As an initial matter we would like to emphasize that, given the proper protection and incentives, farmers and ranchers can play an important role in the protection and recovery of listed species. In fact, the agencies must have the cooperation of farmers, ranchers and private property owners if the Endangered Species Act (ESA) is going to work. A report of the General Accounting Office found that over 90 percent of listed plants and animals have some of their habitat on nonfederal lands, with 78 percent occupying privately-owned lands. Only about 34 percent of all listed species occur entirely on nonfederal lands. Private landowners and private lands are clearly the key to the Act's success. They do a better job than the government and they contribute to the local tax base while they also support wildlife. Farmers and ranchers, who own most of the suitable species habitat, are especially important if the ESA is to succeed.
Farmers and ranchers produce the food that feeds our nation and many others in the world. They are a vital part of local economies. They support people who keep schools running, provide local jobs, and provide opportunities for newcomers to this country. Our productive farm and ranchlands are indispensable to our character and our future as a nation. Farm and ranch lands need to continue to be productive in order to continue meeting this considerable responsibility.
You must understand that there are two types of HCP's. There are the HCP's for one or two species and one property like the Red Cockaded Woodpecker Plan. These can work for some large institutional landowners large timber operations for example or developers. Then there are the regional multispecies plans. These work well for developers, but their sole function is to mitigate for urban growth by taking farmland out of production destroying its food-producing potential. Instead of preserving farms and ranches, the HCP process encourages the opposite result, by taking agricultural lands out of production and using them as mitigation lands for HCP-allowed urban development. It is critically important for all species, including humans, that we work with our farmers and ranchers to enhance the habitat value of their properties in a way that does not impair the present and future productivity of their land. Unfortunately, HCP's are designed and controlled by 'ologists who care nothing for human needs, and by developers.
Many farm and ranch activities, if allowed to continue, actually benefit listed species. Many species depend heavily on cultivated land or rangeland for their continued existence. In California, for example, a U.S. Forest Service study found that Swainson's hawks nesting in sagebrush habitats more than one mile from cultivated alfalfa fields suffered 100 percent nesting failure, while those nesting within one-half mile of cultivated alfalfa fields enjoyed an 86 percent success rate in rearing broods.
One of the largest nesting colonies of tri-color blackbirds, a candidate species, was recently found in a San Joaquin Valley grainfield. This species was recently determined not to be endangered, specifically because of the numerous colonies hosted by California farmers on their lands -- at no cost to the American taxpayer.
We have found that several species of federally-listed kangaroo rats are thriving in drip-irrigated vineyards after our members have adopted some simple kangaroo-rat friendly rodent control measures.
Our western water supply networks, our levees, our water impoundments, all offer tremendous opportunities for endangered species all wildlife if only farmers and ranchers are helped and not hindered by wildlife agencies.
Yet instead of encouraging farmers and ranchers to maintain and improve species habitat on their lands, the ESA actually discourages habitat conservation. The consultation requirements imposed by section 7 of the ESA and the prohibitions against "taking" listed species imposed by section 9 of the ESA often impose blanket restrictions on human activity and land use that penalize farmers for necessary agricultural activities because some of the creatures supported by their farms may be "taken." This necessarily creates a negative attitude of landowners toward listed species on their lands. The law is turning wildlife into a significant liability for the farmer and rancher.
Farm Bureau believes that endangered species protection can be more effectively achieved by removing disincentives and providing incentives to private landowners and public land users rather than by imposing land use restrictions and penalties. Desired behavior is always more apt to be achieved by providing a carrot rather than a stick. There is no "carrot" provided by the Endangered Species Act as currently written. This is important because it bears directly on the nature of HCPs and why they were authorized.
