As you have heard from Michael O'Connell of our California office in July of this year, The Nature Conservancy has been involved in conservation planning under the Endangered Species Act (ESA) since Section 10(a) was authorized in 1982. We have played a major role in a number of HCP processes, including in Coachella Valley, California; Balcones Canyonlands in Texas, the Natural Community Conservation Planning Program in Southern California and the Clark County, Nevada example which I will address today. I would like to emphasize that this testimony reflects my experience with the development and implementation of the HCP case study in the Las Vegas area and does not necessarily reflect the views or opinions of The Nature Conservancy as an organization towards the larger question of the values or shortcomings of HCPs in general. I believe Michael O'Connell did a more than adequate job of discussing the scientific merits of current HCP policy.
A Brief History:
In the late 1980's the economy of southern Nevada was booming, with an average of between 5 and 6 thousand people moving into the Las Vegas Valley every month. In August of 1989, the Mojave population of the desert tortoise was listed by emergency rule as endangered and by final rule as a threatened species in April of 1990. Under Section 9 of the 1973 Endangered Species Act (ESA) no take of the desert tortoise or its habitat could occur on private lands. Much of the private land in the Las Vegas Valley was, and is to this day, desert tortoise habitat. The surging Las Vegas economic train threatened to derail over an innocuous herbivorous reptile on the tracks. Numerous construction plans and commitments for large-scale projects such as school construction, flood control projects, and master-planned communities were delayed awaiting the outcome of court cases and appeals of the emergency listing.
It was in this atmosphere of conflict that a little known provision of the ESA was brought into play: the Section 1 0(a) allowance for both scientific take and incidental take permits could be used by qualified private landowners who adequately mitigated for the allowed take during the course of otherwise lawful activities, such as land disturbance associated with construction projects. A potential solution was set in motion.
The Nature Conservancy had recently participated in a similar situation in the Coachella Valley outside of Palm Springs, California with the Fringe-toed lizard in the midst of that rapidly developing resort area. The Conservancy assisted state and federal agencies and private landowners to create and implement a successful conservation program under the auspices of the Section 1 0(a)1 (B) amendment of the ESA -- more commonly referred to as an incidental take permit accompanied by a Habitat Conservation Plan (HCP). Following this example, Clark County, Nevada took the lead on resolving the desert tortoise listing conflict and enlisted the aid of The Nature Conservancy to provide recommendations and environmental/scientific input into the development of an HCP to solve the needs of private landowners in the Las Vegas Valley. It was at this time that I was hired as the Desert Tortoise HCP Coordinator for the Conservancy.
The first order of business was to assemble a Steering Committee of affected parties - stakeholders representing a diverse array of land uses and landowner issues in desert tortoise habitat. Livestock ranchers, miners, off-road vehicle enthusiasts, hunters, desert tortoise interest groups, and national environmental groups, together with private property owners, representatives from four cities, and both state and federal land and wildlife management agencies convened for some tension-filled initial meetings. Land use rhetoric and entrenched positions abounded on all sides while the group sought a common direction. This seemingly impossible task fell on the skilled facilitator Paul Seizer, also involved in the Coachella Valley HCP, to set the legal sideboards and mold this dynamic group into a coordinated, constructively engaged, body. Without a strong, personable facilitator the process would have undoubtedly strayed and disintegrated.
The uncertainties inherent in embarking on this relatively new provision of the ESA attracted much scrutiny from environmental activist groups who wished to insure that a low standard was not set by this HCP. The projected lengthy timeframe required to develop a habitat conservation plan for a 20 or 30 year period led the group to submit an application for a short-term, three-year HCP. During this time a long-term HCP would be developed using lessons learned from the short-term experience.
The shorter timeframe of the 3-year HCP also provided the more skeptical environmental groups with some assurances that take would be very restricted. Only a certain number of acres (22,352) of desert tortoise habitat and a limited number of tortoises (3,710) could be disturbed during the course of otherwise lawful activities under the three year permit. In exchange for this limited take, mitigation would occur on public lands where the majority of the best examples of viable and protectable tortoise habitat remained, at a ratio of roughly 20:1 for conserved habitat acreage to disturbed habitat. A ratio of 20:1 was an astounding achievement for what amounted to an experiment in building local government, state and federal agency partnerships in order to resolve a private property issue in the still-wild West.
