I am Gregory A. Thomas, president of the Natural Heritage Institute, a San Francisco-based non-profit natural resource conservation organization comprised of lawyers, scientists, planners and economists. Our mission is to promote improvements in the institutions governmental and non-governmental--that manage and regulate the world's depletable stock of natural resource, including biological diversity. Our work is both domestic and international in scope.
I am please to appear before the Subcommittee today to present some of the findings and conclusions of a technical workshop that we convened in June of 1998 on "Optimizing Habitat Conservation for Non-Federal Lands and Waters: Harvesting Performance Reviews to Chart A Course for Improvement." This workshop synthesized the results of a number of recent empirical studies of the performance of HCPs that have been conducted by academic researchers, conservationists and practicing conservation biologists. The purpose of the workshop was to distill the lessons from the past 15 years of operating experience with HCPs. We sought to discover how and why the HCP process has failed to recover vulnerable and depleted species and what can be done to improve this conservation tool.
The findings and recommendations of this review process that are pertinent to the focus of this hearing are summarized in this testimony. The complete output of the workshop, and a roster of the participants and studies included in it, will be provided to the Subcommittee. We also tender with this document a 56 page Compendium of Empirical Reviews and Scholarly Analysis of the Experience with Habitat Conservation Planning Under Section 10 of the Endangered Species Act, dated June 18, 1998
Habitat conservation planning is at once the most important and the most controversial arena in the ongoing effort to protect biodiversity on private lands in the United States. It is important to get it right because there is no realistic alternative. I am therefore pleased to summarize a few of the most salient recommendations from our work on the application of conservation science to the development, approval and implementation of HCPs.
Recommendation # 1: Scale habitat conservation planning to overcome the limitations and deficiencies associated with land-holding-specific EICPs
The optimal planning unit for habitat conservation is not the individual land holding or water diversion, and the optimal focus is not individual listed species. Rather, what is needed is landscape-level planning whereby habitat conservation planning occurs at a "bioregional" scale. At this scale, ecosystems and their species are more likely to be afforded effective conservation measures, and the conservation responsibilities are more likely to be properly allocated among land and water rights holders, both public and private.\1\
\1\ Nothing in the ESA either requires or forbids landscape-level planning by either the Services or the applicants. Nonetheless, the tradition within the Services has been to implement the Act species by species and site by site. Such tradition is open difficult to overcome.
There can be major advantages to the non-federal rights holders as well as to the achievement of the species conservation goals if landscape-level planning is applied:\2\
\2\ This is not to say that larger, more complex HCPs have performed better than smaller and simpler plans. To the contrary, resealing is advantageous only to the extent that it opens the possibility of overcoming, not replicating, the limitations and deficiencies that have plagued landholding specific HCPs.
1. Landscape-scale planning can specify the overall conservation effort that will be needed for communities of species and provide a basis for determining what share of that burden an individual property owner should bear in an HCP. There is no mechanism at present for allocating that conservation burden as between private landowners or between them and the public lands. Instead, the burden allocation is made in a piecemeal fashion through the approval of HCPs, Sec. 7 consultations, and public land management plans and permit issuance. In theory, those who get their approvals earliest get the best deal, with larger burdens reserved for latecomers.
2. At the landscape level, it is more feasible to calibrate habitat conservation planning to a recovery standard for endangered species and to prevent threats to other vulnerable species. Landholding-specific HCPs tend to aim for mitigation or, at best, avoidance of impacts on listed species.
3. Landscape-level planning promotes economies of scale in data collection and monitoring. Good science is expensive. The burden of marshalling and interpreting the needed information is onerous for individual rightsholders seeking development permits. Resealing could shift an appreciable degree of this burden from individual property owners applying for incidental take permits to the public agencies and broader constellation of rights holders with responsibilities and interests in the eco-region. At a landscape level of conservation, it is also easier to evaluate and allocate a "fair share" of the burden between public and private entities.
