[Senate Hearing 106-504]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 106-504
 
                       HABITAT CONSERVATION PLANS

=======================================================================

                                HEARINGS

                               BEFORE THE

                  SUBCOMMITTEE ON FISHERIES, WILDLIFE,
                           AND DRINKING WATER

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 20, 1999
                             JULY 21, 1999
                            OCTOBER 19, 1999
                            NOVEMBER 3 1999

                               __________

   ON THE DESIGN AND IMPLEMENTATION OF HABITAT CONSERVATION PLANS TO 
   PROTECT ENDANGERED SPECIES, AS ADMINISTERED BY THE U.S. FISH AND 
       WILDLIFE SERVICE AND THE NATIONAL OCEANIC AND ATMOSPHERIC 
                             ADMINISTRATION

  Printed for the use of the Committee on Environment and Public Works





                    U.S. GOVERNMENT PRINTING OFFICE
53-372cc                    WASHINGTON : 2000
______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC 
                                 20402




               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED SIXTH CONGRESS
                 JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma            FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California
ROBERT F. BENNETT, Utah              RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director
                                 ------                                

        Subcommittee on Fisheries, Wildlife, and Drinking Water

                   MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia             RON WYDEN, Oregon
ROBERT E. BENNETT, Utah              BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas          BARBARA BOXER, California

                                  (ii)



                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JULY 20, 1999
                           OPENING STATEMENTS

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     2
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     1
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........    14

                               WITNESSES

Kareiva, Peter, National Marine Fisheries Service................     5
    Article, Using Science in Habitat Conservation............... 29-67
    Prepared statement...........................................    28
Murphy, Dennis, University of Nevada.............................     7
    Prepared statement...........................................    67
Pimm, Stuart, Professor, University of Tennessee.................     3
    Prepared statement...........................................    26
    Responses to additional questions from Senator Chafee........    27
                                 ------                                

                             JULY 21, 1999
                           OPENING STATEMENTS

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....    71
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................    72
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    72

                               WITNESSES

Barry, Hon. Donald J., Assistant Secretary for Fish, Wildlife and 
  Parks, U.S. Department of the Interior.........................    73
    Prepared statement...........................................   118
    Table, Habitat Conservation Plan Inventory..................125-148
Courtney, Steven, Sustainable Ecosystems Institute, Portland, OR.   101
    Prepared statement...........................................   162
    Responses to additional questions from Senator Chafee........   163
Hicks, Lorin, director, Fish and Wildlife Resources, Plum Creek 
  Timber Company, Seattle, WA....................................    98
    Prepared statement...........................................   155
    Responses to additional questions from Senator Chafee........   158
Hood, Laura, Defenders of Wildlife, Washington, DC...............   105
    Prepared statement...........................................   192
    Responses to additional questions from Senator Chafee........   197
    Statement, Proposed Private Lands Initiatives................   199
Medina, Monica P., General Counsel, National Oceanic and 
  Atmospheric Administration.....................................    75
    Fact sheets, HCP Handbook, FWS/NOAA..........................   152
    Memoranda, Survival and Recovery Standards Under ESA......... 86-93
    Prepared statement...........................................   148
O'Connell, Mike, The Nature Conservancy, Mission Viejo, CA.......   103
    Prepared statement...........................................   184
    Responses to additional questions from Senator Chafee........   190



Thomas, Gregory A., president, Natural Heritage Institute, San 
  Francisco, CA..................................................   107
    Prepared statement...........................................   207
    Responses to additional questions from:
        Senator Chafee...........................................   214
        Senator Crapo............................................   216

                          ADDITIONAL MATERIAL

Articles:
    Where Property Rights and Biodiversity Converge.............226-253
    Developer Seeks to Protect Environment from FWS..............   183
Letter, ESA reforms, several scientists..........................   202
Report, Peer Review in HCPs, Deborah M. Brosnan.................169-182
Summary, Optimizing Habitat Conservation Planning................   217
                                 ------                                

                            OCTOBER 19, 1999
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........   261
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island   256
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   255
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........   257
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......   259

                               WITNESSES

Fox, Brooke S., director, Open Space and Natural Resources, 
  Douglas County, Castle Rock, CO................................   281
    Prepared statement...........................................   347
Glitzenstein, Eric R., counsel, Spirit of the Sage Council, 
  Defenders of Wildlife and Other Environmental Organizations....   263
    Prepared statement...........................................   303
Moore, James E., director, Public Lands Conservation, The Nature 
  Conservancy, Las Vegas, NV.....................................   283
    Prepared statement...........................................   349
Quarles, Steven, P., counsel, American Forest & Paper 
  Association, Washington, DC....................................   285
    Prepared statement...........................................   354
Pauli, William C., president, California Farm Bureau, Sacramento, 
  CA.............................................................   267
    Prepared statement...........................................   318
Rose, Don, manager, Land Planning and Natural Resources, Sempra 
  Energy, San Diego, CA..........................................   287
    Prepared statement...........................................   361
Thornton, Robert D., counsel, Orange County Transportation 
  Corridor Agencies and Other Intervenor-Defendants in Spirit of 
  the Sage Council v. Babbitt, Irvine, CA........................   265
    Prepared statement...........................................   310
Willey, Rudolph, president, Northern California Presley Homes, 
  Martinez, CA...................................................   279
    Prepared statement, with attachments........................327-347

                          ADDITIONAL MATERIAL

Letter, Edison Electric Institute................................   366
Maps, California HCPs............................................   300
                                 ------                                

                            NOVEMBER 3, 1999
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........   369
Boxer, Hon. Barbara, U.S. Senator from the State of California...   371
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....   367


Reid, Hon. Harry, U.S. Senator from the State of Nevada..........   368
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......   368

                               WITNESSES

Bean, Michael, Environmental Defense Fund, Chairman and Senior 
  Attorney, Wildlife Program.....................................   401
    Prepared statement...........................................   446
    Report, Safe Harbor: Helping Landowners Help Endangered 
      Species, Environmental Defense Fund........................   455
Statement, Policy on the Establishment, Use, and Operation of 
  Mitigation Banks for ESA.......................................   448
Christenson, Jimmy, Counsel, Department of Natural Resources, 
  State of Wisconsin, Madison, WI................................   389
    Prepared statement...........................................   422
Clark, Jamie Rappaport, Director, U.S. Fish and Wildlife Service, 
  Department of The Interior, Washington, DC.....................   373
    Prepared statement...........................................   414
Donnelly, David, Deputy General Manager, Southern Nevada Water 
  Authority, Las Vegas, NV; accompanied by Jeff Kitelinger, the 
  Metropolitan Water District of Southern California and Chris 
  Harris, the Arizona Department of Water Resources..............   390
    Prepared statement...........................................   425
Frisch, Maureen, Vice President, Public Affairs, Simpson 
  Investment Company, Seattle, WA................................   396
    Prepared statement...........................................   431
Knowles, Don, Director, Office of Protected Resources, National 
  Marine Fisheries Service, National Oceanic and Atmospheric 
  Administration, Silver Spring, MD..............................   375
    Prepared statement...........................................   419
Riley, James, Executive Director, Intermountain Forest Industries 
  Association, Coeur D'Alene, ID.................................   399
    Prepared statement...........................................   442
Silver, Dan, Coordinator, Endangered Habitats League, Los 
  Angeles, CA....................................................   398
    Prepared statement...........................................   439



                       HABITAT CONSERVATION PLANS

                              ----------                              


                         TUESDAY, JULY 20, 1999

                                       U.S. Senate,
               Committee on Environment and Public Works,  
   Subcommittee on Fisheries, Wildlife, and Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:32 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Reid and Chafee [ex officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. This hearing will come the order.
    This is a hearing of the Subcommittee on Fisheries, 
Wildlife, and Drinking Water on the science of habitat 
conservation plans. We intend to have 2 days of hearings on 
this critical issue. This begins the series of important 
hearings.
    Habitat conservation plans were authorized in 1982 through 
amendments to the Endangered Species Act to address problems 
that effectively precluded landowners from conducting lawful 
activities on lands where listed species were present. These 
plans have become win/win solutions for both species and 
landowners. Habitat needed for the conservation of threatened 
and endangered species is managed in a more sensitive manner, 
while providing landowners certainty about carrying out 
activities on their property.
    Nearly 250 of these plans have been negotiated to date, and 
approximately another 200 are in progress. Habitat conservation 
plans have been praised by conservationists and private 
property rights advocates alike. Clearly, they are and will 
continue to be an innovative way to address species 
conservation and an important tool for preserving the rights of 
private property owners.
    But, like many innovations, improvements are needed. Groups 
on both resource and conservation sides of the debate have 
raised concerns about policy and science of HCPs. They have 
been critical of the protracted and expensive process of 
negotiating HCPs and the adequacy of science used to develop 
HCPs, among other things.
    These are valid concerns that must be addressed as more 
land is managed under habitat conservation plans. We must be 
able to protect species based on reliable, scientific 
information. At the same time, we must be able to protect 
private property by assuring landowners that the Federal 
Government won't reopen negotiations on plans each time a new 
issue arises.
    As I mentioned, this is the first in a series of hearings. 
Today and tomorrow we are going to focus on the issue of 
science, perceived flaws in the science of HCPs, the gaps in 
the data, and how scientists and land managers address the 
question of scientific uncertainty.
    Wildlife managers and landowners do not have the luxury of 
waiting decades for an exhaustive scientific record to be 
compiled. In fact, this is quite probably an unrealistic 
objective when it comes to science. Wildlife fisheries managers 
and landowners are forced to make decisions regularly about how 
to manage or develop a particular tract of land without perfect 
knowledge of a species. They do this in an attempt to conserve 
species, while at the same time deriving an economic benefit 
from the land. This is the crux of the subcommittee's hearings 
on the science of HCPs.
    Over the next 2 days, we will hear from witnesses who have 
been directly involved in the development of habitat 
conservation plans and who have conducted studies on many of 
the plans that are completed and being implemented. Making 
habitat conservation plans work better for species and 
landowners is an extremely important objective for this 
subcommittee. I look forward to listening to and learning from 
our witnesses over the next 2 days in an effort to make the 
much-needed improvement in habitat conservation plans.
    At this time, I'd like to turn to the chairman of the full 
committee, Senator Chafee, for his remarks.

           OPENING STATEMENT OF HON. JOHN H. CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. Thank you very much, Mr. Chairman.
    I want to commend you for holding these hearings on the 
science of habitat conservation planning. I think it is 
splendid you are doing this, and I must say you've got a very, 
very distinguished group of witnesses, not only today but 
tomorrow, likewise, so I congratulate you.
    I note in your remarks that you pointed out some statistics 
that are very important--that some 245 HCPs since 1995 have 
been approved, with another 200, as you mentioned, in the 
pipeline. And it is my understanding that over six million 
acres are now being managed under HCPs, with 75 different 
species being protected. So this is a big operation that we're 
involved with under the Endangered Species Act.
    Mr. Chairman, because of time constraints, I would just ask 
that the balance of my statement might be put in the record. I 
look forward to hearing the witnesses today.
    Senator Crapo. Without objection.
    [The prepared statement of Senator Chafee follows:]
  Statement of Senator John H. Chafee, U.S. Senator from the State of 
                              Rhode Island
    Thank you, Mr. Chairman. I want to commend you for holding these 
hearings on the science of habitat conservation planning. This is an 
important issue and one that I believe is directly relevant to the 
continued success of the Endangered Species Act (ESA). We all often 
invoke the need for good science in decisionmaking; this hearing takes 
an important step toward improving the science that we use.
    Habitat conservation plans (HCPs) are a true success story under 
the Endangered Species Act. They have played a critical role in 
bringing landowners to the table to help conserve hundreds of species 
at risk, both those listed as threatened or endangered under the ESA 
and a myriad of others.
    I understand that the Fish and Wildlife Service and the National 
Marine Fisheries Service have approved over 245 HCPs since 1995, with 
another 200 in the pipeline. Those numbers are impressive. Each new HCP 
represents a commitment to preserve habitat or manage resources to 
benefit species. Over 6 million acres are now being managed under HCPs 
and over 75 different species are being protected. Perhaps just as 
importantly, each new HCP provides another landowner with needed 
regulatory relief from the strict prohibitions of the ESA.
    I appreciate, however, that HCPs have not been perfect; they can 
and should be improved. There are certainly legitimate questions about 
the quality and quantity of science available to develop and implement 
many HCPs. Do decisionmakers have enough reliable information on which 
to base decisions about resource use and appropriate conservation 
measures in HCPs? In the absence of that information, how do they 
address the scientific uncertainty? How do they balance the risk to the 
species and the need for landowner certainty? And how do they encourage 
the continued collection of information and incorporate that 
information to improve the HCP?
    To its credit, the Administration has, over the past few years, 
implemented a series of reforms to try to address some of these issues 
and make HCPs work better. I applaud their efforts, but I also believe 
that the underlying scientific and policy questions will benefit from a 
broader debate through the legislative process.
    As you know, the ESA reform bill that we drafted in the last 
Congress included a number of provisions intended to enhance the HCP 
program, but many of the issues that you are addressing in these 
hearings were not yet ripe. They are now. Your leadership on these 
issues, therefore, is both timely and critical. I hope that with these 
and other hearings on HCPs, we can improve on the work that we began on 
HCPs in the last Congress.
    I look forward to hearing from the distinguished witnesses this 
morning and their perspectives on how the science of HCPs can be 
improved.

    Senator Crapo. We expect several of our other Members to 
arrive from both sides, and when they do we will see if there 
is an occasion for them to make an opening statement, but 
without any further delay let's begin with the panel.
    I believe you have already been advised that we would like 
you to keep your remarks to 5 minutes, if possible, so that we 
can have as much time as we can for questions and answers and 
interaction.
    We will begin with Professor Stuart Pimm from the 
University of Tennessee.
    Professor Pimm, please go ahead.

 STATEMENT OF STUART PIMM, PROFESSOR, UNIVERSITY OF TENNESSEE, 
                         KNOXVILLE, TN

    Dr. Pimm. Thank you.
    I greatly appreciate your giving me the opportunity to 
discuss the issue of habitat conservation plans. The scientific 
community particularly welcomes your leadership on this issue, 
because it is quantitatively the most important aspect of 
endangered species protection.
    Between one-half and two-thirds of endangered species are 
not found on Federal land. We Americans cannot adequately 
protect our natural heritage unless we protect species on 
private, State, county, and other lands encompassed by HCPs.
    The rapid expansion of HCPs within the last 5 years or so 
provides unrivaled opportunities for the necessary stewardship. 
This is both an exciting time and a challenging one as 
scientists consider the progress to date and how to improve 
future plans.
    Research confirms the old adage that one should not put all 
of one's eggs in one basket. Most endangered species have 
become endangered because we force them into a few baskets--a 
limited amount of space where they are now especially 
vulnerable to change, both natural and human-caused.
    The first advantage of HCPs is their potential to minimize 
risk by protecting species in more than a few places. Spreading 
a species' risk of extinction across many places will often be 
a better bet than intensive scientific study and visionary 
management in just one place. Most of us manage our financial 
investments by spreading risk in much the same way.
    The second advantage is that at least 60 percent of 
endangered species need active habitat management to survive. 
Without control of alien weeds or without periodic controlled 
fires, some species will succumb if all we do is to put a fence 
around them.
    The HCP process can encourage appropriate habitat 
management, and do so over increasingly large areas.
    The experience to date on HCPs has been that some have been 
better than others. How could it be otherwise? The analysis of 
HCPs undertaken by the National Center for Ecological Analysis 
must surely be viewed in this light. I believe that the 
report's most serious criticism argues that many HCPs may be 
based on the best available scientific data, but that those 
data may not be sufficient.
    To me, the report's most important omission is that it does 
not fully address this tradeoff between having many good plans 
versus a few superb and omniscient ones. Limited resources will 
always mean that one cannot have many perfect plans.
    Of course, the NC's report raises the possibility that we 
may have many plans, but poor ones. While I may manage my 
investments by spreading risk across many stocks, that does not 
mean I accept a preponderance of poor ones.
    The report notices many numerous deficiencies that need to 
be addressed by future plans. Its greatest strength is its 
unified assessment of the plans. Its most important 
recommendation is that there should be a central repository of 
plans to provide models and comparisons for those who will 
produce plans in the future.
    Criticisms of inadequate data need to be viewed in the 
context of what is practical. I have no personal experience of 
HCPs, but I have extensive experience of section 7 
consultations between the Fish and Wildlife Service and other 
Federal agencies. I believe the parallels to be useful. Many of 
those consultations are informal, friendly, and the issues are 
quickly resolved. I suspect that many HCPs may be relatively 
uncontroversial. One size does not fit all, however. Some 
section 7 consultations are difficult, contentious, and require 
major investments of resources. Surely HCPs will be likewise.
    It was to address different degrees of ecological 
uncertainty that Dr. Gary Meffe of the University of Florida 
and I wrote to Senator Chafee in January of last year. Our 
letter was co-signed by more than a dozen scientists, all with 
extensive experience of conservation issues. We offered the 
following recommendations:
    First, the scientific rigor underlying the plan should 
influence the relative length of the accompanying assurances. 
The long-term assurances to accompany plans that encompass all 
or a very large portion of a range of a species, the rigor of 
the underlying science is especially important.
    Second, any No Surprises policy should be crafted in a way 
to encourage identification in the plan of possible future 
contingencies and a means of adapting management in response to 
them.
    Third, and finally, the potential conservation benefit of a 
plan ought to influence the extent and duration of the 
assurances provided.
    Thank you for your attention.
    Senator Crapo. Thank you very much, Dr. Pimm.
    Next we will turn to Dr. Peter Kareiva. Dr. Kareiva is from 
the National Marine Fisheries Service in Seattle, WA.
    Doctor.

STATEMENT OF PETER KAREIVA, NATIONAL MARINE FISHERIES SERVICE, 
                          SEATTLE, WA

    Dr. Kareiva. Thank you.
    I am here to speak to you about a large national study of 
habitat conservation plans which I supervised while a professor 
in the zoology department of the University of Washington. 
Since this was before I worked for NOAA, these findings do not 
represent the views of NOAA.
    First, about the study, the study was recently completed, 
with a posting of all of its results and data on a publicly 
available website in January 1999. We used volunteer labor of 
119 biological researchers from eight premier research 
universities--Yale University, University of California 
Berkeley, Santa Cruz, Santa Barbara, University of Washington, 
University of Virginia, Florida State, NC State. The study was 
supported by the American Institute of Biological Sciences and 
National Center for Ecological Analysis and Synthesis.
    We examined 208 HCPs that had been approved as of August 
1997. Of those 208, we took a sample of 43 HCPs for which we 
attempted to read every supporting document and every relevant 
article in the scientific or agency literature that might 
provide pertinent data. Often, this amounted to reading several 
thousand pages of documents and tables.
    The data base we produced contains nearly 90,000 entries. 
This is the largest quantitative study of HCPs yet produced, 
and in some sense is the first quantitative study.
    First, major conclusions of the study. No. 1, we frequently 
lack adequate data regarding the most basic biological 
processes pertaining to endangered species, such as: What is 
the rate of change in their populations locally or nationally? 
What is their schedule for reproduction? What is happening to 
their habitat?
    Second, given the data available, HCPs generally make the 
best use of the existing information in a rational manner, and 
there is evidence that the quality of HCPs with respect to 
using science has been steadily improving.
    Third, however, for many HCPs scientific data are so scant 
that they really should not be called ``science based.'' There 
is no agency failing here nor any failing of individual 
preparers of HCPs. No one could do a better job, given the 
limited sources and poor quality of information that are 
available.
    Fourth, very few HCPs included in this study were designed 
to include adequate monitoring of populations or habitats in a 
way that could at least allow us to learn from our actions and 
create data bases that could inform future decisions. This is a 
golden opportunity that is being missed.
    The bottom line: Everything preceding in my testimony has 
had very little of my personal emphasis and reflects a 
straightforward condensation of the long National Center for 
Ecological Analysis report, which is available at a website.
    I want to end by leaving you with what I see as the bottom 
line of this research regarding science and HCPs. Sometimes it 
is too easy to get lost in the details and lose site of the big 
message. I wish to emphasize, however, that the bottom line is 
my personal conclusion regarding what I think are the most 
important aspects.
    First, the absence of data bases that track patterns of 
population change and habitat for threatened endangered species 
is a national embarrassment. Often, these data exist somewhere 
in a file drawer, in a researcher's notebook, or scattered 
among several publications, yet, in this age of computers and 
the internet, our data bases of information on basic natural 
history of endangered species are primitive.
    Many of us are aware of how much national or even State 
computerized criminal data bases have revolutionized law 
enforcement. The same should happen with resource management 
and endangered species. Without such data bases, we cannot know 
where are the safe places or the dangerous places for 
endangered species. We need to be able to go on line and 
quickly find out what is happening with endangered species in 
terms of hard numbers: How many individuals? Where? How many 
acres of habitat left? How much of the remaining habitat exists 
in publicly owned lands? Investment in such a data base would 
be in the best interest of all parties so we can at least have 
access to the most current information before we begin debating 
consequences.
    Second, we do not even have a national data base that 
tracks the paper administrative record of HCPs. In other words, 
at this point one cannot get on the internet and find a list of 
all HCPs that address a particular species or the total acreage 
of land for a species that is covered administratively by the 
HCP process. This is analogous to a doctor prescribing you 
medicine but not knowing what other prescription drugs you may 
be taking.
    Third, in light of all this scientific uncertainty, if HCPs 
are to be pursued in the interest of balancing development and 
environment, then minimally HCPs should be required to include 
rigorous peer reviewed monitoring programs that allow us to 
learn from them.
    Mr. Chairman, thank you for this opportunity to testify. I 
know the HCP process is being seriously improved. Moreover, one 
reason I came to work as a scientist for the Federal Government 
and especially National Marine Fisheries Service is it is easy 
to throw stones from an ivory tower and criticize how the 
Government does its resource management science, and I have 
thrown some of those stones, but I wanted to see if I could 
make the science work any better before I continued to 
criticize the jobs others were doing.
    I look forward to answering questions.
    Senator Crapo. Thank you very much, Dr. Kareiva.
    Finally, Dr. Dennis Murphy of the University of Nevada, 
Reno.
    Dr. Murphy.

   STATEMENT OF DENNIS MURPHY, UNIVERSITY OF NEVADA, RENO, NV

    Dr. Murphy. Thank you very much.
    Just as introduction, I should tell you that my background 
with HCPs started with the very first one on San Bruno Mound 
back in 1980 and has continued through work right now on the 
Nation's largest ongoing HCP, which is the 5.5-million-acre 
Clark County HCP in the State of Nevada.
    I would like to say that the science that is being used to 
inform decisions under the Federal Endangered Species Act is a 
dynamic science. One would be hard-pressed to find more 
combative and constructive exchange in conservation biology 
than that between the supporters of the de-listing of grizzly 
bear populations in the northern Rocky Mountains and their 
opponents. Both sides have mustered compelling technical 
arguments to support their politically opposed cases. Our 
understanding of bears and their biology has immensely grown 
around that debate.
    Likewise, both science and stewardship techniques have 
contributed to saving the California condor and the black-
footed ferret, and, as you know, have brought the peregrine 
falcon and bald eagle back from the brink of extinction.
    Moreover, one needs to look no further than the Fish and 
Wildlife Service's own recovery plans for the desert tortoise 
and northern spotted owl to identify path-breaking analysis and 
application of cutting-edge concepts from population biology. 
All this, of course, suggests that science is at the center of 
our efforts to save biodiversity, but the real question is: Are 
these examples the exceptions or the rule?
    When it comes to science and the Endangered Species Act, 
unfortunately, they are the exceptions. Most recovery plans for 
listed species lack even the sparest description of the 
mechanics by which imperiled species perpetuate themselves. By 
and large, we know vanishing little about our species at risk 
and realistically how we might attempt to save them.
    Now, while that state of affairs is lamentable, it is not 
wholly unexpected, since academic scientists are only now 
developing the tools necessary to understand the population 
dynamics of species and to predict with some accuracy their 
fates.
    Very pertinent to these hearings today and tomorrow is that 
there is another suite of species that we may have lost the 
opportunity to save--species that would have benefited from 
good science. The unfortunate Houston toad provides a most 
poignant example. It was one of the earliest species listed 
under the 1973 Act. The application of science may well have 
saved it, but a flawed hypothesis about the habitat factors 
that support the species, a lack of responsive studies in the 
face of obvious declines, and poorly designed monitoring 
schemes have combined with land development to push the listed 
species toward extinction. The Houston toad, it appears, will 
be lost.
    Against this background, we assess science and HCPs. My 
guess is--my conclusion that we need better and more science to 
produce more effective, efficient, and accountable HCPs is 
shared by almost all my academic colleagues. Where I may part 
view with at least some of them, and certainly with some 
environmental organizations, is on how much more science is 
necessary and how it can be achieved.
    I think we can create much better HCPs with not a whole lot 
more science, but that science must be focused, strategically 
directed, and creatively engineered.
    Why don't we have a clear science agenda for HCPs? 
Certainly, to start with, the academic scientists have failed 
to deliver the realistic, what we might call ``parsimonious'' 
science necessary to inform HCPs. The Departments of Interior 
and Commerce, in their own turn, have failed to seek such a 
science, responding their HCP guidelines that cookbook guidance 
is not possible since the biological analysis demanded for each 
HCP, for each listed species, is unique and cannot be codified.
    I sort of like that idea that the work that I do is so 
special that only a specialist can do it, but, frankly, the 
assessment is just not true.
    Stephen's kangaroo rats, Tecopa pupfish, indigo snakes all 
share a multitude of biological characteristics that allow for 
a common theme to their conservation.
    I think as soon as we are released from our artificial and 
unrealistic view of how much novel scientific information is 
necessary to inform HCPs, we can begin to develop the 
exportable toolbox of scientific techniques that are necessary 
to assist our best conservation intentions.
    Tougher will be where multiple imperiled species are 
distributed across extensive landscapes and where they run into 
economic expediency, what Secretary Babbitt has called 
``environmental and economic trainwrecks.'' Under those 
circumstances, we're going to need the most creative engagement 
of available scientific information.
    I recommend that the National Research Council cooperate 
with the Departments of the Interior and Commerce to develop 
science guidelines for conserving multiple species and natural 
communities on lands, both public and private. Those guidelines 
must recognize that HCPs have timetables driven by political 
and economic realities. Those guidelines must recognize that 
indicator or surrogate species will have to be identified which 
can allow us simple insights from complex natural systems. And 
those guidelines must encourage habitat conservation planners 
to learn by doing, to manage adaptively using the best current 
information.
    To that point, we cannot hold up our HCPs waiting for all 
the answers to our most pressing technical questions. Frankly, 
the courts may not let us. However, we can engineer our plans 
to take advantage of emerging information and scientific 
breakthroughs.
    I support adaptive management, even though I am a fan of 
this Administration's No Surprises policy, which many contend 
conflicts with adaptive management. Incorporating both adaptive 
management principles and No Surprises assurances in the 
language of a reauthorization bill should be a bipartisan goal 
of this committee.
    Now, I don't suggest, in conclusion, that the greater 
public must pay the private sector to obey the law, but an 
infusion of Federal dollars will inevitably be necessary when 
reasonable exactions of habitat for private landowners falls 
short of the pressing needs of species, or when unforeseen 
circumstances put imperiled species at unexpected additional 
risks.
    HCPs are usually the results of a crafted deal. They allow 
for a public concerned about threatened and endangered species 
to take private property without fully compensating landowners. 
Lubricating that process with strategically directed dollars 
will be good for species, good for landowners, and good for the 
rest of us.
    I thank you for your time.
    Senator Crapo. Thank you very much, Dr. Murphy.
    We'll turn first to the chairman of our committee, if you 
have any questions.
    Senator Chafee. No questions at this point.
    Senator Crapo. OK. I will proceed then.
    Let me go back to you and start out with you first, Dr. 
Pimm.
    Do you believe it is possible to generate better science 
and then, in turn, cause better HCPs in a relatively short 
time?
    What I'm getting at is the issue here of how long it takes 
to generate the necessary science for adequate HCPs.
    Dr. Pimm. When one considers that HCPs have been around 
only a very short period of time, I think it is clear that 
there has been a huge amount of progress made in looking at 
those plans and looking at our data needs, figuring out what we 
need to know, what we probably don't need to know, and 
therefore improving the process.
    And I believe that Dr. Kareiva's report is a huge step 
forward, because it employs what we scientists call ``the 
comparative method.'' It allows us to look at what other people 
have done and learn from their strengths and weaknesses. I 
believe we are on a very fast learning curve. When it comes to 
HCPs, great progress has been made in their quality.
    Senator Crapo. Thank you. And, Dr. Kareiva, there obviously 
is a conflict here between the amount of science we need and 
the amount of time we have to proceed. Could you comment on the 
same issue? Do we have the ability to develop general 
guidelines, as opposed to the specific science needed for each 
species, that will allow us to proceed with HCPs? Or must we 
hold off and wait for more-extensive science? How do you 
address that conflict between the need for more science and the 
need to be able to move ahead now and develop HCPs?
    Dr. Kareiva. Yes, and just listening to what the three of 
us has had to say, I think we would probably agree on this. 
There's a lot of information out there we already have, and 
it's not as though we have to undergo a national initiative for 
great basic research. Part of the challenge is just organizing 
that information with a little bit of energy.
    I agree with Dr. Murphy that there are certain common 
principles that can be applied to sets of species. It would be 
good to do that.
    I also think that we already know a lot--this is one of the 
things that I have tried to make clear and I think comes out in 
the report. It's just that what we know is not easily 
accessible. So given the time pace with which HCPs are 
negotiated and gone through, it's not possible to go into those 
data notebooks and those file drawers and get all this out.
    But if we did produce data bases, if we put energy into 
that, subsequent efforts would go much faster, because there 
are, I think, 70 or 80 endangered species currently covered by 
HCPs. Any data that you put in a computer data base for any of 
those HCPs will inform future conservation plans that touch on 
those same species.
    In summary, I think we actually know quite a bit, and much 
could be accomplished simply by knowing, for example, for the 
spotted owl, how many acres are protected in habitat 
conservation plans. That should be easy to get off the web.
    Senator Crapo. I was intrigued by your bottom line 
suggestion, No. 1, of the lack--that we have a lack of a 
national data base, so to speak. And it sounded to me like you 
were recommending that, in any legislation that this committee 
might generate to deal with improving HCPs, that perhaps part 
of that should be a very major national effort to develop such 
a data base. Is that correct?
    Dr. Kareiva. I don't think I'm astute enough with respect 
to policy to know if that is correct, but I do think one thing 
that could be done even within the existing HCP process is to 
require HCP preparers to provide data in a publicly available 
way to what could be a national data base.
    For example, in preparing an HCP, you could create a data 
file, put it on the web so that other people could examine the 
data for population trends and numbers. This would facilitate 
somebody or some organization putting together a data base.
    Senator Crapo. If that were done, and if we started to 
generate such a data base, do you believe that that data would 
ultimately lead to the types of generalizations that could be 
made that Dr. Murphy has suggested that would allow us to move 
ahead with common understandings across species?
    Dr. Kareiva. Yes, I do.
    Senator Crapo. Dr. Murphy, I'd like to ask you to comment 
on the same general issue. I think you had somewhat in your 
testimony, but please elaborate. I understood you to say that, 
although we need to engage in getting better and more thorough 
science, that we can proceed now to significantly improve HCPs 
and species restoration efforts.
    Dr. Murphy. An anecdote from the very early 1990's is 
probably appropriate here. You may remember one of the hot-
button issues in endangered species implementation was the 
Stephen's kangaroo rat in western Riverside County, in which a 
great number of landowners in a very go-go real estate 
environment were not allowed to move forward with development 
while science supposedly resolved issues related to the 
conservation of the species.
    Over a 2\1/2\-year period we were doing extremely arcane 
experiments with the demographics of the species and looking at 
the genetics of the species when, in fact, several years later 
we still had not mapped the distribution of the species. We had 
landowners who were being economically impacted that had no 
kangaroo rats, and other landowners who held some of the best 
habitat for the species who were not part of the conservation 
plan.
    We need a hierarchical approach to the science in HCPs; a 
set of cookbooks that tell agency staff how and when to ask 
specific questions at different levels of complexity--that is, 
from the landscape level to the metapopulation dynamics of 
species, down to structure of populations of species, and then 
to their genetics. I really do think that if the agencies sat 
down with academic scientists we could come up with a 
prioritization scheme that would at least keep to a minimum the 
wheel spinning that tends to go on with HCPs.
    And, as you well know, one of the greatest criticisms of 
the implementation of the Act is the squandering of time--the 
fact that we go into HCPs with a degree of economic expediency; 
we come out of HCPs often exhausted.
    Senator Crapo. Now, even if we had such cookbooks, as you 
described them, with an approach identified to the kinds of 
questions that need to be asked, it seems to me the issue still 
arises: How do we deal with the question of time that is so 
critical for the owners of the private property who need to 
have some type of certainty in how to proceed.
    How do we proceed with an HCP in the face of the voluminous 
questions that we would need to have answered about a species?
    Dr. Murphy. Well, I don't think the questions have to be 
many, but I do think that we haven't taken advantage of 
opportunities to learn from past activities. There are now 200 
HCPs on the books and there are dozens of large-scale 
conservation efforts on our public lands, the most notable of 
which certainly being the plan for the northern spotted owl and 
the forest plan that followed it.
    My sense is that we can infer greatly from other systems 
and other species, and we're losing that opportunity. One 
doesn't have to spend 5 years studying the population dynamics 
of the California gnatcatcher to create a conservation plan for 
that species if we creatively use information drawn from other 
species which have like biologies and live in like 
circumstances, since insectivorous birds share many 
reproductive and other life history characteristics with each 
other. We're not taking advantage of engagement of that sort of 
information, which is readily available.
    Senator Crapo. Thank you.
    Senator Chafee.
    Senator Chafee. Thank you very much.
    Let me give you a hypothetical here and see if I understand 
what each of you are saying.
    Let's assume that the red-cockaded woodpecker is 
disappearing and has been listed as endangered. Now, let's also 
assume that it is still fairly abundant in Georgia, in the 
forests of Georgia, some of it on private land and some of it 
on military land, Fort Benning, and the Interior Department is 
prepared to establish an HCP to protect the surviving red-
cockaded woodpeckers.
    Now, what ought we to do? I'll start with you, Dr. Pimm.
    Dr. Pimm. I think the red-cockaded woodpecker is a superb 
example.
    Senator Chafee. Well, thank you very much. You're doing 
very well so far.
    [Laughter.]
    Dr. Pimm. It is a superb example, because if we were to 
make Fort Benning the only place where that species could 
survive, in all probability it would not. That forest will be 
hit by a hurricane eventually, like many of the other bits of 
forest in the southeast have, and there is always the risk of a 
catastrophic fire.
    However well we were to manage that species in one place, 
it would suffer an unacceptably high risk of extinction. The 
only way that species can likely survive is if we protect it in 
a variety of different places across its range, and that range 
is mostly in private ownership.
    I recall hearings in the House a couple of years ago, the 
House Resources Committee, on the Endangered Species Act, 
hearing from somebody giving testimony who had protected his 
land, looked after his land very well, and, as a consequence, 
had a large acreage of long-leaf pine savannah, which is a 
necessary habitat for this species, and he felt unnecessarily 
constrained because he had that endangered species, which 
seemed to be particularly unfair because had he chopped those 
forests down and grown Christmas trees he would not be so 
constrained.
    We understand that there is a deal that must be done here, 
and that is to encourage those people who have grown large 
trees on their property in the southeast and have red-cockaded 
woodpeckers, and that process recognizes that those people must 
have a right to their livelihoods and, at the same time, must 
be encouraged to continue to protect, as they have done, some 
of their land.
    HCPs provide for that, and therefore they are a very 
powerful way of protecting certain kinds of endangered species. 
Without HCPs, I do not think the red-cockaded woodpecker can 
persist.
    Senator Chafee. But what has all that got to do with this 
requirement for better science that all three of you have been 
stressing? You know, without great scientific study, it is 
known that on these adjacent lands to Fort Benning are the red-
cockaded woodpecker, and just the situation you were 
describing. Now, what should be done differently than is being 
done now in connection with the science?
    Dr. Pimm. I think there is a tension in the conservation 
biology community of just how much science we need. What I am 
hearing from my colleagues and the colleagues here is that we 
often have sufficient science, even though we don't have 
complete science. Given the fact that we need to have 
sufficient science across a very large area, then the HCP 
process is one that allows a species to persist.
    If we study this species to death in one place, that won't 
be sufficient. We have to have sufficient science, and we 
believe, I think, that we often do have sufficient science for 
many of these species.
    Senator Chafee. Dr. Kareiva, what would you say to this 
situation that I've outlined?
    Dr. Kareiva. I think it is a good example, too.
    Senator Chafee. I hope Dr. Murphy will come through, too.
    Dr. Kareiva. He'll say the same. But first, what we would 
like--when you're preparing that HCP for your Georgia site, you 
should be able to quickly find out what other HCPs have been 
done for the red-cockaded woodpecker. You should be able to 
find that out in 5 or 10 minutes.
    Senator Chafee. You mean across the Nation?
    Dr. Kareiva. Right, because you're worried about a species. 
What other HCPs have been done and where for that species, for 
the woodpecker.
    There are several. There are dozens of red-cockaded 
woodpecker HCPs. That's pertinent to how you view this 
particular one.
    Second, since they did those HCPs, in order to receive 
their incidental take permits, they had to ask the question: 
What is the population and what is the take? So then you would 
like to summarize how many birds are on these other HCPs and 
how are they doing, how are those populations doing.
    Third, because several of those HCPs have been in operation 
for 5 to 10 years, you'd like to be able to ask of these other 
HCPs: Have we learned anything from them?
    Now, all of that is not rocket science, in any sense. That 
is all information that is already available in some HCPs, but 
it is not systematically accessible. That is what I mean. That 
could speed up the process of doing the Georgia HCP. It could 
make it better-informed scientifically. It would work to the 
advantage of all parties to put it in this broad context 
quickly.
    Senator Chafee. So your principal point, if I understand 
it, is there ought to be some central data base on--whether it 
is some kind of rat or whether it is a red-cockaded woodpecker, 
that you can go to.
    Dr. Kareiva. Right.
    Senator Chafee. You or whoever. I suppose it is Interior, 
isn't it?
    Dr. Kareiva. Right.
    Senator Chafee. They can go and find out how this would 
work out. If you're going to set up this HCP near Fort Benning; 
is that how it worked in North Carolina?
    Dr. Kareiva. Yes.
    Senator Chafee. Well, that makes sense. What do you say, 
Dr. Murphy, to the problem I posed?
    Dr. Murphy. A most incisive example, most certainly.
    [Laughter.]
    Dr. Murphy. I'm from the great, untrammeled West, where we 
are actually working on a habitat conservation plan in southern 
Nevada, 5.5-million acres. Of the 5.5-million acres in Clark 
County, 93 percent is publicly owned. This habitat conservation 
plan is allowing for the entire build-out of the 7 percent of 
Clark County, NV, that is privately owned, and it will fund 
conservation planning, management, and monitoring, as well as 
science, on the rest of the landscape.
    We, obviously, don't have that benefit across all of the 
country, but in your example, where there are public lands that 
can be managed for a species, that's where species conservation 
should start. We may need private lands, as Dr. Pimm suggested, 
to spread the risk of extinction. There are characteristics of 
some of the private lands, and certain private lands in States 
beyond Georgia, that will help to contribute to the 
perpetuation of the species.
    I think that our job as scientists is to contribute to 
relieving the tension between Fifth Amendment Constitutional 
guarantees to landowners for compensation and the need to 
protect habitat on private property to spread extinction risk. 
Where incisive science can help is in identifying the 
minimalist reserve design that can be used from private land 
which causes the least economic disruption. I think that the 
science necessary to do that, as I said in my prepared 
comments, is there. We just haven't synthesized it, and, as Dr. 
Kareiva suggests, we certainly haven't institutionalized it and 
made it available.
    Senator Chafee. Well, suppose somebody has a thousand acres 
next to a person with a long-leafed pine on his property that 
he wants to eventually cut. That's how he is making his living. 
Along comes the Government and says, ``We're putting this into 
an HCP.'' I think he would be disturbed, to put it mildly. In 
the HCP he is subjected to certain constraints. How encouraged 
will he be when they tell him that it is scientifically 
splendid?
    Dr. Murphy. In actuality, it is the landowners, not the 
Government that initiate HCPs. The history of HCPs suggests 
that sort of option less planning isn't really happening on the 
ground. The fact is the agencies, to their credit, have tried 
very hard to engineer plans that allow for planning options and 
fair economic development off landscapes. I don't know of any 
case where a landowner with a thousand acres was completely 
shut down to protect a species.
    Most HCPs have been creative engagement to try to minimize 
potential economic impacts and losses and to keep the agencies 
out of court, most HCPs have tried to engineer deals that make 
it possible for species to be sustained in the face of 
scientific uncertainty.
    Senator Chafee. Well, I think you're right. I think that 
these things have worked their way out fairly successfully. Dr. 
Pimm was talking about the landowner adjacent to Fort Benning. 
Under the way they've worked out these HCPs, there still can be 
takings under certain circumstances, because of the no-surprise 
policy. I think these things have worked out pretty well.
    What do you think, Dr. Kareiva?
    Dr. Kareiva. I think sometimes they do work out very well, 
because conservation in practice is really about tradeoffs, and 
when the tradeoffs are intelligently informed, they are the 
right tradeoffs to make. Again, that returns to my point about 
the data, because it is only by looking at data that you can 
find out whether you are identifying what really is 
irreplaceable or whether you're identifying the right to the 
tradeoff.
    So certainly in principle it is a good idea, and in 
practice occasionally it is. It could be done much better.
    Senator Chafee. Thank you.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you, Senator Chafee.
    We've been joined now by Senator Reid. Welcome, Senator 
Reid. Would you like to make an opening statement or any 
comments?
    Senator Reid. I would ask, Mr. Chairman, that my statement 
be made part of the record as if it were read.
    Senator Crapo. Without objection.
    [The prepared statement of Senator Reid follows:]
  Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada
    Thank you, Mr. Chairman, for holding this important hearing. As you 
know, habitat conservation plans and the ``No Surprises'' policy have 
been two of the trickier issues facing this Committee as we have 
struggled in recent years to improve the Endangered Species Act.
    I believe you are right to focus on the science of Habitat 
Conservation Plans first rather than an immediate discussion of the 
policy. Like so much of the Endangered Species Act, HCP's are driven by 
science and it is important for this Committee to get a better handle 
on exactly what that means.
    All too often, there is a tendency to question as unsound 
scientific conclusions that are contrary to what we want to believe or 
that don't get us to where we want to be in terms of policies.
    That is why I am glad that we are turning first to a panel of 
scientists, professionals who have dedicated their careers to working 
on these sorts of issues to help shed some light on what is working, 
what is not, and what is needed to make HCP's an effective tool.
    Although I would like to welcome all of our witnesses to Washington 
this morning, I am especially pleased that Dr. Dennis Murphy is with 
us.
    Dennis and I have been friends for many years. He runs the 
Biological Resources Research Center at the University of Nevada-Reno 
and is the Director of the Nevada Biodiversity Initiative, one of the 
nation's most progressive research initiatives.
    While I understand that he is an expert in the area of Habitat 
Conservation Plans, I know him primarily due to his outstanding 
research and applied science efforts at Lake Tahoe.
    I know that all of my colleagues have listened to me with great 
patience over the years talk about my determination to protect the 
Crown Jewel of the Sierras from further degradation. I won't go into 
great detail today.
    However, I will make the point that it is due to the efforts of 
folks like Dr. Murphy that all of the diverse communities at Lake Tahoe 
have been able to unite behind a $900 million dollar plan to preserve 
and protect the lake.
    Without the scientific underpinnings of the plan, no one would have 
the confidence required to justify the sacrifices that will need to be 
made to save this national treasure.
    Let me close by saying that today's hearing is the kick-off of the 
second phase of an incremental process that we have begun this year to 
see if some legislative progress can be made on reforming the 
Endangered Species Act.
    During May and June, this Subcommittee worked together to produce 
legislation that addresses some critical habitat and recovery habitat 
issues. It was a very open and collaborative process and it produced 
language that everyone can embrace.
    That package is now awaiting action on the Floor. I am hopeful that 
the spirit of cooperation that has marked this process so far can 
continue and we can fix areas of the ESA that need some work.
    After coming so close to getting a comprehensive reform bill done 
last year only to see it scuttled at the last minute, I have concluded 
that incremental reform is the only way to go at this time.
    While I know that this approach is not universally popular, I feel 
confident that, as long as everyone remains willing to compromise and 
work together, we can make a lot of progress.
    Thank you, Mr. Chairman. I look forward to working with you.

    Senator Reid. I also would express my appreciation to you 
for holding these hearings, and apologize for not being here at 
the time they started. I had some duties to cover for Senator 
Daschle with a meeting with Senator Lott and was unable to be 
here with the national Governors.
    I wanted to be here for a number of reasons. One is the 
importance of this hearing. Senator Chafee, Baucus, and your 
predecessor, Kempthorne, you know, we worked on a bill that we 
thought was really a good compromise. Had it moved forward in 
the fall when we introduced it, the bill would now be law and 
we'd be all happier. But, as more time went on, barnacles 
gathered on the bill and people looked at it more closely than 
I think they should. Anyway, we weren't able to push that 
legislation.
    I would hope that, as a result of the hearings you are 
going to hold today and tomorrow, that we can move forward with 
this reauthorization of this very important law.
    Let me also say I wanted to be here because of Dennis 
Murphy. During almost my entire time that I've spent on this 
committee, which is now going on 13 years, I've worked with Dr. 
Murphy. He worked at Stanford, and we're very fortunate that he 
moved from Stanford to University of Nevada at Reno, where he 
is doing some outstanding work not only on endangered species, 
generally, but also on our joint work with the State of 
California on Lake Tahoe. He is certainly eminently qualified 
to testify on this issue and to help us with the myriad of 
problems that have developed at Lake Tahoe.
    So, having said that, I got here late. I'm going to have to 
leave early because I have another meeting with the Prime 
Minister of Israel that I have to attend, so I really apologize 
for the interruption and extend to you my congratulations on 
your willingness to take on this very difficult issue.
    Senator Crapo. Well, Senator, we recognize your difficult 
schedule and appreciate the time and effort you've made to 
participate with us, and we also--I also, and I know I speak 
for Senator Chafee, look forward to finding the most effective 
path forward in terms of reforming the Endangered Species Act, 
and we'll look forward to working with you in that regard.
    Senator Reid. You know, if we don't do something, we're 
going to wind up with problems, as we're going to have the 
Interior bill we hope comes up this Wednesday, and we're going 
to have a knock-down, drag-out battle there dealing with the 
grizzly bear, and we shouldn't do that. We should be able to 
have a law that is in place that prevents those from doing this 
on a piecemeal basis.
    Senator Chafee and I have been through those piecemeal 
battles, and we need to get rid of them, don't we, John.
    Thank you very much.
    Senator Chafee. Thank you very much, Senator.
    Senator Crapo. I'd like to ask a few more questions to each 
member of the panel. The issue I'd like to go into right now is 
this tension that is apparent between the policy of No 
Surprises and the need for adaptive management.
    I'll start with you, Dr. Pimm. I would appreciate any 
comments that you might have in that regard, but there is, to a 
certain extent, a conflict between the need to be sure that we 
provide the landowner with the kind of certainty and assurances 
of No Surprises so that the landowner can then take necessary 
steps to utilize his or her private property in the way that is 
contemplated by the HCP, and the fact that, as we move along 
through the process, the policy of evaluating and developing 
and furthering the science may lead to new and different 
conclusions or new needs with regard to the species.
    How should we address that issue?
    Dr. Pimm. I think there are two ways of doing that. One of 
them is embodied in the HCP concept, itself. That is, as I said 
earlier, the risk spreading. If we have a lot of HCPs for red-
cockaded woodpeckers, then the surprise failure of some of them 
would not be as catastrophic. We should spread the risk across 
a lot of different areas, recognizing that nature is full of 
surprises.
    The second aspect to surprise, of course, is that you adapt 
to it. That's the nature of the second recommendation that I 
made, which is that HCPs that allow for adaptation should be 
given a greater length of time than those that do not.
    As an example, we often do not know what the optimal fire 
frequency should be for many of these habitats. Red-cockaded 
woodpecker is in a fire-dominated habitat. Because we don't 
know that, we can at least recognize that there could be 
different fire regimes that are optimal. We could encourage 
landowners to use different fire regimes, monitor the results, 
and then act accordingly, and those different alternatives, if 
they are specified ahead of time in the HCP, make it an 
ecologically, scientifically stronger plan than if there were 
to be just a fixed plan with a fixed management.
    So I think the obvious solution is to encourage HCPs that 
allow for different outcomes, to monitor those outcomes, and to 
respond accordingly.
    Senator Crapo. Thank you.
    Dr. Kareiva.
    Dr. Kareiva. Adaptive management is basically collect data 
as you manage, and also do management as an experiment.
    I think one simple way to reconcile some of that tension is 
to, in the beginning, where vast areas are involved, or species 
at special peril are involved, be precautionary to begin with. 
Play it very safe. But then, as you collect data and do 
adaptive management, recognize that what you learn can go both 
ways. It doesn't just have to be that as you collect data you 
find out you have to impose more restrictions on the landowner. 
You could learn information that led you to impose less 
restrictions on the landowner.
    So if you start off precautionary, as you collect data and 
adaptively manage, the information you glean can work in the 
favor of development. For example, we have de-listed some 
species, such as gray whales and effectively de-listing species 
is based on data. De-listing species results in less 
restrictions and it is based on collecting data, seeing how 
well species are doing.
    Senator Crapo. Thank you.
    Dr. Murphy.
    Dr. Murphy. I was on the National Academy of Sciences 
Committee on Science and the Endangered Species Act that 
released a report in 1995. This was a point that we made quite 
clearly and was an example of what we thought needed to be done 
with either the statute or regulations; at the point of 
listing, we need to do an analysis of the challenges faced by 
the species to identify areas critical to the existence of the 
species, so that we walk into our habitat conservation plans 
with as few surprises likely as possible. I really do think 
where we need the science is up front.
    There are relatively few species that get listed and then 
immediately enter into the HCP dialog. Most of the species 
subject to HCPs have been listed for quite a long time; the sad 
part of that is that we've lost opportunities to stockpile 
information that would be useful in planning. The biological 
opinion that accompanies proposals for listing quite often has 
a great deal of information that is useful to HCP planners. We 
should extend on that.
    Senator Crapo. I didn't hear any of you say we should hold 
off moving ahead with entering into HCPs, even though there may 
be a need in those HCPs to provide No Surprises.
    As you are probably aware, the No Surprises policy is under 
criticism from some quarters and under attack in terms of 
whether it should even continue to be a policy.
    I guess the question I have is this: If we were to, as a 
matter of policy, eliminate the No Surprises requirement or 
position in HCPs, I would assume that we would have fewer HCPs, 
and I would further assume that that would ultimately mean less 
benefit for the environment and for species, because we would 
have more conflict and less progress made in terms of entering 
into HCPs.
    I'd like to know of your feelings about that. Am I correct 
in that? I guess the question is: Are we better to proceed now, 
even though we work with a No Surprises policy, rather than to 
hold off until we have so much assurance through the scientific 
study that we can address an HCP without engaging in No 
Surprises?
    Dr. Murphy.
    Dr. Murphy. We have been operating under a functional No 
Surprises policy. In fact, we haven't re-initiated an HCP 
because of changed circumstances to my knowledge. As you point 
out, 1995 kicked off the most active time for those HCPs and we 
have made, de facto assurances to landowners and it has worked 
fairly well.
    I think the problem may be just simply in the nomenclature. 
``No surprises'' sounds terribly terminal. It suggests that if 
you've got a species on your property and circumstances change, 
doggone it, we're not going to do anything about it. I think a 
better term for it is ``fair assurances.'' And I do believe 
that if landowners have entered into an agreement in which 
development activities are foregone. There should be 
contractual assurances.
    If we want to sustain these agreements in the face of 
changing circumstances with species, then funds have to come 
from somewhere else.
    It seems that we have starved our HCPs economically, and I 
think that has led to the perception that they are not as 
effective as they could be, and that, in fact, circumstances, 
when they change, may not be appropriately dealt with 
financially.
    Senator Crapo. Dr. Kareiva or Dr. Pimm, did either of you 
want to comment on that?
    Dr. Kareiva. I basically agree with the simple way that you 
stated it. It is better to live with some No Surprises in order 
to get more HCPs, and we could just be careful about how we use 
it.
    Dr. Pimm. Yes, I agree with that.
    Senator Crapo. Thank you.
    Senator Chafee, did you want to ask more?
    Senator Chafee. Just a question or two if I might, Mr. 
Chairman.
    In your written statements, I believe each of you referred 
to general scientific standards for HCPs, and I wonder if you 
could be a little more specific on what kind of standards you 
are referring to.
    Would that cover you, Dr. Pimm?
    Dr. Pimm. Yes. I think the point is simple. The HCPs are 
new. Some of them haven't been terribly compelling 
scientifically. Some have been very good. You'd expect there to 
be variation. I think the process is a learning one. I think it 
is a rapidly learning one. And I think we all understand that 
we need to have better standards. I think the best way of 
achieving that is to have a repository for HCPs so people can 
see which are the good models and which are the ones that are 
not so good.
    Senator Chafee. You're referring to the data base that Dr. 
Kareiva was referring to; is that correct?
    Dr. Pimm. It's very obvious, when you read some of the 
HCPs, that some of them have missed out important information. 
When you have the two together, you can see that, and I think 
those who develop them would benefit from that comparison, too.
    Senator Chafee. Do you agree with that, Dr. Kareiva?
    Dr. Kareiva. Yes, I do.
    Senator Chafee. Dr. Murphy.
    Dr. Murphy. Dr. Kareiva's report identified five areas, and 
he might be able to detail those five areas where better 
science would be useful in HCPs. That's an extremely important 
starting point in terms of bringing better science to habitat 
conservation planning.
    The other thing that may be lost in the discussion--and it 
is certainly lost when we try to compare small and large HCPs, 
southern HCPs with western HCPs, is the fact that the species 
that are targets of these planning exercises fall into very 
broad categories that in many ways differ greatly.
    California condors, black-footed ferrets and some other 
species, after a zoo-like conservation challenge--we're down to 
a few individuals. It is a very different conservation 
challenge to save those species than most others. In addition, 
we've got narrowly endemic species, species that are found only 
on a few acres. Those species need a different science to save 
them than some of our more broadly distributed species. The 
species that recur in the media as conflicts where economic 
development is moving forward tend to be wide-ranging species 
that are relatively rare--spotted owls, your example of the 
red-cockaded woodpecker, desert tortoise, and so on. Those 
species need a different style, a different type of science.
    And I think the idea of having guidelines that 
differentiate between these categories of species could go a 
long way in focusing the science at early stages of listing and 
reducing the possibility of surprises.
    Senator Chafee. Your point being that some are so exotic, 
if you want to use that word, so rare that the approach on them 
would be different than something that is endangered but is 
more commonly found, if you could. Is that correct?
    Dr. Murphy. Yes. And then you can imagine the examples are 
numerous. There are rare plants that are found on only a couple 
of acres on the eastern slope of a mountain in Utah. There are 
also anadromous fish stocks that are found in just a few 
streams; those present a whole different suite of challenges in 
terms of their conservation, which are more complicated, both 
scientifically, politically, and economically.
    Senator Chafee. Well, I agree with you. We have a Block 
Island--I believe it is called ``burrowing beetle,'' which is 
apparently extremely rare and only found in this one particular 
area in Block Island, Rhode Island, and it is different than 
something that is like the bald eagle, which is found across 
such extensive areas in our Nation.
    Thank you very much, Mr. Chairman. I appreciate having the 
opportunity.
    Senator Crapo. Thank you.
    I have a few more questions. We may be interrupted by a 
vote here, and we may be finished by the time the vote occurs. 
If not, we'll make a determination at that point.
    The Administration has published an exhaustive handbook on 
the guidance for HCPs, and I would be interested from each of 
the panel members if you have suggestions as to how this 
handbook might be improved, relating to some of the points that 
you've raised today.
    Dr. Pimm.
    Dr. Pimm. I can't address that specifically, but I can 
address it by parallel to other reporting needs that I have 
seen. However good the handbook, it surely helps to have a lot 
of examples in front of you, and I think, in addition to that 
handbook, a suite of examples, if not the entire data base on 
HCPs, would be very helpful.
    Senator Crapo. All right. Thank you.
    Dr. Kareiva.
    Dr. Kareiva. Early on in our study many of us read that 
handbook. I think part of the problem is just the 
implementation of it, frankly. In the future, examples will 
help in the implementation. We need very concrete guidance. 
Also, instead of having one handbook to fit all species, we 
need to use some of the sort of categorization that Dr. Murphy 
is talking about. Breaking things up into different categories 
will help.
    Senator Crapo. You know, one thought I had was with regard 
to the data base that you talked about. I don't know if the 
handbook addresses developing such a data base, but perhaps 
administratively we could get moving toward that through 
handbook guidance.
    Dr. Kareiva. Yes, I think that would be--it would be very 
easy to do, in fact.
    Senator Crapo. Dr. Murphy.
    Dr. Murphy. There is just simply a disconnect between the 
academic scientific colleagues of mine who believe that there 
really are explicit scientific guidelines and agency staff who 
think otherwise. The explanation given by the Fish and Wildlife 
Service is that each individual species and each individual 
planning circumstance poses such a distinct challenge that you 
can't provide useful guidance. My sense is the right scientists 
sitting down and working on that guidance could go a long way 
toward creating a systematic and prioritized approach to bring 
better information to HCPs.
    Frankly, the new HCP guidebook is long on implementation 
directions and very short on scientific guidance, and that 
could be fixed tomorrow.
    Senator Crapo. That's very helpful.
    Would you contemplate that the handbook could also contain 
some of the common or the basic standards and guidelines that 
are common among species that could be considered? Is that 
where--would those types of things which you've discussed with 
us here today be appropriate for inclusion in the handbook?
    Dr. Murphy. Certainly, and I'd go further. The exercise of 
HCPs is an exercise of splitting the difference. An HCP doesn't 
move forward unless a landowner gets some sort of economic 
benefits from the HCP, itself. That process of splitting the 
difference between environmental and economic benefits has 
great implications certainly for species, but it is, in the 
end, a quantitative exercise: How much land to get how much 
benefit to species?
    We're not only talking about categorization of species, 
we're talking about a method for assessing the costs and 
benefits of the taking of species in certain circumstances. 
That's a tougher thing to put into guidelines, but a narrative 
on the thinking that goes into that kind of an exercise needs 
to be documented.
    Senator Crapo. Thank you.
    Dr. Murphy, to switch directions for a minute here, you've 
mentioned in your written testimony and also in some of your 
answers to questions that a source of funding to help 
facilitate the adaptive management would be very helpful. That 
idea is also very intriguing to me because, as we discussed the 
conflict between the need for No Surprises or, as you 
indicated, strong assurances, and the need for adaptive 
management, as that arises, if the adaptive management moves in 
the direction of more restrictive needs, often that can't be 
accommodated within the context of the kinds of assurances that 
need to be given at the beginning of an HCP to allow for the 
agreement of the landowners, but, sort of in the context, if I 
understand you right, in the context of mitigation, perhaps if 
there were some type of external source of resources brought 
into the picture by the Government to help address the needs 
that would be brought into conflict, we could breach the skids, 
so to speak, find a way to move forward in getting past the 
conflict between the private landowners and the needs of the 
species.
    Could you elaborate on that? And I'd also like to get the 
information or the thoughts of the other members of the panel 
on that issue.
    Dr. Murphy. I don't know that I can elaborate. You've 
stated it quite clearly.
    I do think that a process that is facilitated with adequate 
funding can allow for creative engagement that might not be 
realized otherwise.
    An example is the Headwaters deal, which was funded with 
$500 million Federal and State funds and 3 years of 
negotiation--a very good HCP. My sense is that to facilitate 
HCPs through public funding would be a rarer-than-normal 
circumstance; that if there were a pool of funds, an endowment, 
that could be stewarded, we would find that we wouldn't have to 
dip into it all that often.
    But there are circumstances, and the circumstances tend to 
be those in which we've got narrowly distributed species 
largely found on the private lands where the contribution to 
persistence of the species can't be buttressed by habitat on 
public lands. Those rare circumstances tend to be coastal 
southern California, the bay area of California, the valley 
lands there, and in some of the developing areas of the south 
and southeast, where a funding pool like that would really 
facilitate good planning in areas where economic constraints do 
exist.
    Senator Crapo. Dr. Kareiva, do you have any thoughts on 
this?
    Dr. Kareiva. Essentially I agree with Dennis in the sense 
that, yes, we need a pool like that. We probably wouldn't have 
to use it much. In fact, given a little time we could probably 
look at the data much the way he just suggested in terms of 
rare endemics and find out and anticipate how much we would 
have to use it.
    Senator Crapo. Dr. Pimm.
    Dr. Pimm. I, too, agree. I think that many of the HCPs are 
unlikely to be controversial. They are likely to be fairly 
straightforward, and they can move ahead with relatively little 
intervention.
    There is always going to be somewhere we are going to have 
to sit down and expend a lot more time and effort and money, 
but my sense is that these two are going to be the noticeable 
and the controversial examples, but relatively the minority.
    Senator Crapo. I believe that was a notification of the 
vote. I have just a couple other questions, but, Senator 
Chafee----
    Senator Chafee. No, I'm all set. Thank you very much, Mr. 
Chairman. I want to thank the members of the panel. This was an 
excellent panel, and I'd congratulate you for having assembled 
it.
    Senator Crapo. Well, thank you, Senator.
    I will just ask a few other questions and you can feel free 
to get on your way if you need to.
    Senator Chafee. OK. Fine. Thank you very much.
    Senator Crapo. We appreciate your participation here.
    Senator Chafee. Thank you all very much. Dr. Pimm I 
understand came back especially from Brazil for this.
    Dr. Pimm. Yes, sir.
    Senator Chafee. I want to thank you very much for doing 
that.
    Senator Crapo. We appreciate it. In fact, I should say at 
this point that the information and insights that the panel has 
provided are going to be very helpful as we approach this, and 
I've already--not only through the written testimony, which I 
reviewed last night, but through the presentations today, 
developed a lot of ideas that I think could be very useful in 
pursuing reform of this area of the law.
    I wanted to pursue a little bit further this question of 
how to use the financial resources that might be made available 
through some form of money.
    As you were all answering my last question, I was thinking 
about the situation in my part of the country. The Pacific 
Northwest is very heavily public land dominated, where the HCP 
problem isn't directly involved with the public land, but if 
you've ever looked at maps of the interspersal of public and 
private land, it is sort of like a checkerboard effect, and the 
management of public land inevitably impacts the management of 
private land, and vice versa.
    It seems to me that there may also be a need for financial 
support in terms of a lot of the management issues that we face 
in large ecosystems such as the management issues we face 
relating to salmon or steelhead, which virtually impact the 
entire watershed of the Snake and Columbia River systems, which 
is most of four or five States, or the bull trout, which is 
becoming another significant issue in some of those regions, or 
the grizzly bear, which was mentioned by you, Dr. Murphy.
    You apparently are aware of some of the very difficult--
I'll even use the word ``hostile''--debates that we are having 
over how to manage some of those types of species.
    The need for a financial source of mitigation for some of 
the impacts that the management will be ultimately needed for 
some of these species seems to me to be very evident.
    One of the problems I see there is that that might be an 
area where the need to dip into the pool of money is not only 
regularly faced, but in large dollar amounts.
    Is that context something which you had in mind in terms of 
what you were suggesting, Dr. Murphy, or am I going down an 
entirely different trail right now?
    Dr. Murphy. You can spend money very quickly by going after 
the grizzly bear.
    My sense is that we're never going to get there if we have 
to go through an appropriations process to respond to crises; 
that we really do need a pool of money, an endowment of sorts 
that can be tapped, hopefully conservatively, to resolve 
problems.
    I am concerned that we have disproportionately directed 
funds at a very few species over the years under the Endangered 
Species Act, and that in many ways has contributed to our 
current circumstance in which we've got many hundreds of 
species on the list.
    I think well-directed funds from such a pool might be used 
to try to obviate the need for listing, to keep candidates off 
the endangered species list, to take care of many of the 
species that aren't being taken care of through the 
appropriations processes.
    We've got an emergency room circumstance where grizzly 
bears, northern spotted owls, and a number of other species get 
a disproportionate amount of our economic attention, and 
anything we can do to spread the funds that are available to 
additional species is going to be very important.
    But my thought is--and it is always a tough budget 
circumstance, but maybe now is the time that we should be 
looking for an endowment that would spin off some dozens of 
millions of dollars a year for strategic investment in species 
that are involved in HCPs.
    Senator Crapo. Thank you.
    Any comment on that, Dr. Kareiva or Dr. Pimm?
    Dr. Kareiva. I think there certainly is a need for such an 
endowment, and instead of being so pessimistic about it we have 
to realize there is the opportunity to recover some of these 
endangered species. We have to realize that such an endowment 
could lead to faster de-listings. When species are de-listed a 
lot of money is spent enforcing the Act. The enforcement is 
done haltingly, in ways that hamper local economics. Here de-
listing clearly can save money.
    We really have to heed the benefits of taking species off 
the list. If we used such an endowment well, in the long run it 
could be very effective even economically, because it would 
help us get species sufficiently recovered that they could be 
de-listed.
    Senator Crapo. Thank you.
    Dr. Pimm.
    Dr. Pimm. With Dr. Kareiva being the expert on salmon and 
Dr. Murphy the expert on grizzly bears, I can't contribute to 
that other than to say that, ``You know, the act is not that 
old, 25 years or so, and there are a lot of species like gray 
whales, peregrine falcons, bald eagles that we've recovered. It 
has been a very successful act at preventing species' 
extinction, and I think we should always keep that in mind when 
we look at the potential for improving it.''
    Senator Crapo. Thank you.
    I have just about 5 minutes left, and so I want to get into 
one other area.
    Some scientists have argued that the better approach to 
saving endangered species is to focus on preserving large 
tracts of habitat, sort of what you were saying, Dr. Pimm, I 
think, to preserve more area, not just hundreds of acres but 
thousands and tens of thousands of acres, rather than on 
individual conservation measures aimed at individual species. 
This is, you know, sort of like what has been called the 
ecosystem approach or the watershed approach.
    As I understand it, the underlying argument is that if you 
preserve the habitat broadly like this, then the species that 
depend on that habitat will also necessarily be preserved, and 
you maintain the important ecological relationships among the 
habitat.
    Can you comment on this ecosystem-based approach? And I'm 
thinking about is it scientifically justified? And also, how 
does that relate to the need for specific habitat conservation 
plans in more-localized and smaller situations?
    Dr. Pimm.
    Dr. Pimm. I think one of the most exciting documents that 
has been produced in the last few months has been the multi-
species recovery plan for south Florida. There is no other area 
in our country that is as diverse ecologically. That area 
contains the Everglades, it contains uplands, it contains 
wetlands, it contains a barrier reef. And that plan recognizes 
that we should be planning at the landscape level--the 
ecosystem level, if you like--and for many, many species.
    I actually think that in the past that has been implicit 
but not explicit, and the spotted owl issue was not just a 
single species but the several hundred other species that 
shelter underneath it in old growth forests.
    I think there is a movement to recognize that we should 
make all of those species explicit, and that multispecies 
recovery plans involving hundreds of species do just that.
    So I think the scientific community, the Fish and Wildlife 
Service, is indeed moving in the direction of looking at the 
entire package of species in an area.
    Senator Crapo. Thank you.
    Dr. Kareiva.
    Dr. Kareiva. Two responses to that. First is in this large 
study that we did we broke the habitat conservation plans in 
two categories, they come in two categories--species-based and 
habitat-based. It was our evaluation that the habitat-based 
ones were generally sounder scientifically.
    Second, more broadly, I think there is actually a pretty 
wide consensus that this sort of habitat ecosystem perspective 
is the way to go, with a caveat that you still always have to 
be counting birds, counting plants, counting fish, because if 
you just go out and count ground you may be wrong.
    Senator Crapo. Dr. Murphy.
    Dr. Murphy. Dr. Kareiva said it. I think we need to plan at 
the habitat, the landscape level. We need to do our science, 
though, not only at that level. We also have to focus on 
species, themselves.
    The idea somehow that we can understand ecosystems well 
enough to be able to create a good habitat conservation plan 
that takes care of all the constituent species just doesn't 
hold up at this point. We need specific information about the 
species that reside in these habitats.
    Senator Crapo. And it seems to me that if you had a broad 
understanding of the needs of the habitat, in general, that 
that can form a significant part of the science that helps to 
develop what is appropriate in individual HCPs. Is that true?
    Dr. Kareiva. Certainly.
    Senator Crapo. Each of you are nodding yes.
    Dr. Pimm. Yes.
    Senator Crapo. I will indicate that for the record.
    Well, gentlemen, I want to thank you for coming today. As I 
indicated, the advice that you've given and the information 
that you've provided is very helpful.
    To wrap it up, I'd like to just say that what I am hearing 
you say in a broad sense is that, although there is still a 
need for developing the data base and expanding our 
understanding of the science that is available and expanding 
the science that we can achieve, that we should not lose sight 
of the value of HCPs as they currently exist; that they are 
helpful and we can improve.
    Is that a fair summary of the testimony?
    Dr. Pimm. Yes.
    Dr. Kareiva. Yes.
    Dr. Murphy. Yes.
    Senator Crapo. Well, thank you.
    I would also like to encourage you, as you have further 
thoughts on this, to feel free to submit them to the committee. 
We are working on this issue very closely, and we are going to 
try to identify the areas in which we can improve our focus at 
the policy level on how to address HCPs. We want to do so in a 
way that develops broad-based public support, and I think that 
the kinds of information and suggestions that you've provided 
today are going to help us do that.
    Please continue to work with us.
    I'm reminded that, because of the business of our schedule, 
which we always have around here, not all of the Senators have 
been able to attend. We are sure that some of them are going to 
want to ask you some questions for the record and we would ask 
you to remain available to respond to their questions as we 
provide them to you. Would you each be willing to do that?
    Dr. Pimm. Yes.
    Dr. Kareiva. Yes.
    Dr. Murphy. Yes.
    Senator Crapo. All right. Thank you very much. Without 
anything further, then, this hearing is adjourned.
    [Whereupon, at 10:51 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
         Statement of Dr. Stuart Pimm, University of Tennessee
    I greatly appreciate your giving me the opportunity to discuss the 
issue of Habitat Conservation Plans. The scientific community 
particularly welcomes your leadership on this issue because it is 
quantitatively the most important aspect of endangered species 
protection. Between a half and two-thirds of endangered species are not 
found on Federal land. We Americans cannot adequately protect our 
natural heritage unless we protect species on private, State, County 
and other lands encompassed by HCPs. The rapid expansion of HCPs within 
the last 5 years or so provides unrivaled opportunities for the 
necessary stewardship. This is both an exciting time and a challenging 
one as scientists consider the progress to date and how to improve 
future plans.
    My research confirms the old adage that one should not put all 
one's eggs in one basket. Most endangered species have become 
endangered because we have forced them into a few ``baskets''--a 
limited amount of space where they are now especially vulnerable to 
change, both natural and human-caused.
    The first advantage of HCPs is their potential to minimize risk by 
protecting a species in more than a few places. Spreading a species' 
risk of extinction across many places will often be a better bet than 
intensive scientific study and visionary management in just one place. 
Most of us manage our financial investments by spreading risk in much 
the same way.
    The second advantage is that at least 60 percent of endangered 
species need active habitat management to survive. Without control of 
alien weeds or without period, controlled fires some species will 
succumb if all we do is to put a fence around them. The HCP process can 
encourage appropriate habitat management and do so over increasingly 
large areas.
    The experience to date on HCPs has been that some have been better 
than others--how could it be otherwise? The analysis of HCPs undertaken 
by the National Center for Ecological Analysis must surely be viewed in 
this light. The report's most serious criticism argues that many HCPs 
may be based on ``the best available scientific data'' but that those 
data may not be sufficient. To me, the report's most important omission 
is that it does not fully address this tradeoff between having many 
good plans versus a few superb (and omniscient) ones. Limited resources 
will always mean that one cannot have many, perfect plans.
    Of course, the NCEAS report raises the possibility that we may have 
many plans, but poor ones. While I may manage my investments by 
spreading risks across many stocks that does not mean I would accept a 
preponderance of poor ones. The report notices numerous deficiencies 
that need to be addressed by future plans. Its greatest strength is its 
unified assessment of the plans. Its most important recommendation is 
that there should be a central repository of plans to provide models 
and comparisons for those who will produce plans in the future.
    Criticisms of inadequate data need to be viewed in the context of 
what is practical. I have no personal experience of HCPs, but I have 
extensive experience of the Section 7 Consultations between the Fish 
and Wildlife Service and other Federal agencies. I believe the 
parallels to be useful. Many of those consultations are informal, 
friendly, and the issues are quickly resolved.
    I suspect that many HCPs may be relatively uncontroversial. One 
size does not fit all, however. Some Section 7 consultations are 
difficult, contentious, are require major investments of resources. 
Surely, some HCPs will be likewise.
    It was to address different degrees of ecological uncertainty that 
Dr. Gary Meffe of the University of Florida and I wrote to you in 
January of last year. Our letter was co-signed by more than a dozen 
scientists all with extensive experience of conservation issues. We 
offered the following recommendations:
    First, the scientific rigor underlying the plan should influence 
the relative length of accompanying assurances. Plans that rest upon a 
substantial scientific foundation, about which there is little serious 
disagreement as to their sufficiency or adequacy, should properly 
receive longer-term assurances than those that rest upon a more 
marginal scientific foundation and for which there is substantial 
disagreement regarding their sufficiency or accuracy.
    For long-term assurances to accompany plans that encompass all or a 
very large portion of the range of a covered species, the rigor of the 
underlying science is especially important.
    Second, any ``No Surprises'' policy ought to be crafted in such a 
way as to encourage identification in the plan of possible future 
contingencies and a means of adapting management in response to them. 
One way to do so is to link the duration of assurances provided to the 
extent to which a plan identifies and allocates responsibility for 
future contingencies. Other things being equal, those plans that 
specifically address a variety of potential future contingencies and 
clearly identify how they will be handled warrant a longer term of 
assurances than plans that make little or no effort to do so.
    Third, the potential conservation benefit of a plan ought to 
influence the extent and duration of the assurances provided.
    Thank you for your attention.
                                 ______
                                 
  Responses by Stuart Pimm to Additional Questions from Senator Chafee
    Question 1. You mentioned in your testimony that you agree with the 
report produced by the National Center for Ecological Analysis and 
Synthesis that there should be a central repository of plans in order 
to provide a source of models and comparisons for the future. Where do 
you feel would be the best location of this repository? Who should 
undertake this project?
    Response. The Fish and Wildlife Service would seem to be an obvious 
place to deposit Habitat Conservation Plans, since it under the 
Endangered Species Act that they are produced. While I do not 
understand the administrative details, I do feel that in these days of 
web pages and easily produced CD-roms that this should not be a 
particularly onerous task. The plans themselves are documents that can 
very simply be uploaded onto a web site or assembled onto CDs. My 
experience of other large scale data bases available as government 
documents suggest that this would be well within the limits set by 
other activities. (For instance, the Multi-species Recovery Plan for 
South Florida is a huge document.)

