Lessons Learned from a Study of Habitat Conservation Planning

Habitat conservation planning aims to find a balance between the protection of endangered species on nonfederal land and the protection of private property rights, a topic that has recently become polarized among parties with conflicting interests. More than 90% of endangered species in the United States are estimated to occupy at least some private land (GAO 1994). It is unreasonable to expect all that land to be put into public ownership, but it may also be unreasonable to expect private landowners to bear the full responsibility for the protection of the endangered species on their land. Section 9 of the Endangered Species Act (ESA) prohibits the “taking” on both public and private land, of species listed as endangered; currently, private landowners and developers could be subject to criminal and civil penalties for construction-related activities that might harm a listed species. Only in the last few years have formal mechanisms been developed that allow nonfederal landowners (including local and state governments) with endangered species on their land to proceed with reasonable levels of development within the law. The primary mechanism has been habitat conservation planning. As might be expected, conflicts over this issue are greatest in high-diversity and high-growth states, such as California, Texas, and Florida. In this article, I describe some of the complexities of the habitat conservation planning mechanism. Then I describe a novel approach to this management issue, a large project supported by the American Institute of Biological Sciences (AIBS) and the National Center for Ecological Analysis and Synthesis (NCEAS) in which faculty and graduate students attempted to evaluate the quality of the science being used in the formulation of habitat conservation plans (HCPs). The term “habitat conservation planning” refers to a specific process provided for in a 1982 amendment to the ESA (section 10[a][l][B]) and its implementing regulations and amendments (50 CFR parts 17 and 222; 63 FR 8859). In this process, the federal government makes agreements with nonfederal landowners^—HCPs—that assure, among other things, that appropriate measures will be taken to compensate for any “take” of the species. To “take,” in the language of the ESA, means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect the species” (section 3[15]). Harm, in the context of the ESA, may include significant habitat modification (50 CFR 17.3). In many cases, a steering committee oversees the preparation of an HCP and hires a private consultant to prepare the plan and its associated documents. The committee may include members of the environmental community, the real estate community, and government agencies. Experts on the species of concern may provide technical advice to the committee. A regional government or a local planning department may coordinate the process. Once the HCP has been developed, the US Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) issues an incidental-take permit that allows development to go forward. By this mechanism, a private landowner, a developer, or a local or state government agency that wants to modify property in a way that might harm an endangered species can proceed without breaking the law, and compensatory measures to help the species are assured. Unfortunately, the process can be expensive for the landowner. Moreover, it frequently “pits well-intentioned landowners, many of whom care deeply about the land and its heritage, against equally well-intentioned conservationists and government officials” (Ruckelshaus 1998). According to the current interpretation of the law, HCPs are not required to contribute to recovery of the species that is being harmed by the development, only to assure that its prospects for overall recovery will not be reduced. The measures recommended in HCPs to minimize and mitigate the effects of proposed take vary with the circumstances. Among the common measures are procurement of conservation easements, land acquisition at another site, translocation of animals to another site, habitat restoration, removal of exotic species, and provision of funds to support research on the species. Some HCPs are designed to have beneficial effects on balance. For example, one recent HCP allowed a small, isolated patch of south Florida oak scrub habitat that was home to an endangered bird (the Florida scrub jay, Aphelocoma coerulescens) to be destroyed for the construction of a Wal-Mart store, but the developer provided funds for twice that area to be added to a county-owned scrub preserve that is managed by periodic burning and already supports a scrub jay population. If this HCP is properly implemented, the net effect for the jay and other scrub endemics should be positive. Another example of a beneficial HCP is a special type called a “safe harbor agreement,” through which landowners are encouraged to improve their endangered-species habitat voluntarily but are not held responsible for maintaining a higher population level than was originally present (Hawkins 1995, EDF 1999). Many landowners in the sandhills of North Carolina have signed such agreements for the protection of the endangered red-cockaded woodpecker (Picoides borealis). In these cases, there may never be any take of the endangered species, only improvement of its habitat by management for a mature open pine forest. A recent push by the US Department of the Interior has encouraged the development of large-scale HCPs that cover multiple species. The plan for Washington State's Department of Natural Resources covers all 640,000 hectares of state forests that are within the geographic range of the northern spotted owl (Strix occidentalis caurinus). Among the other species protected by this HCP are the grizzly bear (Ursus arctos), the gray wolf (Canis lupus), and several recently listed salmon species (Oncorhyncus spp.). The Balcones Canyonlands Conservation Plan for the Edwards Plateau area, which includes Austin, Texas, allows limited development to proceed along with the establishment of a 12,000-hectare preserve system designed to protect the golden-cheeked warbler (Dendroica chrysoparia), the black-capped vireo (Vireo atricapillus), and six endangered cave invertebrates. California has an ambitious habitat conservation planning system of its own, the Natural Community Conservation Planning program. When the California gnatcatcher (Polioptila californica) was added to the federal