The Endangered SpeciesAct at 40 Is it a Pyrrhic victory? By Isabelle Groe

WHAT HAPPENS WHEN AN ENDAN-gered species puts a halt to growth? That isone of the more extreme outcomes of theEndangered Species Act, but it isn't uniqueto one area. It's happened in fast-growingArizona, and it's happened in not-so-fast-growing parts of the Pacific Northwest.

In 1997, the cactus ferruginous pygmyowl, a tiny bird that lives in the SonoranDesert of Arizona, was listed as endangeredunder the Endangered Species Act. The owlhappened to nest in Pima County, which in-cludes the Tucson metropolitan area. Whenthe owl was listed, development activitiesimmediately slowed down. A new highschool was delayed.

"The owl was found in the hottest partof town as far as growth went, so it was thepygmy owl versus the bulldozer," says Caro-lyn Campbell, executive director of the Co-alition for Sonoran Desert Protection.

The dilemma prompted the develop-ment of the Sonoran Desert ConservationPlan, produced by a steering committee ofcity and county governments, environmen-tal groups, developers, ranchers, and neigh-borhood representatives who met for overthree years to find the right balance betweeneconomic development and wildlife protec-tion. A scientific team prepared a map ofbiologically sensitive lands, which was thenincluded in the county's comprehensiveland-use plan to steer development awayfrom ecologically important areas. In 2004the community passed a $174 million openspace bond to acquire or lease 200,000 acresfor conservation purposes.

Today, the plan is viewed as a nationalmodel for reconciling conservation andgrowth (it won a National Planning Awardfrom APA in 2002), but it would not havehappened if the owl had not been listed inthe first place. "We could have never gottenthere without the Endangered Species Acthammer," says Campbell, who helped craftthe plan. Ironically, the owl was unlisted in2006 because of alleged flaws in the underly-ing science. This decision is currently chal-

The little cactus ferruginous pygmy owl madethe endangered list in 1997.

lenged by environmental groups, but in themeantime, the Sonoran Desert Conserva-tion Plan lives on.

Survival rate

Since its enactment in December 1973, theEndangered Species Act has proven to be apowerful law. A 2012 study published by theCenter for Biological Diversity, a nonprofitgroup dedicated to the protection of endan-gered species and wild places, comparedthe actual and projected extinction rate ofESA-listed species, concluding that the actprevented the extinction of 227 species.

However, much has changed since thelaw was adopted. The population of the U.S.has increased by more than 50 percent inthe past four decades, and the list of threat-ened species has continued to grow. Withclimate change, factors leading to extinctionhave also become more complex.

"The ESA is needed more than ever,"says Noah Greenwald, endangered speciesdirector of the Center for Biological Diver-sity. There are currently close to 1,500 spe-cies listed under the act, and Greenwald es-

timates an equal number are not protectedbut should be.

With an annual budget of less than $180million, the ESA is chronically underfund-ed. "It is expensive to recover species. Weare not committing the financial resourcesor political will to solve the problem," saysFrank Davis, professor at the Donald BrenSchool of Environmental Science and Man-agement at the University of California,Santa Barbara, and coeditor of the book TheEndangered Species Act at Thirty.

Implementation has often pitted eco-nomic interests against endangered spe-cies. One of the most famous examplesis the northern spotted owl, native to theold-growth forests of the Pacific Northwest.After the bird was listed in 1990, a bitterconflict arose between environmentalistsand the timber industry, which feared thatthousands of jobs would be lost. The Pa-cific Northwest timber industry did, in fact,shrink in the five years after the listing, butCreenwald points to other causes as well,saying that "mechanization, export of rawlogs, and liquidation of old-growth forestsresulted in equal or more jobs being lost."

That jobs-versus-species argument isn'tunusual.

Some years after the law passed it hadcreated so many conflicts that it was amend-ed. Instead of simply prohibiting develop-ment, ESA implementation now permitseconomic activities and mitigates them.

How it works

Once a species is listed. Section 9 of the ESAcreates a prohibition against "taking" mem-bers of the listed species, which includes ha-rassing, harming, killing, or collecting thespecies, or degrading its habitat. In light ofthe development obstacles that such prohi-bitions created. Congress amended the actin 1982. One of the changes was the intro-duction of incidental take permits in con-nection with conservation plans that metcertain requirements to recover species.These "habitat conservation plans" have

American Planning Association 45

since become one of the most importanttools available to local planners to reconcileeconomic development and conservation.

