Conservation Biology, Pages 297299Volume 11, No. 2, April 1997
Habitat Conservation Plans and the Protection of Habitat: Reply to Bean and Wilcove
The U.S. Endangered Species Act (ESA) has rightfullybeen called one of the strongest environmental laws. Al-though, as Michael Bean and David Wildcove note (Con-
12), the ESA has not begun toreach its potential, it has been forcefully usedoftenthrough litigationto protect Spotted Owls, Red-cock-aded Woodpeckers, Marbled Murrelets, grizzly bears,and many other species from the constant assault ontheir habitats. It also has been used to stop trade in partsof listed species, halt the import of endangered speciesinto the United States, and require the evaluation oftransboundary habitat needs of listed species.
In recent years, however, the ESA has come under at-tack by extractive industries and proponents of the pri-macy of private property. With allegations that regularlyturn out to be false or highly exaggerated, anti-ESAforces have had a field day with the private-lands issue.It is this inaccurate, so-called property rights attack onthe ESA, rather than the way the Act really has func-tioned overall, that has created much of the apprehen-sion among private property owners about the presenceof endangered species. This apprehension has resultedin political pressure to reform the ESA.
The focus of many actual or contemplated reforms hasbeen Section 10 of the ESA, which requires that habitatconservation plans (HCPs) be developed before privateproperty owners take endangered species on privatelands. The ESA generally prohibits the taking of endan-gered species, including harm, which has been inter-preted by the courts to include death or injury that re-sults from human alteration of habitat.
The ESA starts with this flat prohibition on taking,then provides a streamlined procedure for allowing tak-ing on federal lands or where a federal permit is re-quired, and a second procedurethe HCP processforallowing taking on non-federal lands. Essentially, an ex-emption from the prohibition against injuring or killingendangered species is granted if a habitat conservationplan has been developed, approved, and is being imple-mented.
Unfortunately, the development and implementation
of HCPs too often has fallen short of ESA requirementsdesigned to protect species while allowing some takingto occur. In practice, many HCPs fail to provide suffi-cient habitat quantity or quality to ensure that listed spe-cies will persist on the lands subject to the HCP. In somecases HCPs explicitly assure that the species will notpersist on the lands subject to the HCP.
The number of HCPs and similar ESA agreements hasskyrocketed since 1992, and there has been little oppor-tunity to evaluate their success or failure overall (a totalof about 180 HCP take permits have been granted, andmany more are being developed). Because each ap-proved HCP results in the issuance of a permit to takeactions that will likely result in deaths and injuries tospecies listed as threatened or endangered under theESA, just granting the permit is an act with serious andpotentially devastating biological consequences.
Red-cockaded Woodpecker HCPs, for example, in-cluding the recently proposed statewide HCP for Geor-gia and other statewide HCPs in preparation, routinelypropose relocation of the woodpeckers from private topublic land so that habitat on private land can be de-stroyed. Justification given for such translocations is de-mographic isolation of the birds on private land, yet thecriterion for demographic isolation is biologically ques-tionable and has not been reviewed by the scientificcommunity. There are two clear winners in such translo-cations: the private landowner who wants to be rid ofthe endangered species and federal land managers whohave endangered species quotas to reach as indicators ofsuccessful recovery of the species. Benefit to the spe-cies is highly uncertain and often lacking because move-ment of adult males is well-documented as rarely suc-cessful. Such was the case in the Red Oak HCP mentionedby Bean and Wilcove. In the case of the Red Oak HCPand also the Windover Farms HCP, incidental take per-mits were issued after their companies had cut exten-sively on the lands occupied by Red-cockaded Wood-peckers. The companies were then rewarded withpermits to continue habitat destruction.
For most recent Red-cockaded Woodpecker HCPs
Editorial Honnold et al.
Conservation BiologyVolume 11, No. 2, April 1997
where birds are not moved, the U.S. Fish and WildlifeService (FWS) has relied on an internal Private LandsManual that establishes the habitat requirements thatmust be maintained on the HCP lands. Without any ex-planation, the FWS established foraging habitat stan-dards that are less than one-third of the foraging habitatstandards contained in the current Red-cockaded Wood-pecker recovery plan. Yet these very same recovery planforaging standards were criticized in an American Orni-thologists Union report and found deficient in litigationchallenging unrestricted clearcutting in Red-cockadedWoodpecker habitat.
