safe harbor assurances. Under this agreement 

the Cartwrights agree to properly manage the 2.88 acres of existing butterfly habitat for the 

next 30 years and the Service provided authorization for any incidental take and assurances 

that no future additional restrictions will be imposed on them as a result of their management 

actions. This example should serve to contrast the Cartwrights story with small landowners 

horror stories. 

D. Texas Gulf Coast Prairies Safe Harbor 

This initiative targets the restoration, conservation, enhancement, and maintenance of habitats 

for the Attwater's prairie chicken, Houston toad, and Texas prairie dawn-flower. These 

listed species occur on a variety of locations within the 19 counties covered under this 

initiative. Additionally, 24 other rare and unique Texas Gulf prairie species will benefit 

from appropriate management actions undertaken by participating private landowners. So far 

at least 40 private landowners have applied to enter into the program and agreements and 

site-specific management plans are at various stages of development. These 40 landowners 

have management control over at least 170,000 acres. Beneficial management of such a 

significant portion of the Texas Gulf prairies area undoubtedly benefit and enhance the 

recovery potential of listed species in the area. 

II. Future Efforts 

The two of the four safe harbor initiatives already in place are expected to continue to add 

participants for the next several years. The Service will continue to diligently and fairly 

negotiate with all private landowners to enter into existing safe harbors or to develop new 

safe harbors to provide the necessary assurances to private landowners willing to benefit 

listed species through sound voluntary management of their lands. However, within the next 

few months two new safe harbor initiatives are expected to be developed and finalized. Both 

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efforts are geographically located in the lower Rio Grande Valley in south Texas. These 

initiatives are being developed to provide landowners assurances from any additional 

regulatory restrictions. Target listed species are the aplomado falcon, jaguaroundi, and 

ocelot. Private landowners in south Texas are extremely interested on both initiatives. The 

Service expects that implementation of these initiatives would greatly enhance the survival of 

these species and also provide some recovery benefits. Funhermore, these initiatives are 

also likely to provide benefits to candidate and other unique and rare south Texas speeies. 

ill. Potential Controversies 

No controversies are expected from any of these initiatives. So far, implementation of the 

concept has been received extremely well by all affected panies. In the next few months the 

Service expects to publish a proposed national policy to standardize the implementation of the 

concept. The publication of public policy can in some cases prove controversial. However 

in this case we do not expect controversy and comments are expected to be favorable. The 

recently held Keystone Dialogue serves as an accurate barometer of how different sectors of 

the public feel about the concept. The panicipants of that dialogue strongly supponed the 

safe harbor approach. Therefore, implementation of this concept and the development of 

national policy to standardize the implementation of safe harbors in not expected to become 

controversial. 

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S'TATEMI:>I''I' OF SHAWN STEVEK~O?>; 

STATEMENT OF 

THE AMERICAN FARM BUREAU FEDERATION 

TO THE 

HOUSE RESOURCES COMMITTEE 

ON 

HABIT AT CONSERVATION PLANNING AND 

THE FIVE-ACRE EXEMPTION UNDER 

THE ENDANGERED SPECIES ACT 

Presented by 

Shawn Stevenson, President 

Fresno County Farm Bureau, California 

July 24, 1996 

Good afternoon. I am Shawn Stevenson, a citrus farmer and cattle rancher from Clovis, 

California. I am President of the Fresno County Farm Bureau, and am appearing today on behalf 

of the American Farm Bureau Federation and the California Farm Bureau Federation. I welcome 

the opponunity to present testimony on the practical implications of the Habitat Conservati on 

Planning (HCP) process on agriculture from both an industry and personal perspective. 

The HCP process, codified at section lOa of the Endangered Species Act, was designed 

to provide a procedure by which owners of propeny within the habitat area of an endangered or 

threatened species could develop their propeny even if it resulted in the "incidental taking" of 

members of the species. In return, the plan panicipant had to agree to mitigate impacts by 

providing alternative habitat elsewhere, and agreeing to cenain terms and conditions on the use 

of the propeny within the HCP area. While the concept in theory has an attractive premise, it has 

not worked with respect to agriculture. I have seen and experienced these problems first hand. 

The reasons for this dysfunctional relationship will be discussed below. 

As an initial matter we would like to emphasize that, given the proper protection or 

incentives, farmers and ranchers can play an imponant 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 ESA is going to work. A recent repon of the Government Accounting 

Office' found that over 90 percent of listed plants and animals have some of their habitat on 

nonfederallands, with 78 percent occupying privately-owned lands. Approximately 34 percent 

of all listed species occur entirely on nonfederallands. Private landowners and private lands are 

clearly the key to the Act's success. And farmers and ranchers. who own most of the suitable 

species habitat, are espec ially imponant if the ESA is to succeed. 

'"Endangered Species Act: Information on Species Protection on Nonfederal Lands," 

GAO/RCED-95-16 (December, 1994) 
97 

Farmers and ranchers produce the food that feeds our nation and many others in the 

world. Farm and ranch lands need to continue to be productive in order to continue meeting this 

considerable responsibility. The HCP process encourages the opposite effect. by taking 

agric ultural lands out of production by using them as mitigation lands for HCP-allowed urban 

development. Thus, it is critically important for the continued viability of all species, including 

the human race, that farmers and ranchers continue to be allowed 10 produce while at the same 

time maximizing the creation and maintenance of wildlife habitat. 

Many farm and ranch activities, if allowed 10 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 recently 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. 

Also, 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. 

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 create 

a negative enforcement ethic and a correspondingly negative attitude of landowners toward listed 

species on their lands. 

I speak on this point from personal experience. One of the Pest Control Advisors that I 

work with found some vernal pools on one of the other farms he works. Vernal pools house 

various species of listed shrimp. We began talking about the possibility of transplanting some of 

those shrimp to other farms in order 10 increase the range and diversity of the populations so that 

they might be recovered faster. I love wildlife and having species on my farm. However, as 

much as I would like to take these shrimp onto my farm and enhance their numbers, I would be 

very concerned about the potential liability under the ESA that I would be creating for myself. If 

we had an agricultural incidental take program like the Habitat Enhancement Landowners 

Program or other type of incentive program (described below) I would not hesitate to volunteer 

to host a listed species on my land. 

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. 

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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. 

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 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. Thus, there is no guarantee that a carefully 

crafted and negotiated HCP will result in FWS approval. 

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. 

The Clinton administration has proposed a three-tier process designed to make the HCP 

process less burdensome for smaller landowners by reducing some of the application burdens. 

These proposals have merit and address some of the concerns that small landowners have with 

the process. However, inclusion of these changes in an agency manual is not sufficient to 

provide the protection or certainty that these provisions will survive. In addition, current law 

contains such specific incidental take permit requirements that these projected changes might be 

deemed inconsistent with current law. The changes proposed in the FWS Manual should be 

3 
99 

enacted into law as part of a new HCP process. 

But even if these changes were addressed in statute, they would not alleviate the concerns 

of agriculture with the HCP process. 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. That type of process applied to agriculture serves 

neither the needs of species or 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 will work. 

The addition of the concept of "incidental take" was a positive one. The Act must be 

amended to allow this concept of habitat conservation to be used by everyone, and not only by 

those who can afford the exorbitant price tag. The current system has created a two-tier 

exemption program that is available to 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 Act. 

The current provision for HCPs in the Act 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 lO 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 both 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. 

The role of agriculture within a regional or multispecies HCP (MHCP) is different from 

nearly all other affected interests. This 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: 

I . 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 

4 
100 

have money. but very little land. Since the primary focus of the HCP process is on mitigation of 

habitat loss (involving dedication of additional lands for habitat). agricultural lands become 

prime targets for those mitigation areas. In California. for example. the mitigation ratio for using 

native lands as mitigation is 3: I acre of developed land. The mitigation ratio for using 

agricultural lands for mitigation purposes is I: I. The California process thus actively encourages 

the use of 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 take advantage of the same process of mitigation. 

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 fees 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 pan of their own property. This affects 

their ongoing operation. These fanners and ranchers may 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 n01 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 

fanners and ranchers for activities that do not currently require permits. Such activities might 

include grading. plowing or discing of 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. 

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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. Such 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 were at the mitigation fee of $1 ,950 per acre --

substantially less than actual market value without the HCP. 

A personal experience brought this point home to me very clearly. Not too long ago 

some land belonging to my family was condemned by a flood control district. A trial determined 

the value of the land that was taken by eminent domain. The government argued that the 

presence of vernal pools (habitat for listed shrimp) on the property lowered the value of the 

property significantly. By the same token, 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 cam be illustrated by a few examples. 

Pleasant Valley Habitat Conservation Plan 

This is the HCP process that I am personally familiar with. 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 area, 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. 

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Riverside County Habitat Conservation Plan 

Another recent 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 in volves the establishment of a mitigation fun d administered by the 

Ri verside 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 wou ld 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 Domeni goni 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 

three years because the farm was in the RCHCP area and therefore kangaroo rat habitat. It was 

only after a government offici al remarked that the species had moved out of the ir lands earlier 

that the Domenigonis were allowed to resume operating on that portion of their farm. 

The Committee also heard from several victims of forest fires in the area that occurred in 

1993. Part of the restrictions for protecting the kangaroo rat habitat involved prohi bitions against 

discing fie lds 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 

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103 

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 lOa 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. 

Another problem faced by farmers and ranchers in California is the deep mistrust that 

exists between producers and government officials. Relationships between producers and the 

government have deteriorated to the point where farmers and ranchers do not trust the 

government to enter the property to perform baseline species population studies or to conduct 

monitoring of HCP activities -- two basic components of a successful HCP process. At least in 

California, this process will not begin to be effective until that relationship has been repaired. 

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. 

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 my area 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 fo r such activities on 

their property, regional committees of farmers and ranchers would agree to develop and 

8 
104 

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 fu ture 

of wildlife. 

As stated, the purposes of the H.E.L.P. program are as follows: 

I. To develop a general permit program that will remove current disincenti ves to habitat 

protection. 

2. Develop a voluntary program that will enable farmers and ranchers to conduct normal 

agricultural activities, and to unden ake additional actions that may benefit listed species, 

without threat of liabili ty for incidental take under either the state or federa l laws. 

3. Maximize what willing landowners can accomplish on their propeny by developing 

incentive mechanisms that will suppon species and habitat conservation practices while 

at the same time maintain ing and protecting the long-term economic viability of their 

agricultural operation. 

The program is premised on the fac t 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 farme rs and ranchers can do a good job in 

protecting species and their habitat, and that normal farming and ranch activities are generally 

compatible with habit at protection. California Farm Bureau Federation has been negotiating with 

the Fish and Wildlife Service and the California Fish and Game Depanment for adoption of this 

program. 

B. North Carolina Sandhills Habitat Conservation Plan 

This limited "safe harbor" agreement is currently in place in Moore County, Nonh 

Carolina. This program is designed for the protection of red cockaded woodpeckers and their 

habitat. The major elements of this program are as follows: 

I. 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. [n addition, 

the RCW program allows landowners to opt out of the program at their option. 

9 
105 

5. There will be no additional restraints placed on landowners other than the 

management activities that they have agreed 10 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. 

Allhough 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 wiJJ be provided for the hearing record. 

C. Critical Habitat Reserve Program. 

!n 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 management of a 

listed species on his land and retire acres judiciously from uses that conflict with species 

management activities. 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 10 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 five 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. 

10 
106 

The program would also pennit 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. 

All three 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 tum the current horror stories of the ESA into 

success stories. 

But these changes will require legislation. Some believe that the current section lOa 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 I Oa 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 three 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. THE PROPOSED FIVE-ACRE EXEMPTION FOR SMALL LANDOWNERS DOES 

NOT BENEFIT AGRICULTURAL PRODUCERS. 

The Secretary has announced plans to propose a regulatory change that would exempt 

activities on lands occupied by single family residences and on parcels of less than five acres in 

II 
107 

size from ESA restrictions, if the individual or cumul ative impacts of the activities will have 

little or no impact on threatened spec ies. The proposal would presume that such activities on 

single family residences and on parcels of less than five acres will have such negligible impacts. 

The proposal can only apply to threatened species, because section 9 of the Act is specific in its 

application to endangered species, and regulatory language cannot override those prohibitions. 

The Secretary has greater discretion to prescribe exceptions from the section 9 prohibitions for 

threatened species. Thus, to be effective and permanent, this exemption should be enacted by 

legislation instead of regulation. 

We believe that adoption of this provision will benefit small landowners and 

homeowners. Because most agricultural operations involve more than five acres, however, it 

will not have any appreciable benefits for agricultural producers. It is possible that it could have 

a negative impact, if releasing small lots of potential species habitat from ESA restrictions will 

put more pressure to maintain habitat on larger acreage, like farms or ranches. The five-acre 

exemption, without any agricultural habitat conservation policy, will also encourage the 

development of five acre "ranchettes" or other such parcelization of productive farm and ranch 

lands so as to free the land from ESA regulation. The net result is the removal of necessary and 

productive agricultural lands from agricultural use. 

We also believe that this five-acre exemption, considered in tandem with existing HCP 

provisions and the proposals that we have discussed above for the benefit of farmers and 

ranchers, might provide a coordinated policy for habitat conservation that will both benefit 

listed species while at the same time not unduly burden landowners. Elements of all three of 

these policies will ensure that large developers, agricultural producers, and small landowners will 

receive appropriate consideration according to their particular situations instead of being thrown 

together in an unwieldy HCP. A coordinated policy with coordinated local HCPs and H.E.L.P.s 

or CHRPs will provide the flexibility that is lacking now in section lOa of the ESA. 

IV. "NO SURPRISES" POLICY. 

The notice announcing the hearing also asked for our comments on the so-called "no 

surprises" policy announced by the Administration. Under this policy, landowners entering into 

cooperative agreements for the protection and maintenance of habitat would not be required at 

some later time to undenake 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. 

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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. 

The HCP program is the only currently authorized program in place. It primarily benefits 

large developers and some large corporate landowners who can afford mitigation costs. 

Mitigation might be the appropriate procedure for these interests. 

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. 

The five-acre exemption appears suited for small landowners whose activities have 

marginal impacts on listed species, if any at all. Further thought must be given, however, to 

preventing unintended adverse impacts on agricultural lands. 

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. 

F:\stm\hcptest. 7 24 

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109 

LETIER'S SUBMITIED BY GEORGE T. FRAMPTON 

MURRAY PACIFIC CORPORATION 

TIMBER PRODUCTS DIVISION 

July 24, 1996. 

George T. Frampton 

Assistant Secretary for Fish and Wildlife and Parks 

Department of the Interior 

1849 "C" Street, NW 

Washington, DC 20240 

Dear Assistant Secretary Frampton: 

I appreciate the opportunity to communicate with you once again regarding my 

thoughts on the Habitat Conservation Planning Process. I am greatly encouraged 

by the Clinton Administration's success in securing other multi-species agreements 

with a number of other companies. 

As you may remember, in 1992, after a great deal of thought and debate, we decided to proceed forward with a northern spotted owl HCP because 40% of our mer- chantable timber was tied up due to the fact that we had 3 spotted owls on our property, one pair and a resident single. A single species spotted owl HCP was approved by the USFWS in 1993. Not long after the Agreement, a marbled murrelet 

flew over the west edge of our property, which in effect locked up the same volume 

of timber previously lost to the owl, rendering the benefits we accrued with our northern spotted owl HCP meaningless. It was at this point I decided we needed a comprehensive fix or we simply could no longer afford to be in the timber busi- ness. Therefore, we set out to develop an "All Species HCP" that would provide cer- tainty to Murray Pacific and fish and wildlife. 

It has not been an easy task. However, it has been worth the struggle and I am very proud of what we have achieved, the nation's first "All Species HCP." Murray 

Pacific pursued their HCP because it was the right thing to do. The right thing for 

fish and wildlife, and the right thing for Murray Pacific. The foundation of the Murray HCP is watershed analysis, which is the science 

that supports best management practices, along with a lot of common sense added. 

Murray involves the tribes, the agencies, the environmental community, and the 

general public in their management strategies. This type of approach should give 

everyone the confidence needed to make habitat conservation planning a successful 

process. In addition, and over time, the monitoring strategy will demonstrate the success of the approach. I believe private landowners have a responsibility to make a contribution to the 

protection of fish and wildlife. We are doing our part through this HCP. It is fair, however, to debate the amount of contribution landowners should make for fish and 

wildlife. The extent of the contribution should be based on good science and what 

is rractical. 

want to take this opportunity to commend the Clinton Administration's leadership and effort in improving the Habitat Conservation Process and working effectively with a private company like Murray Pacific to successfully complete our HCP. 

In partnership with the United States Fish and Wildlife Service, Murray Pacific was able to develop a balanced plan that gives certainty to both fish and wildlife and 

Murray Pacific over the next 100 years. The HCP process allows landowners and the government to come together outside 

the court room or a highly charged political atmosphere to seek scientifically based 

solutions which keep timber companies in business. 

As a private landowner, I do not support wholesale changes to the Endangered Species Act (ESA). I believe ESA requires a "tune-up," but is fundamentally sound. 

First, I would start by changing its focus to Ecosystem based planning as opposed 

to the species-by-species focus it currently has. 

Second, I would recommend you examine developing some implementation steps 

which give landowners incentives to protect valuable fish and wildlife habitat before 

the Endangered Species Act comes into play. We need to encourage landowners and 

the government to take preventative steps which could be far less costly and oner- ous. Third, I think we should continue to improve and streamline the HCP process to 

make it more user-friendly. It is working now, but we can always improve the proc- ess to make it less costly and more efficient for small, medium and large land- owners. Fourth, the Clinton Administration and Secretary Babbitt deserve enormous credit for being creative and steadfast in their commitment to providing certainty to 

landowners who develop HCP's. For Murray Pacific to agree to the management and 
110 

financial commitments of the HCP Amendment, it must have reasonable certainty 

that it can absorb the costs and yet remain economically viable over the term of the 

HCP. Lastly, the Administration and Congress need to ensure that the law is clear, justifiable, consistent, and applied equally to everyone. As a landowner who has developed an HCP under the Endangered Species Act, I am adamantly opposed to any 

landowner being exempted from the Act unless they qualify as a "small landowner" 

that does nor significantly impact fish and wildlife or its habitat. Granting an ex- emption to some companies and not others is wrong, unfair and would put Murray 

Pacific and other companies that have completed HCP's at an unfair competitive 

disadvantage. In summary, I urge you and the Congress to continue to support habitat planning or like processes. It is essential to keep the momentum going-it is abundantly clear 

that the industry and the environmental community are coming together in developing sound scientific plans that will benefit fish and wildlife while at the same time 

providing the certainty needed to attract capital for the 50-60 year investment period required in forestry. As the Administration and Congress have stood firm 

against those more conservative elements in the timber industry who would turn 

back the clock, it must with similar fortitude say "no!" To those in the environ- mental community who complain that these HCP's do not go far enough. Do the right thing-keep the process voluntary and objective! While I would rec- ommend changes to the HCP process, I remain supportive of the HCP process. 

Sincerely, 

George T. Frampton 

L.T. MURRAY, III 

Vice President, Murray Pacific Corp 

PORT BLAKELY TREE FARMS 

500 UNION STREET, SUITE 830 

Seattle, Washington, July 24, 1996. 

Assistant Secretary for Fish and Wildlife and Parks 

Department of the Interior 

1849 "C" Street, NW 

Washington, DC 20240 

Dear Assistant Secretary Frampton: 

I want to take this opportunity to thank you for the excellent work of the United 

States Fish and Wildlife Service (USFWS) in the development of the Port Blakely 

Habitat Conservation Plan (HCP). The efforts of the Clinton Administration and the 

Service are to be commended. 