"The ESA is more flexible than it usedto be; it has grown up," says Andrea Olive,assistant professor of political science andgeography at the University of Toronto andthe author of several papers comparing en-dangered species policy in Canada and theU.S. "Planners have a lot to celebrate on its40th anniversary because it is not nearly asrigid as it used to be."

An HCP is a bargain struck between adeveloper and the U.S. Fish and WildlifeService. Development activities are allowedto "take" an endangered species, degradingits habitat or even killing it in exchange forconservation measures such as setting landaside elsewhere for the impacted species.Starting in the 1990s, HCPs became popu-lar among local jurisdictions that wantedto accommodate economic developmentwhile still meeting the demands of species

protection. The Sonoran Conservation Des-ert Plan is an example.

Given the number of species to protectand the high potential for conflict betweennew development and habitat for listedspecies, local governments often opted formulti-species hahitat conservation plans inorder to protect a large set of species whilefacilitating economic development under asingle agreement. This approach was exten-sively used in California, which has the sec-ond highest number of endangered speciesin the country after Hawaii and also faceshigh demands for economic growth.

San Diego approach

One of the first jurisdictions to developsuch a plan was San Diego County, wheredevelopment had eliminated 70 percent ofthe county's coastal sage scrub, 95 percentof its native grasslands, and more than 90percent of other coastal vegetation commu-nities. In 1994, the Fish and Wildlife service

added the California gnatcatcher to the listof threatened species, halting developmentprojects in coastal sage scrub, the hird'shabitat.

This provided the impetus for the devel-opment of a Multiple Species Conservationprogram, adopted by the county and city ofSan Diego in 1997.

The MSCP was designed to protect 85imperiled plant and animal species by sav-ing 172,000 acres of San Diego County'schaparral, coastal sage scrub, and other dis-appearing wildlife habitats. Scientists pri-oritized which land was the most importantto protect and how much of it needed pro-tection in order to guarantee species' long-term survival. Developers were required tomitigate projects by contributing to the landpreserve. Incidental "take" of listed specieson the developed land would be allowed.

"In a fragmented landscape like South-ern California, you are never saving enough,but the amount of land that was conserved

Orono, Maine, is protecting its vernal pools—before the species that live there even get listed as endangered.The pools are home to spotted

salamanders, whose egg masses are shown here, among other wildlife.

46 Planning December 2013

at the time was a real score," says MichaelBeck, San Diego director of the EndangeredHabitats League and county planning com-missioner. Economic analysis led directly tothe MSCP in San Diego County. "We wereable to demonstrate there is an intersectionbetween conservation and economics thatwork for both sides," Beck says.

What's optimum?

Not everybody agrees that endangered spe-cies win in these deals. Some scientists andenvironmentalists have criticized habitatconservation plans for being development-driven rather than conservation-driven. "Inprinciple they often have very good goals,but in practice it is a mixed bag," says JohnBuse, legal director of the Center for Biolog-ical Diversity. Critics point out the fiaws ofmultiple species habitat conservation plans,including insufficient funding, the failure toset aside enough habitat for covered species,or the inability to consider the local needsof specific species.

Vernal pools became the symbol of theselimitations. In 1997, the Fish and WildlifeService estimated that up to 97 percent ofvernal pools in San Diego County had beenlost. These are small seasonal bodies of wa-ter that provide habitat for a unique set ofendangered plants and invertebrates such asthe San Diego fairy shrimp. In 1998, a coali-tion of environmental and scientific organi-zations filed a lawsuit against the city of SanDiego, which had approved the destructionof vernal pools on development sites despitethe Multiple Species Conservation Plan'spromise to conserve and avoid vernal pools.

The litigation stretched over a decadeand resulted in a decision ruling that thecity had failed to adequately protect vernalpools. Now the city is required to develop anew vernal pool habitat conservation plan.

Meeting the needs of development andendangered species remains a challengingexercise for local governments, especiallyin urban areas where high land values makehahitat preservation more expensive andpolitically difficult. In a recent paper pub-lished this year in the journal Applied Geog-raphy, based on an analysis of endangeredspecies conservation in five large U.S. cities,authors Andrea Olive and Alexa Minichi-ello found that very little is being done bythe Fish and Wildlife Service or the citiesthemselves to protect and recover urbanendangered species.

By the time species are ESA-listed, their

Development threatens the habitat of the rubber boa (above) and sharp-tailed snakes.

Canada struggles with implementation

who will prevail in Pemberton? That has been a question since 2011, when anew population of sharp-tailed snakes was discovered in this village near theWhistler Mountain ski resort in British Columbia. Unfortunately, the reptileslive on a spot that has been slated for a large residential development project.Other listed species live there as well. Local biologists and conservationistswant the development to be altered in order to conserve habitat, but they facean uphill battle.

