My name is Maureen Frisch. I am honored to have the opportunity to testify on Habitat Conservation Plans.
I am vice president of public affairs for Simpson Investment Company, which is headquartered in Seattle, Washington. Simpson Investment Company is the holding company for Simpson Timber Company. We are a privately held company, owned and managed by the same family for almost 110 years. We own approximately 870,000 acres of timberland in California, Oregon and Washington and operate several wood processing facilities in California and Washington. Simpson was the first private landowner to obtain a Habitat Conservation Plan for the Northern Spotted Owl, and, we have just recently submitted a draft HCP and Implementation Agreement covering primarily aquatic species on 261,000 acres of our timberland in Washington State. This draft HCP, when approved, will also serve as a draft TMDL for our lands, thus bridging, for the first time in an individual HCP, the Endangered Species Act and the Clean Water Act. We are also working on a multi-species plan, once again with great focus on aquatic species, covering our California lands.
I am testifying today on behalf of Simpson, the Foundation for Habitat Conservation, headquartered in Seattle, and a similar organization -- The Coalition for Habitat Conservation -- located in Laguna Hills, California.
I am pleased to appear before the Committee today to discuss Habitat Conservation Plans and the opportunities and challenges these plans face. The entities I am representing today strongly support viable voluntary habitat conservation planning under the Endangered Species Act (ESA). HCPs are the primary mechanism through which private landowners can effectively and legally address listed species residing on their lands, to both preserve those species and their habitat, by crafting management approaches that strike a balance between species and habitat protection and maintaining a viable business entity. HCPs are an increasingly important conservation tool, with more than 240 such plans in place around the country, protecting more than 400 species on 18 million acres of land. However, I must stress that HCPs will remain viable only if they are allowed to provide reasonable certainty at a reasonable cost, blending both scientific credibility and business sensibility.
The Foundation for Habitat Conservation
The Foundation for Habitat Conservation (www.habcon.org) is a not-for-profit (501(c)(6)) organization formed in April of 1998. The Foundation supports Habitat Conservation Plans and related voluntary private conservation efforts through research, education and communication. Membership is open to holders of HCPs, scientists and consultants who work on HCPs, and other interested parties who support HCPs.
The Foundation's purpose is to "research, communicate, and support the workings, role, and benefits of habitat conservation plans and related, incentive-based private conservation initiatives." The Foundation has participated in a number of forums discussing HCPs and ways to improve them. The Foundation has recently produced a Habitat Conservation Plan Resource Guide, which was distributed to the Committee at a hearing held in July of this year. This resource guide recaps 18 HCPs around the country, covering deserts, cities, forests and ocean dunes. Some of these plans protect a single animal species while others cover hundreds of species of wildlife and plants.
The Foundation's members include a number of landowners that either hold HCPs, are developing HCPs, or both. At present, the members of the Foundation have over 820,000 acres of land managed under HCPs in three states, and have HCPs in final stages of development on over 2 million additional acres in a total of seven states. Foundation members own timberland and focus mainly on forestry HCPs, while the Coalition for Habitat Conservation includes large land developers who develop property covered by current and proposed regional HCPs.
The Coalition for Habitat Conservation
The Coalition for Habitat Conservation is a group of Southern California property owners and public utilities that together own more than 300,000 acres of land in Orange, Riverside and San Diego counties. It was formed in 1991 as a 501(c)(6) corporation to pursue the mutual interests of its members in finding solutions to endangered species issues that are sound environmentally and economically.
The Coalition has supported California's Natural Communities Conservation Planning Act as a vehicle to create large-scale HCPs that protect multiple species, and has promoted these plans in forums throughout the region. Coalition members have participated in several HCPs that involved the creation of habitat preserve systems totaling more than 210,000 acres in Southern California, and are currently participating in the development of plans that will cover significant additional acres. A signature of these plans is that, while landowners make large contributions of private lands to the HCPs, others are able to participate as well. In the case of the Orange County Central & Coastal Natural Communities Conservation Plan, for example, a private landowner contributed 21,000 acres and 17,000 acres were contributed by a transportation authority and state and local jurisdictions. All of these public and private entities are dedicated to the success of the plan.
