Thank you for the opportunity to appear before you today. I am testifying on behalf of the Wisconsin Department of Natural Resources (WDNR). The focus of my testimony is the process by which state agencies and public and private landowners can achieve limited immunity against the "take" of an endangered or threatened species while applying conservation measures to lands through their ongoing management and use. My experience, and that of the agency I represent, is based on the recently completed Habitat Conservation Plan (HCP) for the Karner blue butterfly. An Incidental Take Permit was issued in September, 1999. That HCP/EIS may be viewed at http://www.dnr.state.wi.us/org/land/er/publications/karner.
The Karner blue butterfly (KBB) HCP is a statewide conservation plan. The WDNR applied for the Incidental Take Permit in collaboration with 25 other private and public partners. Their resource management strategy is to assure the long-term sustainability of KBB habitat and the persistence of KBB on the Wisconsin landscape. The partners include:
Industrial Forest Companies Wisconsin State Agencies
Consolidated Papers, Inc. Dept. of Agriculture, Trade and Consumer Protection Georgia-Pacific Corp. Dept. of Natural Resources Johnson Timber Co. Dept. of Transportation Thilmany-Int'l Papers Wausau-Mosinee Paper Corp. Wisconsin River Power Co.
Utilities County Forests
Alliant Burnett County ANR Pipeline Co. Clark County Lakehead Pipe Line Co. Eau Claire County Northern States Power Co. Jackson County NW Wisconsin Electric Co. Juneau County Polk-Burnett Electric Co-op Monroe County Wisconsin Gas Co. Washburn County Wisconsin Public Service Corp. Wood County
Non-Profit Conservation Organization
The Nature Conservancy
In addition to the partners, development of the HCP relied heavily on people representing various associations and organizations. These organizations have contributed extensive and continuous time and effort to the process and include groups such as the Sierra Club, the Wisconsin Audubon Council, the Wisconsin Woodland Owners Association, and the Wisconsin Paper Council.
The conservation plan is built on individual plans and strategies committed to by partners through a separate Species and Habitat Conservation Agreement entered into between the partner and the WDNR, who is the Permittee. The WDNR developed the same type of conservation strategies for its lands and efforts and included them in its Implementation Agreement it entered into with the U.S. Fish and Wildlife Service (USFWS).
This innovative approach to endangered resources conservation is designed to move industry and the regulated community beyond compliance and into efforts to proactively apply conservation measures on the land. After all, Congress, in establishing the incidental take permit (ITP) provision of the ESA, expressed the hope that it would encourage creative partnerships between the public and private sectors and among governmental agencies in the interest of species and habitat conservation and provide a framework to permit cooperation between the public and private sectors. Those goals are achieved, in my opinion, in the KBB HCP and arise out of a solid and diverse grassroots effort in Wisconsin.
The KBB is dependent on continuous disturbance regimes or management programs designed to assure that the habitat is not lost because of the natural succession of competing vegetation. The HCP, with its biological approach, focuses on geographic areas and activities which provide the highest potential to safeguard or enhance KBB habitat. The participation strategy seeks to reach all landowners and users, but will vary in approach and process. It is an effort designed to gain and incorporate the support of landowners and land users throughout Wisconsin. It identifies which landowners or land users are required to apply to the WDNR for inclusion and obtain a Certificate of Inclusion from the USFWS. It also identifies landowners and land users which are covered by the Permit and do not need additional process for coverage. Those landowners or users needing a Certificate of Inclusion include larger forest land owners; those involved with the development or maintenance of corridors, such as utilities or highway development and maintenance entities; and those involved in activities that will permanently destroy habitat, such as construction of buildings, parking lots, etc. Landowners or land users not requiring further process for coverage will be subject to extensive public outreach, education and assistance efforts to gain their voluntary support of and participation in this conservation effort.
The KBB HCP, in addition to its participation strategy, is built upon a sound scientific and biological foundation, a strong public participation process, a sound monitoring plan, a commitment to adaptive management, a reasonable funding plan, and a review process to assure the goals of the HCP are being achieved.
The WDNR also prepared, with appropriate review by the USFWS, the EIS on the HCP for purposes of compliance with the Wisconsin Environmental Policy Act (WEPA) and the National Environmental Policy Act (NEPA). The USFWS provided funding for printing and dissemination of the HCP/EIS and coordinated public comment on it.
THE HCP PROCESS AND VALUE TO WISCONSIN'S KBB HCP
The collaborative HCP for the KBB is a demonstration that the HCP process can offer to private and public landowners and users the opportunity to proactively conserve a species while engaging in ongoing land management and use.
The KBB HCP is innovative and flexible and is consistent with the Endangered Species Act (ESA) in moving the focus away from the small land parcel to a broader statewide approach. The finite resources available, including funding, to state and federal agencies to develop and implement conservation plans do not lend themselves to an individual landowner or user approach.
The USFWS staff at the Regional and Green Bay Field Offices were cooperative in accepting this innovative approach and worked responsibly in their assistance and review of the HCP.
PROBLEMS WITH AND SOLUTIONS TO THE HCP PROCESS
Length of Process
The Wisconsin KBB HCP took 5 years to develop. A great deal of that time was spent on public participation and creating trust between the partners and participants. The trust relationship is extremely difficult to build between federal and state agencies, its regulated communities, and other public and private competitors and land managers. We were fortunate that the USFWS staff were responsive. However, their limited staff resources required that the partnership work to keep the KBB HCP on USFWS staff's priority list. Without that pursuit of priority treatment, I am confident that a minimum of one year could have been added to the process. The enthusiasm of conservation partners and cooperators will die, or at least diminish, during extensive delays. We witnessed this dynamic in the KBB HCP.