Some of the more notable accomplishments of the Short-term HCP were: the purchase and retirement of five livestock grazing permits from willing-seller ranchers that encompassed over a million acres of public lands; the transfer of competitive off-highway vehicle racing out of priority conservation areas and into areas less ecologically sensitive; the designation of roads throughout the conservation area as open or closed to reduce fragmentation of desert tortoise habitat and the likelihood of vehicle-caused tortoise mortality; the initiation of a tortoise relocation program to place tortoises removed from developing lands back into previously tortoise-depleted areas of the Mojave Desert; the creation of an innovative public information campaign; the hiring of extra law enforcement rangers for the Bureau of Land Management; the reliable funding of public lands management activities for the benefit of the desert tortoise; and the initiation of a highway fencing program to prevent further roadkills of tortoises in conservation areas bisected by heavily traveled highways.
One by-product of the sometimes tedious meetings during the development and implementation of the Short-term HCP was the development of trust among the diverse stakeholder representatives. While very few converts were made from one side to the other, our positions were well understood and respected. Subsequent discussions and consensus-based decisions became less contentious and more productive since we knew each other's bottom lines. This burgeoning trust among the participants led to a much more productive process of developing the Long-term HCP now known as the Clark County Desert Conservation Plan which is currently the largest Section 10 permitted conservation plan in the country. This plan addresses the human land uses, land ownership and conservation needs of the desert tortoise across roughly 5.6 million acres of mostly public land.
The successful transition from Short-term to Long-term in the mid-1990's caused some key stakeholders, such as the Southern Nevada Home Builders and the Clark County government to ask "what might be next on the horizon, in terms of future listings, and, what could we do to head those off now?" The answer to those questions has been a now four-year long process of developing the Multiple Species Habitat Conservation Plan (MSHCP). In addition to the desert tortoise provisions contained in the Desert Conservation Plan, this ambitious program is seeking Section 10 coverage for an additional listed bird species and Candidate Conservation Agreements with Assurances for another 77 species which could conceivably become listed if current habitat impacts remained unabated throughout the County. Many uncertainties exist for those additional species and the MSHCP proposes to integrate a strong adaptive management component into its conservation management recommendations. But, under this plan, conservation benchmarks are few. Take, however, is certain and the habitat conversion final. Much of this plan relies heavily on trust that the monitoring program will be sensitive enough to detect when management assumptions go awry for one or more of the covered species. The appetite of landowners, particularly the more politically powerful ones, for future adaptations of the conservation management provisions and mitigation measures is as yet untested. How flexible they will be should the regulatory environment change in response to unforeseen circumstances that adversely affect the covered species remains to be seen.
The jury is still out on this Multiple Species Plan as to whether it will pass the "environmental smell test" - that is, will the permit-covered species be better off under the provisions of this plan than they would be in the absence of such a coordinated and well-funded program? Time alone will have to tell us whether we've done an adequate job of integrating what we know now about the species and their habitat and whether we have built in enough flexibility to incorporate what we will undoubtedly learn about the complex interrelationships of the species. The pressures of development continue to this day with little slowdown in the rate of new residents moving into the Las Vegas Valley and surrounding communities. Habitat continues to fall under the bulldozer for new master- planned communities and hastily constructed schools to accommodate the incredible influx of the human population. But this construction is also the funding mechanism for an extraordinarily proactive conservation plan in one of the fastest growing communities in the United States.
Thank you for the opportunity to present this successful case study to the Committee. I look forward to a thought provoking and challenging discussion.
Clark County-specific Lessons Learned:
-- The Clark County Desert Tortoise HOP is ranked as the premier example of public participation in terms of crafting the terms and conditions of the conservation mitigation. While the time required to develop the Short-term and Long-term plans was relatively time consuming (2 and 5 years respectively), the resistance to the proposed mitigation measures was effectively defused by the large amount of public input throughout the process.