HCPs Foster Voluntary, Private Contribution to Species
HCPs facilitate voluntary contributions to species by many private landowners. In every region of our country, significant populations of threatened and endangered species are found on privately owned lands. Section 10 of the Endangered Species Act is the only mechanism currently available that gives incentives, primarily in the form of regulatory certainty, to the private sector to voluntarily provide extensive land and resources to protect threatened and endangered species. Without the ESA-related certainty that the government can offer a private landowner through the HCP program, few if any landowners could afford or justify making the kinds of commitments that have and are being made in the context of HCPs.
Before proceeding, I would like to emphasize that we know there are many talented, dedicated and highly professional people working at the state and federal level to effectively implement the Endangered Species Act and all of the complexities associated with the Act. We know this because we have worked with many of them over the past several years. Making your way through the HCP process is extremely challenging for the regulator and the regulated. As a private landowner, we simply ask that we keep our focus on finding a balance one that reflects not only the very real need to protect species and their habitat but one that also enables private landowners to maintain viable businesses. Science and common sense both have an important role to play in this process.
I would also like to acknowledge earlier testimony to this committee and the House by Steve Quarles who represented the American Forest & Paper Association and Jim Johnston, of the Perkins Coie law firm in Seattle, who testified before the House Committee on Resources earlier this year on behalf of the Foundation and Coalition. My testimony incorporates many of the points each made, while also emphasizing some outstanding successes associated with the HCP program.
Multi-species HCPs and Single-species HCPs are Viable Options for Landowners.
Many current landowners, including Simpson, are working on multi-species plans. Such plans are a particularly valuable part of the HCP program, as they are most likely to focus management or development of property from the broadest possible fish and wildlife habitat perspective. And, by covering unlisted species, they provide certainty to long-term land managers that financial and conservation investments made today are likely to result in meaningful returns tomorrow.
From the perspective of fish and wildlife, multi-species plans also provide tangible benefits to species that are not yet listed and for which no regulatory or "take" restriction exists. I don't want to infer, though, that single or limited species plans are not viable. These plans must also remain an option for landowners. They are equally appropriate in some settings either because of landscape-specific circumstances, landowner and agency priorities or simple landowner preference.
Adaptive Management is a Critical Component of Many HCPs
Many current and proposed HCPs include an Adaptive Management component. Adaptive management provisions are appropriate and critical elements of many long-term HCPs. Adaptive management -- referred to also as "learning by doing" -- can result in more efficient and effective management techniques. Adaptive management applies the concept of experimentation to the design and implementation of natural resource and environmental policies. As such, adaptive management can provide a reliable means to assess and evaluate the HCP's mitigation measures, improve ecological knowledge, and develop appropriate modifications in planning elements. This can result in the HCP performing more effectively as we learn more -- by improving results without increasing burdens on the HCP holder beyond that incorporated into the adaptive management provisions established during development of the HCP.
Of course, adaptive management must be based on something measurable. These measurables include research and monitoring, setting thresholds for triggering corrective action, analyzing causative actions and modifying the plan's management and mitigation elements. In other words, setting the framework for continued acquisition of data and plan modification, based on credible science and documentation.
Some of the best applied science being done today is in the context of HCPs. However, it is important to recognize that HCPs are more than scientific documents. They are also management and business plans. Science should play an important role in formulating an HCP, but ultimately the plan must balance the minimization of impacts to habitat with the notion of practicability. With adaptive management as an important component of many HCPs, the ability to monitor what is happening, conduct further research, and learn and make necessary changes as we implement the provisions of the HCP are designed into the plan.
I would now like to point out just a few of the successes we are experiencing and by doing so, attempt to highlight what has worked, while recognizing that the HCP program faces some very real challenges.
The Washington State Forests and Fish Report
Since I am from the other Washington, I feel compelled to mention a recently crafted statewide conservation agreement specifically designed to address the Endangered Species Act and Clean Water Act. Many of the members of the industry and Foundation in Washington State have been active participants in the development of a collaborative state-private-federal-tribal effort to establish a new regulatory template in the state.