I believe the Port Blakely multi-species HCP demonstrates that government and 

the private sector can work together to achieve balanced solutions to challenging 

natural resource issues. The plan we negotiated with the USFWS and the National 

Marine Fisheries Service (NMFS) protects critical fish and wildlife habitat and allows for sustainable forestry practices. We believe our approach reflects our longterm commitment to maintaining and enhancing habitat throughout the forest man- agement process and we welcome the regulatory certainty that it will provide our company, its investors, employees and contractors for the next 50 years. 

Upon reflection I believe it is critical that the Clinton Administration and the 

Congress continue to support and encourage other landowners to pursue HCP's. We 

represent the third major timber company in Washington State to complete an HCP. These three HCP's represent over 230,000 acres of private timberland that are important to fish and wildlife habitat and commercial forestry which employs many 

people in our state. However, I am hopeful that what these HCP's really represent 

is an end to the bitter and divisive battles we have too often engaged in when man- aging our forestry lands. The HCP process gives one hope that we can voluntarily 

negotiate and agree on scientifically credible, legally defensible and practical plans 

to protect fish and wildlife without destroying the forest products industry. 

While I strongly support the HCP process, we can and should take action to 

streamline the process, make it more affordable and create more financial incentives 

for the landowners to protect habitat. I would urge you to vigorously pursue action 

to assist the small landowners in developing a process that meets their needs as well. Finally, I would encourage you to remain firm in this administration's commitment to providing certainty to landowners who develop HCP's. Providing such cer- tainty was an essential incentive to Port Blakely and without it we would have not 

pursued our multi-species HCP. 
111 

I would like to thank you and all the administration for demonstrating leadership, 

creativity, and commitment to the HCP process. Your efforts have truly make a difference and been effective in advancing our company's HCP. Please continue your 

efforts to bring people together in a voluntary and non-confrontational manner to 

solve our Nation's environmental challenges. 

Very truly yours, 

JAMES E. WARDEN 

Chairman & General Partner 

Port Blakely Tree Farm 

LETTER SUBMITTED BY THOMAS KAM 

Travis County Commissioners' Court 

P.O. Box 1748 

Austin, TX. 78767 

AUSTIN CITY COUNCIL 

AUSTIN, TX, APRIL 10, 1995. 

Subject: Balcones Canyonlands Conservation Plan (Shared Vision) 

Council Members, Mayor, County Judge, and County Commissioners: 

Attached are a list of recommendations approved by the Community Conservation 

Plan Working Group which was tasked with providing constructive input on the latest regional plan to balance development and endangered species protection (BCCP 

Shared Vision). Our Working Group was composed of members representing a variety of interests in the landowning, development, and environmental communities. We worked hard to develop recommendations that were acceptable to all members 

of the group. Most of the recommendations are unanimous. We continue to believe that a regional approach to the endangered species issues 

is the best one for our community. In spite of our recommendations, we share a con- cern about the financial viability of the plan. We hope you will continue to explore 

every possible funding source in an effort to ensure that all landowners, including 

those within the preserves, are treated fairly and that the preserve acquisition time 

is reduced to the minimum possible. We also recognize that other factors beyond our control, such· as changes to the Act itself or court decisions can impact the plan's 

foundation. In this regard, the plan needs to remain flexible in order to accommo- date future political and legal changes. We appreciate your willingness to provide the opportunity to comment on this 

plan before any final action was taken and are hopeful that our input will be helpful 

and constructive. If you have any questions, please feel free to contact me or any 

other members of our committee. A list of members. 

Sincerely, 

VALARIE SCOTT BRISTOL 

Travis County Commissioner 

Gus GARCIA 

Austin City Council Member 

DAVID ARMBURUST 

Austin Real Estate Council 

ALAN GLEN 

Greater Austin Chamber of Commerce 

BRYAN HALE 

Travis Audubon Society 

RUSSELL R. HYER 

National Wildlife Federation 

JUDY JENNINGS 

Bull Creek Foundation 

LARRY McKINNEY 

Texas Department of Parks & Wildlife 

CRAIG SMITH 

Austin Sierra Club 
112 

To: Members Austin Planning Commission, 

Members Austin City Council, 

Members Travis County Commissioners Court 

LONNIE MOORE, 

13427 A RANCH ROAD 2769, 

Austin, TX, April 17, 1995. 

Re: Balcones Canyonlands Conservation Plan (BCCP) 

I served as the "landowner representative" on the BCCP Working Group chaired 

by Commissioner Bristol. I voted in favor of almost all the recommendations approved by the Group. These recommendations would make an acceptable plan better. However, this version of the BCCP is unacceptable. 

The BCCP should not be put into place without first successfully addressing its 

fatal flaw-financing. The current Plan is (1) based on highly questionable financing 

assumptions and (2) In its best case, patently unfair to landowners within the pre- serves. I cannot endorse a Plan which is based on the assumption that remaining 

land can be acquired at an average of $5,500 per acre or contemplates taking anywhere near 20 years to compensate all the preserve landowners affected. I have not yet seen the final results of Tom Kam's survey of preserve landowners. Preliminary figures show an average owner evaluation of almost $30,000 per acre! 

Even if the owners inflated their values and the BCCP could acquire the land for 

one-third what owners would like to get, that is still $10,000 per acre, almost twice 

what the Plan allows for. Trying to finance the Plan principally on development fees 

will result in financial failure and thus failure to complete the preserves. That fail- ure might take 2-3 years to become apparent, resulting in favoritism to early certificate users (i.e., certain developers) and a bad situation for almost everyone else. And even attempting to hold preserve landowners hostage for 20 years will result in lawsuits, some almost certainly successful and all costly. Such a flawed plan will also, sooner or later, help cause additional legislative changes which will be the opposite 

of what BCCP proponents would wish. The Working Group was not given any means to address the underlying financial 

problems of the Plan. The Austin City Council and any other prospective regional 

permit holders should not ignore these problems. The Austin City Council and any 

other permit holders should not go forward until they can address these fundamental issues. 

Thank you, LONNIE MOORE 

SOME POINTS ABOUT THIS BCCP FROM LONNIE MOORE <LANDOWNER 

REPRESENTATIVE ON WORKING GROUP) APRIL 17, 1995 

• Landowners have always felt left out of the process. Putting one landowner 

representative on the Working Group late in the process does not make up for years 

of being ignored. • Landowners are suspicious of the motivations of Plan proponents. Frequently 

heard is that USFWS is desperate for a success story to aid re-authorization of the 

ESA. So desperate they will condone and even promote a Plan which, by all indications, will fail financially and possible biologically as well. • Landowners are also suspicious that developers and their representatives will 

promote the Plan, get their certificates quickly and clear their land as soon as possible. When the Plan unravels financially (perhaps 2-3 years before it becomes apparent), it will be too late to stop them but their competitors will be thwarted by 

the lack of a continuing, viable regional plan. • Landowners within the proposed preserves feel they would be better off without the Plan. Despite what USFWS may say, preserve landowners believe that without a Plan they may be able to realize some use or value for their land. Once the 

Plan is started, these preserve landowners are trapped in the process because the 

integrity of the preserve must be maintained or the entire regional plan is jeopardized. • Many landowners feel they are asked to pay for preserves that benefit the com- munity at large and should be paid for by everyone. In reality these lands are as much parks as preserves. • The "cookbook" approach, assigning per acre fees to the gross site acreage, may 

have an undesirable side effect. Since the developer must pay fees on the entire 

tract, not just on land utilized, he/she is encouraged to develop as densely as possibly in order to spread the fees over more homes or commercial property. This high- er density can have a detrimental effect on traffic, neighborhoods and water quality. 
113 

• All the cheap land (e.g., RTC owned) has already been obtained for habitat. The remaining 10,000 acres will be very much more expensive. It will certainly cost more than the estimated average of $5,500 per acre. Please see Torn Karn's land- owner survey. • Even in a best case scenario--one that assumes the County will contribute 

$10M-it will still take 20 years to acquire the remaining habitat even using the 

(low) estimated $5,500/acre figure, 20 years is far too long (by about 15 years) to 

leave landowners in limbo, unable to develop or realize value for their land. Not 

only is this unfair, it will make the City of Austin the target of lawsuits and possibly of even more Austin-controlling legislation. Right now USFWS is the "bad guy" on the ESA; does Austin want to take on the role? • The ESA will almost certainly be changed by legislation and/or by pending Supreme Court decisions. Is it necessary to go forward now, when such changes might 

severely alter any such plan? After 7 years or more, why not wait a little longer? 

LONNIE MOORE 

115 

STATEMENT OF WlLLIAM R. BROWN 

Good afternoon Mr. Chairman and members of the Committee. My name is 

William R. Brown. I am Vice President, Resources, for Plum Creek Timber 

Company, based in Seattle, Washington. I am accompanied today by Dr. Lorin 

Hicks, Director of Fish and Wildlife Resources, for Plum Creek. I appreciate the 

invitation of this committee to discuss our recently completed Cascades Habitat 

Conservation Plan with you today. I have provided more detailed information 

about the HCP in attachments to my statement. 

The HCP was approved on June 27, 1996 and announced in a formal ceremony in 

Seattle attended by Secretary of Agriculture Dan Glickman, Regional Director of the 

U.S. Fish and Wildlife Service Michael Spear, Regional Director of the National 

Marine Fisheries Service William Stelle Jr. and others from the Administration. 

The Plan has been endorsed in editorials by the major newspapers in Seattle and 

others in the region. And, Plum Creek gratefully acknowledges the bipartisan 

support this effort has received from Members of the Washington Delegation. 

The Administration, Secretary of Interior Bruce Babbitt, Assistant Secretary George 

Frampton and the Fish and Wildlife Service are to be commended for their 

commitment to the HCP process, generally, and the Plum Creek Plan, specifically. 

We believe habitat conservation plans provide a useful mechanism for private 

landowners to work within the current structure of the Endangered Species Act. 

This is not to say, however, that we cannot improve on the current system. We 

have learned much from this process and hope that we can help this Congress 

identify c.ritical areas for reform to ease the regulatory burdens on private 

landowners of all sizes and types. 

While the attention today is on the HCP, Plum Creek also completed a landmark 

conservation agreement last year with state and federal agencies in Montana to 

address grizzly bear habitat concerns in the Swan Valley of Montana. The HCP and 

the Grizzly Bear agreement are extensions of the policies and principles of Plum 

Creek that reflect the latest scientific advances in forestry and timber practices. 

These efforts are win-win solutions to complex problems confronting private 

landowners which also provide scientifically based protections for wildlife. 

Background 

The Central Cascades HCP encompasses 170,000 acres of Plum Creek land in the 

central Cascades Mountains of Washington. The area covered by the Plan totals 

418,000 acres in which Plum Creek lands form a "checkerboard" pattern with federal 

lands and other smaller private owners. These lands contain one of the most dense 

spotted owl populations. Many other species commonly occur, including goshawks, 

bull trout, and salmon. Grizzly bears, wolves and marbled murrelets may also occur 

in the foreseeable future. 

William R. Brown 

Plum Crtek Timber Company, L.P. july 24, !996 

Page2 
116 

In addition to endangered species populations, the so-called I-90 corridor is 

dominated by pressures from heavy recreational use, other environmental issues, 

and encroaching population growth. Without a comprehensive solution to the 

myriad of resource issues that we face, our ability to manage our long-term timber 

assets in this area would be uncertain at best. To understand why Plum Creek 

elected to take on the arduous and expensive development of an HCP, two business 

"realities" must be understood: Plum Creek's landownership pattern and the 

impact on the company of existing and future regulations under the ESA should 

additional species become listed. 

Nearly all of Plum Creek's 2 million acres in Montana, Idaho and Washington is 

intermingled with state and federal land in a checkerboard ownership pattern of 

alternating square-mile sections. This ownership pattern stems from the 1864 

railroad land grants to Plum Creek's predecessor companies. Checkerboard 

ownership puts Plum Creek's property in close proximity to, and sometimes in 

conflict with, federal land management direction for U.S. Forest Service and BLM 

lands. This is especially true for areas where the federal government is directed to 

maintain large areas of late successional and old growth habitat for spotted owls, 

recreation, and other public values. This checkerboard pattern complicates 

landscape planning for all parties and often results in forest management conflicts. 

Regulatory Framework 

Since the spotted owl was federally listed in 1990, we have been subjected to a 

gauntlet of spotted owl "circles and surveys" to which we must adhere in order to 

harvest private timber in spotted owl habitat. In the I-90 corridor where Plum Creek 

completed the HCP, thousands of acres of the company's most productive 

forestlands were constrained by over 100 spotted owl management circles, within 

which at least 2,600 acres of habitat must be preserved for every nesting pair of owls. 

In fact, Plum Creek harvest units were overlapped by as many as 5 different circles. 

Survey requirements to locate and document all spotted owls in the vicinity of our 

harvest units required Plum Creek to hire 13 biologists to do nothing but survey for 

spotted owls. As owls pairs moved from year to year, the owl circles moved with 

them, contributing to even more regulatory uncertainty. 

In addition, the overlapping and sometimes contradictory regulations imposed on 

private landowners by federal and state agencies created two different and unstable 

"playing fields" and the problem was getting worse. During the 2 years Plum Creek 

completed the HCP, the federal government had yet to finalize its regulatory 

requirements for "circles and surveys," while the State of Washington was 

proposing its third round of spotted owl rules in 5 years. The number of spotted owl 

sites impacting Plum Creek lands increased from 103 to 108; and, making matters 

worse, 6 additional wildlife species were added to the candidate list for federal 

listing. 

William R. Brown Plum Creek Timber Company, L.P. 

july 24, 1996 

Page3 
117 

So it was our decision, and I want to emphasize that it was a business decision, to 

begin HCP negotiations with the U.S. Fish and Wildlife Service and the National 

Marine Fisheries Service in 1994. The concept of an HCP is very simple: prepare a 

land management plan that mitiga tes for the potential impact to a listed species and 

in exchange receive a long-term permit to manage yo ur land by the terms set out in 

the HCP. 

Description of the Habitat Conservation Plan 

Our HCP is significant in that it not onl y mitigates for spotted owls and three 

currently listed species (grizzly bears, grey wolves and marbled murrelets), but 281 

other species found in the area. The plan is an ecosystem-based management plan 

that will provide and protect a di versity of forest habita ts to address the needs of all 

fish and wildlife species known or suspected to occur in the area. It is multi-species, 

habitat-based in its approach. In effect, we have agreed to provide benefits for 

numerous wildlife and fish species even before they reach the point where they may 

need to be listed under the ESA. 

The objectives of the HCP were to: 

1. Provide Plum Creek with predictability and fl exibility to manage our 

timberlands economically while contributing in a meaningful way to the 

conservation of the covered species; 

2. Minimize and mitigate the impacts of any "take" of species incidental to 

lawful timber harvest and rel ated forest management activities; and , 

3. Provide habitat conditions to conserve the ecosystems upon which all 

species in the Planning Area depend. 

Management Strategies 

As I previously indicated the Plan not only addresses spotted owls, but it includes 

management strategies for the marbled murrelet, grizzly bear and grey wolf, which 

are listed species. In addition, the HCP will provide protections for 281 other species 

which have been grouped into 16 lifeforms. The following is a brief description of 

the va rious management strategies in the Plan. 

Northern Spotted Owl 

• Provide a minimum of 8% nesting, roosting and foraging habitat 

throughout the Permit period. 

• 5,800 acres have been identified which will be deferred from harvest for 20 

years or selectively harvested to maintain nesting and dispersal habitat to 

support key owl sites. 

William R. Brown Plum Cret>k Timber Company, L.P. july 24. 1996 

Page4 
118 

• Protect and maintain 10,900 acres in riparian areas to provide spotted owl 

nesting and d ispersal habitat. 

• Conduct small mammal surveys and spotted owl demographic surveys to 

ensure protection efforts and experimental harvest treatments are 

maintaining spotted owl habitat. 

Marbled Murre let 

• Defer harvests on 257 acres of potential nesting habitat while surveys are 

completed to identify possible murrelet nesting activity. 

• Protect occupied stands found during survey period. 

Grizzly Bear 

• Use a "phase in" approach to provide some protection today, but increase 

protection in the future when grizzlies are confirmed to use the area. 

• Phase 1. Restrict public use; reduce open road densities; provide visual 

screening on open roads and prohibit firearms in Company and contractor 

vehicles. 

• Phase 2. Increase road management actions; provide cover in harvest 

units; restrict timing of operations during anticipated bear use. 

Grey Wolf 

• Protect den sites with operational restrictions and road closures. 

• Provide for maintenance of prey populations (e.g. deer, elk, snowshoe 

hares) by managing habitat and mainta ining road closures. 

Lifeform Support 

• 281 other species prioritized by legal status (e.g. candidates for listing) and 

grouped into 16 lifeforms based on similarities in breeding and feeding 

habitat preferences., 

• Current status and 50 year habitat trends for each lifeform discussed and 

displayed graphically in the HCP. 

• Management guidelines for special habitats (e.g. snags, wetlands, talus 

slopes, caves) needed by these species are identified in the HCP. 

William R. Brown 

Pl11m Creek Timber Company, L.P. 

July 24. 1996 

PageS 
119 

Riparian Management 

• State Forest Practices Rules and Regulations will continue to guide some 

actions (e.g. culvert sizing, chemical applications). 

• Watershed analysis will be completed on 20 watersheds in the Planning 

Area within 5 years. · 

• Protecti ve buffer strips in Riparian Habitat Areas and Wetland 

Management Zones designated on 12,000 acres vary from 100 to 200 feet in 

width. 

• Harvest deferred on 667 acres of 303(d) water quality-limited stream 

segments until completion of watershed analysis. 

• An aquatic resources monitoring program will evaluate the success of the 

riparian management strategy on stream habitat and fish populations. 

A more detailed description of the HCP is included with the testimony as 

Attachment 1. 

I would like to discuss three aspects of our land management and HCP of specific 

interest to the Committee: 

1. Why did Plum Creek decide on an HCP? 

2. Cost, implementation and benefits of the Plan. 

3. Additional actions by Plum Creek to address access and land exchange. 

Why Did Plum Creek Decide On An HCP 

We were motivated to provide the level of benefit in the Plan for two reasons: The 

first is due to the commitment made by the government to add species covered by 

our HCP should they ever be listed in the future, in effect a "prelisting" agreement. 

The second was the commitment of the government to not impose additional costs 

on the company except in extraordinary circumstances. This simple concept, known 

as the "Deal is a Deal" or "No Surprises" policy, was instrumental in the 

development of this Plan. 

Cost, Implementation and Benefits 

The company invested 2 years and over $1.3 million dollars in the development of 

this HCP. I want to again emphasize that this was a business decision, designed to 

produce a stable regulatory environment for the Company"s long range planning. 

However, the public clearly benefits from this business decision. To obtain this 

regula tory predictability, Plum Creek will exceed virtually every state and federal 

standard for environmentally acceptable timber harvest in exchange for stability to 

William R. Brown Plum Creek Timber Company, L.P. 

July 24. 1996 

Page 6 
120 

plan harvests and obtain acceptable return rates on our timber resources over a 50 

year period. 

The prelisting agreement and the "No Surprises'" policies, criticized by many, are the 

most important elements of our agreement with the fede ral government. Without 

them, there is no incentive, commitment or contract. The unique partnership of 

Plum Creek and the federal government to protect public resources and provide an 

end to the "timber wars" was created by these two policies and is what led four of the 

Northwest's leading newspapers to editorialize in support of our HCP last month. 

This HCP is the product of two years of scientific work and unprecedented public 

input. In addition to the public input normally required under the National 

Environmental Policy Act (NEP A), Plum Creek sponsored over 50 meetings and 

briefings to explain the HCP and solicit comments and recommendations from a 

diverse array of "stakeholders" such as environmental groups, federal, state and 

local regulators, timber interests, landowners and elected officials. 

Plum Creek began the research that supports this plan in the 1980's which includes 

extensive field surveys, telemetry data and silvicultural experiments. Additionally, 

the development of the HCP has been a science-driven process, involving the work 

of over 20 scientists and technicians, with review and input of 47 outside reviewers. 