    Question 2. Some scientists have argued that the better approach to 
saving endangered species is to focus on preserving large tracts of 
habitat--not just hundreds of acres, but thousands and tens of 
thousands of acres--rather than on individual conservation measures at 
individual species. This is essentially an ecosystem approach. The 
underlying argument is apparently that if you preserve the habitat, the 
species that depend on that habitat will also be preserved. And you 
maintain the important ecological relationships within that habitat. 
Can you comment on this ecosystem-based approach? Is it justified? What 
are the scientific issues that need to be addressed if you focus on 
preserving ecosystems, instead of protecting species here and there?
    Response. There is no doubt that protection of our national 
biological heritage will be achieved most effectively by protecting 
larger, more connected and more natural areas. The smaller, more 
fragmented, and more managed a set of areas, the greater the problems 
we will encounter. Some of the more contentious issues that we have 
faced--the spotted owl, the California gnatcatcher, various species in 
the Everglades, for instance--stem from the difficulties of managing 
species across too small an area.
    Nor is there any doubt that protecting habitat is an essential task 
in protecting species. The ESA states precisely this in its opening 
statement of purpose. And the Supreme Court's decision (Sweethome 
versus Babbitt) confirmed the importance of habitat, agreeing with a 
Brief of Amici Curiae Scientists that I helped draft.
    There is a danger, however, in thinking that ecosystem-management 
is somehow an alternative to species management. In practice, many 
examples of apparent single-species management including the three 
examples listed above are issues of ecosystem management: old growth 
forests in the Pacific Northwest, the Coastal shrublands of California, 
and our largest wetland, respectively. The issues surrounding the red-
cockaded woodpecker are likewise an ecosystem problem: the long-leaf 
pine savannas of the southeast are one the most endangered ecosystems 
in the country.
    My sense is that many now understand that the use of particular 
species as ``umbrellas'' under which other species shelter has caused 
difficulties in the debates of protecting our natural heritage. Multi-
species plans--like the one mentioned above--are more transparent in 
that they list all the species in danger. As a consequence, they are 
also manifestly oriented toward preserving ecosystems. It has to be so: 
I do not see how one can define a particular ecosystem except by the 
special species that it contains.
    As an example, I see within the South Florida Plan an inevitable 
convergence between species planning and ecosystem management. And if 
multi-species planning can be done there, in the most biologically 
complex corner of our country, then surely it can be done elsewhere.
                                 ______
                                 
 Statement of Peter Kareiva, Senior Ecologist, Northwest Region of the 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
                 Administration, Department of Commerce
    Mr. Chairman, my name is Peter Kareiva, and I am a senior ecologist 
with the National Marine Fisheries Service (NMFS) Northwest Science 
Center in Seattle, Washington, where my primary responsibility is 
developing a science-based risk analysis that can guide efforts to 
recover endangered salmon populations. I am here to speak to you about 
a large national study of Habitat Conservation Plans (HCPs) which I 
supervised while a Full Professor in the Zoology Department at the 
University of Washington. Since this was before I worked for NOAA, 
those findings do not represent the views of NOAA. My experience and 
expertise regarding HCPs are derived from this national study and from 
20 years of active research in conservation biology.
                            about the study
    The study was initiated in September 1997 and was completed with 
the posting of all of its results and data on a publicly available 
website in January 1999 (http:/www.nceas.ucsb.edu/projects/hcp/). We 
used the volunteer labor of 119 biological researchers, including 13 
faculty members and 106 graduate students from eight premier research 
universities around the country (Yale University, University of 
California at Berkeley, University of California at Santa Cruz, 
University of California at Santa Barbara, University of Washington, 
University of Virginia, Florida State University and North Carolina 
State University). The study was supported by the AIBS (American 
Institute of Biological Sciences: $19,000) and NCEAS (National Center 
for Ecological Analysis and Synthesis: $82,000). NCEAS is funded by the 
National Science Foundation as a center dedicated to bringing 
ecologists together to solve our most pressing problems in both basic 
science and in the arena of public interest (such as this HCP issue), 
and in a rapid-response fashion.
    We examined 208 HCPs that had been approved as of August 1997. Of 
those 208, we took a sample of 43 HCPs for which we attempted to read 
every supporting document and every relevant article in the scientific 
or agency literature that might provide pertinent data. Often this 
amounted to reading several thousands of pages of documents and tables 
and speaking at length on the phone to biologists. Efforts were 
coordinated by using internet and the web to maintain a dialog among 
research courses being taught at the eight different universities. Data 
analysis and actual synthesis of these data took place at NCEAS, which 
houses excellent conference and computer facilities. The data base we 
produced contains 89,908 entries. This is the largest Quantitative 
study of HCPs yet produced, and in some sense is the first quantitative 
study. By quantitative I mean that our evaluation of HCPs is in the 
form of actual numbers and scores which can be statistically analyzed 
and updated, as opposed to narrative descriptions.
                     major conclusions of the study
    (1) We frequently lack adequate data regarding the most basic 
biological processes pertaining to endangered species--such as what is 
the rate of change in their populations locally? Nationally? What is 
their reproductive schedule? What is happening to their habitats in 
quantitative terms (percent lost or gained per year)?
    (2) Given the data available, HCPs generally make the best use of 
the existing information in a rational manner, and there is evidence 
that the quality of HCPs with respect to using science has been 
steadily improving.
    (3) However, for many HCPs. scientific data are so scant, that the 
HCPs really should not be called ``science based'' since science 
requires data from which inferences are drawn and tested. There is no 
agency failing here, nor any failing of individual writers of HCPs--no 
one could to a better job given the limited sources and poor quality of 
information that are available.
    (4) Very few HCPs included in the study were designed to include 
adequate monitoring of populations or habitats in a way that could at 
least allow us to learn from our actions and create data bases that 
could inform fixture decisions. This is a golden opportunity that is 
being missed. Second, so-called ``adaptive management'' may be 
mentioned in HCPs, but an extremely small percentage of HCPs actually 
establish any adaptive management procedures (complete with statistical 
power analyses for assessing whether they are likely to work).
                            the bottom line
    Everything preceding in my testimony has had very little of my 
personal emphasis, and instead reflects a straightforward condensation 
of the report which is available at the website above. However, I want 
to end by leaving you with what I see as the bottom line of this 
research regarding science in HCPs. Sometimes it is too easy to get 
lost in the details, and lose sight of the big message. I wish to 
emphasize, however, that this ``bottom line'' is my personal conclusion 
from the study--what I pick out as its most important lessons.
    (1) The absence of a data base that tracks patterns of population 
change and habitat alterations for threatened and endangered species is 
a national embarrassment. Often these data exist somewhere--in a file 
drawer, in researchers' notebooks, or scattered among several 
publications. Yet in this age of computers and the interest, our data 
bases and information on basic natural history of endangered species 
are staggeringly primitive. Many of us are aware of how much national 
or even state ``computerized criminal data bases'' have revolutionized 
enforcement. The same should happen with resource management and 
endangered species protection. Without such data bases we cannot know 
where are the ``safe places'' and the ``dangerous places'' for our 
endangered species. We need to be able to ``go on line'' and find out 
what is happening with endangered species in terms of hard numbers--how 
many individuals? where? how many acres of habitat? how much of the 
remaining habitat exists in publicly owned lands? and so forth. 
Investment in such a data base would be in the best interests of all 
parties, so we can at least have access to the most current information 
before we begin debating the possible consequences of future actions.
    (2) We do not even have a national data base that tracks the 
``paper'' administrative record of HCPs. In other words, one cannot get 
on the internet and find a list of all HCPs that address a particular 
species or the total acreage of land for a species that is covered by 
the HCP process. Increasingly, HCPs are being placed online (a very 
positive trend), but the sort of administrative data base that I feel 
is needed will require a much larger effort to synthesize and update 
information from many scattered sources in a format that will make the 
information easy to access.
    (3) In light of all this scientific uncertainty, if HCPs are to be 
pursued in the interest of balancing development and the environment, 
then minimally, HCPs should be required to include rigorous peer-
reviewed monitoring programs that allow us to learn from them.
    Mr. Chairman. thank you for this opportunity to testify. I know the 
HCP process is being seriously improved. In addition, I know from 
personal experience that certain recent HCPs (after the publication of 
our study) include state-of-the-art monitoring designs, backed up by 
high quality research (e.g., the Pacific Lumber Headwaters HCP and its 
monitoring program for marbled murrelets). Moreover, one reason I came 
to work as a scientist for the Federal Government and especially for 
NMFS is that it is easy to throw stones from an ivory tower and 
criticize how the government does its resource management science (and 
I have thrown some of those stones)--but I wanted to see if I could 
make the science work any better before I continued to criticize the 
job others were doing.
    I look forward to answering any questions you may have.
                                 ______
                                 

              Using Science in Habitat Conservation Plans

                           executive summary
    The Endangered Species Act of 1973 (ESA) was established to save 
species at risk of extinction and to protect the ecosystems upon which 
they depend. Toward that aim, the ESA makes it unlawful for any person 
to ``take'' a listed species. In 1982, the ESA was amended to authorize 
incidental taking of endangered species by private landowners and other 
non-Federal entities, provided they develop habitat conservation plans 
(HCPs) that minimize and mitigate the taking. Since 1982, HCPs have 
rapidly proliferated, leading in turn to widespread concern among 
conservationists that these plans are not being prepared with adequate 
scientific guidance. Critics have argued that scientific principles 
must be better incorporated into the process of developing HCPs. In 
response to these criticisms, we reviewed a set of approved habitat 
conservation plans to evaluate the extent to which scientific data and 
methods were used in developing and justifying them. The review was 
conducted through a nationwide graduate seminar involving eight major 
research universities, 106 students, and 13 faculty advisors. Our 
analyses focused on the extent to which plans could be substantiated by 
science. Thus, even if based on the best available data (the legal 
requirement), a legally and politically justified plan could be deemed 
scientifically inadequate because, by more stringent scientific 
standards, the data were insufficient to support the actions outlined 
in the plan.
A Systematic Effort to Collect Quantitative Data on Science in HCPs
    This investigation proceeded along two lines. First, individuals 
gathered data on 208 HCPs that had been approved by August 1997 in 
order to obtain basic descriptive information about plans. Second, the 
group conducted a more comprehensive analysis for a focal subset (43) 
of these plans. The HCPs in the focal subset range widely in geographic 
location, size, duration, methods, and approval dates. For this in-
depth investigation, we developed two separate data questionnaires: one 
asked for information on the plans themselves, and the other focused on 
listed species and their treatment within HCPs. These questionnaires 
included information about what scientific data were available for use 
in formulating the HCP, how existing data were used, and the rigor of 
analysis used in each stage of the HCP process. As a whole, the 
questions were designed to generate a detailed profile of each HCP and 
to document the use (or lack thereof) of scientific data and tools. 
Plans were not judged overall; rather, questionnaires focused on 
different stages of the planning process, including the HCP's 
assessment of (1) the status of the species; (2) the ``take'' of 
species under the HCP; (3) the impact of the take on the species; (4) 
the mitigation for the anticipated take; and (5) the biological 
monitoring associated with the HCP. All of the data sheets, plan 
descriptions, and other detailed results from this effort are available 
on the NCEAS website:
http://www.nceas.ucsb.edu/projects/hcp/
Results
    From our data on 208 HCPs, we were able to outline an overall 
picture of HCPs across the landscape. These 208 HCPs involve permits 
for incidental take of 73 endangered or threatened species. Of those 
208, a great majority (82 percent) involve a single species, although 
the profile is skewed by more than 70 plans involving the golden-
checked warbler (Dendroica chrysoparia) in Travis County, Texas. HCPs 
occur in 13 states; the largest concentrations are in Texas, Florida, 
and California. They range in size from only 0.17 ha (0.5 acre) of 
habitat to 660,000 ha (1.6 million acres) of habitat. The duration of 
plans also varies widely, from 7 months for a plan in Travis County, 
Texas, to 100 years for the Murray Pacific Company's HCP in Washington. 
HCPs do not appear to be getting larger, smaller, longer, or shorter 
over time.
    In our more comprehensive examination of the focal HCPs, we direct 
much attention to what we call scientific adequacy. It is important to 
note that an HCP would be labeled scientifically inadequate if 
insufficient data were available to justify an action formally, even 
though legally the plan might be defensible. HCPs and many other 
provisions of the Endangered Species Act require only that decisions be 
based on the best available data. Scientifically, however, to support a 
claim we require data that when analyzed give some statistical 
confidence of an assertion, and that confidence is often lacking in 
applications of science to conservation biology because of a paucity of 
data. For example, from a scientific perspective, the best data might 
suggest a particular relationship between loss of habitat and loss of 
individuals, but the data are so variable and scarce that one could 
never have scientific confidence in the presumed relationship. Our aim 
is not to change the law but to point out just how much science is 
being used, and can be used given the availability of data pertinent to 
HCP development. The conclusions we draw probably apply to many other 
facets of Federal decisions regarding species listed as endangered or 
threatened.
            Status/Take/Impact
    Because they involve take of endangered species, HCPs must include 
information about the status of populations and habitats of the 
species, an assessment of how many individuals and how much habitat 
will be taken under the plan, and what impact that take will have on 
the species overall. We found that, for most species (74 percent), 
population sizes were known to be declining globally before the HCP was 
submitted; 21 percent were stable, and 5 percent were increasing. The 
most important threat to species was habitat loss, although habitat 
degradation or fragmentation and direct human-caused mortality also 
represented important threats. Notably, for only 56 percent of the 
instances in which a listed species might be ``taken'' by an activity 
was the predicted take quantitatively estimated. And only 25 percent 
(23 of 97) of species treatments included both a quantitative estimate 
of take and an adequate assessment of the impact of that take.
            Mitigation
    A crucial measure for the success of HCPs is the choice and 
implementation of measures to avoid, minimize, and mitigate impacts on 
the species included in the permit. If the appropriate measures are 
chosen and implemented in a timely fashion, the impact on the species 
in question might be effectively mitigated, justifying the issuance of 
an incidental take permit. For this analysis, we chose to evaluate 
avoidance, minimization, and mitigation measures as overall 
``mitigation,'' because they all involve offsetting potential impacts 
to species. Minimization and avoidance of the threatened species are by 
far the most common mitigation measures (avoidance is proposed for 74 
percent of species, and minimization for 83 percent). Our analyses 
identify some important gaps in quality of data underlying mitigation 
proposed in HCPs. Overall, particular mitigation measures commonly 
suffered from an absence of data indicating they were likely to 
succeed, leading to a situation in which ``unproven'' mitigation 
measures were relied on in the HCPs. Given this uncertainty, one would 
expect that a mitigation measure should be evaluated prior to the onset 
of take. Unfortunately, such a precautionary approach was often 
lacking.
            Monitoring
    We determined whether biological monitoring (i.e., ``effectiveness 
monitoring'' or monitoring of trends in the populations that are 
potentially affected) was included for the HCPs in our sample. In this 
analysis, we looked at each plan as a sampling unit (n = 43), and we 
only considered information included in the plan or associated 
documents. For only 22 of the 43 plans was there a clearly outlined 
monitoring program. Of those 22 well-described monitoring programs, 
only 7 took the next step of indicating how the monitoring could be 
used to evaluate the HCP's success. Interestingly, although most plans 
do not include provisions for ``adaptive management,'' when plans do 
include such provisions they are significantly more likely to include 
clear monitoring plans as well.
            Availability and Use of Information Needed for 
                    Scientifically Based HCPs
    In many cases, we found that crucial, yet basic, information on 
species is unavailable for the preparers of HCPs. By crucial, we mean 
information necessary to make determinations about status of the 
species, the estimated take under the HCP, and the impact of that take 
on the species. For example, in only one-third of the species 
assessments was there enough information to evaluate what proportion of 
the population would be affected by a proposed ``take.'' If we do not 
know whether one-half or one-hundredth of a species' total population 
is being affected by an action, it is hard to make scientifically 
justified decisions.
    We assessed the overall adequacy of scientific analysis at each 
stage of the HCP process. Although this evaluation of scientific 
adequacy amounted to a largely qualitative assessment, the foundations 
of that assessment were well specified by series of background 
questions; ``overall adequacy'' was consistently well predicted by data 
obtained for these background questions. In general, the earlier stages 
in HCP planning are the best documented and best analyzed. In 
particular, species status is often well known and adequately analyzed, 
whereas the progressive analyses needed to assess take, impact, 
mitigation and monitoring are more poorly done or lacking. Our 
evaluations also indicate that the very large and the very small HCPs 
contain the poorest analysis. In terms of plan duration, it appears 
that shorter-duration plans have better estimates of the amount of 
take, but longer-duration plans have better analysis of the status of 
the species and the mitigation measures imposed.
Conclusions and Recommendations
    Although our analysis points to several shortcomings of HCPs, we 
acknowledge that the HCP process is new, complex, and difficult. In 
general, the USFWS and NMFS are doing a good job with the data that are 
available. They do not have the resources to obtain the data that are 
needed for many of the decisions that must be made. Without such 
resources, the best scientific approach is to be more cautious in 
making decisions and to use the findings of this report to justify 
requests for additional resources.
            Recommendations
    1. We recommend that greater attention be given to explicit 
scientific standards for HCPs, but that this be done in a flexible 
manner that recognizes that all HCPs need not adhere to the same 
standards as high impact HCPs. A formalized scheme might be adopted so 
that small HCPs draw on data analyses from large HCPs, assuring that 
applicants are not paralyzed by unrealistic demands.
    2. For the preparation of individual HCPs, we recommend that those 
with potentially large impact (those that are large in area or cover a 
large portion of a species' range) include an explicit summary of 
available data on covered species, including their distribution, 
abundance, population trend, ecological requirements, and causes of 
endangerment. HCPs should be more quantitative in stating their 
biological goals and in predicting their likely impact on species. When 
information important to the design of the HCP does not exist, it may 
still be possible to estimate the uncertainties associated with the 
impact, mitigation, and monitoring, and to still go forward, as long as 
risks are acknowledged and minimized. Flexibility can be built into 
mitigation plans so that managers can be responsive to the results of 
the monitoring during the period of the HCP. When highly critical 
information is missing, the agencies should be willing to withhold 
permits until that information is obtained.
    3. For the HCP process in general, we recommend that information 
about listed species be maintained in accessible, centralized 
locations, and that monitoring data be made accessible to others. 
During the early stages of the design of potentially high-impact HCPs 
and those that are likely to lack important information, we recommend 
the establishment of a scientific advisory committee and increased use 
of independent peer review (review by scientists specializing in 
conservation biology). This policy should prevent premature agreements 
with development interests that ignore critical science.
                            1. introduction
1.1. The Endangered Species Act in Relation to this Study
    The Endangered Species Act of 1973 (ESA) was established to save 
species at risk of extinction and to protect the ecosystems upon which 
they depend. Toward that aim, the ESA makes it unlawful for any person 
to ``take'' a listed species. This prohibition encompasses activities 
that directly kill or harm listed species, as well as activities that 
cause indirect harm through ``significant habitat modification or 
degradation'' (50 CFR Sec. 17.3). In 1982, the ESA was amended to 
authorize incidental taking of endangered species by landowners and 
nonFederal entities, provided they developed habitat conservation plans 
(HCPs) that minimize and mitigate the taking, and that receive approval 
by the U.S. Fish and Wildlife Service (USFWS) or the National Marine 
Fisheries Service (NMFS). Any nonFederal entity, whether a private 
citizen, corporation, county, or state, can initiate an HCP. Once 
approved, an HCP results in an incidental take permit. The language of 
this amendment (Section 10a of the ESA--16 U.S.C. Sec. 1539(a)) arose 
directly out of a model HCP designed to resolve a conflict between a 
development project and the needs of endangered species in the San 
Bruno Mountain area near San Francisco. Few landowners chose to 
undertake HCPs until the early 1990's. The USFWS approved only 14 HCPs 
from 1983 to 1992 (USFWS and NMFS, 1996), but since 1992 there has been 
an explosion of HCPs--225 were approved by September 1997, and 
approximately 200 are currently being formulated. Indeed, HCPs have 
become one of the most prominent mechanisms employed by the USFWS to 
address the problem of threatened and endangered species on private 
lands (Bean et al., 1991; Noss et al., 1997; Hood, 1998).
    The rapid proliferation of HCPs has led to widespread concern among 
conservation advocates about the scientific information in these 
documents. From a policy perspective, critics charge (1) that HCPs may 
undermine species recovery because they can allow for impacts to 
species that are not fully offset, (2) that HCPs are developed without 
adequate biological information or scientific review, (3) that small-
scale HCPs can lead to piecemeal habitat destruction and fragmentation, 
and (4) that meaningful public participation occurs infrequently 
(Hosack et al., 1997; Kaiser, 1997; Kostyack, 1997; Murphy et al., 
1997; National Audubon Society, 1997; O'Connell and Johnson, 1997). Our 
objectives in this study were to conduct a major review of HCPs and to 
evaluate in detail the scientific merit of a substantial sample of HCPs 
currently in effect. We did not attempt to evaluate the biological 
success of HCPs or their attempt to balance economics with biology. 
That exercise would have been premature given the newness of most HCPs. 
Our emphasis is on scientific data and approach, whether they are 
adequate, and if not, what should be done. To strengthen the role of 
science in this process, we start with the premise that regardless of 
the compromises that may be made between economics and environmental 
concerns, HCPs should have clear scientific objectives, be based on the 
best available data, and employ well-tested procedures. It is important 
to emphasize that we scrutinized HCPs and their use of data and 
inference from a strictly scientific (as opposed to legal) perspective. 
We sought to determine whether a presumed impact, a proposed mitigation 
measure, and so forth could be scientifically substantiated given the 
data available. We adopted this strictly scientific stance because one 
of the outcomes of our analysis is a series of recommendations for 
improving the quality of scientific input; arriving at these 
recommendations required that we keep a clear vision of the highest 
possible scientific standards for HCP implementation. Although the 
focus of this report is science, it is useful to keep in mind more 
legal definitions of key terms such as ``take,'' ``compliance 
monitoring,'' ``effects and effectiveness monitoring,'' etc. In Table 1 
we define key legal terms and emphasize how our more biological use of 
language differs from some of these legal definitions.
1.2. HCP Requirements
    Applicants proposing HCPs must specify the impact that will result 
from the incidental take of listed species, what the plan does to 
minimize and mitigate the impact, and what alternatives were considered 
(Table 2). NMFS is responsible for ultimately approving or rejecting 
the HCP (issuing the ``incidental take permit'') for marine and 
anadromous species, and USFWS is responsible for the remainder of 
listed species. The applicant may develop an HCP independently, but 
USFWS often works with the landowner in the plan's early stages, 
providing guidance as to what is or is not acceptable with respect to 
approval requirements. Typically, impact on species is minimized by 
limiting the geographic extent of harmful activities or the seasons 
when those activities are allowed (e.g., prohibiting timber harvest 
during the nesting season of an endangered bird). Mitigation often 
involves setting aside (through purchase or conservation easements) 
habitat elsewhere. USFWS or NMFS can only issue an incidental take 
permit if the HCP meets five criteria (Table 2). Incidental take 
permits are only issued for species listed as threatened or endangered, 
although for any unlisted species that is treated in the HCP as if it 
were listed, the landowner is assured of receiving a permit for that 
species when it becomes listed.
    No set of particular actions must be specified in an HCP for it to 
gain approval, and overall the process is quite flexible. There is, 
however, standardized guidance in the form of the Habitat Conservation 
Planning Handbook distributed by NMFS and USFWS (USFWS and NMFS, 1996). 
The handbook gives general advice on all aspects of HCPs. It also 
suggests expediting small-scale HCPs, while indicating directions in 
which USFWS and NMFS wish to direct future HCPs, including habitat-
based, multi-species planning and large-scale, multi-landowner plans. 
In addition, USFWS conducts training workshops across the country for 
employees who help applicants develop and implement HCPs.
1.3. The Impetus and Aims of This Study
    HCPs are not purely scientific documents--they are compromises 
between the interests of resource development and conservation, and 
political and economic concerns play a major role. Some HCPs represent 
the outcome of negotiations that take years. HCPs have economic, 
political, and scientific dimensions. Because HCPs represent negotiated 
compromises, it is essential to know what exactly is ``given up'' in 
the process of arriving at a compromise. It is easy to identify what is 
given up from the viewpoint of a private landowner, because the dollar 
value of future land development or exploitation is readily calculable. 
It is much harder to quantify what is given up in terms of a species' 
prospects for long-term survival. That is the challenge for the 
scientific component of HCPs.
    To examine the scientific component of HCPs, we decided to use a 
highly structured, detail-driven approach to collecting information on 
HCPs. To date, criticisms and recommendations about HCPs have 
emphasized broad policy implications and have sketched general 
qualitative attributes of particular HCPs (Hood, 1998; Noss et al., 
1998). We sought to develop a quantitative data base that sampled a 
``population of HCPs,'' so that our analysis would be relevant to HCPs 
in general, and not only to particular HCPs. This highly structured 
quantitative analysis complements the more flexible analyses previously 
published and, by uncovering broad trends within a substantial data 
base, will set the stage for further analyses.
    To examine the role of science in HCPs, the National Center for 
Ecological Analysis and Synthesis (NCEAS) and the American Institute of 
Biological Sciences (AIBS) initiated a 1-year project to analyze HCPs. 
A set of graduate seminars at eight universities (Florida State 
University; North Carolina State University; University of California, 
Berkeley; University of California, Santa Barbara; University of 
California, Santa Cruz; University of Virginia; University of 
Washington; and Yale University) were coordinated during the fall of 
1997. These seminars comprised a total working group of 119 
researchers, including 106 students and 13 faculty members. The group 
was charged with reviewing current plans to evaluate the extent to 
which scientific data and methods were used in developing and 
justifying the agreements. The group was also charged with recommending 
ways to strengthen the role of science in conservation planning. The 
group did not attempt to evaluate what effects the plans have had on 
biological systems or species. Because the vast majority of HCPs have 
been initiated since 1994, it is simply too early to evaluate whether 
the plans are working. Moreover, our goal was not a vague judgment of 
the overall quality of each plan or of the plans as a whole. Instead, 
the group focused on the scientific data and reasoning supporting the 
plans, paying particular attention to the key issues of take, impact, 
mitigation, and monitoring. All of the data sheets, plan descriptions, 
and other detailed results from this effort are available on the NCEAS 
website: http://www.nceas.ucsb.edu/projects/hcp/
    This paper is both our synthesis of the data available at this 
website, and a reader's guide to the website. The scale of the data set 
is large--89,908 entries were recorded for HCPs (7,246 for the set of 
208 plans, 75,094 for species questions pertaining to the 43 focal 
plans, and 7,568 for plan questions pertaining to the 43 focal plans). 
Throughout the paper, when discussing data we use the following key: AQ 
refers to questions applied to all 208 plans, SQ refers to species 
questions applied to the 43 focal plans, and PQ refers to plan 
questions applied to the 43 focal plans. The actual questions can be 
found in Appendix I.
       2. methods and rationale for data collection and analysis
2.1. Obtaining a Sample of HCPs for Descriptive Statistics
    As part of our effort, we sought to characterize the largest 
possible sample of plans in terms of their most basic attributes. Data 
we attempted to identify for these plans included plan duration and 
area, basic species information included in the plans, and other 
factual descriptors of the agreements. Unfortunately, there is no 
centralized office or collection of HCPs. We therefore took advantage 
of the joint effort of the two nonprofit organizations, the National 
Wildlife Federation (NWF) and the Earth Justice Legal Defense Fund 
(EJLDF), to assemble HCPs in Washington, DC. As of November 1997, they 
had compiled 208 of the 225 HCPs completed at that time. The 
questionnaire applied to this sample of HCPs is given as Appendix I-C.
2.2. Detailed Data Collection for 43 Focal Plans
    The time and energy required for careful evaluation of both an HCP 
and the relevant background information precluded a detailed 
investigation of all plans. We therefore selected 43 focal plans (21 
percent of the all plans available at the time the project began) for 
detailed analysis. Plans were chosen non-randomly, to span the range of 
geography, size, duration, methods, and approval dates represented in 
the entire population of HCPs (Appendix II-B lists these 43 plans).
    For the focal plans we performed three types of data collection. 
The first was accumulating evidence demonstrating the presence or 
absence of several types of scientific information. For this segment of 
our analysis, we chose a priori to define an ``HCP package'' as 
including the HCP itself, the incidental take permit (ITP), 
implementing agreement (IA), biological opinion, and any associated 
environmental review documents (EA/EIR/EIS). These documents were 
consulted for all focal plans for which they were available (some HCPs 
might lack some of these documents). Information contained in these and 
any other explicitly referenced documents was considered to be included 
in the plan. Second, we gathered general data about the HCP setting and 
the species covered by the associated incidental take permit. Many of 
these data were found in the documents listed above, but to augment 
them, corroborate conclusions made in the HCP documents, and provide a 
comparison to existing scientific knowledge, we completed surveys of 
relevant literature (which included both articles published in journals 
and the so-called ``gray literature,'' represented by reports prepared 
by government agencies and consulting firms). In gathering this 
information, we considered all reports and publications available at 
least 1 year before the date of the HCP's approval as having been 
available for the HCP preparers. For 32 of the focal plans, we 
collected species-specific data for all species covered on the 
incidental take permit. For the other 11, we chose a taxonomically 
representative subset of the species covered. Finally, we gathered 
information about the local context and characteristics of the HCPs 
that included data about plan developers/preparers and the policy or 
social contexts in which plans were developed. Often, this profile was 
developed from both anecdotal and formal discussions with USFWS 
employees, consultants who worked on the development phase, and various 
stakeholders.
    Our goal in analyzing these focal plans was not judgment of the 
overall quality of each plan, or plans as a whole, but rather a 
rigorous analysis of a variety of detailed questions about HCPs: What 
types of data or analysis do HCPs use well? What available information 
is ignored? Are data unavailable that are crucial to sound planning? Of 
the many steps in the planning for each species covered in an HCP, 
which are usually done well and which poorly? Which of the many 
features of a plan (size, duration, etc.) and of the plan's preparation 
(who prepared it, was there a scientific advisory committee?) are 
important in influencing its scientific adequacy? Answering these 
questions requires ``dissecting'' each plan--gathering information on 
its many factors and parts, so that statistical analysis can be used to 
judge what factors significantly influence the scientific quality of 
HCPs as a whole and to allow a clear assessment of the adequacy of 
existing HCPs. To ensure consistency of information gathering across 
groups, and to put the resulting data into an organized and analyzable 
form, we developed two separate data questionnaires; one asked for 
information on the plans themselves, whereas the other focused on 
species listed in the incidental take permit and the treatment in HCPs 
of these species (see website). In total, the Plan questionnaire 
contained 176 questions/subquestions per plan studied, and the Species 
questionnaire contained 789 questions/subquestions per species per plan 
(these complete questionnaires are given as Appendices I-A and I-B).
    The questions asked in the two questionnaires fall into three 
categories:
           For both plans and species, many questions seek to 
        detail simple (although not always simple to acquire) factual 
        information about the HCPs, the species, and the preparation 
        process.
    Essentially all plan questions are of this type.
           For species, a large number of questions address the 
        details of what scientific data and analyses were used in 
        formulating different steps in the planning process. Most 
        involved a set of four parallel questions, which for a broad 
        array of data categories asked (1) whether information of this 
        type was used in the HCP, (2) the source of the data, (3) the 
        quality of the use of this type of data, and (4) whether any 
        important data of this type were missing from the HCP. In 
        addition, there are questions about the importance of these 
        types of data for application to the species and situation at 
        hand. Together these questions seek to determine what data were 
        used in formulating the HCP, the quality of their use, and 
        their relative importance.
           Finally, both for detailed types of biological 
        information and for larger steps in the HCP analysis process, 
        the species questionnaire asked for judgments of the quality of 
        the analysis.
    Because the data included in the plan and species questionnaires 
form the basis of our results, it is important to describe the approach 
we took in designing and then analyzing these queries. As a whole, the 
questions were designed to generate a detailed profile of each HCP, to 
document the use (or lack thereof) of many different types of 
scientific tools and data, and to characterize the availability of 
these tools and data. The questions evolved over the first weeks of the 
project, as online discussion led to the creation of new questions, the 
deletion or modification of existing questions, and official 
``consensus interpretation'' of ambiguous questions. We do not presume 
that these questionnaires are comprehensive, but they were certainly 
sufficient to generate a large body of data on our 43 sampled HCPs, 
covering the full spectrum of HCP ingredients.
    Three lines of reasoning led us to the final set of questions in 
each questionnaire. First, we did not feel that it was either 
scientifically justifiable or most productive to judge the adequacy of 
entire plans, so we sought to confine our ``quality judgments'' to much 
smaller segments of analysis. This approach should better reveal the 
strengths and weaknesses of HCPs and suggest improvements in the HCP 
process. Second, the battery of questions is large, both to minimize 
the danger of missed information and to leave open the door to 
unexpected findings or issues. Third, because it is difficult to make 
scientifically defensible judgments about the quality or adequacy of 
even small pieces of a plan, each question regarding adequacy follows 
an extensive series of questions about the details of the information 
and analysis that were used in the plan, that were left out, and that 
would be needed to improve the analysis. Our goal was to lead ourselves 
(and others reviewing our results) through a clearly articulated set of 
steps that would clarify our judgments about importance and adequacy of 
different types of information. It was impossible to write out a rigid 
and explicit definition of ``adequate'' or a ranking score for each 
question, because we were flexible in our scoring. For example, if an 
HCP involved only a small amount of land and minimal take, we would 
score a rather crude assessment of ``impact'' as adequate simply 
because it was obvious there was no need to be especially careful for 
such a negligible activity. In other words, as professional biologists, 
we asked what level of scientific proof was required for different 
activities, depending on those activities and their context. All 
scorings and evaluations were presented to the local university seminar 
group and thus were subject to internal peer review by up to 20 other 
biologists. This review was an important part of the process. The 
graduate students involved included many with masters degrees (about 
one-third), some with extensive work experience in environmental 
consulting or as employees of USFWS, and some who had actually helped 
write HCPs. The biological, statistical, and practical experience of 
this large cohort of graduate students compares favorably with those 
employees of USFWS who actually administer the HCP process.
    In sum, our approach of using detailed questionnaires to evaluate 
HCPs was designed (1) to include unexpected but important information, 
(2) to allow the dissection of plans so that clear judgments could be 
made about their merits and faults, and (3) to make transparent the 
reasons for our judgments of quality. Although inevitably imperfect, 
our approach allows us to develop a detailed analysis of the 
limitations and the strengths of HCPs. In particular, it takes the 
analysis of HCPs away from the realm of unsubstantiated expert opinion 
and into an empirically based arena where arguments over methods and 
conclusions can be articulated, debated, and revisited.
2.3. A Framework for Judging the Biological Adequacy of HCPs
    To be scientifically credible, HCPs must address a variety of 
issues for each species covered. Although in theory our data set allows 
us to address the scientific credibility of HCPs in their entirety, it 
is more informative to clarify the particular stages in habitat 
conservation planning where scientific knowledge or analysis may limit 
the scientific foundation of HCPs. How should the integrated process of 
HCP planning be dissected, however? Although there is no set of hard-
and-fast rules or steps to which all HCPs must conform, the USFWS/NMFS 
HCP handbook mandates several issues that each HCP must address for 
species covered in the incidental take permit (USFWS and NMFS, 1996). 
Our review of HCPs, in combination with these mandated steps, led us to 
divide the HCP planning and analysis process into five stages:
     Analysis of current status of the species
     Analysis of take under the planned activities
     Analysis of the biological impact of the anticipated take.
     Analysis and planning of mitigation for the anticipated 
take.
     Analysis and planning of monitoring activities to follow 
the future status of the species, the actual take, and the 
effectiveness of mitigation procedures.
    It is important to emphasize that failure to address any one of 
these stages adequately calls into question the adequacy of planning 
for a species, even if all other stages are addressed extremely well. 
For example, an HCP might have excellent data on the current status of 
a species, have excellent estimates of take and the impact of take on 
population health, and have a good monitoring plan, but if the proposed 
mitigation procedures are untested and there are no plans to allow for 
their review and modification, the plan is not scientifically credible. 
Similarly, a seemingly reasonable plan can be formulated that has good 
estimates of everything but the actual effect of the planned take on 
the population viability of the species. In this case, again, the 
entire plan is questionable, because there may be no good way to judge 
the real impact of the planned activities and hence the adequacy of 
planned mitigation work. These examples illustrate both that the 
division of plans into five stages is somewhat artificial and that each 
of these steps must somehow be addressed in an HCP for the whole plan 
to be a scientifically credible blueprint for balancing potentially 
damaging actions with potentially beneficial ones.
2.4. Units of Analysis
    For the questions we address, two units of analysis are logical: 
(i) the individual HCP and (ii) the treatment of an individual species 
within an HCP. Plans are the basic unit in which HCPs are approved and 
implemented, and many of the steps or issues in the HOP process are 
inextricably part of an entire plan's formulation, but species 
protection is the goal and mandate of the ESA and of the individual 
plans. Similarly, although plans with many species will be over-
represented in a strictly species-by-species analysis, this is to some 
extent as it should be. We therefore use a combination of approaches; 
some analyses are done at the plan level and some at the species level. 
When performing most significance tests for species-level analyses, we 
either include plan as a factor in the analysis or use a weighting 
factor that discounts the effect of a species by the number of analyzed 
species from that plan (1/(number of species in the plan included in 
our analysis)). One factor we do not consider in most of our analyses 
is the occurrence of the same species in multiple plans; because each 
plan analyzes different impacts in different places, it seems correct 
to count each plan-species combination as a separate data point. We 
also minimized the bias that could arise from making judgments on the 
basis of a large number of ``minor species,'' when a plan was actually 
written primarily for just one or two major species. It would be unfair 
to call the scientific foundation of such a plan weak because it failed 
to deal with the minor species but did a superb job with the major 
species. We deal with this possible bias in two ways: (1) by choosing 
as a subsample only a few species (and always only listed species) from 
plans with long lists of species to be covered by the Incidental Take 
Permit and (2) by rating a plan's overall adequacy with respect to 
monitoring and so forth primarily on the basis of how well it applied 
to the main species. For example the Washington Plum Creek plan covers 
four listed species (grizzly bears, gray wolves, marbled murrelets, and 
northern spotted owls) and 281 non-listed species (some of which were 
candidate species and may be listed in the future). For this plan, we 
examined only the four listed species, and, because this plan was 
really tailored to northern spotted owls, we used the plan's 
performance with respect to spotted owls as the major issue to be 
evaluated.
       3. checks on data representation and accuracy of analysis
    With 89,908 entries in our data base and analyses conducted by 
several different individuals and universities, there was obviously an 
opportunity for errors to creep into our data. To offset this problem, 
we enlisted the cooperation of the USFWS and sent them a preliminary 
draft of the manuscript, the questionnaires, and all of the data. The 
USFWS then coordinated a review of all of these materials. Importantly, 
the data were sent to the USFWS regions that had originally approved 
the HCPs of concern. After a heroic review process, the USFWS suggested 
changes for 4367 data entries. We made 4328, or 99.1 percent, of their 
requested changes. It is important to note the tremendous effort USFWS 
put into examining our data base, and also to acknowledge that USFWS in 
no way endorses or takes responsibility for our data or our 
interpretations of the data. We simply point out that the raw data 
themselves were reviewed internally by our own research group and 
externally by USFWS. There still certainly remain errors, but we doubt 
that the analyses we report would be substantially altered by the 
errors in the data. For example, observation errors for field counts of 
animals are often on the order of 10-40 percent, a magnitude of error 
we are confident we were well below. All analyses, with one exception, 
are performed on the corrected data, and the data on the website 
represent the corrected data. The one exception is our analyses of 
``school bias,'' in which we asked whether groups from the 
participating universities answered questions differently. For that 
analysis, we used the ``uncorrected data,'' because error rate is one 
way in which the groups might differ.
    For many of the analyses presented below, we use one of the two 
questions that summarize the adequacy of each of the five stages of the 
HOP process (see above). To assess whether they are valid measures of 
scientific adequacy, we regressed the graded-scale (1-6) measures of 
adequacy (see Appendix I-B) for each section on seven aggregate 
variables indicating the knowledge about, and analysis of, various 
categories of biological information about each species (see website 
and Appendix I). We used both one-way regressions using just one set of 
biologically distinct answers to detailed questions (e.g., data on 
changes in numbers or demography) and multiple regressions using 
combinations of variables. These multiple regressions usually had much 
lower sample sizes than did the simpler analyses, due to many 
combinations of missing values. All analyses were performed on 
normalized variables. For each of the five stages, some types of 
information or types of question (e.g., the presence of data versus the 
type of analysis of the data) had little effect on quality rating, 
whereas others were extremely good predictors. For each stage, the R\2\ 
values for the single best regression are Status, 0.66; Take, 0.92; 
Impact, 0.59; Mitigation, 1.0; Monitoring (performed separately for 
monitoring of take, status, and mitigation), 0.92, 0.91, 0.92. Overall, 
the results from these analyses show that the summary rankings are well 
predicted by the details of data and analysis used at each step of the 
HCP process (see Tables 3 and 4, and Appendix III).
    Because of the time and effort needed to find, read, and synthesize 
the full background data for each of the 43 focal HCPs, each plan was 
analyzed in depth by only one university. Because the participants at 
different universities differed in background, and because of the 
unique cultural differences among our groups (e.g., Yale versus U.C. 
Berkeley versus N.C. State University), we were concerned to test that 
the identity of the evaluating university did not substantially 
influence plan evaluation. Two problems could arise from such 
differences. One of these is loss of power to detect real differences 
and effects in the plans due to added noise. The second and more 
serious problem is systematic biases in the patterns we see among 
plans. Furthermore, as noted above, we are often interested in 
analyzing for species-level effects and must therefore account for the 
correlation in species answers due to plan-level effects.
    To check for university biases, we fit a set of mixed linear models 
to species-level data using SAS PROC MIXED, which allowed us to assess 
the effects of institution on the adequacy ratings in five major areas 
(Status, SQ:B43; Take, SQ:C33; Impact, SQ:D47; Mitigation, SQ:E49; and 
Monitoring, SQ:F80). We used these models to determine whether 
universities differed with respect to ratings and whether these 
differences affected the statistical significance of the relationship 
of the five adequacy ratings to the factors Date, Duration, Multiple 
Species (yes/no), Taxon, and Area. In the model, university and plan 
were considered random factors, and Date, Duration, Multiple Species, 
Taxon, and Area were considered fixed factors (Date, PQ: 181; Duration, 
PQ: 178, Plan Species Number (from PQ: 11, coded for three levels), 
Taxon SQ:A3; Area, PQ: 182; Existence of Recovery Plan, SQ:A8). The 
results showed that only for Mitigation effects was the school to 
school variation a sizable portion of the residual variation (Table 5). 
In sum, these tests for university biases suggest that there are 
generally not strong or consistent differences in the ratings of 
different universities--certainly nothing of a magnitude that is likely 
to influence our results or conclusions.
                   4. a descriptive overview of hcps
    Before beginning our analysis of how science is used in HCPs, we 
report the general characteristics and diversity of the HCPs in our 
sample of 208. In particular, we summarize descriptive data about where 
HCPs were implemented, who developed them, why they were developed, how 
large an area they address, how long they last, what species they 
address, and what approaches to habitat conservation planning are used. 
Second, we describe these same characteristics for our intensively 
studied sample of 43 focal HCPs and compare them to the larger set of 
208 plans.
4.1. Attributes of Sample of 208 HCPs
    More than 70 of the sample of 208 HCPs were coordinated and 
approved within the Balcones Canyonlands Conservation Planning area in 
Texas. Because these plans are very similar to one another and may bias 
general patterns of HCP characteristics, we report two results whenever 
appropriate: one based on data for all 208 plans and one excluding data 
for the Balcones Canyonlands plans.
    Any nonFederal entity can develop an HCP in support of an 
incidental take permit application. Most HCPs (82 percent) were 
submitted by single private landowners (either corporations or 
individuals). Just 3 percent of HCPs were submitted by state and local 
governments. Fourteen percent were developed for lands under multiple 
jurisdictions (these could be public, private, or both); an example of 
a multiple jurisdiction plan is the Orange County NCCP (see website 
plan narratives). If the Balcones Canyonlands plans, which were 
developed for numerous private landowners, are excluded, these 
proportions change to 72 percent private, 5 percent public, and 22 
percent multiple jurisdiction. The areas covered by HCPs can differ 
dramatically--on an ``area basis,'' the figures are 14 percent private, 
18 percent public, and 67 percent multiple jurisdiction.
    HCPs are developed because some action is expected to take 
threatened or endangered species and thus to have impact, which can be 
either reversible or irreversible. Reversible impacts include those 
that could be expected to diminish substantially in 100 years or less; 
examples include the impacts of timber harvest rotations or livestock 
grazing. Irreversible impacts are those that have a permanent effect on 
species or their habitats, such as urbanization or land conversion. 
Fourteen percent of HCPs will result in reversible impacts and 81 
percent in irreversible impacts. Five percent will have both reversible 
and irreversible impacts. When Balcones Canyonlands plans are excluded, 
the proportions shift to 23 percent having reversible impacts, 69 
percent having irreversible impacts, and 8 percent having both. Data 
collected for the 43 focal HCPs allowed a more specific 
characterization of land uses motivating HCPs. Within this smaller 
dataset, the primary land use changes were specifically defined, e.g. 
agriculture, logging, urban development. For each plan, various land 
uses were ranked according to their importance in motivating that plan; 
a ranking of 1 identified the land use change that was the primary 
motivation for the HCP (PQ:42-49). Although plans may be motivated by 
many different changes in land use, 56 percent of those we examined in 
depth (24 of 43) were motivated by construction of buildings; logging 
came in second at 19 percent (8 of 43).
    We analyzed the duration and size distribution for HCPs using the 
larger data set of 208 plans. Land areas covered are extraordinarily 
diverse, spanning six orders of magnitude. The smallest approved plan 
protects the Florida scrub jay (Aphelocoma coerulescens) on just 0.17 
ha (0.4 acres). The largest plan to date covers over 660,000 ha (over 
1.6 million acres) of forest managed by the state of Washington 
Department of Natural Resources. Nevertheless, most HCPs are relatively 
small. The median size is less than 10 ha (24 acres), and 74 percent of 
HCPs cover fewer than 100 ha (240 acres). If Balcones Canyonlands HCPs 
are excluded, the median size increases to about 44 ha (110 acres), and 
59 percent of HCPs cover fewer than 100 ha (250 acres). For simplicity 
and comparative purposes, HCPs were categorized as small (0-10 ha), 
medium (>10-1000 ha), or large (>1000 ha). The largest proportion of 
all HCPs falls in the small size category (50 percent). When the 
Balcones Canyonlands plans are excluded, tile largest fraction falls in 
the medium category (48 percent). No directional trend over time in the 
mean size of HCPs is apparent. Regressions with and without Balcones 
Canyonlands plans of log(area) of HCPs on year of approval yield slopes 
not significantly different from zero (P >0.14 and P >0.07, 
respectively). Some recently approved plans are larger than their 
predecessors, but other recent plans are smaller, suggesting only that 
the aerial extent of HCPs has diversified with time.
    The length of time over which an HCP is to be implemented is 
correlated with the duration of the ITP for which the plan was 
developed. Plan durations are diverse, ranging from 7 months for a plan 
in Travis County, Texas, to 100 years for HCPs implemented by the 
Murray Pacific Company in Washington. Two plans developed for private 
properties in Texas are to be maintained in perpetuity. Excluding those 
two plans, the median duration of HCPs is 10 years, and 60 percent of 
HCPs will be maintained for 20 or fewer years. Excluding the Balcones 
Canyonlands plans, the median duration of HCPs increases to 22.5 years. 
Over time, the durations of approved HCPs have diversified, but they 
exhibit no significant directional trend. When Balcones Canyonlands 
plans are excluded from analysis, a regression of plan durations on 
approval dates suggests that more recent plans may be longer, but the 
trend is not statistically significant (P >0.15).
    Although no HCPs show directional trends in either duration or 
area, these two characters are positively correlated with one another 
(Figure 1). A regression of HCP duration on HCP area yielded a positive 
relationship in which small HCPs tend to have shorter durations and 
larger plans longer durations (P <0.001). Such a relationship seems 
reasonable because a larger planning area may necessitate a longer 
planning horizon.
    The 208 HCPs examined cover 73 threatened and endangered animal 
species: 22 birds, 13 mammals, 19 reptiles and amphibians, 18 
invertebrates, and 1 fish (Table 6). Fifteen species of plants are also 
covered under HCPs, even though the ESA does not mandate such 
protection on non-Federal lands. The number of HCPs that cover various 
threatened and endangered taxa are presented in Table 6. The majority 
of HCPs (143) cover one or more bird species. Mammals and covered by 32 
HCPs and amphibians and reptiles by 33.
    Because HCPs can address conservation of single species, multiple 
species, or habitats, the assessment of status, take, impact, and 
mitigation measures vary accordingly. For single-species plans, they 
are species specific. Multi-species plans are essentially scaled-up 
versions of single-species plans. Assessments of status, take, and 
impact are done for each covered species; mitigation measures may 
address multiple species simultaneously but are still species-specific. 
Habitat-based plans represent a distinctly different approach. They are 
based on the premise that, by protecting the ecological integrity of a 
natural habitat, one also protects the many species within that habitat 
(USFWS and NMFS, 1996). Such plans de-emphasize species-specific 
analyses and mitigation measures, focusing instead on more holistic 
protection and management of the habitat. Most HCPs (84 percent) are 
single-species plans. Multi-species plans make up 12 percent and 
habitat-based plans only 4 percent. Excluding the Balcones Canyonlands 
plans shifts these proportions to 74 percent single-species plans, 7 
percent multi-species plans, and 19 percent habitat-based plans. 
Habitat-based plans have only been developed since 1993, so their 
prominence among HCPs is likely to change in the future. Certainly 
there is increasing interest in assessing the quality of large habitat-
based plans because of their larger spatial scale and biological 
breadth.


4.2. Attributes of 43 Focal Plans
    The following subsections compare characteristics of the 43 focal 
plans with those of the larger HCP population. We assert that the focal 
plans adequately represent the diversity of HCPs, allowing a general 
evaluation of how science is used in habitat conservation planning.
            Time of Approval
    When selecting focal HCPs, we biased our sample toward more recent 
plans. These presumably reflect current approaches and strategies in 
HCP development and are therefore more pertinent for the evaluation we 
have undertaken. Ninety percent of the 43 focal plans were approved 
after 1992, compared with 89 percent of the whole population of HCPs 
(PQ:3).
            Applicant Types
    To sample a sufficient number of plans developed by state and local 
governments and by multiple jurisdictions, we biased our selection of 
focal HCPs with respect to this characteristic. Among the focal plans, 
71 percent were developed by private entities, 10 percent by state or 
local governments, and 19 percent for lands under multiple 
jurisdictions (PQ:65).
            Area
    We selected focal plans non-randomly with respect to size to avoid 
sampling bias due to the many small Balcones Canyonlands plans and to 
achieve more balanced representation of different-sized plans. As a 
consequence, the proportions categorized as small, medium, and large 
differ from those observed in the larger HCP sample. Nineteen percent 
of the plans selected were small, 40 percent were medium, and 42 
percent were large (PQ:28).
            Duration
    Plan durations were categorized as short (up to 5 years), medium 
(>5 to 20 years), and long (greater than 20 years). Twenty-three 
percent of the plans selected were of short duration, 20 percent of 
medium duration, and 58 percent of long duration (PQ:4 minus PQ:3).
            Species
    By selecting only 43 HCPs for intensive analysis, we necessarily 
reduced the number of different species protected under these plans. 
Nonetheless, 64 out of a possible 73 different listed species are 
covered in our focal-plan subsample. Birds, mammals, reptiles and 
amphibians, fish, and invertebrates were included.
            Approach
    The focal HCPs were chosen to represent the primary approaches to 
habitat conservation planning: single-species plans, multispecies 
plans, and habitat-based plans. Fifty-one percent of the focal HCPs 
were single-species plans, 21 percent were multispecies plans, and 29 
percent were habitat based plans. These proportions differ from those 
for the larger HCP population in that multispecies and habitat-based 
plans are over-represented. We intentionally sought an over 
representation of these large multispecies plans because they represent 
the major impacts in terms of total area and because there has been a 
move toward increasingly favoring these types of plans (although small 
single-species plans continue to play a role) (PQ:7 and PQ:8).
             5. the use of available data for hcp planning
    Before evaluating the five key components of HCPs (status, take, 
impact, mitigation, and monitoring), we first discuss the more general 
issue of data availability. In particular, we assess what data are 
altogether lacking, what data are available but not used, and the 
quality of analysis of available data.
5.1. Data Limitations
    To assess data availability during HCP preparation, we first 
documented the proportion of cases for which we were unable to 
determine basic information on a species or effects of actions 
authorized in the HCP on the species. These analyses provide a view of 
how often scientists lack information on species for basic assessments. 
Note that we did not restrict our search for this basic information to 
the HCP or its supporting documents--we did a thorough literature 
search that covered peer-reviewed publications and the ``gray 
literature.'' We found that the basic information necessary to make 
determinations about potential threats to species (SQ:A12-A21), the 
status of a species or its habitat (SQ:B26-B42), and the type and 
magnitude of take that will occur (SQ:C19-C28) were unavailable in many 
cases. For example, we could not determine whether or not there 
currently exists sufficient habitat to ensure a species' viability for 
one quarter of the species-plan cases we examined. If we do not know 
whether or not there is currently enough habitat to sustain a species, 
it is hard to determine the impacts of future losses or alterations of 
habitats. Lack of this kind of basic information can severely limit our 
ability to make correct assessments regarding the effect of proposed 
developments on a given species. Indeed, for only one-third of the 
species are there enough data to determine what proportion of the 
population will be affected by the proposed development. All of the 
aforementioned data assessments were made for the literature up to 1 
year prior to permit approval.
5.2. Unused, but Available, Information
    To determine whether HCP preparers did not use important data that 
were available, we reviewed all the information we could find that was 
not in the HCP and judged the importance of this information for 
assessment of status, take, impact, and mitigation strategies (QD 
responses to SQ:B1-24, C7-18, D7-30 and E7-30). In gathering this 
information, we considered all reports and publications that were 
available at least 1 year prior to the date of the HCP's approval as 
available for the HCP preparers. The majority of the information we 
found was either cited in the HCPs or deemed not to be important to the 
conclusions drawn in the HCP. Thus, our analysis showed that HCP 
preparers do a good job of finding and citing relevant data; data 
omissions were judged to be significant only 15-25 percent of the time 
(Table 7). However, a few categories of data appear to be under-
researched in HCPs. Of particular concern is the omission of 
information regarding cumulative impacts. For example, in 23 percent of 
the cases, we concluded that plans neglected information on cumulative 
impacts that would have altered the assessment of the impact of take. 
Data omissions were also potentially serious in the development of 
mitigation or minimization efforts (Table 7). Of particular note was 
the omission of information about the amount and quality of habitat 
with respect to feeding, breeding, and migration--these are key aspects 
of habitat that will be central to any mitigation for habitat loss.
5.3. Analysis of Available Data
    For each category of species-specific information we reviewed, we 
evaluated the quality of the analysis and use of any data reported in 
an HCP (QC responses to SQ:B 1-24, C7-18, D7-30, and E7-30). For 
analyses of status, take and impact, we found that, when data were 
available, the overall quality of their use was high (Table 8). Data on 
population sizes and habitat availability were generally used well in 
HCPs, whereas more detailed data on species or their interactions in 
the environment were more unevenly applied and stood out for their 
relatively low scores with respect to data use (Table 8). The most 
significant finding in this analysis is the poor use of existing data 
regarding extrinsic factors (such as anticipated human population 
growth with likely future pressures on the species) and environmental 
variability for designing mitigation strategies (Table 8). Information 
about possible catastrophic events and environmental variability is 
important when mitigation is designed, because such variability can 
often undermine otherwise effective mitigation.
                6. assessment of status, take and impact
6.1. Determining the Status of Species
    Accurate determination of the status of endangered and threatened 
species serves to justify procedures outlined in the HCP and provides 
baseline data to be compared with similar estimates after development 
has occurred. A fundamental aspect of a species' status is knowledge of 
the critical threats to that species' viability. As part of our 
evaluation of HCPs, we identified the primary threats to the 97 
species-plan combinations (some species occur in several different 
plans, so 64 species yield 97 combinations: Figure 2, SQ:A12-23) both 
at the local scale (within boundaries of the HCP) and at the global 
scale (over the range of the species). Overall, the most important 
threat to species is habitat loss, which was cited as primary threat 
for over 75 percent of the species, both locally and globally (Figure 
2), followed by habitat degradation, habitat fragmentation, and direct 
human-caused mortality. Other sources of declines for species covered 
in HCPs include pollution, water diversion and/or damming, interactions 
with invasive species, and changes in community composition (which 
affect interactions with food, predator, parasite, and disease 
species).


    A second basic feature of species status is the estimated trend in 
abundance or numbers of individuals in the populations in question, 
both within the HCP area (SQ:B30) and globally (SQ:B31). For those 
species where population trends were known, we compared the proportion 
of species that were increasing, stable, or declining in numbers within 
the HCP area and globally. For most of the species, population sizes 
were known to be declining in the HCP area (57 percent total; 53 
percent declining at a moderate rate and 4 percent declining so rapidly 
that extinction is possible within the next 20 years). An intermediate 
number of species were known to be stable (40 percent), and, for a 
small fraction of the species included in HCPs, the populations were 
increasing (2 percent) (Figure 3). Changes in populations for these 
species at a global scale are similar to those observed within HCP 
lands. Populations range-wide are declining for 74 percent of the 
species, stable for 21 percent, and increasing for only 5 percent of 
the species in our sample.
    The status of populations of endangered species is highly dependent 
on the maintenance of sufficient adequate habitat for the species. 
Trends in habitat availability (Table 9) are similar to those observed 
for populations: habitat availability is declining in the local HCP 
area for 63 percent and is stable for 37 percent of the species in the 
HCPs we reviewed. Habitat quantity is not increasing for any of the 
species we evaluated (Table 9; SQ:B34). Globally, habitat is declining 
for 88 percent of the species and stable for 12 percent and is not 
increasing for any of the species in our HCP sample (SQ:B35). The 
decline in habitat availability at larger scales underscores the 
importance of populations within HCP areas for overall viability of 
endangered species (Bean and Wilcove, 1997).
    Most of the habitat remaining for species contained in the HCPs is 
of ``medium'' quality (51 percent of habitat in HCP area and 70 percent 
of habitat globally; Table 9; SQ:B28-29). We defined medium-quality 
habitat as that able to support self-sustaining populations but not 
able to produce an excess of individuals (i.e., not able to serve as 
consistent ``source'' populations). Habitat quality within the HCP area 
was generally rated of poorer quality than global habitat quality for 
the species in our HCP sample. In particular, 40 percent of the 
remaining habitat in HCP areas was deemed to be ``poor'' quality (i.e., 
not able to support isolated populations through time), whereas only 15 
percent of habitat was determined to be poor globally.
6.2. Nature and Characterization of Take
    Activities permitted in HCPs can result directly or indirectly in 
death of individuals of an endangered species, commonly referred to as 
``take'' (ESA, 1982). Take also includes any type of harassment or harm 
to species and destruction or modification of a species' habitat 
(USFWS, 1981). Take was predicted to occur for the majority of the 
species-plan combinations we reviewed (73 percent; SQ:C25). For the 
remaining species either take was not predicted to occur as a result of 
HCP activities or not enough information was provided in the HCP to 
reveal whether take would occur. In cases where it was explicitly 
stated in the HCP that take would occur if the permit were approved, 
the quantification of take varied tremendously among plans (SQ:C27). 
Predicted take, in terms of the estimated number of individuals that 
will be displaced or killed, is poorly estimated for most of the 
species in our focal HCPs--in almost half of the cases (49 percent) no 
data in the HCP or associated documents addressed the level of take 
likely to result from the proposed development.
    For each species evaluated in our 43 focal plans, we also asked 
what percentage of the population on the HCP land would be taken as a 
result of the proposed activities (SQ:C26). In a large proportion of 
the cases (42 percent), the HCPs do not explicitly estimate this 
figure. Among the plans in which take was estimated, the expected level 
of take was most often ``all or nothing'' (Figure 4). In the majority 
of cases either a small percentage (1 percent or less) or all (100 
percent) of the population on the HCP land would be taken as a result 
of the proposed activities; few predicted intermediate take levels.




    Our data suggest that little emphasis is currently placed on 
accurately estimating the consequences of proposed activities for the 
species or population in the HCP area. A high percentage of the species 
listed on incidental take permits have no quantitative estimate of 
take, either as the total number of individuals lost or the percentage 
of the affected population taken. In the cases where predicted take is 
quantified, our data suggest that HCPs fall into two categories: the 
plans either minimize take (resulting in many cases with low take 
estimates) or they allow for removal of 100 percent of the affected 
population.
6.3. Assessing Impacts of Development on Endangered Species
    Impacts on populations in HCPs can be defined as the combined 
effects of take and habitat modification on the viability of endangered 
species. Because of its complex nature, quantifying impact is difficult 
and requires not only accurate estimates of take but also an 
understanding of the population dynamics, species requirements, and 
demographic thresholds that apply in each individual case; these data 
are often necessary to full understanding of the biological 
consequences of proposed levels activities. We reviewed the types of 
threats that were considered in HCPs (QE responses to SQ:D32-45) and 
compared those to the categories of impact we deemed important for the 
species given our knowledge of their biology and status (QG responses 
to SQ:D32-44). We ranked all categories for each individual species-
plan combination on a four point scale ranging from 1 (not an important 
impact) through 4 (a serious impact that will significantly affect the 
population). We ranked area of habitat loss, percent habitat lost, 
direct mortality, habitat fragmentation, cumulative impacts, and 
altered interspecific interactions as the six most significant effects 
for the species in our sample (Table 10). With the exception of 
cumulative impacts, we generally found high concordance between our 
rankings and the number of times that the same impact was considered in 
the HCPs we reviewed.
                      7. mitigation and monitoring
7.1. Mitigation in Habitat Conservation Plans
    A crucial feature of HCPs is the choice of mitigation procedures 
aimed at minimizing the threats to species included in the incidental 
take permit (see, e.g., gingham and Noon, 1997). In fact, this 
minimization of impact is required by the ESA (1982) and clearly 
outlined in the HCP Handbook (USFWS and NMFS, 1996). If the appropriate 
mitigation is chosen and implemented in a timely fashion, the impact to 
the species in question can be minimized to the maximum extent 
practicable, thus justifying the issuance of an incidental take permit. 
However, many scientists have criticized the mitigation plans proposed 
in HCPs because they have often seemed arbitrary, based more on 
political and economic constraints than empirical data on the species' 
ecology, life history, and specific requirements (Beatley, 1994; 
gingham and Noon, 1997; Buchanan et al.,1997). Given the importance of 
mitigation for the success of HCPs, we focused our analyses on the 
scientific basis of mitigation measures proposed. HCPs that include 
more than one endangered species must mitigate for impact to all 
species included in the take permit. Therefore, because of the species- 
and plan-specific nature of mitigation measures, we considered each 
species within a plan as our unit for analysis.
7.2. Types of Mitigation Most Commonly Used
    We treated minimization of impacts (e.g., modifying construction 
and/or development at the site to minimize changes to the species or 
its environment) and avoidance of impact (e.g., working during the non-
breeding or inactive season) as categories of mitigation. Minimization 
and avoidance were by far the most common mitigation measures proposed 
(Figure 5; QH responses to SQ:E32-E42). Avoidance was proposed for 74 
percent of species for which permits were issued, and minimization of 
impact at site of development was proposed for 83 percent of species). 
Most mitigation efforts for a specific endangered species involve a 
combination of procedures. Thus, many of the less common mitigation 
measures (such as land acquisition, translocation, habitat restoration, 
etc.) are used in combination with strategies for minimization and 
avoidance of impact on the threatened species. The high reliance on 
avoidance and minimization is not surprising, as these are usually the 
easiest and least costly procedures to implement.


7.3. Quality of Data Used in Determining Specific Mitigation Measures
    The quality of data underlying particular mitigation measures 
proposed for each species was evaluated on a 4-point scale (a 
continuous quality index from 0, representing ``no data'' used to 
support the chosen mitigation procedure and its reliability, to 3, 
representing cases where data amply document that the proposed 
mitigation procedure is likely to be effective; QJ responses to SQ:E32-
E42). On average, the quality of data used to justify mitigation 
measures was relatively low (Figure 6); that is, all mitigation 
procedures were based on data ranked as 2 or below in our quality index 
(indicating that the data are, at most, moderately understood and 
reliable). The mitigation measures based on the highest data quality 
are conservation easements, land acquisition, avoidance, and 
minimization. Other measures such as translocation often lack data 
demonstrating the feasibility of the proposed actions. In general, HCPs 
seem to rely more on mitigation measures with higher quality scores and 
less on those with low scores (QI responses to SQ:E32-E42). However, 
there are some exceptions; for example, when habitat banks (payment of 
money into an account, which is then to be used to purchase land that 
is supposedly ideal habitat for the species threatened by the proposed 
activities) are used, they tend to be a major component of mitigation 
programs, yet this mitigation approach has one of the lowest scores on 
our data quality scale (Figure 6). Given the generally low quality of 
data underlying many mitigation plans in HCPs, their success is not 
assured and, if implemented as proposed, may be very close to a 
``guess'' in terms of curbing the impacts on the species.
7.4. How Well Mitigation Plans Address Threats to Endangered Species
    Judging the actual success of mitigation procedures would require 
long-term information on the success of HCPs. Because very few plans 
have been in place for more than 8 years, this is not an option. Hence 
we must rely on current indicators that mitigation measures are likely 
to be successful. For each of the species in our sample, we estimated 
the likelihood of success by answering two questions. First, we asked 
how often mitigation measures actually addressed the primary threat to 
the species in question. Second, we asked to what extent the proposed 
mitigation measures are likely to reduce the impacts of the primary 
threats. Whereas the USFWS is required to adopt mitigation and 
minimization measures that protect a species to the maximum extent 
practicable, our focus was more on whether scientific evidence was 
presented to substantiate that the best possible mitigation was being 
adopted.
    We found that, for the great majority of the species we examined, 
the mitigation procedures addressed the primary threat to the species' 
continued existence (85 percent; SQ:E44). However, the overall adequacy 
with which proposed measures addressed the primary threats varied 
tremendously among species (Table 11; SQ:E45). Overall, we found that 
for only 57 percent of the species in the sample did mitigation 
measures proposed in the HCP address the primary threat to the species 
to a degree considered ``sufficient'' or better. In other words, 
although HCPs most often identify the primary threat to the affected 
species, only a little more than half of the time do mitigation plans 
adequately address that threat.
7.5. Implementation of Mitigation Plans
    An important determinant of the success of mitigation is the 
adequate implementation of the proposed measures. For maximum success 
rates of mitigation plans, it is important that the procedures be 
implemented in a timely fashion and preferably before the population of 
an endangered species is severely affected by activities proposed in 
the HCP. We examined two factors that affect the implementation of 
mitigation plans: funding for the measures and the timing of mitigation 
efforts relative to ``take'' of the impacted species.
    Mitigation can be one of the most expensive steps in the 
development and execution of an HCP. Thus, it is important to determine 
the cost of the proposed measures, the source of funding for 
implementing mitigation, and the time period over which these funds are 
available. Under law, the plan for funding all expected mitigation 
measures should be outlined in the HCP; ideally the source of those 
funds should be determined a priori and not as the impact occurs in the 
course of development (we refer to the latter as a ``pay as you go'' 
funding program). We found that HCPs nearly always met these basic 
expectations: 98 percent of the HCPs outlined a priori the funding 
sources for the mitigation proposed (PQ:124), but only 77 percent had 
significant funds set aside to pay for mitigation at the onset of the 
HCP (PQ:125).


    Another critical aspect of mitigation is the timing of proposed 
measures relative to impact. It is important that mitigation measures 
are started at the time of take or preferably before any take occurs, 
thus increasing the probability that unsuccessful mitigation procedures 
can be detected and corrected. In contrast, if most take occurs before 
mitigation measures are put into effect, chances of adaptively 
improving on failed mitigation efforts are reduced. We found that take 
occurred before mitigation in a substantial number of cases (23 percent 
of the species examined; PQ: 126).
7.6. The Clarity and Effectiveness of Monitoring Programs
    The first question to ask about monitoring is simply whether or not 
a clear monitoring program was outlined in the plan. We focused only on 
effectiveness monitoring, as opposed to compliance monitoring (see 
Table 1). An answer of ``no'' to this question does not necessarily 
mean that no monitoring is going on for the pertinent species, but 
rather that the text of the plan does not provide sufficient 
information or sufficiently explicit information to document that 
indeed a scientific monitoring program was part of the plan. Of course, 
a ``no'' could also mean that there was absolutely no monitoring 
whatsoever. For only 22 of the 43 plans was there a clear description 
of a monitoring program (PQ:60). The next obvious question concerns the 
effectiveness of those 22 clear monitoring programs we identified--in 
other words is the monitoring program designed in such a way that it 
would allow the success of the HCP to be evaluated? For this question 
the attributes of monitoring required for ``evaluation of success'' 
depended on the particular plan and the threats being mitigated, and 
they could involve factors such as number and location of sample sites, 
frequency of sampling, and nature of data recorded. Again, a ``no'' 
does not imply that monitoring in the field is necessarily 
insufficient, only that the information presented in the plan and 
associated documents did not provide any confidence that the monitoring 
could evaluate success. Under this interpretation, only 7 out of 43 
plans had clear monitoring programs that were sufficient for evaluating 
success (PQ:167). Because our criteria for answering ``yes'' to the 
questions about clear and sufficient monitoring relied on what was 
actually included in the documents, the reality may not be as gloomy as 
the numbers above suggest. If the monitoring programs were consistently 
a part of all HCPs, then HCPs on average would be better, and the 
monitoring programs themselves would be more likely to be 
scientifically supported because of their role in planning. We delved 
deeper into the data to determine exactly what was missing with respect 
to questions about particular species and whether any class of plans 
seemed to stand out as having better than average treatment of 
monitoring.
    Monitoring can have more specific goals than evaluating a plan's 
success. For example, monitoring could be implemented to estimate take 
(SQ:F5) or population status (SQ:F31) or to evaluate mitigation success 
(SQ:F57). Our more refined analysis of monitoring according to take, 
status, and mitigation echoes the earlier conclusion about generally 
poor monitoring. In particular, when broken up into the components of 
``take, status, and impact of mitigation,'' monitoring was found to be 
adequate for any component in 65 percent of the plans at most (Figure 
7).
    Adaptive management and monitoring are clearly interconnected 
because adaptive management requires monitoring data with which to 
evaluate the success of alternative management strategies. Although 
most plans did not include provisions for adaptive management, those 
that did were also significantly more likely to include clear 
monitoring plans (cross analysis of PQ:60 and PQ:61). In particular, 88 
percent of the plans with provisions for adaptive management had clear 
monitoring plans, whereas less than 30 percent of the remainder had 
clear monitoring plans (2 = 14.93, P = 0.001).
    Many more detailed questions could be asked about monitoring, but 
so few plans were judged to include clear or sufficient monitoring 
programs, that sample sizes are small. Moreover, the major results are 
clear with the most straightforward analyses:
    1. Barely 50 percent of the plans contain clear monitoring 
programs, and they rarely include monitoring programs that are both 
clear and sufficient for evaluation of a plan's success.
    2. The provision of adaptive management in plans was often 
associated with clear monitoring programs.


    Monitoring should be a key component of an HCP because there is no 
way to evaluate the performance of an HCP without adequate monitoring. 
Our data compellingly show that monitoring programs are often either 
poorly described or nonexistent within the HCPs themselves and their 
associated documents. It might be argued that this lack of description 
does not matter as long as sufficient monitoring is implemented ``on 
the ground'' in the real world, but if the HCPs fail to spell out the 
details of monitoring programs, the adequacy of monitoring cannot be 
scientifically evaluated.
        8. general patterns and factors shaping science in hcps
    Above we have presented analyses of each of five stages of HCP 
planning (status, take, impact, mitigation, and monitoring). Here, we 
investigate the interactions between stages of the HCP process and test 
for patterns and principles that connect and synthesize the different 
aspects of the HCP planning process. In particular, we focus on the 
cumulative effects for HCP adequacy of several factors (e.g., 
differences between single-species and multiple-species HCPs) that are 
likely to indicate trends in future HCP science. In this section, we 
have for the most part used species as the sampling unit and used as 
dependent variables answers to questions regarding the overall quality 
of each stage of analysis (SQ:B42-43, C32-33, D46-47, E48-49, F79-80). 
We first present results showing overall patterns in adequacy and then 
discuss in more detail the importance of different aspects of species 
biology and plan characteristics for the scientific rigor of HCPs.
8.1. Multivariate Analyses of ``Adequacy'' Rankings and Correlations 
        with Attributes of Plans
    In general, the earlier stages in HCP planning are the best 
documented and best analyzed (Figure 8). In particular, species status 
is often well known and adequately analyzed, whereas the progressive 
analyses needed to assess take and impact are more poorly done or 
lacking; inadequate assessment of impact is especially common. We next 
consider what factors may explain the range of adequacy seen across 
different HCPs and different stages of analysis. Factors that we 
considered in our analyses were those that seemed most likely to 
influence the quality of HCP analysis, plus those that may indicate 
whether changes in HCP formulation will have desirable results. For 
example, both multispecies and large-area HCPs have been advocated, and 
thus we asked whether the area covered by an HCP or the number of 
species covered influenced the quality of biological analyses in HCPs. 
In particular, we tested for the effects of the following seven 
variables:
     Area covered by the Incidental Take Permit (PQ:28)
     Plan duration (PQ:4 minus PQ:3)
     Existence of an approved recovery plan (SQ:A8).
     Single-species vs. Multispecies Plan (PQ:7)
     Habitat-based vs. Species-based Plan (PQ:8)
     Taxon (SQ:A2)
     Date of permit (PQ:A3, categorized as Early [1983-1994] or 
Recent [1995-1997])
    To test for effects of these variables on each of the five HCP 
planning steps, we performed a series of MANOVAs using standardized 
transformations of all variables. We first performed separate, one-way 
MANOVAs using each of the above variables, with the five ratings of 
analysis quality as dependent variables (SQ:B43, C33, D47, E49, F80). 
Next, we performed two multiway MANOVAs. The first used all seven 
independent variables; the second included only the five independent 
variables with one or more significant or near-significant (P <0.20) 
effects in the first analysis. We used this combination of one-way and 
multiway analyses both because missing values considerably reduced the 
sample size of tests using all variables and because, without large 
sample sizes, multiway MANOVAs can provide only weak tests for effects. 
Finally, we repeated this entire set of analyses using weightings to 
account for unequal numbers of species per plan (weighting was by: 1/
(number of species in plan)). Table 12 presents the overall results 
from these tests. In addition to these overall analyses, we also 
conducted a variety of other tests and comparisons to elucidate the 
effects of each factor on HCP quality. Below, we separately discuss HCP 
adequacy in light of each of these causal factors.


8.2. Correlations Between Scientific Quality and Area or Duration of 
        Plans
    The promotion of large-scale HCPs incorporating ``ecosystem 
management'' by Secretary of the Interior Bruce Babbitt and the USFWS 
is viewed by many biologists as a positive trend (Noss et al., 1997). 
In addition, an increasing number of large-scale HCPs are region-wide 
programs dealing with single focal species. Along with promulgation of 
these very large-scale HCPs, there is also an effort to expedite the 
development and approval of the smallest HCPs; the HCP Handbook (FWS 
and NMFS, 1996) suggests both (1) that USFWS and NMFS encourage state 
and local governments and private landowners to undertake regional HCPs 
and (2) that ``low effect'' HCPs will be expedited and simplified as 
much as possible. ``Low effect'' HCPs are usually of small area and are 
defined as having minor or negligible effects on listed or candidate 
species and on other environmental resources. There has been a great 
proliferation of small HCPs, especially HCPs concerning the golden-
checked warbler in Travis County, Texas, which account for 36 percent 
of all currently approved plans.
    Our univariate analyses of overall adequacy provide some evidence 
that the area covered by a plan is related to four aspects of species-
based planning--status, impact, mitigation, and monitoring (Figure 9)--
but the lack of significant results from multiway MANOVAs suggests that 
these results are weak (Table 12). Looking toward the future, we 
cautiously share the general view that larger scale HCPs should be 
encouraged, but past HCPs lend no evidence that the largest HCPs will 
necessarily be ``better'' scientifically.
    Among our 43 sample HCPs, none permitted before 1995 exceeded 30 
years duration; since 1995, a number of plans have been signed whose 
duration exceeds 50 years. These increases in plan duration have 
important implications for land-use planning by the permittee and for 
the likelihood of plan success from a biological standpoint. Longer 
plans may be advantageous for permit holders because they relieve the 
threat of changes in regulations governing land use. Likewise, plans of 
longer duration may be advantageous to species if they result in more 
careful research, more flexibility in take activities, or greater 
protection or enhancement of habitat. On the other hand, a 100-year HCP 
that lacks provisions for adjustments in land use practices in the face 
of declines in focal species could result in severe biological losses 
with no regulatory means to avoid them.
    Our MANOVA results suggest that HCP duration had contrasting 
effects on the three stages of analysis--the analyses of status, take, 
and monitoring (Table 12). For example, plans of longer durations were 
characterized by higher quality status assessments, but lower quality 
take assessments. These results indicate that the effects of plan 
duration are complex--neither consistently increasing nor decreasing 
the quality of science in support of the assessments.
8.3. The Existence of Recovery Plans and Scientific Adequacy
    Under the Endangered Species Act (ESA), the Federal Government is 
charged with drafting recovery plans for listed species. The 
development of these plans entails the collection and collation of 
detailed information related to the abundance, distribution, habitat 
needs, and life history of a species, the identification of primary 
threats to the species, and formulation of management prescriptions 
that will result in the de-listing of the species. Although, for a 
variety of reasons, recovery plans have not been established for most 
listed species (Tear et al., 1993), it seems clear that recovery plans 
ought to provide much of the information and management context needed 
for the formulation of good HCPs. In particular, it has been argued 
that recovery plans can provide a global context for activities 
proposed under an HCP, particularly through assignment of critical 
habitat needed for species recovery (USFWS and NMFS, 1996; National 
Audubon Society, 1997).
    Of the 97 treatments of species in our sample of HCPs, 59 had 
recovery plans established prior to the development of the respective 
HCPs. In some, the text describing these attributes of species closely 
match the wording within the recovery plans themselves. Specific 
mitigation techniques, such as the design and placement of artificial 
nest boxes for red-cockaded woodpeckers (Picoides borealis) or the 
translocation of Utah prairie dogs (Cynomys parvidens), were borrowed 
directly from recovery plans in the development of HCPs. Discussions 
with HCP applicants and USFWS officials confirm this impression. 
Typically, when a recovery plan exists, it is used extensively by 
applicants in developing an HCP.
    However, in contrast to expectations, there was evidence that 
adequacy of HCPs was negatively linked to the existence of a recovery 
plan (Table 12; Figure 10). In fact, using our yes/no delineations of 
adequacy, the trend was in the opposite direction for three of the five 
steps of HCP analysis (Table 13); a species was more likely to have 
adequate information included in its HCP if it did not have a recovery 
plan.




    We also asked whether there was a relationship between critical 
habitat designation for a species and the quality of HCP analyses for 
those species that did have recovery plans. As for recovery plans, we 
found no evidence that adequacy of HCPs was positively linked to the 
existence of a critical habitat designation (Table 13). Again, the 
trend was in the opposite direction for each of five categories of 
information collected from HCPs. On average, a species was more likely 
to have adequate information included in its HCP if it did not have a 
critical habitat designation.
8.4. Quality of Different Types of HCPs
    Treatment of multiple species in the same HCP is appealing to both 
landowners and the government because it can provide a single planning 
process with which to address simultaneously all of the potential rare 
species issues for an area. Furthermore, by obtaining incidental take 
permits for many listed and currently unlisted species, multispecies 
HCPs can provide far higher assurance to landowners that they will not 
encounter future impediments to development plans. This assurance is an 
especially important incentive to landowners in areas with high 
densities of proposed and candidate species (e.g., California and 
Florida). Increasing the number of species (from single species plans 
to multispecies plans) tended to increase the quality of impact 
assessment, but had no impact on all other assessments (Table 12). A 
second way of including many species under the mantle of HCP planning 
is through ``habitat-based'' HCPs. For example, the NCCP program in 
southern California (see website for a narrative description of this 
plan) takes this approach--species are grouped according to the habitat 
communities they require, and planning relies in part on the assumption 
that adequate protection for each species can be gained through 
protection for each habitat type. In habitat-based plans, information 
about habitat and fragmentation, and trends in those habitat 
characteristics, is used as the primary indicator of species status. 
Theoretically, information about habitat quality and quantity can be 
related in a rigorous, scientific manner to population status for a 
particular species, and in this way, habitat characteristics can 
legitimately be used as a proxy for missing information on population 
status. Overall, our MANOVAs show positive effects of habitat-based 
planning on the scientific quality of HCPs (Table 12; Figure 11). For 
example, one-way analyses and comparisons of yes/no adequacy rating 
provide evidence of positive effects on status, take, and monitoring 
assessment. Taken together, these results suggest that habitat-based 
planning has not resulted in lower scientific quality in HCPs and may 
in fact result in better, more scientifically defensible, planning 
efforts.
8.5. Scientific Quality in Relation to Taxonomy and Date the HCP Was 
        Signed
    Major taxonomic groups differed strongly in how well or poorly 
planning was done, and also how these differences are manifested at 
different planning stages. We divided the species covered in our HCPs 
(except for the one fish species) into six taxonomic groups. Overall, 
taxonomic group was strongly related to adequacy of planning (Table 
12), and these differences are also evident at three of the five stages 
of analysis: impact, mitigation, and monitoring (Table 12; Figure 12). 
Surprisingly, taxonomically determined differences in adequacy ratings 
seem to be much more easily explained by the difficulties posed by 
biology than they are by the political profiles or universal appeal of 
different groups. For example, plants had the most effective monitoring 
programs, probably as a result of their sessile--and thus easily 
studied--lifestyles. In contrast, mammals scored low with respect to 
impact assessment, monitoring, and mitigation. This pattern is probably 
due to the difficulty of obtaining good estimates of abundance, 
population trends, and demography for such mobile and largely nocturnal 
animals. Birds and herps (reptiles and amphibians) had intermediate 
ratings for each of the steps of analysis (Figure 12).
    The date of issuance of the incidental take permits for our 43 
focal HCPs ranged from a single plan in 1983 (San Bruno Mountain, the 
first HCP completed) to 25 plans in 1996-97. For several stages of 
planning, and for overall quality, more recent plans are better than 
older ones (Table 12). Perhaps the most biologically important aspect 
of this improvement is in mitigation analysis; before 1995, only 10 
percent of species covered included ``adequate'' analysis of 
mitigation, whereas from 1995-1997, 59 percent of species were 
adequately analyzed. Similar improvements have occurred in all other 
steps of analysis, indicating that HCPs are--as their advocates have 
claimed--becoming more rigorous scientific documents.




       9. conceptual challenges to the quality of science in hcps
    Many of the gaps in HCP science reflect an absence of basic 
natural-history information, an absence of straightforward monitoring 
protocols, or inadequate reporting of data, but the HCP process is also 
challenged by subtler scientific issues, which are not easily remedied 
by greater care and thoroughness. The three conceptual hurdles we found 
to be most widespread were a failure to appreciate the potential 
complexity of assessing impact, the neglect of occasionally pertinent 
ecological theory, and violation of the precautionary principle in 
habitat planning.
1. Take Is Not the Same as Impact
    As a first approximation, ``impact'' is clearly proportional to 
take, but simply reporting the number of individuals removed by an 
activity does not estimate the impact of this take on a species' 
viability or potential for recovery. At a minimum, there should be some 
indication of what proportion of a population (locally and globally) 
corresponds to a given take and of whether the take represents a loss 
from part of the species range that is a major source of population 
growth and vitality (as compared to a sink population, see Pulliam, 
1988, and Wootton and Bell, 1992). In an ideal world one would perform 
some sort of population viability analysis to assess the impact of take 
on a population's viability, but data sufficient to conduct these 
analyses are scarce, and the analyses themselves conjure up an entire 
series of additional problems. However, for some cases involving well-
studied species and large areas of land that comprise major portions of 
a species' range, some sort of viability analysis would be worthwhile 
(and indeed some HCPs do include population viability analyses). A more 
down-to-earth question would be to ask of any given take, what is lost 
beyond simply numbers? Is a genetically unique subpopulation lost? Is a 
substantial portion of genetic variability lost? Is a unique 
combination of species and habitat lost? Preparers of HCPs cannot be 
faulted for their limited assessments of take because the HCP handbook 
gives very little guidance on this matter. This is an area where a 
combination of population biologists and USFWS scientists could work 
together to develop some more specific guidelines.
9.2. The Use of Quantitative Methods and Ecological Theory in HCPs
    Ecologists and conservation biologists have developed a large body 
of theory aimed at predicting impacts of management on populations and 
species (Burgman et al., 1993; Meffe and Carroll, 1994). The 
conservation literature abounds with suggestions that theory can lead 
to sound management decisions. We sought both to test and to refine 
this statement, using two related analyses. First, we determined the 
extent to which HCPs used quantitative tools and ``theory'' to assess 
impacts and mitigation strategies. We divided ``theory'' into ideas and 
methods arising from six different subdisciplines: population genetics, 
population ecology, behavioral and physiological ecology, island 
biogeography, community ecology, and ecosystem ecology. As an example, 
an HCP applying genetic theory might estimate inbreeding depression 
resulting from reduced population sizes related to the planned take. In 
the same HCP, the effect of take on a species might be estimated from a 
population model incorporating the influence of habitat loss on 
population size. We also determined the type of data used to bring a 
theory to bear on impact or assessment and the quality or 
appropriateness of the use of theory.
    We found that most HCPs did not use theory to make assessments 
about the impacts of take or to support mitigation strategies. Of the 
97 species-plan examples we examined, the six different categories of 
theory were applied to impact analysis between 8 and 44 times (for some 
species more than one variety of theory was applied) and to mitigation 
analysis between 8 and 50 times (Table 14; QB responses to SQ:D1-6 and 
E1-6). Genetic theory was used least, and theory related to population 
ecology was applied most often. When theory was used, it most often 
took the form of a quantitative statistical analysis; such analyses 
were clear and relevant about 60 percent of the time and inadequate in 
the remaining cases. None of the HCPs we analyzed used more 
sophisticated theories--quantitative models--to project the impacts of 
take on populations. Such models were also used very infrequently (8 
cases total) to project the success of mitigation and minimization 
efforts. It is important to emphasize that we did not score HCPs as 
inadequate simply because they failed to use theory. We remark on the 
absence of theory in HCPs largely as a commentary on a major lack of 
connection between academic conservation biology and conservation 
practice.
9.3. Uncertainty and the Precautionary Principle
    In many fields of environmental analysis, uncertainty is 
increasingly recognized as the universal background against which all 
decisionmaking takes place. This tenet and its consequences have become 
known as ``the precautionary principle.'' This principle, long applied 
in fields as diverse as engineering and economics, holds that in the 
face of poor information or great uncertainty, managers should adopt 
risk-averse practices. That is, management actions should be chosen 
such that there is a correspondence between the uncertainty or lack of 
information underlying the decision and the size of the potential 
negative impact resulting from that decision. Adoption of these ideas 
can be formal or informal. That none of the HCPs we reviewed made 
explicit mention of the precautionary principle does not mean that the 
writers and evaluators of these plans did not use risk-aversion 
criteria in formulating HCP strategies. If HCPs adhere to the ideas of 
the precautionary principle, we would expect to see four clear 
patterns:
    1. As available information becomes increasingly scarce or 
uncertain, HCPs should be of shorter duration and/or cover a smaller 
area.
    2. As available information becomes increasingly scarce or 
uncertain, HCPs should increasingly avoid impact or be restricted to 
reversible impacts.
    3. In all cases, but particularly when mitigation success or take 
levels are highly uncertain, mitigation measures should be applied 
before take is allowed.
    4. HCPs should include contingencies based on the impact of take 
and whether or not mitigation efforts succeed. Such contingencies can 
only be applied in the context of adequate monitoring. Adaptive 
management in HCPs would provide for various management alternatives 
according to various future conditions.
    One way of assessing the extent to which a precautionary approach 
is adopted in HCPs is to contrast strategies of mitigation for cases 
where data were judged to be sufficient and insufficient. For example, 
if there are insufficient data regarding the impact of take, then one 
might expect avoidance of take to be more commonly pursued than if 
there are sufficient data regarding impact. This was not the case. In 
fact, the precautionary approach of avoidance was either equally likely 
or even less likely where data were insufficient than where they were 
sufficient. Another precautionary approach is to minimize take, and 
again this precautionary strategy was either equally likely or even 
less likely to be pursued when data were lacking (Figure 13). Finally, 
according to our rating scheme, the most precautionary scenario would 
involve a mitigation approach that clearly minimized impact to the 
maximum possible extent. It is worth noting that this line of reasoning 
is not legally required of USFWS but rather is a more stringent 
scientific standard for mitigation than current law dictates. We found 
many HCPs that did pursue such a cautious approach, but it was no more 
likely when data were insufficient than when data were adequate (Figure 
13). In several HCPs, adaptive management is mentioned (even if not 
clearly developed) as a component of the management scenario. One might 
think these instances would be most likely where data were lacking. 
Ironically, the opposite is true--plans for which the data regarding 
mitigation reliability were judged insufficient were significantly less 
likely to include a discussion of adaptive management than were plans 
with adequate data: 45 percent of the 38 cases with insufficient data 
(SQ:E48) included a discussion of adaptive management (PQ:61), whereas 
77 percent of the 48 cases with adequate data did so 
(2 = 9.5, P <0.05). In summary, although some HCPs 
are reassuringly cautious, greater caution was not related to lack of 
critical information about status, take, and impact. Thus, a 
precautionary approach does not seem to be evident as a pattern among a 
large sample of HCPs. Put another way, there is no evidence that the 
quality of data regarding status, take, and impact influences the 
approach to reducing impact adopted by HCPs.
                          10. recommendations
    In this section, we outline scientific standards to which we think 
HCPs should be held. Our standards identify specific attributes that 
HCPs should have to be considered scientifically credible. We make 
these recommendations based on a thorough review and analysis of 
science in HCPs, but we also recognize that practical constraints may 
make it difficult to meet these standards. In many cases the landowner 
or contractor designs an HCP in the absence of critical data. The 
information required to develop an HCP is often nonexistent. Because 
this situation was common in the plans we reviewed, and it is likely to 
recur, we also provide a set of practical recommendations for handling 
a shortage of data or desired information scientifically. When data are 
lacking, uncertainty is large and unavoidable. It then becomes 
imperative that this uncertainty be explicitly acknowledged and 
measured in some wav (even if only on a three-point scale of high, 
medium, low). We conclude by offering general policy recommendations.