Anticipating the listing of Chinook salmon and other aquatic species, and having had an "up close and personal" experience several years ago with the Northern Spotted Owl, the state's forest products industry began planning in 1996 for a new round of what we call in the state, Timber, Fish & Wildlife negotiations. The Timber, Fish & Wildlife process is a negotiating forum through which key stakeholders come to the table to frame issues and try to reach consensus on regulatory changes needed to address the protection of public resources such as fish, wildlife, water quality, and capital improvements. Months of discussions and use of the most current research available led to what has now become known as the "Forests & Fish Report," an agreed upon direction for future management of riparian and aquatic resources. This Report was the basis for legislation that was approved by the Washington Legislature this year and has been signed into law by the Governor. The Report is now being considered in the state and federal regulatory process; first as an emergency forest practices rule package, then as a permanent forest practices rule package, then as a federal 4(d) rule and finally, we all hope, as a Habitat Conservation Plan.
Under the Forests and Fish Report, owners of 8 million acres of forestland have committed to a substantively improved set of forest practices for all of the state's non-federal forest landowners. Also included in the Report is an agreed to adaptive management program that will have a detailed process to ensure continuous improvement of forest practices as science dictates. Over 2 billion dollars of timber and tree growing capacity is being set aside to provide effective streamside buffers and habitat protection to ensure cool, clear water for fish and other aquatic species. The Report, in recognition of these timber values, calls for a limited tax credit to landowners for trees left standing in these riparian zones.
This significant and voluntary commitment would not have been possible if not for the ability and willingness of the National Marine Fisheries Service (NMFS) and U.S. Fish & Wildlife Service (FWS) to offer long-term certainty to landowners regarding fish and six stream-breeding amphibians that are or might become listed under the ESA. The extensive and long-lasting benefits of such a program cannot be seriously questioned. It is also difficult to imagine what other mechanism could enable the government to secure an agreement covering 8 million acres of land under what will be very effective conservation measures and an adaptive management program to guide changes as necessary.
Washington's Forests and Fish Report: Focus on Small Landowners
The Report also recognizes the difficulty small, non-industrial landowners have in meeting the stringent requirements of the Endangered Species Act. A special compensation element was included in the legislation to compensate small landowners for lands restricted due to impacts on their lands associated with the Forests & Fish Report. Under the Forests & Fish Report, a Small Forest Landowner Office, whose work will be funded by state funds, will be created within the Washington State Department of Natural Resources. This feature of the Report calls for applying the same riparian and related buffers to small landowners as applied to all other forest landowners, but provides partial compensation to those small landowners that volunteer to enter into easements covering riparian areas. This program is intended to help maintain the viability of non-industrial forest landowners and to provide an incentive to keep the small landowners' forestland base in forestry.
The Small Forest Landowner Office will serve as a resource and focal point for small landowner concerns and policies. It will also administer the Forest Riparian Easement program, through which small landowners will be compensated for lost forest values attributed to restrictions imposed as part of the Forests & Fish Report. In addition, the office will recommend rules pertaining to the valuation of easements for small landowner compensation purposes; contract with qualified consultants to appraise the timber as needed to implement the easement program, and make technical guidance available to small landowners.
This small landowner feature was critical in winning support from many such landowners in the state. The Report's success is a tribute to the dedicated efforts of private industry, both small and large, and state, local, federal and tribal governments, working cooperatively to address the habitat of threatened fish species in the Pacific Northwest.
The Simpson Timber Company Experience
I would not be a loyal employee of Simpson Timber Company if I didn't take this opportunity to mention my company's involvement in the HCP process. Our successes with our governmental partners, as well as some frustrations with those same partners, point to what is working and to areas that need some attention.