The scientific work, however, is just the beginning. Watershed analysis will be 

completed in 20 wa tersheds within the next 5 years and the size of the forested 

streamside buffers will be determined by each specific analysis, not by a "one size fits 

all" rule. It is important to note that the implementation, research and monitoring 

costs associa ted with the HCP are covered by the Company. The federal government 

is not being asked to "subsidize" this plan. 

While the 50-year term of the Plan may seem long to many, this is not a long time 

for a timber company or for the life of a forest. An obvious difficulty of designing a 

long-term ecosystem, habitat based plan of this duration is the dynamic nature of 

natural systems and the limitations on scientific knowledge and modeling 

capabilities. We have taken these issues into account by incorpora ting the on-going 

use of "adaptive management." No other HCP to date has included such a crea tive 

concept -- which includes a program of monitoring, surveys, reporting and 

cooperative research to evalua te biological relationships and habitat responses. 

Attachment 2 to our testimony describes adaptive management and its role in Plum 

Creek HCP. 

Mr. Chairman, you requested information on set-asides and other considerations 

embodied in the HCP. In addition to the commitment to manage our land in such a 

way that there will be adequate habitat for a di verse array of species, there are over 

30 separate mitigation measures outlined in the plan to address diverse concerns 

ranging from streamside protection to spotted owl habitat. A few quick examples 

may illustrate the multi-faceted aspects of this plan. 

William R. Brown 

Plum Creek Timber Compa,y, L.P. 

july 24. 1996 

Page? 
121 

Plum Creek has agreed to defer harvest on 2,600 acres of spotted owl nesting habitat 

for at least 20 years in order to protect productive owl sites and "bridge the gap" 

between short-term habitat loss and long-term recovery of habitat on federal lands. 

The Company has also agreed to selectively harvest 3,200 acres in order to maintain 

habitat "connectivity" between late-successional forests on federal land in this 

complex checkerboard ownership. Plum Creek has also agreed to provide 200-foot 

forested buffers along fish bearing streams where current regulations require only 25 

foot buffers. These buffers benefit a wide variety of fish and wildlife species, and 

represents millions of dollars of timber at today's values. 

Based on Plum Creek's management principles and our history of research and 

application of science, Plum Creek was uniquely positioned to undertake and 

implement an HCP of this nature. We believe it can serve as an example of how to 

protect diversity and the health of ecosystems while giving businesses the 

predictability needed to serve the interests of employees, customers, shareholders 

and local communities in which we operate. 

This is not to say that Plum Creek's HCP will be possible for other landowners-- of 

different types and sizes. Habitat conservation plans are an important tool 

providing the necessary flexibility to meet a variety of landownership types and 

patterns. Reform of the Act must incorporate incentives such as HCPs, short-form 

HCPs, conservation agreements and other programs to provide landowners and 

states and federal agencies the tools to meet different challenges. Only then will the 

proper role and obligations of private landowners be adequately defined and 

addressed under the Endangered Species Act. 

We are gratified by the acknowledgment of the U.S. Fish and Wildlife Service and 

the National Marine Fisheries Service of our commitment that this agreement 

represents. Plum Creek is understandably proud of this effort, but other 

opportunities and solutions need to be provided. 

Additional Actions By Plum Creek 

Access and Land Exchange 

I want to step back a bit and put the HCP in greater perspective. My earlier 

description of the I-90 corridor indicated the difficulties that both we and the U.S. 

Forest Service face in managing our respective lands. While the HCP addresses 

many issues under the ESA, other issues remain including recreation, aesthetics and 

management efficiency. A land exchange would offer an excellent opportunity to 

address the remaining issues facing us in this checkerboard ownership. 

We have identified about 90,000 acres, much of it within the HCP area, for exchange 

with the U.S. Forest Service. Of this acreage, 39,000 acres of Plum Creek's land is 

currently unaccessed land which have been prioritized through discussions with 

many public groups over the past two years. We have begun discussions with the 

William R. Brown 

Plum Creek Timber Company, L.P. 

July 24, 1996 

PageS 
122 

Forest Service to reduce the original 90,000 acres to approximately 39,000 --targeting 

those areas considered a high priority for public ownership. At the signing of our 

HCP, Secretary Glickman announced the commitment of the U.S. Forest Service to 

complete such an exchange in the I-90 corridor within two years . As an extra 

incentive to speed up the process, we have committed to defer harvest in at least 

80% of the currently unaccessed area for two years, provided that the HCP remains 

in effect and that the U.S. Forest Service continues to process our access requests in 

the interim, and makes satisfactory progress toward an exchange. 

This committee has been a voice for reform in many resource management areas 

and I would like to suggest that one of the most positive steps that you could take 

would be to streamline the land exchange process to accommodate "win-win" 

proposals such as this one, whether through the ESA or a separate bill. Over the 

past several months, Plum Creek has worked with Congressman Hansen on H.R. 

2466, a bill designed to facilitate the burdensome and time consuming land exchange 

process. In addition, we have been encouraged that land exchanges have been made 

part of major the ESA bills, including your proposal co-sponsored by Congressman 

Pombo. 

Plum Creek is no stranger to exchanges. We have participated in over 400,000 acres 

of exchanges in the Northwest which have led to the establishment of some of the 

country's finest wilderness and recreation areas. But, the land exchange process has 

become so burdensome that a 10 year duration is now routine. The prospect of such 

a lengthy delay in the I-90 exchange proposal is not acceptable to Plum Creek. We 

have communicated to all stakeholders that we must begin harvesting in these 

areas should an exchange not be accomplished in a timely manner. 

Mr. Chairman, this committee can help public/private resource partnerships in 

many ways, but two specific suggestions will conclude my remarks today: 

1. Encourage federal agencies to continue the prelisting and "No Surprises" 

policies and streamline the HCP process to reduce costs and duplicative 

requirements. The best encouragement would be to explicitly provide for 

these mechanisms in the ESA. 

2. Enact H.R. 2466. A strong bill is necessary to remove the barriers and 

duplicative processes that have so burdened the process. Then the 

agencies will have the support and direction they need. We stand ready to 

assist your committee in any way possible to make land exchanges a more 

viable business consideration. 

Plum Creek is proud of our HCP, conservation agreements, and land exchanges to 

protect public resources and promote regulatory predictability. Although these 

processes are not perfect, they solve problems and deserve a chance to prove their 

worth. They represent both substantive conservation measures and sound business 

decisions. 

William R. Brown Plum Creek Timber Company, L.P. july 24, !996 

Page9 
Mr. William R. Brown 

123 

Outline of Testimony 

of 

William R. Brown 

Plum Creek Timber Company 

July 24, 1996 

Accompanied by: 

Vice President of Resource Management 

Plum Creek Timber Company 

Dr. Lorin Hicks 

Director, 

999 Third Avenue, Suite 2300 

Seattle, Washington 98104 

(206) 467-3638 

I. Introduction 

Outline 

Fish and Wildlife Resources 

Plum Creek Timber Company 

(206 i 467-3629 

II. Background -- This section includes a description of Plum Creek 

ownership and the Habitat Conservation Plan Area, which is 

dominated bv a "checkerboard" ownership pattern. 

lll. Regulatory Framework --This section discusses the regulatory 

backdrop for spotted owls against which Plum Creek decided on an 

HCP. 

IV. Description of the HCP --This section pro,·ides the Committee wiih a 

description of the objectives and management strategies of the Habitat 

Conservation Plan. In includes a brief characteization of kev 

managment strategies for: Northern Spotted Owls; Marbled Murrelets; 

Grizzly Bears; Grey Wolves; Lifeform Support; and, Riparian 

Management 

V. Why Did Plum Creek Decide On An HCP --This section discusses 

factors that led Plum Creek to decide on an HCP. It discusses costs and 

benefits of the Plan to Plum Creek and the public. In addition, the 

sections addresses key incentives in the Pl~n. including the "No 

Surprises" policy and pre-listing agreements ior non-listed species. 

VI. Additional Actions by Plum Creek-- This sections discusses the 

importance of a Land Exchange of approximately 39,000 acres to address 

remaining issues raised bv Plum Creek's checkerboard ownership in 

the Planning /uea. 

VII. Recommendations -- The testimony recommends streamlining the 

HCP process, codifying prelisting agreements such as those 

incorporated in the Plan and the "No Surprises" policy and enacting 

land exchange facilitation legislation. 
124 

Attachment 1 

U S Fish and Wildlife Service 

~ational Marine Fisheries Service 

Plum Creek Timber Company, L.P 

I. BACKGROUND 

PLUM CREEK HCP 

June 17, 1996 

Plum Creek Timber Company, L.P , the U S. Fish and Wildlife Service, and the National Marine 

Fisheries Service have completed a Habitat Conservation Plan (HCP) covering 4 I 8,000 acres, 

including I 70,000 acres of Plum Creek ownership, in a portion ofWashington's central Cascades 

commonly referred to as the Interstate 90 (I-90) Corridor (Figure 1 ). The ownership pattern of 

the Plum Creek lands covered by the HCP is "checkerboard" in nature -- intermingling private and 

public ownership. 

Interspersed throughout the I-90 Corridor is one of the state's most dense spotted owl 

populations. Goshawks, bull trout and salmon are common to the area, while grizzly bears, 

wolves and marbled murrelets likely occur, or will in the foreseeable future. To conserve these 

species, and benefit many others, Plum Creek has embarked on a unique effort to protect and 

manage the entire ecosystem. The result is the HCP. 

Under the Plan, Plum Creek will commit to a strict yet flexible 50-year ecosystem management 

strategy that will protect over 418,000 acres involving 20 watersheds and address the needs of 4 

listed species and 281 other vertebrate species offish and wildlife using a habitat-based landscape 

approach. The focus within the planning area will be on diverse forests and healthy 

riparian/aquatic systems. 

The Plum Creek HCP is designed to complement the Northwest Forest Plan. The HCP contains 

provisions that will maintain all ages of forest across the landscape. Old growth levels will be 

maintained at current or existing levels. It will provide late successional habitat, as well as 

younger habitats. Emphasis has been placed on riparian buffers and on special habitats such as 

wetlands, talus and caves. In fact, the agreement ensures all species, listed and unlisted, will find 

adequate habitat within the Planning Area. 

Plum Creek has used "leading edge science" to model and visualize forest structure and 

characteristics into the next century. Through high-resolution Geographic Information Systems 

mapping and radio telemetry, it can analyze, document and display complex data on wildlife 

population and migration patterns. Using this science and watershed analysis and the monitoring 

built into the Plan, the HCP provides further refinement of the "adaptive management" concept. 

A number of components of the HCP have been identified for adaptive management which will 

incorporate the results of monitoring and new information throughout the life of the HCP. 
125 

While the Plan provides more certainty fo r species and their habitat, Plum Creek will also benefit 

from the HCP. The Plan mcorporates Administration policy providing long-term assurances for 

pnvate land owners through the "No Surprises" and Safe Harbor Policies. Plum Creek will 

benefit from the ability to malke long-range timber management plans without facinQ the 

uncertainties of species-by-spectes regulations -- greatly reducing the threat of an e~ angered 

species affecting their timber operations. 

In addition to the HCP. Plum Creek and the U.S. Forest Ser;ice have agreed to undertake a major 

land exchange in the Planning Area, which would transfer to Federal ownership about 40,000 

acres of Plum Creek lands Plum Creek has committed to deier operations in at least 80% of 

these lands for two years providing successful implementation of the HCP and suitable progress 

being made on the land exchange and the granting of permits across Federal lands for access to 

unaccessed Plum Creek lands. Transfer of Plum Creek lands to the federal government will 

resolve the complexities of checkerboard ownership in this area for both parties. 

U, LANDSCAPE/ECOSYSTEM APPROACH 

A. Old Growth 

With the implementation of the HCP, Old Growth will be maintained at or near 

current levels, about 2,000-2,500 acres. There are no existing protections for old 

growth without the HCP (Figure 2). 

B. Riparian Buffen 

Buffers in the HCP are 200 feet wide for fishbearing streams and I 00 feet wide for 

most other perennial streams. Without the HCP, buffers on fishbearing streams 

could be as small as 25 feet, and nonexistent on other perennial streams. The HCP 

buffers provide far better continuity with the buffers on Federal lands than would 

occur without the HCP (Figure 3 and 4 ). HCP buffers may be thinned, but would 

continue to function as owl habitat and will contain increasing amounts of Old 

Growth and other Marure Forest In addition. the HCP will also include a 30-foot, 

no-harvest zone along fishbearing streams, and will restrict the access of groundbased equipment (e.g., bulldozers and tractors) near perennial streams and 

wetlands (Figure 5). 

C. Wetland Protection 

Under the HCP, protection of wetlands exceeds state and federal regulations. As 

an example, under current regulations, a 5-acre eastside wetland with no open 

water would receive an average buffer of 50 feet. With the Plum Creek HCP, the 

buffer would average 200 feet and larger trees. would provide better protection of 

the wetland. The HCP would also leave larger trees adjacent to wetlands than 

under current practices (Figure 6). For example, the size of trees remaining after 

harvest would be as large as before harvest. In addition, only one harvest per 

every 50 years would be allowed providing time for some trees to become snags 

2 

35-090 96-5 
126 

and downed logs. Forested wetlands could be harvested without restnetions 

today, but the HCP will require them to remam in a forested condition. 

D. Watershed Analysis 

Watershed analysis is presently a voluntary process which scientifically examines 

conditions within watersheds and makes site·specific recommendations. Within 

the HCP area, Plum Creek has committed to completing analyses within 5 years 

for 20 of the 23 watersheds in the Plan area (Figure 7}. In the interim. specific 

measures contained in the HCP will be implemented. These specify the size of 

buffers. limit the amount of harvest, and address a host of other factors. When 

Watershed Analysis is completed, it will add ccnservation measures for fish and 

wildlife habitat, and will not remove or replace any of the proteetive measures 

specified in the HCP. 

E, Spotted Owls 

As the highest public profile of the endangered species in the northwest. the habitat 

for the Northern Spotted Owl is a major focus of the HCP over the 50 year span of 

the HCP. There will be a slight reduction in the number of owls (Figure 8}. There 

are now 87 nesting pairs in the HCP area. The plan projeets that to go to about 

80. The HCP will not only maintain nesting, roosting, and foraging habitat but will 

provide habitat for dispersal as well. Dispersal habitat is not required to be 

retained under current regulations. Scientific projections indicate that. with 

implementation of the Northwest Forest Plan on federal lands and the HCP on 

Plum Creek pro perry, habitat for the spotted owl will increase 27% over the next 

50 years (Figure 9). 

F. Conflicts Among Species 

A major strength of the HCP's ecosystem approach is the ability to plan for all 

species rather than managing for one endangered species at the expense of others. 

For instance, the reduction in owl numbers is oifset by additional stream proteetion 

and habitat provisions for other species which may prevent further listings. 

There are inherent conflicts between certain species and groups of species such as 

elk and grizzly bears which forage in younger stands and openings and spotted 

owls which require older forests with snags and logs. Another example using 

riparian based species might include the needs of salamanders for downed logs and 

dense moist forests and certain warblers that use openings in riparian areas. 

Because managing for one species may impaCt another, an ecosystem approach is 

by far the most scientifically accepted practice. The goal is to manage in a way 

that emulates the natural amounts and distributions of habitat within which the 

various species have thrived. 
127 

ill. SCIENCE 

A. Adaptive Management 

The HCP has been designed as a "living document" :'-lew informatiOn will be 

available in the future, but both Plum Creek and the Services desire as much 

certainty as possible. The mechanism to aciueve these goals is the application of 

adaptive management. The key ingredient is the ability to improve the 

conservation effort if needed without conflicting with the overall goals of the HCP 

or the provisions of the "No Surprises" Policv 

For instance, aquatic monitoring and watershed analysis may indicate that the HCP 

buffers are not providing enough shade to maintain low water temperatures. In 

that case, buffer treatments would be adjusted to provide more shade (Figure I 0). 

Another example would be if the observed number of owl sites found during 

monitoring was less than 80 percent of that projected by the models. ln that case, 

additional deferrals could be put in place or existing deferrals extended. The intent 

of the adaptive management strategy is to provide the ability to incorporate new 

information that enhances the effectiveness of habitat protection. 

B. Compliance Monitoring 

The research and monitoring program designed to support Plum Creek's HCP will 

provide data essential for adaptive management and useful information for 

landscape planning. HCP monitoring and research will be funded entirely by Plum 

Creek, without obligating federal funds. However, as with all HCPs, the Services 

will conduct compliance monitoring and "spot checks" to ensure strict compliance. 

IV. FEDERAL NORTHWEST FOREST PLAN 

The Plum Creek HCP is designed to complement the Northwest Forest Plan (}IWFP). As 

an additional safeguard, projections of harvest rates on federal lands within the HCP area 

were calculated to be higher than the NWFP projects, so that future increases would not 

adversely affect the goals of the HCP. Additionally, Plum Creek will maintain spotted owl 

habitat and older forests in the same areas as the Forest Service. By incorporating many 

of the ecological objectives of the Forest Plan, Plum Creek's HCP not only augments the 

Plan but helps ensure its success. 

V. SAFE HARBOR 

Voluntary Contributions of Additional Habitat 

The HCP provides an incentive for Plum Creek to contribute additional habitat beyond the 

first 50 years of the plan for those species in most need. This concept is commonly 

referred to as "Safe Harbor". Without such a provision, the incentives for a landowner 

would be to "zero out" his habitat obligation at the end of the incidental take permit, 

4 
128 

pro,i ding no more than was expected of him. Under the ">afe harbor" concept, so long as 

Plum Creek's HCP performs better than predicted and more habitat is provided for species 

like the spotted owl. Plum Creek's incidental take would continue for up to 50 years more 

than is permitted under the HCP (the baseline). Plum Creek and the Services will address 

the biological basts for the baselines of the "safe harbor" el<!ension at year 40. 

VI. '' '10 SURPRISES" POLICY 

The Secretaries of the Interior and Commerce have adopted a policy ensuring HCP 

applicants that additional mitigation in terms of money or additional lands will not be 

required if the applicant is meeting its commitments as outlined in the HCP. That policy 

does not conflict with the Services' ability to take necessary compliance actions during the 

life of the HCP. The cooperative spirit of the HCP, adaptive management and the 

incentive of "safe harbor" provide the fundamental basis for change to the Plum Creek 

HCP if deemed desirable or necessary by the Services. But the Implementation 

Agreement (lA) specifies the following procedures to effect change (presented in 

hierarchal order of urgency): 

Request Plum Creek to avail itself of the HCP flexibility 

Utilize, where applicable, the provisions for consultation with the Services 

Utilize, where applicable, the adaptive management provisions 

Propose either minor or major amendments 

Rea est redistribution of conservation as a result of unforeseen circumstances 

Require redistribution of conservation mitigation as a result of extraordinary 

circumstances 

Terminate permit, if needed, to avoid jeopardy 

VII. FUTURE ACTION 

NWFP Stability and the Proposed Section 4( d) Special Rule ror Spotted Owls 

It is the Administration's policy that conservation efforts should occur on Federal lands. 

Private lands, however, have a role as reflected in the proposed 4( d) rule and in the 

numerous HCPs, either already completed or in progress. Plum Creek's HCP is within the 

boundaries of the 1-90 Special Emphasis Area (SEA) in the proposed 4(d) rule. The HCP 

improves on the ">afe harbor'' circles and surveys which would be required under the 4(d) 

rule by authorizing a moderate level of "take" in exchange for substantive mitigation and 

attention to many other species in the SEA. If the NWFP were to be eliminated and 

replaced with aggressive harvest and economic extraction on Federal lands, the lA 

provides that Plum Creek HCP lands would not be asked to compensate. However, the 

Services would review the Situation to determine whether unforeseen or extraordinary 

circumstances exist as defined in the HCP contract. It is not likely that extraordinary 

circumstances would exist on the HCP lands without tirst finding that the actions on 

Federal lands were causing "jeopardy" to the involved species. Thus, it would be the 

Federal strategy which would be adjusted first. Regardless of the reasons for change in 
129 

the landscape, the existence of the HCP provides a fr amework for discussions that is not 

available today. 

