Thank you for the opportunity to appear before you today. I am testifying on behalf of the American Forest & Paper Association (AF&PA;). The focus of my testimony is the process by which private landowners can achieve limited immunity from the prohibition in section 9 of the Endangered Species Act of 1973 (ESA) against the "take" of any endangered or threatened species. In that process, the landowner submits a conservation plan -- more commonly called a Habitat Conservation Plan or HCP -- to the Fish and Wildlife Service or National Marine Fisheries Service that describes the land use activities the landowner wants to conduct and the mitigation, funding, and monitoring that the landowner intends to provide to protect the endangered or threatened species that could be affected by those activities. If the HCP meets the mitigation, funding and other requirements of ESA 10(a)(2) and is approved by the Service, the Service issues to the landowner an Incidental Take Permit (Permit). The Permit authorizes the landowner to engage in the activities covered by the HCP and removes the liability of the landowner for taking members of the species to which the HCP applies when the taking is incidental to those activities and the landowner is conducting the mitigation and other species-protection actions set forth in the HCP.
AF&PA; strongly supports voluntary habitat conservation planning on private lands under the ESA. The obligation of private landowners toward endangered or threatened species imposed by the ESA is typically modest; in most circumstances, it requires no more than the avoidance of taking of individual members of those species. Although the obligation is modest, the consequences for failing to meet it can be severe -- injunctions against productive use of the land, fines, and imprisonment. Worse, any actions landowners might undertake on their own to fulfill that no-take obligation and avoid those consequences -- even if those actions severely curtail use of the property -- come with no guarantee that they will be successful.
The habitat conservation planning process provides an extraordinarily valuable mechanism for the landowner to secure that guarantee that he or she can undertake the desired land use without risking those consequences and for the government to obtain far greater voluntary species and habitat protection than would be achieved if the landowner pursues only take avoidance.
AF&PA; commends Secretary Babbitt and the Services for their support of the habitat conservation planning process. They deserve credit for recognizing how important that process could be for species conservation on private lands and for dedicating the resources and providing the energy to give it life. Yet, AF&PA; is deeply concerned that, after a robust beginning, the process is losing focus and momentum. To make this voluntary process a truly successful and integral component of this Nation's dedicated effort to provide permanent protection to species at risk of extinction, it must provide to the landowner reasonable certainty at a reasonable cost and must meld scientific credibility with business or economic sensibility. Recent departures from these principles which I will discuss, if left unchecked, will significantly reduce the incentives for voluntary private contributions to species preservation.
B. AMERICAN FOREST & PAPER ASSOCIATION
The American Forest & Paper Association is the national trade association of the forest, paper, and wood products industry. Our organization represents nearly 200 member companies and related trade associations which grow, harvest, and process wood and wood fiber; manufacture pulp, paper and paperboard from both virgin and recycled fiber; and produce solid wood products. Additionally, AF&PA; represents a vital national industry which accounts for over eight percent of the total U.S. manufacturing output. Employing some 1.6 million people, the industry ranks among the top ten manufacturing employers in 46 states, with an annual payroll of approximately $45 billion.
Members of AF&PA; have developed or are developing HCPs covering 10 to 15 million acres throughout the United States. AF&PA; has been active in the Endangered Species Coordinating Council -- an organization of trade associations, companies, and labor unions seeking reauthorization and reform of the ESA. One of the Association's most critical legislative objectives is the strengthening of the habitat conservation planning process by providing it with a more secure statutory foundation and removing the recently surfaced constraints on its effectiveness. Several members of AF&PA; are also members of the Foundation for Habitat Conservation. Portions of my statement are shamelessly borrowed from the May 26, 1999, testimony of Jim Johnston, the Foundation's counsel, before the Committee on Resources, House of Representatives.
C. THE VALUE OF HABITAT CONSERVATION PLANNING UNDER THE ESA
According to the General Accounting Office, over 70 percent of species listed as endangered or threatened under the ESA have over 60 percent of their habitat on private or other non-federal lands, while over 35 percent of the listed species are completely dependent on such lands for their habitat. Permits under ESA 10, principally Incidental Take Permits, are the only mechanisms currently available that provide incentives to the private sector to protect threatened and endangered species on those lands. Without the ESA-related certainty that the government can offer a private landowner through Incidental Take Permits, few if any landowners could afford, or justify, the broad and meaningful commitments of land and resources that have been and are being made in HCPs. And, for the Services, the alternative is a regulatory enforcement program that must be implemented on a property-by-property basis. From either standpoint -- most efficient use of government resources or participation of the greatest number of landowners -- the habitat conservation planning process is advantageous.