A good measure of the value of HCPs is to compare results under them with results in their absence. Under the "no take" rules, for example, circles around owl or gnatcatcher nests are protected, but landowners are left to harvest or develop other areas, thus effectively preventing the development of new habitat over time. The "take" prohibition creates a powerful disincentive, we believe, to ever allow non-habitat to grow into habitat. However, under the Simpson Timber Company HCP in Northern California for the Northern Spotted Owl, for example, some incidental take is allowed but the HCP is devised to allow habitat to grow and increase over our ownership over time, because the HCP removed the "no take" disincentive. Owls have prospered on our ownership and owl habitat is and will continue to increase significantly over the life of the HCP. Our Northern Spotted Owl HCP was signed in 1992, and we have submitted our sixth annual report to the U.S. Fish & Wildlife Service, as required under the terms of the agreement. To date, we have banded almost 1100 owls on or near our primarily second-growth forests in Humboldt and Del Norte Counties in Northern California. The owl seems to be doing just fine thank you in forests in which the early science told us they could not survive. And, we have been able to carry out a successful timber operation that provides hundreds of jobs in the rural communities of California's north coast.
Beyond the extensive research we conducted on our own lands to prepare for the Northern Spotted Owl HCP process and the outstanding work of many of our employees, we benefited from the strong and focused commitment of U.S. Fish & Wildlife managers in the region and in Washington DC. Strong agency leadership -- a desire to just get it done -- made a big difference to this process in the early 90s.
This same committed leadership has also made a big difference to us over the past few years in Washington State. As I mentioned earlier, we have just submitted a "final" draft Habitat Conservation Plan and Implementation Agreement for a multi-species aquatic plan covering 261,000 acres of our ownership in Washington. Once again, we spent a tremendous amount of time learning all we could about our lands, classifying all stream channels on our properties. This is a highly prescriptive conservation management approach which we are certain will improve water quality and fish habitat over the life of the plan. This effort reflects a highly collaborative effort with three federal agencies, the National Marine Fisheries Service, the U.S. Fish & Wildlife Service and the Environmental Protection Agency, and state agencies, tribal interests and the public.
This proposed HCP, if approved, will be the fist to bridge the Endangered Species Act and the Clean Water Act. The HCP will also serve as a draft Total Maximum Daily Load (TMDL) for the area covered by the HCP. I don't want to infer that this was an easy process or one without frustrations. It is also one that took four years much longer than we thought it would take when we started, but then all such complex negotiations take more time than we initially anticipate, and it involved significant costs. We'll now focus on the public comment period. If all goes well, and we believe it will, we hope to have a signed agreement early next year. With ongoing and hoped for successes in the HCP arena, Simpson has also experienced some troubling challenges with the program, particularly in California over the past few years. Over five years ago, we began the process of developing another Habitat Conservation Plan covering aquatic species on our California forestlands. We began as we always have when we address key conservation and management matters; we made sure we knew more about out land and its habitat conditions than anyone else. We did this so that we could craft riparian management activities that would address specific potential impacts associated with our forestry operations, while providing necessary protections for listed species and their habitat.
I think the issues we have experienced are representative of what others have experienced and they are illustrative of why some landowners have grown weary of the process. I must point out, though, that we haven't given up on the HCP program in California, we are working hard to reinvigorate the process and to work with the Services in the state to re-focus our efforts.
The delays and program challenges we have experienced in California can be covered under broader HCP processing and program management activities and key policy matters. We believe they can all be addressed to improve the overall HCP program.
Opportunities and Challenges Ahead: Issues and Possible Solutions
A number of forest products industry executives have met with Secretary Babbitt over the past several months to discuss the HCP program to make numerous suggestions on how it can be improved. We raised many of the points during these meetings that I am going to share with the Committee today, along with some possible solutions. I think these points are particularly valid coming from those who have successfully negotiated HCPs, see many areas where processing and policy can be improved, yet remain committed to the program.
I would first like to recognize Secretary Babbitt's dedication and commitment to the HCP program. We appreciate his leadership in this area and we are committed to continue working with him, other federal agencies, state agencies and Congress to maintain and enhance the program.
Before meeting with Secretary Babbitt we spent quite a bit of time considering what it was that enabled such successes under the program and what needs to occur to maintain a viable and effective HCP program in the future. We saw many early successes in the program, but had been dismayed over the past few years at a lack of progress, particularly in Northern California and the Pacific Northwest regions. In fact, other than the HCP approved for Pacific Lumber Company, under what we believe were extraordinary pressures and incentives, the last HCP signed in the Pacific Northwest was the Plum Creek Timber Company HCP in June of 1996.
