Summary
Defenders recognizes the potential for HCPs to encourage private landowners to actively conserve not only endangered species but multiple species and communities. Nevertheless, we have grave concerns over the way HCPs have been implemented in the past, both in terms of the lack of scientific content and overall loss of habitat. Multiple studies and reviews have concluded that major gaps exist between the HCPs that have been developed thus far and what would constitute a scientifically sound HCP.
The lack of information available for HCPs does not always imply that plans should not be developed; rather, we suggest policy changes that would encourage precautionary, scientifically-based HCPs that reduce risk for endangered species.
First, improve the amount of scientific information underlying HCPs through:
-- better recovery plans -- designation of critical habitat -- development of regional conservation strategies -- increased involvement by independent scientists
Second, scientific uncertainty will always exist, therefore HCPs must incorporate measures for reducing the risk to species that such uncertainty creates. HCPs must:
-- be more precautionary in nature -- include adaptive management -- modify existing "no surprises" assurances -- be consistent with the recovery of species
In two important ways, the Services have recognized the need for such improvements to HCPs. They have published a new rule that allows for revocation of a take permit if the HCP is shown to be jeopardizing an endangered species. Second, they have drafted an addendum to their HCP Handbook that encourages adaptive management, biological goals, and monitoring. Because the guidance does not impose requirements upon HCP applicants, we continue to advocate for assurances for species that are comparable to landowner assurances under the "No Surprises" Rule.
Background
HCPs have been authorized under the ESA since 1982, but only 12 HCPs were approved between 1983 and 1992. Since 1992, however, there has been an explosion of such approvals -- as of 25 March 1999, the Fish and Wildlife Service and the National Marine Fisheries Service ("the Services") approved 251 HCPs covering over 11 million acres, with over 200 in development. Part of the impetus for the increase in HCPs was the "No Surprises" policy, established in 1994. The policy gives assurances to landowners that they will not have to provide additional funding or land commitments beyond what is included in the HCP. Despite vehement opposition by conservation organizations and scientists, this policy became a rule in 1998. HCPs can last for an unlimited time, and the area of individual HCPs varies from less than one acre to 5 million acres. Indeed, HCPs have become one of the most prominent mechanisms employed by the Services to address the problem of threatened and endangered species on private lands.
Starting in 1996, Defenders formally started research that would culminate in our 1998 report on HCPs, entitled Frayed Safety Nets: Conservation Planning under the Endangered Species Act. In researching Frayed Safety Nets, we reviewed plans nationwide, then we selected a representative sample of 24 plans and evaluated them using criteria that should be satisfied in order for plans to lead to conservation benefits on private land. In the course of the research, we read each plan and associated documents, obtained any associated recovery plan for the species involved, and interviewed key plan officials. In this way, a detailed picture of the strengths and weaknesses of each plan emerged. The report itself summarized the plans and focused on the science, public participation, funding, and legal aspects of HCPs. Our objective was to point out the best and worst examples of these aspects of HCPs, and to examine national trends. Our findings showed that as they were being developed, many plans represented large risks to endangered species because often they lacked an adequate scientific basis, they were difficult to change over time if they resulted in unexpected harm to species, and they were inconsistent with species recovery. I will be discussing some of our findings and recommendations in more detail today in my testimony.
In January 1999, a team of 119 independent scientists issued its own report on the scientific basis of 43 HCPs from across the country. Defenders has been engaged in activities associated with that study of HCPs, which was sponsored by the National Center for Ecological Analysis and Synthesis (NCEAS) and the American Association of Biological Sciences (AIBS). We've also been involved in follow-up to that study's findings, in identifying methods that are palatable to scientists and landowners of improving scientific information for HCPs.
As a result of these studies and excellent research by other organizations such as the National Wildlife Federation, American Lands Alliance, National Audubon Society, and the Natural Heritage Institute, a disturbing picture of HCPs emerges. Put simply, it is far from certain that HCPs will be successful in stemming the further decline of rare species. Indeed, they often authorize the types of activities which have endangered habitat and destroyed ecological communities across the U.S. As they have been constructed so far, HCPs are not species protection plans leading to the recovery of species. They often result in a net loss of habitat, resulting in a hemorrhaging system of habitat across the country. Because these impacts are permitted under HCPs with large geographic scopes and long durations, HCPs pose great risks to endangered species. The risks to species are raised even higher when landowners receive "no surprises" assurances that they will not have to pay for changes in HCPs if the plans are having unintended detrimental consequences for species. I do not believe that the solution to this problem is to abolish HCPs, but the key to improving the prospects of species' survival is to reduce the risk that current HCPs entail.