10.1. Standards for a Scientifically Based HCP
    Ideally an HCP would be based on knowledge of the basic population 
biology of all species covered in the incidental take permit, their 
ecological requirements, and a quantitative estimate of the impact of 
take on population viability. The plan would evaluate the cumulative 
effects of multiple plans and activities on covered species, as well as 
potential interactions among effects. Given limited resources and 
information available during HCP development, these standards will be 
difficult to achieve. Nevertheless, we need standards toward which 
planners can strive and against which HCPs can be measured.
    The foundation of any HCP, and its supporting documents, must be 
data. Assertions such as ``take will be 54 animals'' do not constitute 
data. Data must exist, be accessible, and be explicitly summarized in 
the HCP in order to be scientifically credible. The absence of any of 
these three ``ingredients'' precludes a scientifically based HCP. 
Existence of the data is not sufficient; they must be included in the 
HCP and available for analysis. It is still possible for scientists to 
debate how best to use or interpret data, but there is no question that 
the data must exist in the first place. Data standards should be 
formalized: all large-area HCPs (or HCPs that cover a major portion of 
a federally listed species' range) should include an inventory and 
summary of available data on each covered species, including its 
overall distribution, abundance, population trends, ecological 
requirements, basic life history, and the nature of the causes of 
endangerment. Smaller HCPs can simply point to other HCPs or readily 
available data sources and inventories. All sources of data should be 
formally documented. An explicit acknowledgment describing what data 
are not available should also be included to allow a more accurate 
assessment of uncertainty and risk in the planning process. In order to 
provide more concrete suggestions, we consider status, take, impact, 
mitigation, and monitoring separately.
            Status
    Adequate determination of status requires that data on 
distribution, population trends, habitat needs and trends, and threats 
be examined. The analysis should be both local (within the HCP) and 
global (so that whatever is going on within an HCP can be put in a 
biological context). Determining status requires knowledge of a 
substantial amount of natural history--the threats to a species cannot 
be identified without considerable knowledge of that species' natural 
history. Similarly, population trends should be based on more than just 
a few years of census information.
            Take
    Take can generally be assessed either by census of a population and 
prediction of the portion that will be lost or by establishment of 
relationships between habitat area (and quality) and expected number of 
individuals contained within that habitat, which in turn allows one to 
predict reductions in population due to reductions in habitat. An 
explicit quantitative model should link the activity for which the HCP 
is initiated to loss of individual organisms, if at all possible.
            Impact
    Impact does not equal take. This simple fact must be emphasized, 
because it is neglected or overlooked in a large portion of existing 
HCPs. Measurement of impact on population or species viability requires 
data on population processes both within and outside of the HCP 
(minimally the same data discussed for ``status''). If an HCP comprises 
a large area and a substantial portion of a species' range, then some 
attempt should be made at developing a ``model'' (explicit, but not 
necessarily mathematical). This model should link take to key 
population processes. For example, taking 40 percent of a global 
population from a source population for the species' whole range is 
very different from taking 40 percent of a global population from a 
sink area. Similar arguments can be made for genetic and evolutionary 
impacts. Careful thinking about impacts can alter how one goes about 
summarizing take. For example, the types of individuals taken may be as 
important as their numbers--the removal of young reproductive 
individuals usually has the greatest impact on population growth and 
recovery, so avoidance or preferential take of this age class will 
profoundly influence the impact of the take. This possibility 
demonstrates that the quantification of take must be conceptually 
linked to insights about the population-level impacts of take.
            Mitigation
    The details of proposed mitigation measures must be explicitly 
described and accompanied by data regarding their effectiveness. 
Documenting effectiveness requires information on two levels. First 
specific effectiveness of the proposed measure should be documented. 
For example, if transplantation is proposed, what proportion of the 
transplanted individuals survive to reproduce? Second, the more general 
effectiveness of the mitigation measures in minimizing impact must be 
analyzed, so the outcome of mitigation actions must be linked to 
population processes of the target species.
            Monitoring
    Without adequate and appropriate monitoring, the success of plans 
cannot be evaluated. The principal criterion for determining the 
adequacy of monitoring should be the ability of a monitoring plan to 
evaluate the success of mitigation measures and the consequent effect 
on protected species. Monitoring frequencies, methods, and analyses 
should be designed to permit appropriate modification of mitigation 
measures in response to species status and should be explicitly 
documented in the HCP. Monitoring data should be incorporated into 
centralized data bases to facilitate access to information on the 
overall status of species and to facilitate assessment of cumulative 
impacts. Even if monitoring does not lead to rectifying mistakes in its 
associated HCP, it can furnish information from which future HCPs can 
be designed so that mistakes are not repeated.
            Peer Review
    Finally, HCPs should be open to peer review (review by scientists 
specializing in conservation biology). Although HCPs are the property 
and responsibility of the applicant, they concern protection of public 
resources (endangered and threatened species). Thus, the data, 
analyses, and interpretations made regarding status, take, impact, 
mitigation, and monitoring should be reviewed to ensure that the 
scientific foundations of the plans are sound. Peer review is already a 
standard for science in other regulatory arenas and should be 
incorporated into the HCP process. The need for peer review is not 
universal; small HCPs without large irreversible impacts require less 
scrutiny than large HCPs of long duration and broad ecological impacts.
10.2. Scientific Approaches to a Paucity of Data
    The standards we have defined are difficult, if not impossible, to 
achieve because of a current paucity of pertinent data, but HCPs are 
not therefore fundamentally unscientific. They must simply use existing 
data in a scientifically credible fashion. Before we discuss 
recommended approaches to habitat conservation planning with data 
shortages, we must address two more general issues about data.
    First, when pertinent data are lacking, the top priority before 
developing an HCP should be to acquire those data. How the data are 
collected, and by whom, is an issue that will have to be resolved among 
resource agencies such as USFWS and HCP developers, but there is no 
surer way to garner scientific credibility than to use data. When 
collection of all desirable data is not practicable, then the planning 
process should proceed with caution commensurate with the anticipated 
risks and uncertainties.
    Second, when critical data are absent, an HCP should not be 
initiated or approved. It would be wrong to call the HCP process 
scientific, or even rational, if there were no option to halt the 
process in the absence of crucial information. We need not have all the 
desired data to produce an HCP--the planning process would be paralyzed 
because data will always be determined to be insufficient. Rather, the 
absence of crucial data for certain types of HCPs must be in principle 
a possible reason for not allowing take until the problem has been 
corrected. In general, the greater the impact of a plan, (e.g., plans 
with high impact are those with irreversible impacts, covering a large 
area or multiple--gaps in critical data should be tolerated.
            Shortage of Data on Status
    When data on status are few, we must err on the conservative side. 
What must be avoided is the assertion of healthy status with few 
supporting data.
            Shortage of Data on Take
    For small-area HCP's (which we assume will involve small takes) an 
absence of data on take is acceptable, but for HCP's covering vast 
expanses of land, take must be quantitatively assessed; if it is not, 
the HCP process should not be entered into. This is a standard 
principle of risk assessment--when the hazards are large, the 
requirements for safety assurances become more severe. When take is not 
the most pertinent quantity to estimate (as when something like water 
quality for salmon is subtly degraded) but rather impacts are the 
issue, a careful assessment of impacts can replace attention to precise 
take numbers.
            Shortage of Data on Impact
    A scarcity of data on impacts of take can best be handled by best- 
and worst-case scenarios. Even without quantitative data, biologists 
can usually construct a worst-case scenario.
            Shortage of Data on Mitigation
    If no information validates mitigation as effective, then 
assessment of mitigation should precede any take. In addition, 
monitoring must be especially well designed in those cases where 
mitigation is unproven.
            Absence of Explicit Description of Monitoring
    Careful monitoring is in some cases a solution to data shortage. 
For example, when the effectiveness of mitigation is uncertain, 
monitoring can determine that effectiveness, but only if it is well 
designed (for example, as a before-and-after study of impact and 
control). When data are few, explicit measures are needed for using the 
information from monitoring to alter management procedures. That is, a 
precise criterion for ``mitigation failure'' must be specified, as well 
as procedures for adjusting management when that criterion is 
recognized. The key point here is that the existence of monitoring is 
not a solution to data shortage--a quantitative decision process must 
link monitoring to adjustments in management.
            Responding to Uncertainty
    In addition to the specific recommendations given above with 
respect to lack of data, there are general scientific principles for 
dealing with a lack of information. First, the precautionary principle 
argues that, in the face of poor information, risk-averse strategies 
should be adopted. That is, when data are extremely poor, HCP's should 
be limited to small areas or short duration. Scarce information 
requires particular care about activities that are irreversible 
(building a shopping mall as opposed to logging), and monitoring 
becomes more crucial for assessing the well-being of threatened 
species. Mitigation measures should be applied before take is allowed, 
so that their effectiveness can be evaluated. Perhaps the simplest 
approach would be to put in place scientific advisory panels for plans 
that lack information and have both long durations and large impact 
areas. This panel could advise on the development of the plan and its 
implementation; scientists from recovery teams would be logical choices 
as a starting point.
10.3. Policy Measures for Attaining More Effective Science in the HCP 
        Process
    The goal of our analysis was to evaluate the role of science in the 
HCP process. In this section we provide a set of recommendations for 
improving its quality and effectiveness. We recognize that science is 
not the primary motivation for HCPs and that they must address 
multiple, often conflicting objectives. They have political, economic, 
and social objectives as well as scientific ones. We also understand 
that Section 10 of the Endangered Species Act does not prescribe any 
scientific standard upon which the approval or disapproval of HCPs is 
to be based. Section 7 requires only that decisions be based on the 
``best scientific and commercial data available.'' While acknowledging 
these dimensions, we have nonetheless chosen to focus our study on 
evaluating how science is being used in the HCP process. Our assessment 
leads to the following recommendations:
    1. We recommend that greater attention be given to explicit 
scientific standards for HCPs, but that this be done in a flexible 
manner that recognizes that low impact HCPs need not adhere to the same 
standards as high impact HCPs. A formalized scheme might be adopted so 
that small HCPs draw on data analyses from large HCPs, assuring that 
applicants are not paralyzed by unrealistic demands.
    2. For the preparation of individual HCPs, we recommend that those 
with potentially large impact (those that are large in area or cover a 
large portion of a species' range) include an explicit summary of 
available data on covered species, including their distribution, 
abundance, population trend, ecological requirements, and causes of 
endangerment. HCPs should be more quantitative in stating their 
biological goals and in predicting their likely impact on listed 
species. When information important to the design of the HCP does not 
exist, it may still be possible to estimate the uncertainties 
associated with impact, mitigation, and monitoring, and to still go 
forward, as long as risks are acknowledged and minimized. Flexibility 
can be built into mitigation plans so that managers can be responsive 
to the results of monitoring during the period of the HCP. When highly 
critical information is missing, the agencies should be willing to 
withhold permits until that information is obtained.
    3. For the HCP process in general, we recommend that information 
about listed species be maintained in accessible, centralized 
locations, and that monitoring data be made accessible to others. 
During the early stages of the design of potentially high-impact HCPs 
and those that are likely to lack important information, we recommend 
the establishment of a scientific advisory committee and increased use 
of independent peer review (review by scientists specializing in 
conservation biology). This policy should prevent premature agreements 
with development interests that ignore critical science.
    To pursue these measures will require major agency initiatives or 
policy alterations. First, the coordination of efforts to protect and 
recover threatened and endangered species must be improved. This 
coordination will be essential to the accurate estimation of the 
cumulative impacts of various management efforts for threatened and 
endangered species. The data pertaining to these management activities 
(e.g., HCPs, recovery efforts on Federal land, safe-harbor agreements 
on nonFederal land) should be organized into a single distributed data 
base system. These data must be accessible to agency and academic 
scientists for analysis and evaluation of the effectiveness of HCPs and 
recovery efforts. Better coordination and accessibility of scientific 
examinations of endangered species recovery does not require any 
legislative change, but it would require a funding commitment to put a 
centralized data base in place. Frankly, we think that centralized and 
readily accessible data on endangered species could do for species 
protection what centralized and accessible data on criminals and 
outstanding warrants has done for public safety protection. Surely, if 
we can do this for law enforcement, we can also do it for environmental 
protection.
    Second, both academic and agency scientists should become more 
involved in the HCP process, for example through encouragement of peer 
review and the establishment of advisory committees. Recovery plans are 
currently peer-reviewed, and the culture to obtain such review already 
exists in the pertinent government agencies.
    Last, we encourage USFWS and NMFS to conduct their own review of 
the HCP process from the perspective of identifying mechanisms for 
making the job of their agency scientists more clearly defined. This 
process could entail revision of the HCP handbook, pushes for better 
data access, and institutional commitment to peer review. The HCP 
process need not compromise the quality of its science just because it 
must balance science and negotiation with development interests. 
Clearly, it could sharpen the light cast by science if the guidelines 
for scientific input were improved. Reference to data, peer review, and 
significant adaptive management are too often absent from the HCP 
process. To remedy these deficiencies will require more resources. The 
USFWS is currently being asked to do too much with too few resources in 
this HCP process.
                            acknowledgments
    We thank NCEAS and the American Institute of Biological Sciences 
(AIBS) for financial support of this project and the USFWS for a heroic 
review of our data base under intense time pressure. Michael Bean and 
Hilary Swain provided two rounds of comments and advice that were 
invaluable. Jim Reichman and Frank Davis allowed (and even encouraged) 
hordes of students to overrun NCEAS and out of chaos produce these data 
syntheses. Most importantly, the staff at NCEAS (Marilyn Snowball, 
Shari Staufenberg, John Gaffney, Kristan Lenehan, and Matt Jones) faced 
the chaos of this project with good humor and provided enormous help at 
all stages (travel, logistic support, and computers).
                                 ______
                                 
     Statement of Dennis D. Murphy, Professor, University of Nevada
    The science that is being used to inform decisions under the 
Federal Endangered Species Act is a dynamic science. One would be hard-
pressed to find a more combative and constructive exchange in 
conservation biology than that between supporters of the delisting of 
grizzly bear populations in our northern Rocky Mountains and their 
opponents. Both sides have mustered compelling technical arguments to 
make their politically opposed cases. Our understanding of bears and 
their biology has grown immensely around the debate. Likewise, both 
science and stewardship techniques have contributed to saving the 
California condor and black-footed ferret, and brought the peregrine 
falcon and bald eagle back from the brink of extinction. Moreover, one 
needs to look no further than to the Fish and Wildlife Service's 
recovery plans for the desert tortoise and northern spotted owl to find 
pathbreaking analysis and application of cutting edge concepts from 
population biology. These examples suggest that science is at the 
center of our efforts to save biodiversity.
    But, are these examples the exception or the rule? When it comes to 
science and the Endangered Species Act, unfortunately, they are the 
exception. Most of the recovery plans for our listed species lack even 
the most spare description of the mechanics by which endangered and 
threatened species perpetuate themselves. By and large, we know 
vanishingly little about our species at risk and how realistically we 
might attempt to save them. While that state of affairs is lamentable, 
it is not unexpected, since after all academic scientists are just now 
developing the tools necessary to better understand the population 
dynamics of species, and to predict with some accuracy their likely 
fates. Pertinent to this hearing is another suite of species which we 
may have lost the opportunity to save species that would have benefited 
from good science.
    Many species are on insidious or precipitous declines because the 
agencies empowered to save them have not used available knowledge and, 
frankly, common sense, to engineer conservation responses to clear and 
present dangers. The unfortunate Houston toad provides a poignant 
example. One of the earliest species listed under the 1973 Act, it has 
continued its unbroken tumble toward disappearance for two and a half 
decades. Application of reliable science might well have saved it. A 
flawed hypothesis about the habitat factors that support the species, a 
lack of responsive studies in the face of obvious declines, and poorly 
designed monitoring schemes have combined with land development to push 
the listed species toward extinction. The Houston toad, it appears, 
will be lost.
    The diminutive quino checkerspot butterfly offers a similar and 
accelerated story. Back when the Houston toad was being conferred 
protection under the Act, the checkerspot may have been the most 
abundant butterfly in coastal Southern California. Within a decade 
development, drought, and exotic plant invasions appeared to have 
eliminated the species entirely. I petitioned the Fish and Wildlife 
Service to list the species in 1988, but rather than respond with the 
simples of science, basic surveys to confirm the butterfly's fate, the 
agency failed to act. When amateur lepidopterists rediscovered the 
butterfly 6 years later, a moratorium on new listings was on. Fully 9 
years elapsed between petition and listing, and 11 years to a first 
recovery team meeting. The quino checkerspot butterfly now survives in 
less than 1 percent of its former range and is likely doomed. Any 
science at this point may be too late to save the butterfly.
    Against this background we assess science and Habitat Conservation 
Plans. My guess is that my conclusion that we need more and better 
science to produce more effective, efficient, and accountable HCPs is 
shared by my academic colleagues. Where I may part view with some of 
them, and certainly with many environmental organizations, is on how 
much more science is necessary and how it can be achieved. I think we 
can create much better HCPs with not much more science. The technical 
information necessary to reduce the uncertainties associated with our 
conservation prescriptions does not need to break the bank. But, the 
gathering of that information must be focused, strategically directed, 
and creatively engineered and exercised. Conservation scientists must 
remember that HCPs support incidental take permits issued by the 
resource agencies; they do not call for broad research agendas of the 
sort supported by the National Science Foundation.
    Why don't we have a clear science for habitat conservation plans? 
To start, we in the academic scientific community have failed to 
deliver the realistic, the parsimonious science that is necessary to 
inform HCPs. The Departments of the Interior and Commerce, in their own 
turn, have failed to seek such a science, responding in their HCP 
guidelines that cookbook guidance is not possible since the biological 
analyses demanded of each HCP for each listed species is unique and 
cannot be codified. I like that idea--that the work in my field is so 
special that only a specialist can do it. But that assessment just is 
not true. Stephen's kangaroo rats, Tecopa pupfish, and indigo snakes 
share a multitude of biological characteristics that allow for a common 
theme to their conservation. A problem-solving template based on that 
premise and using good science to craft reasonable conservation plans 
is doable and overdue.
    Just as soon as we are released from an artificial and utterly 
unrealistic view of how much novel scientific information is necessary 
to inform HCPs, we can begin to develop the exportable toolbox of 
scientific techniques that are necessary to assist our best 
conservation intentions. We first need to remind ourselves that science 
in HCPs is not science in a traditional sense at all. In HCPs, we 
rarely use hypothetico-deductive reasoning and experimental data to 
differentiate among alternative explanations about how an HCP could or 
should work. Instead, we normally use the sparest of data, often 
gathered in uncontrolled circumstances, and subject it to our best 
professional judgment. Scientific rigor in HCPs is not typically de 
rigueur. And that's alright for the many HCPs of limited spatial 
extent, and for HCPs with limited impact. When HCP impacts to species 
and habitat are limited, a rigorous science often is unnecessary.
    Tougher, of course, is planning where multiple imperiled species 
distributed across extensive landscapes run head on into economic 
immediacy--Interior Secretary Bruce Babbitt's environmental and 
economic trainwrecks.In these circumstances, we need the very most 
creative engagement of available scientific information. We must focus 
on landscape-level and ecosystem processes; we must draw strong 
inferences from basic principles--for instance, that bigger, well-
linked, and appropriately managed reserves are better than the options; 
we must use inferential data from disparate sources, from other species 
and other locations; we must develop management plans that can 
ameliorate the inevitable mistakes we will make in up-front planning; 
and we must share the lessons learned from the two hundred HCPs already 
in action. Little of that is being done today. All of that can be 
conveyed explicitly in regulations and guidelines, and should be.
    I recommend that the National Research Council cooperate with the 
Departments of the Interior and Commerce to develop science guidelines 
for conserving multiple species and natural communities on lands both 
public and private. Those guidelines must recognize that HCPs have 
timetables driven by political and economic realities. Those guidelines 
must recognize that indicator or surrogate species will have to be 
identified which can allow simple insights from complex natural 
systems. Those guidelines must encourage habitat conservation planners 
to learn by doing, to manage adaptively using the best current 
information.
    To that point, we cannot delay our HCPs waiting for all the answers 
to our pressing technical questions--frankly, the courts may not let 
us. We can, however, engineer our plans to take advantage of emerging 
information and scientific breakthroughs. I support adaptive 
management, even though I am a fan of this administration's ``No 
Surprises'' policy (which many contend conflicts with adaptive 
management). Incorporating both adaptive management principles and ``No 
Surprises'' assurances in to the language of a reauthorization bill 
should be a bipartisan goal of this committee.
    Parties that bargain in good faith, under Section 10(a) of the Act, 
should not be held economically responsible when nature proves to be 
more complicated than we could have expected. We, all of us, share in 
the benefits from our national heritage when it is conserved and well 
managed. The costs of those benefits should be similarly shared. Once 
prime habitat for the California gnatcatcher is now under the Fish and 
Wildlife Service parking lot in Carlsbad, California. Yet we expect 
that nearly all of the burden of conserving that threatened species 
should fall on the shoulders of neighboring landowners who wish for 
economic development of their own properties. Clearly, science alone 
cannot solve that dilemma.
    I do not suggest that the greater public must pay the private 
sector to obey the law, but an infusion of Federal dollars will 
inevitably be necessary when reasonable exactions of habitat from 
private landowners fall short of providing for the needs of species, or 
when unforeseen circumstances put imperiled species at unexpected 
additional risks. HCPs usually are the results of a crafted deal. They 
allow a public concerned about threatened and endangered species to 
take private property without fully compensating landowners. 
Lubricating that process with strategically directed dollars will be 
good for species, good for landowners, and good for the rest of us.
    In conclusion to this brief statement, I contend that our Habitat 
Conservation Plans are not as poorly informed as many environmentally 
concerned citizens and organizations portray them. I also contend that 
the costs of making HCPs significantly better informed may not be as 
great as is feared by many others. Nonetheless, the tension between 
Fifth Amendment guarantees to landowners and the statutory authority to 
conserve species on private land is not likely to be remedied by a 
better application of science alone. You all know that very well, 
indeed.


                       HABITAT CONSERVATION PLANS

                              ----------                              


                        WEDNESDAY, JULY 21, 1999

                               U.S. Senate,
         Committee on Environment and Public Works,
                  Subcommittee on Fisheries, Wildlife, and 
                                            Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to recess, at 9:30 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Lautenberg, Thomas, and Chafee [ex 
officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    Ladies and gentlemen, this is the second in a series of two 
hearings that we are holding in the Subcommittee on Fisheries, 
Wildlife, and Drinking Water on the science of habitat 
conservation plans, with a focus on improving the Endangered 
Species Act's tools for preserving habitat for endangered 
species.
    As I indicated, this is the second of two hearings that we 
are holding on habitat conservation plans. We had a very 
interesting set of testimony yesterday and a lot of interesting 
information presented with regard to the science of habitat 
conservation plans. Today we will be focusing a continuation of 
those issues through some of the Federal officials and others 
from interest groups in the private sector to obtain their 
perspective on the utility of these plans and how they may be 
improved in terms of our administration of them.
    I don't intend to make a further opening statement. I would 
turn now to our chairman, Senator Chafee.
    Senator Chafee. Thank you very much, Mr. Chairman.
    I have no opening statement. I think yesterday's hearing 
was extremely interesting. I want to commend you again for what 
you are doing. I think you've got some good witnesses today, 
and I look forward to hearing them.
    Thank you.
    Senator Crapo. Thank you very much, Senator Chafee.
    Senator Lautenberg, did you wish to make an opening 
statement?

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Yes. And, Mr. Chairman, I commend you 
for holding this hearing.
    The importance of science in the habitat conservation plan 
I think is a crucial factor, and, Mr. Chairman, I think what 
you've done is present a reasonable approach to the problem, 
and this analysis will, I think, help us satisfy as many 
interested parties as we can.
    I am, Mr. Chairman, for growth on a sensible, planned basis 
because, in the final analysis, growth without protecting our 
species, our environment, is a questionable asset, but I 
believe that we can be both for growth and for the environment, 
cleaner environment, protected environment at the same time. I 
hope that we can arrive at a consensus within the committee.
    At best, the habitat conservation plan is the ultimate pro-
growth, pro-environmental statement, and an HCP should ideally 
give the landowner the certainty needed to develop land while 
specifying measures that would allow endangered species to be 
protected. The challenge is to turn this ideal into a reality.
    While I salute the Administration for its willingness to 
try new approaches, I am worried about the accelerated pace of 
its work in the HCP area. HCPs are already approved for 11 
million acres, approximately, of our country--an area larger 
than my State of New Jersey--and there are plans pending for 
another 20 million acres. I am particularly concerned that in 
our haste we may leave sound science behind.
    The No Surprises policy may not be creating enough 
incentive using sound science to protect us as we develop these 
HCPs. And, while I appreciate the scientific basis of the five-
point policy guide, I am concerned that it is not used 
uniformly.
    In this context, Mr. Chairman, I especially appreciate the 
way you've framed this hearing. This is the hearing on the 
science of the habitat conservation plan. Science should be our 
focus here, just as it was in the critical habitat bill we 
reported out of this committee, and focusing on the science 
will be testimony to your continued success, Mr. Chairman.
    I thank you.
    Senator Crapo. Thank you very much, Senator.
    Senator Thomas.

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I can't resist a 
comment or two.
    First of all, I am pleased that you are doing this. I think 
there have to be some changes in the endangered species 
operations. We talk about it a lot but, frankly, there haven't 
been a lot. I think still we need to make some substantive 
changes in the way it is done. We've had a long time to work at 
it. We've found some things that don't work very well, but we 
don't seem to change them. We've had a couple of experiences 
recently in Wyoming that I think show the need for some change.
    It seems that habitat conservation plans work fairly well 
for large companies and timber companies. I'm not sure it has a 
great impact on small landowners, but hopefully it can.
    We talk a lot about science, and science is part of it, 
but, we are not effective when we endlessly talk about science. 
We went out some time ago to have a hearing on spotted owls, 
and everybody brought their own scientist. They didn't sound as 
if they had talked at all about what is common to them.
    I think this is a good thing to think about, but we really 
need to make some decisions with regard to habitat. We have to 
make some decisions with regard to listing and de-listing. This 
hearing is a portion of it, and I appreciate the fact that 
you're doing this.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Senator Thomas.
    There are no other Senators present for an opening 
statement at this time, so we will begin with our first panel.
    Our first panel consists of: The Honorable Donald J. Barry, 
who is the Assistant Secretary for Fish, Wildlife, and Parks of 
the Department of Interior; and Ms. Monica Medina, general 
counsel for the National Oceanic and Atmospheric 
Administration.
    I think you both have testified many times. I'll just 
remind you that we ask you to try to keep your testimony to 5 
minutes.
    Mr. Barry, why don't you begin?
    Senator Thomas. Mr. Chairman, I wanted to welcome Don Barry 
here. I have worked with him, particularly in the parks arena, 
and he has been very cooperative and is always willing to talk 
and work. I simply wanted to welcome him here and thank him for 
his accessibility as Assistant Secretary. I appreciate it.
    Senator Crapo. We do welcome you both.
    Mr. Barry.

  STATEMENT OF HON. DONALD J. BARRY, ASSISTANT SECRETARY FOR 
      FISH, WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR

    Mr. Barry. With your permission, Mr. Chairman, what I would 
like to do is just ask that my written statement be submitted 
for the record and I'd like to make just some oral comments, if 
I could.
    Senator Crapo. Without objection, all witnesses present 
should know that their full statements will be made a part of 
the record.
    Mr. Barry. Thank you very much.
    Mr. Chairman, this is my 17th year in working on habitat 
conservation plans, having been involved in the negotiation of 
the very first one in 1982. It is safe to say that I have been 
involved in virtually every phase of the habitat conservation 
planning program over the last 17 years, from having worked on 
the development of the original HCP implementation regulations 
to the drafting of the No Surprises policy in 1994 to the 
editing of the Fish and Wildlife Service and NMFS' handbook on 
HCPs. I've also been involved in sort of the deal-closing side 
of a number of major HCPs. So I have no excuse for suggesting 
that I'm clueless about the HCP program.
    I'd like to summarize my views. In fact, I could observe 
that I can summarize my views on HCPs in one single sentence, 
and that would be that the only things worse for endangered 
species conservation than HCPs are all of the other 
alternatives.
    Secretary Babbitt and I both view HCPs as probably the 
single-most important development for the conservation of 
endangered and threatened species since the enactment of the 
original Act, period.
    I would like to just offer some general thoughts based on 
yesterday's testimony.
    First of all, I was personally pleased to learn that, by 
and large, the scientists that testified yesterday were in 
general support and agreement that the habitat conservation 
planning program offers many benefits and opportunities for 
endangered species conservation. I also was pleased to learn 
that, as a general matter, they felt that the HCP process needs 
to be viewed from or critiqued from the perspective of what is 
practical, and that they generally agreed and concurred that 
one cannot hold up the development of HCPs while one waits for 
the perfection of science or the quest for better science.
    There was a lot of discussion yesterday, it is my 
understanding, about the need for a national data base on HCPs. 
Actually, the Fish and Wildlife Service and the National Marine 
Fisheries Service are now maintaining not only a hard copy 
library of virtually every HCP and all of its related 
documents, but also an electronic HCP data base on the 
Service's internet-based ECOS program, which has numerous 
fields of data. It is my understanding that a copy of the 
printout that you can get from it is attached to my testimony.
    The Service is currently in the process of dramatically 
expanding the fields of data that would be available off of the 
internet, and I've got a long list of areas that it is going to 
be expanding into so that you would be able to sit down at your 
terminal, pop up a list of all the HCPs, the amount of acres 
per species that you're interested in. If you want to see red-
cockaded woodpecker HCPs, you'd be able to call it up and see 
how many acres are involved, how many of them are large 
industrial owners, how many are small landowners, and so on, 
and the Service is in the process right now of field testing 
and trial running that new data base that it's adding into the 
eco-internet program.
    So I think actually we are much further along, and it has 
been based on the criticisms we've received in the past about 
the need for this type of data base, but I would suggest that 
we are well on the trail to solving that particular problem and 
giving Congress and the environmental community and the 
regulated community access to a tremendous amount of new 
information.
    I would also like to offer to this committee and to your 
staffs, at your convenience, a demonstration of the new data 
base process that the Fish and Wildlife Service is developing 
on HCPs. I will just leave that as a standing invitation to the 
committee, any of the members that are interested or any of the 
staff members, to have the Fish and Wildlife Service and NMFS 
come up and demonstrate the new HCP data base that they have to 
show you what they can pull off of the web at this point and 
what people have, in general.
    I think there was also yesterday a fair amount of 
discussion about the possible tension between No Surprises and 
adaptive management. My own personal feeling is that the 
tension is not anywhere near as pronounced as people think it 
might be, and I would welcome a question or two on this 
particular matter.
    I think there was also a lot of discussion about the need 
for a Federal pot of money to improve monitoring capability of 
HCPs and to respond in emergency situations as part of our 
commitment under No Surprises.
    On the one churlish note of my testimony this morning, I 
would reluctantly comment that the Fish and Wildlife Service in 
their fiscal year 2000 budget request, which is currently in 
front of the Senate, specifically asked for $10 million to 
assist it in working on the implementation of HCPs and the 
monitoring and development of HCPs, and to date we have gotten 
none of that money from either the House or the Senate.
    So here is an example of where the Fish and Wildlife 
Service and the Administration listened to the criticisms that 
we've received in the past about our inadequate resources for 
being able to stay on top of HCPs and make sure they are being 
implemented correctly, and when we put it in our budget request 
Congress declines to fund it.
    The Senate has not taken up our Department of Interior 
appropriations bill in full, so, who knows, maybe there is good 
news at the end of the trail, but to date we have been fairly 
disappointed in the response of Congress.
    Let me just close, because I know the red light has gone 
on, which means I will be electrocuted momentarily----
    Senator Lautenberg. That means you passed it. That's what 
the red lights are for, if you go past it.
    Mr. Barry. Let me just close by offering one of my favorite 
somewhat off-colored quotes from Mo Udall, who once said that, 
``When you go to bed with the Federal Government, you usually 
get more than a good night's sleep.''
    [Laughter.]
    Mr. Barry. And I would have to say that that quote seems to 
be particularly apt when applied to the habitat conservation 
planning program and private landowners and their need to work 
cooperatively and collaboratively with the Federal Government.
    Our goal is to make sure that if they ``go to bed with the 
Feds,'' they get more than a good night's sleep and feel that 
they got a fair deal--a deal that not only works for 
landowners, but also for endangered and threatened species.
    Thank you very much.
    Senator Crapo. Thank you very much, Mr. Barry.
    Ms. Medina.

   STATEMENT OF MONICA P. MEDINA, GENERAL COUNSEL, NATIONAL 
             OCEANIC AND ATMOSPHERIC ADMINISTRATION

    Ms. Medina. Thank you, Mr. Chairman.
    My name is Monica Medina, and I am the general counsel of 
NOAA, and I am pleased to be here today not only as a member of 
the Administration but also as a former staff member to this 
committee from 1993 to 1995, so it is good to be back in this 
room.
    NOAA is responsible for 52 listed species under the ESA, 
including salmon, sea turtles, whales, dolphins, seals, and 
other species. The breadth of our challenge in recovering these 
species is great, so we cooperate with non-Federal landowners 
such as States, tribes, counties, and private entities to do 
this important job.
    For instance, we have the challenge of ensuring the 
survival and recovery of salmon across the geography that spans 
the entire Pacific Coast, from Canada to Los Angeles. In 
addition, the highly migratory nature of Pacific salmon places 
them in many areas in numerous States, impacting large numbers 
of stakeholders, many of whom are private citizens.
    Long-term management of habitat such as that done through 
HCPs with non-Federal landowners has proven to be an effective 
means of recovering species. So far, our experience is new. 
We've only issued two incidental take permits thus far 
associated with an HCP. We're party to a few others with the 
Fish and Wildlife Service, where we had previously unlisted 
species, and we're working to turn those into full permits. But 
we are currently negotiating approximately 35 additional HCPs, 
all of which are large scale and concern the salmon.
    We don't impose a one-size-fits-all prescription on 
applicants when participants provide unusual but scientifically 
credible analysis of effects or a creative approach. We are 
very willing and will take their approach very seriously. We're 
very willing to look at those efforts.
    I think, as Don has talked about, flexible implementation 
of the ESA is a hallmark of our Administration's efforts to 
conserve species, and it is evidenced by our five-point plan 
and just the way that we have gone about our approach. Adaptive 
management, again, as Don mentioned, is an essential component 
of HCPs when there is significant uncertainty. It is how we 
close the gaps. It is how we make up for the things that we 
aren't sure about right now. We plan for it in our HCPs.
    As you well know, I'm sure, we are required to use the best 
science in making our HCP permit decisions. Our scientists are 
up to date in all of the latest methods, the state-of-the-art 
analytical techniques, and we do our very best to understand 
the species and the ecosystems to be managed in our HCPs.
    For example, in development of aquatic management 
components of a timber HCP, our biologists worked closely with 
the applicant, but also with academic, State, tribal, and local 
agency scientists to gather all of the relevant information 
necessary to make a very comprehensive and credible HCP.
    When necessary, we go out to the field and we augment our 
existing information with actual field data. It's not simple to 
manage ecosystems across large areas, and so we also welcome 
scrutiny from the scientific community and the informed public, 
as this helps to ensure that our HCPs are of the highest 
quality.
    We put every HCP out before the public for notice and 
comment so that everyone can be aware of what we are doing, and 
obviously we have these data bases now, and hopefully that will 
improve our ability to get comments from the regulated 
community as we go along.
    I want to mention three specific HCPs that I think are 
worthy of attention. The first one is a mid-Columbia HCP. It is 
in draft now, but it is ready for public review and comment. It 
is an example of how NOAA is using performance-based goals to--
instead of prescriptive measures in HCPs, the focus is on 
improving the survival of salmon migration through the mid-
Columbia segment of the Columbia River, and the goal is a no-
net-impact to salmon from the hydroelectric dams associated 
with the reservoirs operated by the two public utility 
districts.
    Compensation for a 9 percent unavoidable fish loss will be 
met by a combination of hatchery production and tributary 
restoration, and we also have extremely detailed schedules and 
contingency agreements for every aspect of that HCP.
    Also, I brought along with me a copy of the Washington DNR 
HCP. It includes some innovative features designed to advance 
the science of forestry and landscape conservation.
    As you can see, these are not short documents. They are 
very lengthy. They are very weighty. And they include all of 
our scientific--all the scientific support for the conclusions 
that we draw.
    Finally, I want to mention that the Pacific lumber HCP, 
which I know the committee is aware of, is well underway, and 
that plan rests upon a foundation of watershed analysis that 
will be used to tailor site-specific prescriptions.
    I also want to close by saying that our efforts are only as 
good as the amount of money we have to spend on them. In 1999, 
our budget is expected to be $23 million, but only 8.3 of that 
is being spent on science. Our 2000 budget request has an 
additional $24.7 million for new funding to strengthen our 
scientific capabilities in HCPs. Five million of that would be 
used specifically to partner on HCP development with landowners 
and other agencies in the local area.
    In conclusion, I'd just like to say that the program is 
showing a lot of benefits to us at NMFS, but it is still a work 
in progress. We are trying our very best. HCPs are not perfect, 
but they are less confrontational and adversarial than our 
alternatives, which are enforcing the prohibitions of the take 
under section 9 of the ESA. We're doing what we can to recover 
salmon and hopefully ensure that future generations will know 
of these magnificent fish.
    Thank you very much for the opportunity to testify. I look 
forward to your questions.
    Senator Crapo. Thank you very much, Ms. Medina.
    I'll begin with the questions.
    The first question I have is for you, Mr. Barry.
    If I understood you correctly, you indicated that you 
didn't think there was necessarily a conflict between adaptive 
management and the No Surprises policy. Would you like to 
elaborate on that?
    Mr. Barry. Sure.
    The reason I say that is that, under the No Surprises 
policy, what we basically say we are going to do is to lay all 
of our cards on the table and to negotiate out all of the 
possible adjustments up front with the particular landowner so 
they can foresee the types and range of changes that could 
occur should circumstances change during the life of the HCP 
permit.
    A good example of how that is different from the way we 
used to do business is that probably the Fish and Wildlife 
Service felt that they could arrive on the scene later in time 
unilaterally and just sort of ambush or surprise the landowner 
with the HCP and say, ``Well, we want you to change things now. 
That was then, this is now.''
    But we say what you're going to do now is to negotiate up 
front with the landowner the range of changes that may be 
required because of adaptive management requirements or changed 
circumstances, and that way then before they even get the 
permit and before they decide whether they want to continue, 
they can economically net out the cost to them and decide 
whether they are prepared to live with those types of 
adjustments up front.
    So we try to negotiate all of those terms and conditions up 
front. We lay down the range of changes that might occur under 
the agreement or during the life of the agreement. It is up to 
the landowner then to decide whether they like what they hear 
or whether they think they can live with what they hear, or 
whether they want to say, ``Sorry, we are out of here. We can't 
live with those terms.''
    The other reason I don't see that type of huge tension 
between No Surprises and adaptive management is because I think 
No Surprises continues to get a bad rap--that somehow we are 
putting these iron-clad handcuffs on the ability of the Federal 
agencies and, for that matter, even the HCP permittee, to 
respond to changed circumstances. I just don't believe that's 
the case.
    What the No Surprises policy says is that once we reach an 
agreement with the landowner we're not going to go back and 
change the economics of that agreement, but it doesn't say that 
we're not going to go back at all.
    I can use a good example. Let's say we've reached agreement 
with a developer who is going to be building out a piece of 
property over a period of time, and he agrees to have some type 
of assessment on each house that will go into a conservation 
fund. This is basically what we agreed to with the San Bruno 
HCP, the very first HCP in California.
    Let's say that we, at the time, assume that we know how 
that money should be spent for a particular species, but over 
time let's assume that the status of the species continues to 
decline, and we believe that we need to make our conservation 
programs more effective and more efficient for the conservation 
of the species.
    Without changing the amount of money the landowner has 
committed to into that fund, we reserve the right, even under 
No Surprises, to go back and change the way that money is 
spent. If we think we can get a better bang for our buck, we 
may shift the whole strategy from habitat restoration to 
predator control. We may dramatically be able to squeeze 
greater efficiency and effectiveness out of the conservation 
program without changing a dollar on the table. So that would 
be one example where I think that No Surprises has retained a 
lot more discretion and flexibility than people think.
    Our commitment to the landowner, to the permittee, is no 
changes in the amount of money it is going to cost you and no 
changes in the level of restrictions on the use of your 
property, but if you are a timber company and you've already 
agreed to set aside a certain acreage as a conservation zone, 
we reserve the right, even under No Surprises, to go back in 
that area that you've agreed to set aside to look for ways of 
enhancing its management for species conservation, again as 
long as it doesn't change your economic bottom line.
    I think it is a combination of those two together. No 
surprises is not as draconian as people think it is. And I also 
think that we just try to negotiate up front the economic costs 
and the range of change with the landowner through adaptive 
management. For these reasons, I don't think there is a 
pronounced level of tension between No Surprises and adaptive 
management.
    Senator Crapo. Thank you.
    Ms. Medina, yesterday our panelists agreed that scientific 
standards and guidelines associated with HCPs would 
significantly improve the science of HCPs. Would such a set of 
scientific standards and guidelines be useful, in your opinion?
    Ms. Medina. I believe we already operate under those and we 
are always trying to be consistent in the way we approach HCPs. 
That doesn't mean our results are always the same, because 
different landscapes have different uses. They've been altered 
differently by humans or by nature. But we definitely try to be 
consistent. Obviously, we're always looking for improvements, 
and I think at our agency we are working within a matrix of 
habitat conditions that we look at for every HCP in trying to 
develop those HCPs.
    Mr. Barry. Mr. Chairman, if I could just also add one 
thought?
    Senator Crapo. Mr. Barry.
    Mr. Barry. I think it probably would enhance the efficiency 
of the HCP negotiation process if there were generally agreed-
upon scientific guidelines for certain species.
    A good example of that is the red-cockaded woodpecker. I 
think there has been a general consensus among most of the 
scientists as to what the red-cockaded woodpecker needs and 
what its conservation strategy should be, so it is a lot faster 
and lot easier to negotiate an agreement for one of those 
species because there has been that convergence of the science 
and we have some sort of off-the-shelf standards that we can 
apply. So I think in that instance it could be helpful, as long 
as we aren't finding ourselves stuck at the station and the 
assumption is you can't do anything unless you've got that type 
of consensus for a particular species.
    Senator Crapo. Thank you.
    Mr. Chairman.
    Senator Chafee. If you have further questions you wanted to 
ask, I'll wait.
    Senator Crapo. I have a whole bunch.
    Senator Chafee. OK. Thank you, Mr. Chairman.
    We have been focusing a great deal of time on this hearing 
on a recent study of HCPs that was authored by Dr. Peter 
Kareiva, who testified yesterday, and I understand that Fish 
and Wildlife has reviewed Dr. Kareiva's report and has posted a 
brief response on your web page.
    What are your views of the Kareiva study?
    Mr. Barry. Let me first start off by saying that we truly 
welcome the critiques and reviews of the HCP program that have 
been conducted over the last few years. I think the recent 
five-point plan that we developed to further improve the HCP 
program was a direct result of a lot of the feedback that we've 
gotten from people over the years.
    So, in terms of the study, we are glad that it was done. I 
have to tell you, in all honesty, that we had some fairly 
significant concerns about the quality of some of the 
conclusions reached in that study, and all you need to do is 
take a look at how Plum Creek was rated under that study to 
understand what the problems were.
    Basically, they asked about 106 graduate students, who, of 
course, are carrying full loads, to become instant experts on 
the Endangered Species Act and HCPs and to be able to wade 
through the massive documents that you can get for an HCP.
    If you take a look at what happened with Plum Creek, 
though, you can see what some of the problems are with this 
type of study.
    Plum Creek was rated fairly poorly on its science and it 
was accused of having no peer-reviewed science. That's just 
flat-out wrong. They had 13 peer-reviewed scientific papers 
that were the basis for that HCP. How did the person miss that? 
I don't know. But the graduate student that was reviewing it 
missed the boat on that one.
    Let me read to you some of the other documents that were 
skipped over in the Plum Creek HCP.
    They didn't take a look at the Environmental Impact 
Statement, the biological opinion for the HCP permit, the NEPA 
document Record of Decision, the set of findings, the unlisted 
species assessment, and, as I said, these 13 peer-reviewed 
papers.
    I can provide another example of how they were a little bit 
thin on their analysis. A person on my staff talked to the 
chief staff person the Fish and Wildlife Service had working on 
this agreement for many, many years. He said he was asked two 
questions by the graduate student and that was it. The person 
called him up, showed up in his office or talked to him on the 
phone. Two questions. That's it. Thank you very much. And that 
was the level of analysis that went into the Plum Creek HCP 
permit assessment.
    I know you have Lorin Hicks from Plum Creek on as a witness 
a little bit later. I wanted to suggest that even a study that 
attempts to be as ambitious as AIBS was flaws and limitations.
    And so I guess the only message is that I think Congress 
needs to take with a grain of salt some of the conclusions that 
are reached that attack the quality of the HCPs that have been 
done.
    I would not agree that they have been of poor quality. I 
think they clearly have been continually getting better, but 
that doesn't mean that the ones that we were doing before were 
poor.
    Senator Chafee. Let me--I don't have much time here, so--
now, the no-surprise policy was an administrative policy that 
has been set forth. It is my understanding that has been 
challenged; is that correct?
    Mr. Barry. That's correct. We have a lawsuit right now on 
that.
    Senator Chafee. And so where do things stand? There's a 
challenge to it and it hasn't been heard yet?
    Mr. Barry. We were heading toward the usual dueling briefs 
being filed by the Government and the environmental plaintiffs. 
There was just recently another hearing on the matter. Things 
have been put off now until November. There has been additional 
briefing requested, and so it is going to be probably in 
November some time before everybody gets back in court.
    Senator Chafee. Now, I would think that you'd like us to 
pass a statute that included some of these protections, 
including the No Surprises policy. I assume that; is that 
correct?
    Mr. Barry. Mr. Chairman, that was one of the primary 
reasons that we were very supportive of S. 1180 coming out of 
your committee 2 years ago. One of the major parts of that bill 
was the congressional ratification of all of the administrative 
ESA reforms that we've implemented in the last few years, 
including No Surprises.
    Senator Chafee. Well, I think I agree with you, and I, of 
course, obviously knew that we had that in that legislation a 
year or so ago, but I think this No Surprises policy make a lot 
of sense.
    Mr. Chairman, I hope that we can do something to protect 
the Department; otherwise, in the suit they are liable to get 
blown away. I think that the No Surprises policy is really an 
essential part of the whole HCP program.
    Mr. Barry. Mr. Chairman, I'm assuming that your reference 
to being blown away is not a characterization on your part of 
the poor legal arguments we have to muster on behalf of the 
defense of this fine policy.
    Senator Chafee. Well, I'm not predicting who is going to 
prevail, but----
    Mr. Barry. It would be nice to have certainty.
    Senator Chafee [continuing]. It would be nice to have 
certainty. Absolutely. Thank you. Thank you very much, Mr. 
Chairman.
    Senator Crapo. Thank you, Mr. Chairman.
    Senator Lautenberg.
    Senator Lautenberg. Thanks, Mr. Chairman.
    I thank each of you for your excellent testimony.
    The No Surprises policy brings some surprises to me, and I 
just want to make sure that I understand it.
    Does it say that if the plan isn't working that there is no 
risk at all to the landowner? I know what we are trying to do 
is provide some sense of reliability to plans that the 
landowner makes, but have we removed any incentives from the 
landowner for them to enforce the plan or--what kind of 
supervision do we have that says that, ``OK, the landowner is 
doing what they have to, but we've made a mistake in the plan 
and now we have to change it?'' You made reference to it a 
little bit earlier, but I wondered if you'd expand on that, 
please.
    Mr. Barry. Well, first of all, it is tied back to our 
budget. Our ability to monitor the implementation of these 
plans has two components to it. No. 1 is: Is the permittee 
doing what he said he'd do? And, No. 2: Are we getting the 
conservation benefits that we thought we'd get?
    Senator Lautenberg. Right.
    Mr. Barry. You know, we're struggling to be able to keep 
pace with all of those plans that we're negotiating, which is 
why we felt it was fair to note this in our budget request.
    But I have to tell you again why I think that No Surprises 
really has put us on a whole different level in dealing with 
private landowners, and I would use Toby Murray as an example.
    Toby is the head of the Murray Pacific Timber Company, a 
private, family owned company, 50,000 acres, roughly. For Toby, 
he first had negotiated a spotted owl HCP and then eventually 
went back and upgraded it to a multi-species HCP, but for him 
the big tradeoff was No Surprises. He felt for the first time 
he was being treated fairly and he was being treated 
respectfully by the Government.
    I have absolutely no doubt in my mind that if we had 
endangered species problems that arose unexpectedly on Murray 
Pacific's property, Toby would welcome us in, we'd sit down 
with him, and we'd work through these things, not because we 
could wave our regulatory swagger stick in his face and say, 
you know, ``If you don't do this, we are going to punish you,'' 
but I think because Toby just felt that he now is being treated 
differently and he is being treated respectfully as a property 
owner who is viewed as a conservation partner, and I just have 
this confidence that Toby will do that. Because he feels that 
No Surprises gave him a recognition that we see a need for a 
fair balance between economics and conservation, he's willing 
to work with us to make sure that we can constantly make those 
adjustments to achieve that.
    Senator Lautenberg. Well, is there a guarantee or 
representation that for the landowner, should change be 
required, that they will have no further economic demands put 
upon them?
    Mr. Barry. That's basically the No Surprises commitment, in 
a nutshell. We say we will not go back and ask for more money 
or more restrictions on the use of your property, your water 
rights, whatever it was that was otherwise agreed to to be 
available for use under the terms of the agreement.
    Senator Lautenberg. And how then do we correct a mistake if 
one is made?
    Mr. Barry. Well, as I said, within the agreement they will 
have agreed to do certain things. There is a certain cost 
associated with the conservation package they've already 
developed. We reserve the right to go back in and look for ways 
of making that more efficient, adjusting that, as long as it is 
not going to cost them more money.
    If they already in their own mind have netted it out and it 
is going to cost them $100,000 a year for endangered species 
compliance, and we come back in and say, ``Look, we can turn 
this thing around if we just start working on depredation 
control instead of habitat restoration, and it is not going to 
cost you an extra dollar,'' we've reserved the right to do that 
so we can make adjustments in the program.
    The other thing we can do----
    Senator Lautenberg. Who pays costs that might arise as a 
result of that?
    Mr. Barry. Well, again, we are saying it is not going to 
cost him or her anything more. We would have to work within the 
revenue stream that they've already agreed to.
    But there are a lot of other things that we can do, 
ourselves. The Fish and Wildlife Service has--I mean, not 
unlimited resources, but we have millions of dollars that we 
are putting into endangered or threatened species conservation 
programs. We can make adjustments in our own programs. We can 
look for ways of getting other landowners who are in the same 
area who have the same problem to work with us to achieve a 
different conservation direction. We can see if Federal 
agencies can help contribute in a different way.
    I am personally unable to think of a scenario where we 
would basically be clueless and helpless and would watch the 
species go down the tubes because of No Surprises.
    Senator Lautenberg. So we'll pay for the mistakes if any 
are made--we, the Government, the taxpayers of the country, 
we'll pay for it?
    Mr. Barry. Well, we're involved in endangered species 
conservation activities day in and day out right now, and I 
guess the big difference, Senator, between----
    Senator Lautenberg. I support a No Surprises policy.
    Mr. Barry. Yes.
    Senator Lautenberg. If there is an error and the plan 
doesn't work, my----
    Mr. Barry. We are prepared----
    Senator Lautenberg [continuing]. My question is: Who pays 
to revise or----
    Mr. Barry. At that particular point, we're prepared to 
carry the load.
    Senator Lautenberg. OK.
    Mr. Chairman, if I might, just one other question.
    The Service has recently published a decision that says if 
activities are causing a problem, jeopardy to an endangered 
species, the HCP has to be reopened, renegotiated. Does the 
Service plan to retroactively apply that kind of review?
    Mr. Barry. Well, what you're referring to are some 
adjustments that we made in what are known as the ``part 13 
regulations'' in the Fish and Wildlife Service's Code of 
Federal Regulations. These are the general regulations that 
apply to virtually every permit the Fish and Wildlife Service 
issues, from marine mammals to migratory birds and to 
endangered species.
    In there we made some adjustments. When we went out with 
the final No Surprises rule--excuse me, it wasn't in the No 
Surprises, it was in the safe harbor and candidate conservation 
agreement rulemaking recently that indicated that if, at the 
end of the day, the continuation of an HCP permit, despite all 
the adjustments, everything that anybody could do--the 
Government could do, the private sector could do, the States 
could do, or the landowner could do--if at the end of the day 
the continuation of that HCP permit would result in the 
jeopardy of the species, we would consider the revocation of 
the permit.
    So at the end of the day you don't have the ability to take 
your HCP permit and drive a species into extinction.
    Again, we don't get to that point, though, until we have 
tried virtually everything else, and one of the criteria up 
front for issuing an HCP permit in the first instance is that 
the issuance of that permit will not result in jeopardy to the 
species, and so we feel that that provision in the part 13 regs 
is consistent, ultimately, with the issuance criteria for an 
HCP permit in the first instance.
    Senator Lautenberg. Thanks, Mr. Chairman.
    Senator Crapo. Thank you, Senator.
    I'd like to followup on that question with a question to 
both of you, and the question is whether you believe there is a 
difference between a standard of preventing the jeopardy of the 
species in the development of an HCP versus the standard of 
trying to recover the species in the development of an HCP, 
and, if there is a difference between those standards, does 
that difference impact the success of the HCP program?
    Ms. Medina. I'm happy to lead off on this one, because I 
think we've articulated at least our vision of what those words 
mean in a letter that I'm happy to provide to the committee. It 
was to some timber companies that wrote us about 2 years ago 
and asked us that very question.
    We went back and looked very long and hard, talked with our 
scientists, and tried to understand and have them understand 
what those words mean--recovery and survival. To them, the 
terms didn't mean anything different. They really were 
consistent with one another.
    Our species in NMFS are extremely depleted, they are 
severely depleted, there are not many left, and so in order to 
get--I think of it as pushing a ball up hill. If you can push 
the ball up far enough to get past whatever that bright line is 
that means survival, you're going to get it, it is going to be 
rolling hard enough to keep rolling past recovery.
    They are essentially merged in the long run over time. What 
it will take to get to one will get you to the other. That's 
the way the biologists have explained it to me. That's the way 
they think of it.
    I think the struggle here has been for the lawyers and the 
scientists to figure out a common framework, a common 
understanding of what the words in the statute mean.
    So, for all intents and purposes, for everything that we 
do, they are the same. There isn't really a bright line that 
you can draw on the landscape that will get you to one but not 
the other. We can't calibrate that way.
    Senator Crapo. Mr. Barry, before you answer I'd like to 
followup with Ms. Medina just for a second there.
    Using your analogy of the ball on the hill, it seems to me 
that the standard of preventing jeopardy of the species would 
be stopping the ball from moving further down the hill, and the 
standard of improving or recovering the species would be 
actually pushing the ball up the hill into a safe harbor, or 
whatever.
    But to me I can see a very big difference there, and it 
seems that the standard between those differences would have a 
significant impact on the HCP.
    Does NMFS or NOAA disagree with that?
    Ms. Medina. Our scientists just can't think of it that way. 
For their purposes, it really is very difficult to discern 
between one and the other, especially when you're looking at 
the long-term impacts of these HCPs, because they are very 
long-term agreements that we're signing now, at least we are 
for the most part.
    Senator Crapo. So you're saying that the requirements that 
would be imposed in an HCP negotiation would not change, 
depending on whether the standard was preventing jeopardy as 
opposed to recovering the species?
    Ms. Medina. It's not that the standards wouldn't change in 
that you could calibrate it. It is really that they can't see a 
difference. For them, long-term viability, survival, long-term 
survival, recovery--the words that actually hearken back to the 
explanation of this program that the committee wrote when they 
passed the HCP amendments in 1982 is what they're trying to do.
    What they're trying to do is translate those words into 
actions on the ground, and for them there really isn't a bright 
line. There isn't a great distinction that they can draw, 
particularly because our species are so depleted.
    We're starting so far down at the bottom of the hill there 
is not much more room to roll down. I mean, we're really all in 
an up mode, and, you know, most of our species are in really 
bad shape, and for them this is the way that they see it.
    We've also talked about it in terms of habitat, because in 
ESA, as you well know, often what we have to do is not just 
look at the species but at their habitat, as well, and they 
have tried to, in the long run, design HCPs that will return 
habitat to its properly functioning condition. That's sort of 
the marker for them. The words ``survival'' and ``recovery'' 
are things that they then equate to that.
    Senator Crapo. And you indicated that there is a letter 
drafted out of your office?
    Ms. Medina. Yes, indeed. Well, I think it is a joint 
letter----
    Senator Crapo. Is a joint?
    Ms. Medina [continuing]. But we can provide it for the 
committee.
    Senator Crapo. Yes. Would you provide that letter?
    Ms. Medina. And there is a scientific memo that supports 
it. We'd be happy to provide it.
    Senator Crapo. Thank you.
    [The memorandum follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Senator Crapo. Mr. Barry.
    Mr. Barry. Yes. Let me just offer some other thoughts, in 
addition to what Monica has just mentioned.
    I'd go back to the 1986 section seven regulations. There is 
a provision or a discussion in the preamble which notes that 
for some species that have declined so severely, there is 
virtually no bright line between adverse effects on recovery 
potential of the species and jeopardy. Even going back to 1986, 
we recognized that there are some species that are so 
critical--whooping crane is a good example. We just don't have 
much margin for error. California condors is another example--
we are down to just a few left in the wild.
    For some species, the average scientist is going to say, 
``Hey, if you affect their recovery potential, they are so low 
right now you've affected their survival potential, as well.''
    Under the Act, it is true that the issuance criterion that 
we have to clear is whether or not the issuance of the permit 
would jeopardize the continued existence of the species, so 
jeopardy is clearly the statutory hurdle. There are other 
issuance criteria in the act, though, that give us additional 
flexibility to truly try to get the best deal that we can for 
the species.
    We have to be able to clear not only a jeopardy hurdle, and 
what Monica was saying was that for some of their salmon 
species they feel that they are so far gone to begin with that 
virtually anything that affects them, that affects their 
recovery potential, could affect their survivability, as well, 
and would hit the jeopardy standard.
    But, in addition to that, we basically are obligated to 
negotiate to try to minimize and mitigate the level of take to 
the maximum extent practicable. We've got a number of other 
provisions and authorities in negotiating HCPs to try to get 
the best deal we can for the species, regardless of how the 
lawyers endlessly debate whether it is jeopardy that is the 
standard or recovery.
    I mean, the statute says ``jeopardy.'' No question about 
that. I think once you get into the biology and the science, 
though, it gets a lot murkier and a lot grayer very quickly.
    Senator Crapo. It would seem to me that--again, I still see 
a difference in my mind, and it would seem to me that if HCPs 
were not successfully negotiated as a result of seeking to get 
too much, that we could end up essentially not availing 
ourselves of the benefits that could be achieved by achieving 
the lack of jeopardy standard, and I just--you know, the second 
part of my question was: Does the utilization of an increased 
standard jeopardize the success of HCP programs?
    Ms. Medina. I would say ``no,'' Senator. I appreciate your 
question and I understand, as a lawyer and not a scientist, how 
hard it is for us to try and see things the way that the 
scientists do, because the words seem very clearly different 
and we, you know, have this joint interpretation of what they 
mean.
    But for the scientist it isn't that clear, and I think that 
you can hearken back to adaptive management as another way 
that, if we're asking what we don't need in an HCP, we 
continually monitor it so that we can ratchet it back and get 
protections elsewhere so that there is never a waste, there is 
never a mismatch between what we ask of the applicant and what 
the species needs to get there.
    Senator Crapo. I'd be interested in this. You've already 
indicated that you can provide the letter and whatever backup 
documentation there is for that letter. If you have any other 
materials on this, I'd be interested in what you have.
    Were you going to say something, Mr. Barry?
    Mr. Barry. I would acknowledge that, in fact, disagreements 
between a permit applicant and the agencies over some of these 
issues clearly has resulted in additional delay in the 
negotiation of these agreements. I mean, I would be lying to 
you if I said that didn't happen.
    One of the things that I've noticed over the years, though, 
that aggravates the situation is when--and heaven forbid, since 
I am a recovering lawyer, myself, right now--when the lawyers 
over-lawyer the negotiation process.
    I think that was one of the big problems with the Plum 
Creek HCP for a while. We had everybody dug in up to their 
axles over a debate over what constituted ``take.'' It was a 
legal debate.
    Finally, Kurt Schmitch, who was the head of the negotiation 
team for the Fish and Wildlife Service, said, ``Lawyers aside, 
out of the room. Let's just talk about the biology. What are 
the landscape conditions that we want to achieve at the end of 
this agreement?'' Suddenly, it was framed in a different light, 
and Lorin Hicks and Kurt Schmitch and the biologists all the 
sudden started approaching it from a different direction 
because it wasn't being burdened with legalistic definitions of 
what constitutes take, what constitutes recovery, and what 
doesn't. They just started discussing what they would like to 
see at the end of the day.
    Ms. Medina. ``What are we going to do?''
    Mr. Barry. Yes. ``What are we going to do?'' Then all the 
sudden they started thinking like scientists again and they 
were able to make some sufficient progress.
    I'm not sure what the message there is other than 
Shakespeare was probably right that first we ought to kill all 
the lawyers.
    [Laughter.]
    Senator Crapo. Well, being a lawyer, myself, I won't 
comment on that.
    I have several more questions, but I'd be very willing to 
interrupt for another round.
    Senator Lautenberg. No thanks, Mr. Chairman.
    Senator Crapo. Isn't it true that several HCP negotiations 
are in jeopardy because NMFS is requiring the applicants to 
meet this higher standard?
    I mean, one of the reasons I raise this question is because 
that issue has been raised to us.
    Ms. Medina. I understand and I don't think that they are in 
jeopardy. I think that we're moving ahead on all of our HCPs 
now. You know, we do have disagreements. It is a negotiation, 
no doubt about it. It is a discussion. We need all the 
information the applicant can give us. It is beneficial if 
everyone is open-minded and comes into the process willing to 
share information and work together, but I'm not aware of 
anywhere we're completely at a loggerhead and not moving 
forward.
    The thing that kept us from doing more HCPs over the last 
year-and-a-half or so was the fact that we had put so many of 
our resources into the PalCo HCP. We were virtually at a 
standstill in California because all of our resources were 
dedicated to that HCP. It was an incredibly intensive effort, 
and I think the timber companies, the landowners, were looking 
to see what would happen. They weren't anxious to move forward 
and negotiate terms until they saw what we were doing in that 
HCP, because it truly was, you know, innovative, forward-
looking, ground-breaking--all of those things. We tried to 
really advance our science and our implementation of the 
program in that HCP.
    Senator Crapo. Well, you may have given at least part of an 
answer to my next question, because one of the things I wanted 
to get at with regard to the National Marine Fisheries Services 
that--and I recognize that Fish and Wildlife has a lot more 
species that they cover and has a lot more opportunity for 
HCPs, but with the significant fisheries issues in the Pacific 
northwest, it seems to me curious that NMFS has issued only two 
incidental take permits associated with HCPs.
    Can you explain why that is the case?
    Ms. Medina. Well, some of our listings are very recent, 
Senator. They are as recent as March of this year. So we really 
are just ramping up our program, and I think we were not 
prepared for the intensive nature of the work involved in these 
HCPs. It takes time for us to get staff on the ground out in 
the northwest who are capable.
    I mean, as you know, Dr. Kareiva has now joined our NMFS 
staff. We are ramping up. We are getting ready for this, and we 
expect that we will be doing HCPs not just with timber 
companies but with public water districts, local governments 
like the mid-
Columbia HCP is with two counties in Washington State, and that 
one is right on the verge of being ready to go and done.
    We are really trying to hit the ground running on a problem 
that we are only just recently faced with, so our experience is 
really new and really recent, and I'd love to be back here in a 
few years and tell you how we are doing then.
    Senator Crapo. I'd love that, too.
    Mr. Barry.
    Mr. Barry. Yes. I'd like to just--I don't want to sound 
like a broken record here for OMB, but in the case of the Fish 
and Wildlife Service one of the real challenges that we have 
and one of the reasons that the HCP program takes so long--in 
fact, one commentator said the Berlin Wall came down faster 
than most HCPs get negotiated--but one of the problems that we 
have is that within the Fish and Wildlife Service's endangered 
species budget the people that are doing HCPs are also the same 
people that are doing section 7 consultations. It comes out of 
the same pot of money.
    And so what you frequently have is this real frustrating 
sense of tension among the staff people in these field offices. 
They've got statutory deadlines for section 7 consultations. 
Within 90 days you have to have it finished. You have to have 
your biological opinion out within 35 days after that or 45 
days after that, and so they are constantly being torn by the 
need to go off and work on these section 7 opinions which have 
congressionally imposed deadlines versus these HCPs.
    One of the things that we did up in the northwest to try to 
eliminate that tension was to have a group of people that did 
nothing but HCPs. They were focused. They didn't have to race 
off to handle a section 7 consultation.
    Unfortunately, that experiment has come to pass and I have 
been watching to see what happens with that team now having 
been disassembled, but one of the real problems we have is 
that, given the resources we have, the same people that are 
supposed to be negotiating HCPs are the ones who are supposed 
to be responding to Federal agencies, and so you get this 
terrible tradeoff, almost like Sophie's Choice. Do we respond 
to the Federal agencies and give them a quick turn-around, or 
do we let the landowner just sort of hang in the breeze? It's 
one of the reasons that we asked in our budget for the fiscal 
year 2000 for a significant increase in the amount of money for 
the consultation element. It was to give us the ability to 
respond to private landowners more efficiently. Unfortunately, 
again, Congress has chosen to give us very little of that new 
money.
    Senator Crapo. I, for one, will be very glad to support 
those efforts, and hopefully we will be able to get you the 
resources to respond more quickly.
    I think I will just make a comment and then one last 
question.
    The comment is I hope that we're not going to let the 
search for the perfect be the enemy of the good. Hopefully we 
will be able to make progress in a number of these areas.
    I did want to suggest that it seems to me, from what I've 
heard yesterday and today, and from what I've heard from those 
who have given input to us on this issue, that one of the 
reasons it seems to take so long is that we don't really have a 
clearly defined process for negotiating a plan. When a 
landowner comes to the agency, it's not really clear what it is 
that is expected and what process needs to be followed so that 
we can expeditiously get through the necessary hoops and get to 
a point where an agreement can be reached, and I think it would 
be helpful if those kinds of standards and if a clearly defined 
process could be defined.
    My last question is for you, Mr. Barry, and it is that in 
your testimony you mentioned that HCPs covering small, non-
industrial, private tracts of land do exist. My question is: 
How many of those kinds of HCPs exist, and what can you tell me 
about the time and cost required versus--well, relative to 
these smaller HCPs?
    Mr. Barry. Well, you anticipated the last word that I 
wanted to try to get in before you closed down this panel.
    If I had to pick one area where I think we have the biggest 
challenge ahead of us, it is to make HCPs more readily 
available and affordable to small landowners.
    The big corporate timber companies and the large developers 
have the wherewithal and the ability to comply with the Act. 
They can hire the consultants, they can hire the lawyers, they 
can slug it through. They're used to paying environmental 
compliance costs as a part of doing business. For the smaller 
landowners, though, it is hard. It is frightening. They don't 
know where to go. They don't have the resources available to 
them.
    We have actually issued a fair number of small landowner 
HCPs, in particular in the South, for homeowners, people who 
are going to build on a quarter acre lot in scrub jay habitat. 
There's not much you can do, there's not mitigation that makes 
much sense, and so we have issued a number of HCPs for people 
at a quarter-acre, half-acre, less-than-an-acre level, 
primarily for homes.
    If you are a wood lot owner, small wood lot owner, and 
you've got 50 acres or 100 acres, we have, in fact, actually 
issued HCPs in those instances, but I would have to say I don't 
think we've done as good a job as we should.
    One of the things that I'd like to see happen in the future 
is for us to be able to develop more of a template HCP that 
could be utilized readily, pulled off the shelf in a particular 
area for certain species, and use that as a way of streamlining 
the cost and the process.
    We actually did issue an HCP handbook, a jointly prepared 
Fish and Wildlife Service NMFS HCP handbook that was designed 
to try to provide people with a greater understanding going in 
on what are the different steps, what are the different offices 
you need to work with, what are the questions you need to be 
prepared to ask, and in the back of that my recollection is we 
tried to come up with a template model of a small-scale, low-
impact HCP.
    So we are trying. I don't think we have perfected it. It's 
the one area that I would like to spend more time, personally, 
focusing on.
    Senator Crapo. I appreciate that, and I would encourage you 
to do so.
    Before we conclude, Senator Lautenberg, did you have any 
further questions of this panel?
    Senator Lautenberg. No. I'm satisfied. I'm listening very 
carefully, Mr. Chairman. You asked almost everything I wanted 
you to.
    Senator Crapo. All right.
    Well, thank you. We appreciate your time and your effort 
and we'll continue to work with you on this issue.
    Mr. Barry. Thank you.
    Ms. Medina. Thank you very much.
    Senator Crapo. This panel is excused.
    I'd like to call up the second panel now.
    The second panel consists of: Dr. Lorin Hicks, the director 
of Fish and Wildlife Resources for Plum Creek Timber Company; 
Mr. Steven Courtney of Sustainable Ecosystems Incorporated out 
of Portland, OR; Mr. Mike O'Connell of The Nature Conservancy; 
Ms. Laura Hood of the Defenders of Wildlife; and Mr. Gregory A. 
Thomas, president of the Natural Heritage Institute.
    I don't think that the name plates are in the same order 
that I read them, but we'll go in the order that I read them.
    Dr. Hicks.
    While we're getting ready, I'll remind this panel that this 
is a larger panel, and therefore we ask you to pay even closer 
attention to the lights so that we do have the time for the 
questions and the interaction among the panel members, and I 
will advise this panel, as well, that your full written 
statements, as well as any other material you would like to 
submit, will be made a part of the record.
    Dr. Hicks, you are welcome to begin at any time when you 
are ready.
    I also encourage each of you, when it is your turn, to pull 
the microphone as close as you can to your mouth so that we can 
hear you. Sometimes it is hard in this room unless the 
microphone is very close to you. Thank you.

     STATEMENT OF LORIN HICKS, DIRECTOR, FISH AND WILDLIFE 
       RESOURCES, PLUM CREEK TIMBER COMPANY, SEATTLE, WA

    Mr. Hicks. Good morning, Mr. Chairman and members of the 
committee. I am Dr. Lorin Hicks, and I am a ``recovering'' HCP 
applicant. I am also director of Fish and Wildlife Resources 
for Plum Creek Timber Company, Incorporated. Plum Creek is the 
fifth-largest private timberland owner in the United States, 
with over 3.3 million acres in six States.
    I am here today to talk about how important habitat 
conservation planning is to our leadership in environmental 
forestry. Habitat conservation planning promises to be the most 
exciting, progressive conservation initiative attempted on non-
Federal lands in this country.
    Plum Creek is no stranger to habitat conservation planning. 
Plum Creek's Central Cascades HCP, a 50-year plan covering 285 
species on 170,000 acres, was approved in 1996. We are 
currently working on another called the ``Native Fish HCP,'' 
covering 1.7 million acres in three northwest States. A third 
HCP for red-cockaded woodpeckers in the South is under 
development with the Fish and Wildlife Service.
    In 1995, we also initiated an 83,000-acre grizzly bear 
conservation agreement in Montana's Swan Valley.
    Since 1974, few issues have been surrounded with more 
controversy than the Endangered Species Act. It is often 
criticized as unworkable and characterized as iron-fisted. 
Regardless of its image, its impact on landowners has been 
profound. My company, Plum Creek, is no exception. Our 3.3 
million acres supports no less than 12 federally listed species 
and others, such as salmon and lynx, which have been proposed 
for listing.
    This committee faces a critical question. Can HCPs continue 
to work for landowners and for endangered species into the 
future? This hearing hopefully will give the committee insights 
in the underlying science and principles that drive HCPs.
    Two of the fundamental foundations of HCPs are under great 
pressure.
    First, the No Surprises policy, which is critical for 
landowners to undertake an HCP, is being challenged. It 
provides the necessary incentives for landowners to undertake 
the costly and resource-intensive process to complete a habitat 
plan. To ensure that the program remains strong, we believe 
that it should be codified.
    Second, pressures mount to standardize HCPs and compare 
them to each other, with a tendency to use each one to raise 
the bar for those which follow. In my opinion, this one-size-
fits-all approach is precisely what has challenged ESA since 
its inception and could be the most important deterrent to the 
inclusion of small landowners in the HCP program.
    It is important to understand that HCPs are as different 
from one another as landowners and land uses. They are as small 
as one homesite and as large as 7 million acres. They are as 
short in duration as one construction season and as long as 100 
years. They are as focused as a single species and as expansive 
as hundreds of species. And, importantly, each landowner has a 
different incentive for entering this voluntary process.
    To help demonstrate this, I have attached a new booklet 
just produced by the Foundation for Habitat Conservation 
providing brief case histories of 13 HCPs from around the 
country. These case studies give better definition to my point 
that HCPs vary widely in scope and intent, and I recommend this 
document for you to review. These examples give credence to the 
notion that HCPs can be an effective tool for conservation.
    Let's dispel a myth that HCPs are not based in science. 
When my company, Plum Creek, created its first HCP, we took on 
a very complex challenge. Not only did we have four listed 
species in our 170,000-acre Cascades project area, but 281 
other vertebrate species, some of which would likely be listed 
within the next few years. Combine this with the challenges of 
checkerboard ownership, where every even-numbered square mile 
section is managed by the Federal Government under their new 
Northwest Forest Plan, and you have a planning challenge of 
landscape proportions.
    To meet this challenge, we assembled a team of scientists 
representing company staff, independent consultants, and 
academic experts. We authored 13 technical reports covering 
every scientific aspect, from spotted owl biology to watershed 
analysis. We sought the peer reviews of 47 outside scientists, 
as well as State and Federal agency inputs.
    As a result of these inputs, we made technical and tactical 
changes to the plan, and additionally we developed working 
relationships with outside professionals that were invaluable 
and have been maintained to this date.
    Let's also dispel the myth that the public has no access or 
input to HCPs. During the preparation of the Cascades HCP, 
which took 2 years and $2 million, we conducted over 50 
briefings with outside groups and agencies to discuss our 
findings and obtain additional advice and input. During a 
public comment period, all HCP documents and scientific reports 
were placed in eight public libraries across the planning area.
    I brought with me today some of the major documents from 
the Plum Creek Cascades HCP, which was completed in 1996. These 
documents include the draft and final EIS, the final plan, a 
compendium of the 13 peer-reviewed technical reports, and this 
is a notebook with all of the Federal decisionmaking documents 
that were completed, including the biological opinion and the 
statement of findings.
    This is all part of the public record and part of the 
documentation of our HCP.
    We continue to publish our scientific work that myself and 
my team completed for this in technical publications. For 
instance, we do have a paper in this month's ``Journal of 
Forestry'' on spotted owl habitat research that we did 
preparatory to the HCP.
    Today, Plum Creek is nearing completion of a new HCP. This 
new plan focuses on eight aquatic species and covers 1.8 
million acres of our lands in Montana, Idaho, and Washington. 
The company and the Services have been working over 2 years on 
this plan, which will be the first HCP for the Rocky Mountain 
region.
    To provide a scientific foundation for this HCP, I 
assembled a team of 17 scientists that authored 13 additional 
technical reports spanning topics from fish biology to riparian 
habitat modeling. These technical reports were peer reviewed by 
30 outside scientists and agency specialists.
    We have all made the technical reports and white papers 
available to interested parties on this CD, and have done so 
well in advance of the public release of the HCP, which is 
scheduled for September 1.
    The good news is that anyone can have access to the latest 
science and technology used in the development of the HCP.
    My point here is to emphasize that for Plum Creek and other 
applicants the HCP process has been a principal catalyst for 
private landowners to undertake unprecedented levels of 
scientific research and public involvement.
    I'll rush ahead here and make sure that I can get my time 
done here.
    Mr. Chairman, these HCPs are not only science plans but 
also business plans which commit millions of dollars of a 
company's assets in a binding agreement with the Federal 
Government.
    In the Pacific northwest, the stakes are high for both 
conservation and shareholder value in private timberlands. The 
consequences of failure are so ominous for both interests that 
careful evaluation of the economic and ecologic ramifications 
are essential to successful completion of HCPs. Guesswork is 
not an acceptable alternative for either the Services or the 
applicant.
    As enthusiastic as we are about HCPs, the process is not 
without its faults. Since our first foray into HCPs, we've 
noticed some significant shifts in policy and practice. One 
downstream effect of the five-points policy has been the 
requirement of the Services to more-thoroughly analyze the 
effects of adding multiple species to the HCP, resulting in 
deletion of conservation measures for lesser-known species 
because the Services lack the information needed to complete 
their new requirements. This creates a major obstacle for 
completion of multi-species plans.
    There is a need for the Services to commit necessary 
resources and personnel to the development of HCPs from 
beginning to end, a period often as long as 2 years. Far too 
often, we experience shifts in key agency staff and biologists 
whereby professional experience is lost and continuity in plan 
development is broken.
    Once the majority of the scientific content of the plan has 
been completed, we have experienced excessive focus on 
relatively minor technical details. These are often speculative 
or hypothetical issues that are unproven in the literature but 
for which there are strong emotional concerns. In other words, 
with 95 percent of the scientific work completed, most of the 
debate centers on the remaining 5 percent, creating unnecessary 
delays.
    As we near completion of the native fish HCP, we are again 
reminded of the duplicative nature of the HCP and NEPA 
processes. The HCP is, by definition, a mitigation plan for the 
potential impact of lawful operations on listed species and 
their habitats. The NEPA process also requires a similar 
assessment of the HCP and management alternatives. Not only 
does this add additional expense and resources to duplicate 
work already done, but requires additional review and response 
by the Services.
    Senator Crapo. Your time has expired. Could you try to wrap 
up quickly?
    Mr. Hicks. OK.
    As you are aware, many of the HCPs being completed in the 
West require both the Fish and Wildlife Service and the 
National Marine Fisheries Service to work with the applicant 
and approve their final plan. Despite their efforts, these two 
agencies do not work in sync. The agencies provide varying 
levels of technical support to applicants. The combined effect 
of this lack of interagency coordination is further time delays 
to the applicant.
    Mr. Chairman, I thank you for the opportunity to testify.
    Senator Crapo. Thank you. And your full testimony is a part 
of the record.
    Mr. Hicks. Thank you, Sir.
    Senator Crapo. Next we'll hear from Mr. Steven Courtney.
    Dr. Courtney.

STATEMENT OF STEVEN COURTNEY, SUSTAINABLE ECOSYSTEMS INSTITUTE, 
                          PORTLAND, OR

    Mr. Courtney. Good morning. I am Steven Courtney, a 
biologist and vice president of Sustainable Ecosystems 
Institute.
    SEI is a nonprofit organization dedicated to using science 
to solve environmental problems. We are not an advocacy group, 
and our charter states that we will not engage in litigation. 
Instead, we believe that cooperative programs using good 
science can find lasting solutions.
    My testimony will focus on the positive lessons that can be 
learned about HCPs. I'll also make some suggestions for 
improving the process.
    The staff of SEI has acted in many ESA issues. Most of our 
work is for governments, but we also work closely with both 
industry and environmental groups. I, personally, have been 
involved with six HCPs and was an advisor to Dr. Kareiva on the 
AIBS project.
    I will report on two issues: the recently completed Pacific 
Lumber HCP and the SEI Santa Barbara meeting on how to 
integrate science into HCPs.
    Let me first State that HCPs are important to conservation. 
Without them, there would be few options for management of 
endangered species on non-Federal lands. Rigorous scientific 
analyses are crucial to those plans; however, science is just 
part of any HCP, which is a management document.
    Ultimately, the plan is a result of a negotiation and of 
decisions made by landowners and regulatory agencies. Science 
can help in this process, but it is not a magic bullet. 
Scientists can provide information on planning objectives and 
options and on the biological consequences and risks of these 
options. The better the information we provide, the more likely 
the planners can then make good decisions.
    In the Pacific Lumber HCP, we used science to diffuse a 
controversial situation. We coordinated a large scientific 
program on the threatened marbled murrelet. Federal, State, and 
private scientists all cooperated to determine the effects of 
different management options.
    Ultimately, the program was successful in that it provided 
clear guidance to the decisionmakers. Several items stand out.
    First, the program was very well-funded by the company, 
which invested heavily in obtaining good scientific 
information.
    Second, the quality of the scientific work was improved by 
an independent advisory group or peer review panel. In this 
chart I show here, I show the results of an independent audit 
to the PalCo HCP using the very same techniques that were used 
in the AIBS study by Dr. Kareiva and his group.
    You will see that the green symbols indicate the original 
draft for the PalCo HCP and the red symbols equal the final 
draft, and you can see the change in performance on many 
different criteria, and the blue are the performance of four 
other unnamed plans.
    You will see that the quality of the HCP did improve 
dramatically from the early to the final draft under the panel 
guidance. Note also that the final plan outperforms its other 
murrelet HCPs.
    A third important point on the Pacific Lumber HCP was that 
the scientists were not asked to make management decisions. The 
separation of roles is key. The use of good science can build 
trust between parties precisely to the extent that scientists 
avoid becoming advocates.
    Now, I am pleased that Dr. Kareiva in his written testimony 
agrees that the PalCo monitoring plan uses good science. This 
monitoring program was developed using the most-advanced 
analytical techniques available.
    The AIBS study was useful in pointing out that not all HCPs 
do use such methods, or even information that already exists; 
however, that information--the AIBS study of Dr. Kareiva--was 
essentially a research study, an academic study. It did not 
address important practical considerations, as Mr. Barry has 
already said, and it didn't really discuss how to improve the 
process.
    In April of this year, SEI brought together leading 
decisionmakers and scientists to develop those practical 
improvements, and participants were from a broad range of 
groups. Working by consensus, we identified numerous ways to 
strengthen the process, as outlined in the minutes of that 
meeting.
    There was, for instance, general recognition, a message 
you've already heard, that the regulatory agencies and many 
applicants lack the sufficient resources for the technically 
demanding tasks they face. Academic and other scientists could 
help to bridge those gaps, but they lack incentives or 
opportunities to do so.
    Most importantly, there are actually significant barriers 
to making more effective use of science. We need new 
infrastructure to make that use of science possible.
    The SEI Santa Barbara group initiated development, for 
instance, of a national peer review program for HCPs. We are 
now working to make that a reality and have expanded our group.
    By this consensus approach, we are seeking voluntary 
improvement to HCPs. By improving the science in their plans, 
permit applicants will then smooth the negotiation process, 
save time and money, and gain certainty.
    The general public also wants to see better science in 
HCPs, and an open peer review process will improve public 
confidence.
    Last, if I could just have 1 second to comment on previous 
testimony, you've heard that science is doing pretty well in 
HCPs, but there are some improvements that are possible. I want 
to emphasize that the HCP process, itself, is not in an 
entirely healthy state. I know that numerous applicants are 
talking or have walked away from the table, and that there is a 
need to improve the process for everyone's sake, and that 
science may be one way that we can do that.
    Thank you.
    Senator Crapo. Thank you, Dr. Courtney.
    Mr. O'Connell.