VIII. REPORTING C'ITERVALS 

The Services will receive repons from Plum Creek on a regular basis. Formal reports will 

be submitted in years 2, 5, 10, 15, 20 and every 10 years thereafter. Meetings and 

discussions are expected to occur much more frequently than that on a variety of topics, as 

a part of the adaptive management process. Either party may request a meeting. It is 

expected that the nature of this HCP will afford the opportUnity to reach a new level of 

cooperation and partnership which will enhance the effectiveness of the Endangered 

Species Act. 

IX. LAND EXCHANGE 

The HCP accommodates the potential for a land exchange. Any transfer of Plum Creek 

land to the federal government in the HCP area could make habitat conditions even better 

in some cases. Land exchanges must maintain the integrity of the HCP and conservation 

on the landscape. Because Plum Creek would continue responsible levels of harvesting 

and does not own its mills in this area, there would only be positive or neutral impacts to 

small mill owners and the local timber supply. 

Land exchanges are important and desirable, especially in this very sensitive checkerboard 

landscape. UnfortUnately, exchanges are often lengthy, time-consuming processes. 

Therefore, it is important to have a mechanism by which options may be maintained in the 

meantime. This makes Plum Creek's offer of voluntary two-year deferrals in areas 

pending land exchange all the more meaningful. Areas of potential exchange in which 

these voluntary deferrals would occur are being identified with full consideration of the 

requirements of the wildlife species present and the need for connectivity between the 

North and South Cascade Mountains. These voluntary deferrals are an important first 

step in developing strong public support for the exchange. The greatest benefit of the 

exchange would be to create an ownership pattern that will enhance wildlife and recreation 

in this important landscape. 

6 
130 

Attachment 2 

ADAPTIVE MANAGEMENT 

.'une i ~. 199/i 

Plum L'rt!ek Bnering: Poner 

ADAPTIVE MANAGEMENT AND ITS ROLE IN PLUM CREEK'S 

HABIT AT CONSERV A TIO'O PLAN 

The concept of .\daptjye \lapagemept. One of the difficwues in designing a long-term 

ecosystem based habitat management plan is that natural svsems are dynamic and our sctentific 

knowledge and modeling capability are inherently limited. -::ere will thus always be nsk and 

uncertainty .. even when the best scientitic knowledge is usee .. at the commencement of any 

long term management plan. This uncertainty is appropriate!\· addressed through the ongoing 

use of "adaptive management.'' 

.-\daptive management approaches use experiments to test cieariy formulated hypotheses about 

the behavior oi an ecosvstem being changed by human use. ·"Japtive management. ti:ereiore. is 

the process whereby management practices can be incremenr;u!y improved by implementing 

plans in ways that maximize opportunities to learn from exoenence. 

=\daptjye Mapaeement as Applied in Plum Creek's HCP This concept of adapme 

management is an important iearure of Plum Creek's HCP. ':o other HCP to date has cncluded 

such a creative. innovative odaptive management concept. 

The concept is implemented in the HCP through a broad pro~ oi monitoring, surw::s, 

reporting and cooperative research which will evaluate the owiogical relationships ana habitat 

responses to management actions taken in the HCP. This precess \Vlll provide the Sernces and 

Plum Creek a credible wav to assess whether the HCP is func::oning as intended and :reduce 

bener ecological knowledge. Based on this information. the :arties can develop approoriate 

modifications to the HCP to ensure that the plan continues to :neet its objectives. 

The primary challenge when using an adaptive management c~proach is to demonstrate simply 

and clearly with sound scientific information why a change :.:: management would be ·sarranted. 

Our biologists ieel that the adaptive approach taken by the HCP will be able to provide that kind 

of sound information. In fact. many oi the adaptive manager.::ent ideas and approaches used in 

Plum Creek's HCP were oifered by L'SFWS statT. as well as :iologists from the US Forest 

Service and Washington Dept. of Fish and Wildlife. 
131 . 

'h~ k~, c0moonems ,,(Plum Cre~>(s HCP I spotted ow1 ;:rategy. life form gu1 :.:::ng. 

md ripan:.m strate~ y' •xi II be tested lhrough the adapti\·e :':1anagemem process. ::1 

~on~rai. :~ <process" Iii focus on whether specttic HCP ':'iologtcal objectives r~ oeing 

:net wnhin the HCP c1anning area rather than on conditions created bv extema1 ;.:.urces. 

rhis process is ongomg throughout the lite ot the plan :>s jisoia,·ed in the anaci:d 

rable 31 !rom the HCP which contains a schedule of the reponing and monitonng 

speci tics in !he pian. 

The spotted owl strategy will be tested through annual owi monitoring in repre ~ntative 

ponions o! the planning area. In addition small marruna1prey studies will be 

conducted. The information thus obtained will allow us ro better understand spotted 

owl population trends and develop mid-course corrections to the timing, spacing and 

extent ot mitigation ior this species. Ranges have been created tor deviations in 

predicted 1·ersus acruai values which will trigger discussions with the Services aoout 

potential corrective acuons. A variance of more than 20% in predicted spotted owi 

carrying capacity once the Plan is implemented. for examole, would trigger action. 

Monitoring will thus ensure that corrective action in the HCP is taken betore long term 

habitat damage has occurred. 

Even more fundamemaily, the life form ·'gullding·· and correlation to different hlilitat 

·· pes underlving the multi-species element of the HCP "iii be tested through annual 

cnonitoring and the planned breeding bird surveys. Since most oi the 16 differect guilds 

(groupings of species that rely on similar habitatitimber r::pes) identified in the t:CP 

contain bird species being surveyed. we should be able to tield verify the modeii.::g 

assumptions used in the HCP. If discrepancies are discovered. discussions with :::e 

Services would ensue and funher research and change in !he plan. if appropriate. ·xould 

result. 

In addition to the two dements oithe HCP noted above. ?!urn Creek's plan tocusses on 

mitigation and protection in riparian areas. Accordingly. :he HCP provides three 

adaptive management processes tO assess success in this area: aquatic resources 

monitoring, watershed analysis. and a riparian management strategy 

Under the aquatic monitoring strategy, we will monitor ~abitat conditions. the 

biological integrity oi streams. and stream temperatures. \!oreover, we will assess rish 

populations in a representative stream. This will enable L!.S to test if the riparian bffer 

strategy is working and will provide information for the watershed analysis process 

described below. 

Watershed analysis "iii be conducted on all :CO of the W3lersheds in the HCP areo. 

Cnder this process. teams of scientists from industty, gowrnmem. environmentai 
132 

;:ouos Jnu the tnDes :::1.a1yze \\<ltersheci comlttlons. t:=---=::.:niJe management restr.c::ons 

·,-., l\'OH.i croolems . ...::.;-;J. mom tor resuns. \1onnonn~ r~::...::rs are then useJ. to uoao:::e the 

,1ssessments :.mLi cre~c:--:puons. \nJiyses are redone J: ~=::;uiar mrervals under tt':e :Jian. 

thereby keeomg ther:;, :.:.o to date over the long term. 

file third oaapme r:oonogement strategy focussed on r::mon areas will test whe:c.er 

nporion oreo protecuons under the HCP provtde the ex:ected functiomng habitat :'or 

'arious wtidlife gut ids .. -\mphibian sampling ond surw .. s wti! be conducted to r.e:o us 

learn more about the needs of these gut!ds. 

Lastly. the HCP idennries a number oi research quesnor:s. both at the stond scate ond 

the londscaoe scale. that would lead to further tesung c: c1e assumptions ond mcceiing 

used in the HCP .. -\!though not dependent on federal r.:::ding, the HCP adaptive 

monagement program tits well wtth the Northwest Fore51 Pion. in that It encourages the 

development of·'coooeranve experimental areas·· witlun the HCP 1 federal Nortnwest 

Forest Pion londscape to coordinate research ond momtonng etforts which support both 

the HCP ond the Snoaualmie Pass Adaptive Monagemeot Area. Plum Creek inte:::ds to 

conduct cooperative research with the US Forest Servtce :n large blocks of inter...mgled 

ownership to evaluate current spotted owl use ond to cc:auct other monagement 

experiments. Completion oireseorch pions is pending :.:e tinalization oithe Forest 

Services .-\daotive \!anagement Pion. 

fhe adaptiYe management process described in Plum C:eek's HCP sets a trame•.,orK for 

continued acquisition of data ond plan moditicanon. ba;ea on credible science a.-.a 

documented need. It establishes limits ond thresholds ·.•. etch initiate discussions 

between Plum Creek ond the Services to determine who: ?ian modifications are 

appropriate to ensure compliance wtth HCP objectives. :fte recognized need for 

landscape-level data to support both the Plum Creek HC? and the Forest Service 

Snoqualmie Pass Adaotive Management Area Plan sets cce stage tor cooperanw 

research in JOintly designated "experimental areas". 

Through the adapnw management processes summan:e.o above. Plum Creek· s C:CP is 

designed to address bioiogical uncertainty and change :: :ne envtronment that m:!\ 

occur over time. :-\ppropriate ··mid-course corrections-· 1il be taken by Plum C:-.:.:k to 

produce desired outcomes. Chonges in management ar.~ mitiganon wtl! be dete:-::uned 

bv data ond guided b,- research results. F eedhack "\oar; · to evaluate the necessitY tor 

modificanons ore smcnronized with the 5-and I 0-year C:CP revtew periods. 

The Relatjonshjp of .\daptjve \lanagement to the .. ,-,_Surndses" Policy. ~ 

ensure th::n the adaptin? management strategy outlinea .::ave together with orhe::-

mttigation elements or the HCP ore put mto piace. the :' O:'Vtces ond Plum Creek .ClVe 
133 

~mered into an 1mpiemem::nion agreement! !.-\ 1. fhe :_.:._.lisa pro\·idt!s the ~~~ai 

mechanism wherebv P! um Creek achieves regularorv cec:ainrv rhrough rhe ··'-!aSurprises·· oo lic v. Cnder rhis policy. the Services haw :ommirted that thev wi ii ::or 

impose aaditionai miugauon requiremenrs on HCP ap!'!!Cants like Plum Creek. :Jsent 

extraordinary circumstances. While this policv rhus orc!<ets Plum Creek tram 

unilateral changes that might undermine the economic cJSis for the HCP. Plum C:eek 

has commirted to the adaptive management process set :orth above. Adaptive coanges 

to the HCP. if necessary. are generally inrended to be made on a consensual basis 

relying on the results or' sound science. Through this process oi learning from 

experience the HCP is designed to be tlexible enough to avoid biological circumstances 

that would require radical changes to the plan. 

It is important to note that the watershed analysis portion of the adaptive management 

strategy described above is not subject to the No-Surpnses policy: Plum Creek hJS 

commined to implement all furure prescriptions that come out of the process e,·en ii 

additional mitigation results. It is also important to note that the Services retain Lie 

amhority to either revise management objectives or terT"_.mate the permit in the cJSe of 

··j eopardv conditions··. 

-l 
Table 31. Plum Creek HCP Monitoring I Reporting Schedu

••· I , . ~- I. ; . I • 

ill2JU!:!I""''.,. __ ~_...,_. ...... ---"' .. ~!ri~~.aif~*!'~~~~~~~~~~~~~,~~~~~~~~ ,.,"~•

tlendarYear ! ~~~~~? 99,00 02 03,04 05 07:0~'09j10 :13:14 :15 11!18_1~!20·~1·22:23;24 25 

H<lJAil '( 

llahitat Vcnlrcallon 

St<~oru.J Slruclure!. 

Lifcfoml 

!>polled Owb 

::. 1"'11L:d Owl C~myuru c .. p..tLrly 

HIER TERRESTRIAL 

Spoiled Owl MomiOflll'J 

""'"'''lc.JMurrcld 

Grialy I:Jears" H.:~brlat <1nd Ro .. nh 

::iray- Woli ~ H>~bitat 

3reer.iing Bmi sUfv~ys 

~ffiPhibian sUiVeys --

~rii~t-1-Milrr~m~~Pr~~ Sur...eys 

)UATIC RESOURCES 

0ish Pupulo~tron A::.sc::.sulcnts 

l .• lo I L.•l<~l-•1 :,.,. ~'·Y" 

Ctrannel Cross Sectwrrs 1!. 

100 lill!tcf-sufVey reach~:~ 

WdiCl ~hcU An • .llys.is 

Rc-cv<~lu.Jtions 

iueam Temperatures 

-~ -rip~~i~~ -~cen~r~o~ 

~~~~~ li~!~~ ~!!~~~I! ~r~~~ 

i~nliilm ~iolo\:!i~~llfllegritt 

~~~-----

I I i I ' I I' ! . 

X X 

X 

! ! !~ 

X X 

X X 

X X 

X X 

X X 

X X 

! 

X X 

X X 

X ~ 

I 

Xi X 

L 

X 

X X X 

X X X 

X X 

X X X 

I 

X! 

. L 

X X X 

X X X 

X X X X 

X X X X 

X X 

X X 

X X X X 

I' 

X X X X X X X X X X X X 

X X X X X X X X X X X X 

X X X X X X X X X X X X X 

X X X X X X X X X X X X 

X X X X 

L 
135 

STATEMENT OF WILLIAM J. SNAPE, Ill 

Mr. Chairman, thank you for the opportunity to testify 

before your Committee this afternoon regarding habitat 

conservation planning and other private land initiatives under 

the Endangered Species Act. My name is William Snape and I am Legal Director for Defenders of Wildlife (Defenders), a non- pro£it conservation advocacy group consisting of 150,000 members, 

headquartered in Washington, D.C. with field offices in Florida, 

Montana, Alaska, Oregon, Arizona and New Mexico. Defenders' 

mission is to protect native wild animals and plants in their 

natural communities. Assisting me in preparing this testimony were Dr. Dennis Hosack, Defenders' conservation biologist, and 

Heather Weiner, Defenders' Legislative Counsel . ' 

In summary, while Defenders is supportive of the concept of 

habitat conservation plans (HCP) under Section 10 of the 

Endangered Species Act (ESA) , and has supported some plans in the 

recent past, we possess serious concerns about the direction 

these plans now appear to be taking. In particular, tough 

questions about the length of permits, scientific integrity, and 

monitoring requirements must be answered before most in the 

environmental community begin supporting these plans. Defenders 

recommends mechanisms be created to: 

• ensure sound science in the HCP process with a goal of 

species recovery; 

* secure adequate funding for HCP creation and 

implementation; and 

* mandate public involvement and accountability. 

We look forward to working with this Committee and Congress in 

reaching these goals . 

I. Background : 

Conservation of species on private land is, by far, the 

biggest challenge facing Congress as it seeks to reauthorize the 

Endangered Species Act. It is a challenge for two fundamental reasons: 1) As evidenced by bills such as H. R. 9 and S.1954, 

private property rights protection has become a highly charged 

political issue; and 2) Unlike pollution control statutes such as the Clean Air Act or Toxic Substances Control Act, which address 

defined industries in relatively confined geographic areas, 

effective species conservation law seeks to protect important 

Chris Williams of the World Wildlife Fund and John 

Kostyack of the National Wildlife Federation also provided 

comments on earlier drafts of this testimony. 
136 

habitat wherever it occurs.' 

Wildlife cannot be protected without protecting habitat. 

Habitat provides shelter and food. It is essential for species 

to breed and perpetuate. Habitat protection, however, raises 

profound legal questions. Under the ESA, for example, industry 

took a challenge against the Fish and Wildlife Service (FWS) all 

the way to the U.S. Supreme Court in an effort to limit the 

federal government's ability to protect habitat for threatened 

and endangered species.' Despite the lack of any real empirical 

evidence that species habitat protection negatively affects 

private property rights, and with some evidence to the 

contrary,' perception appears to have become reality in some 

quarters. The Clinton administration's several policies with 

regard to private land conservation under the ESA should be 

understood in this political and legal context. 

II. Defenders' Involvement in Private Land Conservation: 

Defenders of Wildlife has been a strong supporter of the 

Endangered Species Act since 1966 when the first federal law was 

passed, and also of effective private land conservation of 

imperilled species for over a decade. Our novel program to 

compensate livestock owners for losses due to wolf predation 

helped pave the way for gray wolf reintroduction in Yellowstone 

National Park and central Idaho. In 1993, we published one of 

the very first reports on incentive options under the ESA.' In 

1994 and into the present, we have convened several workshops 

around the country to find solutions to perceived or real 

conflicts regarding species conservation.' Defenders' Oregon 

Biodiversity Project is one of the few state-based initiatives 

that seeks to shape landscape level planning based upon sound 

science and citizen cooperation. In July 1995, we published our 

fourth report on the ESA in anticipation of reauthorization, 

See. e.g .. General Accounting Office, ESA: Information 

on Species Protection on Nonfederal Lands (December 1994) 

Sweet Home v. Babbitt, 115 S.Ct. 2407 (1995). 

See. e.g .. Stephen Meyer, Endangered Species Listing 

and Sate Economic Incentives (MIT, 1995). 

Hank Fischer and Wendy Hudson, Building Economic 

Incentives Into the Endangered Species Act (Defenders of 

Wildlife, 1993) . 

Our targeted states have included California, 

Louisiana, Montana, Arizona, Indiana, Florida and Maine. 

2 
137 

where we stated that we wanted to improve the habitat 

conservation planning process for both species and landowners.' 

In December 1995, we published a report on endangered ecosystems 

and stressed the importance of private land conservation.• 

III . Background on HCPs: 

In the 1982 amendments to the ESA, Congress provided for the 

development of habitat conservation plans under Section 10(~) of 

the Act t o decrease tension between economic development and 

species protect.ion.' HCPs serve as a release valve, allowing 

some areas of known habitat for listed species to be developed, 

with concomitant incidental take of a few individuals, in 

exchange for the creation and implementation of a plan promoting 

the conservation of the same species in the remainder of the 

area, or in additional areas. All non-federal lands, including 

state lands, are eligible for a 10(a) permit. 

Section 10(a) requires that an HCP applicant "minimize and 

mitigate " the impacts of any taking authorized by an HCP . In 

addition, the HCP must not "appreciably reduce the likelihood of 

the survival and recovery of the species in the wild." FWS is 

also required by Section 7 of the ESA to ensure that approval of 

the HCP will not "jeopardize the continued existence" of any 

federally listed species. While the law does not explicitly 

require that an HCP positively contribute to the recovery of 

listed species, recovery is a significant measurement of whether 

an activity "jeopardizes" a species. Department of Interior 

guidelines specifically state that an HCP should not preclude 

recovery . 10 

Since 1993, the Clinton administration has addressed an 

unprecedented number of HCPs, more than the Bush and Reagan 

William Snape and Robert Ferris, Saving America's 

Wildlife : Renewing the ESA (Defenders of Wildlife , 1995 ) . 

Reed Ness and Robert Peters, Endangered Ecosystems: A 

Status Report on America's Vanishing Habitat and Wildlife 

(Defenders of Wildlife, 1995) . 

See generally Michael Bean, S. Fitzgerald and M. 

0 1 Connell, Reconciling Conflicts Under the Endangered Species 

Act: The Habitat Conservation Planning Experience (World Wildlife 

Fund, 1991). 

10 See DOI and FWS, Preliminary Draft Handbook for Habitat 

Conservation Planning and Incidental Take Permit Processing 

(September 15, 1994 ) at 30. 
188 

administrations combined . The Administration has, in particular, 

attempted to draft and implement multi-species HCPs in order to prevent often costly and inefficient species-by-species 

regulation. But, at present, multi-species HCPs often place too much emphasis on one species, relying heavily on an ecological 

trickledown theory. Other listed species, particularly plants, 

frequently have special management needs unrelated to the 

survival of an indicator species. 