The process time for HCP's can be reduced if USFWS staff are able to give priority time and assistance to the process. It appears that staff reluctance and caution in putting the final stamp of approval on an HCP and incidental permit application is a contributor to the already lengthy process. Case by case treatment to each HCP process, adequate federal agency staff availability, and a vision of flexibility and creativity should reduce the length of time necessary to complete an HCP.
Partnerships Rather Than Command and Control
All too frequently progress on HCPs may be hampered by the USFWS' feeling that administering the ESA and HCPs process they must be a command and control process. Some view this approach as a "preservation" mode rather than one of proactive conservation.
Conservation of endangered and threatened species must be applied on private lands. Regulatory protection for the species do not and cannot proactively address the needs of the species and their habitat. Collaborative approaches to conservation involving partnerships between public and private agencies, landowners, and users can.
State conservation agencies can be a valuable, and sometimes essential element in a successful HCP or conservation plan. State agencies can bring valuable assets to the plan. Those assets may include biological and scientific expertise, knowledge of state flora and fauna they manage and protect, facilitation skills, and possible long-term administration of a conservation plan. However, for state agencies, or other public agencies, some funding is needed. State agencies recognize this. Currently, the International Association of Fish and Wildlife Agencies, through Pat Graham, Chair of its Threatened and Endangered Species Committee, is considering how state conservation agencies can or should be involved in or further multi-state and multi-species conservation plans.
Opportunities that may be presented by agencies, entities, and individuals must be captured. Capturing the opportunities will likely require significant time and effort being spent with the landowner or user, whether in the board room or across the kitchen table. This attention is needed to gain their trust and, ultimately, success.
Funding
In the case of the Wisconsin KBB, funding beyond the resources of the WDNR, and not available from the other partners, was needed. Activities such as research and the development of a scientific monitoring strategy were funded with assistance from the National Fish and Wildlife Foundation. The printing and dissemination of the HCP/EIS, although drafted by the WDNR, was funded by the USFWS. This type of funding to facilitate development of an HCP and conservation effort is likely to be needed for development and implementation of an HCP and is a very good investment in proactive conservation that cannot be achieved by the USFWS alone. The need for funding may be alleviated or reduced by in-kind contribution of expertise and application of conservation strategies on the land. Conservation plans that interfere with land management and use threaten the landowners and often result in outcries of regulatory takings or interference with their investment. Conservation plans that are built upon, and are consistent with, land management and use offer long-term stewardship in favor of the species.
The Wisconsin HCP builds its plan on long-term private land cooperation. Millions of dollars worth of in-kind services have and will be directed to this conservation plan. Few dollars will be spent out-of-pocket by the partners. The history of expenditure of significant dollars for consultants and other services common to limited development projects need not be the template for landscape HCPs in the future.
Flexibility and Creativity
The USFWS or other federal agency administering the ESA must recognize that a "one-size-fits-all" strategy is not reasonable for rare and unique species conservation. HCPs address natural systems. Such systems are dynamic. They are species driven. As such, an HCP must address not only the pertinent species but the opportunities that may be present to apply to the conservation effort. The vision of federal agencies administering the ESA, therefore, must be flexible and creative enough to capture the opportunities in each conservation plan. What seemed to have worked in another setting or with another species may be totally inappropriate for the species being addressed in a new effort.
The development of Handbooks and other guidelines, and implied requirements that they be followed, can work a severe disservice to conservation. A vision of flexibility, creativity, and partnership to scientifically address conservation is more appropriate. Strict adherence to "guidelines" by federal staff is an interpretation or application that must be challenged. Guidelines like the Handbooks are just that, guidelines.
Focus on Conservation Not Recovery
Our goal as conservation agencies is to recover species. That is true success. However, federal agencies administering the HCP provisions must be cautious in its zeal to address recovery by forcing recovery activities in an HCP. Recovery is the responsibility of the federal agencies. Although a conservation effort under an HCP may not interfere with recovery of a species under the law, nonfederal participants collaborating on it are not responsible for recovery. Federal agency staff have implied that an HCP not including recovery efforts might be inadequate.
Federal agencies administering the provisions of the ESA respecting HCPs should make very clear the role of the HCP in recovery and explain to the participants the pertinent recovery goals and how they may be reached. Landowners may voluntarily commit to recovery efforts. They more likely will not participate in recovery efforts if pressed to engage in them under threat that an HCP will not be approved. The opportunity to recover and delist a species is incentive enough for many to participate in recovery. Again, the availability of federal funding for voluntary recovery or restoration efforts is necessary to gain the support of willing landowners without resources, or a willingness, to lend to them to recovery activities.
SUMMARY
Success in proactive conservation of endangered and threatened species depends on partnerships between agencies and public or private landowners. They have the potential to be far more successful if conservation strategies are consistent with ongoing management and use objectives of landowners. Landowners may then become natural stewards of the lands by applying long-term conservation efforts for the species. Partnerships are difficult to establish. They require commitment of all concerned and often require an extensive commitment on behalf of federal and state agency staff to make them work.
Thank you for the opportunity to testify. Although I was asked to discuss problems and solutions respecting habitat conservation planning, our experience with the KBB HCP process was and remains very positive. The HCP process may continue to be a valuable and very important process to achieve the cooperation of private landowners and the application of conservation measures to their land. Their bottom lines, whether they be related to a business venture or an individual's investment in the land, must be recognized. Proposed conservation efforts will be jeopardized if they significantly interfere with landowner objectives. Our challenge as conservation agencies is our commitment to obtaining mutually satisfactory stewardship plans that will benefit the species and be acceptable to private landowners.