4. Adaptive management of conservation strategies and reserve design is facilitated and made more flexible on a larger scale. That is because adaptive management requires that some part of the development plan covered by an HCP remain contingent. It is more feasible to do this in larger scale habitat plans.
5. The quality and degree of public participation is generally more satisfactory at the broader scale of planning. This is especially true if a local government mediates the development of the HCP(s) because these entities already routinely include the public in local decision-making processes.\3\
\3\ An exception is where a single-landowner prepares a large landscape-level HCP as is true for many timber HCPs.
Fitting the incidental take permitting program within a broader conservation framework governed by specified standards and goals has a parallel in the protection of watersheds under the Clean Water Act, or the protection of airsheds under the Clean Air Act. To obtain a permit to discharge regulated air pollutants into an airshed that is already impaired, the permittee must make a net positive contribution toward reducing overall emissions to help meet the ambient air quality standards. To do this, the permitted must offset its emissions by procuring reductions from other facilities. In the water quality arena, permittees must show that their contribution of contaminants will not violate basin-wide standards that are designed to assure conditions necessary to support "beneficial uses" of the watercourse. Likewise, the workshop suggested that individual HCPs should be calibrated to contribute toward achieving a bioregional conservation strategy that aims for long-term, sustainable conservation. This may sometimes entail more than avoiding or minimizing impacts on the subject landholding. It may also entail reducing the threat to the species on other lands through off-site mitigation via a mitigation fund. Mitigation funds can be used, for instance, to purchase the highest quality habitats to prevent their development.
There are several potential vehicles for resealing habitat conservation planning. One is to accelerate the development and improve the performance of recovery plans under the ESA. There are several problems with this vehicle, however:
=> Too often today, recovery plans do not exist and therefore cannot serve as a guide to individual HCPs. Yet, it is not realistic for the Services to decline to approve a proposed HCP until a recovery plan for the covered species is in place. One alternative is to make the approval of such HCPs conditional upon adoption of the recovery plan. This can work without undue risk to the permitted under the adaptive management strategy described later in this document so long as the Services are diligent in their recovery planning efforts.
=> When recovery plans have been developed, they generally have not resulted in more adequate HCPs.\4\ Historically, recovery plans have been of poor quality. Most are not biologically defensible.
\4\ See generally Kareiva et al, Using Science in Habitat Conservation Plans, National Center for Ecological Analysis and Synthesis, Univ. of California, Santa Barbara, and American Institute of Biological Sciences, Washington, D.C. (1999).
=> Recovery plans have often inappropriately subordinated the biological objective to economic considerations. Economics does count in apportioning the conservation burdens among the public and private landowners, but must not be allowed to dictate the biological requisites of the recovery plan.
=> Recovery plans are not viewed as binding and enforceable because that would be tantamount to the federal government engaging in land use planning. That is more a political than a legal objection, however. In fact, the federal government needs to have a basis for deciding whether an HCP provides sufficient conservation benefit to be approvable. Recovery plans can provide that guidance.
=> "Recovery" is a species-based concept and recovery plans do not necessarily accomplish much for ecosystems, their processes, or functions. However, there is no obvious reason why bioregional HCPs cannot adopt a "recovery" conservation goal for those species in the assemblage that are listed under the Act. Likewise, there is no reason why recovery plans cannot address multiple species and be habitat-based. Such an approach would further the goals of the Act, i.e., to preserve the ecosystems upon which threatened and endangered species depend.
A second promising vehicle is preparation of HCPs and administration of take allowances through sub-permits by units of state and local government that already have the predominant role in land use planning. One example is the California Natural Communities Conservation Program (NCCP) approach.
A third vehicle is the promulgation of programmatic standards or guidelines for multi-species conservation by federal land and water managers and regulators. For example, the recent adoption of NMFS' programmatic guidelines for logging on anadromous fish-bearing streams in the Pacific Northwest may prove to be a useful model. Such programmatic guidelines can apply standards for riparian buffers and acceptable levels of sedimentation to entire watersheds or other ecologically significant planning units. Similarly, the Aquatic Conservation Strategy component of the President's Forest Plan provides a multi-layered planning approach intended to result in ecosystem-wide forest management.