This risk escalates when the so-called "No Surprises Policy" 

is implemented. In August 1994 the Departments of the Interior 

and Commerce announced the no surprises policy, intended to assure HCP participants that the federal government will not require the commitment of additional land or financial resources beyond the level of mitigation that is determined to be adequate 

for the stated species under the terms of the originally approved 

HCP. If additional measures are determined to be necessary in 

the area, such as to respond to the listing of new species, the 

primary obligation for these measures will rest with the public 

through the federal government . The HCP permittees will have the 

responsibility for additional mitigation only under 

"extraordinary circumstances," which itself is ill-defined under 

the policy. 

Another experimental HCP policy, called "Safe Harbors," 

originated in the southeastern U.S. with red-cockaded woodpecker 

HCPs. This policy guarantees the landowner freedom from any 

future restrictions on land use that might result if a listed 

species moves onto land not currently occupied by that species. 

While this policy has seen moderate success with single-species 

plans in the southeast, it should not be applied wholesale to all 

other landowner agreements . Biologists, including those from the 

federal government, warn that we could see a net loss in habitat as animals migrate from one area to another (the so-called "biological sink" phenomenon). 

IV. Problems With the Administration's New Policies: 

The most overarching problem with the Administration's new HCP policies are their overreliance upon "regulatory certainty." 

This is not at all to disparage the notion of regulatory 

certainty or to downplay its importance. But if this nation is to keep its commitment "to provide a means whereby the ecosystems 

upon which endangered species and threatened species depend may 

be conserved," 11 then "regulatory certainty" must be tempered by 

honest scientific assessments of species' trends and needs . Many 

who work in the natural resource sector call such assessments 

ESA, §2 (b ) . 

4 
139 

•adaptive management." Loosely speaking, adaptive management is 

the process whereby all affected stakeholders adjust ongoing 

human activities to address evolving conservation needs. It is 

crucial to note that scientifically credible adaptive management 

relies on constant monitoring and research of existing strategies 

in order to gauge their effectiveness. New information or 

circumstances can reveal flaws in the noblest conservation 

objectives, leading to species decline or extinction if 

unaddressed. 

We also possess grave concerns about the Administration's 

Proposed Rule Exempting Certain Small Landowners and Low-Impact 

Activities From ESA Requirements for Threatened Species.'' Of 

all the exemptions contemplated by the proposed rule, we are most 

sympathetic to the status of small residential landowners. 

Indeed, it is our belief that small residential landowners do not 

presently have any problems with the ESA. Indeed, the FWS is 

making great progress in simplifying and streamlining "low 

effect" HCPs. However, widespread exemptions from the ESA raise 

profound legal and policy problems. For example, what standards 

will govern "negligible adverse effects upon species"? Almost 

every scientist we have spoken with is extremely concerned that 

the federal government will have no ability to prevent cumulative 

negative impacts upon species as exemptions pile up. 

V. HCP Case Study Example: 

Secretary Babbitt and his staff are preparing and finalizing 

large-scale multi-species HCPs at a dizzying rate in the Pacific 

Northwest, California, Texas, and other areas around the country. 

No one has analyzed all of these plans because FWS does not have 

a central database for the hundreds of HCPs now in effect or 

being considered. However, it is instructive to examine at least 

one of the most recently approved HCPs in order to examine real 

life impacts of the Administration's new policies. 

Thus, as an example, I will discuss the incidental take 

permit granted to Plum Creek Timber Company on June 27 of this 

year. Although we appreciate the effort of Plum Creek in 

developing this HCP in the central Cascades of Washington state, 

there exist several significant deficiencies with the plan, which 

Defenders noted to the FWS (and Plum Creek) in comments to both 

the Draft Environmental Impact Statement (DEIS) and Final 

Environmental Impact Statement (FEIS) . The Plum Creek HCP is 

considered by many to be the prototype multi-species HCP. 

Because the DEIS and FEIS together constitute about 2000 pages of 

material, I will summarize our concerns: 

60 Fed. Reg. 37419 (July 20, 1995). 

5 
140 

1. Temporal Scale: 

Plum Creek has received a 50-year permit under §10(a), which 

Defenders believes makes adaptive management for wildlife 

extremely difficult, if not impossible. For example, we do not 

believe that Plum Creek, the FWS or anyone else can predict the 

breeding and habitat for 285 vertebrate species between now and 

2046. Could one imagine predicting the present breeding and 

habitat needs of the northern spotted owl in 1946? For this 

reason, Defenders strongly believes that permits should be of 

more limited duration (e.g., 10 years). 

2. Definitional Questions: 

Throughout the plan, terms such as "forest health," 

"watershed health, 11 and 11 SUitable vegetative cover" are used in 

ways that are either ambiguous or of great contention. For 

example, it appears the plan advocates a definition for forest 

health based solely on short-term timber production and not longterm ecosystem sustainability. 13 

3. Habitat Assumptions: 

There are a number of highly optimistic assumptions about 

habitat quality and wildlife populations in the plan, which 

impact the treatment of roadless areas, wildlife corridors, 

riparian areas, and reserves. There exists no documentation to 

support the claim that grizzly bears will not be adversely 

affected by the plan. For the gray wolf, the plan suggests 

restricting seasonal operations within 0.25 miles of an active 

den site without reference to scientific data to support this 

provision. The plan assumes, without scientific back-up, that 

goshawks will move from harvest areas with no harm to population 

viability. The plan says that Plum Creek has taken protective 

measures for the Townsend's big-eared bat and then cites Plum 

Creek's own technical report, which is not peer reviewed. The 

plan assumes that protections for the spotted owl will be 

sufficient for the fisher, a declining inner-forest species. The 

plan assumes a decrease of harvesting on federal lands, which is 

not at all certain. The plan does not explain how this HCP 

relates to other HCPs and federal land management plans. The 

plan admits that habitat for the little willow flycatcher will be 

harmed, but offers no cognizable mitigation. The list 

unfortunately goes on. 

13 See p.332, Plum Creek DEIS; Robert Peters, Evan Frost 

and Felice Pace, Managing for Forest Ecosystem Health: A 

Reassessment of the "Forest Health Crisis" (Defenders of 

Wildlife, 1996) . 

6 
141 

4 . Monitoring Requirements: 

We do not agree with the dichotomy that the plan establishes 

between monitoring and research. 14 In our view, good research 

involves establishing a hypothesis, collecting and analyzing 

data, and testing the original hypothesis, a .k.a, "monitoring." 

In other words, monitoring and research are flip sides of the same coin. Unfortunately, the plan's approach only underscores our concern that the plan lacks concrete and binding steps to monitor compliance. The burden should be on the profiteer, not the public, to demonstrate that a public resource is not being 

damaged. 

5. Peer Review: 

All of the many technical questions already raised should be 

answered by an independent panel of scientists, if indeed our national goal is still to conserve species and habitats. We do not believe the Plum Creek plan, for all its efforts, would pass 

scrutiny under such a process . It is ironic at best that the 

federal government must peer review any decision to prove 

••extraordinary circumstances,'' but that peer review is not 

required for the overall conservation plan at issue. In 

addition, the vast majority of the scientific literature in the 

plan (supporting many of its assumptions) has not been peer 

reviewed itself. 

VI . Solutions: 

There exists no one silver bullet solution to the challenges 

posed by private land conservation. Many of the problems I have 

already identified -- scientifically unrealistic permit 

durations, unjustified legal burdens, lack of peer-reviewed 

standards -- must be addressed by either Congress or the 

Administration. Still, the environmental community and some industry representatives have begun to articulate several 

prominent themes that hold the potential answers to these 

questions: 

1. Sound Science: 

Conservation agreements with non-federal landowners must meet rigorous conservation standards and be based on sound 

science . 15 Conservation plans that include 11 no surprises" 

Plum Creek DEIS, p.387 . 

1 ' See generally National Research Council, Science and 

the Endangered Species Act (1995). 

7 
142 

assurances must inc lude measurable objectives for achievi ng 

conservation goals, timetables for achieving those goals, 

mechanisms to ensure sound monitoring, and plans for adaptive 

management to respond to changing conditions. We urge that 

legislative language authorizing an assurances policy include 

clear direction for the Secretary to alter plans if he concludes 

it is necessary for species recovery. For such l egislative 

language to be effective , it must be coupled with the adoption of a dedicated funding mechanism . 

2 . Secure Source of Funding: 

This Congress will succeed in updating and improving the 

federal HCP program, as well as private land conservation 

overall, only if it directly confronts the longstanding problem 

of inadequate funding.'' The FY97 budget for the Department of 

the Interior's HCP program was cut by the House Appropriators 25~ . Inadequate funding not only obstructs sound science and 

species conservation, it also hurts HCP applicants by further 

delaying the permit process . 

At the very least, Congress should fund the ESA at levels 

currently being provided for fish and game species under the 

Pittman-Robertson and Dingell-Johnson Acts, which raise roughly 

$350 million annually . A dedicated funding source for the ESA is 

essential. Appropriate revenue sources include a real estate transfer tax, establishment of an escrow account system, 

dedicated portions of the mortgage interest deduction, and a tax on outdoor products under the wildlife diversity initiative. In 

addition, the Land and Water Conservation Fund should be fully 

utilized to create protec ted areas for endangered, threatened, 

and other imperiled species . 

Funding measures could also be targeted, among other things, 

toward giving other incentives for landowners t o conserve imperiled species . The federal tax code should be modified to reward landowners who take affirmative steps to restore or enhance habitat of listed species, thereby contributing to species recovery. The federal government should establish a revolving loan fund f o r conservation plans sponsored by state and 

local governments that assist in the recovery of listed species. 

In addition, funding should be targeted to ensure that small 

landowners have a simple and inexpensive method of complying with 

the ESA, while avoiding cumulative impacts that might harm 

See, e.g., Final Report o f the National Wildlife 

Conservation/ Economic Development Dialogue (Growth Management 

Institute/ Environmental Law Institute, 1995); Lindell Marsh, 

Conservation Planning Under the ESA: A New Paradigm for 

Conserv ing Biological Diversity, 8 Tulane Env'l L J 97 (1994). 

8 
143 

species. A technical assistance program should be established to ensure that small landowners possess adequate information . If 

implemented carefully, "short-form" permit applications and 

federal grants would further ensure that the interests of small 

landowners engaging in activities with negligible biological 

impacts are appropriately reconciled with the needs of listed 

species, so long as there exist monitoring mechanisms to ensure that such permits do not reduce the likelihood of species 

recovery. 

3 . Recovery: 

HCPs should not in any way diminish the present goal of 

species recovery under the ESA or be used as a way to replace the 

present recovery plan requirements. The precautionary 

principle" that has been at the heart of the ESA since its 

inception, as well as established recovery goals'', should guide 

the initiation of conservation agreements with non-federal 

landowners that also seek to provide such landowners with 

incre ased c e rtainty . All large-scale conservation agreements 

should be independently peer reviewed under these standards. When a permit, pursuant to monitoring, is shown to be contrary to objective and scientific recovery goals, that permit should be 

either revoked or modified . 

4 . Public Involvement: 

Public involvement in private landowner agreements is 

imperative t o the long-term success of HCPs . As HCPs become more common , we are hearing more complaints from local citizens about 

exclusion from HCP deliberations. We are also seeing citizen conce rns ignored during the notice and comment period . Parti cipat ion in HCP review teams should be balanced and without 

conflicting interests, and HCPs should be periodically monitored 

and publicly reviewed for compliance with the terms of the 

incidental take permit . These small but significant efforts to increa se public partic ipation will help reduce scientific, 

economic, and legal obstacles in the long run . " 

17 See, e.g . . Ellen Hey, The Precautionary Concept in 

Environmental Policy and Law: Institutionalizing Caution, 4 

Georgetown Int'l Env'l L.R. 303 (1992) . 

.. ESA, §4 (f) . 

19 For an example of a creative approach to private land 

conservation that seeks to combine these elements, ~ Todd 

Olson, "Biodiversity and Private Property : Conflict or Opportunity?" in William J . Snape, III (ed.) Biodiversity and the ~ (1996) . 

9 
144 

VII. Conclusion· 

Defenders believe we are at a historical crossroads with 

regard to private land conservation. Although the public is 

still grappling with the specific details of many habitat 

conservation plans, the Clinton administration deserves credit 

for its attempt to forge new ground. And while Defenders 

adamantly rejects the regulatory approach of the Yaung-Pombo ESA 

reauthorization bill of this Congress,'' many of the incentive 

proposals contained in companion bills deserve continued 

attention.'' I predict that the 105th Congress will reauthorize 

the ESA with bipartisan support for legislation that squarely 

addresses the private land challenge. Any legislative solution , 

in the final analysis, must be economically credible, 

scientifically supportable and publicly accountable. 

H.R.2275 104th Cong., 1st Sess. (1995). 

See. e.g . . H.R . 2286, 104th Cong., 1st Sess. (1995) 

(refunds, enhanced deductions for conservation easements, credits 

for compliance with endangered species agreements); H.R. 2423, 

104th Cong. 1st Sess. (1995) (estate tax relief); H.R. 2374, 104th 

Cong., 1st Sess. (1995) (creation of cost-sharing species reserve 

program and cash awards for conservation) . See also The Keystone 

Center, The Keystone Dialogue on Incentives for Private 

Landowners to Protect Endangered Species (July 25, 1995) 

10 
Introduction 

145 

STATEMENT OF JACK LARsEN 

Statement of Jack Larsen 

Vice President- Office of the Environment 

Weyerhaeuser Company 

Submitted to the Record of 

the U.S. House of Representatives Committee on Resources 

July 24, 1996 

Mr. Chairman and members of the committee, Weyerhaeuser Company appreciates the 

opportunity to provide comments on the Habitat Conservation Planning (HCP) process to 

the U.S. House Resources Committee. 

Before we begin our comments on the HCP process, we would like to give you an 

overview of our company. Weyerhaeuser is an international forest products company. Its 

principal businesses are growing and harvesting trees and manufacturing, distributing and 

selling forest products. Weyerhaeuser owns and manages approximately 5.3 million acres 

of timberland in the United States. 

The company has been managing forestlands since 1900 and currently supports the largest 

private silvicultural and environmental forestry research staff in the world. 

Mr. Chairman, Weyerhaeuser is committed to being part of the solution surrounding 

threatened and endangered species issues. We are following up on this commitment by 

working with federal and state agencies in cooperative efforts to protect threatened and 

endangered species. 

Although our forests are managed for the production of wood, our goal is to protect, 

maintain and enhance other important environmental characteristics. This includes soil 

productivity, water quality, fish and wildlife habitat. and other sensitive environmental 

areas. 

We believe private forestlands have an important role in protecting threatened and 

endangered species. Private lands can: 

• Provide habitat for species dependent on younger forests. 
146 

• Complement federal efforts to protect species dependent on older forests by providing 

unique sites and various types offish and wildlife habitat while, simultaneously, 

providing forest products for consumers and economic returns to their owners. 

Weyerhaeuser has experience with Habitat Conservation Planning 

Weyerhaeuser's HCP activity is driven by the need to find solutions for threatened and 

endangered species on Weyerhaeuser timberlands. Weyerhaeuser already has completed 

two single-species HCPs and is developing two multi-species HCPs. 

Weyerhaeuser's first HCP for the northern spotted owl, second for American 

burying beetle 

In 1995, Weyerhaeuser completed an HCP for the northern spotted owl on its 209,000-

acre Millicoma Tree Farm in southwestern Oregon. This 50- to 80-year agreement with 

the U.S. Fish and Wildlife Service (F&WS) is designed to enhance the conservation and 

recovery of the owl in southwestern Oregon. The plan focuses on providing habitat for 

migrating juvenile adults and complements federal and state efforts to provide spotted 

owls habitat for nesting, roosting and foraging on adjacent lands. 

In 1996, Weyerhaeuser completed an HCP for the American burying beetle in Oklahoma. 

This plan uses an adaptive-management approach that prescribes forest practices for the 

life of the permit. 

Weyerhaeuser also has efforts under way to complete two multi-species HCPs: One is for 

400,000 acres in the Willamette, Ore., region and one is for II 0,000 acres in southwestern 

Washington. These plans will move beyond the traditional "species-by-species approach" 

to a "habitat-based approach" that recognizes the importance of providing diverse types of 

habitat over time. 

Weyerhaeuser uses the best available scientific information and its own Habitat 

Management Planning process to develop these HCPs. Our planning process examines 

wildlife and habitat relationships in a managed forest landscape. This process, entailing 

over two years of extensive data collection and research, has shown us how changing our 

forest management practices can benefit fish and wildlife populations. This scientific 

process addresses habitat conditions and requirements for multiple species and identifies 

the appropriate management practices needed to achieve long-term benefits for all species. 
147 

Habitat Conservation Plans (HCPs) are a beneficial tool 

Working with the HCP process has given us valuable insight and uncovered some 

fundamental truths 

• The importance of science-based processes- Weyerhaeuser's extensive experience in 

research and development and forest management has resulted in improved 

understanding of the unique needs of species and how our lands can provide for their 

habitat. 

• Each HCP will be unique - Geographic differences, species variability and landowner 

objectives differ across regions and within regions. Our experience with watershed 

analysis and Habitat Management Planning in the Pacific Northwest has taught us that 

each area is unique and different habitat types require different actions. 

• The HCP process is a valuable tool for bringing parties together- The HCP process 

enables private landowners and the government to work together to establish mutually 

beneficial methods to protect habitat for threatened and endangered species and other 

fish and wildlife. Creating these win-win opportunities helps the government and 

private sector work more effectively with each other in a partnership-based relationship 

- rather than an adversarial-based relationship. 

• The HCP process is one of several tools available to landowners- The ability to 

participate in several types of voluntary agreements gives landowners the opportunity to 

address the needs of unique and diverse types of land ownerships. For example, we 

have been involved in two types of voluntary agreements: a "memorandum of 

understanding" for the red-cockaded woodpecker and a "no-take" agreement for the 

spotted owl. 

Improving the HCP process 

We believe Weyerhaeuser, the public, and threatened and endangered species have 

benefited greatly from the HCP process. We say this because: 

I. Weyerhaeuser has been able to manage its forestlands in an effective and 

environmentally sound manner. 

2. Government agencies have been able to fulfill their objectives under the ESA. 

3. Weyerhaeuser has demonstrated the ability to protect habitat for one of the most 
148 

important stakeholders in this equation - threatened and endangered species. 

What we can do now is take advantage of the progress we've made and make the HCP 

process better for all landowners. The following information lists some improvements we 

feel would encourage landowners to develop their own HCPs. 

Eliminate duplication from NEPA procedures 

A serious impediment to landowner participation in the HCP process is the environmental 

impact statement (EIS)-related requirements of the National Environmental Protection Act 

(NEPA). Analyses required by NEPA duplicates the analysis required for an HCP and the 

associated biological opinion, and the additional documentation and review processes add 

significant burdens to applicants. 

The National Marine Fisheries Service (NMFS) and the F&WS must comply with EISrelated requirements under NEP A before approving an HCP and issuing an incidental-take 

permit. This requirement adds major costs, longer time frames and additional risk to 

applicants. In tact, more than half of the cost and time to develop Weyerhaeuser's Coos 

Bay HCP was directly related to EIS requirements under NEP A. 

In addition, the NEPA documentation cannot be completed until the HCP is nearly 

approved, but the HCP cannot be finalized until the NEP A documentation and process 

have been completed. This places applicants at the mercy of two processes. 

Applicants are faced with uncertain outcomes, uncertain time lines for completion, 

uncertain costs, and a risk oflegal challenge to the NEP A documentation. These 

uncertainties create serious disincentives for landowners to develop HCPs. 

To encourage more landowner HCP participation, we ask the committee to consider 

exempting incidental-take permit decisions from the EIS requirements under NEPA. 

There is ample precedent for this in the regulatory programs administered by EPA (where 

virtually all permits and many other decisions are exempt from EIS-related requirements. 

