Testimony by Brooke S. Fox,
Director of Open Space and Natural Resources
on behalf of the
Douglas County Board of Commissioners, Castle Rock, Colorado
before the Subcommittee on Fisheries, Wildlife and Drinking Water
United States Senate
A Local Government's Experience with Habitat Conservation Plans
October 19, 1999

Mr. Chairman, and Members of the Subcommittee, my name is Brooke Fox and I am the Director of Open Space and Natural Resources for Douglas County, Colorado. I am honored to be here today on behalf of the Douglas County Board of Commissioners to discuss our experience with the Endangered Species Act ("ESA") and habitat conservation plans ("HCPs").

When I spoke with your staff person prior to coming out here, we talked a little bit about Douglas County's experience in dealing with the Fish and Wildlife Service, and what we have gone through in preparing our county-wide habitat conservation plan to address the federal listing of the Preble's meadow jumping mouse as a threatened species. I explained that we probably did not have as many "war stories" as some, because we were just beginning the process of developing an HCP. "After all," I said, "the mouse has only been listed for about a year and a half." Although we both laughed, the sad reality is that we are no where close to having our county-wide HCP approved. This fact lead me to think about the three things that have affected us most when dealing with the Endangered Species Act: time, expense, and lack of common sense.

While those three factors will be the focus of my testimony today, allow me to give a little background on Douglas County. Douglas County is located between two major metropolitan areas in Colorado: Denver and Colorado Springs. The County is said to be one of the fastest growing counties, by percentage growth, in the U.S. Despite the enormous growth that is occurring in our county, we have some of the most beautiful rural landscapes along the Front Range of Colorado. Douglas County is very conservative politically, and at the same time, our citizens and our elected officials are dedicated to protecting our unique landscape and wildlife habitat. In fact, our voters passed a ballot initiative in 1994 to tax themselves to preserve open space, wildlife habitat, and agricultural land.

Despite the commitment of the County to preserve our cherished natural resources, many are bewildered by the time, expense, and ultimately the wisdom or need for preserving habitat for a mouse. The County Commissioners have experienced the full range of emotions on this issue: disbelief, fear, anger, frustration, humor and finally resignation. After reviewing the listing decision with our attorney and biological consultant, the Commissioners resigned to the fact that the most logical way to proceed was to develop a habitat conservation plan. The County HCP will not only cover county- sponsored activities (such as building and maintenance of trails, roads, bridges, managing open spaces, and constructing county facilities), but we will also attempt to work with other groups and individuals (e.g., towns, metropolitan districts, ranchers and farmers, State Parks, Division of Wildlife, utility companies and others) to cover activities with low or moderate impacts on the habitat.

With that brief background, let me talk about timing, expense and common sense. In expressing my concerns, I would like to make sure you understand that my remarks are aimed at the constraints of the Endangered Species Act and not at the individuals at the FWS with whom we work.

First, timing. Again, it has been a year and a half since the mouse was listed as a threatened species. Secretary Babbit came to Colorado to announce the listing of the mouse in May 1998, and committed during his visit that a 4(d) Rule would be issued "before the snow melted on the Rockies." The 4(d) Rule was intended to address certain activities and clarify what was and was not a prohibited "take" of the mouse during the interim time period before regional and subregional HCPs were developed. Lucky for Secretary Babbit that we do have some glaciers in the Colorado Rockies. The 4(d) rule has yet to be finalized, and in fact the FWS is contemplating reproposing the rule in November. Thus, the regulated community has had absolutely no regulatory relief (or even clarification as to what is or is not allowable conduct). Until something changes, each and every action that may potentially impact mouse habitat must be reviewed by FWS.

This brings us to the issue of insufficient FWS staff resources available to review and evaluate project proposals which may impact mouse habitat. There are two individuals assigned to work on mouse issues. One works on Section 7 consultations (8 to 10 have been processed this year, with 30 to 40 in the works), and reviews mouse presence/absence reports (over 400 reports filed in 1999). The other employee is the only HCP specialist in the Colorado Field Office, and is working on at least 6 sub- regional HCPs (county-wide HCPs such as our's) and 6 to 10 individual HCPs that have been filed to date.