The value of HCPs can be measured both in amount of land covered and results produced. As I've said, millions of acres are now included in HCPs that were negotiated, and can be enforced, by the government. Absent HCPs, the land subject to government oversight would be limited to the few properties that the Services' officials could find time to visit. The vast acreage under HCPs is actively managed to provide protection or mitigation for listed species. Absent HCPs, officials of the Services are likely to visit only those lands that are managed without any consideration for listed species and where serious threats to their existence are thought to occur. Fundamentally, landowners' efforts to prevent "take" provide only limited protection to existing habitat by avoiding, and perhaps leaving buffers around, nesting, breeding and other areas where significant behavior occurs. This typically protects identified species' members presently occupying the habitat, but does not ensure the habitat's viability for future generations or greater numbers of the species. Indeed, the land may be managed to avoid growing any new habitat, by harvesting trees in short rotations or not resting cropland for extended periods. The habitat conservation planning process removes the "take" prohibition's disincentive to enhance existing habitat or to allow non-habitat to grow into habitat. Most HCPs for forested land provide for the growth of new habitat. When that cannot be accomplished, HCPs typically require the acquisition and permanent protection of existing habitat. The habitat conservation planning process results in the provision of more and better habitat, and the thoughtful accommodation of species protection with reasoned development.
D. THREATS TO THE HABITAT CONSERVATION PLANNING PROCESS
1. Overview
Recent experiences of members of AF&PA; who are attempting to develop HCPs - even those members that have had great success in securing Incidental Take Permits in the past - provide persuasive evidence that the habit conservation planning process has lost much of the focus and momentum it once had.
Our members are under no illusion that the process is easy or painless. Four and a half years ago, I presented testimony for AF&PA; before this Committee that included a chart (attached) showing how much more costly and time-consuming, with many more procedural hurdles, is the process for obtaining incidental take permits for private landowners under ESA 10 as compared with the process for obtaining incidental take statements for federal agencies under ESA 7. Yet despite these landowner burdens imposed by statute, habitat conservation planning grew and flourished in the mid-90's because many landowners perceived the product -- Incidental Take Permits -- to be worth this relatively steep price in processing time and costs. The Services' dedication to make the habitat conservation planning process work produced policies and applied agency resources that made investment in the HCPs a good business decision for the landowners who could afford it.
The strong cooperation between landowners and the Services in habitat conservation planning that developed during the mid-90's now appears to be dissipating. The policies that made the process workable are being challenged by litigation or eroded by newer interpretations or new policies of the Services. And the previous zeal within the Services to make successful this process to enlist private land in the species protection effort seems to have waned. The result is that a significant number of HCPs - certainly in terms of acreage - have reached a standstill. And may landowners, including members of the AF&PA;, are questioning whether their continued participation in the habitat conservation planning process can be justified.
The most significant problems experienced by landowners arise from debilitating process, excessive demands, and loss of certainty. They include:
-- Loss of leadership and staff dedicated to the processing each HCP. .
-- Increasingly lengthy time frames for developing HCPs and issuing Incidental Take Permits.
-- The too frequent inability of the Services to reach timely "closure" on key issues and to avoid the reopening of already closed issues.
-- Tremendous escalation in the already expensive cost of HOP preparation.
-- The Service's encouragement of, but failure to support, multi-species HCPs.
-- Increasing advocacy of standardized HCP provisions that sacrifice good science for administrative efficiency.
-- Imposition of significant burdens, and obligations to achieve broad species' recovering objectives not applicable to private landowners under the ESA and beyond what is reasonably related to the landowner's future potential impacts on the species.
-- Litigation and policies that have the potential to undermine the degree of certainty that is provided by the No Surprises Rule and is the prerequisite for voluntary landowner participation in the habitat conservation planning process.
-- The failure of Congress or the Services to develop an effective, broadly used alternative or streamlined process to enable small landowners who cannot afford HCP preparation costs to receive incidental take permission.
2. Process Problems
The first four bullets are matters of process. We perceive their cause to be partly a matter of management and partly a matter of resources. Much of the early HCP momentum-building was fueled by strong leadership within the Services. Leaders were chosen and empowered to oversee the processing of each HCP. Teams were appointed to facilitate that processing. Now even when leaders are appointed and teams assembled, they come and go. Some landowners have witnessed as many as three complete staff turnovers during the processing of their HCPs. Others have seen staff disappear for extended periods to work on other matters, including other HCPs, perceived to have a higher priority. Inevitably this means less ownership of Service personnel in the success of any particular HCP preparation process and often leads to duplication of effort and changes in direction.