Recommendation # 2: Calibrate Habitat Conservation Planning to Biologically Defensible Goals
Species recovery is the ultimate goal of the ESA and contribution to this goal is the yardstick by which the habitat conservation planning process should be measured. HCPs will be viewed as contributing to the problem rather than the solution unless they are designed to advance a restoration strategy, that is, unless they confer a ret survival benefit' to the species. Otherwise, the Services are running a hospital in which the patients will never be taken off life support.\5\
\5\ On heavily impaired lands, even a net benefit standard may not be enough to recover the species or prevent local extirpation. In these circumstances, the federal government's role in bioregional planning may need to include purchasing and restoring such lands. HCPs should not be counted on to solve all endangered species/private lands conflicts.
The difference between "survival" and "recovery" can be understood as different levels of risk for the species. At present, the level of acceptable risk is left to the judgment of the applicants and the Services and is never made explicit. Often, there generally are not sufficient data to quantify these risks. Qualitative analysis of risk factors is possible, however. This type of risk analysis is familiar terrain in setting air and water quality criteria, for example. Thus, it would be feasible to assess the risk to species by identifying and addressing the factors that have the largest effect on survivability. Independent scientific peer review would be very beneficial in doing this.
Such higher conservation objectives may require greater landowner incentives. Indeed, it makes sense to correlate the extent of regulatory assurances to the extent of biological benefit conferred in an HCP. One way to do this is to link the duration of regulatory assurances to the degree of conservation effort embodied in the plan Plans that contribute to recovery would get longer term assurances than those that only avoid jeopardy. Similarly, plans based on highly adequate data and analysis would be entitled to longer term guarantees.
In advancing the ultimate biological goal, the share of conservation costs allocated to non-federal landowners can be minimized by holding federal agencies to a higher standard or performance. Stated another way, a consequence of managing public lands to a less exacting biodiversity conservation standard is a higher degree of burden assumed by the private rightsholders, or a compromise of the biological goals of the ESA. Unfortunately, prevention of jeopardy is the aiming point for most management decisions on federal land. This low standard of management for the public lands should be of as much concern to the property rights community as it is to the conservation community. However, allocating conservation "costs" between federal and non-federal lands is not an option in many regions of the country since there is little or no federal land, or existing federal land is unsuitable to support the species in question.
Biological science should drive the development of both bioregional and individual landowner plans. Economics is relevant to the allocation of responsibilities among landowners public and private in achieving the conservation goals of the plan, but should not be allowed to intrude into the choice of conservation strategies. The performance reviews revealed, however, that the statutory command to "minimize and mitigate project impacts to the maximum extent practicable" has become an economic feasibility standard in practice. HCP negotiations often been driven by the applicant's assertions as to the effects of mitigation alternatives on profit margins, rather than by the biological imperatives.
Recommendation # 3: Adaptive management and biological monitoring should be routinely required in HCPs.
Every HCP should be regarded as a "learning laboratory" wherein the conservation arrangements are treated as working hypotheses. In that regard, the elements of adaptive management and the potential responses to changes should be built into the plan from the beginning. Another term for "adaptive management" is "contingency planning". In either, the core requirements are a program for evaluating the performance of the HCP and the specification of contingency arrangements (alternative conservation measures) that would be triggered automatically in the event the performance fails to meet the goals. This might entail the HCP permittee implementing the plan in phases so that permission to begin a later phase is contingent upon the Services verifying that the permitted has met the performance standards in the prior phase. This is more easily accomplished in large ecosystem-based plans that are implemented over time.