The Endangered Species Act
As a backdrop to my testimony today, I would like to first consider how the ESA is designed to orchestrate the protection and recovery of imperiled species. As currently constructed, the ESA has all of the building blocks for supporting management and restoration of endangered species according to ecological principles and information. At its core, the purpose of the ESA is to conserve species and the ecosystems upon which they depend. This recovery-oriented purpose underlies every action conducted under the authority of the Act. Recovery plans, in turn, are supposed to provide scientifically-based blueprints for the conservation of species under the Act. Indeed, we expect that recovery plans of the future will contain the scientific information and comprehensive, range-wide strategies that will guide not only federal activities but mitigation guidelines and private landowner incentives, as well. The designation of critical habitat should strengthen the scientific infrastructure for conserving a species by providing information and guidance for federal agencies as well as private landowners. Indeed, it is arguably irresponsible to permit habitat destruction when critical habitat has not been identified and designated. We discuss the nexus between critical habitat and habitat conservation plans further, below.
Finally, habitat conservation plans and federal agency consultations permit some degree of "take" of endangered species, provided actions are taken to offset that harm to the species. If a scientifically-based recovery plan and critical habitat have been established for a species, such information and ecosystem-based strategies would provide an excellent infrastructure for constructing HCPs, with less of the "guesswork" that currently plagues landowners and the Services alike. Unfortunately, as the NCEAS/AIBS study revealed, basic information does not exist for many endangered species. Recovery planning has been underfunded and many plans do not have the amount of information or guidance that is necessary for them to be useful to private landowners. Despite the requirement for the Services to use the "best available science", this requirement does not demand that they acquire information when "available" science is insufficient. Not only must we build a better infrastructure of data using recovery plans, critical habitat designation, and "best available science", but we must reduce uncertainty and risk for species when that infrastructure falls short.
Science and HCPs
The process of science enters into nearly every aspect of the HCP process. For example, in order to assess how much of a population will be "taken" under development or logging activities, a landowner must often employ biological surveys. Take may involve, as another example, land that is adjacent to an endangered bird's nest. In this case, it is necessary to have data on the expected home range of the bird pair and what habitat fledglings may use for dispersal. Beyond information on the amount of "take" under the HCP, the Services must determine the likely impact of that take on the species in question. This requires, among other information, scientific data on the global status and distribution of the species, what proportion of the species' range is affected by the HCP, and whether the HCP area contains excellent or poor habitat compared to other parts of the species' range.
In order to understand what activities would be most effective in minimizing that take and mitigating it, landowners must understand the primary threats to species, and employ protection and management techniques that are data intensive. For example, the Washington Department of Natural Resources (DNR) has constructed an HCP for Northern spotted owls on 1.6 million acres of forest. According to their basic conservation strategy, spotted owl nesting habitat that is isolated from federally protected areas can be harvested, while habitat that is adjacent to such protected areas will be preserved. In this case, sophisticated ecological information is required to determine whether a forest tract is sufficiently isolated from federally protected habitat. Finally, scientific and statistical methodologies are necessary for designing appropriate biological monitoring and adaptive management in HCPs.
Unfortunately, despite the critical importance of scientific data for HCPs, abundant evidence indicates that HCPs have fallen short of expectations for scientifically-based plans. Much of the missing information concerns the status of the species addressed: according to the NCEAS/AIBS study, available data were insufficient to evaluate the current status for more than a third (36%) of species in HCPs. HCPs often involved mitigation strategies that have little data to indicate their probability of success. On a 4-point scale from 0 to 3, the quality of data underlying the choice of mitigation strategies was usually between 1 (very little, or quite unreliable) and 2 (moderately well-understood and reliable). This indicates that the selection of mitigation techniques was often little better than a guess. In Frayed Safety Nets, we found examples of manipulative management techniques (e.g., translocation) that often were not supported by data, we found a general lack of biological monitoring, and we found an almost total lack of formal independent scientific review. These troubling results indicate that the system for species protection under the ESA, including recovery planning, critical habitat, and best available science, has not provided the data infrastructure that is necessary for adequate conservation planning.
As the NCEAS/AIBS study recommended, a much greater effort is needed to collect data on species and keep that information in centralized, readily accessible locations. Beyond the need for more information and better information management, however, HCPs must incorporate better ways of managing uncertainty and risk that results from insufficient data.