I. HABITAT CONSERVATION PLANS ARE NOT SUITED FOR AGRICULTURE
The concept of the Habitat Conservation Plan had its origin in California, and California has more approved or pending HCPs than any other state by far. HCPs were envisioned as a mechanism to allow high-value urban development of species habitat if other habitat were set aside in mitigation. It was designed to give some relief to private landowners from the otherwise absolute "take" prohibitions of section 9 of the Act. As the process developed, mitigation took the form of either purchase or dedication of additional habitat, or payment of a predetermined sum of money into a mitigation fund. In return, the landowner was granted a permit for an "incidental take" of the species if it was in the course of the approved activity. Because these HCP's were designed for single project, one-time developments, in urban areas, they never considered the problems of co-existing with species in a working landscape. Farmers don't build and leave; they and the habitat they provide live together. This worked pretty well until the Endangered Species Act.
A. The HCP Process Is Not Affordable For Farmers, Ranchers And Most Small Individual Landowners
Habitat Conservation Plans came into being in order to accommodate land developers who were otherwise restricted from developing species habitat by the prohibitions of section 9. The HCP process incorporates a series of costly biological surveys and the development of an extensive planning process whose central theme is habitat mitigation. Once developed, the entire package must be approved by the federal government before it becomes operational.
In practice, the HCP process has been costly, cumbersome and controversial. The process requires extensive and expensive biological data covering virtually every square foot of the proposed habitat area. The data collection alone can cost a million dollars. It also requires that a funding mechanism be in place to accomplish the mitigation purposes of the HCP. In addition, the data required under the process often takes several years to accumulate, making the process time-consuming at best.
But even after all of the data requirements have been met and the incidental take application has been accepted, it still must be approved by the U.S. Fish & Wildlife (FWS) Service, a process which can take several more years. Many applications have been pending with the FWS for several years. Recently, only 40 of the more than 150 Habitat Conservation Plans that had been submitted to the FWS had been approved. So far in California, only one multispecies regional HCP is complete and approved a small one for the City of San Diego involving use primarily of public land enhancement for habitat mitigation. There is no guarantee that a carefully crafted and negotiated HCP will result in FWS approval. Our experience has been frustrating with FWS repeatedly raising new demands and endlessly renegotiating the HCP. Kern County has been working for the better part of a decade on its HCP.
As a result of these factors, the HCP process is generally unsuitable and impractical for small private landowners like individual farmers and ranchers. The extensive data requirements alone price farmers and ranchers out of the HCP process. The mitigation requirements are also much too expensive and burdensome for farmers and ranchers to use on a practical basis. You simply cannot grow grain or row crops or even grapes if you are going to have to give the FWS an acre or more of land for every acre you plant.
As noted before, the HCP process was not designed to address ongoing activities on land such as agricultural production. Rather, its mitigation policy was designed to accommodate one-time development of property that essentially removes that property as species habitat and replaces it with mitigated habitat. Such a process applied to agriculture serves neither the needs of species nor of people. Since species depend on agricultural lands for habitat, the goal of an agricultural habitat policy should be to find ways to maximize both agricultural production and species habitat on the same agricultural lands. We believe that such a policy can and would work.
The addition of the concept of "incidental take" was a positive one. The ESA must be amended to allow this concept of habitat conservation to be used for their ongoing activities by farmers and ranchers who coexist with species, and not only by those who have high-priced urban projects and can afford the exorbitant price tag. The current system has created a two-tier exemption program that is available to developers and the super-rich, but not to the smaller businessman or the family farmer and rancher. Family farmers and ranchers are being hurt most by the current application of the ESA.
But even the perceived "super-rich" are now bailing out of the HCP process. A large industrial timber operation in California spent millions to complete an HCP. After years of work, the company finally dropped the entire process citing its cost, the inflexibility of the federal agencies, and the endless litigation that is caused by the failure of the law to provide for a workable HCP process with real safeguards for the landowner.
The current provision for HCPs in the ESA is too cumbersome and inflexible. The provision and implementing regulations contain fairly specific requirements that perpetuate the problem of making these procedures largely unavailable for most farmers, ranchers and small landowners. Section 10 and accompanying regulations provide such specific and detailed requirements for HCP and incidental take permits that there is little flexibility to adapt the HCP process. In order to achieve the flexibility that is needed for an agricultural HCP process, both the statute and the regulations will have to be amended.