Such an exemption is needed more for the HCP process because it's voluntary.) The 

HCP process should remain voluntary, but Congress can and should take steps to 

encourage more landowners to use it. 

Other improvements 

• Clearly defining the scope of data and analysis required by applicants. The F&WS 

~ 

4 
149 

and NMFS should have clear authorization to issue incidental-take permits using the 

best available information on the land in question and the species of concern. 

Landowners should not be required to conduct costly surveys and research to obtain an 

incidental-take permit. However, surveys and research may be appropriate measures to 

include in HCPs, where needed, to minimize and mitigate the take oflisted species and 

to demonstrate that habitat -based prescriptions are achieving their intended goals. 

Formalizing Secretary Bruce Babbitt's "No Surprises" policy and allowing federal 

agencies and the landowners to make adjustments during normal periodic reviews, 

without reopening the process, including consultation, even if conditions change or 

more data become available. It's important that a landowner have some degree of 

certainty that federal agencies will not unilaterally impose additional restrictions during 

the life of the HCP without the landowner's consent. We believe Secretary Bruce 

Babbitt's "No Surprises" policy should be formalized in the ESA 

• Giving landowners "one-stop shopping"for HCP development and approval. Under 

the ESA, the F&WS is responsible for all terrestrial fish and wildlife. The National 

Marine Fisheries Service has responsibility for species of anadromous fish, i.e., salmon. 

In the Pacific Northwest, landowners are working to develop comprehensive 

management plans to address fish and wildlife concerns with two agencies, two 

departments, and two different staff structures. The multiple points of contact, review 

and decisions-making layers are making the process slow and cumbersome 

Recognizing the individuality of HCPs. Geographic differences, species variability 

and landowner objectives differ across regions and within regions. What may work for 

one landowner may not work for another and it's important that the F&WS and NMFS 

continue to recognize and evaluate every HCP on its individual merits, and not on a set 

and standardized format.. 

Adopting a habitat-based approach 

With 435 species currently listed in the United States as threatened or endangered and the 

possibility of more listings, Weyerhaeuser believes a habitat-based approach to multispecies planning and management is more beneficial to the environment, wildlife and 

potential applicants than the current species-by-species approach. 

Planning for multiple species may help reduce the need for listing additional species as well 

as help provide habitat for those that are, or may become, listed as threatened or 
150 

endangered. It could provide increased regulatory certainty to landowners by instituting a 

means to address species not currently listed and providing incentives for landowners to 

undertake the HCP process. 

A habitat -based approach also shifts the focus from issues generally beyond the 

landowner's control-like the status of a particular species- to matters on which the 

landowner can make a meaningful and positive contribution, such as the habitat on their 

land. This approach addresses habitat conditions for many wildlife species over time 

instead of the exhaustive species-by-species analyses. 

Weyerhaeuser believes landowners should have the option of developing a habitat -based 

approach. Creating such an option requires a number of modifications to the existing 

HCP process, including: 

Provide a habitat-based planning process as an option to the current species-byspecies approach. Under the current statute, the HCP must specifically address each 

species for which an incidental-take permit would apply. Instead, there is a need for 

mechanisms that develop and approve plans based on habitat characteristics. 

• Relie1•e landowners with approved habitat plans from ESA concerns for newly listed 

and unlisted species, unless the landowner's plan is found harmful to a newly listed 

species. Under the current system the landowner has to apply for a new incidental-take 

permit whenever a new species is listed. 

This subjects the applicant and the governmental agency involved to all EIS-related 

requirements of NEP A, public notice and comment requirements, interagency 

consultation requirements, etc., as if the existing permit had never been issued. In 

essence, landowners have to repeat the HCP approval process for any species that are 

subsequently listed even if their plans address the habitat of the newly listed species and 

no changes in their plans are needed. 

Moreover, landowners who implement plans that enhance habitat should not have to be 

concerned that they could be penalized if listed species are attracted to their property or 

become more prevalent as a result of their plans. 

Summary 

Weyerhaeuser is committed to making the HCP process a workable solution. We believe 

the HCP process can be used to resolve private forestland issues associated with 

6 
151 

threatened and endangered species and will continue to develop our conservation plans in 

cooperation with government agencies. The company views the HCP process as one that 

can reconcile conservation ofthreatened and endangered species with the productive use 

of private land. However, we feel it's time for the process to be improved and reflect the 

actual experiences oflandowners. 

7 
152 

ONE HUNDRED FOURTH CONGRESS 

lit.&. lfuust nf Etprtstutatiuts 

Secretary 

U.S. Department of Interior 

1849 C Street N.W. 

Washington, D.C. 20240 

Dear Secretary Babbitt: 

C!Committte on ~r!loum!l 

Da5bington, 1BQ!: 20515 

June 28, 1996 

DANIELIII<J..IOSH 

CHIEF OF STAfF 

PAVIDG.DYf: 

CHIEF COUNSEL 

JOHNlAWfliNCE 

NMOCRAnc STAFF DIRECTOR 

In July, 1995, the Fish and Wildlife Service published a rule in the Federal Register 

proposing a special rule under Section 4( d) of the Endangered Species Act exempting certain 

small landowners and low impact activities from the requirements of the ESA. This rule is 

commonly referred to as the "Five Acre Rule". 

Under the rule residential properties under 5 acres as well as certain other activities 

that have minimal impacts will not require a Section I 0 permit for use if the property is 

habitat for a threatened species. Please provide the Committee on Resources with the 

following information: 

I. The date on which this rule went into effect. 

2. Any subsequent rules to apply this rule to existing threatened species populations. 

3. Whether there have been any persons who have notified the Fish and Wildlife 

Service that they wish to take advantage of the exemption and if so the number of such 

persons, the county and state in which they reside, and the species to which the exemption 

applies. 

4. Any subsequent rules or guidance documents specifying the types of activities 

which will be exempt under the "negligible" affects exemption. 

This above information should be provided to the Conunittee on Resources not later 

than 5:00 p.m. on July 15, 1996. Please coordinate this request with Elizabeth Megginson at 

225-7800. 
153 

United States Department of the Interior 

ADDRESS ON!. Y THE DCR.ECTOR 

FISHANOWn.DLlfESERVICE 

In Reply Refer To: 

. FWS/AES/TE 

FISH AND Wll.DLIFE SERVICE 

Washington, D.C. 20240 

The Honorable Don Young 

Chairman, Committee on Resources 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Mr. Chairman: 

2 5 

Thank you for your June 28, 1 996, letter requesting information 

on the Fish and Wildlife Service's proposed small landowner 

exemption under section 4(d) of the Endangered Species Act. As 

you are aware, on July 20, 1995, the Service published in the 

£ederal Re~jster a proposed rule that, if made final, would 

exempt certain small landowners and low-impact activities from 

Endangered Species Act requirements for threatened species. 

As you are aware, over the last three years, the Service has 

worked tirelessl y to improve the implementation of the Act. One 

of our highest priorities has been to ease the regulatory burden 

on private landowners where possible. The proposal to exempt 

certain small landowners and low- impact activities from the ESA 

is another such initiative. 

Your June 28, 1996, letter requests informat ion in four areas 

regarding that proposal. First, you requested the date o n which 

this rule went into effect . At t his time there is no final rule 

related to this proposal, and the policy has not gone into 

effect. The Service is still reviewing the numerous comments 

received in response to the proposa l. We anticipate making a 

final decision on the proposal this Fall. 

Second, you requested information on any subsequent rules to 

apply this rule t o existing threatened species populations. Any 

such applications will not occur until the proposed rule is 

finalized. 

Third, you were interested in whether there have been any persons 

who have notified the Fish and Wildlife Service t hat they wish to 

take advantage of the exemption and, if so, the number of such 

persons, the county and state in which they reside , and the 

spec ies to which the exemption applies. Whi l e the Service's 

Field and Regional o ffices may have received informal inquiries 

about the proposal in response to its publication, the Washington 

office is not aware of any specifi c requests. 
154 

The Honorable Don Young Page 2 

Finally, you requested information on any subsequent rules or 

guidance documents specifying the types of activities which will 

be exempt under the "negligible" effects exemption. Again, until 

this proposal is finalized, we will not be making these types of 

decisions. 

Once again, thank you for your interest in this policy. We would 

be happy to provide you with advanced notice of any final 

publication of this, or related, rules or guidance, and will be 

pleased to brief you or the members of your staff at such a time. 

With kind regards, 

Sincerely, 

fifL. G . (f:v.,. - ~DIREC~O~J 
155 

VALARIE BRISTOL TRAVIS COUNTY COMMISSIONER- PRECINCT 3 

TRAVIS COUNTY ADMINISTRATION BUILDING 

314 W. liTH STREET ROOM SOO 

P.O. Bo-. 1748 Austin, Texas 78767 

473·9333 

August I 6, 1996 

Honorable Don Young 

U.S. House of Representative~ 

Chairman 

Committee on Resources 

1320 Longworth 

Washington, D.C. 205 I 5 

Dear Congressman Young: 

We are writing in resp~11.s t· :0 vour letters, dated Julv 25, 1996, regarding the 

Bakones Canyodands Conservation Plan and irs irl\plementat.ion in Travis County, 

Texas. Please enter this re:;ponse into the record of the House Committee on 

Resources' hearing held cn1 luly 24. 1996, concerning the implementation of the 

Endangered Species Act. We 3pprcciate having the opportunity t<J re.spond. 

The Balcones Canyonlands Conse1vation Pian was developed over the past seven 

vears by local government, landO\mers. developers. env;ronmentalists and citizens as 

a local response to the presence and listing of eight endangered species around Austin, 

Texas. Over two-thirds of the land for the preservt> svstdl~ has already been acquired 

through the City of Austin, Texas Nature Conservancy, the Lower Colorado River 

AuthoritY. the Travis Audubon Societv, Travis Countv, and $42 million in bonds 

approved by the citizens of Austin. ·fhesc. conHnunit"y efforts culminated in the 

issuance of a regional l O(a) permit bv the U.S. Fish and Wildlife Setvice to the City 

of Austin :md Travis Countv. 

Developed locally, the Baicon~~ Plan is designed to maximize local control over 

natural ~source issu~ Because participation in tht· Plan is voluntary. it imposes no 

new re ~uhtions on the tccai community. lt simplv offers a voluntarv alternative for 

complianre whh thr Endang<'red Sped<'~ Act . 
156 

Honorable Don Young 

Page 2 

August 16, 1996 

We believe that the Plan has great potential to promote and sustain the strong 

economic growth being experienced in our area, while setting aside 30,000 acres in 

our beautiful hill country that will preserve our unique natural resources for future 

generations. Completion and proper maintenance of the preserve system will free the 

entire county from Endangered Species Act requirements for species covered by the 

Plan. The Austin Real Estate Council and the Greater Austin Chamber of Commerce 

endorse the Plan because of its anticipated benefits to the local economy and the land 

development process. 

The strategic partnership between local govemmental entities under the Plan also 

pays dividends in expediting our infrastructure and capital improvement projects. 

Although we only received our regional I O(a) permit three months ago, we have 

already been able to facilitate a major road widening project through the Plan. In 

addition, the Plan will be used to expand services at a new fire station. Both projects 

would have been extensively delayed and would have caused added expense to 

taxpayers if the Plan was not in place. We anticipate using the Plan for many other 

public sector projects, including construction of new schools. 

While the Plan took seven years to finalize, much of that time was spent testing and 

refining several versions with the public and other stakeholders. The Austin Field 

Office of the U.S. Fish and Wildlife Service has been very flexible and helpful since 

the Plan's inception. Throughout the development of the Plan, we found the habitat 

conservation plan process to be very workable, as we sought to meet local needs 

within the context of endangered species protection. 

Participation in our Plan is strictly voluntary. For those wishing to develop outside 

the proposed preserve boundaries, the Plan provides a voluntary altemative to seeking 

an individual I O(a) permit. In many cases, participation in the Plan should be faster 

and more cost-effective than pursuing an individual permit, but that is a business 

decision which developers and landowners are free to make. To date, we have issued 

two certificates and are currently in negotiations with other potential participants. 
157 

Honorable Don Young 

Page 3 

August 16, 1996 

Participation charges are collected only for those who choose to participate, in 

exchange for almost instant release from Endangered Species Act requirements for the 

species covered under the Plan. Because our Plan is based on a "pay-as-you-go" 

model, acquisition of the remaining 9,500 acres hinges on the extent to which 

landowners and developers voluntarily seek to participate. We intend to acquire this 

land as soon as possible, but recognize that future demand for new development will 

drive this timeframe. Funding for this land acquisition will come from voluntary, 

participation charges and a redirection of taxes generated bv new development. 

Although we were not present at your committee hearing on July 24, we understand 

that Mr. Tom Kam, a Travis County resident. expressed concerns about the impact of 

the Plan on his undeveloped, 9.5 acre tract. Landowners such as Mr. Kam, whose 

property is within the proposed preserve, are not eligible to participate in the 

Balcones Plan. However, these landowners are still able to apply for an individual 

I O(a) permit from the U.S. Fish and Wildlife Service, an option available to them 

long before the regional permit was granted. 

Throughout the past seven years, Mr. Kam has had numerous opportunities to 

express his concerns and comments about the Plan, at open meetings of various task 

forces, during the comment periods of the I O(a) permit process, and at voting 

sessions of the Austin Citv Council and Travis County Commissioners Court. 

Over one year ago, Mr. Kam presented a landowner survey to a Balcones Plan task 

force. The survey cited an average asking price of $28,600 per acre for those willing 

to sell, but the survey did not include appraised or fair market values for comparable 

land in the proposed preserve unit. Participation charges under the Plan are based on 

an average of fair market values throughout the county-wide permit area. 

Governmental entities are not legally allowed to pay more than fair market value 

when acquiring land for preserves or other purposes. 

35-090 96-6 
158 

Honorable Don Young 

Page 4 

August If>, 1996 

Throughout the county, market values for undeveloped land vary greatly, due to 

location and site-specific characteristics. Recent City of Austin appraisals for the 

purchase of property in the vicinity of Mr. !<am's 9.5 acres continue to support the 

$5,500 average price used in the Balcones Plan. If land values increase in the future, 

the participation charges can be adjusted accordingly, over the 30-year term of our 

permit. 

Although this Plan will not resolve every landowner concern in Travis County, we 

continue to believe that it represents the best compromise between many competing 

interests. Our preserve system is already more than two-thirds complete and we have 

added new acreage since the pem1it was issued. Because the Plan is financially viable, 

the Travis County Commissioners Court and the Austin City Council voted to 

support and approve it. We are pleased that the U.S. Fish and Wildlife Service 

continues to promote the habitat conservation plan process as a means for local 

communities to comply with the requirements of the Endangered Species Act. 

Sincerely, 

£~ Valarie Scott Bristol Bruce Todd _T;_.~ Travis County Commissioner 

Precinct Three 

Mayor 

City of Austin 
159 

PALCO THE PACIFIC LUMBER COMPANY SCOT CAL. FORN A~~56 • 1 0 7 · 764 - 222:2 

August 8, 1996 

The Honorable Don Young 

Chairman, Committee on Resources 

c/o Ms. Deborah Callis 

1328 Longworth House Office Building 

Washington, D.C. 20515-6201 

Dear Chairman Young: 

The attached comments of The Pacific Lumber Company and its parent, MAXXAM Inc., are 

submitted in response to the Resource Committee's July 25, 1996, oversight hearing on the 

Endangered Species Act with regard to Section 10 (a) permits (Habitat Conservation Plan) and 

other incentives. I respectfully request that this letter and attached statement be included in the 

permanent record of that hearing. 

I also want to commend you and the Resources Committee for you r oversight of the Endangered 

Species Act and your efforts to make important improvements in the Act. Clearly the Endangered 

Species Act is not working either as intended by the Congress or as is necessary to protect the 

property rights of individuals and corporations guaranteed by the United States Constitution. 

The Endangered Species Act has repeatedly, substantially and adversely impacted the 1,600 

employees of Pacific Lumber, as well as our neighbors in Northern California, the local 

governments that depend upon the company for tax revenues, and the other businesses from 

which the company purchases products and services. This has occurred despite the fact that all of 

Pacific Lumber's harvesting activities mu st meet California's strict forest management rules and 

regulations (the most stringent in the world) and despite the fact that Pacific Lumber has won 

recognition from the State of California and national organizations for our use of sound 

management practices for our forests and for the programs we conduct to protect and enhance the 

species that inhabit our lands. 

For years, The Pacific Lumber Company and its parent MAXXAM Inc. have been the target of 

an extraordinary litigation, lobbying and press campaign designed to obtain control of initially 

3,000 acres and now 60,000 acres (almost a third) of our privately owned forest lands. The 

Endangered Species Act is the principal assault weapon used in this campaign. The regulatory 
The Honorable Don Young 

August 8, 1996 

Page Two 

160 

authorities and litigation opportunities authorized by the Act are so extensive and the rights 

granted to affected property owners are so limited, that the Act has become the weapon of 

preference to halt economic activity on targeted property. The preservation of a broad range of 

habitat for certain species is only a secondary objective of the campaign against Pacific Lumber. 

The primary objective is the expansio n of the government's park system to include the mature 

redwood groves and contiguous fo rests we own. This objective has been repeatedly stated in 

Congressional hearings and fio or debates, in filings in ESA regulatory and judicial proceedings, 

and more recently in full page advertisements in majo r newspapers. 

Pacific Lumber and MAX:XAM have repeatedly stated our willingness to transfer ownership of 

the approximately J,OOO acre Headwaters Grove and surround ing 1,500 to 1,700 acre buffer zone 

to the Federal Government or to the State of California for use as a park or wild erness areaprovided we receive fair market value (the form of which we are willing to negotiate) for our 

properties and we receive the ESA approvals required to use the remainder of our properties for 

the intended purpose of timber harvesting. We continue to pursue this possible transaction in 

coo peration with the Federal and State of California governments. 

Also, in response to years of infringement by the Federal Government on our right to use our 

property and in the absence of an agreement for acquisition of the Headwaters, Pacific Lumber 

recently has filed an inverse condemnation suit against the Federal Government to protect our 

Fifth Amendment right to just compensation. Although the factua l background is detailed, the 

gravamen of our complaint is straightfo rward: application of the Federal Endangered Species Act, 

16 U.S. C. Section 153 1 et seq has taken certain portions ofPacif1c Lumber's property fo r public 

use without payment of just compensation. 

Regardless of the course of actions on acquisi tion of theHeadwaters Grove and o n our inverse 

condemnation suit, the Endangered Species Act clearly needs to be reformed. Pacific Lumber and 

MAXXAM support the legislation, H.R. 2275, reported by the House Resources Committee to 

reauthorize and improve the Endangered Species Act. We strongly urge the Congress to continue 

its efforts to enact truly meaningfu l reform of the Act. We also urge renewal of the efforts to 

enact legislation to assure that there is effective protection against, or prompt and full 

compensation for, regulatory takings of private property in accordance with the property rights 

protections of the United States Constitution. 

Sincerely, 

J--1,.,' . ,__<1 J ~~(? John Campbell 

President 
161 

THE PACIFIC LUMBER COMPANY And MAXXAM INC. 

Statement for the Record of the 

House Committee on Resources 

Oversight hearing on the Endangered Species Act with regard to Section LO(a) permits 

(Habitat Conservation Plan) and other incentives. 

July 25, 1996 

Founded in 1869, The Pacific Lumber Company (PALCO) is a major producer of premium-grade 

redwood and Douglas fir lumber. The company's forest products operations consist of five 

modern sawmills and related facilities in Humboldt County, California, and nearly 198,000 acres 

of timberland and other property. The company is a wholly owned subsidiary ofMAXXAM Inc. 

Pacific Lumber is the largest private employer in Humboldt County, employing approximately 

1,600 people. The company's headquarters is in Scotia, where Pacific Lumber owns all the land 

and buildings. Scotia is a community of272 homes (in which some of the company's employees 

and their families live), churches, schoo ls, a commercial district, an historic hotel, museum, and 

modern medical clinic. 