The Canadian government passed the 2002 Species at Risk Act with the aimof giving legal protection to a wide variety of endangered or threatened species.Unlike the U.S. law, SARA provides automatic protection solely for at-riskspecies on federal lands—about five percent of Canada's total lands—as well asmigratory birds and aquatic species. For other types of land parcels, it is up tothe provinces to protect endangered species.

Of the 10 Canadian provinces, Ontario, Nova Scotia, and New Brunswickhave the most comprehensive species laws, while British Columbia and Albertahave no specific legislation. The others are in between. "We have a patchworkof laws across Canada that are inconsistent and have no overall plan or goals inplace," Andrea Olive says. "We don't have to think about endangered species ifwe don't want to."

SARA allows the federal government to extend its influence if provinces failto protect a species or its habitat. To date, this provision has never been used,though the federal government recently issued an emergency order to protectthe greater sage grouse in Alberta and Saskatchewan. The bird's population hasfallen 98 percent since 1988, a decline blamed on the destruction of its habitatby the oil and gas industry.

In British Columhia, the South Coast Conservation program recentlylaunched an initiative to encourage governments on the south coast to considerspecies and ecosystems at risk as part of their local land-use choices. "We candemonstrate that species at risk does not mean that economic development inyour community is going to stop," says Pamela Zevit, South Coast ConservationProgram coordinator.

American Planning Association 47

Evan Richert, town planner for Orono, Maine, surveys a vernal pool. Planners are working withstakeholders to develop protection tools.

numbers are so small that there are oftenfew options available that would allow bothspecies recovery and new growth. In SanDiego, for example, there were so few re-maining vernal pools that it was difficult tofind adequate alternatives to protect themwhile still allowing development to occur.

"The ESA has proven to be a remarkablystrong and important conservation policyin the U.S., but it would work best if otherconservation tools were used to preventspecies from being listed in the first place,"says Frank Davis.

Getting a jump on the problemIn Maine, a team of scientists and localplanners is now experimenting with a newtool to conserve their own vernal poolsbefore the species they host even get listedunder the ESA. Those pools are productivebreeding habitat for several species of frogs,salamanders, and invertebrates.

In 2006, the state of Maine passed leg-islation to regulate a subset of vernal poolsas significant wildlife habitat. The townof Orono (pop. 10,000) felt the impact. Aproposed residential development projectlocated in the town's designated growth

zone, near schools and downtown, couldnot move forward because of a vernal poolat the center of the site. Drawing on the les-sons from this experience, the town decidedto collaborate with the University of Maineto identify all vernal pools in the region anddetermine which ones were significant andrequired protection.

"We had learned that the town's desirefor growth and the property owners' de-sire to develop could both be upset by thelack of knowledge," says Evan Richert, AICP,town planner for Orono. "Knowing aboutvernal pools in advance allows some up-front planning that saves money and tears."

Based on the pool inventory, planners,regulators, developers, scientists, and other

stakeholders are collabo-rating to understand howdevelopment and conser-vation can better coex-ist. They are developinga hybrid tool combiningelements of a local in-lieufee program and a trans-fer of development rightsprogram. With this tool,developers can build in thetown-designated growtharea and disturb or evendestroy the vernal pools onthe site so long as they con-tribute a fee to finance theprotection of significantpools elsewhere outsidethe town. Rural landown-ers would be remuneratedthrough a permanent con-servation easement thatwould include the vernalpool and adjacent uplandsthat are part of the habitatfor animals that depend onthe pool.

"We spend the moneywisely investing in a landscape that willhave a greater chance of supporting popu-lations of pool-breeding amphibians in per-petuity," says University of Maine wetlandsecologist Aram Calhoun. "We are not goingto save all the pools, but we are working ona win-win situation for the town and for theamphibians."

Richert says that he knew very littleabout vernal pools before he started work-ing on this project with Calhoun. But hewent out in the field to look at the pools andidentify the egg masses. "They were placesof great beauty, teeming with life," he recalls."These are good things for us to have as longas we can work around them." II

Isabelle Groe is a freelance writer and photographerbased in Vancouver, British Columbia. See more of herwork at www.tidelife.ca.

O N L I N E

3 F R O M A P A

t and scierlEin's memoria

of plants and animals since abouti

fes/ng.? is artist and:ion, charting the losses:p://whatismissing.net.

'A Lav\/ Evolves,"P/cJnn/ng, October 2010;"Twelve Years and Two iVlillionBucks,"Planning, August/September 2006.

48 Planning December 2013

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