B. Multi-Party Or Regional HCPs Fail To Adequately Consider The Needs Of Local Agricultural Producers
Many areas within California are seeking to develop HCPs on a county or regional basis. The advantage to such a process in theory is that such plans will cover a more comprehensive habitat area and will encompass a wider range of normal human activities. Instead of covering one entity or one land use, a regional HCP could cover many different types of normal activities within the HCP area. In practice, these regional multispecies HCPs do nothing to relieve the disincentives for the agricultural landowner, and only increase the conversion of agricultural land to urban uses because of the expensive mitigation such plans require. Land in these HCP's falls into two categories, developed or habitat. Under the current process neither use is consistent with maintaining a viable agricultural operation.
Agricultural land is classified as a habitat type, depending on what species benefits the particular FWS staff office thinks it provides. There is no consistency in Kern County, row crop land is given no habitat value (but landowners who build on it have to pay 1 to 1 mitigation!), but in San Joaquin County, row crop land is given the second-highest habitat value. Mind you, this habitat "value" schedule means that farmers can't change from one type of farming to another without paying mitigation! FWS is in the business of agricultural market control. We may all have to eat what they think provides the best habitat value.
The role of agriculture within a regional or multispecies HCP (MHCP) is different from nearly all other affected interests. This difference is not taken into account in establishing the MHCP or in setting its parameters. These basic differences are of such a nature that affected interests within the MHCP area often benefit at the expense of agriculture. Some of these differences are as follows:
1. The mitigation schedules that are so harmful to agricultural production actually encourage conversion of agricultural land. Agricultural producers have the most land within a MHCP area but often have very little ready money. Developers and others who might take advantage of the HCP process usually have money, but very little land. Since the primary focus of the HCP process is on mitigation of habitat loss caused by urban development (involving dedication of additional lands for habitat), agricultural lands become prime targets for those mitigation areas because they are cheap compared to urban lands. In Kern County, for example, the mitigation ratio for using native lands as mitigation is 3:1 acre of developed land. The mitigation ratio for using agricultural lands for mitigation purposes is 1:1. The California process thus actively encourages the use of our most valuable agricultural lands for mitigation purposes under HCPs, thereby further reducing the amount of agricultural lands available for the production of food and fiber. By the same token, agricultural producers generally cannot afford the same process of mitigation to increase the productivity of their lands by changing crops, or to purchase more land for food production. This is not a minor issue. For example all of the land in San Joaquin County HCP is private farmland. In San Diego County, more than 100,000 acres would be designated in the North San Diego HCP, thus precluding any agricultural improvements on the land.
2. For those HCPs that involve the payment of mitigation fees instead of purchase of mitigation lands by the applicant, developers can pass along the costs to the ultimate users of the property whereas farmers and ranchers cannot. Thus, for most within an HCP area, the mitigation fee is merely a cost of doing business, whereas for the farmer or rancher it is much more.
3. Outside of the specific land that they have targeted for development, developers or the habitat authority itself care little about what land is used or purchased for mitigation purposes. For them, it is almost as if such land is a fungible commodity. However, for farmers and ranchers who actually use the land, every aspect of their land is unique in the role it plays within their operation.
4. Developers can complete their mitigation by the one-time purchase of additional dedicated habitat or the payment of a mitigation fee. The purchase of the additional land or the payment of the fee does not affect the development because the land so purchased or mitigated is outside their development site. Farmers and ranchers, who own most of the suitable habitat within the HCP area must mitigate by setting aside part of their own property. Without compensation and/or incentives, the process of setting aside lands does not work for small farmers and ranchers. Frequently, the mitigation requires them to take more land out of production than they had desired to put in.
5. In most cases developers are engaged in speculative uses of the land that involve future activity and not ongoing present activities. HCP restrictions on land uses within the habitat area that might result from required data collection activities or pending planning decisions only affect the timing of the development of the speculative uses without appreciable impact on present activities. In addition, once those developers have received their permit and finish their projects, they have no additional impacts. Farmers and ranchers, on the other hand, use their property on an ongoing basis so that the same restrictions placed by the HCP authority pending collection and review of data have significant present impacts on current operations. Furthermore, because their operations are ongoing, farmers and ranchers are impacted at every stage and by every decision of the HCP authority. Those impacts include continued liability for compliance with the section 7 consultation requirements and the section 9 take prohibitions.