Only two HCPs have been noticed for public review and both are in Douglas County. The first was for a "low effect" incidental take permit for one of our trail projects. The property where this trail project is located was purchased with the intent to preserve the 150 acres for the mouse and other wildlife while providing some limited trail access. The total impact to mouse habitat was a grand total of 400 square feet, but we are preserving 150 acres for open space. We filed our HCP in March of this year - we have just received the permit last Thursday. Because of the mouse however, Douglas County is suspending all trail construction on our previously planned regional trail systems until either our county-wide or a trail specific HCP is developed.

The other permit request is from Robert Hier and Hal Gannon, private developers who have lived in Douglas County their entire lives. Bob and Hal were ready to break ground on their business park project in January. They had already put in a sewerline to the project when they became aware that they may have a potential conflict with the ESA. On advise of their attorney, the two businessmen approached FWS with the intent of doing the right thing and working through the issue together. On April 15, 1999, after months of delay, FWS issued Bob and Hal the first Section 9 fine issued in the State of Colorado for "activities that resulted in disturbance of previously undisturbed areas" after the listing of the PMJM as a threatened species. With the delays and uncertainty of whether the business-park could be built, over $1 million in contracts for of lice space have gone away. FWS just issued a notice of availability and request for an incidental take permit on October 5th.

The second issue is expense. As public servants we obviously have to justify our expenditures to the public. Even though we have dealt with the ESA for a couple of years, it is one of the most costly federal law we have had to comply with. To date, Douglas County has expended approximately $100,000 in funds for legal and technical expertise from outside consultants. I spend at least 50 percent of my time dealing with "the mouse issue." In addition, the County has expended approximately $375,000 to preserve properties that will directly benefit the Preble's meadow jumping mouse and its habitat. We anticipate that the development of our county-wide HCP will take at least two to three years, at an estimated cost of an additional $250,000 to $350,000. Keep in mind.that this is for one species, and that $800,000 just gets us to the table with FWS. Our biggest fear is that after we have spent those funds and proceed to negotiate a favorable HCP, the FWS will say, "Sorry but we don't have the funds to complete our NEPA requirements." In fact, we have been told by our local FWS representatives that given their current funding scenario, that is precisely what may happen.

Talk about unfunded mandates!

My third issue is Common Sense. There are many areas in which the ESA does not allow common sense to prevail. For example, Section 9's take prohibition does not distinguish between essential populations and outlying populations or individuals, and so, an isolated population receives the same protection as larger more sustainable populations. This issue can be addressed in a regional or subregional HCP. However, absent our county-wide HCP, we and other individuals are having to address all populations equally for any activity impacting habitat before the overall HCP is negotiated.

On a related issue, we hope to work with FWS to create incentives to allow preservation of occupied mouse habitat as a primary mitigation strategy. The mouse exists in Douglas County precisely because we have large amounts of high quality habitat. Under current guidelines proposed in the draft 4(d) rule; however, the ratio of 10 to 1 for preservation actually provides a disincentive to preserve this occupied habitat and an incentive to try to restore or enhance more "marginal area." Douglas County is in the position of having an enormous amount of high quality habitat with a lot of mice. We have very little habitat that can be enhanced, restored or created. There is no scientific evidence addressing the success of enhancing, restoring or creating habitat for the mouse. Rather than imposing onerous and arbitrary preservation ratios that will yield questionable benefits, common sense tells us that removing threats to and preserving high quality habitat is the best strategy for ensuring the long-term viability of the mouse.

Because Douglas County has so much good habitat and so many mice, it seems common-sensical that the stewardship practices employed by the County and its residents are consistent with preserving the mouse. If we can keep ranchers on the land, continue our good land planning practices and preserve open space, Douglas County will preserve the mouse. It is a shame that we have to spend so much time and money simply to put those ongoing practices into a language that the Federal government understands.

Another common sense issue has to do with the wisdom of protecting subspecies of otherwise abundant species. We have recently become aware of another species of concern in our area. We have been informed by a biological expert that while the species itself is quite prevalent, populations is often become isolated by natural boundaries. Once isolated they cannot breed. In our situation, we end up with what may be one subspecies on the north side of a creek and a separate subspecies on the south side. I question whether we should be protecting each and every subpopulation of these kinds of animals.

In closing, we are concerned by the time it takes to develop, negotiate and get approval for HCPs. We are concerned by the unfunded cost burden the Act places on local communities and individuals. And, finally, we believe the ESA does not take into consideration on-the-ground, common sense approaches to species conservation.