 STATEMENT OF MIKE O'CONNELL, THE NATURE CONSERVANCY, MISSION 
                           VIEJO, CA

    Mr. O'Connell. Thank you very much, Mr. Chairman and 
members of the committee. Thank you for the opportunity to 
address the committee on the science of regional conservation 
planning under the ESA.
    The Nature Conservancy has been involved in conservation 
planning almost as much as Don Barry, since the ESA 
reauthorized section 10(a) in 1982. I, myself, have worked both 
on the ground and as a student of HCPs for 12 years, and so the 
observations I want to offer and comments reflect both 
Conservancy's experience and my own.
    When I was reviewing my testimony last night, I realized 
that my written testimony perhaps came across a little bit 
harsher about habitat conservation plans under section 10(a) 
than I had intended. And in fact, what I want to talk about is 
not that HCPs are bad, because I don't believe they are--I 
believe they are, in fact, a good thing for what they are--but 
I want to talk about what they are and what they are not and 
how some scientific improvements can actually help them become 
better and solve some of the endangered species conflicts that 
I think they do not.
    Part of the problem I think is that HCPs are, in fact, a 
reactive process, generally. They are developed in response to 
proposed impacts on generally listed species. You don't have a 
listed species, you don't have a prohibition problem under 
section 9, and you don't end up generally getting an HCP.
    And part of the problem, as well, is that HCPs have 
generally focused on the wrong biological scale, not that 
focusing on a species scale is bad, but that they miss an 
entire scale of conservation that is important, and that is of 
the natural community or the ecosystem level.
    I think it is important to compliment the Fish and Wildlife 
Service on their work to improve the habitat conservation 
planning program. They've done their best to try to make it 
work and make it more conservation-oriented, both through 
practice and through policy. Their solutions, however, are 
limited by a legislative policy that is weak on natural systems 
conservation, and it is also weak on incentives to 
participants.
    I think the Service has done pretty well, all things 
considered, with habitat conservation plans. So what's the 
answer from a scientific standpoint?
    I think the key is how we focus our entire suite of 
conservation actions, including HCPs and how they are deployed.
    I want to name a couple of scientific principles that are 
important to consider if we want to achieve broad-scale natural 
community conservation under the Endangered Species Act with 
HCPs as a part of that tool.
    First, biodiversity conservation is important to consider 
at many different spacial and temporal scales. HCPs, by their 
definition, by their nature, by their legal definition, 
generally are focused on the species level and they are 
generally focused on listed species or species that are going 
to be listed very shortly in the future.
    There is never one best scale for conservation action. The 
key is to find the appropriate scale for the problem and 
integrate across a number of different scales in an overall 
conservation strategy.
    The second principle is that ecosystems are much more 
complex than we think. Science can never provide all the 
answers to questions about conservation, so our responses 
should be to exercise caution and prudence when we are 
designing answers. A good example of this is the adaptive 
management that people have spoken about.
    Third, nature is full of surprises. Ecosystems are 
characterized by non-linear, non-equilibrium, and random 
dynamics, and unexpected events will occur. The question is not 
whether there are No Surprises, it is whose responsibility 
those surprises are assigned to.
    Fourth, conservation planning is interdisciplinary, but 
science is the foundation. I think this is important, because 
frequently science is treated in habitat conservation planning 
negotiations as sort of a seat at the table rather than what it 
should be, which is a method of evaluating how to reach 
specified objectives.
    This raises the critical question of how to integrate both 
scientists and scientific information in the process.
    So what are some potential solutions? Given these important 
principles and the limitations of habitat conservation plans, 
both from a scale and a scope perspective, I think there are 
some improvements that can be made, and I will quickly go over 
them.
    The natural community conservation planning program in 
southern California that I have been involved in for the past 5 
years is an attempt to move beyond the reactive conservation 
planning of tradition to a more up-front, creative program that 
looks at not only endangered and threatened species but 
preventing--conserving natural communities and preventing these 
conflicts from occurring in the future.
    The most critical improvements that this program has made 
is clear regional scientific guidance developed in order to tie 
individual conservation plans and permits together.
    Also, the habitat level of conservation action that was 
taken, less concerned with individual species and where they 
might occur today, their occupied habitat, as it is with 
constructing a regional conservation system that will protect 
both species and the natural communities that sustain those 
species. And then, finally, how biological information has been 
brought to bear on the process.
    This includes comprehensive management and monitoring, and, 
as I said before, the two most important, I think, things for 
that are regional conservation framework, regional guidance, a 
vision of what the regional conservation strategy will look 
like, more than just species and impacts to those species, and 
then a habitat basis for conservation planning and action that 
I hope I can expand upon in the question and answer session.
    I would encourage you to take a look at my written 
testimony, and I appreciate the opportunity to testify today.
    Senator Crapo. Thank you, Mr. O'Connell. We will carefully 
review the written testimony, as well, and, in fact, have 
already to a certain extent and will further.
    Senator Crapo. Ms. Hood.

STATEMENT OF LAURA HOOD, DEFENDERS OF WILDLIFE, WASHINGTON, DC.

    Ms. Hood. Thank you for the opportunity to testify today 
before the Senate Subcommittee on the scientific aspects of 
habitat conservation plans.
    I am with Defenders of Wildlife, a nonprofit conservation 
advocacy organization based in DC. with over 300,000 members 
and supporters.
    Defenders' mission is to protect native animals and plants 
in their natural communities. As an organization that is 
committed to science-based management of endangered species, 
Defenders has been heavily involved in individual HCPs, as well 
as HCP policy, on a national level.
    The results of our scrutiny of the program reveals that 
significant improvements must be made to HCPs in order to 
improve the scientific basis for them and to reduce the risk 
that they impose to endangered species.
    Starting in 1996, Defenders started research on HCPs that 
would--culminate in our 1998 report on the topic, entitled, 
``Frayed Safety Nets.'' In researching this report, we reviewed 
plans nationwide, then we selected a representative sample of 
24 plans and evaluated them using criteria that should be 
satisfied in order for plans to lead to conservation benefits 
on private land.
    In the course of the research, we read each plan and 
associated documents, we interviewed key plan officials, and we 
looked at any recovery plans for the species.
    The report itself focused on the science, public 
participation, funding, and legal aspects of HCPs.
    Our objective was to point out the best and worst examples 
of those aspects of HCPs and to examine national trends.
    Our findings showed that, as they were being implemented, 
many plans represented large risks to endangered species 
because often they lacked an adequate scientific basis, they 
were difficult to change if they resulted in unanticipated harm 
to species, and they were often inconsistent with species 
recovery.
    We identified the need for more scientific information to 
provide a platform to support well-informed HCPs. In the study 
of HCPs led by Dr. Peter Kareiva, scientists took a more 
quantitative approach to this same issue, and that study also 
pointed out that substantial scientific data are often missing.
    For example, in two-thirds of the cases that were reviewed, 
there were no data available for the proportion of the total 
population that would be affected by the HCP.
    I propose two classes of recommendations in response to the 
need to improve the scientific basis of HCPs.
    First, I agree with the panel of scientists in yesterday's 
hearing in calling for increased, organized information on 
species and habitats.
    Second, I recommend policy measures for moving forward with 
HCPs when scientific uncertainty exists, while still reducing 
risk to species.
    But before I get to the risk management for species, let me 
explore opportunities to increase scientific information for 
HCPs.
    First, we already have several tools in the Endangered 
Species Act for addressing this. Recovery plans can be 
excellent repositories of information on species, provided that 
they are well-informed, peer-reviewed, and adaptive.
    Having information-rich, updated recovery plans to guide 
HCPs puts HCPs within the sphere of recovery, which is where 
they belong. Similarly, critical habitat designation also 
provides essential information about the ecology and 
distribution of species and habitats.
    Outside the Endangered Species Act, large-scale ecosystem-
based protection plans are being developed, and these 
strategies may allow us to understand how HCPs fit within the 
larger landscape.
    And, finally, to improve the quality of science in HCPs, 
independent scientists need to be more involved in the 
development of HCPs, whether through consultation or formal 
peer review.
    That being said, despite our best efforts, scientific 
information for HCPs will never be complete. This scientific 
uncertainty does not mean that HCPs cannot go forward. It is 
essential to recognize scientific uncertainty in the HCP 
process and to implement procedures for managing risk to 
species.
    My second set of recommendations has to do with this risk 
management.
    First, when information is scarce, precautionary measures 
can be incorporated into HCPs in multiple ways, including 
increasing protection for species up front as a buffer, 
ensuring that mitigation is successful before a take occurs, 
and limiting the duration of HCPs and assurances.
    Second, adaptive management is an essential component of 
scientifically based HCPs. Unfortunately, under No Surprises 
adaptive management is fundamentally restricted by the fact 
that no additional money or land can be required of the 
permittee.
    While assurances are clearly important for private 
landowners, I would like ``no surprises'' to become ``earned 
assurances.'' That is, currently landowners receive assurances 
automatically when HCPs are approved. I would like to see a 
system where landowners earn those assurances, based upon the 
likely benefit or the impact to the species, the amount of 
scientific uncertainty involved in the plan, and the amount of 
monitoring and adaptive management that is involved in the 
plan.
    With that point, I'll conclude. Thank you very much.
    Senator Crapo. Thank you very much, Ms. Hood.
    And, finally, Mr. Thomas.

  STATEMENT OF GREGORY A. THOMAS, PRESIDENT, NATURAL HERITAGE 
                  INSTITUTE, SAN FRANCISCO, CA

    Mr. Thomas. Good morning, Mr. Chairman. Good morning, 
Senator Lautenberg. I'm Greg Thomas. I'm the president of the 
Natural Heritage Institute, a nonprofit conservation 
organization located in San Francisco.
    My statement today reflects the reality that the HCP 
process must be made to work because there just is no other 
vehicle for protecting endangered species habitat in lands and 
waters subject to private rights, and the objectives of the ESA 
cannot be met without conserving such habitat.
    That's clear when you consider that for 80 percent of 
listed species some portion of their habitat is found on 
private lands, and for 50 percent their habitat is found only 
on private lands.
    Yet, the HCP process so far has not kept pace with the 
biodiversity challenge. This is revealed by one of the many 
useful statistics coming out of the NCEAS review that Dr. 
Kareiva testified about yesterday.
    It points out that 62 percent of species are declining in 
areas covered by HCPs. Now, making HCPs work has two 
dimensions, we believe: first, producing conservation 
strategies that contribute toward the long-term survival of the 
species and the associated elimination of their habitat needs 
as a development constraint; and, second, apportioning the 
burdens and responsibilities among the rights holders and the 
public in a manner that produces the appropriate inducements.
    Now, the science of conservation planning can be better 
utilized in the HCP process to advance both of those 
dimensions.
    After 17 years of operating experience with HCPs as the 
principal vehicle for conserving biodiversity on private lands, 
it is now possible to take stock of what is working and what is 
not and how the process can be improved.
    With that objective in mind, in June last year NHI, my 
organization, convened a technical workshop to synthesize the 
results of the dozen or so empirical reviews of the performance 
of HCPs that have been conducted to date by academic 
researchers, practicing conservation biologists, and national 
environmental organizations.
    Incidentally, that workshop included four of the witnesses 
and institutions that you've heard from at this hearing--Dennis 
Murphy, the NCEAS review, Michael O'Connell and The Nature 
Conservancy, and Defenders of Wildlife--so most of the good 
lines have already been taken by previous witnesses.
    But let me summarize a few of the findings and 
recommendations on how this HCP process might be redesigned in 
a manner that could benefit both species and applicants for 
incidental take permits.
    First, HCPs for individual landholdings would work better 
if they were designed to fit within the context of a more 
systematic habitat-wide or bioregional conservation strategy. 
Michael O'Connell has already explicated this point in some 
detail, and I hardly need to repeat what he has said.
    But the central point here is that the optimal planning 
unit for habitat conservation is not the individual landholding 
or the water diversion. The optimal focus is not an individual 
listed species. What we want to do here is create a portrait, 
if you will, that is a picture of long-term survival of the 
species.
    If you want to think of this as a mosaic, then the 
individual habitat conservation plans, the parcel-by-parcel 
plans, are the tiles in this mosaic, and all we're saying here 
is that if you want to create the picture you have in mind, 
you'd better know what that portrait looks like before you 
start designing the individual tiles.
    We need a master plan, in other words, for this process to 
work optimally, and that master plan is a landscape-scaled plan 
that is going to require a more proactive and less reactive 
stance by the Services to produce, and that's part of where the 
reallocation of the burdens of habitat planning probably needs 
to take place. This spells Federal dollars, and there is no 
masking that.
    The advantages of this approach are many and are outlined 
in the written testimony in some detail. Landscape-level 
planning can specify the overall conservation effort that is 
required and provide a basis for determining and apportioning 
the contribution that needs to be made by the individual rights 
holders.
    There is no mechanism at present under the act for 
apportioning burdens as between incidental take permit 
applicants and public lands. Basically, whoever gets there 
first tends to cut the best deal.
    It is more feasible to calibrate habitat conservation 
planning to long-term survival rather than simply minimizing 
impacts, and that's important because, as long as habitat 
conservation planning is viewed, rightly or wrongly, as nickel-
and-diming endangered species further toward the brink of 
extinction, it is going to remain controversial.
    What we need is to set up a process that provides some 
assurance of net survival benefit for these species.
    I am perhaps a fifth of the way through the comments that I 
intended for you this morning, so perhaps in the question 
period I can move into some other terrain.
    Thank you very much, Mr. Chairman.
    Senator Crapo. Thank you very much, Mr. Thomas.
    We thank the entire panel. We realize the 5-minute 
limitation makes it very difficult for all of you to get what 
you have to say said, and I assure you that we do review the 
written testimony very carefully.
    Senator Lautenberg, would you like to start out this round?
    Senator Lautenberg. If I might, Mr. Chairman, I want to 
again commend you. I think the witness group that we've had 
here is an excellent one, and we get kind of a different 
picture than is traditionally done in committee hearings, and 
I'm pleased to hear the concerns that are registered here about 
whether or not HCPs do what we want them to do.
    I would ask Ms. Hood, how many of the HCP policies that are 
approved thus far include the substance of the five-point 
policy guidance that we are focused on as one way to assure the 
quality of the HCP plan?
    Ms. Hood. Well, the five-point policy has recently been 
drafted and put under public comment, so it is a relatively new 
process that the Services have instituted.
    Senator Lautenberg. When was the five-point policy----
    Ms. Hood. I believe that it was out for public comment this 
past spring, so they are in the process of starting to 
implement it at this point.
    Senator Lautenberg. OK. So we can't really determine what--
if we look at the plans to date, there is no basis for 
considering the five points. But would you say that, without a 
clear definition, that in your examination of the HCPs thus far 
that they included much or enough of the five points to give us 
the value that you would like to see in these HCPs?
    Ms. Hood. I think that basically we have been pleased that 
the Services have promulgated this new guidance on HCPs, 
because the five-point plan does address many of the issues 
that we brought up as, you know, fundamental deficiencies in 
some of the HCPs that have been put forward in the past. The 
five-point plan addresses some of the problems that we did 
identify, including the need to include more public 
participation, the need to identify biological goals for plans 
so that you can judge the progress of plans based on what the 
plan was aiming to do for the species, and incorporating more 
biological monitoring and adaptive management. These are all 
changes that we really want to see included in HCPs and we're 
glad that they are listening to our concerns about them.
    I would say that one problem that we have is that the 
guidelines are not regulatory, they're not required of 
landowners, so we're still faced with the situation that No 
Surprises assurances are given to private landowners based on 
just the approval of the HCP, and, instead of having assurances 
be offered as an incentive to include the best adaptive 
management possible, biological goals that truly aim toward a 
benefit for the species that are involved, and some of these 
other recommendations from the five-point plan.
    Senator Lautenberg. It has been said many times this 
morning that the HCPs have been a substantial step forward in 
terms of protecting habitat, so I'm inclined to agree with 
that. And now what we are trying to do--and, once again, my 
compliments to the chairman because what we've done is ask the 
question today: ``How can we better assure that there is a 
standard that measures what these plans are expected to 
produce?'' And in order to do that you have to understand what 
it is that your requirements are. Are they based on something 
solid or are they based on just the--those of us who would like 
to protect the environment. I just announced which side I'm on, 
I guess.
    How many of the HCPs--anyone who would be inclined to 
answer--approved to date are based on a recovery standard so 
that they do not undermine the recovery of the endangered 
species?
    The chairman identified recovery as opposed to jeopardy as 
a matter of interest. What would any of you say regarding the 
fact that the recovery standard does not jump out at you as one 
of those standards that is included?
    Dr. Hicks.
    Mr. Hicks. Senator, if I could offer my attempt at an 
answer on that from my perspective, having been a designer and 
practitioner of several HCPs now, my understanding and the 
counsel I've given to my company is that, although we may not 
be necessarily adopting a recovery goal or recovery standard 
for the HCPs, our task and the counsel we've gotten from the 
agencies is that what we are planning to do under the HCPs 
should not somehow subvert or set back recovery of those 
species.
    Two perspectives to leave you with. When we did the 
analysis for the Cascades HCP, the Fish and Wildlife Service, 
in their decisionmaking documents, analyzed the approach we 
were taking in the HCP from the standpoint of the draft spotted 
owl recovery plan that was there at that time.
    They concurred that where we were instituting harvest 
deferrals and where we were leaving habitat for the owls was 
consistent with the direction that the Federal Government was 
taking in their recovery plan. We were putting them in the 
right areas, in other words.
    And so, although we were not necessarily emulating the 
goals, we were consistent with the plan and reviewed as not 
setting back the goals of recovery should those goals be 
implemented aggressively on Federal lands.
    The second point I want to make is that, with many HCPs--
for instance, our native fish HCP right now--we started 
development of this plan while the bull trout was a candidate 
species for listing. We thought about this being a candidate 
conservation agreement, or something you might do prior to the 
listing of a species.
    Because it has taken us over 2 years to develop this, we 
have now been into the development of the plan since the 
species has been listed, so we've converted the plan over to an 
HCP, as well as the other species along the road here that 
we're considering in the development of this plan.
    But there is no recovery plan for the bull trout and likely 
will not be before we are done with our plan, so the landowner 
is faced with a choice should he delay conservation, delay a 
notion, an idea of how to proceed ahead, or should he provide 
not only some conservation on the ground early for the species, 
but be able to obtain some regulatory predictability for his 
company in this shifting mosaic of recovery planning, as well 
as bring along some other species.
    For instance, in the native fish HCP, the west slope 
cutthroat is brought along and considered in the plan, and that 
has not yet--is still being considered for listing at this 
point.
    And so the point is that recovery plans are great. We can 
look at some of the tactics and techniques taken in those 
plans. But HCPs--one of the values is that it allows the 
landowner to get out ahead of recovery plans.
    Mr. Thomas. Senator, if I may----
    Senator Lautenberg. Yes.
    Mr. Thomas. As I think Don Barry affirmed this morning, the 
standard of performance for HCPs is basically whatever the 
negotiation process will yield. The Government seeks to get the 
best arrangement it can, and that means inherently--and let's 
not hide the fact--economics intrude. The best deal you can get 
is, to some extent, a function of the affordability of 
mitigation measures by the private rights holder.
    The better approach, as many of us have suggested, is to be 
able to calibrate these plans to some kind of an overall 
conception of what it will take to get this species out of 
difficulty and what contribution any individual HCP needs to 
make in that direction, and the extent to which the public fisc 
has to be willing to pick up the difference, which often will 
be the case. That's another benefit of landscape scale 
planning.
    Mr. O'Connell. Senator, if I might add, as well, part of 
the problem is that recovery is so difficult to pin down as 
what it actually is. I'm convinced that some people think 
recovery means there's so many of them running around you can't 
avoid stepping on them, and that's clearly not in a realistic 
definition.
    It is so different from species to species and from 
location to location. In San Diego County, which is one of the 
places I work, we have a plant called the ``otimesamint,'' 
which is a very narrow endemic species. It is restricted to a 
very narrow area and a narrow habitat type. There are three 
known locations of this plant species. They are all three 
protected under the conservation plan. Is that recovery? You 
could argue one way or the other about that.
    On the other hand, one of the species that is addressed 
under the conservation plan is the golden eagle, and San Diego 
County represents a tiny portion of the range of the Golden 
Eagle. I think there are five or six pairs that nest in the 
county. And those locations of the nests and the habitats 
surrounding them are protected, as well as the natural 
community and landscape that supports them. Is that a 
contribution to recovery?
    I think it is difficult to pin that down as a bright line 
that we would then judge the adequacy of HCPs on. On the other 
hand, I think it is important that we look at actions that are 
simply not holding actions--actions that don't just say, ``Are 
we keeping the ball from rolling further down the hill,'' but 
actually making a contribution.
    And, as Greg said, apportionment of that responsibility is 
an essential part of that equation, and that's not a scientific 
question at all.
    Senator Lautenberg. Mr. Chairman, I've taken more than my 
share, and I appreciate it. Perhaps we'll have an opportunity 
to submit a couple questions to the witnesses and would ask for 
their cooperation in responding back to us as quickly as you 
can.
    I thank you very much.
    Senator Crapo. Thank you very much, and you're welcome to 
ask further questions if you have time.
    Senator Lautenberg. I'll leave that to you, Mr. Chairman.
    Senator Crapo. Mr. Courtney, my first question is to you. 
Yesterday there was some discussion devoted to the concept of 
scientific standards and guidelines and the need for those. Do 
you believe that a set of scientific standards and guidelines 
would improve the quality of HCPs and the science with regard 
to HCPs?
    Mr. Courtney. That's actually a fairly difficult question, 
Senator.
    I'm fairly cautious about the need for a prescriptive 
approach with a cookbook and standards that we must all meet. I 
think you've heard from many of the other witnesses that we 
need flexibility in our approach and that each HCP is different 
and the issues that it deals with are different.
    I do, however, think that it has real value if we can find 
and define our goals up front.
    You've heard from some of the other witnesses on this panel 
that having a clear ecosystem-wide program of where we are 
going and a set of goals and, for instance, also the Fish and 
Wildlife Service proposal to provide goals at the time of 
listing, all those are positive steps, but I would be very 
cautious about ideas that we would have to have a particular 
sort of analysis or particular standard that we must meet in 
every HCP. I find that hard to see how we could achieve that.
    Senator Crapo. Thank you.
    Mr. Hicks, the issue of trying to address both No Surprises 
and adaptive management seems to raise some level of 
contradiction, although there are those who believe that it can 
be overcome. I think that Mr. Barry indicated he believed that 
that was something that could be addressed.
    How have you addressed those issues in the plan that you've 
worked out?
    Mr. Hicks. Mr. Chairman, I think that the term has been 
used several times about the dynamic tension between the No 
Surprises policy and adaptive management.
    It is important to realize that--and I think really this 
adaptive management, although it is viewed as learning by 
doing, it is more of a classroom term, probably better 
discussed in the classroom than practiced on the ground. It is 
a very difficult thing to actually put in on the ground.
    Within the context of HCPs, really adaptive management is 
an agreement between the Services and the applicant whereby 
management actions will be modified in response to new 
information.
    I view adaptive management as a way to address some 
significant leaps of faith, if you will, in HCPs where there is 
dependence on models or adoption of untested conservation 
measures.
    The policy may limit the amount of mitigation that can be 
required of an applicant unless unforeseen circumstances occur, 
but adaptive management provides the flexibility to deal with 
that uncertainty within the sideboards of the No Surprises 
policy.
    So, as an example of what we've done in HCPs, for instance, 
in our Cascades HCP, we used a model that I had developed to 
help us predict how many owls might be--how many site centers 
might occur in an area based on the configuration of habitat 
now and in the future, so we used adaptive management to focus 
our information-gathering, our monitoring to gather information 
to see if the model was working and to set some sideboards upon 
which how far the model should depart or could depart from our 
predictions before we had to sit down with the Fish and 
Wildlife Service and decide how do we respond to information 
that the model might not be accurately predicting occupancy of 
landscape habitat by owls.
    So we set some sideboards there to help with that, and it 
helps drive our monitoring program to gather information to get 
us to that end point.
    Senator Crapo. Thank you.
    Mr. O'Connell, you suggested in your testimony developing 
an endangered species problem-solving fund that would provide a 
strong incentive to private landowners to participate in the 
objectives of the ESA. Could you elaborate on that a little 
bit? How would that fund be created and used? What do you have 
in mind there?
    Mr. O'Connell. Yes. Thank you for asking that, because I 
wasn't able to get to that.
    One of the things that becomes clear when you look at when 
HCPs are initiated, which is with impacts imminent and with 
listed species which are pretty much at the brink of 
extinction, is that what the ESA requires in terms of 
conservation for those species and what is necessary to recover 
them, there's a gap between that. And part of the discussion 
over recovery is who is responsible for filling that gap.
    Senator Crapo. Right.
    Mr. O'Connell. I think it is very important that we 
recognize that, depending on--no matter what the assignment of 
responsibility is, there is going to be a public responsibility 
for part of that. We don't currently have a mechanism to fund 
the type of conservation that would improve habitat 
conservation plans from a conservation standpoint and be a fair 
allocation of resources from the private sector.
    So I would envision a fund like that as having benefits on 
both sides. That's why I was talking about it being a problem-
solving fund. It would help habitat conservation plans become a 
better conservation tool, contribute more to the recovery goals 
of the ESA, but also make them more workable and doable for 
private landowners and then therefore make them a better 
incentive there.
    Senator Crapo. Thank you.
    And I'm not going to miss you, Ms. Hood, but I want to skip 
to Mr. Thomas here, first.
    Mr. Thomas, in the context of this dynamic tension between 
adaptive management and the No Surprises policy and the 
proposals that are being talked about as to who is responsible 
for this, to make up the difference when adaptive management 
shows that more needs to be done, I'm aware that--at least it 
is my understanding that in some of your writings you have been 
critical of the No Surprises guarantee. Is that correct? If so, 
how would you approach the issue?
    Mr. Thomas. In my view, the way to reconcile the need for 
regulatory assurances with the adaptive management discipline 
is by converting the concept of No Surprises to a concept of no 
uncompensated surprises.
    The fundamental problem with No Surprises is that it flies 
in the face of biological reality, and it is not helpful, or at 
least it is not a sufficient answer to say we will negotiate 
the potential adjustments up front as a part of the initial 
deal.
    Well, when these deals last for decades and the data is as 
inconclusive as it often is, that isn't very satisfying. What 
would be far more satisfying would be an acknowledgement that 
we don't know enough to regulate for decades. We simply don't. 
And HCPs are nothing better than a set of testable hypotheses 
that need to be tested. And we need to abide by the scientific 
verdict that that testing will provide. And if that verdict is 
that adjustments in the fundamental deal are needed to 
accomplish the goals of the Act, then the question of 
apportioning that burden as between the rights holder and the 
public is a legitimate question.
    So, you know, what it seems to me can be negotiated up 
front is that apportionment of financial responsibility for 
adjustments if they prove to be needed, but the idea that 
somehow or another there are foreseen and unforeseen 
circumstances up front when you're dealing with plans of this 
nature is, frankly, wishful thinking, and that's the problem 
with the--it's too rigid in that respect.
    Senator Crapo. So if I understand you right, you're 
proposing that, in one way or another--I was interested by your 
concept of no uncompensated----
    Mr. Thomas. Right.
    Senator Crapo [continuing]. Surprises. So we identify up 
front that there almost certainly will be adjustments that need 
to be made, but the landowner is able to know up front what his 
or her responsibility economically will be if those 
developments take place.
    Mr. Thomas. Indeed. I mean, we analogize it to insurance. 
It is risk insurance. If there is a fund that could absorb 
unanticipated risks without that falling on the shoulders of 
the private rights holder, everybody is better off.
    And, incidentally, in exploring this concept with 
developers, one of the interesting potentials here is that the 
cost of debt service for developments where there is an 
appreciable risk of species complication, that cost can 
probably be reduced through this kind of an insurance concept.
    That means that, in a sense, a portion of the premiums for 
such an insurance can be defrayed through savings in the 
development scheme.
    So we tend to think this is a concept that has a lot of 
potential to it and needs to be examined.
    Senator Crapo. Before I go to Ms. Hood, did you want to say 
something, Dr. Courtney?
    Mr. Courtney. Yes. I would like to comment on that.
    I'm sure a lot of permit applicants would welcome the idea 
of having some insurance about what would happen if unforeseen 
circumstances did come along, but I would like to say, just 
coming from a purely scientific approach, that I think the 
notion of No Surprises precludes adaptive management should be 
knocked on the head, that we clearly do adopt many adaptive 
processes in HCPs, and sometimes the processes--the management 
changes that come into place can be quite dramatic.
    For instance, in the Pacific Lumber HCP for spotted owls, 
it is a performance-based standard, and if the spotted owls 
actually decline, the HCP moves to a no-take situation. That 
is, the company is not allowed to do anything which would harm 
the owl any further--that is, no more timber harvest. That's a 
fairly substantive change which is written into the plan.
    So adaptive management is really and the limits to adaptive 
management can often be seen as a test of our scientific 
ingenuity, and if we do the job right we can probably cover 
many of the circumstances that can be foreseen.
    Senator Crapo. Thank you.
    And, Ms. Hood, you indicated in your testimony--I think you 
used the word ``earned assurances'' as opposed to ``no 
surprises.''
    Ms. Hood. Yes.
    Senator Crapo. Would you like to comment on this entire 
question in that context?
    Ms. Hood. Yes. I think, like I said in my testimony, I 
think part of the problem that we've had with the No Surprises 
assurances is that they are granted as part of the normal 
approval process with no additional requirements associated 
with them. So, as we've seen from the other witnesses today, 
part of those approval standards can be--the bottom line can be 
quite low at times.
    If minimization and mitigation to the maximum extent 
practicable does not mean recovery in some cases, then that can 
be a problem for HCPs. And also the jeopardy standard is also 
not a strong standard for HCPs, as well. So what we'd like to 
see is earned assurances that are granted, as an incentive to 
go beyond what was required previously to earn those assurances 
through building in good adaptive management programs, like Dr. 
Courtney said, ``Sometimes these adaptive management programs 
can be quite complex and costly, and perhaps they should be 
rewarded with assurances for incorporating such adaptive 
management.''
    But right now we are in the situation where these 
assurances are granted and landowners are basically asked to 
incorporate these adaptive management flexibility programs. 
What we'd like to see is assurances be more of an incentive, 
and also to have some kind of economic mechanism whereby, when 
assurances are granted and we do need to step in and provide 
additional mitigation for impacts that were not anticipated, 
that there is some kind of economic mechanism for paying for 
some of that.
    And I would like to go back to one example where, over the 
decades, our scientific understanding has changed very rapidly 
about endangered species management. If we look back on the San 
Bruno Mountain HCP, the crafters of that HCP envisioned that 
for substantial areas on San Bruno Mountain, they wanted to 
clear out some of the exotic vegetation and restore some of the 
natural habitat for the butterflies that are imperiled on the 
mountain.
    Under that program, it has been much more difficult than 
they thought it would be to actually remove that exotic 
vegetation and restore that habitat, and it has been a lot more 
costly than they had anticipated, as well.
    So I think that, even going back to the first HCP, we can 
see that over time we need to be able to adjust the amount of 
money available and how that money is distributed to 
management.
    Senator Crapo. Mr. Hicks, did you want to comment on that?
    Mr. Hicks. Yes, Senator.
    In the practical discussions of development of an HCP--and 
I bring to case the native fish HCP, which we've been working 
on now for a couple of years with the agencies--really a major 
sort of rule of the road is that you either front-end load a 
lot of science and information on the species you would like to 
have addressed in the plan at the beginning, or else you'd 
better be prepared to be doing a lot of adaptive management and 
monitoring at the back end of the plan in order to verify or 
prove out some of the notions and hypotheses you have to begin 
with.
    This has really been a major counsel that I've given to our 
company, and a way that landowners should prepare to do HCPs is 
do as much on the front end science as you can so that you 
don't have to do as much on the back end to assure the agencies 
and the public that you know what you're doing.
    You won't be able to escape that. There is an obligation 
now, and it comes up all the time in discussion with the 
Services. It is: What sorts of issues should we put into that 
adaptive management corral and address at the end of the day? 
And usually, at least in my situation, one of the final stages 
of the HCP development we are in right now with the Services is 
that adaptive management program, because at this point we've 
discussed many of the technical issues. We've decided which 
ones we have confidence in and which ones we don't, and so 
adaptive management is usually that last thing and should be 
that last thing you look at so that you make sure that those 
questions are answered, especially in the case of some 
applicants where they may not have a lot of information at the 
front end.
    And, finally, one way to address the issue of risk is to 
shorten the permit period. For a landowner, if the agencies are 
uncomfortable with the approach he is taking, then, instead of 
it being a 30-year plan, it may be a 10-year plan at that end, 
so there are some ways in the process to compensate for that 
issue.
    Senator Crapo. Thank you.
    And did anybody else want to add anything else to this 
issue?
    Mr. O'Connell.
    Mr. O'Connell. Yes. I wanted to--I'm sorry, I'll save it 
for another issue. That's OK. It's not on this particular----
    Senator Crapo. Go ahead if you've got something on your 
mind.
    Mr. O'Connell. Yes. Actually, I did want to talk about one 
thing that I do feel is important, which is the small landowner 
issue that came up earlier.
    Senator Crapo. Yes.
    Mr. O'Connell. A question that is frequently asked when we 
talk about regional-scale visions and regional-scale planning 
is: How is the small landowner affected there? I think it is 
important to mention that.
    And we found that, in fact, regional conservation plans, as 
opposed to individual section 10 permits for small landowners, 
actually provide an economy of scale that eases that burden for 
small landowners. Most of the small landowner issues that arise 
are in urbanizing areas. That's where the parcels are smaller. 
And, in fact, in most of those areas local governments have 
been able to take on the burden of implementing the planning 
program and the conservation program, and that then provides a 
secondary benefit to small landowners in that they may be able 
to develop their entire parcel or they may be able to have 
their entire parcel bought if their entire parcel is one that--
--
    Senator Crapo. So a small landowner, if there was a 
regional plan in place, could just make sure that they were 
complying with the regional plan and take the benefit of the 
plan?
    Mr. O'Connell. That is exactly correct. And it ranges from 
the extreme of their entire parcel is important for 
conservation, and so therefore it can be purchased at fair 
market value, or their entire parcel does not fit into a 
regionally sound scientific conservation strategy and therefore 
it can be entirely developed, whereas if you were focusing on 
it as an ownership, exclusively, without that regional context, 
you may say, ``Well, your quarter acre, you have to do 
something on that,'' when, in fact, that quarter acre and the 
compensation for it may have very little consequence. So that's 
an economy of scale that is important for small landowners.
    Senator Crapo. Dr. Courtney.
    Mr. Courtney. I'd just like to followup on what Mike just 
said, and to expand also to address some of the issues about 
adaptive management and No Surprises in the context of the 
small landowner, because on a small HCP the potential for 
adaptive management is really non-existent.
    Something that came up out of our workshop in Santa Barbara 
was the notion that adaptive management sometimes operates on 
different scales to that of the individual HCP, and so, from a 
scientific point of view, we are allowed to learn from 
experience, but that doesn't factor into the small HCPs which 
are a done deal.
    For that to work--and so the particular message here is 
that adaptive management in this context is no conflict at all 
with No Surprises, but for that to work, what you need is 
monitoring and you need a regional perspective, a regional 
plan.
    You've heard from many of the witnesses, and I think we 
would all support the notion of regional planning which 
included a coordination of a monitoring program which is yet to 
happen in most circumstances, and most scientists I think would 
support such a thing.
    Mr. O'Connell. I'd encourage you to take a further look at 
what we've been working on in southern California because it 
does try to take these concepts, experiment with these concepts 
a step further on just those issues.
    Senator Crapo. I want to thank the panel for the testimony 
you've presented. We're running into some time constraints 
here, and so I'm not going to be able to ask any more of my 
questions right now. I've got pages and pages of questions 
here.
    The testimony we've heard over the last 2 days has helped 
me to identify a lot of not only issue areas but solution areas 
and potentials for finding the common ground between the 
competing concerns that I think could help us move forward and 
improve the HCP process.
    As I said, I do have a lot more questions, and I'd like to 
be able to spend more time here but can't, and in that regard I 
would like to submit questions to each of you, and I believe 
you'll probably get questions from some of the other Senators, 
as well. We'd ask that you respond to those.
    [The information referred to follows:]
    Senator Crapo. The committee is trying to develop a 
solution here and find something that can avoid the traditional 
battles we have over endangered species reform actions and form 
the basis of a positive step forward that can be achieved in 
the context of what is politically doable at this point in 
time, and I think that a lot of ideas that have been presented 
in your testimony here today, as well as in your written 
testimony, are good candidates for that type of reform.
    So if you would be willing, I will submit a number of 
questions to each of you, as well as ask you to be available 
for some of the other Members who were not able to make it here 
because of their schedules.
    Without anything further, this hearing is adjourned and all 
witnesses are thanked for their attention and their efforts.
    [Whereupon, at 11:36 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
 Statement of Donald J. Barry, Assistant Secretary, Fish and Wildlife 
                 and Parks, Department of the Interior
                              introduction
    Mr. Chairman and Members of the Subcommittee, I am pleased to be 
here today to talk about habitat conservation plans (HCPs). The Fish 
and Wildlife Service and the National Marine Fisheries Service have 
been using these plans as an important tool to conserve and protect 
threatened and endangered species. My testimony will discuss the 
science used in HCPs and provide specific examples. A list of all of 
the HCPs approved by the Service as of July 16, 1999 is attached.
   habitat conservation plans represent an innovative and successful 
                             permit program
    HCPs are authorized by Section 10(a)(1)(B) of the Endangered 
Species Act (ESA) to allow the incidental take of listed species in the 
course of an otherwise lawful activity. The Service has experienced 
tremendous growth in the demand for HCPs in recent years. You only need 
to look back to 1992 to see how different the landscape has become. In 
1992, 14 HCPs had been approved. As of today, we have 246 HCPs covering 
more than 11 million acres of land, providing conservation for 
approximately 200 listed species. More than 200 HCPs are in some stage 
of development. Numerous success stories are contained in the HCPs 
already approved, and we are currently working on a number of strong 
partnerships with local governments and the private sector through the 
HCP process.
    The HCPs that are in place today, and the demand for additional 
HCPs, clearly show a change in how Federal agencies work with private 
parties for species conservation. We have become partners with 
landowners. Local governments have incorporated HCP development into 
their planning process for growth in an unprecedented manner. The HCP 
process also can provide flexibility for landowners by including 
unlisted species, which enables the process to employ an ecosystem and 
landscape-level approach. This proactive approach can reduce future 
conflicts and may even preclude the listing of species, furthering the 
purposes of the ESA.
    Except for the need for additional funding, the Service is very 
pleased with where the program is today. The quality of approved HCPs 
is constantly improving, and we are making continuous strides in 
endangered species conservation through the use of this tool. In 
collaboration with the National Marine Fisheries Service (NMFS), the 
Service has made many refinements to the process in recent years. These 
refinements, as well as the collective knowledge gained from past 
years, are available to the public in a very useful HCP Handbook, 
issued jointly by the Service and NMFS in November 1996.
    The major strength of the HCP program is that it is a national 
scale program that readily allows for the development of local 
solutions to wildlife conservation instead of a one size fits all top 
down regulation. Applicants can explore different methods of achieving 
compliance with the ESA and choose the method that best suits them. The 
Service intends to continue to support this flexibility, and we expect 
that our increased emphasis on achieving biological goals over specific 
prescriptive measures will further applicants' flexibility.
    Without a doubt, the most frustrating issue with respect to HCPs is 
that this innovative, collaborative program is not receiving the 
necessary funding as set forth in Administration requests. HCPs also 
require money for implementation and monitoring to determine whether 
the biological goals are being achieved. The President's budget request 
for fiscal year 2000 clearly recognizes this reality. We asked for an 
increase specifically to address HCP development, monitoring and 
implementation in the fiscal year 2000 budget. However, the Senate did 
not fund our request. Without increased funding, we will not be able to 
adequately monitor HCPs to the extent desired by both supporters and 
critics of the HCP program. We encourage the members of the 
Subcommittee to support the President's fiscal year 2000 budget request 
for the endangered species program including the requested increases 
for HCPs. In the absence of adequate funding, some excellent 
opportunities may be lost or at least greatly delayed. A number of 
communities, such as Santa Cruz County, California, Laramie County, 
Wyoming, and the wheat growers in Douglas County, Washington, are eager 
to proceed with development of their HCPs and have many good ideas but 
lack the initial funding to get the process underway. As the demand 
increases, we want to approve more HCPs that incorporate sound science, 
partner with public and private parties, and create win-win solutions 
for species conservation and development.
              habitat conservation plans are working well
    In general, HCPs that are currently in operation are working quite 
well. First, the permitters have displayed a high level of commitment 
to and compliance with their HCPs. In fact, many permitters have shown 
enthusiasm in sharing their early successes with the Service and the 
public. Second, although the program is young, tangible results are 
already apparent in many approved HCPs. The following examples 
represent just a few of the HCPs that are accomplishing their 
objectives as expected.
Red-cockaded woodpeckers
    The Service's red-cockaded woodpecker (RCW) program provides a 
showcase of how Section 7 and Section 10 work together across the 
landscape to achieve conservation. For private lands, the program 
emphasizes implementation of novel and flexible conservation 
strategies, including the HCP process and Safe Harbor agreements, both 
of which are contributing significantly to species recovery objectives.
    RCW HCPs provide an excellent example of the ability of HCPs to 
involve a wide array of applicants, both large and small, who are 
interested in finding solutions to endangered species land management 
challenges. Past and current applicants include large industrial forest 
landowners, small ``mom and pop'' woodlot owners, development 
corporations, quail plantation owners, non-industrial forest 
landowners, and State wildlife agencies. The 12 non-industrial timber 
RCW HCPs that have been completed to date and the five currently being 
developed exemplify the versatility and appropriateness of the HCP 
process. The 12 permits that have been issued in seven states 
authorized the incidental take of 29 RCW groups; the mitigation for 
this incidental take involved the potential establishment of 54 new RCW 
groups on other private and/or public properties. Tangible conservation 
benefits delivered by HCPs include: (1) increasing the size and 
therefore the demographic viability of recovery or support populations, 
(2) stabilizing and/or maintaining small, at-risk recovery or support 
populations, and (3) rescuing very small, demographically isolated 
(i.e., biologically doomed) RCW groups from fragmented landscapes. 
Seven of the 12 HCPs have been successfully completed with all 
mitigation requirements being met and the other five are in progress 
and are fully expected to succeed.
    With respect to industrial timber lands, the Service has entered 
into conservation partnerships with nine corporations (Georgia-Pacific, 
Hancock Timber Resource Group, Champion International, Westvaco, 
Weyerhaeuser, Potlach, International Paper, Norfolk Southern Railroad, 
and Temple Inland). In total, these corporations have established 
115,560 acres as RCW management areas and are protecting 309 RCW 
groups, with the goal of raising this number to 338-RCW groups.
    The Safe Harbor concept originated in the North Carolina Sandhills 
as an innovative response to a decline in available unoccupied RCW 
habitat. In order to encourage landowners to manage their land in a way 
that benefits RCWs, the Service announced the Safe Harbor policy, which 
provides assurances that RCWs attracted to property as a result of 
active management for the species will not cause new restrictions to 
attach to that property.
    Safe Harbor effectively eliminates the regulatory disincentive that 
is normally associated with attracting listed species to new lands and, 
thus far has proven to be successful in attracting landowners who 
otherwise may not participate in species protection programs. As of 
October 1, 1998, the number of acres involved in the North Carolina 
Sandhills Safe Harbor program included: 19,023 acres enrolled under 23 
agreements; 6,380 acres under 4 agreements awaiting landowner 
signature; and, 7,174 acres under 16 agreements currently in 
preparation. The 23 currently enrolled parcels provide nesting and 
foraging habitat for 46 groups of red-cockaded woodpeckers. Interest in 
the Sandhills Safe Harbor Program has far exceeded our expectations. In 
less than 3 years, 43 landowners have been enrolled or are in the 
process of enrolling in this program; a total of 32,577 acres will be 
enrolled by the end of fiscal year 2000. The size of currently enrolled 
properties ranges from 3 to 3,300 acres. By reducing and/or eliminating 
regulatory disincentives, Safe Harbor has provided an effective way to 
increase available RCW habitat and population numbers while providing 
landowners with land management flexibility. The program has involved a 
diversity of landowners. They include golf course owners, nonindustrial 
forest landowners, horse farms, and small property landowners.
    In response to the overwhelming success of Safe Harbor in the 
Sandhills of North Carolina, the Service has issued permits to states 
that provides landscape level conservation. To date, two Safe Harbor 
permits have been issued, both in 1998; one to the South Carolina 
Department of Natural Resources (SCDNR) and the other to Texas Parks 
and Wildlife Department (TPWD). The results have been outstanding. As 
of June 1999, South Carolina has enrolled 16 landowners with 72,223 
acres, harboring 123 RCW groups; nine landowners have pending 
agreements which will add another 31,496 acres and 41 RCW groups to the 
program. Most of the properties enrolled in South Carolina are quail 
hunting plantations. In Texas, 2 landowners (both industrial forest 
landowners) have enrolled 2,285,260 acres (7,000 dedicated to RCW 
management) and 17 RCW groups in the program. In cooperation with the 
Service and other partners, the State wildlife agencies in Georgia, 
Alabama, and Louisiana have completed final draft statewide RCW Safe 
Harbor plans for their states. The Service is currently in discussions 
with the states of Virginia, Florida, North Carolina, and Mississippi 
regarding development of statewide Safe Harbor programs for RCWs.
    The success of the Service's comprehensive private lands strategy 
has resulted in significant improvements in the status of the species 
since the early 1990's. For example, many Federal populations are now 
increasing or stabilized, 100,000's of acres of private lands are 
``officially'' enrolled in RCW conservation (compared to none in 1990), 
and many State properties are developing RCW conservation/management 
plans. In 1995, based on a comprehensive range wide survey, the Service 
estimated the RCW population at 4,694 groups. In 1998, using the same 
survey methodologies, the Service estimated the range wide population 
at 4,950 groups; this-increasing population trend is expected to 
continue and indeed accelerate. The foundation of the entire RCW 
program is based on strong and meaningful partnerships between the 
private, State and Federal sectors. These partnerships have the common 
goals of mutual respect, trust, honesty, and the best available 
science. The highly successful application of the Service's RCW private 
lands strategy has clearly shown that Section 10 of the ESA can make 
integration of wildlife conservation with the interests and objectives 
of private landowners a reality.
Plum Creek Timber I-90 HCP
    The Plum Creek Timber Company I-90 HCP in Washington State is 
providing conservation benefits for 11 listed species and numerous 
unlisted species through ecosystem management efforts across 170,000 
acres. The HCP was designed to support and complement the conservation 
efforts of the Northwest Forest Plan on adjacent Federal lands.
    Large riparian buffers, similar to those identified in the 
Northwest Forest Plan, provide protection for bull trout and anadromous 
salmon by reducing sedimentation, maintaining cool temperatures, and 
providing large woody debris for pool formation. The HCP provides 
habitat for nesting owl pairs currently in an area of concern for 
north-south connectivity in the Cascades. Surveys required under the 
HCP have led to the discovery of two species that were not known to 
occur in these watersheds: the marbled murrelet and the Larch Mountain 
salamander.
    This HCP is science-based and that science was documented in the 13 
peer-reviewed technical papers that accompanied the HCP as it underwent 
public comment. Significant amounts of new information were gathered 
during the development of the 13 technical papers. For instance, 
reproduction and survival information since 1993 is now available for 
almost every owl pair in the planning area. We expect that the first 
monitoring and research progress report, due in December, will include 
updates of habitat inventory information, plus progress reports of the 
avian research being done in conjunction with the University of 
Washington, and status of research design for the amphibian research 
projects.
    Adaptive management is a central concept of the Plum Creek I-90 HCP 
and is explicitly built into the strategies for conserving riparian 
areas, spotted owls, and amphibians. The parts of the HCP containing 
the greatest amount of scientific uncertainty have the most explicit 
adaptive management provisions associated with them. Adaptive 
management allows for greater flexibility and increases in protection 
when resources need the added protection. For instance, if watershed 
analysis indicates that riparian buffers need to be wider, then Plum 
Creek has agreed to be bound by the science and will provide wider 
buffers.
    Plum Creek takes pride in their HCP and is fully achieving or 
exceeding the level of species protection envisioned during development 
of the HCP. Pre-harvest reviews have been conducted with State 
agencies, Tribes, and environmental groups. Minor modifications have 
been made to the satisfaction of both Plum Creek, the Service, and 
NMFS. The Services and Plum Creek are maintaining a close working 
relationship with efficient communications.
Metro-Bakersfield HCP
    Approved in August 1994, Metro-Bakersfield HCP addresses urban 
development and endangered species conservation. The HCP covers 261,000 
acres surrounding Bakersfield, California, in the southern San Joaquin 
Valley. The permit covers 18 species (4 listed animals, 5 listed 
plants, 3 unlisted animals, and 6 unlisted plants).
    Through March 1999, the Metro-Bakersfield HCP Implementation Trust 
has purchased 4,093 acres of habitat which has been dedicated to 
endangered species conservation and provided endowment funds for their 
management. The lands purchased are consistent with the habitat 
protection objectives of the ``Recovery Plan for Upland Species of the 
San Joaquin Valley, California.'' The purchased lands are primarily in 
areas identified as important core population areas or as important for 
maintaining connectivity of those populations. One of the most 
significant benefits has been that the public and the building industry 
now realize that development can proceed along with endangered species 
conservation. The development community, in particular, likes the 
certainty and timeliness of the process. By adopting the process, we 
can achieve conservation for these species on private lands that may 
otherwise not occur.
Small Landowner HCP
    The HCP process also serves small landowners. One owner of 
approximately 80 acres of forest land in Monroe County, Alabama, 
developed an HCP with the Service in 1994. This landowner sought an 
incidental take permit from the Service for the threatened Red Hills 
salamander in order to selectively harvest pine timber from portions of 
her land. This HCP met the goals of the landowner and protected the Red 
Hills Salamander by: (1) allowing timber revenue to be generated from 
the land while continuing to protect habitat for the species; (2) 
eliminating or minimizing disturbance (cutting) within preferred and 
marginal habitat for the species; (3) limiting the use of chemicals 
within the marginal habitat zone; and (4) requiring certification and 
the conservation briefing of loggers prior to conducting logging 
activities that may result in take of the species. This HCP provides 
for conservation of forest habitat above that provided by Alabama Best 
Management Practices (BMP) for logging. In addition, it provides for 
certification and education of loggers on ways to minimize impacts 
beyond those identified by Alabama BMPs. The HCP will also protect 
currently suitable habitat for the species and allow for further study.
    science and scientific uncertainty in habitat conservation plans
    We cannot conserve our nation's threatened and endangered species 
on Federal lands alone. Therefore, it has been this Administration's 
priority in shaping ESA policy to provide incentives to conserve 
species on non-Federal lands. The HCP program has always recognized 
that there is a degree of uncertainty in conservation biology. The 
first HCP, San Bruno Mountain, incorporated approaches for addressing 
unexpected changes. The HCP program subsequently developed into an 
adaptable process for many different situations to address varied 
species needs and activity impacts. The HCP program is a versatile 
program that allows applicants to create plans that fit their needs as 
well as the conservation needs of species.
    When developing an HCP, the Service is required to use the best 
available scientific information. Such data come from a variety of 
sources: scientific literature and peer-reviewed publications, inhouse 
expertise, other State or Federal agencies, academia, and non-
governmental organizations, to name a few. For listed species, the 
Service can draw upon a number of existing information sources, all of 
which have gone through peer and public review. ESA listing packages 
are used to gain further species-specific biological information, and 
where possible, the Service will draw upon recovery plans to identify 
conservation and monitoring measures and objectives for listed species. 
HCPs are designed to minimize and mitigate the impacts to the species 
under consideration in the HCP as well as ensure that the permitted 
activity does not appreciably reduce the likelihood of survival and 
recovery of the species. Determining whether an HCP meets these 
criteria is based on a biological analysis using the data that are 
available.
    Information used in HCPs can range from factual information such as 
baseline data and survey results, to complex research and adaptive 
management, based on ecological theory and models. For example, impact 
and take analyses of covered species can cover a wide spectrum of 
scientific issues: population distribution and density; meta-population 
dynamics; net reproductive success; population viability analyses; 
pollution; and habitat fragmentation, among others. Likewise, 
mitigation and monitoring strategies may look at additional factors 
such as the impact of vegetation successional stages on the covered 
species, impacts from invasive alien species over time, and increased 
predation and competition.
    The biologists negotiating the HCPs are limited by the constraints 
of time and information when analyzing impacts under the HCP but have 
an array of approaches to choose from when developing mitigation and 
monitoring strategies. Choosing the best approach to take is based upon 
a risk analysis of the conservation program. The Service builds upon 
the knowledge gained through implementation of each HCP to improve 
future HCPs. For instance, in March of this year, the Service, along 
with NMFS, released a draft five-point policy as an addendum to the HCP 
Handbook. This draft addendum proposes pathways to accommodate 
biological uncertainty while providing regulatory certainty to the 
permitters.
Biological Goals and Objectives are the Scientific Foundation of HCPs
    Biological goals and objectives are the broad guiding principles 
for the operating conservation program of the HCP; they are the 
rationale behind the minimization and mitigation strategies. HCPs have 
always been designed to achieve a desired biological purpose or target, 
yet they may have not specifically stated those biological goals or 
objectives. In the future, we plan to better and more consistently 
define the desired biological outcome. This rather simple concept of 
biological goals and objectives facilitates communication between the 
scientific community, the agencies, and the applicants by providing 
direction and desired biological conditions and targets for the 
development of these HCPs. The specification of the biological goals 
and objectives of an HCP is perhaps an overlooked yet significant piece 
to the HCP program.
    There are two ways to base the design of an HCP: prescription-based 
or results-based. A prescription-based HCP outlines a series of 
specified tasks to be implemented; these tasks are designed to meet the 
biological outcome. This type of HCP may be most appropriate for 
smaller permits, particularly where the permitter does not have an on-
going management responsibility. A results-based HCP has greater 
flexibility in its management, allowing the permittee greater latitude 
to pick and choose among various conservation tools, so long as they 
achieve the intended result (e.g., biological goal or objective), 
especially if they have a long-term commitment to the conservation 
program of the HCP. The Mid-Columbia Public Utility Districts' HCP is 
an example of a results-based HCP. HCPs can also be a mix of the two 
strategies, where the Service and the applicant determine the range of 
acceptable and anticipated management adjustments necessary to respond 
to new information. This process will enable the applicant to assess 
the potential economic impacts of adjustments before agreeing to the 
HCP while allowing for greater flexibility in the implementation of the 
HCP in order to meet the biological goals and objectives of the plan.
Use of Adaptive Management to Deal with Uncertainty
    Adaptive management refers to a structured process for learning by 
doing. The ``structured'' portion of this definition is important for 
two reasons. First, it becomes a formalized and mutually agreed upon 
process for incorporating change--a feed-back loop into management. 
Second, it defines in advance the sideboards within which the permittee 
will be expected to operate, including any possible future adjustments 
in the HCP's operating conservation program, in order to fulfill their 
permit responsibilities. As applied to HCPs, it is a method for 
addressing significant uncertainty in the conservation of a species 
covered by an HCP. In an HCP, adaptive management is used for examining 
alternative strategies for meeting measurable biological goals and 
objectives through research and/or monitoring, and then, if necessary, 
through the adjustment of future conservation management actions 
according to what is learned. Adaptive management is necessary in HCPs 
where there is either significant biological uncertainty or a 
significant risk exists due to uncertainty about the impacts of the 
activity and how we address those impacts.
    Some people in the scientific community maintain that adaptive 
management can only be appropriately done using a strict experimental 
design, which would compare specific treatments to controls. While this 
is certainly one ideal approach that could be utilized, we believe that 
meaningful adaptive management can be done without this strict and 
expensive adherence to standards of experimental design. Additionally, 
we do not believe it to be appropriate to burden the landowner with 
research that is not proportional to their activity. However, we can 
incorporate flexibility into medium and small scale HCPs so as to 
utilize the results of on-going research and monitoring programs in 
other areas.
    Often, there is a direct relationship between the level of 
biological uncertainty for a covered species and the degree of risk 
that an incidental take permit could pose for that species. In such 
cases, the HCP may need to be relatively cautious initially with a 
well-integrated monitoring program and adjusted later based on new 
information. A practical adaptive management strategy of a long-term 
HCP should include biological milestones that are reviewed at scheduled 
intervals. If there is a relatively high degree of risk, early and 
frequent milestones may need to be set and previously agreed upon 
adjustments made accordingly.
Permit Duration Accounts for Implementation of Conservation Measures
    The average duration of HCP incidental take permits issued to date 
is 25 years; pending applications for incidental take permits currently 
have an average requested duration of 30 years. Different permit 
durations may be necessary or desirable to account for both the varying 
biological impacts resulting from the proposed activity (e.g., long-
term chronic effects to a riparian zone resulting from timber rotations 
and treatments versus short-term intensive effects from a real estate 
subdivision build out), and the nature or scope of the permitted 
activity and conservation program in the HCP (e.g., short-term housing 
or commercial developments versus long-term sustainable forestry). 
Longer permits ensure long-term commitments to the HCP and typically 
include up-front contingency planning for changed circumstances to 
allow appropriate changes in the conservation measures. By implementing 
a long-term permit, the permittee takes on ownership of the 
conservation measures within the HCP, a plus for species conservation.
    Factors that are considered when determining permit duration 
include the duration of the applicant's proposed activities and the 
duration of expected positive or negative effects on the covered 
species. For instance, if the permittee's action or the implementation 
of their conservation measures occur over a long period of time, such 
as timber harvest management, the permit would need to encompass that 
same time period.
    The Service will also consider the extent of information underlying 
the HCP, the length of time necessary to implement and achieve the 
benefits of the operating conservation program and the extent to which 
the program incorporates adaptive management strategies.
No Surprises Assurances Stimulate Planning for Uncertainty
    No Surprises Policy and HCP assurances were designed to be 
incentives to rechannel habitat loss through the HCP permitting program 
by offering regulatory certainty to non-Federal landowners in exchange 
for a long-term commitment to species conservation. Essentially, 
private landowners are assured that if ``unforeseen circumstances'' 
arise, the Service, or NMFS, will not require the commitment of 
additional land, water or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
beyond the level initially agreed to in the HCP without the consent of 
the permitter.
    Given the significant increase in landowner interest in HCPs since 
the development of the No Surprises Policy, the Service believes that 
the Policy has accomplished one of its primary objectives--to act as a 
catalyst for integrating endangered species conservation into day-to-
day management operations on non-Federal lands. No Surprises assurances 
have also provided a catalyst for contingency planning within HCPs. 
Most possible changes in circumstances during the course of an HCP can 
reasonably be anticipated and planned for in the conservation plan. 
Plans should describe the modifications in the project or activity that 
will be implemented if these circumstances arise. Planning for changed 
circumstances and adopting adaptive management strategies proactively 
within the HCP will better serve the permittee and endangered species 
conservation than a reactive ``band-aid'' fix later. Therefore, these 
contingency plans and adaptive management strategies are part of the 
deal and allow the Service and the permitter to adjust the conservation 
measures if necessary.
                               conclusion
    The HCP program has seen many changes since 1983. We have created a 
conservation program that empowers the applicants to integrate 
endangered species conservation into their activities while using the 
best available science and approaches. The ideas that have been 
generated have served to strengthened the HCP program. We remain 
committed and open to learning from our experiences and considering new 
ideas. As we look to the future of the HCP program, we see many more 
success stories. However, it will not be easy to get there. As the 
demand for HCPs increases and more HCPs are approved, providing careful 
attention to each HCP will become more and more challenging. Challenges 
facing the HCP program include: ensuring adequate implementation and 
monitoring through increased landscape-level planning with inadequate 
resources, developing partnerships with the scientific community to 
better utilize their expertise in HCP development and implementation, 
and continuing to learn and improve the program while still retaining 
incentives to landowners to develop and implement conservation 
measures.
    Mr. Chairman, this concludes my testimony. I would be happy to 
answer any questions that the Subcommittee may have.
















































                               __________
   Statement of Monica Medina, General Counsel, National Oceanic and 
           Atmospheric Administration, Department of Commerce
    Mr. Chairman, my name is Monica Medina, and I am General Counsel of 
the National Oceanic and Atmospheric Administration (NOAA). Thank you 
for the opportunity to testify on the science that serves as a basis 
for Habitat Conservation Plans (HCPs) agreed to under the Endangered 
Species Act (ESA).
                         the importance of hcps
    NOAA is responsible for 52 species listed under the ESA, including 
salmon, sea turtles, whales, dolphins, seals, and other species. The 
breadth of our challenge in recovering these species is great, so we 
cooperate with non-Federal landowners such as states, Tribes, counties, 
and private entities to do this important job. For instance, we have 
the challenge of ensuring the survival and recovery of salmon across a 
geography that spans the Pacific coastline from the Canadian border to 
Los Angeles. In addition, the highly migratory nature of Pacific salmon 
places them in many areas in numerous states, impacting large numbers 
of stakeholders, many of whom are private citizens who hold large 
tracts of land valued as both commercial property and salmon habitat.
    Long-term management of habitat, such as that done through HCPs 
with non-Federal landowners, has proven to be the most effective means 
of recovering species. HCPs are also a popular conservation tool for 
both the private property owner and NOAA. So far, NOAA has issued only 
2 incidental take permits associated with an HCP, but we are a party to 
5 Implementing Agreements for HCPs issued by the Fish and Wildlife 
Service (FWS), and are currently negotiating approximately 35 
additional HCPs. All of the large-scale HCPs developed by NMFS concern 
salmon. NOAA has issued joint guidance with the FWS on how to assist 
applicants in developing HCPs. Our HCP handbook describes the 
information we need to evaluate whether these plans will be effective 
and accomplish their goal of minimizing and mitigating the effects of 
taking threatened and endangered species. The Services assist the 
applicant in exploring alternatives, and are flexible when prescribing 
mitigation measures. We do not impose one-size-fits-all prescriptions 
on applicants. When participants provide an unusual, but scientifically 
credible analysis of effects, or a creative but effective solution for 
mitigating the effects of incidental taking, we will seriously consider 
their approach.
    Flexible implementation of the ESA has become the hallmark of this 
Administration's efforts to conserve species, and it is evidenced in 
our draft 5-point policy with FWS, proposed last March. One of the 
important aspects of this policy is adaptive management. Adaptive 
management is an essential component of HCPs when there is significant 
uncertainty or an information gap that poses a significant risk to the 
species. Rather than delay the process while sufficient information is 
gathered to predict the outcome accurately, the Services and applicants 
jointly develop an adaptive management strategy, assuring all parties 
of a suitable outcome. For example, a cautious management strategy 
could be implemented initially, and through exploration of alternate 
strategies with an appropriate monitoring program and feedback, the 
permitted could demonstrate that a more relaxed management strategy is 
appropriate as time goes on.
                                science
    NOAA is required by the ESA to use the best available information 
in making its determinations, including all HCP permit decisions. This 
means that our agency is legally required to utilize the best available 
science--data, analysis, models, and synthesis. Our scientists stay up-
to-date in their respective fields, and use state-of-the-art analytical 
techniques and methods to assess and understand the species and 
ecosystems to be managed under HCPs.
    For example, in development of the aquatic management component of 
a timber HCP, our biologists work closely with academic, state, tribal, 
and local agency scientists to gather all relevant data for the 
watershed, including hydrology, salmon population dynamics, sediment 
dynamics, water quality, and forest successional structure. When 
necessary, additional data is collected in the field to augment 
existing information. Management goals and objectives are developed to 
ensure healthy spawning grounds, good quality rearing habitat, suitable 
temperatures, and safe fish passage conditions. The riparian corridor 
flanking the river is managed to ensure that the stream channel is 
maintained as a dynamic, natural system with intact physiological, 
biological, and chemical processes.
    However, it is not a simple matter to manage ecosystems across 
large areas, particularly when this management includes significant 
human alterations from resource extraction or infrastructure 
development. We have solid, reliable, quantitative information on the 
temperature, water flow, fish passage, and water quality needs of 
salmon, but more subtle factors that may determine the long-term 
success or failure of ecosystem and endangered species management are 
only just beginning to be understood . New areas of scientific research 
such as nutrient cycling, food chain dynamics, biodiversity, population 
genetics, and climate change are at an emerging stage--many significant 
new questions and concerns have been identified, but few practical 
tools and methodologies have emerged.
    Our scientists fully recognize this uncertainty, and our HCP 
agreements are designed to manage biological risk in spite of the fact 
that in many cases we are implementing new, landscape-scale, ecological 
experiments. Where we have solid, quantitative information, such as the 
temperature needs of juvenile salmon, we can set specific, quantitative 
temperature targets that the management regime must achieve. In areas 
where the science is less developed, HCPs typically include more 
qualitative goals, such as a multi-tiered forest canopy with a diverse 
age structure or maintenance of insect prey biodiversity.
    Because HCPs are at the limits of our scientific capability and 
knowledge, extensive monitoring and adaptive management strategies are 
essential. By monitoring as many indicators of ecosystem and species 
health as possible, we can adjust our management strategies as we 
discover how the ecosystem responds to our management regimes, If we do 
a good job of monitoring and assessing our management, we can learn 
from the successes and failures of the preceding HCPs and apply that 
new knowledge in new HCPs.
    Our scientists work closely with their scientific peers in academia 
and other agencies to review ecosystem management approaches. We 
welcome scrutiny from the scientific community and the informed public 
as this helps to ensure that the HCPs are of the highest quality. HCP 
programs are subject to intense debate and review within the agencies, 
as well as in professional conferences and peer-reviewed journal 
articles. Furthermore, all HCPs must fully comply with the National 
Environmental Policy Act (NEPA) and the ESA, which ensures ample review 
and comment on all science and management approaches.
                             hcp successes
    At this time, I would like to discuss some of our science-based 
HCPs that incorporate the principles just mentioned.
    The Mid-Columbia draft HCP, now ready for public review and comment 
and expected to be signed this year, is an example of how NOAA is using 
performance-based goals in addition to prescriptive measures. This HCP 
is focused on improving survival of salmon migration through the Mid-
Columbia segment of the Columbia River near Wenatchee, Washington. 
Historical fish losses at the Mid-Columbia dams have been significant--
an average of 15 percent loss of juvenile salmon per dam. The goal of 
the HCP is no net impact to salmon from the three hydro-electric dams 
and associated reservoirs operated by the two Public Utility Districts 
(PUDs). The Federal and State agencies' fisheries experts agreed that a 
maximum amount of unavoidable project mortality was 9 percent. Required 
fish survivals are expressed in two ways--95 percent juvenile fish 
passage at each dam, and 91 percent survival at each dam for both adult 
and juvenile fish.
    Specific methods to attain the 91 percent project survival were not 
described, but would be left to the project operators for the first 5 
years of the HCP (thereafter it is a joint process with the NMFS and 
FWS). Studies to develop the fish-survival improvements will use the 
best technology and methods available and review of study proposals 
will be done collaboratively. In addition to the FWS and NMFS, 
oversight will be provided by the parties to the negotiations--the 
State agencies, local Tribes, and an environmental group.
    Compensation for the 9 percent unavoidable fish loss will be met by 
a combination of hatchery production (7 percent) and tributary 
restoration (2 percent). A tributary habitat conservation fund 
established by the PUDs would be managed collaboratively to identify, 
design, construct, and monitor projects to increase natural fish 
production in the four tributaries (Wenatchee, Entiat, Methow and 
Okanogan rivers). The hatchery production would also be overseen by the 
broader group and designed to help recover listed species. This effort 
would be state-of-the-art in regards to ESA concerns (i.e., designed to 
produce fish in a manner consistent with recovering listed plan species 
and not deleteriously affecting other listed non-plan species such as 
Snake River salmon). In addition, the HCP contains detailed schedules 
and contingencies for every part of the agreement.
    The Washington State Department of Natural Resources (WDNR) HCP was 
signed by the FWS in January, 1997. NMFS signed the Implementing 
Agreement at that time as it did not have any listed species covered by 
the HCP; and then issued an incidental take permit in June, 1999 for 
recently listed salmon and steelhead. The HCP area covers 1.4 million 
acres of forest land in western WA and includes more than 133,000 acres 
of streamsides and unstable slopes around small headwater streams. The 
HCP employs a multi-disciplinary approach to forest landscape 
management. A Science Team, drawn from research and management 
scientists, was appointed by WDNR to assess conservation options for 
key species of fish and wildlife. The scientific record includes 
descriptive sections on species, habitats and potential impacts in the 
HCP and related NEPA documents (draft and final Environmental Impact 
Statements). In addition, there are published reports to the WDNR HCP 
Science Team that evaluated the likely effectiveness of a range of 
options for management of salmon, spotted owl, and marbeled murrelet 
habitats. The reports describe and rank various ways to meet, for 
example, the Science Team's objective to provide habitat that supports 
viable and well-distributed populations of salmon. The WDNR HCP 
includes several innovative features designed to advance the science of 
forestry and landscape conservation. A large block of State forest 
lands (264,000 acres, or almost 20 percent of the total plan area) is 
set aside specifically for watershed-scale experimental forest 
management. Another feature is validation monitoring that goes beyond 
the required HCP monitoring for compliance and effectiveness. Key 
assumptions about management measures will be tested with a variety of 
methods, including long term paired-watershed studies.
    Implementation of the Pacific Lumber HCP, issued in February, 1999 
and covering 210,000 acres, has begun in earnest with review of timber 
harvest plans and formalization of watershed analysis and monitoring 
programs. The foundation of this plan rests upon watershed analysis, 
which is the process used to tailor site-specific prescriptions to 
conserve salmon on a watershed by watershed basis. This process entails 
detailed scientific analysis of each watershed's unique physical and 
biological characteristics and history of past natural and 
anthropogenic disturbance. The analysis will address how forest 
practices have resulted in changes in hydrology, riparian functions, or 
sediment input to streams that have resulted in adverse impacts to fish 
and fish habitat.
                            challenges ahead
    We recognize the need to increase our science effort in support of 
recovery planning, section 7 consultations, and HCP development. NOAA's 
Pacific salmon expenditures in fiscal year 1999 are expected to be $23 
million, but only approximately $8.3 million of this is being spent on 
science. Only $3.3 million is funding risk assessment wherein NOAA 
scientists do research on factors affecting survival of at-risk 
salmonids, work on evaluating conservation measures and habitat 
restoration efforts, and provide economic analyses. $3 million is 
funding habitat assessment wherein NOAA scientists do research on 
survival and productivity of salmon in freshwater, estuarine, and ocean 
habitats. $2 million is funding salmon population dynamics research, 
wherein NOAA scientists are analyzing stock abundance and distribution; 
and are undertaking life history modeling, genetic studies, population 
viability analyses, and population monitoring.
    The NMFS fiscal year 2000 ESA salmon recovery budget initiative 
requested $24.7 million in new funding to strengthen our scientific 
capabilities. For example, $5 million of this funding would be used to 
increase our ability to partner with local agencies and private 
landowners in HCP development, and $4.45 million would be used to 
increase our ability to properly implement and monitor HCPs once they 
are developed. Related to this, $2.8 million would be used to improve 
our ability to analyze and assess the cumulative effects and risks to 
salmon populations caused by changes on a watershed scale. Also, $2.8 
million would be used to develop recovery plans, and $2.2 million would 
be used for new research on the factors influencing ocean and estuarine 
survival of juvenile salmon. $1 million would be used to develop 
quantitative links between habitat, human impacts, and salmon stock 
productivity; and $1 million would allow NMFS scientists to work 
closely with the Department of Agriculture and EPA on water quality 
needs. Without these increased resources, the pace and scope of HCP 
development will be greatly constrained.
                               conclusion
    In conclusion, NOAA's HCP program is showing many benefits for non-
Federal landowners as well as Federal agencies; however, it is still a 
work in progress. We are monitoring sites and adapting our management 
to what we see occurring on the landscape. HCPs are one of the major 
actions we are taking to meet the challenge of recovering salmon and 
other endangered and threatened species. HCPs are not perfect, but are 
a less confrontational and adversarial than our only alternative--
enforcing prohibitions on take under Section 9 of the ESA. We are doing 
what we can in the HCP arena to recover salmon, and ensure that future 
generations know of these magnificent fish.
    Mr. Chairman, thank you for this opportunity to testify. I look 
forward to answering any questions you may have.








                               __________
      Statement of Lorin L. Hicks, Plum Creek Timber Company, Inc.
    Good Morning Mr. Chairman and members of the Committee. I am Dr. 
Lorin L. Hicks, Director of Fish and Wildlife Resources for Plum Creek 
Timber Company, Inc. Plum Creek is the fifth largest private timberland 
owner in the United States, with over 3.3 million acres in six states. 
Owning this vast resource base of some of the world's most productive 
timberlands allows our 2,400 employees to produce value-added forest 
products to a variety of specialty markets. I have been a biologist for 
Plum Creek and its predecessor companies for over 20 years.
    But I am here today to talk about how important habitat 
conservation planning is to our leadership in environmental forestry. 
Habitat conservation planning promises to be the most exciting and 
progressive conservation initiative attempted on nonFederal lands in 
this country.
    Plum Creek is no stranger to habitat conservation planning. Plum 
Creek's Central Cascades HCP, a 50 year plan covering 285 species on 
170,000 acres, was approved in 1996. We are currently working on 
another, called the Native Fish HCP, covering I.7 million acres in 
three northwest states. A third HCP, for red-cockaded woodpeckers in 
the south, is under development with the USFWS. In 1995, we initiated 
an 83,000-acre Grizzly Bear Conservation Agreement in Montana's Swan 
Valley.
    Since 1974, few issues have been surrounded with more controversy 
than the Endangered Species Act. It is often criticized as unworkable 
and characterized as ``iron fisted''. Regardless of its image, its 
impact on landowners has been profound. My company, Plum Creek, is no 
exception--our 3.3 million acres supports no less than 12 federally 
listed species, and others such as salmon and lynx which have been 
proposed for listing.
    Ironically, the history of the ESA and Plum Creek have been 
intertwined for many years. The listing of the grizzly bear in 1975 
affected 1.1 million acres of Plum Creek land in the northern Rockies 
and confused or confounded access across Federal lands to company 
property for over a decade. The listing of the northern spotted owl in 
1990 and subsequent Federal ``guidelines'' trapped over 77 percent of 
Plum Creek's Cascade Region in 108 owl ``circles''. Indeed, with every 
new listing, Plum Creek was skidding closer to becoming the ``poster 
child'' for the taking of private lands. To quote Charles Beard, ``When 
it is dark enough-you can see the stars''. For us the answer came with 
Habitat Conservation Plans. With the advent and incentives of habitat 
conservation plans, Plum Creek and the Federal Government have 
accomplished a stunning turnaround and made a concrete contribution to 
the conservation of endangered species.
    This committee faces a critical question: Can HCPs continue to work 
for landowners and for endangered species into the future? This hearing 
hopefully will give the committee insights into the underlying science 
and principles that drive HCPs.
    Two of the fundamental foundations of HCPs are under great 
pressure.
    First the ``No Surprises'' policy, which is critical for landowners 
to undertake an HCP, is being challenged. It provides the necessary 
incentives for landowners to undertake the costly and resource 
intensive process to complete a habitat plan. To ensure that the 
program remains strong, we believe it should be codified.
    Second, pressures mount to ``standardize'' HCPs, and compare them 
to each other, with a tendency to use each one to ``raise the bar'' for 
those which follow. In my opinion, this ``one size fits all'' approach 
is precisely what has challenged the ESA since its inception and could 
be the most important deterrent to the inclusion of small landowners to 
the HCP program.
    It's important to understand that HCPs are as different from one 
another as landowners and land uses. They are as small as one home site 
and as large as 7-million acres. They are as short in duration as one 
construction season and as long as 100 years. They are as focused as a 
single species and as expansive as hundreds of species. And 
importantly, each landowner has a different incentive for entering this 
voluntary process.
    To help demonstrate this I have attached a new booklet just 
produced by the Foundation for Habitat Conservation providing brief 
case studies of 13 HCPs from around the country. These case studies 
give better definition to my point that HCPs vary widely in scope and 
intent, and I recommend this document to you for review. These examples 
give credence to the notion that HCPs can be an effective tool for 
conservation.
    Plum Creek is a founding member of the Foundation for Habitat 
Conservation. The nonprofit Foundation supports habitat conservation 
plans and related voluntary private conservation efforts through 
research, education and communication. The Foundation is committed to 
``conservation that works,'' and to that end, brings together 
advocates, experts and policymakers to work for creative, balanced and 
effective approaches to habitat conservation. Current Foundation 
members have HCPs conserving hundreds of species of animals and plants 
on more than 800,000 acres of land.
    Let's dispel the myth that HCPs are not based on science. When my 
company, Plum Creek, created its first HCP, we took on a very complex 
challenge. Not only did we have 4 listed species in our 170,000 acre 
Cascades project area, but 281 other vertebrate species, some of which 
would likely be listed within the next few years. Combine this with the 
challenges of checkerboard ownership where every even-numbered square 
mile section is managed by the Federal Government under their new 
Northwest Forest Plan and you have a planning challenge of landscape 
proportions. To meet this challenge, we assembled a team of scientists 
representing company staff, independent consultants and academic 
experts. We authored 13 technical reports covering every scientific 
aspect from spotted owl biology to watershed analysis. We sought the 
peer reviews of 47 outside scientists as well as State and Federal 
agency inputs. As a result of these inputs, we made technical and 
tactical changes to the plan. And additionally, we developed working 
relationships with outside professionals that were invaluable and have 
been maintained to this date.
    Let's also dispel the myth that the public has no access or input 
to HCPs. During the preparation of the Cascades HCP which took 2 years 
and $2 million, we conducted over 50 briefings with outside groups and 
agencies to discuss our findings and obtain additional advice and 
input. During the public comment period, all HCP documents and 
scientific reports were placed in 8 public libraries across the 
planning area.
    I have brought with me the major documents from Plum Creek's 
Cascades HCP, completed in 1996. These documents include the final HCP, 
the draft and final EIS, a compendium of the 13 peer-reviewed technical 
reports, and a binder of decisionmaking documents completed by the U.S. 
Fish and Wildlife Service and the National Marine Fisheries Service. We 
continue to publish our scientific work for the HCP in technical 
publications as this peer-reviewed article on spotted owl habitat in 
this month's Journal of Forestry attests.
    Today Plum Creek is nearing completion of a new HCP. This new Plan 
focuses on 8 aquatic species, and covers 1.8 million acres of our lands 
in Montana, Idaho and Washington. The company and the Services have 
been working over 2 years on this plan, which will be the first HCP for 
the Rocky Mountain region. To provide the scientific foundation for 
this HCP, we assembled a team of 17 scientists that authored 13 
technical reports spanning topics from fish biology to riparian habitat 
modeling. These technical reports were peer-reviewed by 30 outside 
scientists and agency specialists. We have made all the technical 
reports and white papers for the Native Fish HCP available to all 
interested parties on a CD, and have done so well in advance of the 
public release of the HCP, which is scheduled for September 1. The good 
news is that anyone can have access to the latest science and 
technology used in the development of this HCP.
    My point here it is to emphasize that for Plum Creek and other 
applicants, the HCP process has been the principal catalyst for private 
landowners to undertake unprecedented levels of scientific research and 
public involvement. Each successful HCP is a scientific accomplishment. 
And the science immediately becomes part of the public domain.
    Let me give you some specific examples of public benefits from our 
Cascades HCP which has been operating successfully for over 2 years. 
Since its inception, we have discovered the presence of 2 species of 
concern, the Larch Mountain Salamander and the marbled murrelet, which 
were previously thought to be absent from our area. Moreover, habitat 
management and research on the northern goshawk has been active in the 
HCP area, despite the fact that the Fish and Wildlife Service decided 
not to list the species last year. Additionally, Plum Creek is actively 
pursuing a plan to reintroduce the bull trout, a newly listed Federal 
species, to our lands in the HCP area, because the habitat is optimal, 
and the company no longer fears the presence of a listed species on its 
lands covered by the HCP.
    Another aspect of good HCPs, essentially another way of relying on 
good science, is to incorporate effective monitoring and adaptive 
management. As a scientist, I always want more information. Adaptive 
management is a challenging blend of rigorous science and practical 
management designed to provide the basis for ``learning by doing''. 
Adaptive management is more easily discussed in the classroom than done 
on the ground.
    Within the context of habitat conservation plans, adaptive 
management represents an agreement between the Services and the 
applicant whereby management actions will be modified in response to 
new information. Adaptive management can be used to address significant 
``leaps of faith'' in HCPs where there is dependence on models or 
adoption of untested conservation measures. However, there is ``dynamic 
tension'' between the implementation of adaptive management in HCPs and 
adherence to the ``No Surprises'' policy that limits the amount of 
additional mitigation that can be required of an applicant, unless 
unforeseen circumstances occur. Adaptive management provides the 
flexibility to deal with uncertainty within the sideboards of the 
recently revised ``No Surprises'' policy.
    Ultimately, good HCPs come from good science and good motives. 
Neither lofty policy objectives nor idealized public participation 
should overtake the science. Federal agencies must be encouraged and 
enabled to make sound, prompt, scientifically based decisions that 
allow land owners a fair, fast path to conservation, underlain by 
dependable safeguards for both the private and the public interest.
    Mr. Chairman, these HCPs are not only science plans but also 
business plans which commit millions of dollars of a companies assets 
in a binding agreement with the Federal Government. In the Pacific 
Northwest, the stakes are high for both conservation and shareholder 
value in private timberlands. The consequences of failure are so 
ominous for both interests that careful evaluation of the economic and 
ecologic ramifications are essential to successful completion of HCPs. 
``Guesswork'' is not an acceptable alternative for either the Services 
or applicants.
    Nor should we delay or defer essential conservation simply because 
we are afraid to try. Adaptive management provides the ``safety net'' 
for HCPs as well as the rules of the road for acceptably making ``mid-
course corrections'' as new information and insight warrants.
    As a major landowner and one committed to the highest possible 
environmental standards, we anticipate and try to lead in these areas. 
For example, we understood the concerns raised over the last several 
years that citizens and interest groups sought more access to the 
process of creating HCPs. We believe that landowners must remain in the 
driver's seat as to whether and how to build an HCP. In assembling our 
Native Fish HCP, we anticipated the Department of Interior's new 5-
point plan setting new guidelines for HCPs, and have fully complied 
with it in advance, especially as it pertains to public involvement.
    As enthusiastic as we are about HCPs, the process is not without 
its faults. Since our first foray into HCPs, we have noted some 
significant shifts in policy and practice. One downstream effect of the 
5 points policy has been the requirement of the Services to more 
thoroughly analyze the ``effects'' of adding multiple species to the 
HCP, resulting in deletion of conservation measures for lesser known 
species because the Services lack the information needed to complete 
their new requirements. This creates a major obstacle for completion of 
multispecies plans.
    There is a need for the Services to commit necessary resources and 
personnel to the development of HCPs from beginning to end, a period 
often as long as 2 years. Far too often, we experience shifts in key 
agency staff and biologists whereby professional experience is lost and 
continuity in plan development is broken.
    Once the majority of the scientific content of the plan has been 
completed, we have also experienced an excessive focus on relatively 
minor technical details. These are often speculative or hypothetical 
issues that are unproven in the literature, but for which there are 
strong emotional concerns. In other words, with 95 percent of the 
scientific work completed, most the debate centers on the remaining 5 
percent, creating unnecessary delays.
    As we near completion of the Native Fish HCP, we are again reminded 
of the duplicative nature of the HCP and NEPA processes. The HCP is by 
definition a mitigation plan for the potential impact of lawful 
operations on listed species and their habitats. The NEPA process also 
requires a similar assessment of the HCP and management alternatives. 
Not only does this require the added expense and resources to duplicate 
work already done, but requires additional review and response by the 
Services.
    As you are aware, many of the HCPs being completed in the west 
require both the US Fish and Wildlife Service and the National Marine 
Fisheries Service to work with the applicant and approve the final 
plan. Despite their efforts, these two agencies do not work in synch. 
The agencies provide varying levels of technical support to applicants. 
The combined effect of this lack of interagency coordination is further 
time delays to the applicant.
    Mr. Chairman I thank you for the opportunity to testify before you 
today. The 2 days of testimony should provide the committee with a 
better understanding of the complexities of HCPs. I hope my testimony 
has given you an appreciation of the strategic value of HCPs for both 
the conservation of species and the protection of resource economies.
                                 ______
                                 
   Responses by Dr. Lorin Hicks to Additional Questions from Senator 
                                 Chafee
    Question 1. Several scientists have suggested that HCPs should be 
subject to peer review. Would you agree with that suggestion and, if 
so, how do you believe that peer review should be incorporated into the 
HCP process? Who should conduct the peer review?
    Response. HCPs are too difficult to peer review in a traditional 
sense. This is because HCP's are usually specific to a particular 
applicant's landscape and methods of operation. Also, they are the 
result of negotiations between an applicant and agency and as such 
represent a ``best fit'' compromise balancing the economic concerns of 
the applicant and the ecological concerns of the agencies; the final 
result is, therefore, a policy document, based not only upon science 
but also upon management rationale and operational practicality. 
Consequently it is extremely difficult for an outside group of 
scientists to simply pick up an HCP and review it as they would a 
technical manuscript for publication.
    I offer three suggestions for scientific review of HCPs. The first 
is to urge the applicant to designate a science team comprised of 
outside experts and internal staff to develop a technical strategy for 
the HCP. This mix of external and internal expertise will result in a 
more balanced scientific perspective.
    The second suggestion is to have the scientific foundations of the 
HCP reviewed by outside technical experts. This could be accomplished 
by having technical reports generated by the applicant and agency 
science teams reviewed during preparation, or conducting a technical 
workshop where the technical issues and approaches used to address them 
in the HCP can be discussed.
    Finally, the HCP and attendant NEPA documents could be distributed 
to several pertinent professional groups (such as the Society of 
American Foresters, the American Fisheries Society, Society for Soil 
and Water Conservation, Society for Range Management) with a request 
for them to review the document and provide comments during the NEPA 
comment period.