At a minimum, the duplication of efforts will involve the acquainting of new staff with the landowner's operations and landscape conditions. The changes in direction may be as serious as revisiting the applicable science or reviewing previously agreed upon management or mitigation measures, or may be as seemingly insignificant as choosing a new format for the planning document. But, whatever the duplication of efforts or changes in direction may be, the inevitable result is frequent delays and mounting costs.
Worse, in some cases this lack of dedicated leadership and staffing results in a failure to resolve the most critical issues. Landowners are told their HCPs are inadequate but then their requests to resolve the differences go unanswered. On occasion, instead of being informed on how to "fix" an already prepared HCP, landowners are advised to submit a new proposal with little or no guidance on how it should differ from the last one. HCPs in these circumstances are not just delayed; they ultimately may be abandoned by the Services, the landowners, or both.
Unlike the process for preparing environmental impact statements under the National Environmental Policy Act, there is no strong "lead agency" approach that provides a single point of agency contact and ensures - or at least makes more likely - coordination among the various agencies that have direct or indirect jurisdiction over an issue, such as riparian management, to be addressed in an HOP. Too often the landowner finds that he or she must deal with each agency separately - shuttling back and forth between agencies with no agency assigned, or even feeling, the responsibility to reconcile conflicting policy interpretations.
Finally, the attached chart comparing the differences between the landowners' Incidental Take Permit process and the federal agencies' Incidental Take Statement process emphasizes that the Statement process has deadlines required by ESA 7, while the Permit process has no mandatory deadlines established by statute or regulations. That issue has become increasingly significant as the delays mount and even processing schedules which the Services have informally negotiated with the landowners are broken, if not entirely ignored. Although the Services' "Habitat Conservation Planning Handbook" calls for processing of even the most complicated HCPs in less than 10 months, processing periods of as much as 3 to 6 years are becoming more frequent.
I know this may sound like a severe indictment of the Services' performance. However, as serious as these problems are, the Services' performance must be put in perspective in three ways. First, any new agency program progresses from its early years of individualized attention and pioneering zeal to its maturity when it integrated and competing with the agency's numerous other programs. We would argue that, if this is what is occurring here, it is premature. The habitat conservation planning program cannot become routinized; it still warrants the special care and nurturing due to a novel, still fragile initiative. Secondly, these process problems are particularly visible because they are silhouetted so starkly against the background of extraordinary performance by the Services in the mid- 90's. This is emphatically not a program so mismanaged that it deserves a failing grade. Thirdly, the Services are clearly handicapped by the limited resources available to them to support habitat conservative planning. In its legislative efforts, AF&PA; has supported a dedicated funding source to implement the ESA. Too much of the Service's funding is siphoned off to accomplish other ESA tasks for which the statute has imposed, and the courts have enforced, deadlines -- including species' listings, critical habitat designations, and consultations.
3. Multi-Species HCP Problems
For a number of years, the Services have advocated multi-species HCPs. This has the advantage of focusing on the most critical component of species' viability -- habitat availability. Multi-species HCPs are most compatible with the increasing emphasis on the twin land management concepts of ecosystem management and protection of biological diversity to which the Services and federal land management agencies adhere. They are also cost-saving, since the Services do not have to process new, or amend existing, single-species HCPs each time a new species is listed. Multi-species HCPs also provide the landowners with greater certainty that their operations will not be disrupted and investments lost with future listings. They are particularly valuable for members of AF&PA; because the forested landscape can and does support a multiplicity of species, and the entire landscape will be managed over the long-term.
Yet, we find that the Services are frustrating their own objective. Far from fostering, they are discouraging, preparation of multi-species HCPs. The Services have begun to require such extensive data on each specific species to be covered in a multi-species HCP that preparation of the document becomes too expensive and time-consuming to be feasible. Increasingly, landowners are finding that eliminating species from their HCP proposals presents the only viable option. Single-species HCPs are becoming a matter of procedural necessity, even if, as a matter of science, they cannot be crafted to provide the same measure of protection for as many listed species as do multi-species HCPs.