Workshop participants identified five elements or steps to develop an HCP with adaptive management and monitoring:
1. Identify explicit, measurable, biological goals;
2. Identify explicit human-induced and other stresses on the system;
3. Identify imaginative strategies to achieve the biological goals;
4. Monitor biological indices by developing a statistically valid sampling scheme or an analytic structure for interpreting data; and
5. Develop mechanisms to translate data into needed plan adjustments by the land managers and the oversight agencies.
These elements call for the rigorous application of the following scientific methods:
-- System Assessment: systematic collection and statistical analysis of data on "healths of the important ecosystem components and on the factors that may influence health at several levels: population, species, community, habitat, and ecological processes.
-- Experimental science: rigorous, controlled, empirical tests to confirm causal relationships, management hypotheses, and the incidental impacts of management.
-- Risk analysis: statistical analysis of empirical results to identify levels of uncertainty and therefore ensure against "net harms. Risk assessment need not be quantifiable. We can start by identifying which activities will result in the largest impacts, then develop a conceptual monitoring approach. For example, employing such risk factors as habitat loss, birth rate, and migration barriers allows planners to get a better sense of whether risk levels are acceptable.
-- Provision for uncertainty: discussed below.
All of the above methods require monitoring. Notably, the NCEAS study found that less than 50% of HCPs had clear monitoring plans in place, where "monitoring" meant more than just "counting" animals. Yet, monitoring will not necessarily reveal the changes that need to be made in time to make them. This argues for a margin of safety in the selection of the HCP conservation strategy. Rigorous monitoring is worth doing even for HCPs that do not have an adaptive management feature because the rate of amendments to HCPs (at the landowner's request) tends to be high. Such amendments provide the opportunity for adjustments in conservation strategies.
Monitoring must also be time-scale sensitive. For example, short-lived species, e.g., listed mice species, must be monitored much more frequently than long-lived species, e.g., desert tortoises (with respect to generation time), and annual plants more frequently than redwood tress. In short, effective monitoring is keyed to the specific species.
Strategies for dealing with critical uncertainties are essential for adaptive management, and to make the HCP process work in general. An effective and acceptable strategy would detect possible fatal data deficiencies and deal with them in a manner that does not place the target species at risk due to irreversible development of habitat but also does not make development impossible. The first step is to make the adequacy of the data explicit. To assess the sufficiency of data for habitat conservation plans, an inventory of available data and acknowledgement of gaps should be a routine requirement.
When critical data are unavailable or inadequate for prudent planning, and it is not realistic to saddle the ITP applicant with the burden of undertaking original research and developing data, certain precautionary processes should accompany that ITP:
-- The greater the impact of a plan, the fewer gaps in critical data should be tolerated. For example, the standard of data adequacy would be higher for irreversible activities such as are typical in urban development as opposed to activities whose impacts can be temporary, as is sometimes the case for water diversions.
-- A scarcity of data on impacts of take should be handled by assuming a worst case-scenario in determining whether approval criteria have been satisfied.
-- For large HCPs covering vast expanses of land, take needs to be quantitatively assessed.
-- Where there is a scarcity of information to validate the effectiveness of mitigation, mitigation measures should be implemented and assessed before take occurs. This could become an explicit approval criteria for HCPs.
-- Monitoring needs to be very well designed in those cases where mitigation is unproven.
-- Adaptive management needs to be a part of every HCP judged to be predicated on substantial data shortages, not just to deal with "unforeseen circumstances". When faced with data shortages, there needs to be explicit measures for using the information from monitoring to alter management procedures. This means that a precise trigger for "mitigation failures" needs to be spelled out, as well as procedures for adjusting management when that signal of "failure" has been received. The key point here is that the mere existence of monitoring is not a solution to data shortage--there also has to be a quantitative decision-process that links monitoring data to adjustments in management.