    Question 2. Several scientists have suggested that a national data 
base of all HCPs and scientific information about listed species be 
developed to help inform future HCPs. The data base would presumably 
keep track of the numbers of individual species populations, habitat, 
monitoring data, and conservation measures. How useful would such a 
data base have been for Plum Creek in developing its HCPs? Do you 
believe that a data base of this kind would be useful to other HCP 
applicants?
    Response. If such a data base existed, it would be foolish of an 
HCP applicant to ignore such a resource in the preparation of their 
plan. It should be noted however, that the most recent HCPs in the 
Northwest that I am familiar with have included extensive reviews of 
the literature and technical information that is available and 
pertinent to the planning area. Consequently, I would expect that most 
of the references and resources the data base would offer to these 
previous efforts would already have been tapped by the applicants.
    Another concern is the effort required to update a data base of 
this magnitude. I am aware of several other efforts to ``catalog'' 
HCPs, most notably the US Fish and Wildlife Service and The National 
Center for Environmental Decision Making Research (see http://
www.ncedr.org). One beneficial side effect of creating such a data base 
may be to help orient agency biologists who are pressed into service as 
HCP staff but may not be familiar with the literature and approaches 
used in the plans to date.
    A final concern with the data base approach. Care must be given to 
correctly characterize the content and approaches used in other HCPs. 
The Washington DNR contracted out a comparison of HCPs in the Pacific 
Northwest as part of the development of their HCP. It contained 
numerous errors and misconceptions about the plans completed and 
implemented by other HCP applicants.

    Question 3. Plum Creek's HCP includes a substantial monitoring 
program. Can you please describe to us how Plum Creek developed the 
program, and in particular, how it defined the objectives of the 
monitoring component and how Plum Creek intends to use the results of 
the monitoring? Did you work with scientists outside of Plum Creek to 
develop this monitoring program or subject to external peer review?
    Response. Plum Creek designed the monitoring program for its 
Cascades HCP using input from 3 different sources. The first was input 
from scientists who helped develop the scientific strategy for the HCP. 
Through their involvement and interaction, we were able to understand 
which elements of the HCP represented scientific ``leap of faith'' in 
the sense that hypothetical models were being used or new conservation 
measures were being implemented. We also had the opportunity to get 
their response to ideas and approaches we considered to address the 
monitoring issues that surfaced. This amounted to an ``interactive peer 
review'' from academic, independent and staff scientists that were 
involved in the construction of the HCP, or reviewed the technical 
reports prepared in advance of the HCP.
    The second source of input for the monitoring program was the State 
and Federal agencies that were consulted in the development of the HCP. 
Having worked with these folks since the early stages of HCP 
development, we were able to develop a ``ledger'' of technical ideas 
and issues that needed to be addressed by monitoring and research. We 
turned to this ``ledger'' as one of the final stages of the HCP 
discussions. At this stage, the agencies were knowledgeable about the 
direction we were headed in the plan, and what opportunities we had to 
further our collective knowledge on the ecological issues and how well 
the HCP addressed them.
    The third source of input for monitoring was our own foresters and 
managers who wanted to know that the effort and expense encountered in 
implementing the numerous HCP mitigation measures was justified by 
having the desired biological effect. They also wanted to evaluate the 
feasibility of developing alternative approaches or actions that might 
lower the cost or improve the efficiency of meeting the HCP objectives. 
Last, they provided insight on the operational feasibility of the 
monitoring activity.
    The 3 objectives of the Cascades HCP research and monitoring 
program can be summarized in the following 3 questions we repeatedly 
encountered in the preparation of the HCP:
    1. What specific areas or issues in the HCP needed to be addressed 
by research and monitoring (e.g. spotted owl habitat models, the 
effectiveness of riparian buffers, etc)?
    2. How could this work be done to maintain confidence and 
credibility in the answer and reduce costs to Plum Creek where possible 
(e.g. sponsoring work through universities, working with State / 
Federal monitoring programs)?
    3. When was the information needed to meet specific HCP review 
targets specified in the HCP?
    After 3 years of HCP implementation, our experience to date 
indicates that our selection of issues was accurate. Implementation of 
the actual monitoring studies and approaches has been benefited by 
discussing these projects closer to the actual time of putting them on 
the ground. Consequently, my advice is that applicants should ``delay 
the details'' of how all their monitoring projects would be implemented 
on the ground in order to provide flexibility to respond to additional 
input and site conditions.

    Question 4. You stated in your testimony that you would like the 
``No Surprises'' to be codified. Why is that?
    Response. Our desire to have the ``No Surprises'' concept codified 
in the ESA stems from the belief that this is a very powerful incentive 
for landowners to come to the table with significant long term 
commitments for conservation of species that are currently listed or 
could potentially be listed under the Act in the near future. Private 
landowners whose businesses must take a long term perspective (e.g. 40 
year forest rotations) are willing to make substantial commitments to 
go beyond current protection requirements if they believe that by doing 
so they can be protected from the vagaries of future restrictions 
emanating from new rules and regulations. This incentive seems to be 
even more powerful that other proposals that have been offered such as 
tax rebates and compensations to get landowners to voluntarily offer 
more protection for wildlife resources. Institutionalizing this 
incentive in the ESA along with the HCP process is a tangible 
demonstration by the Federal Government that the ``No Surprises'' 
concept is not subject to the interpretations and modifications of 
agencies and administrations. This seems even more appropriate, given 
the fact that some of the commitments made by HCP applicants span 
decades of investment and implementation.
    Without codification in the ESA, it is thought that the ``No 
Surprises'' concept will be continuously challenged in the courts and 
could potentially become the ``illusion of solution'' whereby an 
assurance may be offered to an applicant to extract a conservation 
commitment, only to find out later that the applicant will be subject 
to more review and revision as policies, regulations and expectations 
change.

    Question 5. Some landowners have expressed concerns that the 
concept of adaptive management undermines or negates the No Surprises 
assurances that are critical to HCPs. However, you have argued that 
adaptive management is simply a means for allowing for ``mid-course 
corrections'' in your plan. Can you describe how the adaptive 
management provisions and the No Surprises assurances work together in 
the context of Plum Creek's HCP?
    Response. We consider the ``dynamic tension'' created by adaptive 
management and the ``No Surprises'' policy to be a positive ``checks 
and balances'' system to insure that HCPs are responsive to new 
information without unduly burdening an applicant with excessive 
monitoring costs and uncertainty about the government's commitment to 
the plan. Adaptive management provides the flexibility to deal with the 
uncertainty issue within the sideboards of the recently revised ``No 
Surprises'' policy. It also helps define a data-based decisionmaking 
system to which both the Services and the applicant can commit 
resources that will resolve differences while insulating the HCP from 
arbitrary decisions from either party.
    As I mentioned earlier (response 3), HCPs can address areas of 
significant scientific uncertainty which can be addressed with adaptive 
management. The level of adaptive management (research and monitoring) 
needs to match the scientific complexity of the plan. In the Cascade 
HCP, Plum Creek used adaptive management to address specific areas of 
scientific uncertainty such as dependence on mathematical models or 
implementation of new conservation measures. The information obtained 
from adaptive management gives us a ``report card'' on how well the HCP 
is addressing the biological goals for the plan. The Cascades HCP 
describes a process by which Plum Creek and the Services identify and 
resolve plan revision issues in a cooperative manner. If research and 
monitoring indicates that specific habitat goals are not being met and 
there is a risk of adverse impact to the permit species, then Plum 
Creek and the Services will meet to determine what changes may be 
necessary to construct a positive solution. This solution must start 
with the assumption that no additional land or money can be 
unilaterally extracted from the company unless unforeseen circumstances 
occur (such as a fire or other catastrophic event). Solutions in this 
area might include rearrangement of the network of spotted owl harvest 
deferrals to address a specific geographic concerns. The Services 
retain the option of ``reopening'' an HCP if monitoring data suggests 
that the permit species are likely to be jeopardized by the continued 
implementation of the HCP.
    William Vogel (USFWS Habitat Conservation Planning Program, 
Olympia, Wash.) identified some desirable components of an HCP adaptive 
management strategy, from a ``permitting agency'' perspective:
     Base strategy [continuing]. A set of measures and 
prescriptions that are sufficiently robust so that the Services have a 
fair amount of confidence that they will be successful.
     Feedback.--Clearly defined levels that will trigger 
changes to the base strategy, linked to monitoring variables.
     Implementation.--Assurances to the Services that 
conservation measures will increase if needed. These assurances can be 
received if an applicant (1) waives the assurances policy with regard 
to the adaptive component of the HCP or (2) defines mitigation as 
achieving the objective rather than merely carrying out the 
prescription. The latter scenario is preferred by the Services.
     Limits to adjustment.--It is acceptable for the Services 
to compromise with an applicant so that the investments made for 
conservation can be limited, establishing an upper limit beyond which 
the assurances policy would apply and applicant would not be required 
to provide additional mitigation, absent unforeseen circumstances.
     Adjustment increments.--Where possible, develop a 
mechanism whereby incremental adjustments can be made to a strategy 
(e.g., riparian management), based on monitoring information and 
continued testing. The timing of the change and how the parties work 
together to notify one another are important considerations. It is 
important to have these processes worked out in advance so the agencies 
and applicant can respond quickly when action is necessary.
     External factors.--It is possible for the Services to 
commit to the need for differentiating between cause and effect, but 
they must ensure that they will be able to differentiate external 
factors (e.g., land management actions by others). Where possible, 
experimental design for adaptive management projects should be robust 
enough to differentiate treatment effects related to management 
strategies from external effects independent of land management 
actions. For example many factors may affect fish densities in streams 
(e.g., angling pressure) independent of habitat-related components such 
as large woody debris loading in streams.
     Direction of change.--As a result of adaptive management, 
some conservation measures may become either more conservative (e.g., 
setting aside more habitat) or more aggressive (e.g., actively managing 
more habitat) compared to actions originally agreed upon with the 
Services. If the change desired is to become more conservative, the 
Services should document that change in cooperation with the applicant. 
However, if the change would be to become more aggressive in 
management, the Services should perform an assessment of other impacts 
that may result, particularly when dealing with multiple species. If 
the amount of ``take'' were to increase, then a permit amendment might 
likely be necessary. Similarly, for a landowner to be motivated to 
offer meaningful adaptive management projects under an HCP, there has 
to be a high level of confidence that changes in protection levels can 
go either way under the guidance of better science. Incentive is 
preserved when acceptable levels of change are predetermined and well-
defined contingencies and sideboards to the extent of changes are 
developed. This is a particular concern, which must be addressed in the 
design of monitoring programs to allow some inference into which 
factors are influencing response variables.
    Habitat Conservation Planning is effective when a landowner is 
motivated to offer meaningful conservation through management 
prescriptions in order to receive greater certainty for management over 
the long term. However, when incomplete science creates uncertainty, 
assurances through simple prescriptions may be inadequate. While the 
permitting agencies need the confidence that improved science will be 
taken into consideration into the future, the landowner needs to be 
confident that conservation dollars expended will be cost effective and 
will benefit the resource. Since it is in both parties' interest not to 
postpone conservation to pursue more complete science. adaptive 
management becomes the tool to begin implementing conservation measures 
and improving certainty while science becomes more complete.
                               __________
Statement of Steven P. Courtney Ph.D., Sustainable Ecosystems Institute
    Good Morning. I am Steven Courtney, a biologist, and Vice-President 
of Sustainable Ecosystems Institute. SEI is a non-profit organization, 
dedicated to using science to solve environmental problems. We are not 
an advocacy group, and our charter states that we will not engage in 
litigation. Instead we believe that cooperative programs, using good 
science, can find lasting solutions. My testimony will focus on the 
positive lessons that can be learnt about Habitat Conservation Plans. I 
will also make suggestions for improving the process.
    SEI has a staff of 20 scientists, including wildlife biologists, 
foresters, and marine ecologists. We are active in many ESA issues, 
advising on listing decisions and conservation measures, carrying out 
research, sitting on Recovery Teams, and helping with HCPs. Most of our 
work is for government, but we also work closely with both industry and 
environmental groups. I have personally been involved with six HCPs, 
and was advisor to Dr. Kareiva on the AIBS project. I will report on 
two issues: the recently completed Pacific Lumber HCP, and the SEI 
Santa Barbara meeting on integrating science into HCPs.
    HCPs are important to conservation. Without HCPs there would be few 
options for management of endangered species on non-Federal lands. 
Rigorous scientific analyses are crucial to these plans. However 
science is just part of any HCP. Ultimately the Plan is the result of 
negotiation, and of decisions made by landowners and regulatory 
agencies. Science can help in this process, but it is not a magic 
bullet. Scientists can provide information on planning objectives and 
options, and on the biological consequences and risks of these options. 
The better the information provided by scientists, the more likely that 
planners will make good decisions.
    In the Pacific Lumber HCP, we used science to defuse a 
controversial situation. We coordinated a large scientific program on 
the threatened Marbled Murrelet. Federal, State and private scientists 
cooperated to determine the effects of different management options. 
Ultimately the program was successful, in that it provided clear 
guidance to decisionmakers. Several items stand out: Firstly, the 
program was well-funded by the company, which invested heavily in 
obtaining good scientific information. Second, the quality of the 
scientific work was improved by an independent advisory or ``peer 
review'' panel. In the accompanying chart, I show the results of an 
independent audit of the PalCo HCP, using the same techniques as used 
in the AIBS study. You will see that the quality of the HCP improved 
dramatically from the early (1997) to the final draft, under panel 
guidance. Note also that the final plan outperforms other Murrelet HCPs 
that did not have such guidance.
    A third important point on the Pacific Lumber HCP was that the 
scientists were not asked to make management decisions. This separation 
of roles is key. The use of good science can build trust between 
parties, precisely to the extent that scientists avoid becoming 
advocates.
    I am pleased that Dr. Kareiva, in his discussion of the AIBS study, 
agrees that the PalCo Murrelet monitoring plan uses good science. This 
monitoring program was developed using the most advanced analytical 
techniques available. The AIBS study was useful in pointing out that 
not all HCPs do use such methods, or even information that already 
exists. However the AIBS investigation was essentially a research 
study--it did not address important practical considerations and 
limitations, or how to best improve the process.
    In April of this year, SEI (with NCEAS and other support) brought 
together leading decisionmakers and scientists to develop practical 
improvements. Participants included academics, representatives of 
environmental and industry groups, and of Federal and State agencies. 
Working by consensus, we identified numerous ways to strengthen and 
improve the process (as outlined in the minutes of the meeting). There 
was for instance general recognition that the regulatory agencies, and 
many HCP applicants lack sufficient resources for the technically 
demanding tasks they face. Academic and other scientists can help to 
bridge these gaps, but often lack incentives or opportunities to do so. 
Most importantly there are significant barriers to making more 
effective use of science. We need new infrastructure to make this 
happen.
    The SEI Santa Barbara group initiated development of a national 
peer review program for HCPs. We are now working to make this a 
reality, and have expanded our group to include leaders from 
professional societies, and other partners. By this consensus approach, 
we are seeking voluntary improvements to HCPs. By improving the science 
in their plans, permit applicants will smooth the negotiation process, 
save time and money, and gain certainty that their plans will be 
approved. The general public also wants to see better science in HCPs--
an open peer review process will improve public confidence in ESA 
decisions.
             action items from the sei santa barbara group
    1. Publication of conclusions.--The minutes have been distributed. 
Brosnan will take the lead in writing up the discussions in a format 
suitable for dissemination or publication.
    2. Peer review and Involvement of independent scientists.--SEI will 
coordinate a group (including those present) who will develop the new 
infrastructure for such involvement. The group will identify strategies 
for dealing with issues of impartiality, training, funding, etc.
    3. Production of a document on `how to make a good HCP'.--This will 
not be an advocacy document, but a roadmap for applicants who want to 
do a good job. SEI will discuss with the various parties whether they 
wish to participate in production of such a document.
    4. Biological goals.--The Group recommended that scientists engage 
with the USFWS and help in the delineation of biological goals, 
generally, and at the species level. Scientists need to play a role in 
large scale analysis of species and conservation efforts, and 
``conservation blueprints,'' or master plans, should be developed as 
early as during the listing process in order to guide the biological 
goals and objectives of HCPs and, ideally, to create closer links 
between HCPs and recovery. USFWS will seek help when appropriate, but 
proactive involvement of the scientific community in this process would 
be highly desirable.
    5. Monitoring.--The Group recommended that scientists provide 
guidance to the Services on setting general monitoring standards and 
objectives. This might include explicit statistical treatment of, for 
instance, Type 11 errors, and the appropriate level of confidence for 
making decisions under the precautionary principle. The professional 
societies might help here.
    6. Uncertainty and risk.--An explicit treatment of uncertainty 
should be a part of any HCP. It is important to keep a complete 
administrative record that acknowledges risks, and how these are 
assessed and dealt with. Decision-makers (agency and applicant) will 
make the call, but scientists need to provide clear statements where 
possible. HCPs should articulate information gaps. These should not be 
seen as liabilities, or targets for litigation, but as real needs, 
which have to be dealt with. The precautionary principle, adaptive 
management, and well-designed monitoring can all be appropriate ways of 
dealing with uncertainty.
    Population Viability Analyses are favored by some, but are not 
always useful in resolving problems. Sometimes PVA is most useful in 
telling you what you don't know (this can guide decisionmakers, and 
help identify where additional research is necessary). PVA is not a 
blanket solution, and decisionmakers should be aware of its 
limitations.
    Most of the tools for dealing with uncertainty are already 
available. However they are brought piecemeal to HCPs, depending on the 
experience of those preparing the plans. We need a more consistent 
approach, which might be fostered by a ``guidance document.''
    7. Further analyses.--The Group noted that the AIBS/NCEAS study 
could be taken further, with additional work on, for instance, the 
context of the individual HCPs (is good science correlated with a good 
HCP?), how uncertainty was dealt with, the adequacy of peer review, 
etc. There might be value in including other conservation plans (e.g. 
Federal plans) in the analysis, to determine whether HCPs fare well or 
poorly in comparative terms. The existing study group members were 
encouraged to pursue these lines, which would make the study results 
more useful to managers.
                               __________
      Responses by Steve P. Courtney to Additional Questions from 
                             Senator Chafee
    Question 1. What is the role of the scientist in the development of 
an HCP?
    Response. Scientists are trained in science, but not typically in 
decisionmaking or resource management. In the HCP process they are best 
employed in a technical role, providing the necessary data for a 
manager to make decisions. It is important to emphasize that scientists 
should have advisory roles. They are uniquely qualified to evaluate 
probabilities of success, and risks of failure. Scientists should 
however normally be restricted to this advisory role. Managers, who are 
trained in balancing such risks against other concerns, must be the 
decisionmakers. Problems arise when scientists or managers attempt to 
take other's roles (Brosnan and Manasse 1999)
    HCPs are complex management documents. Although some independent 
scientists (typically consultants) are engaged in HCP work, most 
scientists working on HCPs are (and will continue to be) based in 
academia. While this is an excellent way to ensure independent science, 
academics are often inexperienced in advising management decisions. 
Because academics are highly trained professionals in their field, they 
may be tempted to insert themselves into the management arena. This 
temptation needs to be resisted. Scientists, with some exceptions, 
should be restricted to their area of expertise. The AIBS report, for 
instance, is an excellent scientific study of HCPs; the recommendations 
of this report for science are to the point. For instance, data base 
management and use of peer review are both standard scientific 
techniques that have been sadly lacking in HCP science. Most of the 
AIBS study participants however lacked any in-depth experience of 
working HCPs (or indeed management decisions). Hence the report's 
statements on (for instance) adequacy of information for decisionmaking 
have drawn extensive criticism by managers and the administration 
(statement by USFWS; testimony of D.Barry).
    One of the most important tasks of a scientist in the HCP arena is 
to describe the risks and uncertainty inherent in any action. 
Conservation planning is a difficult task, with many interacting 
factors (Noss et al 1997). It is essential that we deal honestly with 
the uncertainties in such processes. Managers may be tempted to avoid 
statements of uncertainty, believing that this will increase the 
vulnerability of a plan to scientific or legal challenge. This 
temptation must also be resisted. Explicit statements of uncertainty 
are essential to any evaluation of an HCP. Management provisions for 
dealing with such risks (precautionary measures, adaptive management 
etc.), as well as the final decision on what constitutes acceptable 
risk, are the purview of the manager.
    HCPs are collaborative documents. They should reflect an exchange 
of ideas between managers and scientists, regulators and applicants. 
Scientists may have a role in suggesting management alternatives, and 
in helping managers identify options. However scientists should not 
become advocates for particular options.
    Scientists can also be used as reviewers (either before or after 
management options are fully developed). For instance, scientists can 
examine management decisions or options and determine whether such 
options are based on scientific evidence, and are ``consistent'' with 
scientific information. This information can then be used to help guide 
final decisions, and may also be useful to the interested public. The 
US Forest Service has recently attempted such a ``science consistency 
check'' for the Tongass National Forest (US Forest Service PNW GTR 
1998; Brosnan 1999).
    An important and underestimated role in the HCP process is 
``interpreter''. An individual HCP may involve several different 
technical specialists, as well as applicants and regulators who are 
unfamiliar with these disciplines. Some large HCPs for instance employ 
economists, population demographic modelers, wildlife biologists, 
hydrologists, soil scientists and others. It is unlikely that either 
the regulatory agencies or the applicant (or indeed the public) have 
much understanding of all these fields. A science manager who can 
interpret across these fields, and between the different parties, can 
greatly ease the HCP development process. In some HCPs, scientists with 
management experience have filled this role. As large-scale, multi-
species HCPs become more common, the need for technically proficient 
interpreters will increase.

    Question 2. Several scientists have suggested that HCPs should be 
subject to a rigorous peer review process. Do you agree with that 
suggestion? How should peer review be incorporated into the HCP 
planning process?
    Response. Peer review of HCPs has been advocated by a wide 
diversity of groups, including many scientists. Brosnan (1999) provides 
a summary table showing how strong is the consensus for incorporating 
peer review. Non-scientists and scientists alike believe that peer-
review is essential to strengthening the science used in ESA actions. 
Important scientific voices for peer review include an expert panel of 
conservation biologists (Meffe et al. 1998), the authors of the AIBS 
report (Kareiva et al. 1999), and the broad coalition of the SEI Santa 
Barbara group (SEI 1999).
    Peer review is a normal component of science. It is a means whereby 
scientists maintain standards in their discipline, and ensure that poor 
quality work is exposed as such. The science used in HCPs should be 
subject to quality control. Well-crafted HCPs have typically been open 
to such review, and have incorporated suggested changes. HCPs that are 
less well developed have often lacked such review. In one case (Fort 
Morgan HCP for the Alabama Beach Mouse) a court has determined that the 
science failed to meet acceptable standards (As a scientist, I concur 
with this opinion). Review would ensure that HCPs are complete and 
incorporate reasonable science. Moreover, review early in the process 
would ensure that applicants do not expend resources on scientifically 
unsupported options. Laura Hood (Defenders of Wildlife) in her 
testimony before this subcommittee makes these points well.
    HCPs are however not just scientific documents, and cannot be 
reviewed as such. Peer review will be useful in the HCP process only if 
the current review practices are adapted to management-oriented 
documents. The SEI Santa Barbara group (1999) has warned that applying 
``academic'' peer review to HCPs may cause unexpected problems. The 
following points are developed from the report of this consensus group, 
which included scientists, and representatives from HCP applicants, 
environmental groups, and government agencies.
    Peer-review must be voluntary not mandatory. Since the HCP process 
is applicant driven, the regulatory agencies cannot require that 
applicants obtain the early involvement of independent scientists. The 
agencies can of course encourage applicants to incorporate early 
scientific review. There are many incentives to applicants to do this. 
By using good science, applicants will get a better plan, which is less 
likely to change, and is more immune to challenge. The report of the 
SEI Santa Barbara group sets out in detail the many incentives for an 
applicant to voluntarily adopt independent peer review.
    Scientists need training in how to review HCPs. Typical 
``academic'' peer review are anonymous, proceed at a leisurely pace (up 
to 6 months) and are concerned with whether the science meets certain 
standards. HCPs need immediate review, often by scientists who are 
willing to remain involved and develop new options. Also it is 
important to recognize that the regulatory agency cannot defer-
decisions until such time as scientific evidence is ``complete''. 
Again, the SEI Santa Barbara group has detailed the differences 
inherent in reviews of applied science, and indicated how scientists 
typically need to be trained to understand such differences.
    Peer review needs independent oversight. The existing mechanisms 
for peer review (administered by scientific societies, the National 
Academy, applicants, agencies or interest groups) all have problems. 
Parties to the HCP cannot administer an independent process of peer 
review. Similarly, critics of HCPs (such as environmental groups and 
their allies) will not be seen as independent. Conversely, existing 
independent scientific groups lack understanding and experience of on-
the-ground HCP management. The SEI Santa Barbara group emphasized that 
new infrastructure was needed, and that this should be developed from a 
consensus of all affected parties (including HCP applicants, 
environmentalists, and regulatory agencies). This group is now 
developing a nation-wide program for involvement and oversight of 
independent science in HCPs. In 1999, we anticipate two demonstration 
HCPs, whereby landowners will voluntarily open their planning and 
application process to independent scientific advice.
    Not all HCPs need peer review. Neither do all HCPs need the same 
type of peer review. Laura Hood in her testimony to this subcommittee 
suggests that some HCPs may not need review. I concur, in that small 
HCPs of minimal effect may not involve detailed scientific analysis. 
Large HCPs, or those affecting many species, or large numbers of 
particular species, should be subject to closer scrutiny. In some 
cases, this will require a team of reviewers; in other cases a much 
smaller group will be needed. Similarly, in some cases, scientists will 
be needed to advise over a period of years, through both development 
and implementation of the plan. In other cases, a simple science 
consistency check may be sufficient. There should be no ``one size fits 
all'' approach, but a recognition that different circumstances will 
require a flexible review process.

    Question 3. Can you expand on the thought that there are 
significant barriers to making more effective use of science? Do you 
feel that the barriers exist just in developing HCPs or do they also 
exist in the listing and recovery processes?
    Response. There are many barriers to making more effective use of 
science. Such barriers, deliberate or inadvertent, occur in all 
organizations that are involved with HCPs. For instance, the regulatory 
agencies are woefully understaffed and underfunded. This significantly 
impairs the ability of the USFWS and NMFS to respond in a timely manner 
to endangered species issues. Preparing a regulatory decision with such 
minimal staffing is a poor recipe for success. Very often, important 
land management decisions are made under a mandated timeframe, by staff 
who lack first-hand experience and training in advanced scientific 
tools. Only significant increases in the agencies' budgets can change 
this situation, so that adequate staffing and training is available.
    Scientists also lack incentives to be involved in endangered 
species actions (and experience many disincentives). An academic, for 
instance, must answer to the priorities of his or her host 
institution--typically grant support, scientific publication, and 
cutting-edge research. A scientist that engages in extensive applied 
work for the public benefit will probably suffer when considered for 
tenure and promotion. Similarly, attracting public comment, through 
involvement with endangered species debates, is probably not a good 
career move. SEI is now working with the USFWS to establish stronger 
incentives for scientists to engage with ESA issues.
    Science, by its very nature is a public process; an HOP application 
is often a closed process. Landowners need to be encouraged to open up 
the HOP development process to scientific involvement. Unfortunately, 
concerns about litigation may discourage landowners from seeking such 
input.
    Science is costly, and follows its own tempo. Landowners are 
reluctant to take on heavy costs, and engage in a lengthy process. 
Cost-sharing, and streamlining measures (such as explicit statements of 
biological goals) would materially help this situation.
    Listing decisions. Unfortunately, many high-profile listing 
decisions are made after litigation. Just some of the species that have 
been litigated in this way include: Northern Spotted Owl, Marbled 
Murrelet, Bull Trout, Canadian Lynx, Northern Goshawk, many anadromous 
fish. Science is often used in support of advocacy positions (for or 
against listing) but rarely is developed in a consensus approach. 
Several measures could change this situation. Most importantly the 
regulatory agencies need more resources, including sufficient support 
to seek help from outside scientists (through paid consultancies if 
necessary). The current staff of the agencies is overworked, 
undertrained in advanced demographic techniques (such as PVA) that are 
needed to make decisions, and increasingly engaged in defensive 
litigation.
    Second, independent scientists (particularly in academia) have 
shown a very poor response to requests for assistance. Only one in six 
scientists, when asked by USFWS to review listing decisions, bothers to 
reply. Although there is a cogent ``public good'' argument for such 
involvement, the reality is that academics get little or no reward for 
helping the Service. SEI is currently working with USFWS to develop new 
incentives that will encourage active involvement of independent 
scientists with listing decisions. We expect these measures to be put 
in place in a matter of weeks.
    Recovery is typically guided by a Recovery Plan, which is developed 
by a Recovery Team, subject to an EIS, and implemented by agency staff. 
Development and implementation of the plan is also subject to comment 
by different interest groups, who may advocate alternative solutions. 
In theory then, the recovery process is more open than listing or HOP 
actions, and should be guided by better science. In many cases, this is 
the case: Recovery Plans provide the best blueprint for making 
management decisions. Unfortunately, new problems may also arise at 
this stage. For instance, Recovery Team members are not selected in an 
open manner, following public input. This has led to widespread 
accusations of imbalance.
    Recovery Team members may sometimes have their own agendas. One 
Recovery Team, for instance, includes three consultants and one 
academic who obtain direct personal benefit from the species in 
question. The Recovery Plan for this species includes a proposal for 
the Team to be engaged in all future research projects for the species. 
Another Plan was prepared by an outside consultant, who made 
recommendations for funding of his organization's research. 
Administrative changes should be adopted that limit the potential for 
conflicts of interest.
    Recovery Plans take a long time to develop, and are complete for a 
minority of species. This is truly unfortunate, given that the species 
in question are acknowledged to be at risk. Science research cannot be 
made to run faster; however most Recovery Plans do not involve a 
research component, and are based on existing information. Hence 
increasing the resources to the agencies would be sufficient to reduce 
this backlog of work. Nevertheless the scientists on the Teams should 
be fully engaged in the task of preparing the plan, and not (as is 
typically the case) meet at a leisurely pace over the course of years.
    Finally, there is no clear national standard for Recovery planning. 
Should, for instance, a species be recovered throughout its former 
range? (Not with Grizzlies, Wolves, Cougar, Red-Cockaded Woodpecker or 
many species, but it is the case for Northern Spotted Owls, and Marbled 
Murrelets). One recent USFWS proposal is for biological goals to be set 
at the time of listing. Such a statement may have real value, because 
it will set immediate guidelines for management, and presumably 
(because it is under direct agency control) follow a consistent format.

    Question 4. You mentioned in your testimony that some HCP 
applicants are giving up on the process because of the frustrations 
with the existing mechanisms for developing, negotiating and obtaining 
final approval of HCPs. Who are they, and why are they unhappy with the 
process? What could be done to keep these applicants interested in 
participating in these conservation efforts?
    Response. In answering this question, I have contacted several 
actual or potential applicants, only some of whom were willing to State 
their positions. For the most part, I am reporting on what these 
applicants state; where I have direct experience of a situation I have 
indicated so.
    a. Some of the frustrations that are voiced by applicants:

          i. During negotiation of the HCP, USFWS and NMFS do not 
        provide clear goals or guidelines.
          ii. There is no clear leadership during the negotiation 
        process, so that the applicant cannot be assured that decisions 
        made at one level will be adhered to at other levels. A 
        frequent complaint is that an agreement reached at one level 
        will be overturned later at a different level, or after 
        ``second thoughts''.
          iii. The regulatory agencies apply inconsistent standards. 
        Different applicants are treated differently by the same staff; 
        standards also differ between different staff, different 
        offices, and different agencies.
          iv. Some agency staff adopt negotiation stances, rather than 
        approaching the HCP as cooperators. A common complaint is that 
        agency staff State that a plan is insufficient, but give no 
        further guidance. This is seen as a negotiating ploy, to 
        extract concessions. Applicants are frustrated at the expense 
        and delay of such protracted negotiations.
          v. The regulatory agencies are so understaffed that 
        applications take many years (5 or 6 years is common). This 
        lack of resources also ensures that decisions are often made by 
        junior staff that lack extensive scientific and management 
        training.
          vi. HCPs are so expensive in direct costs (HCP preparation), 
        indirect costs (staff time) and lost opportunity costs, that 
        they are not worth the investment. Simply selling the land at a 
        fraction of value is a preferable option.
          vii. Frequent staff turnover ensures that a lot of time is 
        lost in negotiating with new agency staff. This problem is 
        exacerbated later, during implementation, when the staff member 
        who agreed to a measure is no longer available to guide 
        implementation.
          viii. Some applicants complain of the scale of the demands 
        made by the agencies. These concerns may include the level of 
        reserved land or mitigation, or the disproportionality of 
        incidental take and proposed mitigation.
          ix. Many applicants are concerned about the lack of certainty 
        provided by an HCP and ITP, even under the ``No Surprises'' 
        policy. The frequent litigation of HCPs, even after these have 
        been agreed by the agencies, has led numerous applicants to 
        withdraw from negotiations. Several applicants are concerned 
        that overturn of the ``No Surprises'' policy will eliminate 
        their existing HCPs.
          x. After negotiation and approval of the HCP, the 
        implementation process itself becomes another negotiation. 
        Staff attempt to extract further concessions from an applicant 
        who is anxious to recoup HCP development costs.
    b. Examples
          i. Stimson Lumber has put its HCP on hold. This HCP, which 
        was for 31,000 acres of Redwood forest in Northern California, 
        concerned Spotted Owls, Marbled Murrelets and fish. The main 
        reasons cited for halting negotiations was frustration with the 
        lack of leadership in the agencies. Different agencies, and 
        staff at different levels within the same agency all had 
        different positions. NMFS applied a standard geared to 
        recovery, while USFWS applied a no jeopardy standard. After 2 
        years, and $2 Million in direct costs, the company decided that 
        negotiations were unlikely to reach resolution until clear 
        leadership was shown in an agency.
          ii. Seaside Oregon, (through Scientific Resources). This HCP, 
        which concerned 300 acres in coastal Oregon, concerned 
        conservation of the Oregon Silverspot butterfly. A developer 
        wished to develop part of the site for a golf course and 
        housing. My students and I surveyed the site, and identified 
        all areas where the hostplant (violets) occurred. Under the 
        HCP, all habitat would have been preserved, and residents in 
        the new housing would have paid yearly dues to improve the 
        habitat. In this case, repeated requests for guidance to the 
        responsible USFWS biologist went unanswered. Finally the 
        applicant withdrew from the process (1993), stating that in a 
        few years, invasion of scotch broom would eliminate the 
        violets, and he would be free to develop the property.
          iii. Presley Homes, Inc. This HCP application is currently 
        the subject of litigation (see accompanying press releases and 
        documentation). The HCP concerns 575 acres in suburban San 
        Jose, slated for development as a golf-course, residences, and 
        a nature reserve. The conservation plan concerns the Bay 
        Checkerspot butterfly (which however has not been seen at the 
        site for several years, and may no longer be present) and some 
        plants. Butterflies were to have been reintroduced to the site 
        under the HCP. The applicant states several frustrations, 
        including lack of response from the USFWS, unreasonable demands 
        (52 percent of the property is already set aside as reserve), 
        and inconsistency between USFWS and the lead agency (Corps of 
        Engineers). Butterfly surveys and development of HCP options 
        have been guided by Dr. Dennis Murphy, who testified before 
        this subcommittee.
          iv. Sierra Pacific Industries. SPI has stopped its 
        negotiation of an HCP for one and a half million acres of 
        forest in California. A major frustration was stated to be a 
        lack of consistency within and between agencies (notably the 
        use of a ``recovery'' standard by NMFS, who requested ``fully 
        functioning habitat''). Currently the company is operating 
        under no-take guidelines, and the State forest practices rules.
    c. Keeping applicants at the table
          i. Private lands are an important, even essential part of 
        conservation of endangered species. Some species are found 
        mainly or entirely on private lands. Hence it is imperative 
        that we find a workable solution for such habitat. The Bay 
        Checkerspot, and Oregon Silverspot (see ii and iii above) are 
        both close to extinction, and loss of these HCPs is 
        significant.
          ii. Administrative changes that address some applicant 
        complaints may be worthwhile. Clear decisionmaking processes, 
        and designated lead negotiators may smooth the negotiation 
        process. I have observed during several HCP negotiations the 
        advantages of having one agency staffer who is both empowered 
        to make decisions, and willing to do so. Confusion sets in when 
        different standards are set by different agency staff.
          iii. The regulatory agencies have proposed statements of 
        biological goals at the time of listing. This is an entirely 
        commendable change, that has the potential to address some 
        applicants' concerns. To be effective, this policy should 
        result in guidance for applicants as to how important different 
        habitats are, and what are specific management goals. It may be 
        useful to distinguish between recovery objectives, and actions 
        that will avoid jeopardy. Soon after listing, the agencies 
        should also issue species wide monitoring guidelines.
          Other administrative actions that are proposed include 
        streamlining the HCP process for plans of small effect. This 
        will again meet the needs of some applicants (particularly 
        small landowners). For this policy to be effective, a general 
        species-wide guidance policy should be in place, so that 
        ``small effect'' can be determined in advance, and also so that 
        species are not subject to undue cumulative effects.
          iv. HCPs are sometimes very costly. In some circumstances, it 
        may be appropriate for agency or other public organizations to 
        help defray these costs (e.g. small HCPs of little economic 
        benefit, but major biological effect). These contributions 
        might include purchase of property (in unusual circumstances), 
        or help with the cost of scientific analysis and HCP 
        preparation. SEI is developing such a program to cover HCP 
        science costs for some small landowners.
          v. Staff. Regulatory agencies need more staff, who are better 
        trained in all the skills and technical aspects of plan 
        development, and who can dedicate time to speedy resolution of 
        a negotiation. This can only happen if the agencies are given 
        the necessary budgets for staff and training. Resources could 
        also be dedicated to outside contractors, who could advise 
        agencies (in peer review, or on difficult technical issues, 
        such as PVA), or could relieve agencies of some of their tasks 
        (Recovery Plans are sometimes contracted out).
          vi. Certainty. Many applicants are concerned that overturn of 
        the ``No Surprises'' policy will remove a major incentive to 
        development of an HCP. Crafting a policy that ensures the 
        survival of both applicants and species would be a large 
        contribution to ensuring applicants stay involved with HCPs.

    Question 5. As a scientist, can you draw a distinction between 
actions that increase a species' chance of recovery and actions that do 
not affect extinction rates?
    Response. Extinction rates affect collections of species, not 
individual species. I believe the thrust of this question addresses the 
effects of actions on extinction risks. The questions of Senators Crapo 
and Chafee for Monica Medina were crafted in this context.
    Most biologists would state that there is a clear distinction 
between populations that are increasing, populations that are 
declining, and populations that are not changing in numbers. This is 
elementary material, to be found in any introductory ecology text. To a 
great extent, management actions can be interpreted simply in these 
terms. Cutting a tree down destroys habitat, growing a tree creates it, 
and doing nothing leaves the habitat unaltered. In this sense, recovery 
(growing a tree) would be easily distinguishable from neutral actions 
with no effect on extinction risks.
     NMFS (as in Ms. Medina's testimony) states that actions 
that promote recovery and actions that avoid jeopardy are 
indistinguishable. I have some difficulty with this statement. It could 
be that some actions have dual effects. For instance, actions that 
promote siltation (e.g. timber harvest) may well increase extinction 
risks (to the point of jeopardy); stopping such actions would not only 
avoid jeopardy, but might also contribute to recovery (as silt leaves 
the streams). In effect there would be no neutral action in this 
viewpoint. However actions that actively promote recovery (e.g. 
addition of Coarse Woody Debris to streams, and other rehabilitation 
actions) seem to be recognizable as positive steps, that will promote 
recovery, not simply avoid jeopardy.

    Question 6. Should improvements to the science of HCPs be 
mandatory?
    Response. The science in an HCP should be appropriate. If the HCP 
is of small effect, major analyses are unnecessary. If the HCP will 
potentially affect an entire species, with possibly irrevocable 
effects, careful analysis is in order. This follows from the 
``precautionary principle'', that is widely accepted in conservation 
biology (Noss et al. 1997, also see testimony of L.Hood). Hence there 
can be no simple mandated standard applied in a blanket fashion.
     It is the responsibility of the regulatory agencies to 
make a good decision on available information. Since the HCP process is 
applicant driven, improvements to science must be voluntary (in the 
hands of the applicant). However it is in the landowner's interest to 
provide good data to the agencies. This will generally result in a less 
conservative decision, which is both fair and swift.
    Nevertheless, there are clearly deficiencies in some existing HCPs, 
such as the Fort Morgan HCP for the Alabama Beach Mouse. This HCP (17 
pages in total length) depends on inconclusive trapping, and a 
statement from one person that he ``knows where the mice really are''. 
Most scientists would have trouble accepting this as a firm scientific 
basis for making decisions. That this HCP was approved may reflect lack 
of quality control by the local agency office--scientific peer review 
would have caught the problem. The AIBS study identified some other 
comparable situations, and similarly calls for peer review to establish 
a minimum scientific standard.
     Agencies could develop and enforce suitable scientific 
standards using existing policies (I see no need for changes to the ESA 
). However, it may well be in the interest of all parties for the 
agencies to work with outside entities, who could then advise on 
whether an HCP meets acceptable scientific standards. The SEI Santa 
Barbara group (involving agencies, environmentalists, applicants, and 
scientists) has begun development of such standards.
    Some improvements to HCP administration should be made. Testimony 
before this subcommittee indicated the critical need for a national 
data base on HCPs. The agencies should also attempt greater 
coordination and consistency of standards. Inconsistency between staff, 
between offices, and across agencies is a frequent complaint from both 
HCP applicants and environmentalists.
     Most independent scientists agree that one aspect of HCP 
design needs nationwide improvement: monitoring. As shown by the AIBS 
study and other critiques of HCPs, monitoring is generally poorly 
designed, with few explicit links to adaptive management. Monitoring 
programs should be designed and coordinated at large scales (typically 
larger than the individual HCP) (SEI Santa Barbara group 1999). 
Monitoring design should therefore become an explicit responsibility of 
the regulatory agencies, with help from interested scientists.
    Voluntary improvements to HCP science should be a common goal. The 
public is ill-served by mechanisms that promote closed negotiations, 
and allow only NEPA review. Similarly, HCP applicants should be 
encouraged to engage in good science as efficient business practice.
                                 ______
                                 
      DRAFT: SCIENTIFIC PEER REVIEW IN HABITAT CONSERVATION PLANS
                 Scientific Involvement and Peer Review
      summary of presentation on peer review by deborah m. brosnan
    1. Once only confined to academic profession, peer review is taking 
center stage as an important tool in natural resources planning and 
actions. Individuals and organizations on all sides of the debate are 
calling for peer review (Brosnan 1999), and 88 percent of Americans 
support peer review of ESA listings. However, it is clear that 
individuals and organizations differ in their definition, and 
expectations of peer review. Peer review is not peer approval, but 
rather a strict and rigorous evaluation.
    2. Academic peer review and peer review for a management decision 
differ. Academic peer review had its origins in the learned societies 
of 17th and 18th centuries (e.g. Royal Society), where society officers 
determined which presentations and debates were published, and thus 
acted as gatekeepers of scientific standards. Over time and with 
greater specialization in science, this evolved into the editor and 
peer reviewer systems of today. Peer review evolved for science and was 
carried out by scientists, and thus all shared common training and 
goals (i.e. the advancement of science).
    3. Unlike the participants in academic peer review, scientists and 
managers have different backgrounds, ask different questions and use 
information differently. They are not trained in each others 
disciplines, and decisionmakers may not know how to interpret detailed 
science analyses. Decision makers must make a decision regardless of 
the availability of science, and must often balance different factors 
including economic, social and legal concerns.
    4. The difference among the groups can lead to a confusion of roles 
and expectations. It is essential that we understand the roles of each 
group, and what we expect and ask for in peer review.
    5. Peer review should start early and be ongoing.
    6. Critical issues in peer review are impartiality, independence, 
and experience of the reviewers. Because peer review in management 
situations is different, scientists often need training. Further a 
liaison who can communicate among the parties, and buffer the 
scientists from outside pressure is often essential.
    7. All parties must have confidence in the peer reviewers, and it 
is thus essential that they all have a role in the choice of peer 
reviewers. There are different models of peer review depending on the 
circumstances.
                                overview
    There is widespread and strong support for scientific involvement 
and for peer review in natural resource and conservation actions 
including in the HCP process. Environmental groups (e.g. Defenders of 
Wildlife 1998), Department of Interior (Secretary Babbitt, 1994), State 
and local governments (e.g., National and Western Governors 
Association, 1998), the private sector (communiques issued by different 
stakeholders including American Farm Bureau Federation, Building Owners 
and Managers Association) and the scientific community (Meffe et al. 
1997, Kareiva et al. 1998) have all called for and endorsed peer 
review. (See Brosnan 1999 for a more complete list of groups calling 
for peer review). The challenge now is to respond to the call and to 
develop the structure that meets this need. This new infrastructure 
should equally serve all constituents, and harness the talents of the 
scientific community who are ready to engage in conservation and 
natural resource issues.
    Many individuals and organizations, including applicants, are 
concerned about ``doing what's right'' and are seeking help and 
assurances that their plans and actions will lead to the conservation 
of species and habitats. Often these groups are looking for the best 
available science, and are willing to make decisions based on the 
scientific evidence. There is recognition that the science can be the 
final arbitrator. Some applicants have already committed, or are 
willing to commit the resources necessary to ensure that plans and 
actions are consistent with the best scientific information.
    Scientific involvement is critical to the HCP process; it should 
begin early and it should be iterative. To date scientific input and 
peer review has been sporadic, and carried out at the discretion of, 
and in accordance with the resources of the applicant. The HCP process 
is applicant driven, and there is no legal requirement for the 
involvement of scientists. The scientific community must bear some 
responsibility for articulating and communicating the need for science, 
and the benefits of engaging with the scientific community in HCP 
development. However it is not just the applicants that benefit from 
the involvement of scientists and peer review. Regulatory agencies and 
the public (including environmental groups) can have greater confidence 
in a plan that is science based. A plan that has passed rigorous 
scientific review is more likely to meet its objectives and the goals 
of the Endangered Species Act to conserve species and the ecosystems on 
which they depend. The benefits from greater scientific input in to the 
development of HCPs are many, and range from increased credibility to 
greater confidence that the best science has been appropriately 
incorporated into the plan. Box 1.
Box 1.
    Why should applicants involve external scientists and scientific 
review in their HCP?
    1. It is the right thing to do. Many HCP applicants are motivated 
to develop a conservation plan that makes a genuine contribution to the 
species' welfare. Some applicants (e.g. city or State governments) may 
have a public trust responsibility for wildlife resources. Engaging the 
scientific community provides greater assurance of meeting these goals. 
Some applicants are strong advocates for a scientific approach to 
planning. This may involve a commitment to initial research, and a full 
and open discussion of results. In many cases, scientific investments 
have resulted in new management opportunities. Simpson Timber Company 
for instance has carried out research on Northern Spotted Owls that has 
changed scientific understanding of this species requirements, and 
allowed less restrictive but effective management.
    2. It can resolve argument, speed up the process, and reduce cost. 
The application and negotiation process can be lengthy. Discussions 
over several years may be necessary as participants determine options 
and their effects on listed species. Impartial scientific panels have 
arbitrated disagreements on the basis of scientific evidence, and 
identified research that resolved apparent conflicts. This approach has 
moved parties away from position based arguments and led to faster 
resolution. For instance in the PalCo HCP, a science advisory group 
identified data needs. These data were collected during the planning 
phase, eliminating much of the disagreement. Regulatory agencies tend 
to have greater confidence in plans that have a strong scientific 
backing, or are developed using consensus science planning. The added 
confidence can lead to swifter negotiations. The Irvine Company 
estimates that the NCCP cooperative scientific process saved 
significant amounts of time and money.
    3. It reduces the potential for litigation. Citizen groups are 
often concerned over the credibility of an HCP. The greater the 
independence and expertise of the group developing the critical 
scientific data, the greater the confidence the public will have in the 
plan. This may then reduce the likelihood of legal challenges or other 
negative comment. When litigation does occur, an independent and 
credible consensus science process will be more likely to resist 
challenge. By contrast adversarial science where each group uses its 
own scientists to critique drafts promotes development of different 
viewpoints either of which may prevail. The very presence of a credible 
scientific framework to the plan, and a consensus science position may 
act as deterrents to litigation.
    4. It opens up lines of communication among academia, applicants, 
regulatory agencies and the public. Scientists working for different 
parties are more likely to communicate effectively if there is an 
independent science facilitator or review team. The facilitator or 
scientists can often act as interpreters of science for the different 
groups thus reducing the risks of miscommunication. Communication 
between the different parties allows applicants to highlight the 
quality of their own internal research and can help to improve the 
credibility of ``industry science'' and scientists.
    5. It expands ownership of a plan. An applicant who involves other 
parties in the development of an HCP is more likely to encourage 
ownership and subsequent support for the plan. External scientists 
should not be asked to advocate for the negotiated compromise, but 
those involved in the scientific input or peer review may be willing to 
defend the quality and scientific procedures used in the plan 
development.
    6. Increases public confidence and credibility in the HCP. The 
public (including the scientific community) is more likely to have 
confidence in a plan that has been rigorously reviewed by the 
scientific community. Further involving external scientist may increase 
credibility after the ITP has been granted. HCP applicants, who are 
successful in obtaining a permit, still face implementation problems if 
the public opposes the plan. Consensus science planning is a positive 
move that may reassure the public.
    7. Assurance that the plan will work. Applicants need to know that 
their plan will work. Mitigation is more likely to be successful when 
well designed. Further, conservation measures are more likely to 
preserve or improve a species' status when well crafted. A consensus 
scientific process is more likely to reach goals. This will in turn 
reduce the possibility that management changes will be triggered in the 
future, with additional costs to the applicant.
    8. Maintenance of continuity. Agency staff often rotates through 
positions, so that those monitoring a plan's implementation and 
effectiveness may have little first hand experience of previous 
discussions. An outside scientific group may have greater continuity, 
providing longitudinal consistency. This may be important when plans 
and permits cover 50 years or more.
     distinguishing between scientific involvement and peer review
    Many groups are calling for ``peer review'' in natural resource 
decisions, including in the HCP process. However, often these groups 
are looking for more than simply what academic scientists mean by peer 
review. Many seek scientific oversight and advice by a panel or group 
of independent and expert scientists. Thus, scientific involvement and 
peer review differs in the extent, nature of involvement, and 
responsibility of the scientists. Both are valuable, but it is 
important to understand the distinction, and to be clear on what each 
provides to the process.
    Scientific involvement from an early stage is critical. Where early 
involvement has been sought it has sometimes taken the form of an 
independent scientific group or oversight panel convened from experts 
in the field (usually academic and government scientists). The role of 
this team is generally to provide frequent technical advice and input 
through the development stage, and often subsequently through the 
monitoring and/or adaptive management phase. (For instance this type of 
scientific oversight was used in the development of the NCCP process, 
the Washington Department of Natural Resources HCP, Brevard County HCP, 
San Bruno Mountain HCP, and PalCo HCP) Where early and iterative input 
has been used, there is agreement by those involved that it has 
significantly helped the process, and ensured better science. For 
instance, independent scientific input has enabled the negotiators to 
reach agreement sooner, because the argument has been decided on the 
basis of scientific evidence rather than the differing positions of 
applicant and regulator: In the absence of scientific input, 
negotiations have been lengthier, and position based.
    An independent scientific or oversight panel can dispense with 
criticisms while still early in the permitting process, and before the 
plans tenets have been ``set in stone'' They can help to form a strong 
scientific basis on which to build the plan, and provide credibility 
and assurances to concerned regulatory and public entities. For 
instance, a scientific oversight panel can assist with the scoping 
stage, the evaluation of existing data and analyses, indicate gaps in 
data, any needs for further research or information, and identify 
alternatives that might be considered. These can provide much benefit 
to an applicant. However, when the applicant already has a team of 
scientists, they may be less likely to see the benefits of outside help 
at the scoping stage, and view it as redundant and unnecessary, 
preferring to rely first on their own scientists to frame the initial 
document. Some applicants may be reluctant to seek outside assistance 
at the early phases of plan formation, simply because they do not want 
outside groups determining the core of their actions and business 
practices. It is therefore important to provide the distinction between 
biological input and business and management decisions.
    Not all HCPs use external oversight or technical panels. For 
instance, the Seattle P.U.D. used consultancy with respected scientists 
to guide their process. Other HCPs e.g. Plum Creek Company HCP, used an 
internal team of scientists, who coordinated with researchers who had 
published relevant material. These approaches allow the applicant to 
retain greater control, but they place a heavier burden on the internal 
scientists and minimize the advantages of an external panel (e.g. 
arbitration) and possibly credibility with the public (including 
academics).
    By contrast, an independent peer review tends to occur later in the 
development of the plan. Under this scenario expert scientists, who 
prior to this had no involvement in the HCP, are asked to review the 
science in a draft plan. The advantages of this method are that the 
scientists are clearly more independent of the plan, having had no role 
in its development. The disadvantage is that peer review often comes 
late in the plan, and scientists may often be perceived as advocates 
for the plan versus for the science. Further, it may be costly and less 
easy to alter a plan in the late stages of development. The recent 
draft of the Western Oregon HCP (Oregon Department of Forestry) uses 
this approach. A large review group critiqued the draft plan. On some 
issues all reviewers agreed, on others there was substantive 
disagreement with the burden for resolution of differences falling on 
the applicant. Scientific involvement and peer review are not mutually 
exclusive. For instance an applicant may chose to engage a scientific 
oversight panel and gain further review through an independent and 
external review of the draft stages.
    Qualitative and initial quantitative evidence indicates that 
external scientific involvement and review does improve HCPs. For 
instance, plans involving independent scientific reviewers and panels 
e.g. San Bruno Mountain HCP, were highlighted as positive examples in 
recent reports (Defenders of Wildlife 1998), and the San Bruno Mountain 
HCP is still considered exemplar in the design of a monitoring program. 
By contrast one HCP that did not involve external and independent 
scientific panels was recently successfully challenged on the basis of 
scientific inadequacy. One study has attempted to quantify how input 
from an independent scientific panel changes the effectiveness of a 
plan. Bigger (1999) analyzed how early and later stages of the PalCo 
HCP differ for two species where a scientific oversight panel was 
engaged. He used identical methods to those of the AIBS study (Kareiva 
et al. 1998) for evaluating HCPs. Overall, on Marbled Murrelets (where 
the scientific panel was consistently engaged) the plan ranked highly 
compared to other HCPs in the AIBS analysis. There were also 
significant improvements from early to late drafts in the sections 
covering Marbled Murrelets, as compared to Spotted Owls. Improvement in 
Owl plans was greatest in the one area (monitoring) where panel 
oversight was sought.
       scientific involvement and peer review in the hcp process
    Scientific involvement and peer review in HCP process is not the 
same as involvement and peer review for academic journals or for 
academic grant proposals. In academic peer review scientists and 
reviewers share the same training and goals (the advancement of 
science) and peer reviewers make decisions on the standard of science. 
In HCP planning, science is one factor in a management decision that 
must also meet legal and other agency mandates.
    To illustrate, a peer reviewer for a scientific journal might 
review two papers evaluating the level of endangerment of a particular 
species. The two papers reach the opposite conclusion because of subtle 
differences in sampling methods etc. A reviewer may judge that both 
papers are of high quality and sound in their methods, analysis and 
conclusions and recommend both for publication. From a scientific 
perspective, there is no inconsistency in this action. However, in an 
HCP and regulatory framework a decision must be made, and this type of 
perceived inconsistency is not possible.
    However in the management arena, scientists must review scientific 
work that will be used to make a decision that affects economic and 
social values. Regulatory agencies will make decisions based on the 
science but also within the regulatory and legal framework. Further, 
scientists and decisionmakers do not share the same background or 
familiarity with each others disciplines, and this can often lead to 
miscommunication (e.g. Brosnan and Menasse). It is therefore critical 
to make the distinction between the role of managers and scientists, 
and to avoid confusion.
    The role of independent scientists either in an advisory capacity 
or as peer reviewers must be understood, and clearly defined from the 
beginning. Scientists should only be asked to comment or advise on the 
science and not on the management actions. For instance in the 
development of an HCP scientists can evaluate data, suggest what other 
scientific actions are needed, who is best qualified to conduct other 
analyses, but they should never be asked to make management decisions. 
They should inform the negotiations, but not take sides in the 
negotiations. For peer reviewers, reviewing the adequacy of the science 
used in the development of an HCP is an appropriate role for a 
scientist, but reviewing the HCP itself is not. Further while it is 
appropriate for scientists to examine the adequacy of science in an 
HCP, it is unlikely to be appropriate for them to comment on the 
adequacy of overall management prescriptions. These are the 
prerogatives of the regulatory agencies.
    It is essential that scientists who are involved in oversight and 
peer review serve equally all constituencies. All parties must have 
confidence in the expertise, integrity, and impartiality of the 
scientists engaged in the HCP process. To ensure this, all parties must 
agree on the identity of the reviewers or panel, and anonymous review 
should not be part of the process. While ongoing peer review can be 
organized by and for one group (e.g. an agency may set up a peer review 
process) and this may have merit in certain situations, in the HCP 
setting this group is likely to be regarded as biased. Further it may 
result in ``dueling reviewers'' as other groups establish their own 
panels. This is counter-productive to the process.
    Impartiality, independence, and well established expertise are 
considered essential for the reviewers who serve either as peer 
reviewers or as part of a scientific panel. However, there is a 
perceived tension between an ``independent'' scientist and an 
``uninformed'' one. Applicants and agencies are often concerned that a 
academic scientist may be unaware of the local environment, and have no 
knowledge of the management process and requirements and thus produce a 
review that may be technically accurate but useless or even counter 
productive for decisionmakers.
    To safeguard the impartiality, independence of science, and to 
ensure some degree of experience and familiarity with the management 
arena a number of steps can be taken. These include (1) Training for 
scientists in what is involved in reviewing for management decisions, 
and how to ensure the integrity of science in the face of pressure. For 
instance scientists need to be aware that a decision must be made 
regardless of the availability of science, and that regulating agencies 
make decisions within their legal mandates. (2) Providing a liaison or 
``science manager'' who acts as the communicator between the scientists 
and the applicants, agencies, and public. It is essential that the 
liaison be a qualified scientist and familiar with management and the 
HCP process.
    The role of the science manager or liaison is critical but under-
appreciated. This person must ensure that the expectations of all 
parties are appropriate. The liaison must ensure that the scientists 
comment only on scientific issues, and refrain from, or are not 
pressured for, value judgments. At one and the same time it is 
essential to screen scientists from inappropriate pressures (e.g. to 
favor particular actions) while encouraging scientists to be timely and 
to consider all necessary materials. The science manager/liaison must 
also take the recommendations and action items from scientists and 
ensure that decisionmakers understand the value of, for example, 
additional research or analyses. Often the liaison staff must help 
evaluate uncertainties in the science for decisionmakers. Similarly 
they must often interpret by taking a management need and phrasing it 
in a form that scientists can advise on. Finally the science manager 
bridges the two cultures of science and management (Brosnan and Menasse 
1999), and is responsible for reducing miscommunications and 
frustrations and for building trust among parties.
            access to scientific involvement and peer review
    While some applicants have the resources to engage scientific 
advisory panels, this may not be true in all situations (e.g. small 
HCPs). But this does not take away the need for scientific input. Other 
constituencies (agencies, citizen groups etc.) will also want to use 
such scientists, but are unlikely to have the adequate resources to 
convene them. This need can only be met by developing news ways of 
providing scientific input so that it is equally available to all 
parties.
    Timeliness is critical. Often reviews of management plans are 
submitted to reviewers who are already overworked and over-committed, 
and thus reviews are either late or do not arrive at all. Academic peer 
reviews are often completed over several months; this will not work in 
management situations. Depending on what is required (i.e. the nature 
of the involvement) and the timing it may be important to consider 
remuneration or other rewards for reviewers. This may take the form of 
freeing reviewers from other tasks and responsibilities.
                             the next step
    There has been a loud and clear clarion call for greater scientific 
involvement in HCPs and the ESA in general. Now is the time to respond. 
To move forward we need a broad-based group to develop the structure 
that will provide scientific involvement and peer review to all 
constituencies. This group must begin to define the nature and terms of 
involvement of scientists in the HCP process and HCP science. 
Participants in the NCEAS workshop are now engaged in developing such a 
broad-based group and structure.
                                 ______
                                 
       Consulting the Oracle: Scientific Peer Review and Natural 
                          Resource Management
``I count the grains of the sand, and I measure out the sea's vastness, 
I understand the mute, and I hear the man who does not speak.'' (Reply 
of Delphic Oracle to King Croesus on whether to attack the Persians (he 
did and lost)).

    Independent scientific peer review is touted as the new ``oracle'' 
for resolving natural resource conflicts. Once a topic of conservation 
only among scientists, it now has popular appeal. Congress, business, 
religious groups, environmentalists are all calling for expanded use of 
scientific review. Peer review is being incorporated into new Federal 
and State statutes, while a recent Market Strategies poll found that 88 
percent of Americans support the use of scientific peer review in the 
listing of species under the Endangered Species Act.
    Why are we suddenly seeing such an outpouring of interest in a 
particular scientific method? The answer is simple; those groups 
advocating peer review are unhappy with decisions on biodiversity 
issues. These range from a general dissatisfaction with agency actions, 
to specific complaints about the outcome of particular listing 
decisions or approval of individual Habitat Conservation Plans (HCPs). 
Such complaints are heard from all sides of an issue. Environmentalists 
and development interests alike want change in how biodiversity policy 
is set and applied. They all believe that science will support their 
own viewpoint. For example the California Farm Bureau Federation states 
that the U.S. Fish and Wildlife Service (USFWS) disregarded peer review 
in the listing of fairy tadpole shrimp, despite ``overwhelming 
scientific evidence showing that listing was not warranted''. In 
partial remedy, the foundation recommends peer review at all levels of 
ESA: they. believe that, if the agency uses peer review, unwarranted 
listings will be avoided. At the same time, environmental groups also 
call for peer review of agency actions, believing that USFWS does not 
list enough species.
    Biodiversity policy can certainly benefit from independent 
scientific peer review. ESA and other natural resources laws (e.g. 
National Forest management Act) specify the use of best available 
science, but are largely silent on how ``best'' is defined. In some 
cases (e.g. Magnuson Act) peer review is incorporated as a means of 
ensuring high quality science. In other cases peer review is not 
mandated but has become agency policy (e.g. USFWS). Professional 
ecologists themselves have begun to respond to this call. For many 
years, ecologists have bemoaned the lack of good science in 
biodiversity policy, but have tended to maintain an academic distance 
from the issue. The explosive growth of conservation biology as a 
professional discipline has changed this. Ecologists are beginning to 
insist on high caliber science in resource management issues. Indeed 
scientists are themselves calling for better application of science in 
ESA, and have identified peer review as a major quality control tool 
(e.g. reports of NRC, AIBS/NCEAS studies).
    Enthusiasm for peer review is so general, some form is likely to be 
incorporated into any eventual reform of ESA. Each interest group is 
sure that peer review will fix problems that affect their constituency. 
Clearly they cannot all be right. Congress appears intent on an ESA 
that is fairer, effective and efficient. Peer review could be one 
component in such reform, but an ill-conceived process will add layers 
of problems. The legislative history of ESA is replete with unintended 
consequences of actions. Before peer review is incorporated into ESA, 
it will be wise to consider what it is we really want.
    In academia, peer review sets the standard for scientific adequacy. 
It is appealing to think that we can use the same process to ensure 
that high quality and impartial science is used in management and 
policy decisions. However in the rush to adopt review standards, few 
groups (notably scientists themselves) have considered how the arenas 
of science and management differ. In the absence of such critical 
evaluation we may be on the way to creating a new Delphic Oracle: a 
source of profound but useless statements.
    In this article, I will show what can go wrong with peer review, 
and how it could harm efforts at reform. These cautionary tales lead to 
specific recommendations. First though, we need to identify who wants 
peer review, why they think it will help them, and the extent to which 
existing review processes would meet such goals.
  who calls for scientific peer review, and what do they really want?
    A non-exhaustive search shows that all sides to the biodiversity 
debate are calling for independent peer review. Table 1 shows a 
selection of organizations calling for incorporation of review into one 
or another part of ESA. Farmers, timber and building interests, water 
users and their political allies are all calling for formal scientific 
peer review of listing decisions. USFWS currently attempts to 
incorporate local review into such decisions. However the Ecological 
Society of America, a professional body, opposes peer review of 
listings, because this would delay the listing process. Cattlemen and a 
broad coalition of reform advocates also advocate review of critical 
habitat designations.
    A more diverse group proposes review of individual HCPs. 
Environmental groups are particularly concerned about this provision, 
but others supporting review of HCPs include water and building 
interests, and some religious groups. Professional scientific 
organizations also argue for review of recovery plans, and that this 
should take place prior to implementation of new HCPs. Note that 
Defenders of Wildlife call for effective scientific involvement 
(including peer review) at an early stage in the HCP negotiation 
process.
    Several common themes emerge from this survey. Firstly, that there 
is widespread distrust of the regulatory agencies (usually USFWS and 
National Marine Fisheries Service, NMFS), and dissatisfaction with 
their administration of the ESA. Litigation has often been the result 
of this dissatisfaction. Judges, not independent scientists, then make 
rulings on scientific merit. Most of the major western listing 
decisions were adopted only after lawsuits (e.g. Northern Spotted Owl, 
Marbled Murrelet, Bull Trout, other salmonids, Lynx, etc.). Similarly 
an approved HOP (Paradise Joint Venture project, HOP for the Alabama 
Beach Mouse) has been successfully challenged on the basis of 
inadequate science.
    Some groups want to see less litigation in ESA issues, and greater 
use of impartial science to settle management questions. Several 
arguments underlie this stance. For instance, judges are not 
technicians--they may therefore make the ``wrong'' decision. The 
judicial process is also overtly political, with individual judges 
having well-known positions. Finally, court actions are incredibly 
costly--any means (such as better science) that can eliminate such 
costs is to be favored.
    A third point from Table 1 is the striking difference between 
groups in which parts of ESA need review. Simply put, each group favors 
review of those provisions of the Act which they find unpalatable. Pro-
development organizations want less listings of species, and favor 
review of listing decisions. Pro-environment groups are concerned about 
habitat loss under HCPs, and want them reviewed before approval.
    In general then, a wide array of interests favors independent 
review, for essentially identical reasons. ``Peer review'' will mean 
less litigation, less agency control, more fairness and greater 
objectivity. It will also be a tool to overthrow particular ``wrong'' 
decisions (e.g. the Beach Mouse HOP, listing of fairy shrimps).
    Interestingly, the agencies themselves share some of these goals, 
and wish to respond to the public's concerns. In addition, an open 
responsive process will be less vulnerable to litigation. Agency staff 
typically believe that they are doing a difficult task with inadequate 
resources. Better scientific support would lead to better decisions, 
and better justification for any decision. Increasingly, agencies are 
seeing that ``it is better to do it right than to do it over''.
    Some of these different goals are compatible: some are not. Peer 
review will probably lead to a more open process that is less 
vulnerable to litigation on issues of scientific merit. Early review 
might also prevent some bad decisions, eliminating the need for 
litigation; it will not overturn all unpopular decisions. ESA actions 
are not made solely on scientific data; indeed, sometimes scientific 
information is inadequate or even lacking.
    Most of the groups in Table 1 make no recommendations on how peer 
review should be structured, other than that it be carried out by 
independent scientists. A few bills are more explicit. For instance 
Washington State House Bill 2505 uses an independent science panel to 
guide salmon management and recovery. In 1997 the proposed Endangered 
Species Recovery Act (Senate Bill 1108, Kempthorne) would have mandated 
peer review of listing petitions, and outlined a method for choosing 
reviewers. Individual plans may be quite specific: the Pacific Lumber 
HOP, for instance, sets up (at agency insistence) three review panels, 
each with a different makeup and selection process.
    Again, the type of the review process envisaged reflects the goals 
of the framers. The Kempthorne bill was predicated on the assumption 
that regulatory agencies and the courts make poor decisions regarding 
listing, and that balanced review (including input from the private 
sector) would result in fewer listings. The Pacific Lumber HCP dictates 
academic scientific panels because of agency distrust of the applicant, 
and a belief that scientific oversight would ensure compliance, and 
effective conservation. In both cases then, peer review is seen as a 
means to enforce a particular viewpoint. The structure and format of 
the review process is then tailored to fit this enforcement goal. By 
contrast, USFWS and the US Forest Service select peer reviewers for 
their own actions, and a primary goal is to establish scientific 
legitimacy. The structure of the review (open format, use of agency 
staff as reviewers) is again tailored to a particular goal. This 
process departs significantly from the use of independent peer review 
in academic science.
                          what is peer review?
    Scientific peer review evolved over 300 years as a way of setting 
and maintaining scientific standards. While it is not without it's 
critics, peer review is widely regarded as an effective way of 
upholding the quality of scientific endeavors. Non-scientists, who are 
generally unaware of the methods or subtleties of peer review, 
generally believe that if an article has been published in a peer 
reviewed journal it is more likely to be true. This is evident from the 
respect accorded to peer reviewed science in the courtroom and even on 
expose TV shows.
    Peer review has always been a closed system, confined within the 
scientific community. It has been practiced by scientists for science. 
It was not developed for use in a wider social political context. The 
beginnings of modem peer review date to the reamed Societies of the 
17th and 18th Centuries. Many of these Societies published not only the 
text of a presented paper but also the text of the ensuing debate. 
(Charles Darwin's theories on evolution were presented in such a 
format). However Societies realized that standards were necessary, and 
that not all papers were worthy of publication. Society officers, and 
editors emerged as the initial guardians of scientific standards. Over 
time, as science expanded, and the breadth of knowledge increased, 
scientists specialized. Consequently editors became less able to judge 
the scientific merit of the diverse and focussed topics presented for 
publication. Editors came to rely on an army of reviewing scientists 
with different areas of expertise, and who were themselves known, 
published, and respected within the scientific community. Editors 
conferred anonymity on reviewers as a way of encouraging frankness.
    Today's peer review is a rigorous and powerful activity. The most 
common types of peer review concern grant proposals or publications in 
scientific journals. In journal reviews, an editor sends a submitted 
manuscript to a number of scientists who are active in the authors' 
field. The accompanying letter generally asks the reviewer to comment 
on the quality of the data and conclusions, errors and omissions, 
appropriateness of the topic for the journal, and any editorial 
comments. The reviewer then recommends that the work be ``published as 
is'' ``published with revisions'' or``rejected'' A reviewer of a grant 
application has two choices to recommend that the proposed work be 
``funded'' or ``not funded'' on the basis of the science. Typically all 
these recommendations are written anonymously where the identity of the 
reviewer is concealed.
    Being a reviewer confers power. A reviewer not only comments on the 
quality of the science under review, but also makes decisions on what 
happens to that work within the scientific community. A research 
program can disappear, or a manuscript fail to be published because 
reviewers judge it as scientifically inadequate. Clearly there are 
dangers here, when a scientific competitor can delay or even prevent 
publication of a rival's work. A good editor or grant program 
administrator recognizes these dangers and takes action to limit them. 
At the same time, it is essential to the process that reviewers are 
heeded, and their recommendations followed. A journal editor that 
consistently ignores review comments will quickly lose credibility, and 
probably their job.
    There is no formal training as a peer reviewer. The main 
qualifications are to have already published in peer reviewed journals, 
and to be recognized as a scientist who carries out good work. Review 
skills are largely assimilated in graduate school, during debates, 
journal clubs, and in review of already published papers. Because 
reviews are limited to the academic arena, the process is generally 
successful. The contributing scientist, editor and reviewers share 
similar backgrounds and education, with a common understanding of what 
constitutes good science. Scientists, policymakers, managers, advocacy 
groups and the public lack this common culture.
                             the minefield
    The use of science in resource management decisions is strikingly 
different from academic science. Few scientists are trained or 
experienced in how policymakers or managers use or understand science. 
Simply putting academic peer review into a management context is a 
recipe for misunderstanding and frustration.
    Some of the key differences:
    1. A decision will be made. Scientists are trained to be cautious, 
and to make only statements that are well supported. Managers have a 
different task: to make a decision using whatever information is 
available. In the context of peer review, scientists usually send 
incomplete work back for further study; managers often cannot do this.
    2. ``Best available versus adequate''. Managers and decisionmakers 
are instructed to use the best available science. Scientists may regard 
this same science as incomplete or inadequate. Decision-makers would 
like good science, but they must use what is available. Statements, in 
a peer review, that a piece of evidence does not meet normal scientific 
standards may not be relevant to a decisionmaker. Hence the burdens of 
proof in management decisions are likely to differ from academic 
science. The AIBS/NCEAS study of HCPs, and the USFWS response to it, 
clearly illustrates the pitfalls of using academic standards of 
adequacy.
    3. ``Best available not all adequate''. In academic science, two 
competing ideas or theories may both be supported by data, and both may 
spawn publishable work. Management needs to know which is best--i.e. it 
may require a judgment between conflicting data. Scientists rarely make 
such calls.
    4. Decisions are based in more than science. Ecology can only 
advise decisionmakers, who must also weigh legal concerns, public 
interest, economics, etc. Hence scientists should avoid making 
recommendations on decisions, and focus just on technical issues of 
science.
    5. Reviewers as advocates. In academic science, it is assumed that 
a reviewer is impartial and attempts to set aside any personal biases. 
Indeed, reviewers are asked not to complete reviews if they have pre-
formed opinions. In management situations, when reviewers are selected 
from a diversity of interests, it is assumed that, for instance, 
reviews solicited from environmental advocates, or development 
interests, will reflect the background of the reviewer. Hence the 
manager must balance the data against the source.
    6. Speed. Academic scientific reviews are completed at a leisurely 
pace-weeks or even months. This is not acceptable in management 
situations. Often the only reviews that arrive will be from reviewers 
with a strong personal interest.
    7. Anonymity and retaliation. Academic reviews are typically 
anonymous. This encourages frankness and discourages professional 
retaliation for a negative review. Reviews in management situations 
must usually be open. This will promote dialog, and perhaps ensure a 
fair review. However some scientists will be reluctant to make strong 
statements which are subject to public scrutiny.
    8. ``Qualified versus independent''. Often the scientists best 
qualified to be reviewers have already been involved in a conservation 
issue. Many HOP applicants for instance are extremely reluctant to have 
``inexperienced'' ecologists from the professional societies. They 
prefer ``experienced'' scientists who understand the rationale and 
techniques of an HOP (see Santa Barbara group report). This sets up a 
tension between demonstrable independence and necessary experience.
    9. Language. Managers and decisionmakers may not be familiar with 
the language of science. Statistical issues are particularly likely to 
cause confusion.
    10. Reward structure. In academic science, reviews are performed 
free of charge, for the common good. Hence they are typically given 
lower priority than other more pressing tasks. In management 
situations, this will not work. Rewards (financial and otherwise) have 
been necessary for reviews of HCPs etc.
                           what can go wrong?
    A key issue for peer review in biodiversity issues is clarity: both 
of information and of an individual's role. Some of the dangers of lack 
of clarity are shown in examples of reviews in practice.
    The development of the management plan for the Tongass National 
Forest was a visible and controversial process. It provides a useful 
example of the confusion of roles that can occur. In order to 
incorporate the best available science, the USDA Forest Service set up 
an internal peer review scientific group that worked together with 
forest managers to develop a scientifically based management plan. To 
further ensure scientific quality, USDA Forest Service sent its drafts 
and plans to a respected group of external reviewers (mostly academic) 
as allowed under the Federal Advisory Committee Act. (This Act limits 
the type of outside review committees that agencies can use.) In 
reviewing the process, the USDA Forest Service scientists concluded 
that Forest Service managers and scientists had worked effectively 
together at all stages and that science had been effectively 
incorporated by managers into the plans and revisions. Indeed it had 
been a watershed event in bringing the two groups together. However, 
the interaction between the agency and external reviewers was not as 
cordial.
    The external peer review committee members on the Tongass National 
Forest planning for old growth associated wildlife species 
independently issued a joint statement concerning the measures proposed 
to address protection of old growth associated wildlife species. In 
contrast to the internal reviews, this group was largely critical of 
the management proposed on the basis of the science. They concluded 
that, in some aspects of the plan, none of the proposed actions 
responded meaningfully to the conclusions reached by the peer 
reviewers. They further argued that ``the USDA Forest Service must 
consider other alternatives that respond more directly to the 
consistent advice it has received from the scientific community before 
adopting a plan for the Tongass.'' It's clear that the scientists felt 
ignored. Further it is within the responsibility of the scientists to 
respond to the inconsistency of the science and the decision. In the 
same statement, scientists noted that there were specific actions that 
should be carried out immediately to protect critical habitat. These 
included, for instance, no road building in certain types of forest, 
and the protection of low elevation old growth through ``lowgrading.''
    The Tongass experience illustrates several of the problems in 
applying scientific peer review to management. Firstly, independent and 
internal reviewers reached diametrically opposite opinions--the 
decisionmakers must now determine whether this difference was caused by 
inexperience or bias, and which set of opinions to follow. Whatever the 
eventual choice, the track record of dissent will increase 
vulnerability to legal challenges, and political interference. Second, 
the independent scientists feel ignored, and that their scientific 
opinions have not been integrated into management decisions. This again 
increases the vulnerability of those decisions. Third, the independent 
scientists make clear management recommendations--they feel that their 
science alone should drive management decisions. Most managers and 
decisionmakers will disagree with this point of view.
    Far from strengthening management decisions, peer review at the 
Tongass raised new problems. Confusion of roles and objectives was a 
major cause of these difficulties. A well-trained science manager might 
have prevented some of the problems, by giving clearer directions (In 
fairness the ``science consistency check'' process is new to the Forest 
Service, and some initial problems are to be expected).
    A different set of issues has arisen with peer review in Habitat 
Conservation Plans. Different approaches have been applied in different 
circumstances. The San Bruno Mountain and Pacific Lumber HCPs used 
academic scientific review panels who, from an early point in the 
process, guided the interpretation of science. These panels were 
advisory, and scrupulously avoided management recommendations, 
sometimes to the frustration of decisionmakers. The panels avoided 
setting levels of ``acceptable risk'', and tended to use conservative 
scientific standards. Rather than select the ``best available 
science'', the PL panel sometimes refused to express any opinion at 
all. Nevertheless the panel spoke with unanimity, and the marbled 
murrelet sections of the PL HCP appear well-crafted, when independently 
assessed.
    By contrast, the State of Oregon Northwest Forest HOP negotiation) 
used a post-hoc review by 23 ``independent'' scientists of a largely 
completed plan. The 23 reviewers were selected to represent a range of 
interest groups and experience. The corresponding diversity of 
responses include diametrically opposite opinions on several issues. 
This will render the opinions difficult to apply without further 
arbitration.
    As a final example of problems, the USFWS uses peer review of 
listing decisions. A few reviewers are selected at the local field 
office level, and are chosen from scientists ``involved'' in the issue. 
These reviews are unlikely to be independent, but may be more expert. 
Interestingly, the service reports a poor response from reviewers who 
are frequently late with reviews, or fail to respond at all. Reviewers 
are not rewarded in any way.
    Clearly, many issues can determine the outcome of a peer review 
process: how it is structured, who runs it, who are the reviewers, how 
they are rewarded, and how they are instructed, etc. Lack of attention 
to these details, and blanket application of an ``academic'' model has 
already led to problems, and will continue to do so.
             a model for peer review in biodiversity policy
    These past experiences can point the way to more effective 
integration of peer review into resource management. The following 
principles may be useful:
    1. The goals of peer review must be clearly stated
    2. Impartiality must be maintained to establish credibility
    3. Clear roles for reviewers are essential
    4. A balance must be sought between independence and expertise of 
reviewers
    5. Training of reviewers may be necessary
    6. A reward structure must be specified
    7. Early involvement of scientists will give better results than 
post-hoc evaluations
    Three other lessons can be deduced from past review efforts. First, 
academic scientists are rarely used to management oriented science. 
They may have roles as reviewers, but need careful instruction. The 
individual or organization that is coordinating the review needs to be 
experienced in both academic and applied science. Existing institutions 
lack the necessary experience (academia, professional bodies, 
academies, etc.), or are not seen as independent (e.g. branches of the 
regulatory agencies). There is a critical need for infrastructure to 
administer peer review, and for lists of trained and experienced 
reviewers.
    Second, a mediator or interpreter can be highly effective. 
Successful reviews (e.g. PL, Oregon HCPs) have employed a dedicated 
mediator, who can clarify roles, and eliminate misunderstandings 
between scientists and managers. This role is essential, because few 
scientists understand the policymakers' framework. Scientists may need 
encouragement in some areas, and may need to be dissuaded at other 
times from attempting to become managers. At the same time, managers 
may lack advanced training in e.g. statistics, and may need help in 
interpreting scientific statements. The interpreter can also act as the 
gate-keeper, ensuring scientific integrity and that reviewers are not 
put under pressure to make inappropriate management recommendations, or 
to become advocates.
    Third, a panel structure appears to give more consistently useful 
results. This is probably the result of continued involvement, and the 
opportunity of panelists to discuss issues among themselves. While 
panels sometimes produce conflicting opinions, they appear more likely 
to give unequivocal results than a collection of individual reviews.
                               conclusion
    There is enthusiasm for science and peer review, but little 
consensus on how to make the process work. Most notably, we lack the 
necessary infrastructure for developing peer review as a useful tool. 
Current institutions are either insufficiently experienced, or lack 
independence. Peer review cannot be guided by managers alone, nor by 
scientists alone. We need independent technical groups that have the 
necessary diverse skills, but are seen as impartial. The SEI Santa 
Barbara group, a consortium of diverse interests (environmental, 
business, agency and scientific) have begun development of a consensus 
program that will provide peer review as a public service.
    For centuries, the oracle at Delphi provided answers to all comers. 
This popularity persisted despite the oracle's responses being 
completely unintelligible; even after ``interpretation'' by Apollo's 
priests, problems were rife. Self-deception, and willful ignorance of 
alternative explanations appear to have been with us for millennia. 
Scientific peer review may be more recent than decisionmaking by 
oracle, but it shares some essential characteristics. Esoteric language 
of the priesthood (ecology) may be reassuring--whether we make good 
decisions will depend on how we interpret the advice.