6. In our experience, the HCP authority also imposes permitting requirements on farmers and ranchers for activities that do not currently require permits. Such activities might include grading, plowing or discing land -- activities considered normal farming practices that are necessary to the continued use of the land for farming purposes, and which cannot accommodate the uncertainty of the permitting process.
7. Farmers and ranchers often use their property in ways that are beneficial to wildlife and listed species, whereas developers do not. Thus, in many cases farmers and ranchers can actually enhance habitat through application of normal farming practices. These benefits, however, are generally not considered or explored in the HCP process.
8. Value of land within an HCP area generally goes down simply by virtue of its being included in an HCP. Theoretically, this value can be restored as mitigation opportunities are identified. Since agricultural lands are themselves the very "mitigation opportunities" that developers identify, the value of agricultural land is always less than designated. In the Stephens Kangaroo Rat HCP, the HCP authority became the only "market" for agricultural land, and the "value" of such lands included in the HCP area was at the mitigation fee of $1,950 per acre -- substantially less than actual market value outside the HCP.
The mere inclusion of property within a HCP is a per se declaration that such property is habitat for a listed species, and its value drops accordingly.
The practical impacts of these problems can be illustrated by a few examples.
Pleasant Valley Habitat Conservation Plan
The impetus for this plan came from the town of Coalinga in western Fresno County, an area that contains habitat for the listed kit fox, blunt-nosed leopard lizard and the Tipton kangaroo rat. Coalinga is a town of approximately 9,000 people. The Pleasant Valley Habitat Authority sought to have a habitat area of approximately 250 square miles, of which only 2.3 percent encompassed urban uses. Yet the pressure for the HCP was from developers seeking to expand in urban areas. Of the remaining area in the proposed HCP, 76 percent of the land was either intensive agricultural lands or productive rangelands.
It became apparent that the extensive agricultural acreage was proposed for inclusion in the HCP for only one reason -- to provide lands for mitigation so the urban developers could undertake their projects. The plan was for these productive farm and range lands to be taken out of production and dedicated for habitat for the target species so that others could reap their own benefits. All of the benefits of this proposed HCP were geared to these urban developers, and all the burdens were projected to fall on agriculture. It was clear that there were no benefits to the farmers and ranchers whose lands would have been included in the HCP area.
The Fresno County Farm Bureau objected to the development of this HCP on these grounds, and the HCP did not go forward.
Riverside County Habitat Conservation Plan
Another example that illustrates the problems experienced by agriculture in the HCP process involves the Riverside County Habitat Conservation Plan (RCHCP) that is for the protection of the Stephens kangaroo rat.
The RCHCP scheme involves the establishment of a mitigation fund administered by the Riverside County Habitat Conservation Agency. The funds will go in part to purchasing mitigation lands to be dedicated to habitat for the Stephens kangaroo rat.
The mitigation fee that as established was $1,950 per acre. Payment of the fee and associated costs entitled the owner to make improvements on the property. The fee is the same for both developers and farmers, and therein lies its inequity. Agricultural production is a land intensive business that involves little or no building. Buildings that might be constructed are low density, low cost structures that pale in comparison of value to residential or commercial construction. Yet the mitigation fee is $1,950 per acre regardless whether the construction is residential, commercial or agricultural.
An example will illustrate the point. A western Riverside County poultry operation constructed a 30,000 square foot agricultural building on 39 acres. The cost of the building was $340,000. The $1,950 per acre mitigation fee cost the operation a total of $67,500, amounting to approximately 20 percent of the total cost of the building. On the other hand, a typical subdivision might include four houses per acre, resulting in mitigation fees of $487.50 per house. If the homes were built for $100,000 each, the mitigation fee would be less than .5 percent of the cost of construction. In addition, the costs of the mitigation fee for residential or commercial development can be passed on to the purchasers of such development. Farmers cannot pass the fee along to anyone.