Pacific Lumber does not use trees harvested from government-owned land; it depends entirely on 

its own forests to meet its manufacturing needs. Pacific Lumber's forest lands are zoned by the 

State of California exclusively fo r commercial timber production. All of Pacific Lumber's 

harvesting activities must meet California's strict forest management rules and regulations, the 

most stringent in the world. 

The Endangered Species Act has repeatedly, substantially and adversely impacted the I ,600 

employees of Pacific Lumber, as well as their neighbors in Northern California, the local 

governments that depend upon the company for tax revenues, and the other businesses from 

which the company purchases products and services. This has occurred despite the fact that 

Pacific Lumber has won recognition from the State of California and national organizations for 

the company's use of sound management practices for its forests and for the programs the 

company conducts to protect and enhance the species that inhabit Pacific Lumber's lands. 

For years, The Pacific Lumber Company and its parent MAXXAM Inc. have been the target of 

an extraordinary litigation, lobbying and press campaign designed to obtain control of initially 

3,000 acres and now 60,000 acres (a lmost a third) of the company's privately owned forest lands. 

The companies have been a target for two primary reasons. First, unlike some timberland owners 

who long ago cut all their old growth trees, Pacific Lumber's conservative forest management 

approach has put the company in a position today of having a substantial supply of old growth 

redwood and Douglas fir trees. Pacific Lumber's lands contain the largest remaining privatelyowned old growth redwood stands, including the 3,000 acre Headwaters Grove. Some 

environmental activist organizations have targeted these trees for preservation, either through 

public acquisition or permanent "protection" as endangered or threatened species "habitat". 

Second, the targeted 60,000 acres of Pacific Lumber's property is located between the Six Rivers 

National Forest and the Humboldt Redwoods State Park, which the environmental activists would 
162 

II Ice to tonk together in an unbroken corridor of public ownership- or, failing that, a corridor void 

of economic activity. 

The Endangered Species Act is the principal assault weapon used in this campaign. The regulatory 

authorities and litigation opportunities authorized by the Endangered Species Act are so 

extensive and the rights protected for affected property owners are so limited, that the ESA has 

become the weapon of preference to halt economic activity on targeted property. Environmental 

activists are using the ESA to systematically file court suits to obtain consecutive listings of 

species on Pacific Lumber's lands as "threatened" or "endangered" and then have the lands 

classified as protected "critical habitat" . It started with the spotted owl, is now occurring with the 

marbled murrelet, and listing initiatives are underway on the coho salmon. 

The preservation of a broad range of habitat for certain species is only a secondary objective of 

the campaign against Pacific Lumber. The primary objective is the expansion of the government's 

park system to include the mature redwood groves and contiguous forests owned by Pacific 

Lumber. The fall back position is to preclude economic development of Pacific Lumber's property 

and natural resources. These goals are not secret; they have been repeatedly stated in 

Congressional hearings and floor debates, in filings in ESA regulatory and judicial proceedings, 

and more recently in full page advertisements in major newspapers. 

The Endangered Species Act is not working either as intended by the Congress or as is necessary 

to protect the property rights of individuals and corporations guaranteed by the United States 

Constitution. Pacific Lumber and its employees commend the Resources Committee for its 

oversight of the Endangered Species Act and the Committee members' efforts to make important 

improvements in the act. 

The public and congressional debates on reform of the ESA should be based on factual 

circumstances, on science, and on the rights of persons as well as the goals of species 

diversification. Unfortunately, some oft he opponents of reform apparently have decided that they 

cannot win the substantive debates Instead, they have resorted to propaganda tactics including 

the dissemination of misinformation and use of inflammatory statements designed not only to 

divert attention from the facts but also to weaken the opposition through character association 

and guilt by association. 

Pacific Lumber, and MAXXAM have often been the object of these propaganda tactics. To help 

refocus the policy debate on matters of fact, substance, and relevance, the following information 

about the Pacific Lumber Company's activities during the last ten years ofMAXXAM's 

ownership is presented for the record : 

Over the past several years, employment has grown from approximately 950 people to 1,600 

people. Approximately $125 million has been reinvested in operating plants, equipment, and 

timberlands. The company was refinanced several years ago so that more than half of its debt is 

now investment-grade and the remainder carries a lower cost than the original debt. The company 

2 
163 

has constructed and operates an award winning cogeneration plant to bum wood waste to 

generate electric power for the mills and the town of Scotia. After the town's commercial center 

was destroyed by earthquake-caused fires several years ago, Pacific Lumber rebuilt it at a cost of 

approximately $4 million. 

Pacific Lumber annually contributes approximately $100,000 in cash and materials to worthwhile 

causes in the North Coast communities in which it operates and where it is the largest employer. 

The churches in Scotia which use company owned facilities still pay only a dollar in rent per year. 

Similarly, Pacific Lumber has continued its long history ofleasing hundreds of acres of its land, 

for a dollar a year, to such organizations as the Boy Scouts, Girl Scouts, Camp Fire Girls, and 

church bible camps. The company still provides attractive, affordable, company-owned rental 

housing for many of its employee families. Also, the company continues to provide scholarships 

to children of its employees. More than $1 million of scholarships have been awarded in the last 

ten years. 

Executive Life had been selected in J 986 as the provider of annuities to Pacific Lumber retirees, 

as part of a legal pension plan reversion transaction. The State of California placed Executive Life 

into receivership in 1991, which receivership lasted until1995 . Of the many companies that were 

impacted by Executive Life 's conservatorship, Pacific Lumber was among a handful who 

immediately and voluntarily stepped forward to make up the shortfall in its retirees' pensions that 

otherwise would have occurred. Thus, no Pacific Lumber pensioner or annuitant has been 

deprived of one penny of his or her entitlement. Also, all litigation relating to the security of 

Pacific Lumber's retirees' annuities has been settled. 

The people of Pacific Lumber take great pride in their stewardship of the land. The company's 

future depends on the excellence of their efforts. 

The Company manages its forest resources on a sustained cycle of planting, regrowth and harvest. 

It maintains a harvest-to-inventory ratio that's among the lowest in the industry. It conducts 

harvest operations on only a very small percentage of its land in any given year • much of that 

activity is conducted by harvesting trees selectively, a method that generally leaves about 50% of 

the trees standing in a given area. Pacific Lumber plants an average of 500,000 seedlings annuallr 

to supplement the robust natural regeneration of the forest. 

The Company also places high priority on waste minimization programs. A prime example is the 

installation of equipment to produce finger-joint lumber products. The process . in which small 

pieces of wood are joined and glued together to produce items such as siding, fascia, trim, 

molding, and paneling . makes use of a valuable resource in economically advantageous ways. 

The use of waste wood as fuel in the company's cogeneration plant is another example. The 

company has also instituted alternative disposal methods for the ash byproduct of the power plant 

to prolong the life of local landfills. The California Integrated Waste Management Board has 

honored the company for its waste management and reduction programs. 
164 

Water quality, watershed protection, and salmon protection have long been part of Pacific 

Lumber's operations. The company's voluntary fisheries enhancement program is exemplary, 

having received the National Wildlife Stewardship Award of the Forest Products Industry in 

1994. Last year, the program released 50,000 Chinook salmon and steelhead trout into North 

Coast streams. The company's hatchery uses only eggs from fish native to local streams, thereby 

protecting the genetic strains. In additio n, Pacific Lumber has enhanced streams through bank 

protection, erosion control, construction of fish ladders, and other projects to improve 

environmental conditions fo r fish and other wildlife. 

Several years ago, Pacific Lumber helped to develop a protocol to protect northern spotted owls, 

which - contrary to early assertions by some activist groups - thrive in second- and third- growth 

as well as old-growth forests. 

Pacific Lumber long ago approached the Fish and Wildlife Service to begin discussions of a 

habitat conservation plan for marbled murrelet, even though the company believes firmly that 

private lands should have been excluded from the critical habitat designation, as was the object of 

the amendment offered by Congressman Frank Riggs (R-CA) to the FY 1997 Department of 

Interior and Related Agencies Appropriations Act. However, the company's most recent initiative 

in January oft 996 received a very negative response from the Department oflnterior. 

Interestingly, several months later - after Pacific Lumber had filed its inverse condemnation suit 

on May 7, and after the House of Representatives debated the Riggs private property rights 

initiative on June . 19th - the Department of Interior contacted the company to say there had 

apparently been a misunderstanding. (Copies of the Pacific Lumber and Interior letters on this 

subject are attached to this statement). 

Pacific Lumber and MAXXAM have repeatedly stated a willingness to transfer ownership of the 

approximately 4,500 acre Headwaters Grove and surroundi ng buffer zone to the Federal 

Government or to the State of California for use as a park or wilderness area, provided the 

company receives fair market value (the form of which is negotiable) for its properties and 

receives the ESA approvals required to use the remainder of its properties for the intended 

purpose of timber harvesting. The company continues to pursue discussions on this possible 

transaction with the Federal and California State governments. 

Also, after years of infringement by the Federal Government of Pacific Lumber's right to use its 

property for the only economic activity fo r which the land is zoned under California State Jaw 

(i.e., growing and harvesting timber), Pacific Lumber filed on May 7, 1996, an inverse 

condemnation suit agai nst the Federal Government. Although the factual background is detailed, 

the gravamen of the complaint is straightforward, application of the Federal Endangered Species 

Act, 16 U.S.C. Section 153 1 et seq. has taken certain portions of Pacific Lumber's property for 

public use without payment of just compensation. (A copy of the "OVERVIEW AND 

SUMMARY OF THE CASE" has been excerpted from the company's complaint and attached to 

this statement.) 

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Regardless of the course of actions on acquisition of the Headwaters Grove or on Pacific 

Lumber's inverse condemnation suit, the Endangered Species Act clearly needs to be reformed. 

Pacific Lumber and MAXXAM support the legislation, HR. 2275, reported by the House 

Resources Committee to reauthorize and improve the Endangered Species Act. The Congress 

should continue its efforts to enact truly meaningful reform of the Act as soon as possible. The 

Congress should also renew the efforts to enact legislation to assure that there is effective 

protection against, or prompt and full compensation for, regulatory takings of private property in 

accordance with the property rights protections of the Fifth and Fourteenth Amendments to the 

United States Constitution. 
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BERGER & NORTON 

1620 261H STREET 

SUITE 200 SOUlH 

SANTA MONICA. CA 90404-4040 

TELEPHONE(JIO) 449-1000 

MICHAEL M. BERGER 

EDWARD G. BURG 

~VENA. BLUM 

THE PACIFIC LUMBER 

COMPANY 

125 MAIN S1REET 

P.O. BOX37 

SCOTIA. CA 95565 

TELEPHONE (107) 764-2222 

AN1HONY R. PIERNO 

DALE A. HEAD 

PILLSBURY, MADISON & SUTRO 

235 MONTGOMERY STREET 

P.O. BOX 7880 

SAN FRANCISCO. CA 94120-7880 

TELEPHONE(415) 983-IOOO 

ALSON R. KEMP. JR. 

RAWLES, HINKLE, CARTER, 

BEHNKE & OGLESBY 

169 MASON S1REET, SUITE 300 

P.O. BOX720 

UKIAH. CA 95482 · 

TELEPHONE (707) 462-6694 

JARED G. CARTER 

FRANK SHAW B AC!K 

Attorneys for Plaintiffs 

166 

Cl 

IN THE UNITED STATES COURT OF FEDERAL CLAIMS 

THE PACIFIC LUMBER COMPANY, 

a Delaware corporation; SCOTIA PACIFIC 

HOLDING COMPANY, a Delaware 

corporation; and THE SALMON CREEK 

CORPORATION, a Delaware corporation, 

Plaintiffs, 

vs. 

THE UNITED STATES OF AMERICA, 

Defendant. 

COMPLAINT FOR INVERSE CONDEMNATION 
167 

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2 Plaintiffs' claims arise under the Fifth Amendment to the United 

3 States Constitution. Jurisdiction of this court is based on 28 U.S.C. § 1491(a)(1). 

4 This is a regulatory takings case. 

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7 OVERVIEW AND SUMMARY OF THE CASE 

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ll complaint is straightforward: application of the Federal Endangered Species 

12 Act, 16 U.S.C. § 1531 et seq. (Federal ESA) has taken Pacific Lumber's property 

13 for public use without payment of just compensation. 

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The Federal ESA has been applied to Pacific Lumber's property by 

18 the United States Fish and Wildlife Service (USFWS), a part of the United 

19 States Department of the Interior, by the federal judiciary (Marbled Murrelet 

20 v. The Pacific Lumber Company, N.D. Cal. No. C-93-1400 LCB [1995]), and by 

21 state agencies either acting in concert with USFWS (under a formal 

22 cooperative agreement with the federal government) or applying the Federal 

23 ESA because, as a federal statute, it is the supreme law of the land (U.S. Canst., 

24 Art. VI, cl. 2). 

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2 The formal agreement between California and the United States 

3 (entitled Cooperative Agreement Between The California Department of Fish 

4 And Game And The U.S. Fish And Wildlife Service, and executed by the 

5 United States June 6, 1991 and by California Aug. 28, 1991) recognizes federal 

6 decisions will control respecting federally protected species. It provides 

7 expressly: 

8 ''The CDFG [California Department of Fish and 

9 Game] agrees not to ... issue a permit authorizing 

10 the taking of resident federally listed endangered or 

11 threatened fish, wildlife or plants ... without prior 

12 issuance of a permit to the applicant by the Director, 

13 USFWS, except [in narrowly stated instances not 

14 pertinent here]." 

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Thus, without prior federal approval, California will not permit 

any actions that could (among other things) harm or harass a federally listed 

species. As alleged hereafter, California has enforced this agreement by 

refusing permission to harvest old growth trees unl ess the federal 

government grants its approval in the form of an Incidental Take Permit 

under the Federal ESA. An Incidental Take Permit is, in essence, an 

exception within the Federal ESA that permits moderate and unintended 

harm to a member of a protected species under limited circumstances. 

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Thus, the thread that binds together all of the allegations that 

follow is the Federal ESA. Use of that Federal statute to protect a small bird 

called the marbled murrelet (Brachyramphus marmoratus) (the Murrelet) has 

de facto condemned Pacific Lumber's old growth redwood forests to public 

use as a Murrelet sanctuary. In a nutshell: 

The Murrelet has been listed as a "threatened" 

species under the Federal ESA. 

The Federal ESA prohibits any actions that 

will, among other things, harm or harass a 

protected or threatened species. 

The U.S. District Court has found that 

Murrelets can only survive if they are able to 

nest in old growth redwood forests on the 

northern California coast and that the remova l 

of iU!.Y old growth redwoods would "likely" 

lead to the bird's extinction. 

The U.S. District Court made those findings in 

litigation against Pacific Lumber and they are 

binding on Pacific Lumber in any further 

proceedings. 

The California agencies that control Pacific 

Lumber's ability to harvest any of its redwoods 

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have concluded that, because of the impact on 

Murrelets, no harvest of old growth redwood 

will be permitted without USFWS approval of 

a Habitat Conservation Plan (HCP) and 

issuance by USFWS of an "Incidental Take 

Permit" under the Federal ESA. 

California's application of the Federal ESA has 

produced a classic "Catch 22" for Pacific 

Lumber: it cannot harvest without a fede rally 

approved HCP and a federally issued 

Incidental Take Permit; but the facts already 

found by the U.S. District Court preclude the 

issuance of an Incidental Take Permit. By Jaw, 

the Secretary of the Interior can only issue an 

Incidental Take Permit if he makes this 

statutory finding: "the taking [of the protected 

species) will not appreciably reduce the 

likelihood of the recovery of the species in the 

wild." (16 U.S.C. § 1539[a][2][B][iv].) Because 

the U.S. District Court has already found that 

harvesting "any one part" of an old growth 

stand- a stand is a geographically distinctive 

area of trees - "will degrade" the entire stand, 

and that the loss of "any" more old growth 

redwoods would, at best "retard" the 

Murrelet's reco very and would more "likely" 

cause the "extinction" of the Murrelet, the 

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Secretary cannot make the required finding. 

Catch 22: Pacific Lumber cannot harvest any of 

its virgin old growth redwood without a 

Federal Incidental Take Permit, but such a 

permit cannot be issued in light of the U.S. 

District Court's findings. 

The U.S. District Court has confirmed its 

intention that its findings will preclude Pacific 

Lumber from harvesting its old growth timber. 

In an order awarding substantial attorneys' 

fees to the environmental organization that 

prevailed in the litigation, the court 

emphasized that its prior holding had 

"ensur[ed] the conservation of one of the few 

remaining marbled murrelet nesting habitats 

in California" by "permanently enjoin[ing] 

logging on private land to conserve the habitat 

of. a threatened or endangered species." 

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Thus, regardless of the number of applications for use or 

exemption Pacific Lumber may make to either federal or state agencies, the 

facts already found by the U.S. District Court and the constraints built into the 

Federal ESA will forever prevent Pacific Lumber from using its old growth 

timber in any economically beneficial or productive manner. 

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Congress has made a decision that protection of species threatened 

with extinction is an important public undertaking. With respect to 

protection of the Murrelet in Humboldt County, California, application of 

that federal policy has taken Pacific Lumber's property- all of which the 

company acquired for the purpose of harvesting- for public use. No 

compensation has yet been paid. Hence, this suit. 

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PALCO THE PACIFIC LUMBER COMPANY 

Mr. Curt Smirch 

Assistant Regional Director 

U.S. Fish and Wildlife Service 

3773 Martin Way, East, C-1 0 I 

Olympia, Washington 98501 

Dear Mr. Smirch: 

February 20, 1996 

(C(Q)[p1f P.O. So• 37 . Scoti•. CA tsses (7071 784-22.22 

RE: MARBLED MURRE! ET HABITAT CQNSERVATIQN PLAN MEEI!NG 

On February 5, 1996, Mr. Henry Alden, Mr. Sal Chinnici and I met with you and members of your staff (collectively 

''you") to discuss a Habitat Conservation Plan (HCP) prepared by The Pacific Lumber Company (PL) for 

application for an incidental take permit for marbled murrelets pursuant to section 10 (a) of the Enclangered Species 

Aet for timber operations on the private timberlands ofPL and its wholly owned subsidiaries. The purpose of the 

meeting was to discuss the viability of the HCP. 

HCP FRAMEWORK 

In summary, the HCP provides for an extended schedule of harvesting (over a 35 year period) on 6,648 acres of 

timberlands considered "occupied" by the marbled murrelet Wider the Pacific Seabird Group protocol. Pursuant 

to the HCP, harvesting should be undertaken in manner to insure that there will be no net loss of suitable habitat 

within a defined biorcgion over time. As I explained at the meeting, the framework of the HCP was based upon 

years of review and research; and the maximwn feasible limitation on PL's use of its timberl.md assets wb.ile 

retaining any economically productive use of its land. 

We hoped and believed that the Service would endorse the plan, or at least suggest feasible altcroatives or 

mitigations using the framework, which would allow the continued operation of our company. llufortunatcly, that 

was not what occurred. 

DISAPPROVAL 

At the meeting you said that the HCP cannot be approved, because its implementation would '~eopardize" murrelets, 

thus precluding issuance of an incidental take permit. In other words, PL cannot get an incidental take permit and 

therefore cannot harvest its trees. Moreover, yo_u said that jeopardy was "likely" since the government's Draft 

Recovery Plan for the murrelet specifically identified suitable habitat on PL's private timberlands as "crucial" to 

the recovery of the species. You also said that the areas proposed for designation of critical habitat on PL 's lands 

should be so designated. 