   Developer Seeks to Protect the Environment from the U.S. Fish and 
                            Wildlife Agency
    Presley has been granted a hearing date on its petition filed today 
in Santa Clara Superior Court. Presley's petition asks the Court to 
order a grading permit issued for Presley's residential project in 
Santa Clara County. The Court will hear the matter on August 23, 1999.
    Presley Homes, the developer of The Ranch at Silver Creek, a 
residential community in the City on San Jose which would provide 538 
homes in the heart of the Silicon Valley where there exists a severe 
housing shortage. Construction of the 538 homes will use only 15 
percent of the 575 acres included in The Ranch at Silver. This is less 
than one house per acre. More than half of the property will be given 
to a non-profit environmental trust for use an conservation habitat. 
The developer would provide initial funding for the Trust of 
approximately $1.6 million and would arrange funding in perpetuity of 
$200,000 annually. Who could fault such a plan? None other than the 
United States Fish and Wildlife Service.
    On July 26, 1999 Presley was informed that the city of San Jose 
could not issue a grading permit due solely to improper threats and 
interference by the U.S. Fish and Wildlife Service with the city's 
permitting process. The Service, which has threatened legal action 
against the city, is falsely representing that the Ranch at Silver 
Creek potentially endangers protected species, and is therefore within 
the Service's jurisdiction. In fact, there are no protected animals 
species on the site. Moreover, Presley's habitat conservation plan 
provides for the restoration and enhancement of protected species.
    Since 1990, The Ranch at Silver Creek has undergone extensive 
environmental and planning review by local, State and Federal 
agencies--including the Army Corps, U.S. Environmental Protection 
Agency, the Regional Water Quality Control Board, the Santa Clara 
Valley Water Distinct, the city, the Service, and the California 
Department of Fish and Game. Presley has secured all of the necessary 
approvals and permits for each stage of the project to date. The U.S. 
Fish and Wildlife Service has actively participated in the regulatory 
review process for The Ranch at Silver Creek from its inception. At 
each stage of the process, the Service has objected to the issuance of 
permits and approvals. But, at each stage, except for the one at hand, 
the Service's objections have been rejected by the reviewing agency. By 
threats, false representations and innuendoes, the Service is now 
attempting to accomplish indirectly what it could not directly or 
lawfully. .
    The Service falsely claims it is trying to protect the Bay 
Checkerspot Butterfly. In fact, all scientific evidence shows that 
there is no Bay Checkerspot Butterfly on this property and hasn't been 
one on the property since 1995. The Service has not produced one shred 
of evidence to the contrary. While an habitat conservation plan could 
not have been imposed upon Presley under Federal law, Presley has 
nevertheless agreed to a comprehensive habitat conservation plan as 
part of the environmental review process. The habit conservation plan 
includes a 71-acre Bay Checkerspot Butterfly restoration area, to be 
governed (along with other open acreage) by the non-profit 
environmental trust. The net effect of Presley's habitat conservation 
plan is that 298 acres (or approximately 52 percent of the site) is to 
be set aside as trust-funded restoration/preservation areas.
    Presley environmental team has exercised avoidance of environmental 
impacts to these sensitive areas. When Presley bought the property, the 
site plan called for filling the degraded Hellyer Creek corridor. 
Presley redesigned the plan to preserve Hellyer Creek and over 90 
percent of the site's wetlands and the riparian habitat will be 
preserved and enhanced. The entire lush riparian corridor of Silver 
Creek will be preserved and enhanced with oak trees grown from local 
seed. Presley has already built a wetland pond to provide a breeding 
habitat for the California tiger salamander, with translocation of 
adult tiger salamanders from existing residential neighborhoods, and 
successful breeding of these adults in the pond has been documented. 
The plan also avoids endangered plants such as the Metcalf Canyon 
jewelflower and dudleya, and the plant restoration part of the 
conservation plan calls for transplanting, propagating, seeding and 
enhancing habitat for these species. All of this is in jeopardy because 
of the actions of the U.S. Fish and Wildlife Service.
    Presley had already begun clearing the property when the Service 
interfered. At this point grading needs to be completed to insure 
proper erosion control before the rainfalls begin this winter. The area 
graded drains into Silver Creek asked Coyote Creek, which in turn flow 
into the San Francisco Bay.
    The Service's eleventh hour interference with the city's permitting 
process consists of false representations about its jurisdiction over 
the permitting process, and unwarranted threats of legal action against 
the city. The Service's interference is:
     Improper--because it exceeds its jurisdiction and/or is an 
abuse of its powers,
     Unfair--because it has had every opportunity to influence 
the environmental aspects of The Ranch at Silver Creek from its 
inception, but chose not to or was rejected; and
     Environmentally counterproductive--because Presley is 
unable to implement its voluntarily adopted, comprehensive habitat 
conservation plan, which includes a 71-acre area dedicated to the 
restoration of the same butterfly species which the Service improperly 
asserts needs protection.
     Environmentally counterproductive--Unless Presley obtains 
the grading permit forthwith, it will be unable to complete the grading 
necessary to secure the site against the imminent onset of seasonal 
rainfalls, with the inevitable result of substantial and irreparable 
damage to the environment, as well as to the economic interests of 
Presley, the city, and surrounding property owners.
     Economically harmful to the city and State--The Ranch at 
Silver Creek would provide much needed housing in the heart of the 
Silicon Valley which is an important part of California's economy.
                                 ______
                                 
   The Presley Companies Files Suit Against the City of San Jose to 
                      Proceed with Housing Project
    Newport Beach, CA--August 10, 1999--The Presley Companies 
(NYSE:PDC) and Cerro Plata Associates said today they have filed a 
lawsuit to obtain appropriate permits to allow their Ranch at Silver 
Creek housing development to move forward.
    The Ranch at Silver Creek would provide 538 homes on approximately 
15 percent of the total property. More than 50 percent of the total 
acreage will be a protected environmental habitat as part of a 
conservation plan established by Cerro Plata and the remaining 33 
percent is dedicated to a golf course. Cerro Plata, of which Presley 
Homes is a member, is the developer of The Ranch at Silver Creek.
    Presley pointed out that ``Notwithstanding the eminently clear 
environmental mitigation actions we have taken with respect to this 
project and despite the fact that noted ecologists have embraced our 
plans and succinctly approved them, the U.S. Fish and Wildlife 
Commission has fought this project every step of the way and fought it 
on spurious grounds.
    ``For example,'' Presley continued, ``The Commission claims that 
the Bay Checkerspot Butterfly, an endangered species, is on the 
property. All evidence is to the contrary and shows that this species 
has not been on the property for nearly 5 years, a fact that the 
Commissions disputes, but refuses to produce any evidence for its 
position. Moreover, the Ranch at Silver Creek development specifically 
establishes 71 acres as a Checkerspot Butterfly restoration area, as 
well as other open acreage. The habitat conservation plan Cerra Plata 
has established will have an initial finding of $1.6 million, of which 
$1.3 million will be applied to this restoration area. Moreover, this 
conservation plan is not just for 1 year, or 2, or 3. It is established 
in perpetuity with funding of $200,000 annually.''
    Presley stated that ``The city of San Jose is in the heart of the 
Silicon Valley, an area that is undergoing California's worst housing 
shortage. We have taken every possible precaution to mitigate 
environmental damage to this area. And in fact, our plan will restore 
several endangered species. If we do not proceed on schedule, if we are 
prevented from doing so by the Fish and Wildlife Commission, that 
entity itself will be responsible for potential significant 
environmental damage.''
    The company said ``if we are prevented by the Commission from 
moving forward with appropriate grading of the property and completing 
that grading before mid-October, seasonal rains will likely cause 
substantial amounts of exposed, unstable soils to wash into an adjacent 
creek basin resulting in severe environmental harm to not only the 
creek, but the San Francisco Bay into which it drains. This event will 
violate State and Federal clean water laws and clog nearby flood 
control channels, with the potential result of flooding, in existing 
residential areas.''
                                 ______
                                 
   Statement of Michael A. O'Connell, Senior Advisor for Science and 
             Policy of The Nature Conservancy of California
    Mr. Chairman and members of the Committee, thank you for the 
opportunity to address this committee on the science of regional 
conservation planning under the Endangered Species Act (ESA).
    The Nature Conservancy is an international non-profit conservation 
organization dedicated to preserving the plants, animals and natural 
communities that represent the diversity of life on Earth by protecting 
the lands and waters they need to survive. We maintain offices in all 
50 states and work with partner organizations in 17 countries. We have 
helped protect 10.5 million acres in the United States and Canada and 
ourselves own 1,600 preserves--the largest private system of nature 
sanctuaries in the world. Our efforts are supported by more than 
1,000,000 individuals members and hundreds of corporate associates 
committed to reversing degradation of the biodiversity and natural 
resources on which our lives depend.
    The Nature Conservancy has been involved in conservation planning 
under the ESA since Section 10(a) was authorized in 1982. We have 
played a major role in a number of Habitat Conservation Plan (HCP) 
processes, including Coachella Valley California, Clark County, Nevada, 
Balcones Canyonlands in Texas and the Natural Community Conservation 
Planning program in Southern California. Our organization has witnessed 
the evolution of habitat conservation planning from its beginnings on 
San Bruno Mountain to its current State of the art in Southern 
California with the NCCP program. The comments and observations I offer 
today reflect both the Conservancy's long experience and my own as a 
student and practitioner of conservation planning.
    There are two key points in my testimony. The first is that habitat 
conservation planning as it has generally been practiced under the ESA, 
while an important tool in protecting endangered species, has not 
achieved the conservation gains that the ESA contemplates, namely the 
recovery and delisting of species. There are a number of reasons why 
this is so, and I will try to focus on the scientific ones. Second--the 
good news--is that there are some scientific and biological adjustments 
that can be made to the planning program to greatly increase 
conservation outcomes without undermining the other benefits the 
program provides. I want to use the example of the Southern California 
regional conservation planning program under NCCP to illustrate many of 
these points.
                  the limitations of current practice
    Before undertaking an examination of the science of HCPs, it is 
important that we look at what HCPs are as a conservation tool and what 
they are not. Section 10 of ESA provides a way for non-Federal project 
proponents to avoid the legal consequences of incidentally taking 
endangered species in the course of otherwise lawful activities. Almost 
all HCPs are begun when a proposed activity is likely to result in the 
take of a listed species, and the conservation provisions that arise 
from an HCP are generally intended to avoid or mitigate the take of 
some individuals of a species. Is that wrong? Probably not. Full 
mitigation for unavoidable impacts is arguably a fairly reasonable 
standard for private parties. But is that good conservation? I submit 
that it falls far short of conservation of biological diversity, nor is 
it the type that the Endangered Species Act intends--recovery of listed 
species.
    Part of the problem is that HCPs as they have been practiced are 
initiated much too late from a scientific standpoint. Most are begun 
when a species is already listed, which means that it is almost at the 
brink of extinction. Many biological--and political and economic--
options are foreclosed by that point.
    Most HCPs are also the wrong biological scale. While there has been 
an increase recently in multiple-species conservation plans around the 
country and the Fish and Wildlife Service has promoted them, even these 
plans are still mostly focused on reacting to proposed effects on 
listed species on non-Federal land. They have rarely been used as a 
mechanism to create conservation solutions in advance of conflict on a 
broad scale for interconnected natural communities of species. And 
biologically, most HCPs miss an entire scale of conservation--that of 
ecosystem level process and function that sustains those species.
    The U.S. Fish and Wildlife Service has been working hard to improve 
the habitat conservation planning program. They have done their best to 
try and make the HCP program more conservation oriented, both through 
practice and through policy. What's more, this issue is perhaps the 
most emotional, difficult and controversial issue in contemporary 
conservation policy and the Service is in the middle. Their solutions, 
however, are limited by a legislative policy weak on natural systems 
conservation and on incentives to participants. It is difficult to 
envision a broad-based, conservation-focused program arising from a 
statute that is largely based on prohibiting improper actions rather 
than enabling and encouraging constructive ones. The Service has done 
well, all things considered.
    So, what is the answer to these issues from a scientific 
standpoint? Many have suggested that it lies in improving the recovery 
planning process. If we have good recovery plans, they say, then we'll 
be able to handle all of those other issues. I disagree. We believe 
that recovery planning is not the best solution for a couple of 
critical reasons. First, it is still species focused. While there are a 
few multiple species recovery plans in existence, they are generally 
still focused on the species themselves and not on natural communities 
and other critical scales of biological diversity that are essential to 
craft a viable solution. Even if they were not, there's no regulatory 
handle for anything other than species. Second, recovery plans also 
come too late. They are only prepared when a species is listed. And 
Congress is unlikely to legislate recovery plans and enforcement 
authority for species that are not yet listed.
    Others have suggested that the answer lies in new legislation to 
regulate ecosystems. While this is a good idea it is not very 
practical, because from both biological and regulatory perspectives 
species are the only reasonably definable unit. Besides, there will 
always be species that require specific, individual intervention to 
survive and should not be ignored. So directing all our attention at an 
ecosystem scale is also an incomplete solution. The key instead is how 
we focus our entire suite of conservation actions and how they are 
deployed.
                         scientific principles
    There are some basic scientific principles that must be considered 
if we are to effectively achieve broad-scale, natural community 
conservation under the ESA (Noss et al. 1997).
    A. Biodiversity conservation must be concerned with many different 
spatial and temporal scales. There is never one best scale for either 
research or action. The key is to find the most appropriate scale for 
the problem at hand and then integrate across scales in an overall 
conservation strategy. The problem with endangered species conservation 
to this point is that it frequently focuses exclusively on a scale that 
is too small, both geographically and biologically. It is appropriate 
to evaluate the impact of a housing project on a beach mouse colony, 
but we should also be evaluating how that decision integrates into the 
overall survival of both that species and the entire barrier island 
natural community.
    B. Ecosystems are more complex than we think. There are many 
complexities at all levels of biological organization that cannot be 
measured, perceived, or even conceived of, that directly affect the 
viability of conservation solutions. Science can never provide all the 
answers to questions about conservation, so the response should be to 
exercise both caution and prudence when designing answers. Wise 
solutions don't necessarily try to compensate for factors that cannot 
be defined, but at the same time they leave room for them. A good 
example of this is true adaptive management, where the results of 
ongoing monitoring are used to adjust the conservation program based on 
new information and changes in circumstance.
    C. Nature is full of surprises. Ecological systems are 
characterized by non-linear, non-equilibrium and often seemingly random 
dynamics. Both unexpected events and unanticipated consequences affect 
the long term viability of any conservation solution. This uncertainty 
is a given, and its runs directly counter to the political, social and 
economic desire for predictability in the outcome of conservation 
plans. It is better to be forthright in acknowledging that the issue of 
``No Surprises'' is not a scientific question of predicting the future, 
but instead a social question of how to deal with those surprises.
    D. Conservation planning is interdisciplinary, but science is the 
foundation. Creating a long-term solution for species and the 
ecosystems on which they depend is a complicated exercise in 
reconciling social, political, legal, economic and biological factors. 
But if science must be one of several competing interests in the 
negotiation instead of the method of evaluating how to reach specified 
objectives, then conservation outcomes will always be undermined. This 
raises the critical issue of how to integrate both scientific 
information and scientists themselves into the planning process.
                          potential solutions
    Given these important principles and the limitations of current 
conservation planning practice and policy in crafting long lasting, 
broad-scale solutions to endangered species problems, what are some 
scientific improvements that can be made to the program? Fortunately, 
there is now a good example of how to break the mold to improve both 
the science and the policy of conservation planning.
    The Natural Community Conservation Planning program in California 
is an attempt to move beyond the reactive conservation planning of 
tradition and to a more up-front, creative program that will provide 
greater biodiversity conservation gains while at the same time, 
enabling broader regulatory certainty than is possible under a single-
species, project by project oriented program.
    NCCP is a useful illustration of the science issues involved in 
regional conservation planning, from data use to addressing questions 
of scientific uncertainty. The features that make it different, both 
scientifically and politically, from HCPs (even other large scale 
plans) are the way the program addresses the scientific principles 
listed earlier. Perhaps the most critical among them are the clear, 
regional scientific guidance that was developed early in the program, 
the habitat level of conservation action that emphasizes connectivity 
and landscape conservation, and how biological information has been 
brought to bear on the planning process.
    The elements of Natural Community Conservation Planning (identified 
by the principle they address from above) that are relevant to today's 
testimony are:
    1. A Regional Framework for Habitat Conservation Planning, Analysis 
and Implementation (Principle A). NCCPs are based on formally 
delineated geographic planning regions. These regions contain a 
biologically significant scale of the habitat-types that are the focus 
of the planning and implementation programs. This regional framework, 
both biological and political, allows for an emphasis on better long-
term habitat protection system design (large core habitat areas, 
landscape connectivity, etc.) while providing planning flexibility to 
allow for appropriate development and growth.
    2. Habitat-based Conservation Planning and Action (Principles A and 
B). Unlike traditional habitat conservation plans that generally focus 
on the needs of individual species, NCCPs are created for groups of 
species connected through one or more shared habitat-types or ``natural 
communities.'' This approach is less concerned with the occupied 
habitats of listed species than with creating a regional conservation 
system based on strong principles of reserve design. By formulating 
solutions and taking most conservation actions at a habitat scale, 
long-term issues such as habitat fragmentation and connectivity between 
significant habitat areas are generally much more effectively addressed 
than by project-by-project, species oriented plans. This does not mean 
that the needs of individual species were ignored in the process. Some 
of them require specific attention. But rather than focusing on all 
species as if they were separate, NCCPs directs conservation action at 
the habitat scale.
    3. Comprehensive Management and Monitoring (Principle C). All land 
and water resources protected in NCCPs are managed strategically and 
adaptively to increase the habitat value of protected areas over time. 
Key features of adaptive management and implementation monitoring 
programs include:
     Feedback from a comprehensive research and monitoring 
program is used to modify land and water management actions and 
techniques as necessary over the life of the implementation program
     Comprehensive monitoring programs include monitoring of 
biological resources, assessing mitigation performance and monitoring 
implementation provisions such as funding and preserve assembly
     Periodic reporting is provided by the NCCP plan 
implementing agency to wildlife agencies and to the public (through 
workshops) to provide information and evaluate progress toward 
attaining program objectives
    4. Clear Scientific Guidance and Foundation (Principle D). NCCPs 
are based on well-applied scientific and commercial information linked 
directly and factually to decisions made under the plan. Key features 
of the scientific basis for NCCPs include:
     Independent (i.e., non-wildlife agency) scientists 
developed regional conservation guidelines early in the process to 
provide the broader biological context and scientific premises for 
large-scale planning. These guidelines were applied to individual plans 
and local situations
     Wildlife agencies assured that species survey protocols, 
habitat mapping and adherence to State law and regional conservation 
guidelines are applied
     Subregional and subarea plans were formulated with 
scientific input from local biologists and species experts consistent 
with the regional scientific guidelines
              critical scientific issues addressed by nccp
    When the California gnatcatcher was proposed for listing in the 
late 1980's, everyone recognized it was the tip of a very large 
iceberg. The consensus among all stakeholders, public and private, was 
that creating conservation plans for the entire range of the natural 
community and all its species was the only way to avoid the conflicts 
of dozens of future listings. To address this from a scientific 
perspective, the State of California assembled a panel of independent 
academic scientists to develop overall guidance for regional 
conservation plans. These regional guidelines were not a de-facto 
recovery plan, nor were they a prescription for local conservation 
solutions, but they provided a science-based framework and point of 
reference for the development of local plans, as well as way to measure 
the adequacy of those local plans from a regional natural community 
standpoint. The guidelines were, in a sense, the ``picture on the top 
of the puzzle box.''
    Approaching the problem from a regional, natural community based 
perspective allowed a number of key scientific issues to be dealt with. 
First, regional conservation guidelines provided a scientific mechanism 
for ensuring consistency of locally developed conservation plans. They 
were highly credible because they were developed by independent 
scientists. By addressing the issue of ecosystem scale and providing 
guidance on how to approach it, the regional guidelines freed local 
planners to focus on the species and habitats within their 
jurisdiction, but also to integrate their efforts with an equally 
critical regional whole.
    Second, by focusing conservation actions on a habitat level instead 
of exclusively on the individuals of a species and the habitat they 
currently occupied, NCCP did a much better job than most plans of 
minimizing further habitat fragmentation and even restoring habitat 
connectivity. Most HCPs seem pre-occupied with protecting the existing 
locations of species. For some species, this may neither be wise, nor 
even scientifically supportable. But NCCP concentrated instead on 
building a conservation system of the largest reserve areas possible of 
high quality habitat, connected throughout the landscape. This was 
obviously done with an eye to rare species locations, but these were 
one of several important factors rather than the driving force for 
reserve design. Some unoccupied habitat patches were protected at the 
expense of occupied ones because they provided better overall reserve 
design and long term viability for the natural community.
    Finally, no conservation plan can eliminate scientific uncertainty. 
As I stated before, surprises are inherent in nature. The real issue is 
who assumes the risk. But, a legitimate scientific issue for 
conservation planning is how to minimize the effect of unknowns on the 
long-term conservation strategy. The best way to do this in addition to 
a good regional framework and habitat based action, is with a 
comprehensive adaptive management and monitoring program that provides 
feedback to inform adjustment of biological management (and even 
potentially reserve locations during the preserve assembly period) 
based on the results of targeted research. This element is even more 
important in conservation plans based in a ``working landscape'' like 
timber production or agriculture or water delivery because, unlike in 
urbanizing settings, both the reserves and the impact areas may not be 
irreversible. In urbanizing or development settings, as with many HCPs, 
most impacts are permanent. Over time, some may fall victim to 
manifestation of scientific unknowns. But the best way to decrease the 
potential for this occurrence is through strong, regional reserve 
design and comprehensive monitoring and adaptive management.
                 recommendations on policy and funding
    Clearly, the best way to minimize endangered species problems is 
with a planning program that emphasizes preventative medicine, not 
emergency room care. It is essential to reiterate, however, that our 
current policy approach does not make this very easy.
    Enabling a regional, habitat based conservation planning program is 
difficult under the current configuration and implementation of the 
ESA. It concentrates both our policy and our resources on responding to 
immediate crises. The State of California had to pass special enabling 
legislation in 1991 to authorize NCCP to ``sustain and restore those 
species and their habitat which are necessary to maintain the continued 
viability of biological communities impacted by growth and 
development,'' and to ``streamline the regulatory process and provide a 
structure for economic development planning that provides reasonable 
predictability and assurances for future projects.'' The Federal ESA, 
without benefit of any policy changes, had to be creatively stretched 
to fit around those broad goals.
    Of perhaps greatest importance is a source of funding to develop 
and implement these plans. One lesson that has become crystal clear in 
working on NCCP and other conservation plans on private lands is that 
there is a gap in outcome between the mitigation the ESA requires in 
exchange for incidental take and what is needed to achieve lasting 
conservation of biological diversity. As long as that gap remains 
unresolved, we will never reach the conservation goals for biological 
diversity that we aspire to and we will never resolve the political 
conflict around endangered species. Recovery of species will remain 
both a lofty dream and a battle for courtrooms and lawyers. We could 
argue endlessly over whose responsibility it is to fill the gap--for 
example, some believe that it should be filled by requiring greater 
mitigation and compensation by private parties for their impacts. But, 
as I tried to explain earlier, there are habitats and places that are 
important for regional conservation of biological diversity where the 
ESA doesn't even apply. And there are still other places where we 
simply can't allow enough impacts to listed species to generate enough 
mitigation to fill the gap, even if we were politically inclined to do 
so.
    The real--and the most simple--answer lies in public funding to 
close the gap between what the law provides for and what long-term 
conservation of biodiversity requires. The current debate over re-
authorizing the Land and Water Conservation Fund seems to me to be the 
perfect opportunity to create an Endangered Species Problem Solving 
Fund that would allow regional, habitat-based conservation programs 
that are based in sound science and that create broad conservation 
solutions to receive the public funding needed to be successful. It 
would both allow habitat conservation plans to achieve much better 
conservation results and be a strong incentive to private landowners to 
participate in the objectives of the ESA.
    The Nature Conservancy is committed to work with Congress, public 
agencies and private interests to help resolve the important scientific 
issues surrounding habitat conservation planning. We are also fully 
committed to helping ensure that funding is available for long-term 
conservation successes. We focus all our own resources on this goal, 
but that is not enough--we need increased public investment in 
conservation. We congratulate the Committee on its vision in discussing 
these issues, and I thank you very much for the opportunity to provide 
input on behalf of The Nature Conservancy.


      Responses by Michael O'Connell to Additional Questions from 
                             Senator Chafee
    Question 1. In your testimony, you suggested developing an 
Endangered Species Problem Solving Fund and that it would provide a 
strong incentive to private landowners to participate in the objectives 
of the ESA. Can you elaborate on this? How would the fund be used?
    Response. As habitat conservation plans have evolved over the last 
two decades, they have moved toward more comprehensive, Multiple 
species solutions that cover large geographic areas. In many cases, 
plans have covered significant portions or even the entire range of 
some species. This evolution toward more comprehensive plans has been 
encouraged because it provides the opportunity to craft both broader 
regulatory benefits and a much more effective conservation outcome for 
both species and ecosystems. In other words, we can achieve better 
conservation while planning for a geographic region than we can project 
by project and species by species.
    At the same time, HCPs are by definition a process to permit take 
and not truly a ``conservation'' program for endangered species as 
envisioned by the ESA. They do not need to recover species in order to 
be permitted, in fact, they must simply avoid jeopardy for the covered 
species. This can become a significant problem when a plan covers the 
entire range of a species and it may even undermine the goals of the 
ESA. This type of plan becomes the de facto recovery plan for those 
species, but based on avoiding jeopardy, not achieving recovery.
    Some have suggested investing heavily in recovery planning as the 
way to avoid this problem. While this is one option, I believe that it 
is limited in two very important ways. First, recovery plans are 
species focused and generally don't provide real-world, practical 
solutions to the conservation problems faced by species. With a few 
notable exceptions, they don't confront the difficult choices faced by 
actually putting conservation on the ground, such as funding, capacity, 
program and data management, etc., that HCPs do. Second, recovery plans 
come far too late. They are only required for listed species. Another 
of the evolutionary outcomes of HCPs is that they have been conducted 
in earnest for species before they become listed; in many cases before 
their status is even known. This preventative medicine approach to 
conservation is a good one, but it needs to have a high standard, one 
not generally by HCPs.
    The real dilemma behind all this, and one I believe an Endangered 
Species Problem Solving Fund would help address, is one of equity in 
responsibility for achieving conservation and recovery under the ESA. 
HCPs generally require that those who propose take of species avoid, 
minimize and mitigate their impacts. Arguably that is a fair standard, 
since they if they compensate fully for their impact, then they are 
doing their share of conservation. That is generally all they must do 
anyway in order to get a Section 10 HCP permit. [Note: some observers 
have suggested that those who propose take of species be responsible 
for the entire cost of conservation? but I don't believe that is 
practical or equitable].
    The problem that the above discussion brings out is this: There is 
a big difference in conservation outcome between what endangered 
species need to persist or recover and what HCPs provide. At the same 
time, HCPs are getting bigger and more comprehensive and in some cases 
beginning to substitute for recovery planning. I believe this trend 
will continue. I also believe that HCPs are a generally good thing, 
because unlike many recovery plans, HCPs result in immediate, direct, 
conservation action. Their evolution toward a more multiple species and 
regional approach is also good, because it provides a significant 
opportunity to create broad-scale conservation benefits and the 
flexibility to balance it better with well-planned economic activity.
    All this background leads me to the conclusion that the outcomes of 
HCPs and the goals of the ESA are getting closer to conflict. There is 
a significant ``conservation gap'' between what HCPs provide and what 
the ESA envisions. That gap is measured in acres of habitat protected 
and in management of habitat preserved, and the gap can only be filled 
by funding. It appears over and over in HCPs for the reason stated 
above: HCPs are a program to permit take, not a program to conserve 
species. It is generally impractical and inequitable to demand much 
more from HCP applicants than is already being done in terms of their 
``share'' of the burden. The gap must be filled by public funding.
    My own experience in Southern California with NCCP is that the 
landowners and regulated community are doing at least their share, 
often more, but there is still a great need for additional land 
protection and management in order to achieve conservation and recovery 
for many species in that region. Without it, many of our rarest species 
in Southern California will disappear. The conservation gap exists and 
is very real. As a public funding solution we are given small Federal 
appropriations annually--which we are grateful for--but these pale in 
comparison to the need.
    An Endangered Species Problem Solving Fund--it could be 
administered by anyone, Interior or Congress--would allow regional, 
multiple species HCPs to tap into a source of public funding to help 
close the gap between the requirements of Section 10 and the ESA's 
goals. Based on experience, I and many others believe that this would 
significantly streamline the process of doing HCPs (providing benefits 
to landowners who often must wait years for plans to be approved) and 
do a great deal to quell the controversy over HCPs in the environmental 
community, who are acutely aware of the gap I have referred to. Without 
it, or some other source of funding to close the gap, I am afraid that 
HCPs will become more of a polarizing issue rather than the 
collaborative, solution building conservation program that they have 
the potential to be.

    Question 2. You have been involved in the development and 
implementation of one of the few systems-based conservation plans. One 
of the fundamental differences between the California NCCP and other 
multiple species plans is that the NCCP does not focus on counting the 
numbers of each species covered. Instead, you use indicator species to 
measure the success of the plan. In your opinion, is this approach 
valid from a scientific point of view? In other words, are indicator 
species a reliable means of assessing the status of other populations 
of species? How are these indicator species selected? What are the 
scientific issues that need to be addressed if you focus on preserving 
ecosystems, instead of protecting individual species here and there?
    Response. First, let me clear up what seems to be a little bit of 
confusion between using indicators from a planning perspective and 
using them from a regulatory perspective. The NCCP has effectively used 
both habitat-level and species level ``target'' species as a planning 
tool to make the scientific process of conservation planning more 
efficient. For example, three species, the orange-throated whiptail 
lizard, the California gnatcatcher and the coastal cactus wren, were 
determined by a scientific advisory panel to be effective target 
species for coastal sage scrub habitat (in other words, if the needs of 
these three species were provided for, that there was reasonable 
assurance that other species in the habitat would be conserved as 
well). This made the process of reserve design for that habitat type 
easier, because those three species could be ``targeted'' for 
conservation.
    But NCCPs do not use these species as regulatory surrogates. Each 
permitted NCCP plan has a lengthy ``covered species list'' and 
regulatory coverage is provided for each species. At the same time, 
each species on that covered species list must be justified for 
coverage on its own based on biological and scientific factors. Those 
factors may include the fact that its known habitat needs are covered 
by coastal sage scrub and that coastal sage scrub habitat was protected 
using the three target species, but each coverage decision is made on a 
species by species basis.
    Where the efficiency of a systems and target species based approach 
such as NCCP comes in is that the coverage decision can be made much 
more efficient. Because planning is done with respect to several 
ecological scales (natural communities, species, natural processes), 
species are much more efficiently conserved and evaluated for 
regulatory coverage than if they were being planned for one at a time. 
This is the real efficiency of a natural systems approach.
    It is critical to note that the targets have to be very carefully 
evaluated, and may only be valid for some of the species desired for 
regulatory coverage, not all. The idea of ``indicator species'' is 
controversial and unproven in the scientific community, but the known 
associations and interrelationships of species in a habitat can 
nevertheless be used to make the process of planning and coverage 
determinations more straightforward. For example, in NCCP, the three 
target species are useful in conserving coastal sage scrub habitat, but 
there are several plant species found in coastal sage scrub that are 
highly localized in their distribution and are not ``indicated'' very 
well by those species. Likewise, there are several other habitat types 
that are not indicated well by those coastal sage scrub species.
    Further, these same biological efficiencies can be used effectively 
during implementation of a regional habitat based plan. The best 
example I know of is the California gnatcatcher. Populations of this 
species are highly volatile, mostly due to climatic factors. Several 
experts on this species have stated publicly that perhaps the most 
inefficient way to gauge the status of gnatcatchers is to count the 
number of individuals, because the populations may change rapidly from 
year to year. Populations could rise or fall dramatically and we would 
have no way of knowing why if all we were doing was counting them. A 
much better way to monitor the status of gnatcatchers, in addition to 
occasional population counts, would be to develop a set of habitat 
indicators (called a habitat suitability model) and measure those. They 
might include anything that is known to be a factor in gnatcatcher 
survival such as--hypothetically--time since fire, percent ground 
cover, height of vegetation, etc. Measuring those would give a better 
indication of the overall health of the habitat and therefore 
populations of gnatcatchers, and more importantly, help determine WHY 
changes were occurring, than simply population surveys alone.
    So the ultimate answer to the question is both yes and no. In some 
cases, targets for both species and habitats can provide a good deal of 
biological and planning efficiency in achieving conservation outcomes. 
When they are valid, targets and indicators can make the process of 
reserve design more efficient and the process of implementation and 
adaptive management more accurate and cost effective. But at the same 
time, I would urge strong caution of using indicators as a regulatory 
surrogate for covering species. We know so little about how species and 
habitats interact that relying on such indicators as the sole tool for 
evaluating conservation action is guaranteed to be wrong. This is 
especially true when using habitat-types as indicators for species. In 
addition to habitats being difficult to define (certainly more 
difficult than species), they may work better for some than for others. 
For example, coastal sage scrub is a reasonable indicator for 
gnatcatchers, because if you have good quality coastal sage scrub, then 
you will most likely have gnatcatchers. But the same rule doesn't apply 
to many of the herpetofauna, insects and plants that have spotty 
distributions in coastal sage scrub or of the species that use coastal 
sage scrub as well as other habitat-types to survive. The indicator 
concept breaks down for those species.
    In NCCP, we have learned that applying biological information well 
to the problem of designing and managing conservation systems means 
using a number of tools, including habitat indicators, target species, 
and species-by-species surveys if necessary. The ultimate result is a 
covered species list, and each of the species on that list receives an 
individual determination. The key is how the determination is made, 
whether based on habitat protected, number of individuals conserved or 
associations with other conserved species. Importantly, those same 
determinations may be the measures used to evaluate the success of the 
plan over the long term.
    With all great respect then, the more accurate description of t]he 
fundamental differences between the NCCP and other multiple species 
plans is that NCCP doesn't ALWAYS focus on counting the numbers of each 
species covered. It doesn't have to, because planning is made more 
efficient through the use of a number of tools, including target or 
indicator species.
                                 ______
                                 
  Statement of Laura C. Hood, Conservation Planning Program Manager, 
                         Defenders of Wildlife
    Thank you for inviting me to testify regarding the scientific 
aspects of habitat conservation plans (HCPs) under the Endangered 
Species Act (ESA). My name is Laura Hood and I am the Conservation 
Planning Program Manager at Defenders of Wildlife (Defenders), a non-
profit conservation advocacy group consisting of over 300,000 members 
and supporters. Defenders is headquartered in Washington, DC., with 
field offices in Oregon, Washington, Florida, Montana, Alaska, Arizona, 
and New Mexico. Defenders' mission is to protect native animals and 
plants in their natural communities. As an organization that is 
committed to science-based management of endangered species on public 
and private land, Defenders has been heavily involved in individual 
HCPs and HCP policy at the national level.
                                summary
    Defenders recognizes the potential for HCPs to encourage private 
landowners to actively conserve not only endangered species but 
multiple species and communities. Nevertheless, we have grave concerns 
over the way HCPs have been implemented in the past, both in terms of 
the lack of scientific content and overall loss of habitat. Multiple 
studies and reviews have concluded that major gaps exist between the 
HCPs that have been developed thus far and what would constitute a 
scientifically sound HCP.
    The lack of information available for HCPs does not always imply 
that plans should not be developed; rather, we suggest policy changes 
that would encourage precautionary, scientifically based HCPs that 
reduce risk for endangered species.
     First, improve the amount of scientific information 
underlying HCPs through:
         better recovery plans
         designation of critical habitat
         development of regional conservation strategies
         increased involvement by independent scientists
     Second, scientific uncertainty will always exist, 
therefore HCPs must incorporate measures for reducing the risk to 
species that such uncertainty creates. HCPs must:
         be more precautionary in nature
         include adaptive management
         modify existing ``No Surprises'' assurances
         be consistent with the recovery of species
    In two important ways, the Services have recognized the need for 
such improvements to HCPs. They have published a new rule that allows 
for revocation of a take permit if the HCP is shown to be jeopardizing 
an endangered species. Second, they have drafted an addendum to their 
HCP Handbook that encourages adaptive management, biological goals, and 
monitoring. Because the guidance does not impose requirements upon HCP 
applicants, we continue to advocate for assurances for species that are 
comparable to landowner assurances under the ``No Surprises'' Rule.
                               background
    HCPs have been authorized under the ESA since 1982, but only 12 
HCPs were approved between 1983 and 1992. Since 1992, however, there 
has been an explosion of such approvals--as of 25 March 1999, the Fish 
and Wildlife Service and the National Marine Fisheries Service (``the 
Services'') approved 251 HCPs covering over 11 million acres, with over 
200 in development. Part of the impetus for the increase in HCPs was 
the ``No Surprises'' policy, established in 1994. The policy gives 
assurances to landowners that they will not have to provide additional 
funding or land commitments beyond what is included in the HCP. Despite 
vehement opposition by conservation organizations and scientists, this 
policy became a rule in 1998. HCPs can last for an unlimited time, and 
the area of individual HCPs varies from less than one acre to 5 million 
acres. Indeed, HCPs have become one of the most prominent mechanisms 
employed by the Services to address the problem of threatened and 
endangered species on private lands.
    Starting in 1996, Defenders formally started research that would 
culminate in our 1998 report on HCPs, entitled Frayed Safety Nets: 
Conservation Planning under the Endangered Species Act. In researching 
Frayed Safety Nets, we reviewed plans nationwide, then we selected a 
representative sample of 24 plans and evaluated them using criteria 
that should be satisfied in order for plans to lead to conservation 
benefits on private land. In the course of the research, we read each 
plan and associated documents, obtained any associated recovery plan 
for the species involved, and interviewed key plan officials. In this 
way, a detailed picture of the strengths and weaknesses of each plan 
emerged. The report itself summarized the plans and focused on the 
science, public participation, funding, and legal aspects of HCPs. Our 
objective was to point out the best and worst examples of these aspects 
of HCPs, and to examine national trends. Our findings showed that as 
they were being developed, many plans represented large risks to 
endangered species because often they lacked an adequate scientific 
basis, they were difficult to change over time if they resulted in 
unexpected harm to species, and they were inconsistent with species 
recovery. I will be discussing some of our findings and recommendations 
in more detail today in my testimony.
    In January 1999, a team of 119 independent scientists issued its 
own report on the scientific basis of 43 HCPs from across the country. 
Defenders has been engaged in activities associated with that study of 
HCPs, which was sponsored by the National Center for Ecological 
Analysis and Synthesis (NCEAS) and the American Association of 
Biological Sciences (AIBS). We've also been involved in followup to 
that study's findings, in identifying methods that are palatable to 
scientists and landowners of improving scientific information for HCPs.
    As a result of these studies and excellent research by other 
organizations such as the National Wildlife Federation, American Lands 
Alliance, National Audubon Society, and the Natural Heritage Institute, 
a disturbing picture of HCPs emerges. Put simply, it is far from 
certain that HCPs will be successful in stemming the further decline of 
rare species. Indeed, they often authorize the types of activities 
which have endangered habitat and destroyed ecological communities 
across the U.S. As they have been constructed so far, HCPs are not 
species protection plans leading to the recovery of species. They often 
result in a net loss of habitat, resulting in a hemorrhaging system of 
habitat across the country. Because these impacts are permitted under 
HCPs with large geographic scopes and long durations, HCPs pose great 
risks to endangered species. The risks to species are raised even 
higher when landowners receive ``No Surprises'' assurances that they 
will not have to pay for changes in HCPs if the plans are having 
unintended detrimental consequences for species. I do not believe that 
the solution to this problem is to abolish HCPs, but the key to 
improving the prospects of species' survival is to reduce the risk that 
current HCPs entail.
The Endangered Species Act
    As a backdrop to my testimony today, I would like to first consider 
how the ESA is designed to orchestrate the protection and recovery of 
imperiled species. As currently constructed, the ESA has all of the 
building blocks for supporting management and restoration of endangered 
species according to ecological principles and information. At its 
core, the purpose of the ESA is to conserve species and the ecosystems 
upon which they depend. This recovery-oriented purpose underlies every 
action conducted under the authority of the Act. Recovery plans, in 
turn, are supposed to provide scientifically based blueprints for the 
conservation of species under the Act. Indeed, we expect that recovery 
plans of the future will contain the scientific information and 
comprehensive, range-wide strategies that will guide not only Federal 
activities but mitigation guidelines and private landowner incentives, 
as well. The designation of critical habitat should strengthen the 
scientific infrastructure for conserving a species by providing 
information and guidance for Federal agencies as well as private 
landowners. Indeed, it is arguably irresponsible to permit habitat 
destruction when critical habitat has not been identified and 
designated. We discuss the nexus between critical habitat and habitat 
conservation plans further, below.
    Finally, habitat conservation plans and Federal agency 
consultations permit some degree of ``take'' of endangered species, 
provided actions are taken to offset that harm to the species. If a 
scientifically based recovery plan and critical habitat have been 
established for a species, such information and ecosystem-based 
strategies would provide an excellent infrastructure for constructing 
HCPs, with less of the ``guesswork'' that currently plagues landowners 
and the Services alike. Unfortunately, as the NCEAS/AIBS study 
revealed, basic information does not exist for many endangered species. 
Recovery planning has been underfunded and many plans do not have the 
amount of information or guidance that is necessary for them to be 
useful to private landowners. Despite the requirement for the Services 
to use the ``best available science'', this requirement does not demand 
that they acquire information when ``available'' science is 
insufficient. Not only must we build a better infrastructure of data 
using recovery plans, critical habitat designation, and ``best 
available science'', but we must reduce uncertainty and risk for 
species when that infrastructure falls short.
                            science and hcps
    The process of science enters into nearly every aspect of the HCP 
process. For example, in order to assess how much of a population will 
be ``taken'' under development or logging activities, a landowner must 
often employ biological surveys. Take may involve, as another example, 
land that is adjacent to an endangered bird's nest. In this case, it is 
necessary to have data on the expected home range of the bird pair and 
what habitat fledglings may use for dispersal. Beyond information on 
the amount of ``take'' under the HCP, the Services must determine the 
likely impact of that take on the species in question. This requires, 
among other information, scientific data on the global status and 
distribution of the species, what proportion of the species' range is 
affected by the HCP, and whether the HCP area contains excellent or 
poor habitat compared to other parts of the species' range.
    In order to understand what activities would be most effective in 
minimizing that take and mitigating it, landowners must understand the 
primary threats to species, and employ protection and management 
techniques that are data intensive. For example, the Washington 
Department of Natural Resources (DNR) has constructed an HCP for 
Northern spotted owls on 1.6 million acres of forest. According to 
their basic conservation strategy, spotted owl nesting habitat that is 
isolated from federally protected areas can be harvested, while habitat 
that is adjacent to such protected areas will be preserved. In this 
case, sophisticated ecological information is required to determine 
whether a forest tract is sufficiently isolated from federally 
protected habitat. Finally, scientific and statistical methodologies 
are necessary for designing appropriate biological monitoring and 
adaptive management in HCPs.
    Unfortunately, despite the critical importance of scientific data 
for HCPs, abundant evidence indicates that HCPs have fallen short of 
expectations for scientifically based plans. Much of the missing 
information concerns the status of the species addressed: according to 
the NCEAS/AIBS study, available data were insufficient to evaluate the 
current status for more than a third (36 percent) of species in HCPs. 
HCPs often involved mitigation strategies that have little data to 
indicate their probability of success. On a 4-point scale from 0 to 3, 
the quality of data underlying the choice of mitigation strategies was 
usually between 1 (very little, or quite unreliable) and 2 (moderately 
well-understood and reliable). This indicates that the selection of 
mitigation techniques was often little better than a guess. In Frayed 
Safety Nets, we found examples of manipulative management techniques 
(e.g., translocation) that often were not supported by data, we found a 
general lack of biological monitoring, and we found an almost total 
lack of formal independent scientific review. These troubling results 
indicate that the system for species protection under the ESA, 
including recovery planning, critical habitat, and best available 
science, has not provided the data infrastructure that is necessary for 
adequate conservation planning.
    As the NCEAS/AIBS study recommended, a much greater effort is 
needed to collect data on species and keep that information in 
centralized, readily accessible locations. Beyond the need for more 
information and better information management, however, HCPs must 
incorporate better ways of managing uncertainty and risk that results 
from insufficient data.
       opportunities to increase scientific information for hcps
Recovery Plans and Regional Conservation Plans
    To improve the scientific information underlying HCPs, planners 
must gather much better information about species and habitat 
distribution on property covered by the permit. Equally important, 
however, is organized, centrally accessible data on how populations on 
the HCP land ``fit'' within a larger picture of the status and 
distribution of the species throughout the larger region.
    Recovery plans for individual or multiple species can serve as 
repositories of comprehensive information on the status and 
distribution of species addressed in HCPs. Most species have recovery 
plans, however, it is extremely important to strengthen and update the 
scientific information contained in them. Recovery plans can also 
contain guidance on mitigation and habitat management. Having 
information-rich, updated recovery plans to guide HCPs puts HCPs within 
the context that they belong: into the sphere of recovery.
    Increasingly, institutions are developing regional or ecosystem-
based conservation management plans to preserve viable populations of 
species and representative distributions of natural communities. These 
plans are developed through a process of gathering all of the 
geographically based information on those species and communities in 
the region, examining how well they are currently protected, and 
identifying vulnerable resources and critically important areas. Some 
examples of these conservation management plans are the gap analysis 
projects going on in many states, The Nature Conservancy's ecoregional 
planning, and Defenders of Wildlife's Oregon Biodiversity Project. 
Comprehensive, regional plans like these can provide the information 
and context for much better HCPs that take cumulative effects and ``the 
big picture'' into account.
Critical Habitat
    Another essential plank in the platform underlying scientifically 
sound HCPs is the designation of critical habitat for endangered 
species. Once information is collected for recovery plans and regional 
conservation strategies, it should be obvious what areas are essential 
for the continued existence of endangered species. The vast majority of 
endangered species are primarily threatened by habitat loss, and 
identifying habitat that deserves special protection is one of the 
first steps toward stemming further population declines. The 
designation of critical habitat can aid the recovery of species by 
protecting occupied habitat as well as habitat that is necessary for 
dispersal, migration, or range expansion. With regard to HCPs, the 
Services must determine what habitat is critical for species' survival 
and recovery before permits are granted to destroy habitat. It is 
extremely risky to permit the destruction of habitat that may be 
critical to the species' survival and recovery.
    In debates over the merits or disadvantages of designating critical 
habitat, the Fish and Wildlife Service has protested that often, there 
is insufficient information for delineating critical habitat. If there 
is insufficient information for designating and protecting key habitat, 
however, there is insufficient information for granting permits to 
destroy habitat through HCPs.
    We are hopeful that the recent designation of critical habitat for 
the endangered cactus ferruginous pygmy-owl (Glaucidium brasilianum 
cactorum) in Arizona will provide a good example of the utility of 
critical habitat designation for conservation planning. Pima County, 
Arizona is engaged in the preliminary stages of a regional, multiple-
species HCP process, combined with a Sonoran Desert Conservation Plan 
(SDCP) for protecting sensitive habitat as well as other open space. 
These planning efforts (SDCP/HCP) were spurred by obligations for 
protecting the pygmy-owl. The bird's population in Arizona is extremely 
small (fewer than 75 known individuals based upon incomplete surveys), 
and the majority of individuals live in desertscrub habitat in a 
rapidly developing area to the northwest of Tucson. Because development 
is occurring so quickly and land values are increasing, the critical 
habitat designation should provide a basis for spurring additional 
habitat acquisition from willing sellers and should provide guidance to 
private landowners in pygmy-owl country.
Involving Independent Scientists
    The process of developing conservation plans always involves 
biologists from the Services and usually involves the landowner's 
biologists (either on staff or in a hired environmental consulting 
firm); involvement or review by outside experts occurs occasionally. In 
HCP development, independent scientists who have expertise in the 
species and habitats of concern can lend important data and advice on 
management and preserve design. In addition, review of plans by 
independent scientists can increase the quality and credibility of the 
biological information and conservation strategies. Independent review 
of monitoring and adaptive management programs can be particularly 
helpful, because such programs can be quite complex. We recommend that 
independent scientists be consulted much more often as HCPs are 
developed. While we do not necessarily advocate independent peer review 
of every HCP, independent scientific involvement should be more 
prevalent and it should start early in the HCP development process. 
Interested members of the public who will be affected by the HCP should 
also be involved early in HCP development.
               recommendations for managing risk in hcps
    By improving independent scientific involvement, recovery plans, 
and critical habitat designations, the amount and use of scientific 
data for HCPs should improve. Because there will never be perfect 
information for making HCP decisions, however, it is essential to 
recognize scientific uncertainty in the HCP process and implement 
procedures for managing risk to endangered species and to landowners.
    The U.S. Government has largely minimized uncertainty for 
landowners in HCPs through the ``No Surprises'' Rule, which provides 
that they will not have to commit more money or land in the HCP than 
what was delineated in the plan. Minimizing uncertainty associated with 
predicted effects on endangered species, however, remains to be done.
Incorporate Precautionary Measures and Adaptive Management
    To ensure that impacts to imperiled species are indeed being 
minimized and offset as much as possible, HCPs must recognize and 
address scientific uncertainty. When data are sparse, as they are for 
most threatened and endangered species, it may be difficult or 
impossible to adequately assess the threats to and future prospects for 
population viability. This inadequacy does not override the importance 
of ensuring that such viability is not compromised. Instead, 
standardized protocols should be developed to recognize where 
uncertainty exists and take it into account while an HCP is still under 
development.
    In the face of limited information to guide an HCP, planners can 
minimize uncertainty for species in two ways: incorporating 
precautionary measures and improving its effectiveness over time 
through adaptive management. When information is scarce, precautionary 
measures can be incorporated into HCPs in multiple ways, including 
intensively investigating alternatives to ``take''; ensuring that 
mitigation is successful before take occurs (where possible); and 
limiting the duration of take permits and assurances.
    Adaptive management, or mid-course changes in management based upon 
monitoring information, environmental fluctuations, or additional 
scientific information about the species, is an essential component of 
scientifically based HCPs. In particular, one would expect that when 
uncertainty about species is high, HCPs would have more adaptive 
management provisions (e.g., mid-course corrections). The NCEAS/AIBS 
report revealed, however, that when uncertainty about mitigation for 
species was high, HCPs were actually less likely to contain a 
discussion of future changes in management strategies: 45 percent of 
the 38 cases with insufficient data on mitigation included a discussion 
of changing management over time, whereas 77 percent of the 48 cases 
with sufficient data did so. In our analysis for Frayed Safety Nets, we 
found few examples of adaptive management. From that sample of 24 
plans, the Washington Department of Natural Resources HCP was the only 
example in which the permittee would conduct research and adaptive 
management over time, AND it would waive ``No Surprises'' assurances if 
changes in management proved to be more costly than anticipated.
Modify the ``No Surprises'' Rule
    Ever since the ``No Surprises'' policy was initiated in 1994, 
scientists have protested its inherent restriction on changing 
management of endangered species in response to fluctuating 
environmental conditions or new scientific information. In 1996, a 
group of 167 scientists wrote: ``In a nutshell, [No Surprises] does not 
reflect ecological reality and rejects the best scientific knowledge 
and judgment of our era. It proposes a world of certainty that does 
not, has not, and will never exist'' (letter available with this 
testimony). Since then, ``No Surprises'' assurances have been expanded 
so that they apply for long time periods (up to 100 years), and 
landowners receive assurances for multiple species that may be listed 
in the future. This expansion of assurances exacerbates the scientific 
problems associated with ``No Surprises''. From an environmental policy 
perspective, the ``No Surprises'' Rule has no precedent in 
environmental regulations of any kind. Private interests have simply 
never been granted permits with such immunity from the repercussions of 
their actions.
    Under ``No Surprises'', adaptive management is fundamentally 
restricted by the fact that no additional money or land can be required 
of permittees. Perhaps more importantly, under ``No Surprises'', 
landowners have a disincentive to incorporate adaptive management into 
their HCPs. Since ``No Surprises'' assurances are granted whether 
adaptive management is incorporated into an HCP or not, landowners have 
no reason to introduce uncertainty into their responsibilities under an 
HCP. A more rational policy would grant assurances to landowners based 
upon the likely benefit or impact to the species, the amount of 
information available, and the extent to which the landowners 
incorporate monitoring and adaptive management. H.R. 960, the 
Endangered Species Recovery Act, contains one solution to this problem 
because it would establish a Habitat Conservation Plan Fund and require 
performance bonds to cover the costs of implementing additional 
conservation measures.
Ensure That All HCPs Are Consistent with Species Recovery
    Finally, risks to endangered species would be greatly reduced if 
HCPs were required to promote species' recovery. Indeed, the word 
``conservation'' is defined in the ESA as efforts directed toward 
recovery and delisting. Currently, the Fish and Wildlife Service does 
not require such consistency, despite the fact that HCPs can cover such 
vast areas, including a high proportion of some species' entire ranges. 
If recovery does not occur under HCPs, some species will simply never 
recover. When an adequate recovery plan exists, it becomes easier to 
determine whether an HCP is consistent with overall recovery.
                               conclusion
    Although the analysis of HCPs by scientists and conservation 
organizations has painted a gloomy picture of the scientific basis for 
these plans, we see some hope in the future for improving HCPs. In two 
important ways, the Services have acknowledged the need for HCP 
improvement. They have published a new rule that allows for revocation 
of a take permit if the HCP is shown to be jeopardizing an endangered 
species. In addition, the ``5-Point Plan'' guidance that the services 
have drafted contains some of the solutions to the dilemma we face. The 
draft guidance contains encouragement for HCPs to include adaptive 
management, biological monitoring, and identification of biological 
goals. Because these measures are not required through regulations, we 
can only hope that landowners are willing to comply with this guidance. 
These measures to improve HCPs are costly, but consider the cost to the 
general public down the line and for future generations if HCPs fail to 
conserve species.
                                 ______
                                 
  Responses by Laura Hood to Additional Questions from Senator Chafee
    Question 1. You stated in your testimony that the amount of 
scientific information underlying HCPs can be improved through better 
recovery plans and designation of critical habitat. However, in 
practice, many HCPs are developed well before recovery plans have been 
drafted or critical habitat designated. In light of that, what can 
landowners reasonably do to ensure that they are using the best science 
that is readily available?
    Response. As you are aware, this is a valid and important concern 
for many private landowners. It is unfortunate that recovery plans 
often require years to develop after a species is listed, and many 
private landowners wish to move ahead with HCPs before the U.S. Fish 
and Wildlife Service and the National Marine Fisheries Service (``the 
Services'') finalize the relevant recovery plan. For species that have 
been listed for many years, the relevant recovery plans may be so out 
of date that they do not contain the best available science upon which 
to base an HCP. As for critical habitat, U.S. Fish and Wildlife Service 
has designated critical habitat for only approximately 9 percent of 
listed species, therefore, many HCPs must go forward without the 
benefit of designated critical habitat for guidance.
    In some cases, it may be impractical to delay HCP approval until 
the Services have developed a recovery plan and designated critical 
habitat. Of course, this in no way relieves the applicant and the 
Services from developing a plan that is consistent with species 
recovery and uses the best available scientific information. One way to 
address this dilemma is for the Services to develop a conservation 
assessment in the listing notice or immediately upon listing. This 
assessment would contain mitigation guidance for nonFederal landowners. 
Since the best available scientific information should go into a 
listing determination, the determination provides an opportunity to 
provide preliminary guidance on what measures might be most effective 
in mitigating the species' most important threats.
    More importantly, HCPs that are being developed without the benefit 
of recovery plan and critical habitat information must include 
additional steps to include available information and minimize risk for 
species when information is lacking. In my testimony, I recommended 
that HCP developers involve independent scientists, particularly when 
information is missing. Involving independent reviewers allows all 
parties to know whether all available information is being used, to 
identify gaps of information that must be filled immediately, to 
evaluate risks of different HCP alternatives, and to give all parties 
greater confidence in the likely effectiveness of the HCP. In addition 
to independent scientists, it may also be appropriate to involve 
recovery team members, to ensure that the nascent recovery plan and HCP 
are consistent.
    In my testimony, I also suggested a number of different measures 
that should be undertaken in the face of insufficient information for 
HCPs. These measures are all the more crucial when a recovery plan and 
critical habitat designation are missing. If HCP developers can 
incorporate precautionary measures and adaptive management, then the 
lack information will not result in irreversible mistakes that pose 
unacceptable risks for threatened and endangered species.

    Question 2. How should the ESA be changed to provide for greater 
public involvement in the HCP process?
    Response. This question is also extremely important because HCPs 
are management plans that affect large areas for long periods of time. 
They affect not only endangered species but often open space 
availability, air quality, and water quality. Unfortunately, effective, 
meaningful input from the full variety of stakeholders is extremely 
rare for HCPs. In part, this stems from current government policy that 
when single landowners develop HCPs, they can choose whether outside 
parties get involved.
    Nevertheless, citizens need to be able to be involved in all stages 
of the HCP process, from scoping to plan development to biological 
monitoring. This is especially important for any large-scale, multiple-
species HCP. Many large, multi-landowner HCPs already have public 
involvement because local governments take the lead on plan 
development. But this needs to be more common in all large HCPs, 
regardless of whether a government agency leads plan development or 
not. One solution is for the Services to adopt regulations that lay out 
public participation requirements that depend upon the scale and 
duration of plans. In a variety of situations, the Services have 
considerable experience in creating steering committees or other groups 
to facilitate public involvement, and this experience can help the 
Services craft regulations that would provide for more consistent 
public participation.
    Finally, a simple step to increase public input for HCPs is to 
require a minimum of 60 days for public comment on draft HCPs. The 30 
days currently provided for public comment is inadequate for citizens 
to become aware of a draft HCP, receive the documents, and provide 
meaningful comments.

    Question 3. Should improvements to the science of HCPs be 
mandatory? In other words, should all HCP applicants be required to 
undertake measures to improve the scientific basis of their individual 
HCPs?
    Response. To answer your third question, I do believe that some 
scientific improvements for HCPs ought to be required. Recently, the 
Services published a draft ``Five-point Plan'', addendum to their HCP 
Handbook which contained several necessary improvements for science in 
HCPs. The draft addendum recommended that each HCP have explicit 
biological goals, that biological monitoring become standard for HCPs, 
that adaptive management be incorporated for HCPs that lack adequate 
scientific information, and that the duration of HCPs be limited when 
information underlying the HCP is scarce. The draft addendum is an 
example of how principles and procedures can be adopted for HCPs 
without imposing specific requirements that may not be appropriate for 
every HCP. For example, it is obvious that a large, multiple-species 
HCP would require a larger investment in biological monitoring than a 
small HCP. It would be counterproductive, however, to require that 
every HCP, regardless of size, monitor a certain number of habitat 
characteristics according to a certain sampling scheme.
    Although the guidelines in the draft addendum will result in 
improvements in many HCPs, they will not be incorporated into the 
Services' regulations governing the approval of HCPs and issuance of 
incidental take permits. I see no legal or policy reason for why they 
are being proposed as guidance only. As I said in my testimony, not all 
HCPs are bad for species, but regulations are necessary for preventing 
HCPs that are scientifically bankrupt or inconsistent with species 
recovery. In fact, currently, landowners arguably have a disincentive 
to develop effective adaptive management for HCPs. When all landowners 
automatically receive ``No Surprises'' assurances that they will not 
have to pay for costly changes that may become necessary under HCPs, 
they are unlikely to voluntarily include adaptive management provisions 
that would introduce uncertainty into their HCP obligations. Instead, 
it is entirely appropriate to require improvements to the HCP process 
in order to facilitate the incorporation of good scientific information 
and the scientific process.
                                 ______
                                 
       Attachments Submitted by Laura Hood, Defenders of Wildlife
Statement on Proposed Private Lands Initiatives and Reauthorization of 
 the Endangered Species Act from the Meeting of Scientists at Stanford 
                               University
    When the Endangered Species Act was authorized in 1973, Congress 
charged the Departments of the Interior and Commerce to conserve the 
ecosystems upon which threatened and endangered species depend, and to 
do so ``using the best available scientific and commercial data.'' 
Despite remarkable growth in our scientific understanding of the 
conservation needs of threatened and endangered species during the past 
two decades, controversy continues to surround the Act, especially as 
it affects the use of private land. The Act's provisions for the 
treatment of imperiled species on private land are of major 
conservation concern both because, according to some estimates, more 
than half of all listed species occur wholly on private land, and 
because listed species on private land are faring worse in general than 
those on Federal lands.
    Various bills recently introduced in Congress propose changes in 
the Act's provisions for treating listed species on private land. The 
private lands provisions proposed in draft legislation would modify the 
habitat conservation planning (HCP) language of Section 10(a) of the 
Act. The HCP process was designed to mitigate substantially the impacts 
of otherwise legal activities on listed species. However, many recent 
HCPs have been developed without adequate scientific guidance and there 
is growing criticism from the scientific community that HCPs have the 
potential to become habitat giveaways that contribute to, rather than 
alleviate, threats to listed species and their habitats.
    The proposed new provisions have the potential to either improve or 
worsen the conditions of listed species on private lands, depending on 
whether or not habitat conservation planning and management are based 
on objective scientific evidence and methods. To provide guidance on 
the scientific implications of proposed private lands provisions, a 
group of nationally respected conservation biologists met at Stanford 
University in February. Among the undersigned are ecologists and 
geneticists with extensive experience in conservation planning for 
imperiled species. Our group includes individuals with widely differing 
positions on how best to achieve the goals of the Endangered Species 
Act. The diverse composition of our group should give weight to our 
conclusions.
    In considering private land conservation planning initiatives, we 
restricted ourselves to five agenda items that recur in draft bills and 
ongoing discussions in congressional and conservation circles: (1) the 
``No Surprises'' policy, (2) multiple species conservation planning, 
(3) ``safe harbor'' initiatives, (4) prelisting agreements, and (5) 
small-parcel landowner initiatives. We understand that this is not an 
exhaustive list of potential private lands policies and programs. We 
also recognize that there is overlap among many of the proposed 
provisions, for example, the No Surprises policy is often viewed as an 
obligatory component of the other proposed provisions.
    As the following discussion makes clear, we believe that the 
current proposed private lands amendments to the Endangered Species Act 
will not further the Act's goals unless those measures are implemented 
in a scientifically sound manner. However, our group believes that with 
essential stipulations, ``landowner-friendly'' initiatives can assist 
in meeting our nation's goal of protecting its unique and valuable 
natural heritage.
                              no surprises
    More aptly labeled ``fair assurances'' to landowners, ``No 
Surprises'' policy promises that if private landowners protect targeted 
species under a Habitat Conservation Plan or the equivalent, they then 
will not have to underwrite future conservation requirements that may 
develop due to new information or changed circumstances. Should the 
species require further conservation efforts, the costs would be 
largely borne by the public rather than the landowners.
    A ``No Surprises'' policy is troubling to scientists because it 
runs counter to the natural world, which is full of surprises. Nature 
frequently produces surprises, such as new diseases, droughts, storms, 
floods, and fire. The inherent dynamic complexity of natural biological 
systems precludes accurate, specific prediction most situations; and 
human activities greatly add to and compound this complexity. Surprises 
will occur in the future; it is only the nature and timing of surprises 
that are unpredictable. Furthermore, scientific research produces 
surprises the form of new information regarding species, habitats, and 
natural processes. Habitat Conservation Plans, therefore, are 
inevitably developed and authorized under conditions of substantial 
uncertainty and may ultimately prove inadequate. Unless conservation 
plans can be amended, habitats and species certainly will be lost.
    We appreciate that ``No Surprises'' policy is not a guarantee that 
conservation plans will not change, but a contractual commitment to 
shift some of the financial burden of future changes in agreements to 
the public. In that light, the following features should constitute 
minimum standards for HCPs with ``No Surprises'' assurances. First, it 
must be possible to amend HCPs based on new information, and it should 
not require ``extraordinary circumstances'' to do so. Second, to 
underwrite program changes when parties other than the landowner 
request and justify them, there must be a source of adequate, assured 
funding that is not subject to the vagaries of the normal appropriation 
processes. We expect that the costs of fixing inadequate HCPs may be 
substantial. Third, mechanisms to ensure that long-term conservation 
plans will be monitored adequately are essential. Monitoring habitat 
changes or ecosystem functions cannot substitute for the monitoring of 
target species. Moreover, new scientific information from monitoring 
should be incorporated into management as that information becomes 
available. Fourth, HCPs must clearly articulate measurable biological 
goals and demonstrate how those goals will be attained under the plans. 
Plans should not undermine the recovery of listed or vulnerable 
species. Fifth, assurances to landowners should only be extended for 
those targeted species for which the plan articulates species-specific 
goals that further conservation in a regional context, rather than in a 
local, piecemeal fashion.
                         multiple species hcps
    Although Habitat Conservation Plans originally focused on 
individual species in local areas, today many planners are finding it 
preferable (biologically and often economically) to plan for multiple 
species over entire regions. In the absence of scientifically credible 
recovery plans, multiple-species HCPs should clearly articulate 
conservation goals and must demonstrate their contribution to the 
conservation or recovery of targeted species. In addition, muitiple-
species HCPs should assume an extra burden of rigor, requiring 
independent scientific review of goals, design, management, and 
monitoring. There should be a standing body of independent scientists 
to establish minimum scientific and management standards for multiple-
species HCPs. The comprehensiveness of independent scientific review 
should be appropriate to the size and duration of the plan.
    Muitiple-species Habitat Conservation Plans cannot be based solely 
on the distribution and extent of different habitat types because this 
information does not yield effective predictions of the distribution 
and abundance of individual species. Such HCPs, therefore, must focus 
on specific target species, such as endemic, listed, indicator, and 
keystone species. If one species is chosen as an indicator of the 
status of another species of conservation concern, the plan should 
validate the connection between them. Species that are critical for 
ecosystem integrity, whether or not they are listed as endangered or 
threatened, should be among the indicators chosen. In addition, the 
viability of all target species ``covered'' by a plan must be 
considered in a greater regional context, often well beyond the 
boundaries of the planning area itself. Adequate distributional and 
ecological information should be made available to assess the plan's 
impacts on all covered species.
    Multiple-species Habitat Conservation Plans must include adequate 
research and monitoring programs. The target species covered by the 
plan, such as endemic, listed, indicator. and keystone species, must be 
monitored individually. Plans also must include an adaptive management 
program, so that management can be improved in the light of new 
information obtained by monitoring or other means. As is the case for 
``No Surprises,'' besides being amendable, multiple-species HCPs must 
have an assured source of funds to support potential amendments.
                        safe harbor initiatives
    Safe harbor initiatives encourage private landowners to increase 
the amount of habitat available to endangered species. In the past, 
many landowners have been reluctant to restore or enhance habitat for 
fear of incurring added regulatory burdens that will curtail future use 
of their property. Under safe harbor policy, the landowner is obligated 
to maintain only the baseline utilization of the property by the 
species prior to habitat improvements, which means that the landowner 
will be free to undo those improvements at a later date.
    Most of our group believes that deleterious consequences to 
protected species from safe harbor initiatives will be infrequent and 
that safe harbors could prove to be an important inducement to 
overcoming landowner unwillingness to take actions beneficial to 
imperiled species. Nonetheless, two concerns should be addressed in 
safe harbor agreements. First, the concepts of ``baseline population'' 
and ``utilization'' require a clear definition. Sources of scientific 
uncertainty should be addressed in defining the baseline status of 
species, just as for the No Surprises policy. The determination of the 
safe harbor baseline depends on reliable survey techniques and 
scientific interpretation. Second, some species may be better 
candidates for safe harbor agreements than others as a result of their 
distribution, resource needs, and habitat area requirements. Species 
are distributed across diverse landscapes with habitat areas of varying 
quality. In addition, species vary widely in their ability to move from 
one area of habitat to a neighboring one. Thus, we believe that the 
value of safe harbor agreements must be evaluated on a species-by-
species basis. In the absence of scientifically credible recovery 
plans, safe harbor agreements should document their potential 
contributions to the conservation or recovery of target species within 
an entire region rather than on a single piece of private property.
                         prelisting agreements
    Under a prelisting agreement, a landowner would take actions to 
benefit an unlisted rare or declining species before it is listed. This 
has the potential to benefit species conservation because a species is 
afforded no protection on private land under the Endangered Species Act 
until it is listed. Nevertheless, prelisting agreements must not become 
an easy substitute for necessary listings.
    Prelisting agreements often will be negotiated in the face of 
significant levels of scientific uncertainty--we know little about many 
of our listed species, less yet about many unlisted species. Because 
prelisting agreements should benefit species, we recommend an enhanced 
level of attention and critical review of the biological circumstances 
under consideration in proposed prelisting agreements. The Federal 
Government will have to deal with an inevitable shortfall of 
information; that situation can be partially corrected by (1) 
developing the most complete data base possible to inform the decision, 
(2) clearly articulating how the prelisting agreement will benefit the 
targeted species, and (3) applying the necessary concomitants of the 
``No Surprises'' policy. The latter should include an ability to amend 
agreements, the availability of funding to support amendments, adaptive 
management with effective program monitoring, sufficient consideration 
of the regional planning context, and independent scientific review.
                   small-parcel landowner initiatives
    Considering the cost, complexity, and time required to complete 
Habitat Conservation Plans and implement them, the idea of expediting 
the permitting process for small landowners is attractive. But we note 
that in many areas with imperiled species, private landholdings consist 
almost entirely of small parcels. When both large and small parcels are 
interspersed, the small parcels may contain most of the key habitat. 
Either way, the cumulative impacts of many small projects on imperiled 
species may be substantial. In addition, me relative impacts of small 
landowner activities vary greatly depending upon which endangered or 
threatened species live on their land. The loss of but five acres of 
remnant habitat could doom to extinction more than a few listed 
species. We are concerned that expediting the permitting process could 
come at a significant cost to species persistence.
    Our group believes that any policy that allows for expedited HCPs 
should also require that such agreements not compromise the viability 
of targeted species within the planning region, and should explicitly 
consider and limit cumulative deleterious effects from incremental 
habitat losses. If a recovery plan exists, expedited HCPs must be 
consistent with the plan. Otherwise, to ensure coordination of existing 
and future HCPs, a regional analysis of species status should be 
required before any expedited HCPs or exemptions are considered.
                     independent scientific review
    While Habitat Conservation Plans and other conservation agreements 
that we have discussed above may offer promise for improved species 
protection on private and other nonFederal lands, serious questions 
remain about their effectiveness for long-term species conservation and 
recovery. Because many recovery plans and HCPs lack scientific 
validity, because the private lands proposals discussed above remain 
largely untested, and because endangered species protection and 
recovery must be based on the best available science, we believe that 
independent scientific review must become an essential step in the 
implementation of the Endangered Species Act. Such review should be 
carried out by scientists with no economic or other vested interests in 
the agreement. It is critical to start the review process early in the 
project, including the design phase.
                               conclusion
    Finally, while not strictly a ``science'' issue, we strongly agree 
that implementation of the Endangered Species Act would be immensely 
improved if funding were increased and agency staff were better 
trained. We agree that better enforcement of the Act's prohibitions by 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service would benefit listed species. We also agree that the Act's 
goals are compromised by conflicting laws and regulations that 
encourage actions that directly and indirectly contribute to species 
endangerment. And we concur that a wide array of incentives and 
inducements for better Act compliance by private parties could serve to 
benefit species conservation greatly if implemented in a scientifically 
responsible manner.
    We hope that these observations and our sciences recommendations 
above will help Congress to enact legislation that will make the 
Endangered Species Act more acceptable to private landowners while 
strengthening the protection of species and habitats on private lands.
                                 ______
                                 
                                                     July 23, 1996.
Hon. John Chafee,
U.S. Senate,
Washington, DC.