There is similar disregard for sufficient habitat in theSwan Valley Conservation Agreement, an ESA agreementnegotiated between FWS and Plum Creek Timber Com-pany that affects grizzly bears in the northern Continen-tal Divide ecosystem. The most significant problem fac-ing the bears there is road density and associated humanaccess; yet the Swan Valley agreement fails to establishroad density standards at levels necessary to protect andrestore grizzly bear habitat. This agreement authorizesless protective road density standards on Plum Creek,state of Montana, and U.S. Forest Service lands subject tothe agreement than on other Flathead National Forestgrizzly bear habitat not subject to the agreement.
There has been a dramatic increase in HCPs designedto cover multiple species. The Plum Creek Timber Com-pany recently received approval for an HCP pertainingto forest lands in Washington inhabited by Spotted Owlsand covering 285 listed and unlisted species. The HCPcontains no detailed analysis of the habitat needs of eachof these species. Furthermore, because of the Adminis-trations no surprises policy, Plum Creek has a guaran-tee that it will have to do no more for species on itsproperty for 100 years than what is set forth in the HCP.
Providing habitat sufficient for long-term survivalshould be the yardstick against which HCPs and otherESA agreements are measured. The failure of several cur-rent HCPs to meet this standard is worrisome enough,but this failure is being compounded by Administrationreforms that seek to make negotiated agreements likeHCPs a much greater focus of the ESA.
Some of these proposals have come with attractive la-bels, such as safe harbors and no surprises. Even acursory review of these reforms, however, raises sub-stantial biological, legal, and policy questions. Under nosurprises once a developer gets FWS to approve an HCP,the developer cannot be required to do anything moreto protect endangered species on the lands covered bythe HCP. Unless the landowner voluntarily agrees tochange the plan, the HCP will continue to be appliedwhether the species prospers or suffers.
The no surprises policy ignores a fundamental tenet ofconservation biology: species must have sufficient habi-tat quantity and quality to withstand stochasticity ef-
fects. We cannot ignore the critical role that changingconditions, chance events, and unpredictability play inextinction. Moreover, the time frame that applies tosome of these agreements is staggering: some recentones extend for 90 or even 100 years.
Theoretically, the danger in the no surprises HCP pol-icy could be remedied by the federal government payinglandowners to agree to modifications of HCPs in in-stances where the HCP is failing to protect species. Inreality, it is difficult to envision the federal governmentfunding such a program in an era of shrinking budgetsand already inadequate ESA dollars.
Safe harbor HCPs establish a biological baseline belowwhich species numbers or habitat cannot go. If moremembers of the species move into an area, the land-owner may take species to the baseline level. As devel-oped safe harbor HCPs are not without problems. Theprototype safe harbor HCP, the Sandhills HCP, was de-veloped for Red-cockaded Woodpeckers in North Caro-lina, issued by FWS to the FWS woodpecker recoverycoordinator, and contained no analysis whatsoever ofwhat particular lands would be included under the ru-bric of the HCP. That process has taken place behindthe scenes without public review or comment.
Interest in safe harbor agreements appears to stemfrom the assumption that the safe harbor policy is neces-sary because landowners are destroying habitat to pre-vent species from moving into it. Before taking the bio-logical risks inherent in a safe harbor policy, more dataneed to be gathered to determine whether such precipi-tous destruction of habitat actually is occurring and towhat degree. Moreover, statements of anticipatory habi-tat destruction by private landowners should be subjectto careful scrutiny. Safe harbor is a new avenue for HCPagreements and these will undoubtedly vary in quality.
Perhaps the most troubling aspect of the burgeoningnumber of HCPs subject to safe harbor and no surprisesis the failure to analyze existing HCPs to determinewhether they are, in fact, protecting biodiversity. Be-cause the substantial use of HCPs is so new, we haveonly begun to take a careful, systematic look at their ade-quacy and impact. Without this analysis, it is too early toallow these new versions of HCPs to proliferate. Contin-ually looking for new and better ways to protect biodi-versity is positive; drawing conclusions before the data arecollected is not. The spectre of removing thousands andthousands of acres of private land from protection underthe full force of the ESA, as would occur under many pro-posed HCPs, does not bode well for endangered species.
When Congress passed the ESA, it recognized that thesingle most important cause of endangered status forspecies is habitat loss. When Congress modified the ESAto allow taking of endangered species on private lands,the stated goal was to achieve habitat conservation.The basic question that must be addressed when exam-
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Honnold et al. Editorial
ining HCPs and similar agreements is, Does this planconserve habitat?
Sierra Club Legal Defense Fund, 11 East Main Street, Unit C, Bozeman, MT59715, U.S.A., email email@example.com
Jerome A. Jackson
Department of Biological Sciences, Mississippi State University, Box Z,Mississippi State, MS 39762, U.S.A.
8610 North Cedar, #203, Fresno, CA 93720, U.S.A.