list of endangered species, FWS became a partner with the state of California in the conservation of sage scrub habitat in Orange County (FWS/CDFG 1991). This land includes Los Angeles and has some of the most expensive real estate in the world. A county-wide system of preserves is now being set aside in a matrix area in which development is allowed. Along with the exponential rate at which HCPs are being approved, there has been increasing criticism of them from all sides. Bruce Babbitt, Secretary of the Interior, constantly copes with lawsuits claiming that current restrictions are unreasonably harsh. He admits that the development of satisfactory HCPs can be an expensive process that sometimes takes years, but he says that even then there are problems with the quality of some HCPs. He also gets complaints from environmental groups charging that HCPs are contributing to further declines of endangered species. He has encouraged scientists to participate in this rapidly developing policy area, although he was chagrined by a full-page advertisement in The New York Times (15 February 1997), in which the officers of several scientific societies called for a moratorium on HCPs, because he feels that, although the HCP mechanism is far from perfect, the solution is to improve it while acknowledging the burdens it may be putting on private landowners. I and many other ecologists agree with Babbitt; an interruption in the HCP process would be counterproductive. In the spring of 1997, given this melange of opinions, Michael Bean, a lawyer with the Environmental Defense Fund, persuaded me (then president of AIBS) and Frank Davis (then associate director of NCEAS) that, of all current endangered-species issues, habitat conservation planning was the one most in need of scientific review. The two organizations then agreed to sponsor a project in which scientists could use their particular expertise to contribute constructively to conservation policy. Although various publications on the subject of HCPs were available, the time seemed right for such a review. Bean et al. (1991) had described the early history of the HCP process, Beatley (1994) had emphasized case histories that involve urban development, and Noss et al. (1997) had advocated the increasing use of large-scale HCPs for multiple species and multiple habitats. Moreover, a group of conservation biologists had met in early 1997 at Stanford University to draft a letter to the Administration and Congress stating that they felt that some recently issued HCPs had been developed without adequate scientific guidance (Murphy et al. 1997). The National Research Council had published a summary of the relationship between science and the ESA (Committee on Scientific Issues in the Endangered Species Act 1995), but there was still no detailed summary or analysis of the quality of the science in currently approved HCPs. However, during the NCEAS/ AIBS study, Defenders of Wildlife published an independent policy analysis, Frayed Safety Nets (Hood 1998). This book contains narrative summaries of 24 representative HCPs. Peter Kareiva, of the University of Washington, agreed to direct the NCEAS/AIBS project. He recruited senior ecologists and graduate students from several universities around the country to participate in the working group. The approach was to develop large, standardized sets of questions that would allow analysis of specific characteristics of HCPs and to divide the work of answering them among graduate seminar courses. The leaders of these seminars, which were held in the fall semester of 1997 at eight universities, were Sandy Andelman, at the University of California-Santa Barbara; Dee Boersma, Peter Kareiva, and Mary Ruckelshaus, at the University of Washington; Daniel Doak, at the University of California-Santa Cruz; Harry Green, James Patton, Mary Power, and Kelly Zamudio, at the University of California-Berkeley; Martha Groom, at North Carolina State University; Fran James, at Florida State University; David Skelly, at Yale University; and Henry Wilbur, at the University of Virginia. A total of 106 graduate students and postdoctoral fellows participated. Three meetings were held at NCEAS in Santa Barbara, California, over the course of the study: an initial planning meeting; a larger meeting, with many graduate students from the participating universities, at which initial results were reported and reviewed by FWS and NMFS representatives and other scientists with extensive experience with HCPs; and a final meeting for data analysis, synthesis, and writing. Charles McCulloch, of Cornell University's Department of Statistical Science, attended the third meeting and provided statistical advice. As it turned out, the federal government did not even have a file of all currently approved HCPs. Two students spent a week in Washington, DC, at the National Wildlife Federation and the Earth Justice Legal Defense Fund compiling such a file. They were able to get copies of 208 of the 225 HCPs that had been approved by the time that the project began. A single HCP and its package of associated documents (e.g., the incidental-take permit, formal biological opinion from the federal government, implementing agreement, and environmental assessment) were sometimes hundreds or even thousands of pages long. Each graduate seminar was assigned a few HCPs and two large questionnaires. One set of questions was applied to all 208 HCPs. A more detailed set was applied to a representative subset of 43 of the HCPs. This second questionnaire was divided into five subsets of questions corresponding to the five stages of the habitat conservation planning process: descriptions of the status of the species, the proposed take of the endangered species, the likely impact of the proposed take, what steps would be taken to minimize or mitigate the impact of the take, and what biological monitoring was proposed. The objective was not to evaluate entire HCPs but to evaluate these stages independently. In many cases, finding answers to the questions involved consultation with FWS personnel, who provided extra gray literature. It also involved visits to specific sites and library work to determine whether all published relevant data were used. Richard Gooch, of the FWS office in Atlanta, made a special visit to Tallahassee to help my seminar group at Florida State University. The results of this large cooperative effort were compiled by Jim Regetz at NCEAS into a data set of answers to both questionnaires. The matrix has