-- One can either invest in the time during the process to avoid conflicts and public backlash, or pay the price afterwards when the plan comes under fire and the process is set back several more years trying to repair damaged public relations.
-- A well designed and well-informed Recovery Plan can set the parameters (sideboards) within which an HOP can be tailored to fit the particular needs of the affected landowner(s) or local government, allowing the requisite flexibility, while insuring basic ecological standards are retained throughout the process.
-- A skilled and apparently neutral party should be retained to facilitate the larger, more complex HCPs - trust is everything in keeping parties at the table, but equally important is maintaining the "balance of terror" among the stakeholders (Reilly, 1997).
-- Service participation during the course of crafting HCPs has been inconsistent from plan to plan, and even within plans. This has led to apparently contradictory decisions as to the adequacy of mitigation measures, and breeds distrust among HCP participants. No applicant should be surprised at the time of submission of a 1O(a) permit application and accompanying HCP. If the Service has done its job the applicant(s) will know what will be required to meet the Service's approval. This can also be accomplished without direct participation in the meetings as long as the overarching conservation requirements are explicit and unambiguous in the Recovery Plan for the listed species.
-- For a species such as the Mojave desert tortoise where nearly 90% of its habitat exists on federally managed public lands, it is important that the federal government play an equitable role in conserving its habitat. Private landowners should not shoulder the "burden" of conservation while critical habitat on public lands continue to be degraded through unimpeded multiple uses such as mining, livestock grazing, off-highway vehicle recreation, power and utility corridors and road construction.
-- Section 7 of the ESA and Section 10 should play parallel and complimentary roles in achieving recovery of the listed species or prevention of further population and habitat declines for candidate species.
-- Early buy-in and shepherding of other interests by the key stakeholder, Southern Nevada Home Builders, was probably integral to the success of acceptance of the mitigation terms in the Short-term HCP.
-- The rapid growth in the Las Vegas Valley in the late 80's and early 90's provided not only the pressure for developing and maintaining a successful HCP, but also provided the crucial funding stream through impact fees charged for every acre of land that was developed during that period. Not all communities and local governments have the ironic "luxury" of such an economic boon to drive the process.
-- The health of the southern Nevada economy, coupled with habitat conservation occurring on public instead of private lands, allowed for a good mix of responsibilities between the private and federal entities to mitigate for the regulated take of the desert tortoise.
-- Benchmarks of mitigation and conservation for the listed species in an HCP insure that "take" of the species and its habitat remains commensurate with on-the-ground conservation of critical habitat. After all, take is usually permanent and irreversible, whereas mitigation and conserved habitat can always be further eroded over time through gradual policy concessions, allowed uses of the land, and through unforeseen and uncontrollable stochastic events (natural disasters, disease, global climate change).
-- The environmental "smell test" for HCPs should be the question posed: Is the listed species better off in the presence of a coordinated conservation effort with assured funding (the HCP) than it would be under a status quo situation where it is "protected" by a minimally funded ESA with no take allowed? If the answer is "yes" then an HCP is on the right track and should be strongly supported, although continuously monitored. If "no" then an HCP is not appropriate and should not be negotiable.
-- There is a fine balance that must be maintained in the integration of science into an HCP - the landowner is seeking a predictable and assured environment into a set period of the future, whereas science dictates, and the natural world effectively requires, an adaptive approach to inevitably changing situations for the species and their habitat. The degree to which "adaptation" requires changing the protective provisions to the landowner will determine whether an HCP, or any of the new ESA policies such as Safe Harbor or Candidate Conservation Agreements with Assurances, remain attractive options to pre-listing habitat destruction, litigation, or other relief available to a private landowner.
-- Multiple species HCPs should be encouraged wherever possible, but must be tempered with the realization that the time required to develop such a plan will be concurrently lengthened. The habitat conservation measures for one species may not satisfy the basic needs of other currently or potentially listed species. Therefore, the proposed mitigation may not be complimentary but additive in terms of acreage required or types of land uses that can or cannot be allowed under the provisions of an HCP. This will inevitably affect the degree of stakeholder "buy-in" for the larger, publicly driven planning processes.