" Rcc:.D'·'r.; " ' ~9~ Wildlife Stewardship Award of the Forest f:'roducts Industry" 
Mr. Curt Smitch 

Page2 

February 20, 1996 

174 

While the HCP provides for no net loss of suitable habitat acreage in the bioregion, it anticipates eventual harvest 

of particular habiU.t on PL' s lands. Your staff pointed out that on at least two occasions the Service has opined that 

the murrelct will be in '1eopardy" in a harvesting area of only 4,000 acres (in the "section 318" government timber 

sales) while our plan calls for phased harvesting in nearly 7,000 acres. You were concerned about the current 

population trend of the species, especially during the next 50 years, and suggested that ifPL were to extend the 

harvesting schedule from 35 years to between 200 and 500 years, the HCP "might" be acceptable. 

MITIGATION 

You also stated thai the HCP is unacceptable in that the mitigations proposed are "inadequate" to offset the impacts 

of the harvest schedule. You said that PL could not use development of suitable habitat on the adjacent protected 

public lands as mitigation. I pointed out that we do not consider this as ao affirmative mitigation measure, but that 

is was something that would benefit the murrelet in the bioregion over time. 

We also referred ~~e group to Table 8 in the HCP for a list of the mitigation measures offered. 1his led to a lengthy 

and inconclusive discussion of just what may be considered "mitigation." You indicated that mitigation must be 

"fairly compensatory" of the impacto, that mitigation on ao acre for acre basis is not adequate in this instance, aod 

thai we must focus on qualitative measures rather thao quantitative. You said that you found our habitat model to 

be "astounding," thai you would not accept the concept that suitable habitat cao develop in less thao 200 years, and 

that suitable habitat in the redwood region is not achieved until trees reach a diameter of 80 inches. Mr. Hensen, 

of your staff, went so far as to say that stands such as the Headwaters Forest are so important to the species thal"the 

government can't just give them away." The discussion on mitigation seemed to conclude that no amount of 

economically viable mitigation would constitute "adequate" mitigation. 

ALTERNATIVES 

We then asked you to suggest economically viable alternatives to our proposal. The only alternative that was 

offered was a vaguely described concept, which Mr. Ken Hoffinao presented. Mr. Hoffinan's suggestion consisted 

of: 

I) no harvesting activity within the area proposed for designation as critical habitat (nearly 33,000 acres ofPL 

privately owned timberlands), except possibly some light thinning harvests aimed specifically at shortening 

the time for development of suitable habitat with the concurrence of the Service; 

2) some selective harvesting might be applied to the "occupied" stands outside the area proposed for 

designation of critical habitat, followed by ten years of monitoring, the results of which could be presented 

to the Service for discussion of the possibility of further harvests in occupied habitat; and 

3) an incidental take permit might be issued for the remainder of the property, which no marbled murrelets 

inhabit in any event. 

'1'112 PACl~lC LUMBER COMPANY 
Mr. Curt Smitch 

Pagel 

Fcbnwy 20, 1996 

175 

Mr. Hoflinan said that he thought this should interest PL since it would allow harvest in what he estima~ to he 

15% of our "occupied" habitat. and it would avoid any issues of take in our other stands, including second growth. 

This was the first time I had heard of concerns for murrelet impacts in second-growth ~ and, such concerns 

appear to conflict with your staff's assertion that suitable habitat cannot grow in less than 200 years. 

RE\IIEW AND COMMENT 

Notwithstanding that there appears an insunnountable difference hetween our concepts of what is "acceptable," I 

inquired as to the procedure for formal submission of the HCP and application for the permit. Your office has sent 

me written instructions for submission. However, you also said that you would like to take "one more look at the 

problem" and get back to me by the end of that week. 

In our last conversation by telephone, you indicated that you had talked with Michael Spear, the Regional Director, 

8lld it was his advice that we should go ahead 8lld formally submit the HCP, that the Service would again comment 

based upon the application. We discussed the process in light of the fact that your agency has already told us the 

plan would not be approved. 

I inquired whether such further comment must await time-consuming formal NEPA analysis and a Section 7 internal 

consultation, or any additional review might be completed in a shorter time frame. You said you were not sure how 

you would proceed, but that you thought the agency could comment in short order, during the 30-day comment 

period after publication in the Federal Register. 

We will further consider making formal application in the coming weeks in light of your initial response to the PL 

HCP. I would appreciate you letting me know if there is any reason to believe that further discussion would not be 

futile, or if you find that any of the foregoing does not accurately reflect our conversations. Thank you for your 

time. 

TMH:at 

cc: Mollie Beattie 

Michael Spear 

Sincerely, 

THE PACIFIC LUMBER COMPANY 

Jke..~ '/lz · f.l.vz.~~ (d) 

THOMAS M. HERMAN 

Resource Manager 

Til. P&CiriC LUM.E& C:OW.PAHY 
176 

• 

United States Department of the Interior 

FISH AND WILDLIFE SERVICE 

June 25, 1996 

Mr. Tom Herman 

Pacific Lumber Comoany 

Post Office Box 37 

Scotia, California 95565 

Dear Mr. He~ 1~ 

North Pacific Coast Ecoregion 

Office of the Assistant Regional Director 

3773 Martin Way E., Bldg. C, Suite 101 

Olympia, Washington 98501 

'JUN 2 81996 4 T 

I am writing in response to your Jetter of February 20, 1996, in which you purported to 

SUIIllillii'iu our meeting of February 5, 1996. At that meeting we discussed a marbled murrelet 

habitat conservation planning document that Pacific Lumber Company (PL) had sent to the U.S. 

Fish and Wildlife Service (Service) in December of 1995. As a matter of context, we note that, 

shortly thereafter, PL filed a lawsuit against the United States. Although recent events have 

prevented us from responding sooner, it has become apparent that the position outlined in your 

letter was intended as a predicate to the recently filed suit We remain open to consideration of a 

habitat conservation plan (HCP) submitted in accordance with the Endangered Species Act 

(ESA). It is important, however, that we take this opportunity to set the record straight. 

As we have discussed with you on many occasions in the past. the presence oflisted species on 

PL's landholdings does not preclude productive use of those lands. Section lO(a)(l)(B) of the 

ESA allows the Service to issue permits to take listed wildlife species incidental to otherwise 

lawful activities. To obtain an incidental take permit, an applicant must submit to the Service an 

HCP which, among other things, specifies the impacts on the listed species and its habitat of the 

proposed incidental take, the measures that will be taken to minimize and mitigate those impacts, 

and how the plan will be funded. For HCPs that will be oflong duration, the Service alw usually 

requires the applicant to submit a draft implementing agreement (IA) which sets forth in 

contractual terms the applicant's obligations under the HCP. 

It might be useful to briefly summarize the Service's incidental take permit review process. On 

receipt of a formal permit application and $25.00 filing fee, the HCP, and where appropriate the 

IA, the Service must complete an evaluation of the environmental impacts of the proposed take 

and HCP under the National Environmental Policy Act (NEPA). A 30-day period for public 

comment on the permit application and plan must also be provided through a Federal Register 
Mr. Tom Herman 

June 25, 1996 

Page2 

177 

notice, and the Service must complete an internal consultation on issuance of the permit under 

Section 7 of the ESA. If, on completion of the agency and public review processes, the Service 

determines that the proposed take will not appreciably ieduce the likelihood of the survival and 

recovery of the species in the wild, and that the other issuance criteria specified under Section 

10(a)(2)(B) of the ESA have been met, the Service will issue an incidental take permit. 

I now respond to your specific contentions about our February 5, 1996, meeting. First, and very 

importantly, the Service did not state that implementation of PL's proposal would jeopardize the 

federally listed marbled murrelet. As we indicated to you at the meeting, and reiterate, while we 

did advise PL that removal of approximately 6,000 acres of occupied marbled murrelet nesting 

habitat in a key portion of the species' range, without offsetting mitigation, would raise concerns 

about potential jeopardy to the species, this was only a preliminary informal view based on 

limited information. Before the Service can reach a conclusion on the issue, it must conduct a 

formal consultation under Section 7. of the ESA to determine if issuance of the permit would 

likely jeopardize the continued existence of the species. In accordance with the process 

described above, this can occur only after the Service receives a permit application from PL, 

completes required environmental review under the National Environmental Policy Act of the 

effects of the proposed incidental take permit and habitat conservation plan, and circulates the 

plan for public review. Although you still have not even initiated the application process for an 

incidental take permit, we continue our willingness to discuss, either formally or informally, any 

aspects of a permit. 

Further, the fact that the Service has recently determined that some of Pacific Lumber Company's 

lands, including lands within the proposed HCP area, are critical habitat for the marbled murrelet 

docs not preclude issuance of an incidental take permit. In fact, the final rule designating critical 

habitat contemplates the issuance of incidental take permits in critical habitat areas and 

specifically provides for removal of the critical habitat designation from any lands covered by an 

approved habitat conservation plan. 61 Fed. Reg. 26256, 26278 (May 24, 1996) 

Second, you are correct that the Service expressed concerns regarding Pacific Lumber 

Company's mitigation strategy. The PL proposal does not offer any mitigation whatso< ver for 

the significant loss of habitat that will result from PL's proposed elimination of all old growth 

timber stands on its lands. Instead, PL proposes to rely on State Park lands to gradually make up 

for the 6,000 acres of habitat loss on your lands. Assuming this projection of future available 

habitat on State Park lands, your own biologist, Mr. Chinnici, agreed with concerns that the 

much younger stands on state owned lands would not, until well beyond the term of the permit, 

provide habitat comparable in quality to the old growth stands proposed for liquidation over the 

next 3 5 years. 
Mr. Tom Herman 

JUlie 2S, 1996 

Page 3 

178 

Third, the Service did not state that suitable habitat for the marbled murrelet requires trees that 

are a minimum of200 years old and 80 inches in diameter. (It is my UDderstaDding that Phil 

Detrich of our Sacramento Field Office contacted you soon after the meeting to tlarify that the 

smallest known murrelet nest tree size in California is 54 i.nclles in diameter.) What we did state 

is that the available data do not support acceptance of the "288 plus 6" standard adopted by PL in 

ita habitat model as a valid definition of suitable habitat when applied to young stands of trees. 

We indicated instead that application of this standard could result in the identification of young 

stands as suitable for nesting many years before the stands include trees large enough for nesting. 

Pacific Lumber's planning dooument did not provide any data to suggest that the proffered "288 

plus 6" standard has any validity when applied to young tree stands: 

Finally, you indicate dissatisfaction with the Service's failure to propose "economically viable 

alternatives" to your proposal at the meeting. As you acknowledge, however, that was not the 

meeting's pwpose. The Service agreed to meet with PL for the pwpose of providing you with a 

preliminary assessment of your habitat planning dooument, which we did. We remain open to 

meeting with you to discuss viable alternatives, and hope that PL is also interested in discussing 

alternatives and in working with us to creatively draft an HCP--as have other large timber owners 

such as Plum Creek, Murray Pacific and the State of Oregon (Elliott State Forest). 

In fact, the Service did suggest that PL consider the development of a broader habitat 

conservation plan that encompasses not only old growth habitat but also second growth timber 

and residuals on PL lands and that would extend over a longer time scale. A broader, more 

balanced plan would allow greater flexibility in providing for continued timber harvest over the 

long term while at the same time minimizing impacts to the marbled murrelet as required under 

Section lO(a) of the Act Attempts by PL to narrow the scope of property to be included in a 

proposed HCP appear motivated towards pwposely defeating the HCP process, before it has 

even begun, and setting up the Fifth Amendment "taking" scenario raised in the litigation. 

• You misquoted and clearly misunderstood Paul Henson's statement to the effect that 

the Service "cannot just give them away." Mr. Henson was referring to the last remnant 

populations of marbled murrelets- not to PL's timber Ianda. 
Mr. Tom Herman 

June 25, 1996 

Page4 

179 

In summary, ow- comments at the February 5 meeting were intended as an honest, if preliminary, 

assessment of yow- habitat conservation planning document in relation to the statutory criteria for 

issuance of an incidental take permit Fw-thennore, I want to be clear that we are willing to 

continue discussions on PL's proposal and other alternatives and to process an incidental take 

permit application, should you choose to submit one. When we receive an application and the 

necessary NEPA and ESA reviews are ultimately completed, we will be in a position to provide a 

definite answer. To that end, in the interim, I want to reiterate that the Service remains 

committed to working with PL to assist in the development of an economically and 

environmentally viable habitat conservation plan that can warrant issuance of an incidental take 

permit. 

Sincerely, 

Curt Switch 

Assistant Regional Director 

CS:dn:ef 

cc: John G. Rogers, Director, Fish and Wildlife Service 

Michael J. Spear, Regional Director, Fish and Wildlife Service 
180 

t PALCO THE PACIFIC LUMBER COMPANY 

Mr. Curt Smitch 

Assistant Regional Director 

United States Department of the Interior 

U.S. Fish and Wildlife Service 

3773 Martm Way E 

Building C. Suite 101 

Olympia, WA 98501 

RE: YOUR LETIER OF TIJNE 25 1996 

Dear Mr. Smitch: 

,.,0. So• 37, ScCJtia. CA 9SS$S f707) 784-2.222 

August 8, 1996 

I am m rece1pt of the referenced letter. written in response to my letter of February 20, 1996. I was 

swprued to receive a response aft... the passing of over four mooths when I had asked you to let me know 

if there was any hope fur fwther discussioo or if you found my description of our meeting to be inaccurate. 

I would have expected you to collllllllllicate any concems promptly. Having received no response, I 

assumed you did not feel further discussioos would be productive and that you did not disagree with my 

documentati.m of our meeting. 

It is dillicult at this late date to vu:w your letter as a real response. Rather, it appears to be a "self-serving" 

attempt to create evidence for the government's use in the lawsuit filed against the United States by The 

Pacific Lumber Compooy (Pacific Lumber} in May. I did not write lhe letter as a predicate to the lawsuit. 

I wrote it for the pwpose of memorializing our meeting and in hopes lhat your agency would help us find 

a viable solucm. You are well aware that a tremendously valuable asset of our company is at stake, and 

I would be remiss if I did not document our discussials. I had all those who attended lhe meetmg with me 

review my letter before sending it, and I believe it to be accurate. Your effort to "set the record straight" 

lhrough rewriting history four mooths later is disappointing. 

You state thar your agency IS open to coosideration of an HCP that complies with lhe ESA, and you urge 

Pacific Lumber to apply for an incidental take permit. Your letter clainJS that you are committed to 

worlang with us to find a solution and that your agency will be cooperative. I believe lhat you personally 

would like to pursue those objectives, but in lhe three or so years lhat we have been diligently working to 

find a proposallhat evm remotely strikes your agency's interest and retairJS economic use of lhe lands, it 

appears clear lhat such help and cooperation from your agency is not forlhcoming and lhat a marbled 

murrelet HCP on our land would never be approved For example, we asked you at our meeting to tell us 

what would const1tu1e an acceptable alternative. Mr Hofl'man 's sceoario of allowing us to select1Vely cut 

an 15% of our occupied habitat, or as I charactenze t~ seveo and a half cents on the dollar, was all that was 

offered That constitutes the most substantive, albett wholly uoacceptahle, descnption of a poss1(;ility that 

we have heard from your agency in lhree years of asking for suggesnoos. You e><cuse your agency's failure 

to suggest alternatives by saying such was not the pllrpose of the meeting; however, plamly implied. in any 

dtscusston between the agency and project proponent is an intent to hear from the agency what will be 

acceptable, as your draft handbook demonstrates. As you know, delay means ecooornic harm to our 

business. You can't reasonably expect us to continuously expend hundreds of thousands of dollars 

proposing endless alternatives without any substantive guidance on an approach that will work. 

''Recipient of 1994 Wildlife Stewardship Award qf the Fo re st Products industry " 
Mr. Curt Smitch 

Page2 

August 8, 1996 

181 

You, yourself; have told me that wi1b. respect to the marbled murrelet and the old growth habitat on Pacific 

Lumber's lands, '"This is a very tough one." On the basis of our experience to date, what you and your 

colleagues told us at our meeting in February, what we have been told by the Federal District Court, and 

what we read m the regulanons, including the recently finalized designation of crincal habitat for the 

marbled murrelet, we are led to the conclusiOn that applying for an incidental take pernnt would be a 

wasteful exercise. 

In order to tssue an mcidental take pernnt, the Secretary ts' reqwred to find that "the takmg will not 

appreciably reduce the likelihood of the surviVal and recovery" of the marbled murrelet in the wild. ( 16 

USC § 1539 (a)(2)(B)(iv)) Yet the United States Disaict Court for the northern District of Califmma has 

stated that harvesnng "any . significant oortion of the marbled murrelets' critical nesting habitat in 

southern Humboldt C01mty will result in a !ugh probability that the remammg population of marbled 

murrelets m tlus region will become extmct." (Marbled Murre!et y Paofic Lumber CoU!DanY 880 

FSupp. 1343, 1366 (NO Cal. 1995); affirmed sub nom Marbled Murre!et v Babbitt 83 F. 3d 1060 (9th 

Cir 1996)) 

Furthem10re, the U.S. Fish and Wildlife Se:vice (Service) has raised the spectra of such dire consequences 

for even less intmse land use projects. A case in point is the very recent administrative proceeding before 

the Board ofF orestry m which Pacrlic Lumber proposed a plan which Simply extended an exisnng road 

miD the Headwatezs Forest for approximately a half nule, removing flO more thao ten 1D twenty trees per 

acre (for no more than agbt acres). The Service !lllllounced that even tlus minimal project would a~verse!y 

affect the murrelet populancn for years to come, mcreasmg the rate of predation within an area of rl.'rnaming 

habitat many nmes larger than the proJect itself Specifically, the Service informed the Board that, 

"The Serv:tce believes that the proposed 1HP will further 1mparr the ability of murrelets 

to find limited nest sites and breed successfully .. 

Nesttng habitat within a reasonable flight <listance of the coast ts already lirmted m 

southern Humboldt County; thus, available s1tes for successful nesttng are probably lirmted 

as well In additictJ, an mcrease io nesnng densrty can be expected 1D further mcrease the 

likelihood of predation, because the predators can find more prey Without increasing their 

search effort. 

Therefore, the Serv1ce beheves that further removal of nestiog habitat willlirmt the ability 

of the marbled murrelets to find suitable locations for successful nesttng ... " 

The Government has agam recently reaffirmed the unportance of preservmg our old growth based on 1ts 

belief that there are not adequate, altemanve nesnng opportllllltles in th1s portion of the marbled mc;rrelets' 

range. Under the ESA, no incideotal take pemut (nor any Federal pernut) may be approved if It would 

result m even "adverse mo<lificatlOn" ofhab1tat des1gnated cnncal. ( 16 USC § 1536 (a) (2)) The Service 

made tlus same point when pub~shmg the regulations govemiog issuance of mc1dental take pemuts: 

"The Service agrees .. that smce all mcrdental take pernut applicanons will be subject to 

Sectwn 7 (a) (2) consultanon, thev would not be approved if they resulted in the 

destrucuon or adverse modificatiOn of the criucal habitat of a hsted spec1es." 

(50 Fed. Reg pg 39685, Vol 50, No 189, Sept. 30, 1995) 

THE PAClFtC LUMB£:R COMPANY 
Mr. Curt Smrtch 

Page3 

August 8, 1996 

182 

In 

~ 

this case, as you well know, some 33,000 acres of Pacific Lumber timberland has now beeo so 

As a commercial timber products company, Pacific Lumber ism the business of conducting 

what the Sexvice has declared to be "adverse modification" of habitat for murrelets. 

In short, it is simply impossible for us to make economically viable use of the prope:ty you have designated 

as "critical habttat" without doing what your agency and the courts have determined is "adverse 

modification." 

If I am mismformed m these respectS, I would appreciate a detailed, supported, analysis explaming your 

posttion on lhese points 

TMH:at 

Sincerely, 

THEPACWICLUMBERCOMPANY 

~H~~~ TIIOMAS M. HERMAN 

Resources Manager 

TKE PACIFIC LUM8E~ COMPANY 

0 

ISBN 0-16-053714-2 

90000 

9 80160 537141