4. Sacrificing Science to Process
Several problems concerning the sacrifice of science to process may arise from the same urge to routinize habitat conservation planning about which I speculated earlier. One example is the tendency of the Services to adopt a "one-size-fits-all" or a "comparative" approach. In this approach, the Services attempt to apply automatically measures from one HCP to another. They may take what one landowner agrees to and make it the baseline for another. HCPs are voluntary and individual to each landowner. The landscape conditions are unique to each HCP. In these circumstances, "boiler-plate" measures, as much as they might contribute to administrative efficiency, are inappropriate and constitute bad science.
Another administrative short-cut that ignores good science is the increasing use of mitigation ratios. Too often, the Services estimate the likely number of incidental takes and then set arbitrary mitigation ratios -- typically so many acres to be dedicated or so much money to be paid for each projected take. Not only are the Services often overly conservative in speculating on a high number of takes, but they seldom provide any rational justification for the numbers chosen for the mitigation ratios.
5. Attack on Certainty
Above all, the government must offer landowners a guarantee of certainty in the conservation planning process if it expects them to participate and undertake broad species protection measures on private lands. The No Surprises Rule provides that certainty and was the catalyst for the extraordinary growth in HCPs and Incidental Take Permits in the mid-90's. This Rule, however, is under attack from within and outside of the Services. It is not an exaggeration or too dramatic to say that, if the Rule falls, so does habitat conservative planning.
The attack from outside the Services is mounted by citizen suits and centered in the courts. The No Surprises Rule is challenged directly in litigation filed in the Federal District Court in D.C. Three coalitions of landowners - public and private - with HCPs, including AF&PA;, have intervened in that case to defend the Rule.
Indirect litigation attacks on the No Surprises Rule are of no less concern. These attacks are grounded in the ESA 7 requirement that federal agencies consult with the Services when undertaking federal agency actions. The Services have determined that each time they issue an Incidental Take Permit they have committed a federal agency action. They, therefore, must consult with themselves.
We believe this self-consultation on HCPs is not required by the ESA. The language and legislative history of the ESA strongly suggest that Congress intended consultations under ESA 7 and issuances of HCPs under ESA 10 to be separate, mutually exclusive processes. Congress included the same test under ESA 7 consultation as a separate condition for issuance if Incidental Take Permits under ESA 10; there would be no reason for Congress to have done that if an HOP had to undergo both the ESA 10 and ESA 7 processes. If the landowner received an Incidental Take Permit under ESA 10, what earthly good does it do him or her to also receive an Incidental Take Statement under ESA 7? As the attached chart shows, the Incidental Take Permit process is both duplicative of, and more onerous than, the Incidental-Take Statement process. It makes little sense to force a landowner who has survived the incidental take gauntlet once to turn around and race right back through it again. Finally, the principal benefit for the Services (and detriment to private landowners) of requiring HCPs to undergo ESA 7 consultation is that it allows the agencies to force the landowners to accept additional restrictions that Congress deliberately chose not to impose on the private sector - particularly restrictions to protect listed plants and designated critical habitat.
Having said this, absent a change in the Services' interpretation or the law itself, landowners are faced with the prospect of consultation on their HCPs. This ESA 7 process currently poses the single biggest risk to the No Surprises Rule outside of the D.C. Federal District Court. Citizen suits have been brought under ESA 7 that, if successful, would erode the Rule. In one suit, on appeal to the Ninth Circuit, environmental plaintiffs successfully argued that an Incidental Take Permit applicant cannot continue to engage in any everyday management activity that alters habitat under ESA 7(d), a provision that prohibits the federal agencies and applicants from making irreversible or irretrievable commitments of resources after initiation of consultation that would foreclose adoption of conditions on federal agency actions. The plaintiffs and the district court reason that such habitat alteration - otherwise an entirely legal activity - would foreclose a possible alternative that would call for that particular habitat to be left unaltered under the HCP. This litigation challenged a forestry HCP; under the logic of the ruling, no harvest activity could occur during consultation. Moreover, the court construed "consultation" as including the entire time period during which the Permit applicant and the Services work together on preparation of the HCP. Thus, under such an interpretation, a Permit applicant who engages in consultation would have to cease all operations on the land covered by the HCP proposal the moment the first contact is made with the Service. No prudent manager would risk the expense, uncertainty, and disruption that would accompany the habitat conservation planning process if a suit for an injunction under ESA 7(d) might succeed.