-- HCPs and CCAs represent an insurance policy against the unpredictable future for landowners who require or desire a stable planning horizon with fixed costs and known requirements for mitigation.
-- Monitoring in and of HCPs should take place at many levels simultaneously to assure adherence to the intent, the terms, and the conditions that generated them. This includes monitoring the administration of the planning process and expenses incurred by the plan proponent; monitoring the species and its habitat for population health and stable or improved condition in light of the HCP; and monitoring the effectiveness of management in accomplishing the biological goals of the HCP program.
General Observations and Recommendations:
-- Habitat Conservation Plans are important relief mechanisms for private property owners caught up in federally listed species habitat protection via the Endangered Species Act, and as such, should persist as an option for landowners in the future.
-- HCPs cannot be a "one size fits all" program due to the peculiar life histories associated with the specific animal for which they are developed, as well as the unique needs of each HCP proponent.
-- Flexibility in designing HCPs insures they remain an attractive option for private landowners, but the limits on the degree of flexibility must be set by the ecological tolerances (e.g. the habitat needs) of the species which they (the HCPs) are addressing.
-- As long as there is another cheaper, quicker option that a landowner can pursue, they probably will because HCPs are high maintenance beasts, depending on the degree of public participation and scientific oversight required.
-- HCPs are particularly appropriate for wide-ranging listed species for which numerous areas of habitat can be evaluated for not only "take" but also for which several options exist for conservation. Conversely, HCPs are inappropriate for narrow endemics - situations where a one-and-only location exists for a distinct listed species. There are no other alternatives for habitat protection and numbers are typically perilously low, not conducive to regulated "take".
-- It is equally important to avoid playing the "numbers game" in either listing decisions or determining levels of take because it is more germane what is happening to the habitat of the listed species in the design of mitigation actions or in proposed "reserves". Analogy of an airplane where the determination has been made that the bolts are degrading rapidly - it is less important how many of them there are - but more important to determine what can be done to remedy the situation (recovery strategy).
-- Individual HCPs can be negotiated between single landowners and the Service without public input or oversight as long as there is an overarching recovery strategy in place that the small or single landowner HCPs contribute towards and that do not preclude or impede attainment of the Recovery goals. While there is currently no requirement for HCPs to achieve or attain "Recovery" of the listed species, they should be designed to progress towards that goal (cumulative progress).
-- The reluctance of individual landowners negotiating HOP agreements with the Service in public forums where the interested public are really not "affected stakeholders" can be effectively addressed by the Service developing the overarching recovery strategy in a public forum, with science playing an influential role, but the general conservation strategies crafted with interested party input. This highlights the importance of the Service placing a priority on developing Recovery Plans for any listed species. The absence of sufficient data to determine what would be required for "recovery" of a species calls into question the adequacy of data to support the listing in the first place.
-- The desire to maintain or enhance the "user-friendliness" of the ESA in order to preserve its very existence, while a noble and probably highly practical goal, must not compromise the reason the Act was created in 1973- to protect this Nation's wildlife species from the eternity of extinction. The concern of many environmental groups is that HCPs have become so diverse and are proliferating at such a rate that it is impossible to effectively monitor their compliance to the aforementioned "smell test" of basic ecological benefit to the listed species.
-- The key to maintaining the balance of responsibility of the federal government in terms of implementing the conservation provisions of largely private-land HOP mitigation strategies should be a fully funded and obligated Land and Water Conservation Fund (LWCF). This LWCF should be protected from the temptations to solve other, perhaps more politically popular or expedient, programs from budget dipping and creative bookkeeping at the expense of protecting this Nation's natural landscapes and imperiled species. To paraphrase Benjamin Franklin, a penny spent on proactive habitat protection for species and ecosystems is a wise expenditure versus the dollars that will be required to try to "save" species once they reach the endangered species list.