Hon. James Saxton,
U.S. House of Representatives,
Washington, DC.
    Dear Senator Chafee and Congressman Saxton: We are writing as a 
group of conservation scientists who all have professional experience 
with biodiversity protection and who are concerned about the U.S. 
Endangered Species Act and the future of environmental and human well-
being in the United States. We wish to comment on the proposed Saxton 
bill, an amendment of the Endangered Species Act of 1973. We will limit 
our comments to the role and use of science in the ESA.
    First, we wish to commend you for the tremendous time and effort 
you are expending on behalf of the ESA. We recognize and appreciate 
your commitment to this, our most important environmental law, which is 
so central to the conservation of biodiversity, and thus ultimately to 
the welfare of all Americans. As you know, complete, functioning 
ecosystems, with their great diversity of species and processes, are at 
the very heart of a functional and prosperous society. Degradation of 
nature has always led to societal decline and eventually its collapse. 
That you recognize the importance of addressing these difficult issues 
speaks well of you.
    From a scientific perspective, the proposed amendments offer some 
very positive features, but there are also some troubling issues that 
we ask you to revisit. The most prominent of these is the ``No 
Surprises'' section of the legislation. In a nutshell, this section 
does not reflect ecological reality and rejects the best scientific 
knowledge and judgment of our era. It proposes a world of certainty 
that does not, has not, and will never exist.
    Modern ecological paradigms, based on the best work of the day, all 
recognize change, uncertainty, dynamics, and flux as the best 
descriptors of ecological systems. Every ecosystem of which we are 
aware changes over time: in species composition and abundance, in 
structural complexity, in nutrient dynamics, in genetic composition, in 
virtually any parameter we choose to measure. The time scales of these 
changes vary among parameters, but you can always count on change. In 
fact, some of us like to say that the only thing certain about 
ecological systems is their uncertainty. Because we will always be 
surprised by ecological systems, the proposed ``No Surprises'' 
amendment flies in the face of scientifically based ecological 
knowledge, and in fact rejects that knowledge. The sources of this 
uncertainty are many, cannot be eliminated, and are illustrated by the 
following:
     Environmental uncertainty--unpredictable, localized 
environmental events such as fires, disease outbreaks, storms that 
alter forest structure, and the like.
     Natural catastrophes--Extreme and widespread events such 
as hurricanes, volcanic eruptions, or very widespread fires.
     Genetic uncertainties--losses or changes of genetic 
structure in small populations that affect their future adaptability.
     Demographic uncertainties--the influence of random events 
on survival of very small populations.
     Indirect effects--effects on species or parts of 
ecosystems as a result of a change elsewhere in the system.
     Nonindependent effects--synergisms between separate 
effects that reinforce one another.
     Cumulative space effects--non-independence of effects 
occurring in separate places, but which together buildup to a large 
effect.
     Insufficient knowledge--nature is more complex than we can 
even imagine, and we are always learning something new that revises our 
perspectives.
    In short, nature is non-linear, dynamic, disturbance-driven, and 
affected by thresholds. We wish to make it clear that there is no 
scientific basis for claims of ``No Surprises''; in fact, ``surprise'' 
is a good working view of natural systems. The ``No Surprises'' clause 
clearly is a political, not a scientific perspective.
    There is another aspect of this approach that troubles us. The 
Nation is moving forward, and we feel in a very positive way, toward 
ecosystem approaches of natural resource management. One of the 
cornerstones of these new approaches is ``adaptive management,'' which 
has at its heart the willingness to approach management as an 
experiment, to continually examine and test management options, and to 
change and improve over time. ``No Surprises'' seems to close the door 
to adaptive management by saying that, once an agreement is made, new 
and better scientific information will not alter it. This not only 
ignores all present scientific knowledge of ecological systems, as 
discussed above, but denies the ability to manage in an adaptive way 
that welcomes and incorporates new information and allows and 
encourages improvement.
    We understand and sympathize with the motivations behind this 
amendment. We encourage working with and incorporating the views of 
private landowners, creating incentives for good land stewardship, and 
assuring landowners that their responsible behavior will not be met 
with new problems. But our collective scientific experience indicates 
that there will be many surprises in conservation planning. The real 
issues are: (1) the quality of Habitat Conservation Plans; and (2) at 
whose expense the surprises will occur, and how the risk will be 
allocated.
    We suggest that some of the controversy over the ``No Surprises'' 
policy could be averted if: (1) the section were renamed ``assurances 
to participants'' or some such thing; (2) the standards for an approved 
HOP addressed ecosystem resilience rather than certainty; and (3) 
funding were included to help deal with surprises. Essentially, the 
bill would better reflect scientific understanding if its language 
explicitly recognized the centrality of surprises (unforeseen problems 
or new biological requirements) and the necessity to modify 
conservation plans as we learn more from research and monitoring. High 
quality HCPs would be worth public backing, so most importantly, the 
bill should authorize a funding mechanism for plan revision, which in 
some cases would need to include land acquisition. It is only fair that 
the costs of plan revision be shared by the public at large rather than 
borne solely by the private parties who in good faith have agreed to 
the plan, and that these parties should be compensated for expenses 
incurred as a consequence of modifications to plans. We stress that 
plans must remain flexible, responsive to new information, and 
adaptable because of the inherent uncertainty of nature; to do that, 
funding is critical.
    There are two other points on which we wish to comment, though in 
much less depth because we know others will discuss them in greater 
detail. First, it appears as though Sections 7 and 9 of the existing 
law will be substantially weakened by the proposed amendments. 
Proposals pertaining to HCPs and NSCPs create new mechanisms for 
waiving the current portions of the ESA that prohibit injury to or 
killing of endangered species. The National Research Council report on 
the scientific basis for the ESA clearly noted that these section 7 and 
9 provisions provide much of the power of the ESA. This is where the 
Act can do some real good for biodiversity and provide effective 
species protection. Weakening of these sections can be disastrous to 
the intentions of the law.
    Second, the amendment proposes that criteria for Relisting would be 
those outlined in recovery plans. However, those plans are negotiated 
documents, not necessarily based on scientific data; they are not, in 
fact, scientific documents. Presently, Relisting criteria are the same 
as listing criteria, which are based on the best scientific information 
available. We urge you to retain that delisting methodology.
    We hope that these comments, based on current state-of-the-art 
scientific knowledge, will be of use to you as you continue to wrestle 
with the difficult questions of species and ecosystem protection. 
Please understand that the community of conservation scientists remains 
ready and willing to offer their knowledge and expertise to craft a 
scientifically sound and effective bill that will protect our natural 
resources and the needs of our citizens to the benefit of all.
            Sincerely,
                    Gary K. Meffe, Senior Ecologist and Professor, 
                            Savannah River Ecology Lab and University 
                            of Georgia, Drawer E, Aiken, SC 29802, 
                            phone: (803) 725-2472; fax: (803) 725-3309 
                            e-mail: [email protected]; Kyler Abernathy, 
                            Department of Fisheries and Wildlife, 
                            University of Minnesota; Ira R. Adelman, 
                            Professor and Head, Department of Fisheries 
                            and Wildlife, University of Minnesota; Fred 
                            W. Allendorf, Professor, Department of 
                            Biological Sciences, University of Montana; 
                            Stuart K. Allison, Assistant Professor, 
                            Ecology Central College, Pella, Iowa; David 
                            R. Anderson, Professor, Department of 
                            Fishery & Wildlife Biology, Colorado State 
                            University; Jon D. Anderson, Fisheries 
                            Biologist, Washington Department of Fish & 
                            Wildlife; Jonathan L. Atwood, Director, 
                            Avian Conservation Division, Manomet 
                            Observatory for Cons. Sciences; Ronald J. 
                            Baxter, Senior Ecologist, Baxter Consulting 
                            Services; Paul Beier, Assistant Professor, 
                            School of Forestry, Northern Arizona 
                            University; Lee Benda, Geomorphologist, 
                            10,000 Years Institute; Arthur C. Benke, 
                            Professor, Biological Sciences, University 
                            of Alabama; Bradley J. Bergstrom, Associate 
                            Professor, Biology, Valdosta State 
                            University; Tim M. Berra, Professor 
                            Emeritus, Zoology, The Ohio State 
                            University; Robert Beschta, Professor, 
                            Forest Hydrology, Oregon State University; 
                            Kevin R. Bestgen, Research Scientist, 
                            Department of Fishery and Wildlife Biology, 
                            Colorado State University; Daniel W. 
                            Beyers, Department of Fishery and Wildlife 
                            Biology, Colorado State University; Rob 
                            Bierregaard, Biology Department, University 
                            of North Carolina, Charlotte; James Boone, 
                            Scientific Applications International 
                            Corp.; Dee Borsma, Professor, Department of 
                            Zoology, University of Washington; Richard 
                            A. Bradley, Associate Professor, Department 
                            of Zoology, Ohio State University, Marion; 
                            David F. Brakke, Assistant Dean and 
                            Professor, Biology, University of 
                            Wisconsin--Eau Claire; Richard Brewer, 
                            Emeritus Professor, Biological Sciences, 
                            Western Michigan University; Peter F. 
                            Brussard, Professor and Director, 
                            Biological Resources Research Center, 
                            University of Nevada; Paul R. Cabe, 
                            Assistant Professor, Biology, St. Olaf 
                            College; C. Ronald Carroll, Professor of 
                            Ecology and Director, Conservation Ecology 
                            and Sustainable Development Graduate 
                            Training Program, University of Georgia; 
                            Ted Case, Professor, Biology, University of 
                            California, La Jolla; Joseph J. Cech, Jr., 
                            Professor and Chair, Department of 
                            Wildlife, Fish, and Conservation Biology, 
                            University of California, Davis; Ronald K. 
                            Chesser, Professor, Ecology, University of 
                            Georgia; Deborah L. Clark, Department of 
                            Botany and Plant Pathology, Oregon State 
                            University; Joseph A. Cook, Curator of 
                            Mammals, University of Alaska Museum; 
                            Kendall W. Corbin, Professor, Ecology, 
                            Evolution, and Behavior, University of 
                            Minnesota, St. Paul; Walter R. Courtenay, 
                            Jr., Professor, Department of Biological 
                            Sciences, Florida Atlantic University; 
                            Richard Crawford, Professor and Assoc. 
                            Chair, Department of Biology, University of 
                            North Dakota; Colbert E. Cushing, Retired 
                            Professor, Richland, Washington; Brent 
                            Danielson, Associate Professor, Iowa State 
                            University; James E, Deacon, Distinguished 
                            Professor, Environmental Studies Program, 
                            University of Nevada, Las Vegas; Lynda 
                            Delph, Associate Professor, Department of 
                            Biology, Indiana University; Pamela DiBona, 
                            Environmental Sciences Program, University 
                            of Massachusetts Boston; Robert C. Dowler, 
                            Professor, Biology, Angelo State 
                            University; Kathleen Doyle, Botany 
                            Department, University of Wyoming; Sam 
                            Droege, Monitoring Biologist, National 
                            Biological Survey, Patuxent Wildlife 
                            Research Center; Christopher P. Dunn, 
                            Director of Research, The Morton Arboretum, 
                            Lisle, Illinois; Mark Easter, Botanist, 
                            Center for Ecological Management of 
                            Military Lands, Colorado State University; 
                            W. Daniel Edge, Wildlife Ecologist, Oregon 
                            State University; David Ehrenfeld, 
                            Professor of Biology, Rutgers University 
                            and Founding Editor, Conservation Biology; 
                            Erich Carr Everbach, Professor, 
                            Environmental Studies, Swarthmore College; 
                            J. Whitfield Gibbons, Professor, Ecology, 
                            University of Georgia, Dr. Ross Goldingay, 
                            Lecturer, Wildlife Biology, Southern Cross 
                            University, Lismore, NSW, Australia; 
                            Charles C. Grier, Professor and Head, 
                            Department of Forest Sciences, Colorado 
                            State University; James W. Grier, 
                            Professor, Department of Zoology, North 
                            Dakota State University; Nancy B. Grimm, 
                            Associate Research Scientist, Zoology, 
                            Arizona State University; David J. Hafner, 
                            Chief Curator, New Mexico Museum of Natural 
                            History and Past-President, New Mexico 
                            Academy of Science; Eric M. Hallerman, 
                            Associate Professor, Virginia Polytechnic 
                            University and State University; Judith L. 
                            Hannah, Department of Earth Resources, 
                            Colorado State University; Dean A. 
                            Hendrickson, Curator, Ichthyology, Texas 
                            Natural History Collection, University of 
                            Texas; Edward J. Heske, Wildlife Ecologist, 
                            Illinois Natural History Survey; Kent E. 
                            Holsinger, Associate Professor, Dept. of 
                            Ecology & Evolutionary Biology, University 
                            of Connecticut; Robert Hughes, Senior Staff 
                            Scientist, Dynamic International, 
                            Corvallis, OR; Tim Hunkapiller, Assistant 
                            Professor, Department of Molecular 
                            Biotechnology, University of Washington; 
                            Dr. David W. Inouye, Professor, Department 
                            of Zoology, University of Maryland; Jerome 
                            A. Jackson, Professor, Biological Sciences, 
                            Mississippi State University; Robert L. 
                            Jeanne, Professor, Entomology and Zoology, 
                            University of Wisconsin-Madison; Felicia 
                            Keesing; Department of Integrative Biology, 
                            Museum of Vertebrate Zoology, University of 
                            California, Berkeley; Ellen D. Ketterson, 
                            Professor of Biology, Indiana University 
                            and Co-Director, Center for the Integrative 
                            Study of Animal Behavior; Brett Johnson, 
                            Assistant Professor, Department of Fishery 
                            and Wildlife Biology, Colorado State 
                            University; David Jones, Center for 
                            Ecological Management of Military Lands, 
                            Department of Forest Science, Colorado 
                            State University; Peter A. Jordan, 
                            Department of Fisheries and Wildlife, 
                            University of Minnesota; James R. Karr, 
                            Professor Fisheries and Zoology University 
                            of Washington; Patrick A. Kelly, Adjunct 
                            Assistant Professor, Department of Biology, 
                            California State University, Fresno; 
                            Douglas A. Kelt, Department of Wildlife, 
                            Fish, and Conservation Biology, University 
                            of California, Davis; Patricia L. Kennedy, 
                            Associate Professor, Department of Fishery 
                            and Wildlife Biology, Colorado State 
                            University; Richard Knight, Professor, 
                            Department of Fishery and Wildlife Biology, 
                            Colorado State University; Walter D. 
                            Koenig, Research Zoologist, University of 
                            California, Berkeley; Winston C. Lancaster, 
                            Research Fellow, Department of Zoology, 
                            University of Aberdeen; Vickie L. Larson, 
                            DYN-2 Dynamac Corp., Kennedy Space Center, 
                            Florida; Richard D. Laven, Professor, 
                            Department of Forest Sciences, Colorado 
                            State University; Kai N. Lee, Center for 
                            Environmental Studies, Williams College; 
                            Marilyn Leftwich, Department of Psychology, 
                            Fort Lewis College; Beaulin L. Liddell, 
                            Research Specialist, Department of 
                            Fisheries & Wildlife, University of 
                            Minnesota; Curt Lively, Professor, 
                            Department of Biology, Indiana University; 
                            Carol Loeffler, Assistant Professor, 
                            Department of Biology, Dickinson College; 
                            Douglas F. Markle, Professor Fisheries, 
                            Oregon State University; Terry C. Maxwell, 
                            Professor, Department of Biology, Angelo 
                            State University; Bernie May, Associate 
                            Research Biologist, Director, Genomic 
                            Variation Laboratory, Department of Animal 
                            Science, University of California, Davis; 
                            Richard L. Mayden, Department of Biological 
                            Sciences, University of Alabama; Lee 
                            McClenaghan, Professor, Department of 
                            Biology, San Diego State University; Frank 
                            H. McCormick, Research Ecologist, U.S. 
                            Environmental Protection Agency, National 
                            Exposure Research Laboratory; David L. 
                            McNeely, Associate Professor, Biology, 
                            University of Texas, Brownsville; Judy L. 
                            Meyer, Research Professor, Institute of 
                            Ecology, University of Georgia; Donald B. 
                            Miles, Associate Professor, Department of 
                            Biological Sciences, Ohio University; W.L. 
                            Minckley, Professor, Zoology, Arizona State 
                            University; David R. Montgomery, Department 
                            of Geological Sciences, University of 
                            Washington; Henry R. Mushinsky, Professor 
                            of Biology and Chair, Conservation 
                            Committee of the Herpetologist's League; 
                            Jack Musick, Head, Vertebrate Ecology and 
                            Systematics Programs, Virginia Institute of 
                            Marine Science, College of William and 
                            Mary; Robert J. Naiman, Professor, 
                            Fisheries and Forestry, University of 
                            Washington; Joseph S. Nelson, Professor, 
                            Department of Zoology, University of 
                            Alberta; Robert E. Nelson, Professor and 
                            Chair, Department of Geology, Colby 
                            College; Ray Newman, Associate Professor, 
                            Fisheries, University of Minnesota; Donald 
                            M. Norman, Toxicology Task Force, Seattle, 
                            Washington; Reed Noss, Editor, Conservation 
                            Biology, Society for Conservation Biology; 
                            Alex Olvido, Biology Department, University 
                            of South Carolina; Gordon Orians, Professor 
                            Emeritus, Department of Zoology, University 
                            of Washington; Richard S. Ostfeld, 
                            Associate Scientist, Institute of Ecosystem 
                            Studies, Millbrook, NY; Dianna K. Padilla, 
                            Associate Professor, University of 
                            Wisconsin--Madison; Lawrence M. Page, 
                            Professor, Illinois Natural History Survey; 
                            Dennis Paulson, Director, Slater Museum of 
                            Natural History, University of Puget Sound; 
                            Joseph H.K. Pechrnann, Savannah River 
                            Ecology Laboratory, University of Georgia; 
                            Mark Peifer, Assistant Professor, 
                            Department of Biology, University of North 
                            Carolina, Chapel Hill; David A. Perry, 
                            Professor, Oregon State University; Kim 
                            Phillips, Departments of Psychology and 
                            Biology, Hiram College; Edwin P. Pister, 
                            Aquatic Biologist and Executive Secretary, 
                            Desert Fishes Council, Bishop, CA; Mary E. 
                            Power, Professor, Department of Integrative 
                            Biology, University of California at 
                            Berkeley; Mary V. Price, Professor, 
                            Department of Biology, University of 
                            California, Riverside; Gary Ray, 
                            Conservation Coordinator, Center for Plant 
                            Conservation-Hawaii; Lee C. Redmond, 
                            Immediate Past President, American 
                            Fisheries Society; Philip Regal, Professor, 
                            Ecology, Evolution, and Behavior, 
                            University of Minnesota; Gerald R. Rising, 
                            Retired Distinguished Teaching Professor, 
                            State University of New York at Buffalo; 
                            George Robinson, Biological Sciences, State 
                            University of New York at Albany; Michael 
                            P. Robinson, Department of Biology, 
                            University of South Florida; William E. 
                            Robinson, Associate Professor, 
                            Environmental Sciences Program, University 
                            of Massachusetts, Boston; Steve Rogstad, 
                            Biological Sciences, University of 
                            Cincinnati; James J. Roper, Professor, 
                            Department of Biology, Utah State 
                            University; Daniel K. Rosenberg, Research 
                            Scientist, Institute for Bird Populations, 
                            Point Reyes Station, California; John T. 
                            Rotenberry, Natural Reserve System and 
                            Dept. of Biology, University of California, 
                            Riverside; Mike Runyan, Associate 
                            Professor, Biology, Lander University; 
                            Natalie Runyan, Conservation Information 
                            System Specialist, Animas Foundation on the 
                            Gray Ranch; Kristina A. Schierenbeck, 
                            Assistant Professor, Biology, California 
                            State University, Fresno; David S Schimel, 
                            Senior Scientist and Head, Ecosystem 
                            Dynamics & the Atmosphere Section, National 
                            Center For Atmospheric Research; Isaac J. 
                            Schlosser, Professor, Biology, University 
                            of North Dakota; Rebecca R. Sharitz, 
                            Professor, Ecology, University of Georgia; 
                            Kathleen L. Shea, Chair, Biology 
                            Department, St. Olaf College; Andrew T. 
                            Smith, Professor, Zoology, Arizona State 
                            University; Darrel E. Snyder, Research 
                            Associate, Larval Fish Laboratory, Colorado 
                            State University; Michael Soule, Chair, 
                            Environmental Studies, University of 
                            California, Santa Cruz; Richard E. Sparks, 
                            Director, River Research Laboratories, 
                            Illinois Natural History Survey; Jack A. 
                            Stanford, Jessie M. Bierman Professor of 
                            Ecology, University of Montana; Maureen 
                            Stanton, Section of Evolution and Ecology 
                            and Center for Population Biology, 
                            University of California; Roy A. Stein, 
                            Professor, Aquatic Ecology Lab, The Ohio 
                            State University; Margaret M. Stewart, 
                            Professor, Department of Biological 
                            Sciences, State University of New York at 
                            Albany and President, American Society of 
                            Ichthyologists and Herpetologists; Craig A. 
                            Stockwell, Research Ecologist, Savannah 
                            River Ecology Laboratory; Philip K. 
                            Stoddard, Assistant Professor, Department 
                            of Biological Sciences, Florida 
                            International University; Sharon Swartz, 
                            Dept. of Ecology and Evolutionary Biology, 
                            Brown University; Camm Swift, Visiting 
                            Asst. Professor of Biology, Loyola 
                            Marymount University and Associate Curator 
                            Emeritus, Natural History Museum of Los 
                            Angeles County; Stanley A. Temple, Beers-
                            Bascom Professor in Conservation, 
                            Department of Wildlife Ecology, University 
                            of Wisconsin; Harry M. Tiebout III, 
                            Assistant Professor, Department of Biology, 
                            West Chester University; Patrick C. 
                            Trotter, Fishery Science Consultant, 
                            Seattle, WA; Charles Umbanhowar Jr., 
                            Department of Biology, St. Olaf College; 
                            Dirk Van Vuren, Associate Professor, Dept. 
                            of Wildlife, Fish & Conservation Biology, 
                            University of California, Davis; Kirk R. 
                            Vincent, Department of Geosciences, 
                            University of Arizona; Stephen Vives, 
                            Associate Professor, Department of Biology, 
                            Georgia Southern University; Robert C. 
                            Vrijenhoek, Director, Center for 
                            Theoretical and Applied Genetics, Rutgers 
                            University; David B. Wake, Director, Museum 
                            of Vertebrate Zoology, Gompertz Professor 
                            of Integrative Biology Peter Warshall, PhD; 
                            Melvin L. Warren, Jr., USDA Forest Service, 
                            Southern Research Station Forest Hydrology 
                            Lab; Peter Warshall, Warshall and 
                            Associates; Nicholas M. Waser, Professor, 
                            Department of Biology, University of 
                            California, Riverside; G. Thomas Watters, 
                            Ohio Biological Survey, The Ohio State 
                            University; Judith S. Weis, Department of 
                            Biological Sciences, Rutgers University; 
                            Richard N. Williams, Senior Research 
                            Geneticist, Clear Creek Genetics; Herb 
                            Wilson, Associate Professor, Department of 
                            Biology, Colby College; Jerry O. Wolff, 
                            Research Associate Professor, Department of 
                            Fisheries and Wildlife, Oregon State 
                            University; David S. Woodruff, Professor, 
                            Biology, University of California, San 
                            Diego; Andrea Woodward, National Biological 
                            Service; Ruth D. Yanai, Assistant 
                            Professor, Forest Soils, SUNY College of 
                            Environmental Science and Forestry, 
                            Syracuse; Douglas Yanega, Illinois Natural 
                            History Survey, James A. Zack, GIS Manager, 
                            System for Conservation Planning, Natural 
                            Resource Ecology Laboratory, Colorado State 
                            University; Dr. Robert M. Zink, 
                            Breckenridge Chair in Ornithology, 
                            University of Minnesota.
                                 ______
                                 
       Statement of Gregory A. Thomas, Natural Heritage Institute
    Mr. Chairman and Members of the Subcommittee: 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 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 no. 1.--scale habitat conservation planning to overcome 
 the limitations and deficiencies associated with landholding-specific 
                                  hcps
    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 
decisionmaking 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 offsite 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, DC. (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 no. 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 return survival benefit to the species. Otherwise, the Services are 
running a hospital in which the patients will never be taken off life-
support.\5\
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    \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.
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    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 no. 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 percent 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 no. 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\
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    \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 no. 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\
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    \7\ A qualified independent 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 identify 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.
                                 ______
                                 
      Responses by Gregory A. Thomas to Additional Questions from 
                             Senator Chafee
    Question 1. How should the ESA be changed to provide for greater 
public involvement in the HCP process?
    Response. As you will recall, NHI's testimony was based on the 
findings and conclusions that emanated from a technical workshop of 
experts on ``Optimizing Habitat Conservation Planning for Non-Federal 
Lands and Waters: Harvesting Performance Reviews to Chart a Course for 
Improvement''. Incidentally, four of the institutions represented by 
witnesses at your hearings participated in that workshop. Among many 
other topics, that workshop synthesized recent critiques of the 
opportunities for public involvement afforded by the HCP process 
historically. The findings and conclusions in that regard are as 
follows:
    Recommendation No. 5.--The Services should make every effort to 
encourage direct public participation beyond the minimum legally 
required.
     Public participation in the development of an HCP can 
enhance the quality of information on which HCP decisions are based, 
improve understanding and relationships among HCP stakeholders, 
heighten public and political support for an HCP, and enhance the long-
term viability of an HCP. The public has a significant stake in the HCP 
process because wildlife is a public resource, both legally and 
politically. And, whatever conservation responsibilities or risks are 
not borne by and ITP applicant will be shifted to other landowners or 
the public lands, usually at public expense.
     A recent study by the University of Michigan revealed that 
the degree of public acceptance of an HCP is strongly related to the 
degree of public participation in the development of that plan. The 
more that interested parties are accorded a role in developing 
conservation plans, rather than merely commenting on completed plans--
the more satisfied they tend to be with an HCP.
     The timing and short duration of the comment periods for 
HCP documents under NEPA and the ESA limit meaningful public 
involvement. Currently, HCP scoping occurs early in plan development 
while the project is poorly defined. The next commenting opportunity 
usually comes at the end, when most decisions are already locked in. At 
that point, there are no incentives to renegotiate these provisions to 
incorporate changes requested by the public even if the public provides 
significant new information. And, then, the comment periods tend to be 
too short for interested citizens to master the details of a given plan 
and compose and submit comments. The workshop determined that if the 
Services invited the public to comment on important issues as they 
arose or at ``trigger points'' throughout the planning process, the 
public would not be confined to participating only in the very early 
stages of embryonic plans, or after the key HCP provisions have already 
been negotiated.
     Another way to expand public involvement . . . is . . . to 
rescale habitat conservation planning [so that individual HCPs fit 
within a multi-species, ecosystem level conservation strategy] and 
involve local land use agencies. Public access and effective 
participation in the development of the conservation ``deal'' would be 
greatly enhanced where the HCP applicant is or includes units of local 
or State government. Local or State governmental agencies are likely to 
involve the public in much the same way the public participates in 
local land use decisions. This can occur because State laws often 
provide for open hearings and easy access to public documents. This 
allows citizens to directly address and interact with public officials 
in HCP development and implementation. This element supplements and 
often exceeds the minimal Federal requirements for notice and comment 
under NEPA.
     Fundamentally, the problem with public access to the 
process is that the Services have delegated the ``gatekeeper'' role to 
the permit applicant. The applicant exercises sole discretion as to who 
will and who will not be given a seat at the negotiating table. This 
reflects the Services' mistaken notion that an HCP is just a permit 
application over which the applicant should exercise final substantive 
control. But an HCP is much more than an application. It is for all 
intents and purposes a negotiated settlement of the terms and 
conditions under which a discretionary permit will be issued to engage 
in otherwise forbidden acts, namely the taking of protected species. An 
HCP is not just the applicant's work product. It is a compromise 
jointly produced by all parties to the HCP negotiations. Once its terms 
are approved by the Services, the ``incidental take permit'' or 
;implementation agreement'' is largely a formality.
     Functionally, the approved HCP is the permit to take 
protected species. As such, the process through which it is formulated, 
issued and approved should be as open to interested members of the 
public as is the issuance of land use permits in other contexts. For 
example, when the Department of Interior grants grazing permits under 
the Federal Land Policy and Management Act, it allows for public 
participation so that all parties affected by the process will be fully 
represented.\1\ NPDES permits and local building permits are similarly 
public processes. Those permit applicants are not allowed to control 
who can and who cannot participate in the permitting process. Likewise, 
the Services, not the applicants should determine who gets a seat at 
the HCP negotiation table.
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    \1\ Other Federal statutes allow stakeholders to help shape natural 
resource use and protection. The EPA convenes interested stakeholders 
in setting Federal water quality standards, and NMFS itself employs 
stakeholder groups under the Marine Mammal Protection Act in its 
efforts to reduce the harm commercial fishing has on imperiled fish 
species. Nothing in the ESA precludes the Services from employing 
similar measures to involve the public in the HCP context.
---------------------------------------------------------------------------
     The issue of who sits at the table is crucial to the 
quality and acceptability of HCPs and the process itself. Upgrading the 
independent scientific bases for HCPs cannot be done solely after the 
fact, in the form of peer review. By then, the fundamental decisions 
regarding the design of the conservation strategy, the monitoring 
program, and the adaptive management arrangement will already have been 
settled in the negotiation process. If the science underlying HCPs 
needs to be improved--and most commentators believe that to be the 
case--this must be done by bringing these experts directly into the 
negotiations at the earliest stages. The current arrangement assumes 
that the agencies and applicants alone can be relied upon to marshal 
the needed expertise. But, in fact, the Services' internal expertise is 
spread very thin where literally hundreds of HCPs are in development 
simultaneously, and the applicant's experts may appear to be influenced 
by the understandable desire to minimize the costs of conservation 
measures.
     This is not to say that in acting as gatekeepers the 
Services must admit to the table everyone who knocks on the door. 
Demonstrated ability to contribute substantively to the issues on the 
table without undue delay may be made the price of admission. We simply 
urge that the Services themselves assume the role of making these 
decisions and not leave them to the permit applicant. Native fish and 
wildlife are public resources under both State and Federal 
jurisprudence, wherever they may be found. It is fundamentally wrong to 
treat permits to take endangered species on private lands as though the 
public does not have an interest in the substantive validity of the 
negotiated terms and conditions.
    Incidentally, NHI called these deficiencies in the public 
involvement process to the attention of the Services in our comments on 
the proposed revisions to the HCP Handbook. In our view, the most 
significant problem with these proposed revisions is the failure of the 
Services to reserve to themselves the ``gatekeeper'' function, for the 
reasons set forth above. In the event that the Services do not make 
this change in the final version of the Handbook revisions, we strongly 
encourage this Committee to mandate that change when it reauthorizes 
the ESA.

    Question 2. You have argued for the use of outside ``review'' teams 
consisting of wildlife biologists, lawyers, and other stakeholders to 
evaluate HCPs. The proposal would be to require landowners to include 
these teams at the outset in developing an ECP. Can you please describe 
what the role of these review teams would be? What additional expertise 
or resources do they contribute to the development of an HCP? How would 
their activities be funded?
    Response. Specifically, NHI proposes to organize a nationwide 
network of specialized experts in the fields of conservation science, 
resource economics and wildlife law, drawn largely from the academic 
sphere. We envision drawing on this network to assemble specialized 
teams that could seek to participate in the negotiation of high-
consequence HCPs on behalf of local communities and the general public. 
We envision that these independent experts would apply to the Services 
to be permitted to participate in the development of these HCPs, just 
as ``public interest intervenors'' now routinely seek to participate in 
many other environmental permitting processes. The Services would 
exercise their discretion to determine whether and how to involve the 
independent experts. Presumably, the Services would consider the value 
of the proffered expertise as well as the effects on administrative 
efficiency. In most cases, we believe, the Services would find that 
participation by these experts--particularly at the formative stages of 
HCPs--would significantly improve both their quality and their public 
acceptability. In those cases, the Services could urge or even require 
the permit applicant to provide technical information to the 
independent team for their review and comment, and to consider their 
suggestions and proposals in formulating the HCP. In cases where the 
Services are persuaded that the recommendations of the expert team 
should prevail, they could so condition their approval of the HCP.
    The independent experts would expect to be admitted to the 
negotiations only upon a showing that they can provide a type or 
quality of expertise not otherwise provided by either the applicant's 
consultants or the Services' internal staff. In the view of the several 
empirical reviews of HCPs synthesized at the NHI workshop, the type and 
quality of expertise brought to bear on HCPs can often be improved 
through the use of such ``independent science''.
    We are currently exploring the options for funding. Ideally, the 
funding would come from a combination of sources, including:
    (1) The local communities or conservation interests represented by 
the independent scientists might provide at least ``earnest money'' 
support;
    (2) The scientists (and other experts) might be asked to discount 
their fees as a public interest gesture (NHI has had considerable 
success in negotiating such arrangements in the past); and,
    (3) Support would be sought from private foundations with an 
interest in biodiversity on private lands.
    Ideally, the Congress will also see substantial value in this 
initiative for improving the HCP process (without additional cost to 
the private rights holders) and provide some public funding, perhaps 
through the National Fish and Wildlife Foundation.

    Question 3. Should improvements to the science of HCPs be 
mandatory? In other words, should all HCP applicants be required to 
undertake measures to improve the scientific basis of their individual 
HCPs?
    Response. As the testimony (and the several performance reviews 
synthesized in the NHI workshop) reveal, the extent to which HCPs are 
scientifically defensible varies widely. To be sure, it may be possible 
to mandate a better level of ``quality control'' by improving the 
statutory criteria for approval of HCPs (many suggestions in this 
regard can be distilled from the attached workshop findings and 
conclusions), or the statutory process for making those approvals (such 
as requiring explicit findings of fact with respect to the approval 
criteria).
    However, the science of HCPs could also be substantially upgraded 
through improvements in the process and incentives. If the Services 
themselves where given the resources to develop high-quality, 
ecosystem-scale, multi-species conservation strategies at the landscape 
scale, the scientific burdens associated with developing HCPs at the 
scale of the individual landholding would be greatly ameliorated, with 
a significant quality improvement. Options for doing this are discussed 
in the attached Findings and Conclusions. The intervention of 
independent conservation science at the formative stages of HCPs is 
another promising device, as discussed above. Upgrading and extending 
the use of ``adaptive management'' techniques in HCPs would also vastly 
improve their scientific credibility.
                                 ______
                                 
      Responses by Gregory A. Thomas to Additional Questions from 
                             Senator Crapo
    Question 1. Your paper calls for the development of an HCP team, 
including wildlife lawyers, which will be deployed at the request of 
conservationists to ply open the negotiating process between the 
Services and landowners. Don't you believe that such actions will act 
as a disincentive to landowners to participate in HCP development?
    Response. How landowners would view the possibility of direct 
participation by independent scientists in the crafting of their HCP is 
certainly a legitimate issue. Since HCPs are the primary vehicle by 
which private rights holders make commitments to conserve biodiversity, 
we do not want to make them better at the expense of making them rarer. 
Properly done, opening up today's bilateral negotiations to broader 
scientific scrutiny can provide tangible benefits to all stakeholders. 
Failed HCPs leading to species extinctions is everyone's nightmare. Our 
discussions with landowners indicates that they do favor improving the 
prospects of success in habitat conservation planning, if that can be 
done without significantly increasing their costs or timelines. The 
Services freely admit that their internal scientific capacities are 
stretched very thin by the volume and complexity of HCPs, and by the 
narrowly specialized expertise that they require. Conservation 
interests and local communities are crying out for better access to a 
process that affects their interests greatly. The scientific community 
has expressed grave concerns about the defensibility of the current 
generation of HCPs. Surely we can find a way to do better by all these 
stakeholders.
    To clarify, the better way proposed by NHI is to convene 
interdisciplinary teams of experts to directly engage in the crafting 
of HCPs. To be sure, wildlife law experts may be useful in this 
endeavor--perhaps to act as the actual negotiators. But, the 
conservation scientists are the core capability that needs to be 
organized and ``deployed''. We believe this can be done without 
additional expense to the landowners. We do not propose that the 
landowners would be required to pay for this dose of independent 
science. We also do not accept the premise that better science will 
lead to more expensive conservation measures. The most expensive type 
of conservation measures are those that fail in their intended purpose, 
although the additional costs may be visited on the next landowner who 
seeks a take permit covering the subject species. In the end, the team 
of independent scientists that might participate in the negotiations 
has no power to dictate terms and conditions. They can only critique 
and recommend. In the end, the power to approve will continue to lie 
where it does today, with the Services who can issue or withhold 
incidental take permits.
    We also do not propose that the intervention of independent 
scientists in the HCP process would be automatic. Rather, we propose 
that their participation lie within the discretion of the Services, who 
can best determine whether they will make a positive contribution in a 
particular circumstance.

    Question 2. Does NHI engage in litigation on environmental issues? 
Would NHI lawyers ``pry open'' the doors to the negotiating process and 
then file an action if they didn't get everything they wanted out of 
negotiations? How would that affect the willingness of applicants and 
agencies to cooperate on HCPs?
    Response. NHI is an organization of lawyers, scientists and 
economists. We do have litigation capability, which we use judiciously, 
preferring to find solution opportunities beyond the pale of existing 
law where we can. The prospect of legal challenges to HCPs exists 
whether or not independent scientists are involved in their crafting, 
and it exists quite apart from NHI. The important point here is that 
litigation by anyone is much less likely if there is higher confidence 
in the eff1cacy of the HCP that emerges from the negotiations. One of 
the chief benefits of outside scrutiny is the higher level of public 
satisfaction with the HCP process. Thus, if the interest of the Senator 
in posing this question is to insulate the HCP process from litigation 
challenges, the best strategic move he could make would be to open the 
process to public involvement through highly qualified experts not 
otherwise available to the applicant or the Services. Indeed, this 
insulation should be highly attractive to the permit applicants who are 
willing to go to the time and expense of developing an HCP.
    We believe that it is time to put unproductive rhetoric aside and 
get on with the business of crafting a high-confidence process for the 
development of private property without driving species to extinction. 
Better science is part of the solution for landowners and species 
alike. We are trying to help marshal it. We hope we can be useful to 
the leadership of the U.S. Senate in doing likewise.
    Thank you for the opportunity to present our views, and those of 
the workshop participants, both at the hearing and in these responses. 
A copy of the workshop ``Findings and Conclusions'' is attached to 
amplify on these points. I reiterate our desire to serve as a resource 
to the Committee as it considers how to improve the statutory framework 
for habitat conservation planning on non-Federal lands and waters.
                                 ______
                                 
 A SUMMARY OF KEY FINDINGS AND RECOMMENDATIONS OF THE PARTICIPANTS OF 
                              THE WORKSHOP
  Optimizing Habitat Conservation Planning for Non-Federal Lands and 
     Waters: Harvesting Performance Reviews to Chart--A Course for 
                              Improvement
                            i. introduction
    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. In June 1998, as part of its 
project: ``Improving Endangered Species Habitat on Private Lands,'' the 
Natural Heritage Institute (NHI) convened HCP experts from the fields 
of conservation biology, land-use planning, natural resource economics, 
and law for a 2-day workshop. The purpose of the workshop was to 
synthesize the results of a number of empirical studies of the 
performance of HCPs in which these experts had been involved, with a 
view toward distilling the endemic deficiencies and identifying 
achievable solutions. This document reports the principal findings and 
recommendations from the workshop as an agenda for action to improve 
this vehicle for accomplishing commitments to habitat conservation on 
lands and in water subject to private property rights.
               ii. key recommendations from the workshop
Recommendation No. 1.--Scale habitat conservation planning to overcome 
        the limitations and deficiencies associated with landholding-
        specific HCPs
    A principal and recurring issue was the appropriate planning unit 
for habitat conservation. Repeatedly, the discussion confirmed that the 
optimal unit is not the individual land holding or water diversion, and 
the optimal focus is not individual listed species. Rather, there are 
benefits for both biological resources and property rights holders in a 
landscape level of planning wherein habitat conservation strategies are 
developed at a ``bioregional'' scale, which covers entire ecosystems, 
and their community of species. 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.
    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 often difficult to 
overcome.
    There can be major advantages to the non-Federal rights holders as 
will as to the achievement of the species conservation goals if 
landscape-level planning is applied. Concentrating on large landscape 
units for conservation planning and permitting can address many of the 
perceived problems with HCPs. This is not to say that larger, more 
complex HCPs have performed better than smaller and simpler plans. To 
the contrary, rescaling 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. The 
potential advantages of landscape-scale HCPs identified in the workshop 
are the following:
    A. 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.\1\
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    \1\ This burden allocation problem is not susceptible to a simple 
or uniform principle. In some cases, the private land's share of the 
burden, in the aggregate, should be ``no net loss'' of habitat values. 
But, ``no net loss'' of habitat does not necessarily ensure the 
conservation of species. For example, most listed species require some 
form of active management (e.g. prescribed fire, exotic species 
control, etc.). Theoretically, an HCP could result in a net loss of 
habitat, but in providing needed management for such species, provide a 
net conservation benefit for that species. Furthermore, not all habitat 
has the same value. For example, conservationists may be willing to 
trade two groups of red-cockaded woodpeckers in highly fragmented 
habitat for creation of a single group that is in a critical linkage 
zone in a designated recovery population. Moreover, HCPs should not be 
called on to solve all endangered species conservation conflicts. 
Sometimes the government will have to bear a greater burden, such as 
where the only ecologically justified mitigation is just too expensive 
for an HCP to bear because, for example, a species is critically 
endangered and cannot suffer any further habitat loss. In these 
situations, the Federal Government may have to purchase the critical 
private land holdings. Then there is the question whether the public 
lands share of the burden be set as national policy or negotiated among 
the affected stakeholders as part of a recovery plan or other 
bioregional plan.
---------------------------------------------------------------------------
    B. At the landscape level, it is possible 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 whereas the only biologically defensible aiming point 
for habitat conservation is a net improvement in the prospects or 
survival and prevention of further losses to unlisted species in 
decline. A conservation or ``recovery'' standard would be much easier 
to accomplish if HCPs were oriented toward restoring entire landscapes 
rather than simply limiting wildlife losses.
    C. 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. Rescaling shifts 
an appreciable degree of this burden from individual property owners 
applying for incidental take permits to the public agencies and the 
broader constellation of rightsholders that have interests and 
responsibilities in the eco-region. At a landscape level of 
conservation, it is also easier to evaluate and allocate a ``fair 
share'' of the burden among all public and private entities.
    D. Adaptive management of conservation strategies and reserve 
design is facilitated and made more flexible at a larger planning 
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. However, adaptive 
management is still often feasible with smaller plans as well.
    E. The quality and degree of public participation is generally 
better at a broader scale of planning. This is especially true if a 
local government mediates the habitat conservation planning process by 
applying for the Federal permit and then issuing subpermits to 
individual landholders. Such local agencies generally include the 
public routinely in such land use planning processes. The empirical 
evidence does not support the conclusion that public participation has 
been superior where a single-landowner prepares a large landscape-level 
HCP as is true for many timber HCPs.
    If landscape-level planning offers the best prospects for species 
conservation, then it is necessary to ask what kinds of incentives, 
inducements and cost-sharing arrangements would cause habitat 
conservation planning to (1) occur at the landscape level, (2) achieve 
a recovery level of performance (3) encourage local governmental 
participation. This will require a reorientation by the Services, whose 
historic ESA implementation has fostered the choice of inappropriate 
planning units. Instead, the Services should view incidental take 
permits as fitting within a broader conservation framework governed by 
specified standards and goals, such as one finds for other 
environmental permitting regimes which are structured to achieve area 
wide environmental quality goals. For instance, under the Clean Air 
Act, an applicant for a permit to discharge regulated air pollutants 
into an airshed that is already impaired must demonstrate a net 
positive contribution toward the goal of reducing the overall level of 
emissions in order to help meet the ambient air quality standards. To 
do this, the permittee must offset (i.e. do more than just mitigate) 
its emissions by procuring reductions from other facilities. In the 
water quality arena, NPDES 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 offsite mitigation via a mitigation 
fund. Mitigation funds can be used, for instance, to purchase the 
highest-quality habitats to prevent their development. A development 
exaction of this sort is often best administered by local agencies of 
government that are charged with regional land use planning. This is an 
additional reason to utilize local jurisdictions as the vehicle for 
bioregional habitat conservation planning. However, since bioregions 
often cross local (e.g., county and even state) jurisdictional 
boundaries, coordination by a higher-level jurisdiction may be 
necessary.
    Several potential vehicles emerged in the workshop discussions for 
rescaling habitat conservation planning. One is to accelerate the 
development and improve the performance of recovery plans under the 
ESA. There are several potential vehicles for rescaling 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 permittee 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.\2\ Historically, recovery 
plans have been of poor quality. Most are not biologically defensible.
---------------------------------------------------------------------------
    \2\ 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, DC. (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 in other 
contexts. 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 No. 2.--Calibrate Habitat Conservation Planning to 
        Biologically Defensible Goals
    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 have 
often been driven by the applicant's assertions as to the effects of 
mitigation alternatives on profit margins, rather than by the 
biological imperatives.
    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 net survival benefit to the species. Otherwise, the Services are 
running a hospital in which the patients will never be taken off life 
support.\3\
---------------------------------------------------------------------------
    \3\ 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.
    Creating incentives to achieve a higher level of conservation 
performance may also entail shifting a larger share of the conservation 
``costs'' from the non-Federal landowners to the Federal land 
management agencies by holding them to a higher standard of performance 
than prevention of jeopardy to individual species. Unfortunately, that 
is the aiming point for most management decisions on Federal land. This 
low standard of management for the public lands should concern to the 
property rights community as much as the conservation community because 
the consequence is to apportion a higher burden of species conservation 
on the private rightsholders (or a compromise of the biological goals 
of the ESA). Of course, allocating conservation ``costs'' between 
Federal and non-Federal lands is not an option in regions of the 
country where there is little or no Federal land, or where existing 
Federal land is unsuitable to support the species in question.
    Getting the incentives right is essential to making the HCP program 
work. The workshop illuminated the tradeoffs. If the Services enforced 
the ``take'' prohibition under Section 9, it would create a strong 
incentive for private rights holders to seek incidental take permits, 
for which HCPs are a pre-requisite. Clearly, the more vigorous the take 
enforcement, the greater the incentive to develop approvable HCPs. As 
the incentives increase, so does the quality that can be demanded in 
HCPs. To be sure, the penalty needs to be sufficient to nullify any 
economic benefits of non-compliance; nominal penalties are likely to be 
absorbed as a cost of doing business rather than serve as a deterrent 
to taking species or destroying habitats. Because the Services are 
reluctant to enforce Section 9, the main negative incentive is the fear 
of citizen suits and the attendant insulation that an HCP can provide.
    On the other hand, the larger the potential penalty, the greater 
the perverse incentive to destroy habitat before a listing occurs. The 
practical difficulties in enforcing take also limit its incentive 
value. Enforcement is often difficult because the Services cannot enter 
private lands without permission to survey for species. The Services do 
not have the budget to consistently enforce, and this is not likely to 
change. Increased enforcement of the take prohibition also mobilizes 
private property owners against the Act who believe that they are being 
required to pay for the conservation of a public good. And, for many 
species there will always be a low risk of enforcement, since we do not 
have the necessary data for these species, and thus do not know what 
constitutes take (e.g. mussels). For other species, the Services do not 
know where they occur on private lands.
    These realities assure that the take prohibition cannot substitute 
for habitat conservation planning on non-Federal lands, but it is an 
essential incentive to HCP development. The fear of take enforcement 
and regulatory guarantees together must be incentives encouraging 
meaningful habitat conservation. That is the calculus of the Services' 
``No Surprises'' rule. Some workshop participants confirmed that 
landowners are preparing HCPs because capital markets (banks) insist 
upon HCPs before they will lend project development funds. Capital 
markets place a high value on assurances that future restrictions will 
not impede development. This may not apply to ``commodity'' lands where 
take detection and enforcement is problematic.
Recommendation No. 3.--Adaptive management and biological monitoring 
        should be required components of all 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 plan implementer to implement in phases so 
that permission to begin a later phase is contingent upon the Services 
verifying that the permittee 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 quantifiable goals;
    2. Identify imaginative policy options;
    3. Identify explicit human-induced and other stresses on the 
system;
    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 ``health'' 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 
harm''. 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 ret 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 percent 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. Amendments provide the 
opportunity for adjustments in conservation strategies.
    Monitoring must also be time-scale sensitive to the species or 
system monitored with respect to generation times. 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 No. 4.--Regulatory assurances should be compatible with 
        adaptive management and commensurate with an HCP's 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 mere 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 mitigations, 
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.\4\
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    \4\ Solving the issue of how to determine compensable loss in a 
manner 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 No. 5.--The Services should make every effort to 
        encourage direct public participation beyond the minimum 
        legally required.
    Public participation in the development of an HCP can enhance the 
quality of information on which HCP decisions are based, improve 
understanding and relationships among HCP stakeholders, heighten public 
and political support for an HCP, and enhance the long-term viability 
of an HCP. The public has a significant stake in the HCP process 
because wildlife is a public resource, both legally and politically. 
And, whatever conservation responsibilities or risks are not borne by 
and ITP applicant will be shifted to other landowners or the public 
lands, usually at public expense.
    A recent study by the University of Michigan revealed that the 
degree of public acceptance of an HCP is strongly related to the degree 
of public participation in the development of that plan. The more that 
interested parties are accorded a role in developing conservation 
plans, rather than merely commenting on completed plans--the more 
satisfied they tend to be with an HCP.
    The timing and short duration of the comment periods for HCP 
documents under NEPA and the ESA limit meaningful public involvement. 
Currently, HCP scoping occurs early in plan development while the 
project is poorly defined. The next commenting opportunity usually 
comes at the end, when most decisions are already locked in. At that 
point, there are no incentives to renegotiate these provisions to 
incorporate changes requested by the public even if the public provides 
significant new information. And, then, the comment periods tend to be 
too short for interested citizens to master the details of a given plan 
and compose and submit comments. The workshop determined that if the 
Services invited the public to comment on important issues as they 
arose or at ``trigger points'' throughout the planning process, the 
public would not be confined to participating only in the very early 
stages of embryonic plans, or after the key HCP provisions have already 
been negotiated.
    Another way to expand public involvement has already been 
mentioned. That is the workshop's overarching recommendation to rescale 
habitat conservation planning and involve local land use agencies. 
Public access and effective participation in the development of the 
conservation ``deal'' would be greatly enhanced where the HCP applicant 
is or includes units of local or State government. Local or State 
governmental agencies are likely to involve the public in much the same 
way the public participates in local land use decisions. This can occur 
because State laws often provide for open hearings and easy access to 
public documents. This allows citizens to directly address and interact 
with public officials in HCP development and implementation. This 
element supplements and often exceeds the minimal Federal requirements 
for notice and comment under NEPA.
    Fundamentally, the problem with public access to the process is 
that the Services have delegated the ``gatekeeper'' role to the permit 
applicant. The applicant exercises sole discretion as to who will and 
who will not be given a seat at the negotiating table. This reflects 
the Services' mistaken notion that an HCP is just a permit application 
over which the applicant should exercise final substantive control. But 
an HCP is much more than an application. It is for all intents and 
purposes a negotiated settlement of the terms and conditions under 
which a discretionary permit will be issued to engage in otherwise 
forbidden acts, namely the taking of protected species. An HCP is not 
just the applicant's work product. It is a compromise jointly produced 
by all parties to the HCP negotiations. Once its terms are approved by 
the Services, the ``incidental take permit'' or ``implementation 
agreement'' is largely a formality.
    Functionally, the approved HCP is the permit to take protected 
species. As such, the process through which it is formulated, issued 
and approved should be as open to interested members of the public as 
is the issuance of land use permits in other contexts. For example, 
when the Department of Interior grants grazing permits under the 
Federal Land Policy and Management Act, it allows for public 
participation so that all parties affected by the process will be fully 
represented.\5\ NPDES permits and local building permits are similarly 
public processes. Those permit applicants are not allowed to control 
who can and who cannot participate in the permitting process. Likewise, 
the Services, not the applicants should determine who gets a seat at 
the HCP negotiation table.
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    \5\ Other Federal statutes allow stakeholders to help shape natural 
resource use and protection. The EPA convenes interested stakeholders 
in setting Federal water quality standards, and NMFS itself employs 
stakeholder groups under the Marine Mammal Protection Act in its 
efforts to reduce the harm commercial fishing has on imperiled fish 
species. Nothing in the ESA precludes the Services from employing 
similar measures to involve the public in the HCP context.
---------------------------------------------------------------------------
    The issue of who sits at the table is crucial to the quality and 
acceptability of HCPs and the process itself. Upgrading the independent 
scientific bases for HCPs cannot be done solely after the fact, in the 
form of peer review. By then, the fundamental decisions regarding the 
design of the conservation strategy, the monitoring program, and the 
adaptive management arrangement will already have been settled in the 
negotiation process. If the science underlying HCPs needs to be 
improved--and most commentators believe that to be the case--this must 
be done by bringing these experts directly into the negotiations at the 
earliest stages. The current arrangement assumes that the agencies and 
applicants alone can be relied upon to marshal the needed expertise. 
But, in fact, the Services' internal expertise is spread very thin 
where literally hundreds of HCPs are in development simultaneously, and 
the applicant's experts may appear to be influenced by the 
understandable desire to minimize the costs of conservation measures.
    This is not to say that in acting as gatekeepers the Services must 
admit to the table everyone who knocks on the door. Demonstrated 
ability to contribute substantively to the issues on the table without 
undue delay may be made the price of admission. We simply urge that the 
Services themselves assume the role of making these decisions and not 
leave them to the permit applicant. Native fish and wildlife are public 
resources under both State and Federal jurisprudence, wherever they may 
be found. It is fundamentally wrong to treat permits to take endangered 
species on private lands as though the public does not have an interest 
in the substantive validity of the negotiated terms and conditions.
Recommendation No. 6.--Independent scientists and scientific 
        information 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.\6\
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    \6\ A qualified independent reviewer is one who: (1) has little 
personal stake in the nature of the outcome of decisions or policies, 
in terms of financial gain or loss, career advancement, or personal or 
professional relationships; (2) can perform the review tasks free of 
intimidation or forceful persuasion by others associated with the 
decision process; (3) has demonstrated competence in the subject as 
evidenced by formal training 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 identify internal and external costs and 
benefits--both social and ecological--of alternative decisions. 
Typically such a person 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. This will not be easy to do. Cost is not the only barrier 
to incorporating independent science. For most species, the pool of 
scientific expertise will be very small.
                                 ______
                                 