Another line of attack on the No Surprise Rule using ESA 7 - this one supported by some officials in the Services - is that consultation must be reinitiated on an existing HCP whenever a new species is listed that is not covered by that document but arguably is present in the area to which it applies. That new consultation in turn can cause the imposition of a whole new set of constraints on the Permit holder that otherwise would be barred by the Rule. Moreover, the argument could be made that, once again, the landowner must shut down operations to comply with ESA 7(d) during the entire time the reinitiated consultation is conducted. The Services' regulations do require that a completed consultation be reinitiated when certain circumstances are present (where agency discretion or control over the Permit holder is retained, and some new information or a new issue arises). One court recently interpreted these rules to hold that, as a general matter, the mere existence of an HCP and Incidental Take Permit does not give a Service sufficient discretion or control to require reinitiation of consultation on that HCP and Permit just because a new species is subsequently listed. There are, however, circumstances under HCPs where some agency discretion is retained. A good example of this are certain adaptive management provisions, which I will discuss later in this testimony.
Erosion from the outside may be matched by decay on the inside since the Services seem intent on reinterpreting the No Surprises Rule in a manner that lessens its guarantee of certainty to private landowners. On June 17, 1999, the Fish and Wildlife Service promulgated a final rule that announces the government's intention to revoke Incidental Take Permits "as a last resort" if their continued operation is determined to result in likely jeopardy to any species covered by the Permits and the Service has not been successful in remedying the situation through other means. Our understanding of the No Surprises Rule prior to this regulation was that the Service, not the holder of the Permit, was responsible for responding to a jeopardy situation. Even though the Service states that it expects revocation of Permits under this requirement to occur only in "narrow and unlikely situation[s]," if the jeopardy standard is interpreted liberally, the No Surprises Rule itself will be in jeopardy. Moreover, even if the Service interprets the jeopardy standard conservatively, this new revocation regulation provides an attractive opportunity for citizen suits against landowners whose operations are covered by Incidental Take Permits but are opposed by the plaintiffs.
On March 9, 1999, the Services adopted a new policy on adaptive management which also may pose a threat to the viability of the No Surprises Rule. We understand that the guarantee of certainty under HCPs is not boundless. And we acknowledge that adaptive management provisions are appropriate elements of many long-term HCPs. Adaptive management -- through appropriate monitoring and a focused "feedback" mechanism -- can result in more efficient and effective management techniques. It can also be very valuable if it is used as a method to resolve questions of science that could delay development of the HCP. It can ensure that mitigation under an HCP will provide the intended results by starting with reasonable operating assumptions and allowing for appropriate adjustments.
However, we remain concerned that adaptive management can be misused. It can become an easy substitute for an HCP reopener clause and used to force the landowner to adopt new mitigation measures that undermine the No Surprises Rule's certainty and require the set-aside of more land or additional species protection expenditures in contravention of the Rule. Moreover, it is inappropriate for the Services, in the name of adaptive management, to insist on very stringent restrictions -- using "worst case" assumptions -- and then require landowners to pursue expensive research to "prove" the worst case scenarios incorrect. Finally, although adaptive management is dependent on landowner monitoring, it is not appropriate to require landowners to perform or fund research. And the monitoring for which landowners are responsible should be focused on actual events that do occur. In short, just as the No Surprises guarantee is not boundless, so too bounds must be established for adaptive management. The Services must be judicious in their demands for adaptive management in HCP processing, or that concept will subsume entirely the certainty which the Rule is intended to provide.
6. Inappropriate Imposition of a Recovery Standard in the Habitat Conservation Planning Process
The language and legislative history of the ESA, Interior Department Solicitor's opinions, preambles to ESA-related rules, court opinions, Solicitor General's briefs before the Supreme Court, and the Services' own "Habitat Conservation Planning Handbook" have all categorically stated that recovery of endangered and threatened species is a responsibility of the government only and that the private landowner's single obligation is the avoidance of "take" of those species. AF&PA; is concerned that this governmental responsibility is becoming a standard for approval of private landowners' HCPs.
ESA 10 does establish conditions beyond "take" avoidance for issuance of Incidental Take Permits to private landowners, but those conditions stop well short of any obligation to ensure recovery. As I noted, one condition is the same as the standard for consultation under ESA 7 -- that is, not to jeopardize the continued existence of the species. A second condition is that the holder of the Permit must, "to the maximum extent practicable, minimize and mitigate the impacts" of the incidental takes authorized by the Permit. In other words, the mitigation required of each landowner in the habitat conservation planning process is intended to address the impacts of taking that would be caused by the landowner's future activities. We believe that ESA 10 is consistent with the Supreme Court's Dolt decision -- the burden imposed on the applicant must be proportional to the impacts that would be authorized by the Incidental Take Permit. This proportionality concept is abandoned if Permit applicants are asked to assume responsibility for - and agree to correct - all landscape conditions that are believed to be inadequate, including conditions not caused by the applicants. Unfortunately, this is just what the National Marine Fisheries Service (NMFS) has done. It has insisted in the negotiations on a number of West Coast HCP proposals that the landowners commit to restoring "properly functioning habitats." Under this standard, applicants are being asked to develop "ideal" habitat conditions, without regard to the extent of the impacts on covered species that the landowners' future operations would actually cause or to the properties' pre-existing conditions. By definition, this is a recovery standard. By definition, there is no proportionality under this standard.