nearly 90,000 entries. In the spring of 1998, a copy of the first draft of the report, the questionnaires, and the matrix of data were sent to FWS for review. The agency provided extensive comments and corrections for approximately 5% of the data entries. After the corrections were incorporated, the statistical analyses were repeated and the report was revised. The final report, “Using Science in Habitat Conservation Plans” (Kareiva et al. 1999), was released in January 1999 on the NCEAS Web site (www.nceas.ucsb.edu/projects/hcp), along with the questionnaires and all the answers. Paper copies are available from AIBS. Most of the 208 HCPs surveyed (82%) involve a single species, but this profile is skewed because more than 70 plans are for the golden-cheeked warbler in Travis County, Texas. The duration of HCPs ranges from 7 months to 100 years. The major conclusion of the report is that, for many HCPs, insufficient data are available to support the actions recommended in the plans. It was not so much that these data were available and not used, rather that they did not exist. In other words, an HCP could be legally and politically justified because it was based on the best available data yet still be scientifically inadequate. For example, if the current status of a species and its population trend are unknown, there can be no scientific basis for judging the impact of take. Therefore, unless substantial flexibility is built into an HCP, it would be scientifically inappropriate to issue a permit before the necessary data are procured. In only approximately half of the HCPs was take of either the endangered species or its habitat quantitatively estimated. This lack of quantification is a problem because quantitative estimates of proposed take are what allow subsequent evaluations of the HCP in terms of actual take, the effects of take on the focal population, and, eventually, whether the HCP's implementation did in fact reduce prospects for the recovery of the species. In addition, proposed mitigation measures in some HCPs were unproven in the sense that there were no data indicating the likelihood that these measures would succeed. Finally, in only 7 of the 43 plans examined in detail did a well-described monitoring plan allow for clear evaluation of the HCP's success. These shortcomings do not mean that current HCPs don't meet the requirements of the law. What they do mean, however, is that greater attention should be given to the development of explicit scientific standards for HCPs and that those HCPs covering large areas or a large part of a species' range should be more quantitative in stating their biological goals and predicting the impact of take. The report makes several additional recommendations. First, when information important to the design of an HCP does not exist, higher levels of mitigation should be required. It is not necessary to postpone the approval of the HCP until population trends are known, but the HCP should acknowledge what important information is missing and allow for this degree of uncertainty in its design. Second, the report advocates adaptive management (Walters 1986), in the sense that management and monitoring should be designed to provide new information that can be used to inform future management decisions. Building more flexibility into the mitigation component of HCPs would also allow managers to be responsive to the results of monitoring during the implementation of a plan. Third, review by scientific advisory committees and academic scientists specializing in conservation biology could help prevent the government from approving HCPs that ignore relevant science. Another major recommendation of the final report is that the federal government create a national database for endangered species. Information about listed species should be maintained in an accessible, centralized location, and monitoring data should be made generally available. If such a database were made available to future preparers of HCPs, the whole enterprise of HCP preparation could be improved. On 8 February 1999, AIBS sponsored a roundtable discussion at the National Press Club to discuss the report's recommendations and habitat conservation planning generally in an open forum (see BioScience 49: 678). In March 1999, FWS and NMFS issued a draft addendum (FWS/NMFS 1999) to their handbook on habitat conservation planning (FWS/NMFS 1996). Without specifically acknowledging the NCEAS/AIBS-sponsored report, the addendum incorporates many of the report's recommendations. It calls for new emphasis on stating specific biological goals and objectives in HCPs; for an expansion of the use of adaptive management in future plans, or the of the permit of an HCP for which important data are for a clear between the monitoring and an adaptive management specific for mitigation have not been and for between the monitoring and evaluation of the of the However, FWS NMFS has for a national endangered-species a that the NCEAS/AIBS-sponsored report felt would be required for major improvement in habitat conservation planning. has that the of the project was limited to evaluation of the science in currently approved HCPs, a process that had to be from He to be by data and the data to be made available to He also emphasized to the that the was not to evaluate HCPs in their or determine whether they were in fact their The was rather to get scientists to work at the between science and management by about the complexities of the process but then to their attention to evaluations of the of and The faculty as as the graduate students part in this project it to be a but This is already being repeated by the for Conservation and which have a of formal recovery plans for endangered species in with the of other scientific as they with the issue of they can best participate in policy issues, will this in which a policy is at from a scientific of more in which faculty and students from multiple by means of seminar courses. The level of that both the students and faculty put into the HCP which in to their was It that scientists can contribute to policy if they get and then do what they are to to the It is to a that the science at large and to work to evaluate the science a policy students and faculty may be at the and need substantial help from managers and agency personnel, but they are to work to help the between science and to all 106 in the NCEAS/AIBS project and to Peter Kareiva, Jim and Doak, who did most of the also to Jim at NCEAS for meetings in Santa