Farmers and ranchers in the RCHCP area have experienced other problems due to their inclusion in the HCP area. They have been prevented from discing or working their fields due to the suspected presence of kangaroo rats. Even if their lands do not actually contain the species, they are still prevented from using the land until it has been cleared as a possible habitat or mitigation site. Most cannot afford the $1,950 per acre mitigation fee it would take.
This Committee has heard several horror stories from residents within the RCHCP area on previous occasions. Cindy Domenigoni has testified that the family farm that has been in her husband's family for several generations was prohibited from planting on over 800 acres for three years because the farm was in the RCHCP area and therefore kangaroo rat habitat. It was only after a government official remarked that the species had moved out of their lands earlier that the Domenigonis were allowed to resume operating on that portion of their farm. This of course happened after fires ravaged the area and eliminated the k-rat and their habitat.
The Committee also heard from several other victims of forest fires in the area that occurred in 1993. Part of the restrictions for protecting the kangaroo rat habitat involved prohibitions against discing fields and removal of habitat. These prohibitions created conditions conducive to swift fire movement through the area. In addition, the discing prohibitions prevented people from creating firebreaks around their homes to protect their residences. Some people who obeyed the restrictions lost their homes to fire. Others who ignored the restriction kept theirs.
By and large, the HCP process was designed to facilitate growth on the outskirts of urban areas. Section 10a was written for only the largest landowners who could afford the costs of the process and who could pass the costs on to the ultimate purchasers. The HCP process is poorly adapted to all segments of a community. There are few benefits to farmers and ranchers, if any, from participation in the HCP process as it is currently authorized. The entire process needs to be reviewed and revised.
While titled "habitat conservation planning," the HCP program deals very little with the conservation of habitat. By focusing on the "incidental take" of individuals of a species as the end result of the HCP process, the program focuses less on habitat development or maintenance than on individual members of the target species. A revised HCP process that truly involves "habitat conservation" and that provides for the unique problems and benefits of the agricultural landowner is called for, and it must be accomplished by legislation.
II. PROPOSALS TO INCREASE THE EFFECTIVENESS OF THE HCP PROCESS AND MAKE IT MORE AVAILABLE FOR AGRICULTURE
The process for change must begin with a consideration of the American farmer and rancher, and the role they play in the creation, maintenance and development of wildlife habitat. In order to be effective, the new HCP process must provide a "carrot" to the landowners instead of a "stick." For most farmers and ranchers, removal of the "stick" would be welcome enough relief. Furthermore, we have to recognize the importance of our farm and ranchlands to the future of this country. We all know that we are losing more land than we can afford. If we are to provide a secure food base for next generation we can't afford to sacrifice our farm resource lands to wildlife habitat or concrete and houses. In California, we have lost nearly 400,000 acres to habitat in the 1990s alone (see attachment 1).
Farm Bureau is working at different levels to develop programs that would remedy some of the problems described above.
A. Habitat Enhancement Landowner Program (H.E.L.P.)
In the San Joaquin Valley in California, a coalition of agricultural organizations including the California Cattlemen's Association, the California Farm Bureau Federation and others has developed a proposal called the Habitat Enhancement Landowner Program (H.E.L.P.). The H.E.L.P. program would provide a general incidental permit program for participating agricultural regions. Under the program, participating farmers and ranchers would be allowed to conduct normal farm or ranch activities on their property and receive a general incidental take permit for such activities or for emergency response or repair activities. In exchange for dispensing with the normal section 9 taking prohibitions for such activities on their property, regional committees of farmers and ranchers would agree to develop and implement actions to improve or enhance species habitat on their lands. It is designed to provide incentives for habitat management by removing the considerable disincentives that currently exist. We believe this program could usher in a new era of farming for food, fiber and the future of wildlife.
As stated, the purposes of the H.E.L.P. program are as follows:
1. To develop a general permit program that will remove current disincentives to habitat protection.
2. Develop a voluntary program that will enable farmers and ranchers to conduct normal agricultural activities, and to undertake additional actions that may benefit listed species, without threat of liability for incidental take under either the state or federal laws.