Although we believe the properly functioning habitat standard to be unlawful, it is impractical as well. HCPs should not be measured on whether they "guarantee" achievement of certain population recovery goals. HCPs can only cover a portion of the landscape. The actions of others, including government, can profoundly affect a species' status. All Incidental Take Permit holders can do is provide habitat. Moreover, most species can move in and out of the area covered by an HCP. Whether members of a species actually use the habitat the Permit holder provides or whether the species continues to be adversely impacted by other causative agents -- natural or human-induced -- is often outside the control of the Permit holder. For example, if a Permit holder provides habitat for salmon, but fish still do not return to the HCP due to passage restrictions, poor ocean conditions, predation by marine mammals, unnatural bird congregations, or over-fishing, that landowner should not be held accountable for fish populations. That responsibility can only be the government's, as only the government has the power to influence all pertinent factors.
The effort by NMFS to impose a recovery standard on Incidental Take Permit applicants has resulted in the virtual paralysis of negotiations on the affected HCP proposals. Apparently, this issue can only be resolved by litigation or legislation.
7. The Lack of Alternatives For Small Landowners
Earlier, I said that HCPs are a valuable tool for landowners who can pay their preparation costs. Many cannot. Relief from the ESA "take" prohibition should not be available only to those who can afford it. There has been much talk in Congress and the Services about the need to adopt an alternative or streamlined process to provide small landowners with "take" immunity. The Services have provided occasional no-take letters, devised the "safe harbor" process, and proposed the "low-effect" HCP in their "Habitat Conservation Planning Handbook." None of these approaches has been successful in providing opportunities broadly to small landowners to seek incidental take permission. Numerous bills, including the legislation reported by this Committee last Congress, have proposed incidental take processes better suited to small landowners. None has passed. Establishing such a process must be the highest priority of the Services and the Congress.
E. THE ROLE OF SCIENCE AND HOW TO MEASURE SUCCESS.
Of late, much has been said about the role of science in HCPs. HCP critics raise the alarm that "HCPs are not based on science." For starters, this flies in the face of the fact that some of the best science on endangered and threatened species is being accomplished today in the context of HCPs. This criticism ignores the important concept that HCPs are more than scientific documents. They are also business plans. AF&PA; agrees that available scientific data should be used in developing the management and mitigation measures for HCPs. We do not believe however, that any useful purpose is served if each HCP becomes a written compendium of every known fact about a species. Demands for such encyclopedic content breed unnecessary costs and delays.
AF&PA; also does not support the contention of some that an HCP may be inappropriate whenever there are significant gaps in science. There are and always will be gaps in knowledge, and how significant such gaps may be often is not known until long after they are identified. There are at least two reasons that denial of HCP coverage in the face of uncertainty is inappropriate. First, we adhere to the tenet that, if the Services knew enough to list a species, they know enough to address it in an HCP. Second, even if significant species-specific data are not available, often there are data concerning the general habitat requirements of other, similar species, and those available data can be used to craft an HCP that moves management toward protection of the target species. Furthermore, situations in which scientific gaps are identified could also be candidates for reasonable adaptive management provisions.
The "success" of any HCP must be judged by a blend of both scientific and business criteria, tempered by practicability. Any purely "biological" or "scientific" review of HCPs misses a good deal of the equation. Perfection can be the enemy of the good.
Thank you for the opportunity to testify. I was asked to discuss problems AF&PA;'s members are experiencing in the habitat conservation planning process. This task forced me to emphasize the negative. Just the same, AF&PA; certainly wishes to be on record in stating its view that the habitat conservation planning process is a valuable and highly important mechanism to allow private landowners to both make productive use of their land and comply with the strictures of the ESA. We are prepared to offer solutions to many of the problems we address here. We understand that to be the purpose of the second hearing. We hope to submit for the record any of our suggested solutions that are not discussed on that occasion.