We now, of course, are seeing some progress in this arena, including the historic Forests & Fish Agreement and recently proposed HCPs by Simpson and Crown Pacific. But there has been a lapse, with some landowners becoming frustrated with the entire HCP program. That frustration is precisely why the group I described came together to meet with Secretary Babbitt. We believe those meetings were helpful in some cases and that the Secretary's strong and continuing commitment to the program is critical.
The areas we focused on with Secretary Babbitt included HCP program management and policy concerns covering a number of areas: HCP negotiating and processing delays, the imposition of excessive demands and extraordinary obligations on the landowner, a diminishing role for science in the process, efforts to impose a "one size fits all" approach to the process, and the loss of certainty, which is critical to the success of the overall program. As we told Secretary Babbitt, and I am here to reiterate today, we think all of these program challenges can be addressed and we are committed to working cooperatively to find solutions.
HCP Policy Concerns
Attacks on the "No Surprises" Policy Erodes Certainty: The No Surprises Rule is the heart of the HCP program for private landowners. It represents the primary guarantee of the minimal certainty essential for voluntary conservation planning by a landowner. It also represents certainty on the part of the wildlife agencies that the plans have a sound design, and are, in effect, low-risk propositions. Yet, the No Surprises Rule is under heavy attack. Interest group and legal challenges have sought to erode its strength. Without a reasonable No Surprises Rule, voluntary HCP commitments will cease, and the effective species protections afforded by large-scale HCPs will end.
A possible solution: Both the Coalition and Foundation believe that Congress should codify No Surprises; it is the most important element to ensure the program's success.
Section 7 Consultation Reduces Certainty: Other than an adverse outcome in the current lawsuit challenging the No Surprise Rule, Section 7 of the ESA currently poses the biggest single risk to the continued viability of the HCP program. Section 7(a)(2) requires that all federal agencies "consult" with NMFS or FWS, as appropriate, prior to issuing a permit or funding an activity whenever the agency believes that such action "may adversely affect" a listed species. The agencies see Section 7 consultation as applying to their issuance of an incidental take permit when the HCP is approved. Accordingly, the agencies "consult" with themselves before approving an HCP. Finally, the strictures of Section 7(d), and the risks presented by citizen suits associated with 7(d), add yet another "hurdle" to be overcome by HCP applicants. The purpose of consultation is to determine whether the proposed agency action "is not likely to jeopardize" the continued existence of any listed species or result in the adverse modification of critical habitat. As covered in NMFS/FWS regulations, if the determination is "no", then the agency action can proceed. If the determination is "yes", then the consulted agency must propose reasonable and prudent alternative measures that would mitigate the likely jeopardy. In developing an HCP, the applicant and agencies are engaged in the focused consideration of how to minimize and mitigate the impacts on the species to the maximum extent practicable. If an activity is found to pose jeopardy to the species, it will not meet the test under the HCP standard of ESA Section 10.
A possible solution: If the consultation concept is believed to "add value" to the HCP process, we believe that it should be incorporated into the Section 10 HCP development and evaluative processes and eliminated as a separate step in the process. HCP Process Management Issues
Process management concerns cover many areas, all of which have the potential to add significant time delays and costs to the process. Need for strong agency lead to manage the HCP process: Successful HCPs have a common element: a "can do" attitude, combined with strong inter-agency cooperation facilitated through a strong agency lead who served as the focal point for agency decision making and policy guidance. This becomes increasingly important as the HCP program comes under orchestrated pressure from various groups intent on undermining the program. A strong team lead can keep the momentum going and serve as a buffer between field staff and external groups pressing for restrictions and oversight beyond the appropriate scope of the HCP.
A possible solution: Reinforce the government's strong commitment to the HCP program as embodied in the joint directive the Secretaries of Interior and Commerce issued to their agencies earlier this year.
Absence of process deadlines: An open-ended process, without clear timetables for activities and decisions can drift in what often feels like an endless pattern of delay. Without specific deadlines, the ordinary incentive for parties to reach agreement is reduced.