3. Maximize what willing landowners can accomplish on their property by developing incentive mechanisms that will support species and habitat conservation practices while at the same time maintaining and protecting the long-term economic viability of their agricultural operation.
The program is premised on the fact that farmers and ranchers want to preserve listed species and that given the proper incentives they will do so. For this program, the "incentive" is nothing more than a suspension of the considerable disincentives that currently drive the ESA. The program is also premised on the belief that farmers and ranchers can do a good job in protecting species and their habitat, and that normal farming and ranch activities are generally compatible with habitat protection. California Farm Bureau Federation tried negotiating with the Fish and Wildlife Service and the California Fish and Game Department for adoption of this program.
Our own Fish and Game Department worked cooperatively with us they understand the value of agriculture to wildlife. The Fish and Wildlife Service, on the other hand, sat silently at our meetings and refused to work with us they raised objection after objection and could never commit to anything. As a result, this very valuable program for maximizing both farm value and habitat value is still just a dream of California farmers and ranchers. It's now clear that the only way this common-sense program will be adopted, will be for you to pass legislation mandating its adoption.
B. North Carolina Sandhills Habitat Conservation Plan
This limited "safe harbor" agreement is currently in place in Moore County, North Carolina. This program is designed for the protection of red cockaded woodpeckers and their habitat. The major elements of this program are as follows:
1. FWS conducts an inventory of red cockaded woodpeckers (RCW) on the lands proposed for inclusion in the program. This establishes a baseline population.
2. The landowner agrees to manage the lands in such a way as to protect this baseline population, and to conduct habitat improvement activities on their lands. This is accomplished through a cooperative management agreement.
3. There are no additional constraints on the landowner with regard to additional RCW that may subsequently inhabit the lands.
4. As with the H.E.L.P. program, this program is voluntary with landowners. In addition, the RCW program allows landowners to opt out of the program at their option.
5. There will be no additional restraints placed on landowners other than the management activities that they have agreed to undertake. The guidelines to be followed are those in effect at the time of execution of the agreement. Also, the habitat improvements carried out under the agreement will not result in any additional restrictions on the participating lands or neighboring lands.
6. Program participants are responsible for monitoring compliance with the program.
Program administrators believe that even if private landowners opt out of the program after a short time, there will still be benefits to the red cockaded woodpeckers. The red cockaded woodpeckers have been in decline on the private property within the program area for so long that any beneficial habitat enhancement -- however short -- will help reverse that decline.
Although valuable for highly focused species conservation efforts keyed to critical needs of some species, this approach cannot be extended regionally to cover normal activities or for covering multiple species.
The North Carolina program is the only "safe harbor" agreement to be approved thus far. Details on both programs will be provided for the hearing record.
The safe harbor concept in North Carolina is positive. It shows that a single-species HCP can work for single landowners, where a positive working relationship is offered by the FWS. However, it does not show that HCP's can work for multiple species or for regional economic development. It will not work in the Western States, because it is based on the premise of trust and cooperation between the agencies and private landowners.
It's clear that landowners under the ESA are not treated the same in the West when compared to other states. Where voluntary means to preserve species in are allowed in some states, they are rudely dismissed in the West where agency authority overrules everyone including members of Congress.
C. Critical Habitat Reserve Program
In addition to these specific programs, Farm Bureau has developed a proposal for a voluntary program called the Critical Habitat Reserve Program (CHRP) administered by the Secretary of Interior. Under the proposal, the Secretary of Interior would enter into contracts with willing landowners and public land users in areas designated as "critical habitat" for a listed species. The private landowner/operator would agree to implement a plan for the management of a listed species. Management plans would focus on actions that would enhance the species instead of blanket land use prohibitions.
In return, the Secretary would provide the costs for implementing the CHR program, pay annual rental and management fees to the private landowners for the conversion of private property to CHR use, and provide technical assistance and management training to cooperating landowners.