In sum, where critical information is scarce or uncertain, the resulting plans should:
-- be shorter in duration -- cover a smaller area -- avoid irreversible impacts -- require that mitigation measures be accomplished before take is allowed -- include contingencies -- have adequate monitoring
Recommendation # 4: Regulatory assurances should be compatible with adaptive management and commensurate with an HCPs conservation performance
In HCP negotiations, the landowners typically want regulatory assurances that tend to shift the risks associated with complex biophysical systems to the species, which can ill afford them. The permit applicant wants to be absolved of further responsibility for the conservation of the species in exchange for the development concessions he/she makes in the HCP, irrespective of the future population trends for the covered species. That is what is effectively conferred by the "no surprises" guarantee.
But biological systems are inherently fraught with uncertainty. They are not only more complex than we know; they are inherently more complex than we can know, in the words of one eminent workshop participant. Adaptive management responds to this reality. Under adaptive management, HCPs are acknowledged to be mare working hypotheses, predicated upon assumptions about how species and their ecological processes and functions respond to changes in habitat size, location, configuration, quality, etc. Under adaptive management, these assumptions, uncertainties, and knowledge gaps are made explicit, and the conservation strategy includes a directed and funded program of hypothesis testing against specified and measurable performance goals, monitoring and, most important of all, adaptations of the initial conservation strategy in response to the results.
Adaptive management will also require a fundamental change in the way the regulatory assurances are structured, so that HCPs remain flexible and contingent, rather than immutable, as they are now. One solution lies in converting the assurance package from regulatory immunity to regulatory indemnity. That means that if adaptive management indicates that the species' prospects would be better served by additional restrictions on the use of land or other those could be accomplished without the consent of the landowner, but also without economic penalty to the landowner. The biological risks would, in effect, be absorbed by a compensation fund.
An analog to this is an insurance arrangement under which the issue of who shoulders the risks associated with HCPs converts to the issue of who funds the indemnity pool, and how the decisions on compensation will be made. The regulatory compensation could be funded from Premiums contributed by the beneficiaries, which include the HCP applicants as well as the taxpayer. There is also the potential to fund a portion of the compensation pool through reductions in the cost of debt service for covered development projects. An indemnity arrangement does reduce the risks to development under the ESA. Some share, perhaps most, would also need to be absorbed by the public. This is beginning to happen in the aquatic arena.\6\
\6\ Solving the issue of how to determine compensable loss in a nanny that satisfies the private rightsholders is trickier in the terrestrial HCP context than in the aquatic HCP context (where lost water supply reliability is both relatively easy to measure and to compensate). Higher conservation objectives may require higher incentives.
Regulatory assurances should not be automatic. Rather, the Services can and should calibrate the regulatory assurance conferred (e.g., the scope or the duration) to the assurance of conservation performance provided by the HCP. Plans that contribute to recovery would get longer guarantees than those that simply maintain the current population level or allow some decrease. Similarly, plans where the underlying data and analysis are judged highly adequate, via objective, definable standards, would be entitled to longer term guarantees.
A recommended approach is to negotiate as a term of the HCP the circumstances that would trigger a requirement for changes in the HCP, the type of changes that could be required, the responsibility for implementing those changes and the contingencies that must be left open in the development plan to allow these changes to be made.
Stronger, more complete, or longer term assurances might be reserved for HCPs that have the following features:
1. plan-specified performance goals;
2. an effective monitoring program;
3. an adaptive management element which identifies the significant risks of the HCP not achieving the performance goals, a contingency plan that is triggered in that event, and a commitment of funds to carry out this element;
4. a commitment by the parties to effective enforcement of the HCP terms; and
5. third party enforcement provisions, should the commitment to abide by the terms of the HCP as described above fail.
Recommendation # 5: Independent science should be used to strengthen HCPs.
Whether the conservation strategy adopted in an HCP is adequate to meet the biological goals requires the exercise of professional judgment and discretion. It is essential that these be specified explicitly and correctly. Even apart from the influence of economics and politics on these judgments, there may be a spectrum of responsible opinions among scientists and agency officials as to whether thresholds of data adequacy or standards for plan approval have been met. There are few bright lines and courts are ill equipped to arbitrate such technical disputes. We need an HCP process that reliably attains the biodiversity conservation objectives of the ESA (survival and recovery) in spite of potential differences in responsible scientific judgment. Independent scientific review may help fulfill that role.