A possible solution: Require the agency, in concert with the HCP applicant, to develop, during the initial stages of the process, a timeline for the process that includes key milestone dates and specific process deliverables. Updates to this timeline should be provided to agency heads and the HCP applicant on a regular basis, with discussions held to address processing concerns if and when they arise.
Inability to reach closure on key issues: In some cases, the agency and the applicant cannot reach closure on key issues, with no definitive plan or schedule to resolve the issues and no clear statements by the agency on what information they need, what kinds of mitigation measures they are seeking or why those measures are actually needed. What are we trying to fix, why and how?
A possible solution: Require agencies to provide, in writing, reasonable alternatives to outstanding issues in the negotiating process.
Reopening of agreed upon issues: Matters definitively resolved or agreed upon are reopened later, long after landowners have evaluated and made internal trade-offs that permitted them to reach the agreement in the first place.
A possible solution: Declare, once again in writing, closure on specific issues and define what extraordinary circumstances, if any, could reopen the issue for further discussion.
Concerns about shifting agency staffing: For some applicants, agency HCP staff have been reassigned, causing delays through staff shortages at key times, resulting in lost time and increased expenses due to transition. In some cases, the new staff have different perspectives and attempt to change prior commitments or the agreed upon "architecture" of the plan.
A possible solution: Some personnel changes are inevitable, of course, however, issues already closed and timelines and deliverables agreed to, should not change. Written confirmation of closed issues and reports on progress to agency heads could be helpful in keeping everyone on track.
Need for more effective agency coordination: Another tremendous challenge has to do with the fact that we must deal with multiple agencies, sometimes with conflicting standards and often with duplication of effort. With the listing of anadramous fish (salmon, for example, fish that spawn in freshwater but live part of their lives in saltwater), many of us who have been involved in the HCP program are now working with an additional agency, the National Marine Fisheries Service. If you are working on a multi-species plan that includes species that fall under the jurisdictions of both the National Marine Fisheries Service and the U.S. Fish & Wildlife Service, you must deal, of course, with both agencies. Add to this the desire to try to simultaneously address water quality issues, such as the TMDL program, and you add yet another federal agency, the Environmental Protection Agency, into the mix. Landowners are often required to deal with the agencies on a piecemeal basis on some issues, often resulting in having to go back and forth between the agencies to address the same or quite similar issues. At times, conflicting interpretations of policy may arise from different agencies. This results in additional delays, increased costs, duplication of effort, and frustration. It is also important to note that the issue of coordination is compounded where the landowner is pursuing a parallel state process and/or must also work with various state agencies with oversight responsibility concerning listed species. Recent proposed rules by EPA highlight this multi-agency problem. Under the proposed rules, an HCP holder that has negotiated and agreed to a package of commitments protecting aquatic resources could subsequently be required to "start over" again with yet another agency EPA through implementation of an independent TMDL effort and "activity-by-activity" permitting under the Clean Water Act. Occurring independent of and without coordination with the more holistic, landscape level approach to aquatic resources management that is facilitated by the HCP process, this type of proposal has a similar impact on landowner uncertainty as the loss of No Surprises.
A possible solution: Explore approaches to identify a single lead agency on ESA matters, with involvement, of course, from other agencies with needed experience end expertise concerning the species listed or environmental compliance issue being addressed.