The program would be voluntary, and must protect the private property rights of both participants and non-participants alike. The program must contain assurances that participants in the CHRP will not be later restricted in the use of their property outside the terms of their voluntary agreements. Participants who enhance species habitat pursuant to their agreements to the point where other listed species might also take up residence should not be restricted because of the presence of these other residents.
The CHR contract would be for a period of no more than five years, to coincide with the periodic species review mandated by the Act. In order not to de-stabilize the economic base of the community, the CHR would be restricted to no more than 25 percent of the total area of any one county.
The program would also permit the enrollment of land that might already be enrolled in other government conservation programs, and would require consultation between the Secretaries of Interior and Agriculture to ensure harmony between the CHR program and other programs.
We believe that, given the opportunity and proper support from the government, farmers and ranchers can do a better job of enhancing listed species than the government. As experienced, practical land managers who may have observed the species for a number of years, they bring a working knowledge that government scientists do not have. More importantly, they can offer day-to-day management of the species that the government certainly cannot do. Such a program will result in better management and greater chance for recovery of the species than is provided under the current law.
We also believe that with the proper incentives and a respect for private property rights of participants and their neighbors, farmers and ranchers will be willing to participate in the program.
We would be happy to discuss this program with you in greater detail.
D. General Provisions
It's clear that changes are needed to authorize and improve the HCP process. The following elements are essential to the debate.
1. Compensation to affected landowners. The promise of incentives alone will not work. The only way to ensure agency employees do not abuse the law is to require compensation when their activities undermine the use or value of the land. In those instances where land is identified as critical to the survival of listed species, it should be acquired by compensation, not regulation.
2. Participation in any HCP must be voluntary. County-wide or other multi-species plans must not include any landowners who do not wish to participate in this process.
3. HCP's must not be allowed that require any exterior habitat buffers on agricultural lands. They must instead, provide protection for adjacent landowners should listed species migrate onto their property. We must stop turning endangered species into a nightmare of liability for neighboring landowners.
All four of these proposals are designed to maximize protection of species habitat while minimizing disruptive impacts to private lands. They are designed to avoid the "train wrecks" caused by species-human conflicts by removing the conflicts. Finally, and most importantly, they are designed to replace the "stick" of negative ESA enforcement through section 7 and section 9 restrictions with a "carrot" approach to habitat management. All sides to these proposals realize that this approach is a "win-win" situation for both species and for people. That is why the North Carolina proposal was in part supported by the Environmental Defense Fund. These changes are designed to encourage landowners protect and enhance species habitat because they want to, and not because they have to. This simple attitude adjustment makes a world of difference for habitat protection, and may turn the current horror stories of the ESA into success stories.
But these changes will require legislation. Some believe that the current section 10a is sufficient to enact these subtle but important changes, but we have doubts whether the current statutory language would allow such provisions. The current section 10a may work well for the larger landowners and developers, and they may want to retain that section. One thing that Farm Bureau has learned through participation in several HCP negotiating exercises is that different landowners have different interests and goals as far as the HCP process is concerned. We believe that enactment of a separate section to protect agricultural producers and small landowners along the lines outlined in the four proposals above is appropriate and necessary if this nation is to preserve both the capacity to produce food for its residents and protect species from becoming extinct.
III. "NO SURPRISES" POLICY
Under this policy, landowners entering into cooperative agreements for the protection and maintenance of habitat would not be required at some later time to undertake additional mitigation measures for species covered under the plan. In other words, the government would be bound by what it promised in any landowner agreement.
This should be a necessary element of any agreement that any landowner would enter with the government. While it protects landowners from being hit with any additional requirements that they might not have agreed to, it does not begin to solve any of the problems that farmers and ranchers experience with HCPs or with the Act. If anything, even the need for such a policy illustrates the problems of dealing with the government, and the problems faced by farmers and ranchers under the ESA.
CONCLUSION
All of the proposals that we have discussed above benefit different elements of the public and at the same time benefit endangered or threatened species by conserving, managing and enhancing habitat. Different proposals use different methods and benefit different segments of the community. One plan does not fit all.