Scientific review is also important because decisions on conservation strategy made apart from the view of the scientific community and the public will not have the credibility that HCPs need. The Service negotiators also need the reinforcement that independent science can provide. Outside scientific scrutiny imposes a standard of scientific excellence that is difficult to counteract. The Services have the responsibility of ensuring that applicants use adequate scientific information to develop HCPs Conservation and permitting decisions made without a clear, factual basis and a demonstrable link to information will not result in credible and legally sustainable HCPs. Independent scientific involvement can reinforce the Services' decisions if conducted and managed properly. One way to approach this would be to enlist independent scientists in the development of general scientific principles or guidance for species or habitats on which HCPs can then be based, such as the regional conservation guidelines for coastal sage scrub in Southern California.\7\
\7\ A qualified irk reviewer is one who: 1) has little personal stake in the nature of the outcome of decisions or policies, in Arms of financial gain or loss, career advances, or personal or professional relationships; 2) can perform the review tasks flee of intimidation or forceful persuasion by others associated with the decision process; 3) has demonstrated competence in the subject as evidenced by formal tang or experience; 4) is willing to use her or his scientific expertise to reach objective conclusions that may be discordant with her or his value systems or personal biases; and 5) is willing and able to help ideate internal and external costs and benefits--both social and ecological--of alternative decisions. Typically such a parson is associated with a recognized scientific society or is otherwise an established professional in a particular field.
The timing of scientific input is critical for shaping HCPs. It is important to get scientists involved as "scientists," providing data and analyses, not just as reviewers, reacting to someone else's data and analyses. The input must come at the formative stage when "first principles" of the application of conservation science are being established for the reserve design or other conservation strategy. These decisions are made as the HCP is negotiated, not at the stage where the Service issues the incidental take permit. At present, HCP applicants control access to the negotiations. The Services accord them this discretion because they view HCPs as applications for a regulatory permit, and therefore as the applicant's workproducts. But HCPs are really negotiated settlements of regulatory liabilities, not just applications for permits. The governmental action takes place in these negotiations. Permit issuance is a mere formality.
One way to interject independent science into HCPs is to bring independent qualified experts into the negotiations directly under the sponsorship of the local communities or interested conservation organizations. However, these potential participants often do not have access to such expertise or the means to procure it. An "HCP Resource Center" comprised of a nationwide network of conservation scientists, resource economists and legal experts with negotiation skills could meet this need. It could allow tailored expertise to be deployed to engage directly and effectively with the agency and applicant's team of negotiators.
CONCLUSION
The performance of habitat conservation planning on lands and waters subject to private property rights could clearly be upgraded through the better application of sound principles of conservation science. Much of this upgrade could be accomplished by the Services themselves, within their existing statutory authority--and with an increase in the needed financial resources. The proposed amendments to the Services' HCP Handbook are, in the main, steps in the right direction. We have provided the Services detailed comments on their proposed amendments, derived from the findings and conclusions of the HCP technical workshop.
Unquestionably, the statutory framework itself could also be improved, to create incentives, disincentives and approval criteria more conducive to effective habitat conservation planning. We also believe that this could be done in a manna that does not increase the burdens imposed on the private rights holders. Indeed, we believe, based on the technical analysis synthesized by the workshop, that statutory reforms could be coupled with more realistic federal funding in manna that would alleviate some of those burdens and make the habitat planning process more palatable, predictable, effective and scientifically defensible.
The short time available for preparation of this testimony did not permit us to generate thoughtful recommendations for statutory reform. If the Subcommittee should determine to explore that course, however, the Natural Heritage Institute would be pleased to work with your staff to suggest reforms well-grounded in the performance reviews which we call to your attention in this testimony.
Thank you for the privilege of addressing the Subcommittee today.