All of these process management issues have the potential to add significant costs to the HCP process, not only for the HCP applicant, but also for the government, and therefore, the public. It is in everyone's interest the public, the landowner, the government, the resource and the species to make sure the HCP program remains viable and effective. I would now like to turn to some concerns about the role of science in the process and our belief that Habitat Conservation Plans must reflect the habitat conditions, potential operational impacts and conservation and management objectives of the landowner. These issues are reflected in concerns about the diminishing role of science in the process and attempts to impose extraordinary obligations on a landowner. Diminishing role of science: There is growing concern that the important role of science in determining conservation measures is being replaced with a "one-size-fits-all" or a "comparative" approach. HCPs are voluntary and individual to each applicant. To some extent, it appears that agency personnel seek to apply measures from one HCP to another. While consistency in policy matters is a laudable goal, plans must be tailored to the particular landscape, past management practices, and landowner involved. A good example of this is that some landowners are experiencing demands for wide, fixed-width buffers with little regard to what scientific data and on-the-ground research shows is reasonably sufficient. In other cases, an effort has been made to take what one landowner agreed to in one situation and make it the "baseline" for another -- without regard to what the resource conditions appear to be. Simpson has run into this troubling approach in Northern California, as we encounter regulators at both the state and regional office level who have tried to overlay certain provisions of the Pacific Lumber Company HCP on our management activities, regardless of the conditions on our lands. We feel strongly that HCPs must reflect each landowner's unique habitat and water quality conditions, resource management objectives and the need to mitigate specific impacts associated with the landowner's management activities. In other words: How will the landowner's management activities impact the listed species and what must the landowner do to effectively address those impacts? We understand how challenging the ESA arena can be and the pressure agency staff face in the HCP process; it's challenging for all of us. However, "one-size-fits-all" is an easy way out if you are doing the regulating, but it can be an excessive, unnecessary and costly imposition for a private landowner that is willing to participate in the HCP process, but unwilling and unable to accept matrix-like fixes that don't address real impacts.
Multi-species HCPs appears to be diminishing: Landowners are often required to provide such extensive amounts of species-specific data that multi-species plans are becoming less feasible. For some applicants, dropping species out of the HCP becomes the only viable option. This negates the ability of landowners to develop landscape approaches to conservation planning and narrows the focus of the plans. This discourages habitat-based plans for a broad range of species. Requiring landowners to accept extraordinary obligations: The mitigation burden imposed on each landowner in the HCP permit process is intended to be entirely dependent upon the impacts caused by the landowner's future activities and to be proportional to those impacts. Requiring landowners to assume responsibility for and agree to correct landscape conditions not caused by the applicant or to develop "ideal" or "properly functioning habitat" conditions on their ownership, regardless of the extent of the impacts on the species, often results in the imposition of an enormous burden on some applicants and adds significant costs to the HCP.
We believe that HCPs offer the most constructive way for private parties to contribute to the ultimate goal of recovery, while meeting their requirements to mitigate impacts to the species on their lands. We do this, of course, for the privilege of obtaining an incidental take permit. While recovery is the government's responsibility, care must be taken not to let that overall governmental goal become translated into the standard for HCP approval. I do want to stress, though, that many HCP holders and applicants willingly exceed current regulatory requirements. We do so to secure some type of negotiated element of the plan and to gain greater regulatory certainty. I believe all of these plans will, over time, result in improved habitat conditions over the landscape and make a positive contribution to the species and the resource.
Supporting a Viable HCP Program into the Future
To support a viable and effective HCP Program into the future, I would like to be briefly recap some potential solutions to program challenges:
Require agencies to commit to specific timetables for key HCP processing deliverables. Progress, processing concerns and an action plan to address deficiencies should be routinely reported to both agency leadership and the HCP applicant
Require agencies to provide written examples of what the agency would consider to be reasonable alternatives to specific issues in the applicant's plan that need to be addressed.
Make "No Surprises" the law.
Fix the Section 7 consultation issue. Either Section 7(d) should not be applicable to HCPs or consultation for HCPs should be streamlined and incorporated into Section 10 of the ESA.
Bolster support for multi-species plans. We commend Secretaries Babbitt and Daley, along with leadership in the agencies, for their support of such plans.
Minimize conflicts created by overlapping jurisdictions (including the Clean Water Act TMDL process and individual activity-by-activity permitting process).
Keep the focus on science in listing, recovery, de-listing and HCP development activities.
Make sure HCPs are affordable and can be completed in a timely manner.
Find creative, workable approaches to address small landowner interests. (Perhaps the Washington Forests & Fish Report's small landowner focus could provide some helpful insight. Copy provided to staff.) Mr. Chairman, both the Foundation and Coalition are working on solutions to these issues and stand ready to assist you in whatever manner we can. Thank you for the opportunity to testify.