Opportunities to Increase Scientific Information for HCPs
Recovery Plans and Regional Conservation Plans
To improve the scientific information underlying HCPs, planners must gather much better information about species and habitat distribution on property covered by the permit. Equally important, however, is organized, centrally accessible data on how populations on the HCP land "fit" within a larger picture of the status and distribution of the species throughout the larger region.
Recovery plans for individual or multiple species can serve as repositories of comprehensive information on the status and distribution of species addressed in HCPs. Most species have recovery plans, however, it is extremely important to strengthen and update the scientific information contained in them. Recovery plans can also contain guidance on mitigation and habitat management. Having information-rich, updated recovery plans to guide HCPs puts HCPs within the context that they belong: into the sphere of recovery.
Increasingly, institutions are developing regional or ecosystem-based conservation management plans to preserve viable populations of species and representative distributions of natural communities. These plans are developed through a process of gathering all of the geographically based information on those species and communities in the region, examining how well they are currently protected, and identifying vulnerable resources and critically important areas. Some examples of these conservation management plans are the gap analysis projects going on in many states, The Nature Conservancy's ecoregional planning, and Defenders of Wildlife's Oregon Biodiversity Project. Comprehensive, regional plans like these can provide the information and context for much better HCPs that take cumulative effects and "the big picture" into account.
Critical Habitat
Another essential plank in the platform underlying scientifically sound HCPs is the designation of critical habitat for endangered species. Once information is collected for recovery plans and regional conservation strategies, it should be obvious what areas are essential for the continued existence of endangered species. The vast majority of endangered species are primarily threatened by habitat loss, and identifying habitat that deserves special protection is one of the first steps toward stemming further population declines. The designation of critical habitat can aid the recovery of species by protecting occupied habitat as well as habitat that is necessary for dispersal, migration, or range expansion. With regard to HCPs, the Services must determine what habitat is critical for species' survival and recovery before permits are granted to destroy habitat. It is extremely risky to permit the destruction of habitat that may be critical to the species' survival and recovery.
In debates over the merits or disadvantages of designating critical habitat, the Fish and Wildlife Service has protested that often, there is insufficient information for delineating critical habitat. If there is insufficient information for designating and protecting key habitat, however, there is insufficient information for granting permits to destroy habitat through HCPs.
We are hopeful that the recent designation of critical habitat for the endangered cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) in Arizona will provide a good example of the utility of critical habitat designation for conservation planning. Pima County, Arizona is engaged in the preliminary stages of a regional, multiple-species HCP process, combined with a Sonoran Desert Conservation Plan (SDCP) for protecting sensitive habitat as well as other open space. These planning efforts (SDCP/HCP) were spurred by obligations for protecting the pygmy-owl. The bird's population in Arizona is extremely small (fewer than 75 known individuals based upon incomplete surveys), and the majority of individuals live in desertscrub habitat in a rapidly developing area to the northwest of Tucson. Because development is occurring so quickly and land values are increasing, the critical habitat designation should provide a basis for spurring additional habitat acquisition from willing sellers and should provide guidance to private landowners in pygmy-owl country.
Involving Independent Scientists
The process of developing conservation plans always involves biologists from the Services and usually involves the landowner's biologists (either on staff or in a hired environmental consulting firm); involvement or review by outside experts occurs occasionally. In HCP development, independent scientists who have expertise in the species and habitats of concern can lend important data and advice on management and preserve design. In addition, review of plans by independent scientists can increase the quality and credibility of the biological information and conservation strategies. Independent review of monitoring and adaptive management programs can be particularly helpful, because such programs can be quite complex. We recommend that independent scientists be consulted much more often as HCPs are developed. While we do not necessarily advocate independent peer review of every HCP, independent scientific involvement should be more prevalent and it should start early in the HCP development process. Interested members of the public who will be affected by the HCP should also be involved early in HCP development.
Recommendations for Managing Risk in HCPs
By improving independent scientific involvement, recovery plans, and critical habitat designations, the amount and use of scientific data for HCPs should improve. Because there will never be perfect information for making HCP decisions, however, it is essential to recognize scientific uncertainty in the HCP process and implement procedures for managing risk to endangered species and to landowners.
The U.S. government has largely minimized uncertainty for landowners in HCPs through the "No Surprises" Rule, which provides that they will not have to commit more money or land in the HCP than what was delineated in the plan. Minimizing uncertainty associated with predicted effects on endangered species, however, remains to be done.