Agricultural interests do not benefit from current HCPs because it is their lands that are eyed for mitigation. Further, they generally cannot afford the mitigation fees that can be paid by large developers and passed on to ultimate purchasers. The CHRP or the broader H.E.L.P. type of agreement is better suited for agricultural concerns. In addition, requiring compensation under this process keeps everyone honest when it comes to ESA regulations. Requiring the landowners consent to include land in a designated HCP is only fair.
We urge the Committee to consider these proposals as a coordinated policy that benefits both listed species and people. It is a situation where everybody wins, and affected interests from all sides should embrace such an effort. Also, demonstrating that the interests of species and people can be accommodated through the enactment of such a coordinated policy might open the door to other necessary ESA reforms. Attachment 1 to Statement of William Pauli on October 19, 1999
CONVERSIONS OF PRODUCTIVE FARMLAND TO HABITAT SINCE 1990
State Agricultural Land Acquisitions: 307,251 acres Federal Agricultural Land Acquisitions: 36,172 acres CALFED Agricultural Land Acquisitions: 40,023 acres All Government Agricultural Land Acquisitions Totaled: 383,446 acres
· All acreage totals are either previously acquired, in the process of being acquired, or are actively being sought for acquisition (i.e., the agency is looking for willing sellers in the project area.) · All of the aforementioned purchases involve agricultural resources, as far as we know. As better information becomes available, we will update these figures. · Undoubtedly, more agricultural land conversions have occurred than we have listed in these figures. · The best information available states land acquisitions in terms of whether agricultural resources are involved, and total acres of the project. This means that some of the acres purchased were not agricultural. Currently, there is no way to determine the acreage break-down for each project. Thus, if agriculture is involved, the whole project is treated an agricultural conversion. · Definition of Agricultural Land = agriculturally zoned parcels, and/or parcels currently or previously in agricultural production. · These land totals are basically the same parcels as depicted on our preliminary land acquisition map. The only change is the addition of 14,400 acres that are currently being purchased by state agencies. These additional parcels were discovered through State Clearinghouse records and conversations with Farm Bureau Executive Directors who are familiar with the circumstances of these projects.
Northern California Water Association (NCWA) Publication on Land Conversions Land Acquisition and Habitat Protection in the Sacramento Valley, September 28, 1999
Attachment 1 to Statement of William Pauli on October 19, 1999
Table 1 (pg. 2)
Program Acres
DFG Wetlands Easements 2,371
State Wildlife & Ecological Reserves 116,900
WCB Inlands Wetlands Conservation 3,565
DWR / Rec Board Mitigation 1,625
Department of Parks and Rec 700
State Lands Commission (a) 12,000
NRCS Wetlands Reserve Program 12,397
BLM 12,574
USFWS Conservation Easements 26,781 (24,316 = acres in easements)
Sacramento NWR Complex 33,593
The Nature Conservancy 51,290
Bay-Delta Ecosystem Funding 5,090
TOTAL 278,886 (W/O TNC=227,596)
· These totals do not include access acquisitions or habitat restoration projects. (Table 1, FN 1.) · Bay-Delta Ecosystem funding includes = Prop. 204, Category III, Federal Bay-Delta Act, and CVPIA Restoration Funds. (Table 1, FN 4.) · These figures only refer to the Sacramento Valley. (Introduction) · Approximately 3.6 million acres are contained within this area, of which 1.85 million acres are dedicated to irrigated agriculture. (Introduction.) · The acquisitions in the NCWA publication will duplicate some of the FB generated "agricultural land conversion" data.
NCWA Proposed Acquisitions Table 2 (pg. 5.)
Program Acres
Central Valley Habitat Joint Venture Wetlands 54,400
Upper Sac. River Acquisitions - BLM 4,000
BLM "Exchange Lands" 10,000
Sacramento River Inner Zone 10,200
CALFED ERP Riparian Acquisitions 15,000-20,000
Inks Creek Conservation Easement 13,000
Stillwater Plains Conservation Area 2,667
TOTAL 104,300-114,300 acres
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