Incorporate Precautionary Measures and Adaptive Management
To ensure that impacts to imperiled species are indeed being minimized and offset as much as possible, HCPs must recognize and address scientific uncertainty. When data are sparse, as they are for most threatened and endangered species, it may be difficult or impossible to adequately assess the threats to and future prospects for population viability. This inadequacy does not override the importance of ensuring that such viability is not compromised. Instead, standardized protocols should be developed to recognize where uncertainty exists and take it into account while an HCP is still under development.
In the face of limited information to guide an HCP, planners can minimize uncertainty for species in two ways: incorporating precautionary measures and improving its effectiveness over time through adaptive management. When information is scarce, precautionary measures can be incorporated into HCPs in multiple ways, including intensively investigating alternatives to "take"; ensuring that mitigation is successful before take occurs (where possible); and limiting the duration of take permits and assurances.
Adaptive management, or mid-course changes in management based upon monitoring information, environmental fluctuations, or additional scientific information about the species, is an essential component of scientifically based HCPs. In particular, one would expect that when uncertainty about species is high, HCPs would have more adaptive management provisions (e.g., mid-course corrections). The NCEAS/AIBS report revealed, however, that when uncertainty about mitigation for species was high, HCPs were actually less likely to contain a discussion of future changes in management strategies: 45% of the 38 cases with insufficient data on mitigation included a discussion of changing management over time, whereas 77% of the 48 cases with sufficient data did so. In our analysis for Frayed Safety Nets, we found few examples of adaptive management. From that sample of 24 plans, the Washington Department of Natural Resources HCP was the only example in which the permittee would conduct research and adaptive management over time, AND it would waive "no surprises" assurances if changes in management proved to be more costly than anticipated.
Modify the "No Surprises" Rule
Ever since the "No Surprises" policy was initiated in 1994, scientists have protested its inherent restriction on changing management of endangered species in response to fluctuating environmental conditions or new scientific information. In 1996, a group of 167 scientists wrote: "In a nutshell, [no surprises] does not reflect ecological reality and rejects the best scientific knowledge and judgment of our era. It proposes a world of certainty that does not, has not, and will never exist" (letter available with this testimony). Since then, "No Surprises" assurances have been expanded so that they apply for long time periods (up to 100 years), and landowners receive assurances for multiple species that may be listed in the future. This expansion of assurances exacerbates the scientific problems associated with "No Surprises". From an environmental policy perspective, the "No Surprises" Rule has no precedent in environmental regulations of any kind. Private interests have simply never been granted permits with such immunity from the repercussions of their actions.
Under "No Surprises", adaptive management is fundamentally restricted by the fact that no additional money or land can be required of permittees. Perhaps more importantly, under "No Surprises", landowners have a disincentive to incorporate adaptive management into their HCPs. Since "No Surprises" assurances are granted whether adaptive management is incorporated into an HCP or not, landowners have no reason to introduce uncertainty into their responsibilities under an HCP. A more rational policy would grant assurances to landowners based upon the likely benefit or impact to the species, the amount of information available, and the extent to which the landowners incorporate monitoring and adaptive management. H.R. 960, the Endangered Species Recovery Act, contains one solution to this problem because it would establish a Habitat Conservation Plan Fund and require performance bonds to cover the costs of implementing additional conservation measures.
Ensure That All HCPs Are Consistent with Species Recovery
Finally, risks to endangered species would be greatly reduced if HCPs were required to promote species' recovery. Indeed, the word "conservation" is defined in the ESA as efforts directed toward recovery and delisting. Currently, the Fish and Wildlife Service does not require such consistency, despite the fact that HCPs can cover such vast areas, including a high proportion of some species' entire ranges. If recovery does not occur under HCPs, some species will simply never recover. When an adequate recovery plan exists, it becomes easier to determine whether an HCP is consistent with overall recovery.
Conclusion
Although the analysis of HCPs by scientists and conservation organizations has painted a gloomy picture of the scientific basis for these plans, we see some hope in the future for improving HCPs. In two important ways, the Services have acknowledged the need for HCP improvement. They have published a new rule that allows for revocation of a take permit if the HCP is shown to be jeopardizing an endangered species. In addition, the "5-Point Plan" guidance that the services have drafted contains some of the solutions to the dilemma we face. The draft guidance contains encouragement for HCPs to include adaptive management, biological monitoring, and identification of biological goals. Because these measures are not required through regulations, we can only hope that landowners are willing to comply with this guidance. These measures to improve HCPs are costly, but consider the cost to the general public down the line and for future generations if HCPs fail to conserve species.