                 [From the Natural Heritage Institute]
           Where Property Rights and Biodiversity Converge: 
        Lessons from Experience in Habitat Conservation Planning
                    (Submitted by Gregory A. Thomas)
                              introduction
The Conflict between Biodiversity Protection and Private Property 
        Rights
    Harvard professor Edward O. Wilson predicts that at current 
extinction rates, our world could lose, forever, a fifth or more of its 
plant and animal species by the year 2020. \1\ That is 1,000 to 10,000 
times the natural extinction rate. The consequences are real: for 
example, in the United States, 16 percent of mammals, 14 percent of 
birds, and an alarming 37 percent of freshwater fishes are either 
extinct, imperiled or vulnerable. \2\ Each of these species is a unique 
adaptive experiment never to be repeated while this planet endures, a 
once-only chemical laboratory, a bit of wonder and learning never again 
to emerge. We are, in effect, throwing away the science books before 
they can be written. The overwhelming cause is loss of habitat.
---------------------------------------------------------------------------
    \1\  Edward O. Wilson. The Diversity of Life. W.W. Norton & Co., 
New York. 346 (1992).
    \2\ The Nature Conservancy. 1997 Species Report Card: The State of 
U.S. Plants and Animals 10-11 (1997).
---------------------------------------------------------------------------
    The overarching goal of the Federal Endangered Species Act (ESA) is 
to conserve species and the ecosystems upon which they depend. \3\ For 
a quarter century, the ESA has served as the safety net between peril 
and extinction for the thousands of species that have been listed for 
protection. However, during that time, the ESA has not kept pace with 
the emerging biodiversity crisis. \4\ In the years since the Act's 
passage, only a handful of species of have been delisted, signaling the 
recovery of the species to a stable population level. \5\ Less than a 
tenth of all listed species are actually improving in status, while 
nearly four times that number is declining. \6\
---------------------------------------------------------------------------
    \3\ 16 U.S.C. Sec. 1531(b).
    \4\ Biodiversity is a shorthand expression for the ``full richness 
of life on earth,'' and encompasses at least three levels of diversity: 
genetic diversity, species diversity, and community or ecosystem 
diversity. Noss, R.F., & A. Cooperrider, Saving Nature's Legacy: 
Protecting and Restoring Biodiversity. Defenders of Wildlife and Island 
Press, Washington DC. 3-13 (1994).
    \5\ Flaws in the ESA significantly contribute to its 
ineffectiveness in conserving biodiversity. Rohlf, Daniel J. Six 
Biological Reasons Why the Endangered Species Act Doesn't Work--And 
What To Do About It. 5 Conservation Biology 273, 274 (1991).
    \6\ U.S. Fish and Wildlife Service. Report to Congress: Recovery 
Program, Endangered and Threatened Species. Washington, D.C. (1994) as 
quoted in Environmental Defense Fund. Rebuilding the Ark: Toward a More 
Effective Endangered Species Act for Private Land 1 (1996).
---------------------------------------------------------------------------
    Among the daunting challenges that conservationists will face in 
the next era of biodiversity protection, the potential conflict between 
private property rights and the public interest in preserving 
biodiversity is posed to become an increasingly contentious issue. 
According to the U.S. Fish and Wildlife Service, half of all federally 
listed species do not occur on Federal lands, and more than half of 
listed species have at least 80 percent of their habitat on nonFederal 
land. \7\ The only hope for preserving species over time is by 
maintaining or restoring viable populations of species that are 
adequately distributed in healthy ecosystems. \8\ Yet, for those 
species whose habitat is mainly or exclusively on private lands, intact 
ecosystems are increasingly rare.
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    \7\ Defenders of Wildlife. Frayed Safety Nets: Conservation 
Planning Under the Endangered Species Act 1 (1998).
    \8\ Cheever, Federico. The Road to Recovery: A New Way of Thinking 
About the Endangered Species Act. 23 Ecology Law Quarterly 1, 4 (1996).
---------------------------------------------------------------------------
    The potential conflict between habitat conservation and private 
development rights has several dimensions. There is a practical 
consideration: Because property rights include the right to restrict 
access, destruction of habitat--even if illegal--is difficult to 
monitor and enforce. There is a federalism consideration: Land (and 
water) use planning has long been regarded as the province of local 
units of government rather than the national government which 
administers the ESA. And there is an equity consideration: Where other 
areas of environmental protection require those who cause the problem 
to pay for the solution, endangered habitat protection visits the 
conservation burden on the hapless few who happen to own the remnant 
tracts while those who have destroyed the original habitat are by that 
very act immune to regulation. For all of these reasons, conservation 
of habitats subject to private rights requires a degree of cooperation 
by those property owners, which is uncommon in the field of 
environmental law.
Habitat Conservation Plans: A Possible Solution
    When it was enacted in 1973, the ESA simply prohibited any ``take'' 
of endangered species, and that prohibition has since been extended by 
the U.S. Supreme Court to include destruction of a species' critical 
habitat. \9\ However, an absolute ban on the development of endangered 
species habitat proved unworkable. ``Habitat conservation plans'' 
(HCPs) are Congress' solution. The Act was amended in 1982 to authorize 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service (the ``Services'') to permit take incidental to development 
when approved as part of a habitat conservation plan prepared by the 
land or water rights holder. \10\ These HCPs are essentially negotiated 
settlements of regulatory liabilities, designed to foster economic 
development free of the risks associated with the occurrence of 
endangered species on private lands. HCPs must include species 
conservation and mitigation measures sufficient for the Services to 
find that the take will not appreciably reduce the likelihood of 
survival or recovery of the species. \11\ The landowner then receives 
an assurance--called the ``No Surprises'' guarantee--that the Services 
will not increase the conservation measures or other requirements 
without the landowner's consent, no matter how successful or 
unsuccessful these may ultimately prove to be. The No Surprises 
arrangement has ignited a veritable explosion in HCPs. As of this 
writing, some 400 such plans are in various stages of development, 
approval or implementation nationwide.
---------------------------------------------------------------------------
    \9\ Babbitt v. Sweet Home Chapter of Communities, 115 S.Ct. 2407 
(1995).
    \10\ 16 U.S.C. Sec. 1539.
    \11\ According to the ESA, the Services are required to base 
approval of an HCP on whether:
      (1) the taking will be incidental to the carrying out of an 
otherwise lawful activity;
      (2) the impacts of the taking will be minimized and mitigated to 
the maximum extent practicable;
      (3) the applicant will ensure that adequate funding for the plan 
will be provided;
      (4) the taking will not appreciably reduce the likelihood of 
survival and recovery of the species in the wild, and;
      (5) the landowner agrees to include other measures that the 
Services may require.
    16 U.S.C. Sec. 1539(a)(2)(B).
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Controversial Features and Imperatives for Reform
    Several features of HCPs have stirred controversy. First, HCPs 
allow the Services to permit development activities that will have some 
measure of adverse impact species and habitats that are already 
severely depleted, as long as these activities do not appreciably 
reduce the prospects for the survival and recovery of the species. What 
these species need, however, is a net improvement in their survival 
prospects. They need a recovery strategy. Indications of this mismatch 
between statutory and conservation requirements can be seen on the 
ground: 62 percent of listed species are declining in areas where they 
are covered by an HCP and 4 percent of these species are declining so 
rapidly that extinction is possible within the next 20 years. \12\ As 
long as HCPs are seen as instruments to ``nickel-and-dime'' species 
toward extinction, the HCP process will never be satisfactory to 
conservation interests, just as it will never be satisfactory to 
private rights holders as long as habitat conservation represents a 
permanent cloud over the exercise of development rights.
---------------------------------------------------------------------------
    \12\ Kareiva, Peter, et al. Using Science in Habitat Conservation 
Plans. National Center for Ecological Analysis and Synthesis (NCEAS), 
Univ. of California, Santa Barbara, and American Institute of 
Biological Sciences, Washington, D.C. (1999) (hereinafter cited as 
``NCEAS'').
---------------------------------------------------------------------------
    Second, the ``No Surprises'' regulatory assurance provides 
landowners with important incentives to participate in the development 
and implementation of HCPs. But it does so by shifting to the 
vulnerable species the risks incident to incomplete and uncertain 
understanding of how abundance levels will respond to particular 
conservation strategies. Neither investments in private development nor 
the survival of species are secure under this arrangement. The 
regulatory exemption is a gamble because HCPs tend to freight more on 
the current state of conservation science than it can deliver. 
Ecological dynamics are inherently fraught with uncertainty, and often 
there is no certain answer to the key questions that are posed in an 
HCPs. As three respected experts have stated, ``Biological systems are 
not only more complex than we know; they are inherently more complex 
than we can know.'' \13\ For many years, the dominant scientific 
paradigm assumed that ecosystems were stable, closed, internally 
regulated and behaved in a deterministic manner. However, the modern 
understanding is that ecosystems are in a constant state of flux, 
usually without long-term stability, affected by a series of human and 
other, often stochastic factors, many originating outside the 
ecosystems themselves. \14\ Biologists worry that the ``No Surprises'' 
guarantee does not take into account this new understanding. As 150 
prominent conservation scientists stated to the U.S. Congress, 
assurances to landowners that the conservation obligations in their HCP 
will remain immutable ``does not reflect ecological reality and rejects 
the best scientific judgment of our era. It proposes a world of 
certainty that does not, has not, and will never exist.'' \15\ Should 
the rigidity of the ``No Surprises'' guarantee so hobble the ability of 
the Services to take action that a listed species is extirpated, this 
entire artifice is likely to crash in the political firestorm that 
would ensue.
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    \13\ Noss, Reed; Michael A. O'Connell, & Dennis Murphy. The Science 
of Conservation Planning: Habitat Conservation Under the Endangered 
Species Act 76. Island Press: Washington, D.C. (1997).
    \14\ Williams, John G. Notes on Adaptive Management, Prepared for 
the Ag-Urban Ecosystem Restoration Team 3, reprinted in Comments Of The 
Natural Heritage Institute Regarding The CALFED Bay-Delta Program Draft 
Ecosystem Restoration Plan (Nov. 1997).
    \15\ Meffe, Gary K, and 78 other scientists. Letter to U.S. Senator 
John Chafee and Congressman James Saxton (July 23, 1996).
---------------------------------------------------------------------------
    Finally, conservation interests and local communities are often 
excluded from the balancing of biodiversity protection and local 
economic development that occurs in the HCP negotiations. As a 
consequence, the process often does not garner the support of these 
interests or generate confidence in the scientific bases of the 
resulting conservation program.
    Yet, some vehicle is needed to conserve habitats affected by 
development rights on lands and waters beyond the Federal domain. In 
order to be effective, the tool must provide incentives for private 
rights holders to work with regulatory agencies. The challenge is to 
set up a conservation arrangement that truly advances the survival and 
ultimate recovery of the species while limiting the financial burdens 
and biological risks imposed on private enterprises.
Guidelines for HCP Reform
    Nearly 250 HCPs are now in operation with another batch of similar 
size in gestation. There can be no clearer guide to what is working and 
what is not in HCPs than a critical, empirical review of the 
performance of these plans against the goals of the national endangered 
species program. This paper synthesizes the several empirically based 
performance reviews that have been conducted by academic researchers, 
conservationists and practicing conservation biologists. It also 
reflects scholarly analyses by a wide range of commentators and the 
findings and conclusions of a structured workshop of many of these 
performance reviewers. \16\ The objective of this paper is to distill 
from these sources the essential factors that explain why the HCP 
process has failed to recover vulnerable and depleted species over the 
past 15 years and what can be done to improve the performance of this 
conservation tool. This evaluation necessarily considers the regulatory 
and economic environment in which HCPs operate. \17\
---------------------------------------------------------------------------
    \16\ The workshop was convened by the Natural Heritage Institute in 
San Francisco in June 1998, and included representatives of an eight-
campus study by the American Institute of Biological Science (AIBS) and 
the National Center for Ecological Analysis and Synthesis (NCEAS), 
several of the most prominent conservation biologists that have been 
involved in crafting HCPs, and the following conservation organizations 
and university faculties:
      Defenders of Wildlife, University of California at Santa Barbara
      Environmental Defense Fund, University of Denver
      Lewis and Clark College, University of Michigan
      National Wildlife Federation, University of Tennessee
      The Nature Conservancy, University of Washington
      Pacific Rivers Council, Western Ancient Forest Campaign, 
University of California at Berkeley
    The workshop findings and recommendations reflected herein 
subsequently received the peer review and concurrence of Dr. Gary Meffe 
of the Journal of Conservation Biology and Dr. Reed Noss of the 
Conservation Biology Institute. Natural Heritage Institute. A Summary 
of Key Findings and Conclusions of the Participants of the Workshop--
Optimizing Habitat Conservation Planning for Non-Federal Lands and 
Waters: Harvesting Performance Reviews to Chart a Course for 
Improvement 13 (June 1998) (hereinafter cited as ``Workshop Findings & 
Conclusions'').
    \17\ Admittedly, the resulting portrait of how to improve habitat 
conservation planning is somewhat idealized in that it is unalloyed by 
the practical realities that drive the process from the viewpoint of 
the actual negotiators--the Services, HCP applicants and, to a lesser 
extent, units of local government that have been involved. These 
perspectives are also valid and important.
---------------------------------------------------------------------------
    The performance reviews inspire confidence that we can do better in 
the future than in the past--if only we are willing to learn as we go. 
That requires grafting onto the ESA the emerging principals of 
conservation biology, which have matured greatly since it was enacted a 
quarter century ago. Simultaneously, we must find a way to satisfy the 
legitimate expectations of the nonFederal property interests that they 
will not be required to shoulder the entire expense of protecting 
depleted species on the grounds that wildlife conservation benefits the 
public of today and tomorrow.
    This paper will present the major conclusions from these 
performance reviews and the recommendations for reform, which emerge 
from them.
  recommendations for improvement: hcps must be developed within the 
           context of landscape-scale conservation strategies
The Choice of Planning Scales
    Habitat conservation plans are the vehicle through which developers 
of non-Federal lands and waters obtain permits from the Federal 
Government for activities that may adversely impact endangered species 
habitat. As such, individual property owners have historically prepared 
these plans to cover activities within their parcel that will effect 
one or more listed species found thereon. The sizes of these land or 
water right-specific HCPs are extraordinarily diverse, spanning six 
orders of magnitude. The smallest approved plan protects the Florida 
scrub jay on just 0.4 acres. The largest plan to date covers over 1.6 
million acres of forest managed by the Washington Department of Natural 
Resources. Despite this extraordinary range of sizes, most HCPs are 
relatively small. The medium size is less than 24 acres, and 74 percent 
of HCPs cover fewer than 240 acres. \18\ The Services encourage a 
planning area that is as comprehensive as is feasible and that 
encompasses the applicant's entire area of activity. The Services also 
seek HCP boundaries that are exact enough to avoid future uncertainty 
about where permittees have responsibility under the HCP. \19\ In 
general, the Services find that bigger is better. Neither the ESA nor 
its regulations limit the size of an HCP.
---------------------------------------------------------------------------
    \18\ The duration of HCPs is also diverse. The length of time that 
an HCP is to be maintained is tied to the duration of the ITP for which 
the plan was developed. Plan duration ranges from 7 months for a plan 
in Travis County, Texas, to 100 years for an HCP implemented by Murray 
Pacific Company in Washington. Two plans, developed for private 
properties in Texas, are to be maintained in perpetuity. Excluding 
those two plans, the median duration of HCPs is 10 years, and 60 
percent of HCPs will be maintained for 20 or fewer years. Over time, 
the duration of approved HCPs has exhibited no significant directional 
trend. NCEAS, supra note 12, pp. 14-15.
    \19\ U.S. Fish & Wildlife Service and National Marine Fisheries 
Service. Endangered Species: Habitat Conservation Planning Handbook 3-
11 (1996) (hereinafter cited as ``FWS & NMFS'').
---------------------------------------------------------------------------
    Although the fundamental purpose of biodiversity conservation is 
the protection of ecosystems, the ESA's regulatory mechanisms are 
species-specific and are only triggered by the listing of individual 
species. \20\ Conservation biologists argue that the single-species 
focus of the [ESA] has not been especially successful in protecting 
functioning ecosystems and is imprudent because species do not exist 
independently from one another and the broader landscape context. \21\ 
Because the needs of species are ``specific'', single-species plans for 
the same area can conflict if not closely coordinated. The extent to 
which HCPs take into account multiple species and the ecosystem as a 
whole is important to their ultimate success. \22\
---------------------------------------------------------------------------
    \20\ For example, the obligations of Federal agencies under 
Sections 7(a)(1) and 7(a)(2) of the ESA are not triggered until a 
species is listed; similarly, the ban on takings in Section 9 does not 
apply until a species is listed. Section 10 fails to encourage 
development of HCPs that protect multiple species unless all species 
under a plan are listed. Thornton, Robert D. Searching for consensus 
and predictability: Habitat conservation planning under the Endangered 
Species Act of 1973. 21 Environmental Law 605, 642 (1991).
    \21\ Noss, et al., supra note 13, pg. 127.
    \22\ Ibid.
---------------------------------------------------------------------------
    Only recently has multi-parcel, multi-species habitat conservation 
planning emerged. Units of local government generally conduct these 
plans, covering a community of both currently listed and potentially 
listable species. Multi-species, multi-parcel conservation planning is 
a promising evolutionary step, for reasons discussed in subsequent 
sections of this paper. Yet, the Services are concerned that attempts 
to cover many land uses or species in a single plan can be frustrated 
by gaps in biological information and lack of consensus among HCP 
participants. \23\ Indeed, the empirical reviews do not support the 
notion that larger plans are better plans. Neither the HCPs covering 
very large areas nor those covering very small areas perform best. \24\ 
Instead, the intermediate-sized planning areas have produced the best 
plans. It seems that planning at a small scale is impaired by limited 
resources to conduct careful analyses of the impacts of development 
(particularly cumulative impacts) or of conservation alternatives. 
Conversely, very large HCPs also appear to result in relatively poor 
analyses, probably due to the difficulty of forecasting impacts and 
planning mitigation and monitoring over very large areas.
---------------------------------------------------------------------------
    \23\ Id.
    \24\ NCEAS, supra note 12, pg. 29.
---------------------------------------------------------------------------
The Preference for Bio-Regional Planning
    Consensus is emerging among conservation scientists and 
commentators that 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, there are benefits for 
both ecosystems and property rights holders when planning is conducted 
at a landscape scale, where habitat conservation strategies are 
developed for a ``bioregion'' covering entire ecosystems and their 
communities of species. \25\ Furthermore, there is indirect evidence 
that multi-species plans are scientifically superior to single-species 
plans, especially with respect to mitigation and monitoring. \26\
---------------------------------------------------------------------------
    \25\ All HCPs affect multiple species, whether they result in 
incidental take permits for multiple species or not. Defenders of 
Wildlife, supra note 7, pg. 20.
    \26\ NCEAS, supra note 12, pp. 36-38.
---------------------------------------------------------------------------
    At the landscape scale of planning, conservation measures for 
ecosystems and their species are more likely to be effective and the 
conservation responsibilities are more likely to be properly allocated 
among both public and private property rights holders. Currently the 
burden of protecting biodiversity on nonFederal lands and waters falls 
on the owners of the remaining undeveloped habitat, even though the 
species at issue became endangered due to consumption decisions made by 
society as a whole. \27\ Landscape-scale planning provides a mechanism 
for the public to shoulder some of the burden of conservation. Thus, 
rights holders and protected species can both benefit from landscape-
scale planning.
---------------------------------------------------------------------------
    \27\ Thornton, Robert D. The No Surprises Policy is Essential to 
Attract Private Dollars for the Protection of Biodiversity. Endangered 
Species Update: Habitat Conservation Planning 65 University of Michigan 
(July/Aug. 1997).
---------------------------------------------------------------------------
    Rescaling conservation planning and permitting in this manner can 
address many of the perceived problems with HCPs. Potential advantages 
of landscape-scale, multi-party HCPs include the following points 
identified by experts in the June 1998 workshop:
    (1) Providing a biological basis for allocating responsibility 
among rights holders. Landscape scale planning can specify the overall 
conservation effort that is needed to protect communities of species, 
thereby providing a basis for determining what share of the burden an 
individual property owner should bear in an HCP. Currently, the ESA 
affords no mechanism for allocating the conservation burden between 
multiple private landowners or between private rights holders and 
public lands. Instead, the burden is allocated in a piecemeal fashion 
through the approval of HCPs, Section 7 consultations, and public land 
management planning and permitting. In theory, those who get their 
approvals earliest get the best deal, with larger burdens reserved for 
latecomers.
    (2) Fostering species recovery. At the landscape scale, it is 
possible to calibrate habitat conservation planning to the objective of 
recovering the listed species and preventing harm to other vulnerable 
species. The only biologically defensible aiming point for habitat 
conservation planning is a net improvement in the prospects for 
survival for listed species and prevention of further declines in 
unlisted species. This objective is harder to advance at the level of 
landholding-specific HCPs, which tend to aim for mitigation or, at 
best, avoidance of impacts on listed species.
    (3) Promoting economies of scale. Since good science is expensive, 
gathering and interpreting the necessary data can be an onerous burden 
for individual rights holders seeking development permits. Rescaling 
shifts an appreciable degree of this burden from individual property 
owners applying for incidental take permits to the public agencies and 
the broader constellation of rights holders that have interests and 
responsibilities in the eco-region.
    (4) Facilitating adaptive management. Because adaptive management 
requires that some part of the development plan covered by an HCP 
remain contingent, it is more feasible to engage in adaptive management 
at the landscape scale. While adaptive management is feasible for 
smaller plans as well, it is facilitated and made more effective with a 
larger planning scale.
    (5) Strengthening public participation. The degree and quality of 
public participation is generally higher with a broader scale of 
planning that includes multiple parties. This correlation is especially 
evident if a unit of local government mediates the HCP process by 
applying for the Federal permit and then issuing sub-permits to 
individual landholders. Such local agencies routinely include the 
public in similar land use planning processes. By contrast, case 
studies show that public participation has not been superior in cases 
where a single landowner prepares a large landscape-scale HCP, as is 
exemplified by many HCPs developed by timber companies.
    The idea that landholding-specific or water right-specific 
conservation requirements should be determined by reference to broader 
conservation objectives is hardly radical. It is rather analogous to 
the way permits are issued for new major emitting facilities within 
airsheds that are already violating national ambient air quality 
standards. A zero growth policy is unacceptable, yet growth cannot be 
allowed to occur at the expense of exacerbating pollution levels that 
are already harmful to human health. The solution under the Clean Air 
Act is to condition permits for such new facilities upon achieving a 
net reduction in emissions of the subject pollutants. Similarly, in the 
water pollution field, discharger-specific effluent allowances are 
determined by reference to basin-wide water quality criteria. In the 
biodiversity arena, new incursions on critical habitat should be 
subject to a similar condition of achieving a net contribution to the 
landscape scale objective of recovery of the imperiled species.
    Individual HCPs should be designed to contribute to the achievement 
of a bioregional conservation strategy that aims for long-term, 
sustainable conservation. Reaching this goal may entail more rigorous 
activities than simply avoiding or minimizing impacts on the subject 
landholding. In some cases, offsite mitigation may be required to 
reduce the threat to the species, which can often best be accomplished 
by requiring contributions to a mitigation fund as a condition of 
permit issuance. \28\
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    \28\ Mitigation funds can be used to purchase the highest quality 
habitats to prevent their development. A development exaction of this 
sort is often best administered by local agencies of government that 
are charged with regional land use planning, an additional reason to 
utilize local jurisdictions as the vehicle for bioregional habitat 
conservation planning. However, since bio-regions often cross local 
(e.g., county and even state) jurisdictional boundaries, coordination 
by a higher-level jurisdiction may be necessary.
---------------------------------------------------------------------------
    If landscape-scale planning offers superior prospects for species 
conservation and, ultimately recovery, then it is necessary to ask what 
kinds of incentives, inducements and cost-sharing arrangements will 
encourage the development of HCPs at this level. Part of the answer 
lies in reallocating a portion of the habitat conservation burden that 
now falls to private rights holders onto the Federal land and water 
managers. Under a landscape-scale approach to conservation, Federal 
agencies that manage public lands and waters (and their commodity 
users) may shoulder a larger share of the conservation burden and may 
be held to the higher standard of recovery of the protected species. If 
private lands are managed to the ESA's ``jeopardy'' standard, \29\ 
there is no margin of safety left for vulnerable species. It is 
especially critical that Federal resource managers undertake a ``fair 
share'' of the conservation burden in areas within a matrix of Federal 
and private lands, for example, lands included in the checkerboard 
pattern of private and Federal land found in many western states.
---------------------------------------------------------------------------
    \29\ The jeopardy standard means avoiding actions that could 
directly or indirectly reduce the likelihood that a species will 
survive and recover in the wild. 50 C.F.R. Sec. 404.02.
---------------------------------------------------------------------------
Recovery Plans as Vehicles for Bio-Regional Planning
    One potential vehicle for landscape scale planning could be the 
recovery plans that the Services are required to develop for listed 
species. Recovery plans can provide much-needed scientific background 
on a species as well as an ecosystemic context for the activities 
proposed under a landholding-specific HCP. \30\ Studies show that, when 
recovery plans exist, HCPs do rely on them extensively. In several 
cases, HCPs have borrowed language and specific mitigation techniques 
directly from recovery plans. \31\ However, there are several problems 
with using recovery plans as a basis for the development of HCPs:
---------------------------------------------------------------------------
    \30\ NCEAS, supra note 12, pg. 33 citing FWS & NMFS, supra note 19.
    \31\ NCEAS, supra note 12, pp. 35-36.
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     Recovery plans currently lag years behind the listing of a 
species. The Services have completed recovery plans for only 40 percent 
of listed species. \32\ And, the Services are not authorized to 
disapprove a proposed HCP because a recovery plan for the covered 
species is in not place. \33\
---------------------------------------------------------------------------
    \32\ As of January, 1997, FWS was responsible for 1,071 
domestically listed species, but only 644 of those species had approved 
recovery plans. The Services are currently authorizing HCPs for 
numerous species without recovery plans such as the marbled murrelet, 
Mexican spotted owl, western snowy plover, giant kangaroo rat, and 
razorback sucker. None of these species has a completed recovery plan 
even though final recovery plans would give guidance to the Services in 
reviewing permits for approval. Sher, Victor M, and Heather L. Weiner. 
Why HCPs Must Not Undermine Recovery. Endangered Species Update: 
Habitat Conservation Planning. 67 University of Michigan (July/August 
1997).
    \33\ One alternative is to give conditional approvals to HCPs until 
a recovery plan is adopted. This strategy could work without undue risk 
to the permittee under an adaptive management strategy (described later 
in this document) so long as the potential costs of plan revision are 
indemnified under the insurance scheme (described in the section on 
regulatory guarantees and assurances).
---------------------------------------------------------------------------
     Historically, recovery plans have been of poor quality and 
often are not biologically defensible. Hence, even when recovery plans 
have been developed, they generally have not resulted in more adequate 
HCPs. \34\
---------------------------------------------------------------------------
    \34\ In fact, the NCEAS study showed evidence that a species was 
more likely to have adequate HCPs developed for its conservation if it 
did not have a recovery plan. The study found that, where a recovery 
plan existed for a covered species, subsequent HCPs were generally of 
poorer quality in their analysis of the current status of the species 
and in monitoring plans. NCEAS, supra note 12, pp. 35-36.
---------------------------------------------------------------------------
     Recovery plans have often inappropriately subordinated the 
biological objective to economic considerations. Economics is important 
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 intended to be binding on or 
enforceable against the non-Federal lands that are encompassed in the 
range of a species. Efforts to make them binding or enforceable would 
be viewed in the political sphere as tantamount to land use planning by 
the Federal Government, which is historically a state and local 
prerogative. Still, recovery plans can provide an objective basis for 
determining whether an HCP represents progress toward species recovery. 
While a negative determination may not preclude approval of the HCP, 
that would allow the Service to know what supplemental efforts will be 
needed within the planning area--perhaps at Federal expense--to achieve 
the recovery goal.
     Recovery is a species-based concept and, thus, recovery 
plans do not necessarily improve the health of the ecosystem as a 
whole, or its processes or functions. However, there is no obvious 
reason why recovery plans could not also be written as bioregional, 
multi-species conservation strategies. Indeed, such an approach would 
further the goals of the ESA to preserve the ecosystems upon which 
threatened and endangered species depend. \35\
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    \35\ If the focus must remain on individual species, Thornton 
recommends giving the Services discretion to formulate recovery plans 
around species that serve particular functions in an ecosystem such as 
keystone species whose roles in ecosystems are so important that their 
loss could precipitate an avalanche of extinctions, or indicator 
species which should be monitored to indicate the condition of other 
species in the same habitat. Thornton, supra note 20, pg. 642.
---------------------------------------------------------------------------
Natural Communities Conservation Plans as Vehicles for Bio-Regional 
        Planning
    The land use planning functions of state and local governments can 
also be harnessed to undertake the type of bio-regional conservation 
planning that could improve landholding-specific HCPs. Since these 
entities already play the predominant role in local land use planning, 
economies of scale and consistency of conservation objectives can be 
achieved by using them for HCP development. In the model that is 
emerging, units of state and local government prepare regional 
conservation plans, submit them to the Services for approval as master 
HCPs under a special rule under Sec. 4(d) of the ESA and administer 
take allowances to individual property owners through sub-permits. An 
outstanding example of such a bio-regional planning program is the 
California Natural Communities Conservation Program (NCCP). \36\ The 
NCCP is a regional, ecosystem-wide, multi-species program that 
encourages landowners to voluntarily plan for habitat protection before 
species are listed. A typical plan might cover a mix of listed and 
unlisted but declining species and their shared habitats, while still 
accommodating development outside the areas set aside as preserves. A 
particular virtue of NCCPs is their potential to address the 
conservation requirements of unlisted species before they decline to a 
level requiring ESA protection. Preventative strategies will invariably 
provide more options for habitat protection than reactive measures that 
become necessary when the decline of a species reaches a crisis and can 
halt and reverse the trend toward extinction. \37\ Therefore, 
community-level HCPs--as opposed to species-based prescriptions--
benefit species at all levels of abundance, thereby addressing 
management needs most comprehensively. \38\ Also, NCCPs can protect 
habitat currently unoccupied by listed species but important for its 
survival. In southern California, for instance, species that depend on 
the coastal sage scrub for breeding may also utilize neighboring 
habitats for sustenance. It is often difficult to protect this kind of 
secondary habitat under the ESA.
---------------------------------------------------------------------------
    \36\ California encourages regional/ecosystem-based conservation 
planning since its 1991 adoption of the Natural Community Conservation 
Planning (NCCP) Act. Silver, Dan. Natural Community Conservation 
Planning: 1997 Interim Report. 14 Endangered Species Update: Habitat 
Conservation Planning 22. University of Michigan (July/August 1997).
    \37\ Bosselman, Fred P. The Statutory and Constitutional Mandate 
for a No Surprises Policy. 24 Ecology Law Quarterly 707, 711 (1997).
    \38\ The Services encourage NCCP-type plans because they:
    Avoid the huge backlog created by species-by-species management;
      (1) Save money and better protect species by getting at what is 
often the root cause of their decline--loss of habitat;
      (2) Reduce the need for last-minute ``emergency room'' measures;
      (3) Prevent economic ``train wrecks'' by involving landowners in 
long-term planning rather than last-ditch efforts at preservation.
      (4) Allow for the use of ``good science'' since ecosystem 
management would begin well before the species are on the verge of 
extinction;
      (5) Maximize flexibility and available options in developing 
mitigation programs;
      (6) Reduce the economic and logistic burden of HCPs on individual 
landowners by distributing their impacts;
      (7) Reduce uncoordinated decisionmaking, which can result in 
incremental habitat loss and inefficient project review;
      (8) Provide the permittee with long-term planning assurances and 
increase the number of species for which such assurances can be given;
      (9) Bring a broad range of activities under the permit's legal 
protection; and
      (10) Reduce the regulatory burdens of ESA compliance for all 
affected participants.
    FWS & NMFS, supra note 19, pp. 1-14, 1-15. Welner, Jon. Natural 
communities conservation planning: An ecosystem approach to protecting 
endangered species. 47 Stanford Law Review 319, 338 (1995). Silver, 
supra note 36, pg. 22.
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    The NCCP is meant to be a voluntary program, but the local 
landowners did not view it as such in the case of the California 
gnatcatcher. With the 1993 listing of the gnatcatcher, Secretary of 
State Bruce Babbitt proposed a ``special rule'' under Section 4(d) of 
the ESA that would exempt landowners participating in the state NCCP 
program from the ESA's prohibition on the incidental take of a 
threatened species. \39\ The special rule expanded the bounds of the 
ESA's incidental take exemption to all areas covered by a NCCP plan. 
The agency thereby had a means to encourage participation in the NCCP. 
At the same time, the rule retained the ESA's prohibition against take 
for developers who elected not to participate. Those landowners had to 
negotiate their own HCP with the Fish and Wildlife Service, aware that 
the agency did not intend to approve any HCPs that did not conform to 
the NCCP guidelines. \40\
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    \39\ Under the special rule, local communities in the Coastal Sage 
Scrub Planning Area are invited to develop subregional NCCP plans. The 
plans must conform to detailed Process and Conservation Guidelines 
issued by CDFG in 1993. The Guidelines provide that the Planning Area 
will be divided into ten to 15 subregions; local communities will be 
allowed to define the size and shape of their own subregions, subject 
to USFW and CDFG approval. Each subregion must designate a local ``lead 
agency'' to coordinate its planning effort. Before taking effect, 
subregional plans must be approved by both the CDFG and USFW. Welner, 
supra note 38, pp. 343-344. Special Rule Concerning Take of the 
Threatened Coastal California Gnatcatcher, 58 Fed. Reg. 65,088 (1993).
    \40\ Welner, supra note 38, pp. 344-345.
---------------------------------------------------------------------------
    These dynamics help explain why the NCCP process was, in general, 
favorably received in Southern California. For conservationists, 
comprehensive state planning based upon Federal ESA standards appeared 
to offer the best hope for rescuing devastated coastal sage ecosystems. 
Developers valued the regulatory assurances they were provided in the 
event of future listings. Local governments were pleased to retain 
autonomy over land use decisions in the face of Federal listings and 
the prerogative to strike the appropriate balance between development 
and open space in their communities. The state and Federal wildlife 
agencies saw the NCCP process as a means to transcend the limitations 
on project-by-project mitigation. Although each stakeholder perceived 
the benefits of participating in the NCCP process differently, enough 
mutual benefits and common ground were found to advance a politically 
difficult process. \41\
---------------------------------------------------------------------------
    \41\ Silver, supra note 36, pg. 22.
---------------------------------------------------------------------------
    The NCCP process is specifically authorized in California by an act 
of the legislature. \42\ This type of vehicle could be propagated in 
other jurisdictions to serve as a nationwide vehicle for bioregional 
planning either through state-by-state enactments or through Federal 
authorization in a reauthorized Endangered Species Act. Through either 
avenue, lessons can be drawn from California's early experimentation 
with NCCP that could lead to an improved nationwide model. One 
thoughtful commentator \43\ provides the following list:
---------------------------------------------------------------------------
    \42\ Natural Communities Conservation Planning Act, Cal. Fish and 
Game Code Sec. 2800 et seq. (1991).
    \43\ Silver, supra note 36, pp. 24-25.
---------------------------------------------------------------------------
    (1) Listing plays an essential role. Standing alone, the NCCP 
provides no protection for ecosystems or species; it merely authorizes 
a collaborative, voluntary process to provide some protection through 
agreements among agencies, landowners, and local governments. In order 
to bring developers to the table, an incentive, such as the threat of 
listing under the ESA, is indispensable. The listing of the gnatcatcher 
provided the motive force for the NCCP plans.
    (2) Public participation is useful, as evidenced by the numerous 
stakeholder groups in the NCCP process that have made many valuable 
contributions.
    (3) Partnerships with local government are powerful. The key 
advantage of an NCCP approach over conventional HCPs is that local 
governments are an active partner. Local land use laws can sometimes 
accomplish what state and Federal agencies alone can not achieve.
    (4) Assurances are part of the equation. The reward to landowners 
for engaging in the NCCP process is the regulatory assurance that, in 
the event a species covered by the plan subsequently becomes listed or 
declines, additional mitigation will not be required of that landowner.
    (5) There is a ``spill-over'' into better planning in general. The 
NCCP efforts have allowed local governments to understand the many 
benefits of natural open space preserves for their communities.
    (6) Scientific accountability must be sufficient. Given the 
program's extraordinary complexity and its susceptibility to political 
and economic pressure, its scientific bases must be beyond debate. Yet, 
in the NCCP experiment, the initial scientific panel was dissolved 
after it had prepared a set of conservation guidelines, and the NCCP 
statute makes no provision for independent scientific consultation or 
review. While it should not be inferred that the plans are unsound as a 
result, neither are they fully credible. \44\
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    \44\ A particular challenge in the use of scientific accountability 
has been the imperative to protect large blocks of habitat quickly, 
before they disappear, even in the absence of adequate scientific data 
on which to base a conservation strategy. This has forced the use of 
practical reserve design methodologies that seek to protect a suite of 
species through conservation measures designed for ``umbrella'' 
species. Such methodologies need more study and validation. Noss, et 
al., supra note 13, pp. 137-142.
---------------------------------------------------------------------------
    (7) Recovery objectives are paramount. Appropriate standards are a 
critical unresolved issue. Since these plans are de facto recovery 
plans, they must ensure healthy populations across species' ranges. The 
failure to explicitly address recovery in the NCCP is a glaring 
deficiency.
    (8) Local land use factors limit program effectiveness. Specific 
deficiencies in plans are often due to zoning constraints or project 
authorizations issued by local government. These need to be reconciled 
with the conservation objectives and strategies pursued by the NCCP 
program.
    (9) A secure source of funding for land acquisition and management 
is necessary. Usually, innovative sources will need to be explored, 
such as loan funds, funds from the Land and Water Conservation Fund, 
mitigation banks, or dedicating that portion of the local property tax 
that corresponds to the marginal increase in the value of adjacent real 
estate resulting from the open space that is set aside. \45\
---------------------------------------------------------------------------
    \45\ Natural Resources Defense Council. Leap of Faith: Southern 
California's Experiment in Natural Community Conservation Planning 33-
35 (May 1997).
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    A variation on the NCCP theme is arising in some states. So called 
``programmatic HCPs'' are a relatively new concept, now primarily 
utilized by state and county governments. \46\ They differ from NCCP-
type or habitat-based HCPs in that their boundaries are based on 
jurisdictional rather than ecological parameters. For example, the US 
Fish and Wildlife Service and the State of Georgia have developed a 
programmatic ``state-wide'' HCP for the red-cockaded woodpecker, and 
Texas is currently embarking on a similar project for the same species. 
\47\ The programmatic HCP allows numerous landowners to participate 
through ``Certificates of Inclusion'' or ``Participation 
Certificates,'' which convey take authorizations. The Services support 
such plans on grounds that a programmatic HCP can be used to address a 
group of actions as a whole, rather than one action at a time in 
separate HCPs. \48\
---------------------------------------------------------------------------
    \46\ FWS & NMFS, supra note 19, pg. 3-39.
    \47\ Bonnie, Robert. Strategies for Conservation of the Endangered 
Red-cockaded Woodpecker on Private Lands. Endangered Species Update: 
Habitat Conservation Planning 45 University of Michigan (July/Aug. 
1997).
    \48\ FWS & NMFS, supra note 19, pg. 3-39.
---------------------------------------------------------------------------
    And yet, the Services acknowledge that programmatic HCPs may pose 
problems. \49\ First, biologists eschew political boundaries in favor 
of using watersheds or discrete ecosystems to delineate conservation 
planning areas. Second, applicants may lack sufficient information to 
determine and evaluate impacts when the specific number and scope of 
development actions is still undetermined. Such HCPs are more likely to 
succeed where the activities are well defined, similar in nature, and 
occur within a discrete geographical area and timeframe. \50\ Despite 
their shortcomings, programmatic HCPs are likely to increase during the 
next era of biodiversity conservation.
---------------------------------------------------------------------------
    \49\ Ibid.
    \50\ Id.
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Promulgation of Programmatic Conservation Standards as Vehicles for 
        Bio-Regional Planning
    A third potential vehicle for landscape-scale conservation planning 
is the promulgation of programmatic standards or guidelines for multi-
species conservation by Federal land and water managers. For example, 
the recent adoption by NMFS of programmatic guidelines for logging on 
anadromous fish-bearing streams in the Pacific Northwest may prove to 
be a useful model in other contexts. 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.
Bio-Regional Conservation Planning Demands a Larger Governmental Role
    Whatever the vehicle, it is clear that landscape scale habitat 
conservation planning will require either the Services, or state and 
local units of government in the case of NCCP-type plans, to play a 
more proactive role in marshalling the necessary biological information 
and developing conservation strategies that cover multiple parcels, 
both private and public. This will entail a sharp departure from their 
traditional roles and will require a substantial increase in resources 
both financial and professional.
    The Services' role in HCP development is not well defined, but 
Congress apparently intended the Services to do more than just exercise 
regulatory oversight by also providing technical assistance to 
applicants. \51\ The HCP Handbook states that large-scale HCPs should 
be developed jointly by the applicant, the Services, the private 
sector, and local, state, and Federal agencies, with the Services 
acting as technical advisors. In addition, the Handbook recommends that 
the Services be actively involved during HCP development in advising on 
mitigation measures, monitoring protocols and reserve designs; 
providing timely review of draft documents; helping find solutions to 
contentious issues; and generally assisting in HCP development. \52\
---------------------------------------------------------------------------
    \51\ Id. pg. 3-1 citing H.R. Conf. Rep. No. 835, 97th Cong., 2d 
Sess. 29, 1982 U.S.C.C.A.N. 2807.
    \52\ Id. pg. 6-24.
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    Notwithstanding these expectations, the Services simply do not have 
the resources to provide the degree of scientific and technical 
guidance that Congress intended in the ESA's 1982 amendments. \53\ In 
practice, HCPs are often negotiated with only minimal guidance as to 
content or biological objectives. \54\ This ``hands off'' attitude 
might also be due in part to the Services' policy of promoting plan 
flexibility and innovation. In any case, the Services have not 
translated the expectations of the Act into technical performance 
standards to which an HCP can be designed. \55\
---------------------------------------------------------------------------
    \53\ NCEAS, supra note 12, pg. 48.
    \54\ For example, the Weyerhaeuser Willamette HCP applicants 
apparently felt the Services' guidance was vague regarding biological 
standards. The Riverside County HCP applicants were also apparently 
unclear regarding biological standards. Aengst, Peter, et al. Balancing 
Public Trust and Private Interest: An Investigation of Public 
Participation in Habitat Conservation Planning. University of Michigan 
(1998) (hereinafter cited as ``Univ. of Michigan'').
    \55\ Applicants find the ESA's legal standards such as ``minimize 
and mitigate'' take to the ``maximum extent practicable'', and 
authorized taking that will not ``appreciably reduce the likelihood of 
survival and recovery of the species in the wild'' too nebulous. Ibid. 
pg. 8-6.
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    This lack of guidance often results in HCP applicants simply 
following precedents established in earlier HCPs. Consequently, HCPs 
that were developed before principles of conservation biology were 
properly applied have nonetheless set a de facto standard of quality. 
The importance of precedent in light of unclear agency guidelines is 
illustrated by a comment from a participant in the development of the 
Clark County HCP: ``[The preparers of HCPs that are] still in the early 
stages are going to look out there for the weakest [HCP to use] as an 
example. We should be real concerned over setting precedents for the 
minimum standard.'' \56\
---------------------------------------------------------------------------
    \56\ Id. pg. 7-8.
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  calibrate habitat conservation planning to biologically defensible 
                                 goals
The Recovery Standard
    There is an emerging consensus among conservation scientists that 
the only defensible biological goal for habitat conservation is the 
recovery of the species. Indeed, this precept is too obvious for 
serious debate unless the ESA and the HCP processes are to be taken as 
merely a set of procedures for slowing the process of extinction. Thus, 
species recovery must be taken as the ultimate goal of the ESA and 
contribution to this goal is the yardstick by which the habitat 
conservation planning process will ultimately be measured by the 
discerning public. HCPs will be viewed as contributing to the 
biodiversity problem rather than the solution unless they are designed 
to advance a restoration strategy, that is, unless they confer a net 
survival benefit to the species. \57\ Otherwise, the Services are 
running a hospital in which the patients will never be taken off life 
support.
---------------------------------------------------------------------------
    \57\ 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.
---------------------------------------------------------------------------
    What constitutes biological recovery is far from straightforward, 
however, and a determination of whether a given HCP meets that standard 
is difficult for a number of reasons. As noted previously, many HCPs 
are approved before the Services have completed draft recovery plans 
for the species. Recovery planning is impeded by agency budget 
constraints and by the competing demands for agency resources to 
process the growing numbers of HCPs and designate ``critical habitat''. 
Where recovery plans do exist, they are often obsolete for current 
planning. \58\ And, recovery planning itself is a highly politicized 
process wherein biological factors can be compromised by economic and 
social considerations. \59\
---------------------------------------------------------------------------
    \58\ Sher and Weiner, supra note 32, pg. 68.
    \59\ Defenders of Wildlife, supra note 7, pg. 54. Sher and Weiner 
point out that funds for recovery plans are often earmarked by Congress 
for high-profile species, leaving less charismatic species to decline. 
In addition, the Services are chronically constrained by inadequate 
budgets, limited staff, and political pressure. Sher and Weiner, supra 
note 32, pg. 67.
---------------------------------------------------------------------------
    Notwithstanding these difficulties, the difference between survival 
and recovery can be understood as distinct levels of risk for the 
protected species. At present, the level of acceptable risk is left to 
the judgment of the applicants and the Services and is seldom made 
explicit. Often, the data to quantify these risks are not sufficient. 
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. Under qualitative assessment, the risk to 
species can be identified and addressed by dealing with the factors 
that have the largest effect on survivability. Independent scientific 
peer review would be very beneficial in making such qualitative 
assessments.
    The objectives of ecosystem conservation and recovery of species 
are explicit in the ESA, \60\ but the means to achieve these goals are 
not made clear. Indeed, the approval standard for HCPs is not 
necessarily consistent with the statutory recovery goal. \61\ Plans may 
be approved under the Section 10 criteria, as long they do not 
appreciably reduce the chance of survival and recovery of the covered 
species. This suggests that some degradation of habitat and loss of 
species is acceptable. Certainly, this criterion does not impose on 
permittees an obligation to improve the survival prospects for the 
listed species. \62\ Thus, HCPs may and usually do degrade the status 
quo.
---------------------------------------------------------------------------
    \60\ 16 U.S.C. Sec. 1531(b), 1532(3).
    \61\ Much of the criticism lodged against the HCP process stems 
from the Services' treatment of HCPs as a permitting process, rather 
than a conservation strategy. Noss, et al., supra note 13, pg. 111.
    \62\ According to conservationist Daniel Hall, the Services' policy 
only requires that an HCP not lead to the extinction of a listed 
species, rather than contributing to recovery. Hall, Daniel A. Using 
Habitat Conservation Plans to Implement the Endangered Species Act in 
Pacific Coast Forests: Common Problems and Promising Precedents, 27 
Environmental Law 803, 809 (1997). While the HCP must not ``appreciably 
reduce'' the likelihood of the recovery of the species in the wild, the 
Services' HCP handbook states that this does not explicitly require an 
HCP to recover listed species, or contribute to their recovery 
objectives outlined in a recovery plan. FWS & NMFS, supra note 19, pg. 
3-20.
---------------------------------------------------------------------------
    The approval of HCPs under this standard can only be squared with 
the ultimate objective of recovery and delisting under the assumption 
that some other custodian of actual or potential habitat will undertake 
countervailing measures. That is a heroic assumption where the Federal 
lands and waters are also managed to a ``non-jeopardy'' standard, and 
where funds to purchase, preserve and restore high quality habitat are 
neither a precondition to the approval of HCPs nor generally available. 
The contrast between the statutory approval standard and a recovery 
standard is most apparent when an HCP covers most or all of the 
remaining habitat of a listed species. If the majority of a species' 
range occurs on nonFederal land, recovery cannot occur unless the HCP 
contributes to that objective. \63\ This mismatch between biological 
objectives and statutory requirements is a serious problem for both 
developers and conservationists because it raises the stakes in the 
negotiation of HCPs and creates political fault lines that leave both 
development and conservation interests insecure.
---------------------------------------------------------------------------
    \63\ Defenders of Wildlife, supra note 7, pg. 52.
---------------------------------------------------------------------------
    Congress has so far shown reluctance to amend the ESA to 
recalibrate the HCP approval criteria to require a net benefit to 
listed species. Yet, nothing less will square HCPs with the explicit 
objective of the ESA or stem the impending biodiversity crisis. It may 
be possible to resolve this political impasse if the issue is restated 
so that it is not about biodiversity requisites but about how the 
financial burdens of meeting them will be allocated. The costs of 
avoidance, minimization and mitigation of adverse impacts on habitat 
are as much as the developers of non-Federal lands and waters are 
willing to shoulder to meet national biodiversity conservation goals, 
and more to the point as much as the political process has been willing 
to impose. The measures necessary to bridge the gap between survival 
and recovery, such as the purchase of habitat preserves and the 
rehabilitation of restorable habitats on non-Federal lands, can be 
defrayed by the public instead of land and water rightsholders if both 
developers and conservationists join in making that arrangement 
politically feasible.
    The remaining issue is whether compensated conservation measures 
should be voluntary on the part of the private rights holder, as some 
recent ESA reauthorization bills would provide, \64\ or mandatory at 
the behest of the Services. This issue is politically controversial 
because allowing the Services to mandate habitat conservation measures 
which bear no proportionate nexus to a development project, such as 
creating preserves, even on a compensated basis, is tantamount to 
conferring eminent domain authority on the Services. As discussed 
below, one solution might be to reward private rights holders who 
accept mandatory measures deemed necessary to achieve a recovery 
standard of performance with a higher level of regulatory assurances in 
their HCPs.
---------------------------------------------------------------------------
    \64\ One example is the Chafee-Kempthorne bill, S. 1181, introduced 
in the 105th Congress.
---------------------------------------------------------------------------
Incentives to Recover Species
    Getting the incentives right is essential to making the HCP program 
work. Enforcement of the ``take'' prohibition under Section 9 creates 
an incentive for private rights holders to seek incidental take 
permits, for which HCPs are a prerequisite. As the enforcement of the 
take prohibition becomes more vigorous, the incentive to develop high-
quality HCPs increases. \65\ However, the practical difficulties in 
enforcing the take prohibition limit its value as an incentive. The 
Services find enforcement of the take prohibition difficult because 
they cannot enter private lands without permission and because they 
face budget limitations. For some species, the data are not sufficient 
to determine what actions constitute a take (e.g. mussels), while for 
other species, the Services do not know where they occur on private 
lands. Because the Services have shown reluctance to enforce the take 
prohibition, the main incentive for HCP development today is the fear 
of citizen suits and the attendant insulation from prosecution that an 
HCP can provide. \66\ Under these realities, enforcement of the take 
prohibition, though an essential incentive for rights holders to 
develop HCPs. cannot substitute for habitat conservation planning.
---------------------------------------------------------------------------
    \65\ To be sure, the penalty needs to be sufficient to nullify any 
economic benefits of non-compliance; nominal penalties are likely to be 
absorbed as a cost of doing business rather than serve as a deterrent 
to taking species or destroying habitats. On the other hand, the larger 
the potential penalty, the greater the perverse incentive to destroy 
habitat before a listing occurs.
    \66\ Some commentators confirm that landowners are preparing HCPs 
because capital markets insist upon HCPs before they will lend project 
development funds. Capital markets place a high value on assurances 
that future restrictions will not impede development. This may not 
apply to ``commodity'' lands where take detection and enforcement is 
problematic.
---------------------------------------------------------------------------
    The ESA does not mandate that HCPs confer a net survival benefit on 
species, but neither does the Act mandate that the Services issue 
guarantees to permittees against further ``take'' restrictions. It 
seems likely that the Services can induce HCP proponents to contribute 
to recovery of a listed species by correlating their regulatory 
assurances to the extent of biological benefit conferred in an HCP. For 
instance, plans that contribute to recovery might receive assurances 
for a longer term than those that merely avoid jeopardy. Similarly, 
plans based on highly adequate data and analyses might be entitled to 
more extensive guarantees.
    In some cases, shifting a larger share of the costs of conserving a 
listed species to the Federal land management agencies would also make 
recovery achievable without increasing the burdens on private rights 
holders. Yet, at present, the prevention of jeopardy of extinction is 
the aiming point for most management decisions on Federal land. This 
low standard of management for the public lands should concern the 
property rights community as much as the conservation community because 
the practical consequence is that a higher burden of species 
conservation may be apportioned to the private rights holders if 
recovery is to be achieved. \67\
---------------------------------------------------------------------------
    \67\ Of course, holding the public lands to a higher standard of 
performance in habitat conservation would not be advance recovery in 
regions of the country where there is little or no Federal land, or 
where existing Federal land is unsuitable to support the species in 
question.
---------------------------------------------------------------------------
 incorporating independent science and public participation to improve 
                       hcp conservation measures
    Many performance reviewers agree that HCPs would be improved if 
state-of-the-art, independent biological expertise was utilized and if 
meaningful opportunities were afforded local communities and 
conservation interests to participate in the development of HCPs. These 
two recommendations merge under the premise that the most efficacious 
way to advance the public's interest in effective conservation planning 
is for HCPs to be based on the best available science.
    In a March 1997 letter to the Administration and Congress, a number 
of prominent conservation biologists warned that many HCPs ``have been 
developed without adequate scientific guidance'' \68\ in the form of 
independent peer review. They argued that, as a consequence, these 
plans seem to contribute to, rather than alleviate, threats to listed 
species. \69\ The scientists recommended that the data, analyses, and 
interpretations regarding species status, take, impact, mitigation, and 
monitoring should be reviewed to ensure that the scientific foundations 
of the plans are sound. \70\
---------------------------------------------------------------------------
    \68\ Murphy, Dennis, et al. A Statement on Proposed Private Lands 
Initiatives and Reauthorization of the Endangered Species Act from the 
Meeting of Scientists at Stanford University (March 31, 1997).
    \69\ The scientists were particularly concerned about the 
inflexibility in conservation strategies associated with the ``No 
Surprises'' assurances, the coverage of species in multiple-species 
HCPs, level of protection afforded by safe harbor initiatives and 
prelisting agreements, and the lack of independent scientific review of 
these agreements. Ibid.
    \70\ Ibid.
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Why There Is A Need for Independent Science in Habitat Conservation 
        Planning
    Independent science would be useful in the HCP process because 
neither the consultants retained by the HCP proponent not the Services 
staff scientists necessarily have the time, information, or incentive 
to represent the state-of-the-art.
    In the general process of developing an HCP, biologists in the 
proponent's employ submit a plan to the Services, sometimes working 
informally with the Services' biologists in the process. \71\ 
Typically, relatively little detailed information concerning a listed 
species' habitat exists at the time of listing, in which case, the 
first requisite in preparing an adequate HCP is to gather this 
information. \72\ This process can be labor-intensive and expensive, 
which is one reason it is easier to prepare landholding-specific HCPs 
after a bioregional conservation plan has already been developed. As 
HCPs grow in geographic scope, last longer, and cover more species, the 
complexity of biological planning grows. These larger HCPs require 
Herculean efforts to assemble available data and conduct additional 
field surveys, utilize state-of-the-art tools for planning (e.g. GIS), 
and make sure that available ecological information and management 
techniques are used in the best way possible. \73\
---------------------------------------------------------------------------
    \71\ Defenders of Wildlife, supra note 7, pg. 37.
    \72\ FWS & NMFS, supra note 19, pg. 3-12.
    \73\ Hosack, Dennis A., Laura Hood, and Michael P. Senatore. 
Expanding the Participation of Academic Scientists in the HCP Planning 
Process. Endangered Species Conservation Planning 60 University of 
Michigan (July/August 1997).
---------------------------------------------------------------------------
    Performance reviews of HCPs reveal that information pertinent to 
the design of HCP conservation strategies is frequently under-
researched by the HCP preparers. Of particular concern are the data 
omissions regarding cumulative impacts of development activities on 
other parcels or river reaches. \74\ Data omissions on such species 
characteristics as amount and quality of feeding, breeding, and 
migration habitat were also judged to be a serious problem in the 
development of mitigation or minimization efforts. Even when a fair 
amount of information is known about a species, it is still difficult 
to efficiently incorporate biological data into conservation strategy 
decisions because no well-accepted model exists. \75\ Yet, all in all, 
the scientific quality of HCPs, especially in terms of mitigation 
analysis, has been improving. \76\
---------------------------------------------------------------------------
    \74\ For example, in 23 percent of the cases surveyed, information 
on cumulative impacts suggested that a different assessment of status 
or impacts of take should have been made. NCEAS, supra note 12, pg. 38.
    \75\ Thornton, supra note 20, pg. 651.
    \76\ The NCEAS researchers looked at the overall quality of HCPs 
over time, and found that, from the first HCP (San Bruno Mountain) 
until 1996-97, for several stages of planning and for overall quality, 
more recent plans are better than older ones. The most biologically 
important aspect of this improvement is in mitigation analysis: before 
1995, only 10 percent of species covered had ``adequate'' analysis of 
mitigation, while from 1995-1997, 60 percent of species were adequately 
analyzed. Similar improvements have occurred in all other steps of 
analysis, indicating that HCPs--are--as their advocates have claimed 
becoming more rigorous scientific documents. Ibid.
---------------------------------------------------------------------------
    The Services have the responsibility to ensure that applicants use 
adequate scientific information to develop HCPs and the Services 
acknowledge that the availability of up-to-date biological information 
is crucial to any HCP. Yet, the Handbook leaves data collection 
exclusively to the applicant, \77\ as well as the threshold decision 
whether the available biological information is adequate to proceed 
with planning. Only if the applicant conveys to the agencies that 
additional data is needed will the Services make recommendations on 
research and collection of biological information. \78\ But, the 
applicant's have little motivation to activate the Services in this 
way. Their primary concern is for speedy, cost-efficient plan 
development and they loath to engage in resource-and time-intensive 
studies unless the Services require them for the approval of the HCP.
---------------------------------------------------------------------------
    \77\ FWS & NMFS, supra note 19, pg. 3-12.
    \78\ Ibid.
---------------------------------------------------------------------------
    Conservation biology is the discipline implicated in designing 
optimal habitat conservation strategies. Yet, the performance reviews 
of HCPs revealed that the statutory command to ``minimize and mitigate 
project impacts to the maximum extent practicable'' has often caused 
HCP negotiations to be driven by considerations of economic 
feasibility. The operative facts have become the applicant's assertions 
regarding the effects of mitigation alternatives on profit margins, 
rather than the scientists' assertions regarding biological 
imperatives. This has led some scientists to criticize HCPs as 
discretionary measures based mainly on political and economic 
considerations rather than on empirical scientific data regarding the 
ecological requirements of a species. \79\ While economics is certainly 
relevant to deciding on the allocation of responsibilities among 
property holders, both public and private, in achieving the 
conservation goals of the plan, economic considerations should not be 
allowed to intrude into the choice of conservation strategies.
---------------------------------------------------------------------------
    \79\ Bingham, B.B., and B.R. Noon. Mitigation of Habitat ``Take'': 
Application to Habitat Conservation Planning. 11 Conservation Biology 
127-139 (1997).
---------------------------------------------------------------------------
The Role of Independent Scientists
    Apart from the influence of economics and politics, a spectrum of 
scientific opinion may exist as to whether the conservation strategy 
adopted in an HCP is adequate to meet the biological objectives. 
Establishing an independent scientific review may help arbitrate the 
differences in professional judgment and help assure that survival and 
recovery of the species are attained. Independent review \80\ is also 
important to foster public confidence in the process. The concurrence 
of the broader scientific community confers an imprimatur of technical 
excellence that can garner public acceptance for controversial HCPs.
---------------------------------------------------------------------------
    \80\ A qualified independent reviewer is one who:
      (1) has little personal stake in the outcome of decisions or 
policies in terms of financial gain or loss, career advancement, or 
personal or professional relationships;
      (2) can perform the review tasks free of intimidation by others 
associated with the decision process;
      (3) has demonstrated competence in the subject as evidenced by 
formal training 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 identify internal and external 
costs and benefits both social and ecological of alternative decisions. 
Typically such a person is associated with a recognized scientific 
society or is otherwise an established professional in a particular 
field.
    Workshop Findings & Conclusions, supra note 16, pg. 13.
---------------------------------------------------------------------------
    Under current practice, independent scientists may become involved 
in the development of HCPs through informal consultation or by serving 
on a scientific review panel. However, these opportunities generally 
come only after the HCP has been developed or implemented. \81\ In 
addition, even this limited involvement often arises only at the behest 
of the outside scientist, not as a result of solicited peer review. 
Thus, independent scientists are generally involved only and to the 
extent they volunteer their services, not as part of routine practice 
in the formulation of a habitat conservation plan. \82\
---------------------------------------------------------------------------
    \81\ Defenders of Wildlife, supra note 7, pg. 37. Currently few 
professional or financial incentives exist for independent scientists 
to participate in HCP development, while many disincentives to their 
involvement exist. Univ. of Michigan, supra note 54, pg. 10-0.
    \82\ The University of Michigan study found that fewer than a third 
of applicants submitted all or portions of their HCP for peer-review to 
non-applicant and non-agency scientists, and the researchers were 
unsuccessful at finding a single HCP that had undergone formal peer 
review. Univ. of Michigan, supra note 54, pg. 10-3.
---------------------------------------------------------------------------
    Such post hoc peer review of completed plans is not enough. 
Defensible science must be integrated from the beginning and at all 
phases of the planning process. 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 
mitigation strategy. These decisions are made as the HCP is negotiated, 
not at the final stage when the Service issues the incidental take 
permit. Assessments of completed plans during public commenting periods 
come at the least useful stage when the chances for changing elements 
of the plan are slim. Late scientific analysis relegates science to the 
role of an adversarial interest at the approval stage rather than a 
shaping influence at the foundational stage. \83\
---------------------------------------------------------------------------
    \83\ Noss et al., supra note 13, pg. 124.
---------------------------------------------------------------------------
Access Barriers for Independent Science
    Notwithstanding the pivotal importance of state-of-the-art 
biological information, the Services defer to the applicant regarding 
admission of others to the HCP negotiation process. In the role of 
``gatekeeper'', applicants typically do not wish to involve interested 
scientists who are not agency staff or part of the applicant's coterie 
of paid consultants. Applicants argue that they spend large sums of 
money to hire competent consulting firms and that the Services' reviews 
are already excessive. \84\
---------------------------------------------------------------------------
    \84\ Hosack, et al., supra note 78, pg. 60.
---------------------------------------------------------------------------
    The Services' deference to the applicants on public participation 
reflects their view of the HCP as a permit application over which the 
applicant itself should exercise final substantive control. However, an 
HCP is for all intents and purposes a negotiated settlement of an 
applicant's regulatory liability under the ESA. The plan determines the 
terms and conditions under which a discretionary permit will be issued 
to engage in otherwise forbidden acts, namely the taking of protected 
species. Once its terms are approved by the Services, issuing the 
incidental take permit or implementation agreement is largely a 
formality.
    Given these realities, the process through which an HCP is 
developed and approved should be as open to interested members of the 
public as is the issuance of land use permits in other contexts. For 
example, when the Department of Interior grants grazing permits under 
the Federal Land Policy and Management Act, it allows for public 
participation so that all parties affected by the process will be 
represented. NPDES permits and local building permits are similarly 
public processes. \85\ Permit applicants in these processes are not 
allowed to control who can and who cannot participate in the permitting 
process. Likewise, the Services, not the applicants, should determine 
who gets a seat at the HCP negotiation table. Native fish and wildlife 
are public resources under both state and Federal juris-prudence, 
wherever they may be found. It is fundamentally wrong to treat the 
permitting process as a private, rather than a public, affair. The 
public does have a legitimate interest in the substantive validity of 
the negotiated terms and conditions for take of endangered species on 
private lands.
---------------------------------------------------------------------------
    \85\ Other Federal statutes allow stakeholders to help shape 
natural resource use and protection. The EPA convenes interested 
stakeholders in setting Federal water quality standards, and NMFS 
itself employs stakeholder groups in its efforts to reduce the harm 
commercial fishing has on imperiled fish species under the Marine 
Mammal Protection Act. Nothing in the ESA precludes the Services from 
employing similar measures to involve the public in the HCP development 
process.
---------------------------------------------------------------------------
    The recommendation that the Services, rather than the HCP 
applicants, act as the gatekeeper of HCP negotiations does not mean 
that the Services must admit to the table everyone whom knocks on the 
door. Demonstrated ability to contribute substantively to the issues on 
the table without undue delay may be made the price of admission. We 
simply urge that the Services themselves assume the role of making 
these decisions and not leave them to the permit applicant who has a 
vested interest in moving the negotiation process forward with a 
minimum of process and scrutiny.
The Value of Public Participation in Habitat Conservation Planning
    It must be recognized that the public does have a significant stake 
in the HCP process because wildlife is a public resource, both legally 
and in the court of public opinion. And, whatever conservation 
responsibilities or risks are not borne by the HCP applicant will 
either be borne by the species or be shifted to other landowners or to 
the public lands, usually at public expense. An HCP that authorizes 
land disturbances that can cause flooding, mudslides or loss of 
fisheries directly affects the welfare of the local community. \86\ 
Equally important, public participation in the development of an HCP 
can enhance the quality of information on which HCP decisions are 
based, improve understanding and relationships among stakeholders, 
heighten public and political support for an HCP, and enhance the 
plan's long-term viability. Indeed, the degree of public acceptance of 
an HCP is strongly related to the degree of public participation in the 
development of the plan. The larger the role that interested parties 
are accorded in developing conservation plans, rather than merely 
commenting on completed plans, the more satisfied they tend to be with 
the final result.
---------------------------------------------------------------------------
    \86\ Kostyack, John. Habitat Conservation Planning: Time to Give 
Conservationists and Other Concerned Citizens a Seat at the Table. 
Endangered Species Update: Habitat Conservation Planning 51 University 
of Michigan (July/Aug. 1997).
---------------------------------------------------------------------------
    Where a unit of local government applies for the Federal approvals 
and then issues development permits, the process is easier to access by 
the local community and general public, and the participation issues 
largely dissipate. HCPs that include some form of public land, whether 
Federal, state, or local, tend to provide more public participation 
than HCPs that strictly involve private land. The public usually 
becomes involved earlier and more actively compared to HCPs on private 
land. \87\
---------------------------------------------------------------------------
    \87\ The University of Michigan study provides several explanations 
for these different levels of participation. First, the public may not 
have as much desire to participate in private HCPs as they do in public 
HCPs. Although both types of plans effect public wildlife resources, 
public HCPs likely have more impact on public finances, future 
development, recreational lands, and other activities in which the 
public has a stake. Another explanation is that public HCPs provide 
more opportunities for public involvement. State and local laws may 
compel applicants to hold public meetings or make more frequent 
disclosures concerning their evolving plans. Also, many of the 
applicants of public HCPs are themselves public institutions who likely 
have more experience, inclination, and avenues for including the public 
in a formal HCP process than do private entities. Similarly, plans that 
affect public resources usually require approval from at least one 
public body. This may provide an incentive for public applicants to 
involve the public as a means of increasing the legitimacy and 
political feasibility of the plan. Univ. of Michigan, supra note 54, 
pp. 5-18-5-20.
---------------------------------------------------------------------------
    However, public participation is usually extremely limited when 
private rights holders initiate the HCP process. And, the Services have 
offered little in the way of guidance on fostering public 
participation. HCP guidelines merely instruct the agencies to encourage 
applicants to involve appropriate parties and hold informational 
meetings during public comment periods. \88\ The Services have taken a 
``satisfied customer'' approach to HCPs wherein the agencies view the 
applicant rather than the public as the ``customer'' to satisfy. \89\
---------------------------------------------------------------------------
    \88\ FWS & NMFS, supra note 19, pg. 6-22.
    \89\ Univ. of Michigan, supra note 54, pg. 8-2.
---------------------------------------------------------------------------
Public Participation Under The National Environmental Policy Act
    Issuance of an incidental take permit is a Federal action subject 
to the National Environmental Policy Act (NEPA). \90\ NEPA goes beyond 
Section 10 of the ESA in considering the impacts of a Federal action on 
non-wildlife resources. \91\ But, like NEPA, the ESA requires a 
description of ``alternative actions to such taking.'' \92\ To satisfy 
this requirement, applicants commonly analyze just two alternatives 
\93\ but must explain why alternatives were rejected. \94\ The Services 
do not have the authority to impose a choice among the alternatives 
analyzed in the HCP; their role during development is to simply advise 
the applicant in developing an acceptable plan. \95\
---------------------------------------------------------------------------
    \90\ FWS & NMFS, supra note 19, pg. 1-6.
    \91\ Depending upon the scope and impact of an HCP, NEPA can be 
satisfied by one of three documents: (1) a categorical exclusion; (2) 
an environmental assessment (EA); or (3) an Environmental Impact 
Statement (EIS). An EIS is required when the proposed project or 
activity covered by the HCP is a major Federal action significantly 
affecting the quality of the human environment. An EA is prepared to 
ascertain whether an EIS is needed. An EA culminates in either a 
decision to prepare an EIS or a Finding of No Significant Impact. 42 
U.S.C. Sec. 4321 et seq (1969).
    \92\ 16 U.S.C. Sec. 1539(a)(2)(A)(iii).
    \93\ The two alternatives commonly included in NEPA documents are:
      (1) Any specific alternative, whether considered before or after 
the HCP process was begun, that would reduce such take below levels 
anticipated for the project proposal; and
      (2) A ``no action'' alternative, which means that no permit would 
be issued and take would be avoided or that the project would not be 
constructed or implemented.
    FWS & NMFS, supra note 19, pg. 3-35.
    \94\ The HCP Handbook allows applicants to cite economic 
considerations as reasons for rejecting an alternative. However, if 
economic considerations are the basis of rejection, applicants must 
provide data supporting this decision so long as the applicant believes 
that the information is not proprietary.
    \95\ FWS & NMFS, supra note 19, pg. 3-36.
---------------------------------------------------------------------------
    NEPA's comment periods and disclosure requirements often provide 
the only opportunity for the interested public to review and comment on 
an HCP before it is approved. But, NEPA's usefulness as a participation 
and communications device is limited because the HCP negotiations tend 
to solidify a particular approach before public environmental review 
can influence them. \96\ The HCP process, like any planning effort, 
becomes less flexible as time goes on and more ground is covered. 
Therefore, effective public involvement requires access to the process 
before the draft impact statement is issued for review. Based on these 
considerations, performance reviewers have recommended that the 
Services implement ``trigger points'' or points between scoping and the 
comment period when negotiators would be required to disclose 
agreements in early drafts and seek public comments on those documents. 
\97\
---------------------------------------------------------------------------
    \96\ In its 1998 study on public participation and the HCP process, 
researchers at the University of Michigan analyzed 14 HCPs and the NEPA 
comments those HCPs generated. It found that the comments received 
during the NEPA process, regardless of their context, did not 
significantly affect the outcome of the plan. For example, the 
outpouring of public comments on the San Diego MSCP in part forced the 
applicant and the Service to prepare a second DEIR/DEIS for the plan. 
However, the second draft changed only minimally in content over the 
first. Similarly, for the Plum Creek HCP, the company representatives 
stated that part of Plum Creek's rationale in preparing an EIS rather 
than EA for the HCP was that NEPA afforded greater public participation 
under an EIS. Nonetheless, participants noted that public comment had a 
minimal effect on that plan. Univ. of Michigan, supra note 54, pg. 7-1, 
8-3.
    \97\ Ibid.
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Tools for Facilitating Effective Participation by Independent 
        Scientists and Local Communities
            The HCP Resource Center
    Local communities and conservation organizations that are 
interested in upgrading the scientific competence of HCPs generally do 
not have access to the requisite expertise or the means to procure it. 
To meet this apparent need, the Natural Heritage Institute is working 
with other national conservation organizations to create a pool of 
resources--both intellectual and financial--to enable independent 
scientific expertise to be brought into HCP negotiations on behalf of 
conservation interests and local communities. The HCP Resource Center 
will be comprised of a nationwide network of conservation scientists 
representing the full range of relevant sub-specialties from 
universities, private consulting organizations and the non-profit 
sphere. It may also include resource economists and wildlife law 
experts with appropriate negotiation skills. Teams tailored to the 
requisites of particular HCPs will be assembled to engage directly and 
effectively with the agency's and the applicant's team of scientists 
and negotiators. Creation of the HCP Resource Center is currently in 
the planning and fundraising stages. Establishing the center will be a 
resource-intensive process. High quality, independent science comes 
with a price tag and, for most species, qualified experts are not 
numerous.
National Data bank for HCP Materials
    As a means of facilitating public involvement in the preparation of 
HCPs, several experts have recommended that the Services maintain a 
comprehensive, publicly accessible data bank of HCPs. \98\ The data 
bank should include sufficient details to assist landowners in matching 
their conditions to previously approved HCPs. This capacity would allow 
applicants to model their plans after the successful efforts of others 
and would allow the public and nonprofit conservation organizations to 
track and monitor the implementation of individual HCPs. Because there 
is currently no central repository of completed plans and no log of 
HCPs under development, the public has not been able to follow the 
implementation of the ESA through HCPs as closely as some would like. 
\99\ At present, information on individual plans can only be found by 
calling government field offices and asking the overworked biologists. 
The data base would help both the public and Services track the overall 
performance of approved plans. \100\ The financial cost of maintaining 
such a data bank would be relatively modest because it would utilize 
information already compiled by the Services.
---------------------------------------------------------------------------
    \98\ Lin, Albert C. Participants' Experiences with Habitat 
Conservation Plans and Suggestions for Streamlining the Process, 23 
Ecology Law Quarterly 369, 416 (1996); Univ. of Michigan, supra note 
54, pg. 14-8; NCEAS, supra note 12, pg. 47.
    \99\ The lack of public scrutiny and involvement when HCPs were 
launched would later be characterized by the administration as a 
``quiet revolution.'' Kostyack, John. Surprise! The Environmental Forum 
19 (March/April 1998).
    \100\ According to the NCEAS researches, centralized and readily 
accessible data on endangered species could do for species protection 
what centralized and accessible data on criminals and outstanding 
warrants has done for public safety protection; surely, if we can do 
this for law enforcement, we can also do it for environmental 
protection. NCEAS, supra note 12, pg. 47.
---------------------------------------------------------------------------
 incorporate adaptive management and the precautionary principle into 
                               hcp design
    Because our understanding of the biological world is incomplete, 
uncertainties are endemic to conservation planning. The biological 
information available on species and ecosystems--and their interaction 
with habitat--is always, to some degree, imperfect or ambiguous. The 
performance reviews recommend two interrelated tools for dealing with 
critical uncertainties: adaptive management and the precautionary 
principle. Adaptive management is a technique that tests the response 
of biological systems to conservation measures and adjusts conservation 
strategies as warranted on an ongoing basis. The precautionary 
principle resolves critical uncertainties in favor of greater 
protection for the species until and unless better information counsels 
otherwise.
Applying Adaptive Management Principles to HCP Design
    Adaptive management is a strategy for coping with the uncertainties 
inherent in predicting how ecosystems will respond to human 
interventions. Adaptive management is an essential feature of habitat 
conservation planning because it responds realistically to ignorance 
about the ecosystem by monitoring the results of management efforts so 
that adjustments can be made as needed. \101\ Under adaptive 
management, HCPs are acknowledged to be mere working hypotheses, 
predicated upon assumptions about how species and their ecological 
processes and functions respond to changes in habitat size, location, 
configuration, quality, etc. These assumptions, uncertainties, and 
knowledge gaps are made explicit, and the conservation strategy 
includes concrete plans and funding for a program of hypothesis-testing 
against specified, measurable performance goals.
---------------------------------------------------------------------------
    \101\ Noss, et al., supra note 13, pg. 133.
---------------------------------------------------------------------------
    Adaptive management treats every HCP as a ``learning laboratory'' 
where conservation strategies continue to evolve as scientific 
understanding increases. While HCPs will always be experiments with 
uncertain outcomes, adaptive management requires resource managers to 
acknowledge the risks inherent in the experiment and modify 
conservation measures according to experience and new information. 
Thus, another word for adaptive management is ``contingency planning.'' 
At its core, an effective adaptive management program must include a 
method for evaluating the performance of the HCP and must specify the 
alternative conservation measures that will be triggered automatically 
in the event that performance fails to meet conservation goals. Under 
such a program, it might be necessary for the permittee to implement 
development activity in phases so that permission to begin a later 
phase is contingent upon the Services verifying that the performance 
standards in the prior phase have been met. This kind of phased 
development is more easily accomplished in larger landscape-scale plans 
that are implemented over time.
    From the Services' perspective, property rights holders are already 
successfully incorporating adaptive management into HCPs. However, in 
both the existing Handbook and the proposed addendum, the practice of 
adaptive management is limited to circumstances where ``significant 
uncertainty exists,'' and, even then, only to circumstances where the 
applicant accedes to its utilization. \102\ In current practice, the 
range of conservation measures that might be required as a result of 
evolving information is negotiated as a term of the initial HCP. \103\ 
Yet, many conservation biologists agree that ``significant 
uncertainty'' may not become apparent until after the HCP has been 
approved. They advocate for including adaptive management practices in 
virtually every plan, making it the rule rather than the exception.
---------------------------------------------------------------------------
    \102\ Ibid. pg. 3-24. The Draft Addendum to the Handbook does 
nothing to expand the use of adaptive management, since the Draft 
recommends adaptive management only for plans containing ``significant 
data gaps.'' 64 Fed. Reg. at 11486.
    \103\ FWS & NMFS, supra note 19, pg. 3-25.
---------------------------------------------------------------------------
    Conservation biologists have identified five steps to develop an 
HCP that utilizes adaptive management practices: \104\
---------------------------------------------------------------------------
    \104\ Workshop Findings and Conclusions, supra note 16.
---------------------------------------------------------------------------
    (1) Identify explicit and quantifiable biological goals;
    (2) Characterize the human-induced stressors of the ecosystem that 
must be overcome or counteracted to achieve those goals, including an 
explicit acknowledgement of the critical uncertainties regarding the 
stressor-response relationships;
    (3) Specify high-probability measures to minimize, mitigate or 
offset these stressors or otherwise achieve the biological goals;
    (4) Monitor biological indices by developing a statistically valid 
sampling protocol. Develop mechanisms to translate data into needed 
plan adjustments. \105\
---------------------------------------------------------------------------
    \105\ These steps call for the rigorous application of the 
following scientific methods:
      (1) System assessment: systematic collection and statistical 
analysis of data on ``health'' of the important ecosystem components 
and on the factors that may influence health at several levels: 
population, species, community, habitat, and ecological processes.
      (2) Experimental science: rigorous, controlled, empirical tests 
to confirm causal relationships, management hypotheses, and the 
incidental impacts of management.
      (3) Risk assessment: statistical analysis of empirical results to 
identify levels of risk, including those associated with uncertainty.
      (4) Devices for managing risk and uncertainty: including 
application of the precautionary principle.
    Workshop Findings and Conclusions, supra note 16.
---------------------------------------------------------------------------
    The choice of conservation measures in Step 3 is crucial to the 
success of an HCP. These mitigation measures must represent the ``best 
guess'' based on the best available data. Once in place, these measures 
constitute the initial working hypotheses that the adaptive management 
regimen tests, monitors and adjusts to as necessary to reach the 
biological goals.
Measures to Reduce the Risks of Unsuccessful Mitigation
    The most frequently used mitigation strategies consist of measures 
to minimize or avoid development impacts on the listed species. \106\ 
While these are usually the easiest and least costly procedures to 
implement, the sufficiency of these measures can only be tested over 
time and in relation to how the target species responds in the real 
world. To maximize prospects for successful mitigation, measures should 
be based on the best science available and the mitigation strategy must 
be allowed to evolve over time as monitoring progresses. As to the 
scientific adequacy of HCPs to date, researchers have found that the 
efficacy of the conservation measures initially selected in the plans 
varies greatly. In most cases, the mitigation procedures do address the 
primary threat to the survival of the species, but only about half of 
mitigation plans adequately ameliorate that threat. \107\
---------------------------------------------------------------------------
    \106\ NCEAS, supra note 12, pg. 24.
    \107\ For the 57 percent of the species included in the HCPs 
examined by the NCEAS, the mitigation measures addressed the primary 
threat to the species to a degree considered ``sufficient'' or better. 
The research found that the 10 most common types of mitigation employed 
in HCPs were, in order of frequency: minimization, avoidance, land 
acquisition , conservation easements, habitat restoration, restoration 
of disturbance regimes, removal of exotics, research funding, habitat 
banking, and translocation of species. Ibid. pg. 25.
---------------------------------------------------------------------------
    There are several techniques that can reduce the risks to the 
species associated with unsuccessful mitigation strategies. In general, 
the Services recommend that mitigation habitat should be as close as 
possible to the area of impact. Also, the habitat should include 
similar habitat types and support the same species affected by the 
development covered by the HCP. \108\ The Handbook recommends that 
habitats be ``banked'' through the use of conservation easements or 
other means before development occurs. \109\ The ``mitigation credit'' 
system is a variant of this scheme. Under this system, newly created 
habitat receives a credit (usually on a per acre basis) which can then 
be used or sold to other parties requiring mitigation lands. \110\ This 
allows landowners to pay mitigation fees into habitat acquisition funds 
in lieu of conserving habitat on their own lands. Other landowners may 
create habitat for purchase as mitigation. For instance, International 
Paper Company is restoring and selling red-cockaded woodpecker habitat 
in the southeast. The Bakersfield Metropolitan HCP is conserving a 
whole suite of species based entirely on marketable development rights.
---------------------------------------------------------------------------
    \108\ FWS & NMFS, supra note 19, pp. 3-21, 3-22.
    \109\ Ibid. pg. 3-21.
    \110\ The Services find the ``mitigation credit'' system promising 
because: (1) it allows owners of endangered species habitat to derive 
economic value from their land as habitat, (2) it allows parties with 
mitigation obligations to meet their obligations rapidly since 
mitigation lands are simply purchased as credits, and (3) the 
mitigation lands are provided prior to the impact, eliminating 
uncertainty about whether a permittee might fail to fulfill the HCP's 
obligations after the impact has occurred. Id.
---------------------------------------------------------------------------
    Mitigation banking can achieve habitat goals in an economically 
efficient manner and can reconfigure habitat in ways that traditional 
HCPs cannot. Because spatial considerations are critical in 
conservation, mitigation banking has the potential to result in ``no 
net loss'' of habitat and to enhance population stability by exchanging 
fragmented habitats for non-fragmented habitats. Assuring that 
mitigation banks do not result in a net reduction in the extent or 
quality of habitat is particularly essential for already endangered or 
threatened species.
    However, it is often difficult to establish a ``common currency'' 
for valuing the habitat that is banked or sacrificed. There may not be 
much ``biological content'' to the offset credits assigned. Since 
habitat value is site-and detail-specific, there are no unsigned 
biological bearer bonds. That is to say, the amount of habitat credit 
appropriate to a mitigation scheme is not fungible, but highly 
dependent upon the specifics of the exchange. Generic criteria will 
quickly break down. What is needed is a process for valuation, not 
fixed criteria.
    The success of mitigation measures depends on their timely 
implementation. To increase the probability that unsuccessful 
mitigation procedures can be detected and corrected, implementation 
should occur before the listed species are impacted by the permitted 
development activities. If most of the take occurs before mitigation 
measures are implemented, the chance of adapting the conservation 
strategy to correct unsuccessful conservation measures is substantially 
reduced. This also applies to plans covering multiple species, both 
listed and unlisted. \111\ Also, if take is permitted before the 
permittee implements mitigation measures, the incentive to mitigate 
effectively is reduced. In general, the Services recommend that the 
mitigation habitat should be available before the applicant's 
activities commence. However, in some cases, the Services will allow 
the HCP applicant to conduct activities before the time when 
replacement habitat can be provided. The Services find this acceptable 
so long as the HCP provides legal or financial assurances that the 
permittee will fulfill their obligations under the HCP. For example, 
this assurance can be provided through letters of credit controlled by 
the government until the permittee establishes the mitigation lands. 
\112\
---------------------------------------------------------------------------
    \111\ For example, the San Diego MSCP and the Plum Creek HCP cover 
53 and 281 unlisted species, respectively, and 32 and 4 listed species, 
respectively, but there is no requirement that mitigation must occur 
before unlisted species can be taken. Monroe, Jud, Habitat Conservation 
Plans Assurances and Assurance Mechanisms: A Preliminary Review of 
Approaches to Mutual Assurances in Several Milestone Habitat 
Conservation Plans 3. Prepared for the Metropolitan Water District of 
Southern California (1997) (hereinafter cited as ``MWD'').
    \112\ FWS & NMFS, supra note 19, pg. 3-22.
---------------------------------------------------------------------------
    Because mitigation can be one of the most expensive steps in the 
development and execution of an HCP, the Services and applicants must 
determine early in the development of the HCP the cost of the proposed 
measures, the source of funding, and the time period over which these 
funds will be available. HCPs generally satisfy these criteria. \113\
---------------------------------------------------------------------------
    \113\ NCEAS found that 98 percent of the HCPs identified in advance 
the sources of funding for the mitigation proposed; however, only 77 
percent had significant funds set aside to pay for mitigation at the 
onset of the HCP. NCEAS, supra note 12, pg. 28.
---------------------------------------------------------------------------
The Importance of Monitoring
    While the choice of mitigation measures is crucial for an effective 
program of adaptive management, biological monitoring comprises the 
heart of adaptive management practices. HCPs that do not include a 
monitoring program cannot be scientifically evaluated. As previously 
stated, adaptive management treats all HCPs as ``learning 
laboratories'' in which the underlying conservation hypotheses are 
tested against actual responses in the species population. Monitoring 
of these responses in order to adjust conservation strategies is 
indispensable. \114\ In addition, a precise trigger for mitigation 
adjustments needs to be spelled out in the HCP agreement, as well as 
procedures for accomplishing the indicated adjustment. The mere 
existence of monitoring is not a solution to data shortage unless it 
includes a quantitative decisionmaking process that links monitoring 
data to adjustments in management.
---------------------------------------------------------------------------
    \114\ An effective conservation plan requires a long-term 
obligation to ecological monitoring and to adjusting plans on the basis 
of new information. For example, the monitoring plan for the Coachella 
Valley fringed-toed lizard has uncovered, over the past decade, a 
number of important factors affecting both lizard populations and the 
physical processes of the ecosystem crucial to implementing the plan. 
The lizard population has been monitored within three preserves since 
1986; the results of these surveys indicate that lizard populations 
fluctuate with the availability of loose sand, insects, and other 
resources. However, monitoring only lizards, with no observation of the 
larger ecosystem or commitment to action according to the results of 
monitoring, would not permit adaptive management it would be ``an 
academic exercise, with no options for remedial protection efforts.'' 
Barrows, C.W. An ecological model for the protection of a dune 
ecosystem. 10 Conservation Biology as quoted in Noss, et al., supra 
note 13, pp. 133-134.
---------------------------------------------------------------------------
    An adequate monitoring program requires the use of quantifiable 
indicators, placed in a hypothesis-testing framework with a valid 
experimental design. Three prominent conservation biologists recommend 
employing the following checklist when assessing the adequacy of an 
HCP's monitoring program: \115\
---------------------------------------------------------------------------
    \115\ Noss, et al., supra note 13, pp. 135-136.
---------------------------------------------------------------------------
    (1) Is the monitoring program scientifically and statistically 
valid? Monitoring need not be complex and expensive, just 
comprehensive.
    (2) Does the program effectively test the success of the 
conservation measures? The purpose of monitoring is to test hypotheses 
and inform management. Does the HCP allow for testing of hypotheses 
regarding effects of management practices on populations and other 
conservation elements of concern? Does it allow for testing of 
alternative management treatments?
    (3) Will the program provide timely analysis? Does the plan include 
a mechanism for regular and timely analysis and review of monitoring 
data? HCPs should include specific timetables for analyzing and 
interpreting monitoring data in order to inform management decisions. 
Such a requirement assures that monitoring will not stop with the 
collection of information but will include efforts to analyze and 
interpret it. Monitoring must also be time-sensitive to the life cycle 
of the monitored species. \116\
---------------------------------------------------------------------------
    \116\ 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. Ibid., pg. 132.
---------------------------------------------------------------------------
    (4) Is the HCP designed to be responsive to information derived 
from monitoring? Can the plan be modified to take into account new 
information? An HCP that is ``set in stone'' and designed to avoid 
future surprises is inflexible and potentially places species and 
ecosystems at great risk. Since nature is dynamic and unpredictable, 
surprises will occur; it is a matter of whether we notice them. The 
sooner we notice them and take corrective action, the lower the risk to 
biodiversity. Therefore plans should be evaluated as to how open they 
are to modification based on new information.
    The principal criteria for determining the adequacy of a monitoring 
program should be its ability to evaluate the success of mitigation 
measures and the consequent effect on protected species. Monitoring 
data should be incorporated into centralized data bases to facilitate 
access to information on the overall status of species, and to 
facilitate assessment of cumulative impacts for specific plans. \117\
---------------------------------------------------------------------------
    \117\ NCEAS, supra note 12, pg. 44.
---------------------------------------------------------------------------
    Reviewers found that few HCPs have well-developed and statistically 
valid monitoring programs, \118\ and the Services typically offer 
little help to an applicant in constructing a scientifically defensible 
monitoring program. \119\ Fewer HCPs still have actually monitored 
their results adequately over a period of years so that trends can be 
detected. When monitoring is deficient, the essential goal of learning 
from experience is much harder to accomplish. Fortunately, the 
Services' Draft Handbook Addendum does propose to improve upon current 
compliance monitoring by requiring permittees to monitor both their 
success in implementing mitigation measures and their effectiveness in 
achieving the conservation goals. \120\
---------------------------------------------------------------------------
    \118\ In their research, Noss, O'Connell, and Murphy found that 
plans either completely lack monitoring programs or had only vague 
requirements for how plans should be modified on the basis of data 
derived from monitoring. Noss, et al., supra note 13, pg. 134. The 
NCEAS study sampled 43 HCPs to determine how often plans incorporate a 
monitoring program. They found that only 22 of the plans contained a 
clear description of the monitoring program. NCEAS found that for the 
vast majority of species, monitoring was either absent or not 
documented adequately for researchers to assess take, species status, 
or mitigation success during the course of the plan's implementation. 
NCEAS also found that plans with an adaptive management program were 
much more likely to also include clear monitoring plans. NCEAS, supra 
note 12, pp. 28-29.
    \119\ The HCP Handbook offers only vague guidance. It states that 
the following steps are logical elements for consideration in 
developing HCP monitoring programs for regional or other large-scale 
HCPs:
      (1) Develop objectives. Any monitoring program should answer 
specific questions or lead to specific conclusions.
      (2) Describe the subject of the monitoring program.
      (3) Describe variables to be measured and how the data will be 
collected.
      (4) Detail frequency, timing, and duration of sampling for the 
variables. Determining how frequently and how long to collect data is 
important to the success of the program.
      (5) Describe how data are to be analyzed and who will conduct the 
analyses. A monitoring program is more effective when analytical 
methods are integrated into the design.
      (6) Monitoring must be sufficient to detect trends in species 
populations in the plan area but should be as economical as possible. 
Avoid costly monitoring schemes that divert money away from other 
important programs such as mitigation.
      (7) Monitoring programs can be carried out by a mutually 
identified party other than the permittee, so long as program is funded 
and the party is qualified.
    FWS & NMFS, supra note 19, pp. 3-26 3-27.
    \120\ The proposed amendment to the Handbook states that: ``The 
Services often incorporate monitoring measures to assess whether goals 
are being met, especially in cases where additional information may be 
desirable or there is significant scientific uncertainty.'' The purpose 
of monitoring is to ensure that the permittee complies with the ITP. 
The Services have not revealed their intentions regarding Federal 
oversight or participation in developing a monitoring plan or the 
frequency with which they will review data generated by the monitoring 
program if at all. 64 Fed. Reg. pg. 11488-89.
---------------------------------------------------------------------------
    The Services require the applicant to demonstrate funds sufficient 
to carry out the activities under the HCP including conservation 
measures, plan administration, and biological monitoring. \121\ 
However, reviewers have found that many HCPs do not commit sufficient 
funds to properly monitor species and habitat and identify problems. 
Without funding for the kind of thorough biological monitoring that 
makes adaptive management possible, plans cannot be implemented in a 
scientifically credible manner. \122\ The conservation organization 
Defenders of Wildlife recommends that applicants be required to post a 
performance bond or other financial security before they are granted an 
incidental take permit, ensuring that funds will be available if a 
permit is revoked or additional mitigation measures become necessary. 
Such measures would also protect the public if landowners become 
insolvent or otherwise terminate the agreement before mitigation steps 
are completed. \123\ Other commentators recommend establishing a 
Federal trust to provide supplemental support in the event that 
landowners comply with the plan but additional measures are needed to 
meet biological goals.
---------------------------------------------------------------------------
    \121\ 16 U.S.C. Sec. 1539(a)(2)(B)(iii).
    \122\ Defenders of Wildlife, supra note 7, pg. 82.
    \123\ Ibid.
---------------------------------------------------------------------------
Applying the Precautionary Principle to HCP Design
    Inadequate information regarding the status of a species or its 
habitat and the type and magnitude of take that will occur during 
development activities appears to be endemic in the preparation of 
HCPs. For 25 percent of species covered by HCP's in one study, the 
researchers could not determine whether enough habitat currently exists 
to sustain the species. \124\ For only one-third of the species 
analyzed in that study were there enough data to evaluate what 
proportion of the population would be impacted by the proposed 
development. \125\ The data limitations make it difficult to determine 
the impacts of future losses or alterations of habitat on the listed 
species.
---------------------------------------------------------------------------
    \124\ NCEAS, supra note 12, pg. 18.
    \125\ When available data were used in preparing an HCP, the NCEAS 
researchers found a varying level of quality of their use. For analysis 
of status, take, impact, population sizes and habitat availability, the 
overall quality of data use was fairly high. However, the use of 
existing data regarding extrinsic factors (anticipated human population 
growth, likely future pressures on species) was poor, which could 
undermine otherwise effective mitigation covered by the HCP. Id. pg. 
19.
---------------------------------------------------------------------------
    When data are sparse, as they often are for listed species and 
usually are for other species covered by an HCP, it is difficult to 
confidently design an effective and efficient conservation strategy. 
This is why conservation biologists believe that optimal HCP 
development should be guided by the traditional scientific method of 
using experiments to prove or disprove a testable hypothesis concerning 
available conservation strategies. \126\
---------------------------------------------------------------------------
    \126\ Williams, supra note 14.
---------------------------------------------------------------------------
    The precautionary principle is one method for coping with 
incomplete or inadequate information pertinent to habitat conservation 
planning. The precautionary principle is used in many fields of 
environmental management, as well as fields as diverse as engineering 
and economics, where decisions must be made despite uncertainty. The 
principle holds that, in the face of poor information or great 
uncertainty, managers should adopt risk-adverse practices. \127\
---------------------------------------------------------------------------
    \127\ Id. pg. 40.
---------------------------------------------------------------------------
    In the HCP arena, applying the precautionary principle means 
dealing with data deficiencies in a manner that does not place the 
target species at risk due to irreversible loss of habitat but also 
does not make development impossible. The first step is to assess the 
sufficiency of available data. An inventory of available data and 
acknowledgement of gaps should be a routine requirement in the 
development of every HCP. Where necessary data are not available and 
cannot be practicably obtained, the planning process should proceed 
with caution commensurate with the anticipated risks and uncertainties. 
In extreme cases, an HCP should not be initiated or approved, for it 
would be wrong to call the HCP process scientific, or even rational, if 
it were not an option to halt the process in the absence of crucial 
information. \128\ In general, the precautionary principle counsels 
that: \129\
---------------------------------------------------------------------------
    \128\ Workshop Findings and Conclusions, supra note 16.
    \129\ These points are based on recommendations by NCEAS, supra 
note 12, pg. 41.
---------------------------------------------------------------------------
     The greater the impact of a plan, the fewer gaps in 
critical data should be tolerated. For example, the standard of data 
adequacy should be higher for irreversible activities such as are 
typical in urban development. A lower standard of data adequacy might 
be tolerated for activities where impacts can be reversed, as may be 
the case for water diversions that are made conditional upon protection 
of instream values.
     A scarcity of data on impacts of take should be handled by 
assuming a worst-case scenario when determining whether approval 
criteria have been satisfied.
     Take should be quantitatively assessed for large HCPs 
covering vast expanses of land.
     Mitigation measures should be implemented and assessed 
before take occurs where there is a scarcity of information to validate 
the effectiveness of mitigation.
     Monitoring needs to be very well designed in cases where 
the success of mitigation is unproven.
     Adaptive management needs to be a part of every HCP 
predicated on substantial data shortages, not just to deal with 
``unforeseen circumstances.''
    In sum, where critical information is scarce or uncertain, 
application of the precautionary principle counsels that resulting 
plans should:

  (1) be shorter in duration
  (2) cover a smaller area
  (3) avoid irreversible impacts
  (4) require that mitigation measures be accomplished before take is 
    allowed
  (5) include contingencies
  (6) have adequate monitoring

    All of these principles should be enshrined in the HCP approval 
criteria in Section 10 of a reauthorized Endangered Species Act.
    Review and analysis of HCPs to date has found that these 
corollaries of the precautionary principle have not been well applied 
in habitat conservation planning. In particular, HCPs based on less 
information or less certain information tend to be as long in duration 
and a real extent as those based on more adequate information. The 
degree of impact avoidance or minimization has not correlated with the 
sufficiency of data needed to determine the impacts of the proposed 
development activities. Finally, researchers have found that HCPs based 
on poor information tend to be more likely to include irreversible 
impacts. \130\ These results suggest that HCPs are not generally 
structured to be more cautious in cases where applicants are working 
with large data gaps.
---------------------------------------------------------------------------
    \130\ NCEAS, supra note 12, pg. 41.
---------------------------------------------------------------------------
     align regulatory assurances with adaptive management and the 
                   conservation performance of an hcp
Regulatory Assurances: Controversial but Necessary
    The Services are convinced that legal assurances are necessary to 
induce private rights holders to develop HCPs and to implement the 
conservation measures obligated therein. \131\ The increase in HCP 
activity in response to such assurances seems to confirm this 
assumption. Implicit in this belief is the fear that, unless owners of 
non-Federal lands and waters are induced to make conservation 
commitments, endangered species habitats will be surreptitiously 
destroyed or degraded as such properties are developed. While such take 
may be prohibited by the ESA, its occurrence can readily overwhelm the 
detection and enforcement capabilities of the Services. In essence, 
regulatory assurances provide the necessary inducement for habitat 
conservation planning by exempting development activities from new or 
additional mitigation requirements beyond those committed in the HCP. 
\132\ The major concern of the HCP performance reviewers is that such 
regulatory assurances can introduce rigidity in the conservation 
strategy that inhibits or precludes adaptive management.
---------------------------------------------------------------------------
    \131\ Many commentators concur with the Services that such 
assurances are necessary. For example, Robert Thornton believes that 
regulatory assurances make HCPs palatable to landowners and can be set 
up to be consistent with principles of conservation where the plan is 
designed to protect ecosystems rather than listed species. Thornton, 
supra note 20, pg. 655-656.
    \132\ Dept. of the Interior and Dept. of Commerce. Final Rule, 
Habitat Conservation Plan Assurances (``No Surprises''), 63 Fed. Reg. 
8859-8860 (Feb. 23, 1998) (hereinafter cited as ``DOI & DOC'').
---------------------------------------------------------------------------
    Assurances are also controversial because they tend to shift to the 
species, which can ill afford them, the risks associated with our 
imperfect knowledge about how complex biological systems respond to 
human interventions. Those risks are exacerbated by the practice of 
conferring assurances without regard to the quality or duration of the 
conservation plan. \133\ The property rights holder typically seeks to 
be absolved of further responsibility for the conservation of the 
species in exchange for the development concessions made in the HCP, 
irrespective of the future population trends for the covered species.
---------------------------------------------------------------------------
    \133\ The landowners' desire to reduce risks associated with 
economic projections typically determines how long plans apply. 
Defenders of Wildlife, supra note 7, pg. 83.
---------------------------------------------------------------------------
    Currently, the form of regulatory assurance provided by the 
Services is the ``No Surprises'' guarantee. \134\ The policy can be 
traced back to a House of Representatives Committee Report on the 1982 
Amendments to the Endangered Species Act. \135\ The Report stated that, 
in the event an unlisted species is listed after permit issuance,
---------------------------------------------------------------------------
    \134\ The ``No Surprises'' rule provides a ``bankable'' 
understanding that additional land or money will not be required on the 
``whim and caprice of the Services''--especially when the additional 
requirements derive from events beyond the control of the landowner. 
Thornton, supra note 27, pg. 66. Yet, some commentators worry that the 
rule could set a dangerous precedent in the way agencies deal with 
changing circumstances. For example, polluters should not be protected 
from the regulatory effects of new information indicating that a 
discharged pollutant is a poison. Similarly, land or water developers 
should not be protected from the effects of new information indicating 
that certain habitat management techniques interfere with recovery. 
Sher and Weiner, supra note 32, pg. 69.
    \135\ H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30, reprinted in 
1982 U.S. Code Cong. & Admin. News 2860, 2871-2872.

    ``no further mitigation requirements should be imposed if the [HCP] 
    addressed the conservation of the species and its habitat as if the 
    species were listed pursuant to the Act.'' \136\
---------------------------------------------------------------------------
    \136\ Ibid.

    The Report also stated that ``circumstances and information may 
change over time'' and that the original plan might need to be revised. 
To address this situation, the Committee ``expect[ed] that any plan 
approved for a long-term permit [would] contain a procedure by which 
the parties will deal with unforeseen circumstances.'' Finally, the 
---------------------------------------------------------------------------
Report specified that the Services may:

    ``approve conservation plans which provide long-term commitments 
    regarding the conservation of listed as well as unlisted species 
    and long-term assurances to the proponent of the conservation plan 
    . . .'' \137\
---------------------------------------------------------------------------
    \137\ Id.

    Today, the ``unforeseen circumstances'' clause is interpreted to 
mean that landowners are not responsible for the decline of listed 
species covered by their plan if that decline is attributable to events 
that the landowner could not have foreseen at the time the plan was 
approved. \138\ The Services formally adopted the policy as an agency 
rule on February 23, 1998. \139\
---------------------------------------------------------------------------
    \138\ FWS & NMFS, supra note 19, pg. 3-29.
    \139\ The policy was informally adopted in 1994 and included in the 
HCP Handbook in 1996. Ibid., pg. 3-29. Because the policy was adopted 
without benefit of public review or comment, conservationists sued the 
Services in 1997. Spirit of the Sage Council v. Babbitt, Civ. No. 96-
cv02503 (Dist. D.C. 1997). To resolve the lawsuit, the Services adopted 
the policy a formal rule. DOI & DOC, supra note 132, pg. 8860.
---------------------------------------------------------------------------
    The ``No Surprises'' policy has had a dramatic affect on the public 
perception of the ESA. It has muted political concern that the ESA is 
unworkable and too stringent. \140\ Yet, the policy has no shortage of 
critics, conservation biologists among the harshest. Some of the 
outstanding issues that biologists find problematic include:
---------------------------------------------------------------------------
    \140\ Baur, Donald C. The No Surprises Policy: Stepping Away from 
Sound Bites and Getting Down to Business. 14 Endangered Species Update: 
Habitat Conservation Planning 63 University of Michigan (July/Aug. 
1997).
---------------------------------------------------------------------------
     Unforeseen circumstances. The rule distinguishes between 
``unforeseen circumstances,'' which are events that could not 
reasonably have been anticipated, and ``reasonably foreseeable changes 
in circumstances,'' including natural catastrophes that normally occur 
in the area. HCPs need address only the latter; unforeseen 
circumstances do not impose any conservation burdens on the applicant. 
\141\ The rule thus requires contingency planning only for stochastic 
events rather than the more likely failure of mitigation measures to 
work as ``foreseen'' or anticipated, such as the common circumstance in 
which the HCP is implemented as agreed but species decline nonetheless. 
The risk of such ``unforeseen'' events dramatically increases for HCPs 
that last several decades, cover large areas, and cover many species, 
such as housing developments or timber harvesting. Yet the plans for 
these activities involving long periods of construction or operation 
contain the same assurances as do short-term, single species plans.
---------------------------------------------------------------------------
    \141\ In the event of unforeseen circumstances, the permittee 
``cannot be required to commit additional land, funds, or additional 
restrictions on land, water or other natural resources `` FWS & NMFS, 
supra note 19, pg. 3-29.
---------------------------------------------------------------------------
    In the event of a finding of ``unforeseen circumstances,'' the 
Services are free to take additional actions at their own expense to 
protect the species, provided that they have the financial means 
appropriated by Congress to do so, and provided that the affected 
landowners agree to cooperate. Curiously, in an era where the Services 
are only able to meet a fraction of their statutory responsibilities, 
\142\ the Services maintain that they have ``significant resources'' to 
provide additional protection for listed species subject to an HCP. 
\143\ The Services also have expressed confidence that many landowners 
would willingly consider additional conservation on a voluntary basis. 
\144\ However, given the wealth of evidence to the contrary, further 
explanation of this assumption is warranted.
---------------------------------------------------------------------------
    \142\ For example, an EDF study found that listed species are not 
improving on Federal land because the number of species being listed is 
out pacing the Services increases in funding. The funding for the 
endangered species program has increased nearly threefold since 1976; 
however, the number of listed species has increased fivefold during 
that same period. Environmental Defense Fund, supra note 6, pg. 6.
    \143\ DOI & DOC, supra note 132, pp. 8862, 8869.
    \144\ Ibid.
---------------------------------------------------------------------------
    In addition, the threshold for finding that circumstances are 
``unforeseen'' (and that the Service can therefore undertake additional 
conservation measures at its own expense and with the permission of the 
landowner) is unrealistically high. Under the rule, the Services ``have 
the burden of demonstrating that unforeseen circumstances exist, using 
the best scientific and commercial data available. The findings must be 
clearly documented and based upon reliable technical information 
regarding the status and habitat requirements of the affected 
species.'' \145\ The rule includes a number of specific factors that 
the agency must consider in determining whether it has demonstrated 
that unforeseen circumstances exist. \146\
---------------------------------------------------------------------------
    \145\ Id., pg. 8868.
    \146\ The Services will consider the following factors:
      (1) the size of current range of the affected species;
      (2) the percentage of range adversely affected by the HCP;
      (3) percentage of range conserved by the HCP;
      (4) ecological significance of that portion of the range affected 
by the plan;
      (5) level of knowledge about the affected species and the degree 
of specificity of the species;
      (6) conservation program under the plan; and
      (7) whether failure to adopt additional conservation measures 
would appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild. Id.
---------------------------------------------------------------------------
      Adaptive management. Conservation biologists worry that 
the ``No Surprises'' policy falsely assumes that we can predict all the 
consequences of implementing a particular HCP. Under the rule, the 
Services cope with gaps in biological data by either denying the 
application for a take permit or requiring that the applicant build an 
adaptive management program into the HCP. \147\ However, the rule does 
not deal with the situation where new data from the monitoring program 
or another source indicates that achievement of the conservation goals 
will require a change in the conservation strategy. The ability to 
require such modifications is what we mean by ``adaptive management.'' 
If modification of plans in response to new information is precluded by 
the ``No Surprises'' policy, failures to attain biological goals are 
inevitable. \148\
---------------------------------------------------------------------------
    \147\ Id., pg. 8864.
    \148\ Noss, et al., supra note 13, pg. 134.
---------------------------------------------------------------------------
      Regulatory assurances for conservation measures covering 
nonlisted species. While the ESA does not require landowners to protect 
unlisted but declining species on their lands, the Services encourage 
landowners to ``address'' any unlisted species in an HCP by conferring 
additional regulatory guarantees that further mitigation will not be 
required if such species is later listed. \149\
---------------------------------------------------------------------------
    \149\ Assurances are only extended to measures covering an unlisted 
species if the HCP meets the section 10(a)(2)(B) standards for the 
species. DOI & DOC, supra note 132, pg. 8867. This is consistent with 
the assurances contemplated in the ESA's 1982 amendments. H.R. Rep. No. 
97-835, 97th Cong., 2d Sess. 30, Reprinted in 1982 U.S. Code Cong. & 
Admin. News 2860, 2871-2872; Habitat Conservation Planning Assurances 
(No Surprises Rule) 63 F.R. 8859 (Feb. 23, 1998).
---------------------------------------------------------------------------
    A good example of the risks posed to unlisted species that are 
included in an HCP can be found in the Plum Creek timber plan. The Plum 
Creek plan allows the take of four species currently protected by the 
ESA: northern spotted owl, marbled murrelet, grizzly bear, and gray 
wolf. \150\ The HCP also addresses another 281 unlisted vertebrate fish 
and wildlife species. The planning area of 419,000 acres provides 
habitat for 77 mammal, 178 bird, 13 reptile, 13 amphibian, and 4 fish 
species. \151\ While Plum Creek's measures to benefit these species 
include greater riparian buffers and wetland protection than would be 
required under existing state law, the public is likely to be bound to 
these commitments if, in 100 years, one or many of these species need 
further protection.
---------------------------------------------------------------------------
    \150\ Plum Creek Multi-Species Habitat Conservation Plan on 
Forestlands owned by Plum Creek Timber Company in the I-90 Corridor of 
the Central Cascades Mountain Range (June 1996).
    \151\ Ibid.
---------------------------------------------------------------------------
    As another example, San Diego County's large-scale NCCP management 
plan shields local government and developers from providing additional 
commitments of land or money for conservation purposes so long as they 
comply with the plan. \152\ Such regulatory assurances apply to some 85 
listed and unlisted species and may be applied to additional species in 
the future if signatories to the MSCP agree that the species are 
``adequately conserved'' by the plan. \153\
---------------------------------------------------------------------------
    \152\ The Services may not even impose new mitigation measures that 
do not require additional land, land restrictions or money except in 
``extraordinary circumstances.'' Extraordinary circumstances are 
defined as either: (1) ``a significant, unanticipated adverse change in 
the population of any covered species or [its] habitat with the MSCP 
Area''; or (2) ``any significant new or additional information that was 
not anticipated by the [signatories] at the time the MSCP was approved 
and that would likely result in a significant adverse change in the 
population of any covered species or [its] habitat within the MSCP 
Area.'' Mueller, Tara. Natural Community Conservation Planning: 
Preserving Species or Developer Interests? 14 Endangered Species 
Update: Habitat Conservation Planning 27 University of Michigan (July/
August 1997).
    \153\ Ibid.
---------------------------------------------------------------------------
    If adequately addressed in an HCP, unlisted species could be 
protected from further decline so as to avoid a listing, thereby 
guaranteeing that the landowner will not be subject to further 
mitigation. \154\ Unfortunately, establishing conservation requirements 
for unlisted species is difficult since little is generally known about 
the requirements of the species. As a result, an applicant must be 
willing to invest in further biological studies to ensure that the HCP 
adequately covers unlisted species. In this case, a critical issue in 
HCP development is the early identification of those species or 
biological communities that the plan is to cover \155\ and a 
determination by the Services that enough is known about the species so 
that HCP proponents can construct an effective conservation plan.
---------------------------------------------------------------------------
    \154\ Defenders of Wildlife, supra note 7, pg. 20. The Services 
cite this same advantage in their HCP Handbook. The Handbook states 
that there are significant biological advantages when HCPs are 
comprehensive planning documents that address species' conservation 
needs collectively on a community, habitat-type, or even ecosystem 
level. The Services encourage this approach since it avoids 
inefficient, piecemeal land-use planning by encouraging landowners to 
trust that addressing the interests of wildlife serves their interests 
as well. FWS & NMFS, supra note 19, pg. 4-2.
    \155\ Thornton, supra note 20, pg. 640.
---------------------------------------------------------------------------
Reforming Assurances
    Given the importance of regulatory assurances to create an 
environment in which non-Federal property rights holders will make 
commitments to conserve habitat, we must explore options that do not 
shift to the vulnerable species the risks inherent in uncertain and 
untested conservation strategies. Adaptive management permits a 
flexible response that improves as results are monitored. However, 
adaptive management requires 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. A policy of regulatory indemnity would mean that, if the 
monitoring program indicates that the species will continue to decline 
unless additional restrictions are imposed or additional mitigation 
measures are applied, these could be implemented without the consent of 
the property rights holder but also without economic costs to that 
entity. Instead, the biological risks would be absorbed by a 
compensation fund.
    The use of regulatory indemnity in the HCP process is analogous to 
risk insurance in that it converts the problem of how to allocate the 
risks associated with the biological uncertainties of HCPs to the 
problem of how to allocate the costs of funding the indemnity pool and 
how to determine eligibility for compensation. The compensation pool 
could be funded from ``premiums'' contributed by the ``beneficiaries,'' 
a category that includes both HCP applicants and the public at large. 
Indeed, most commentators recognize that some, perhaps most, of the 
costs of managing adaptively will have to be borne by the public at 
large. This is already beginning to happen in the California Central 
Valley water system, the Everglades, and other aquatic ecosystems. 
\156\
---------------------------------------------------------------------------
    \156\ Solving the issue of how to determine compensated loss in a 
manner that satisfies the private rights holder is simpler in the 
aquatic context than in the terrestrial because lost water supply 
reliability is both relatively easy to measure and to compensate for.
---------------------------------------------------------------------------
    One commentator notes that biological risks to economic development 
are not different in kind from the myriad of other risk factors for 
which the construction industry has found insurance coverage to provide 
the necessary certainty required by capital markets. \157\ In the 
construction context, parties do not argue about the need to provide 
certainty since they know from experience that surprises are to be 
expected; instead, they figure out how to minimize the risks and 
provide sufficient security to afford the lender comfort to finance the 
project. \158\ Carried to its logical conclusion, reducing the 
financial risks associated with land development under the ESA should 
lead to more favorable interest rates for development loans. Thus, 
potential also exists to fund a portion of the compensation pool 
through reductions in the cost of debt service for covered development 
projects on the premise that an indemnity arrangement does reduce the 
risks to development under the ESA.
---------------------------------------------------------------------------
    \157\ Thornton, supra note 27, pg. 65.
    \158\ Ibid. pp. 65.
---------------------------------------------------------------------------
    As discussed above, another suggested reform in regulatory 
assurances would calibrate the duration or rigor of the assurance to 
the quality or expected performance of the HCP's conservation strategy. 
Under this approach, the scope or duration of the regulatory assurance 
would depend on the magnitude of the HCPs contribution to the recovery 
of the target species. Plans that confer a net survival benefit would 
get longer and more comprehensive guarantees than those that simply 
maintain the current population level or allow some decrease. 
Similarly, plans for which the underlying data and analyses are judged 
to be superior would be entitled to superior guarantees. Stronger, more 
comprehensive, or longer-term assurances would be reserved for HCPs 
that have the following features:
    (1) Recovery goals;
    (2) An effective monitoring program;
    (3) An adaptive management program which identifies the significant 
risks of unsuccessful mitigation measures, includes a contingency plan 
that will be triggered in the event that the conservation measures do 
not achieve their goals, and commits sufficient funds to carry out this 
program; and
    (4) An effective enforcement mechanism in the event that the 
commitments in the HCP are not honored.
                               conclusion
    Empirical reviews of the performance of the habitat conservation 
planning experience during its first 15 years reveal substantial 
opportunities to restructure the process to improve the prospects for 
successful outcomes from the vantage points of both imperiled species 
and nonFederal property rights holders. These benefits can be 
accomplished without amending the statutory framework, although a 
modest ``tune-up'' of the Endangered Species Act would help enable 
these reforms. A marked change in the Federal administration of this 
program and a substantial increase in Federal investments in habitat 
conservation are the indispensable ingredients.
    In sum, these reforms would entail:
     Shaping individual HCPs to contribute to a landscape-
scale, bio-regional conservation strategy. Responsibility for 
developing bio-regional conservation strategies would fall to either 
the Federal Services or units of government at the state or local 
level. Increased involvement of government would shift much of the 
burden of gathering adequate scientific data onto the public sector as 
well as allow for more involvement by independent scientists and the 
interested public. The creation of landscape-scale HCPs would define 
objectives and strategies to which conservation efforts on non-Federal 
lands would be expected to conform. And it would provide necessary 
guidance as to the contribution toward those conservation goals that is 
needed from each parcel-specific HCP within the eco-regional planning 
unit. In addition, eco-regional planning would facilitate a more 
equitable distribution of responsibility for conservation between 
Federal and nonFederal rights holders.
     Aiming bio-regional conservation strategies at species 
recovery. The only biologically defensible goal for habitat 
conservation planning is the recovery of the endangered species. The 
Federal Government can advance recovery by managing public lands and 
waters to a higher conservation standard than the legal minima. 
Recovery would also be advanced incrementally by habitat acquisitions 
or restoration actions that more than offset the habitat losses (i.e. 
mitigation measures that create a net biological benefit). Where 
species recovery requires a greater conservation effort by the 
individual rights holders than is imposed by the current legal standard 
of avoiding jeopardy, Federal resources may be necessary to close the 
gap. This may often take the form of purchases of the highest-value 
habitats from willing owners. Occasionally, it may also entail 
involuntary, but fully compensated, acquisitions should Federal 
condemnation authority be eventually conferred.
     Reserving the decision on participation in the HCP 
negotiations for the Services rather than the permit applicants. If the 
Services act as ``gatekeeper'' to the HCP negotiations, highly 
qualified independent scientists and other representatives of the 
public interest can be included in what is now often a closed process. 
Scientific experts should be allowed to ``intervene'' in HCP 
negotiations on behalf of local communities and conservation interests 
to help shape a conservation program from its formative stages. Habitat 
conservation plans developed with independent scientific input are more 
likely to succeed in their conservation goals, thus diminishing the 
chances that the Services will need to revise development permits. 
Through innovative tools such as the HCP Resource Center, all 
stakeholders can all enjoy the benefits of expert scientific input in 
the HCP negotiation process without the proponent absorbing the cost.
     Incorporating adaptive management routinely in HCPs. This 
entails including in the chosen conservation strategy a process for 
structured learning and adjustment. This, again, will improve the 
prospects for success of the conservation venture. If coupled with an 
insurance arrangement, necessary adjustments can be accomplished 
without financial risk to the permit holder. This would reduce 
regulatory risk more effectively than the current ``No Surprises'' 
assurance, which, in any event, is legally infirm in the event of 
imminent extinction of a target species.
    Habitat conservation planning must be made to work better in the 
interest of all stakeholders. For preventable extinctions in the course 
of developing private lands will not long be tolerated by a people who 
have affirmed time and again in the political crucible the mandate that 
the web of life on which human welfare itself depends shall be 
conserved. Experience to date illuminates some of the pathways for 
better performance. It is time to harness these lessons and chart a 
more certain course.


                       HABITAT CONSERVATION PLANS

                              ----------                              


                       TUESDAY, OCTOBER 19, 1999

                               U.S. Senate,
         Committee on Environment and Public Works,
                  Subcommittee on Fisheries, Wildlife, and 
                                            Drinking Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:04 a.m., in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Thomas, Reid, and Chafee [ex 
officio].
    Also present: Senator Baucus.

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    Good morning and welcome to the third in a series of 
hearings by the Subcommittee on Fisheries, Wildlife, and 
Drinking Water, examining habitat conservation plans.
    The subcommittee began a listening and learning endeavor in 
July of this year to better understand the benefits and 
concerns related to habitat conservation plans. We heard from 
scientists, academics, forest products companies, and 
environmentalists about science and the adequacy of science, 
and the challenge of making land management decisions in the 
face of scientific uncertainty.
    Today, eight witnesses will offer testimony focusing on the 
policy questions of HCPs. At present, under the Endangered 
Species Act, HCPs are the only flexibility afforded to private 
landowners who wish to conduct activities such as forest 
management or development, when threatened or endangered 
species occupy a piece of their land or use it as habitat.
    We are joined today by representatives of the environmental 
community, county government, agriculture, homebuilding 
industry, the forest product companies and the energy industry 
to learn from their experiences and knowledge of HCPs. These 
are the people who have been directly involved in developing, 
negotiating, implementing, and litigating HCPs.
    A growing list of species protected under the Endangered 
Species Act and the need for property owners to comply with the 
Act while continuing to derive an economic benefit from their 
land has resulted in an expediential increase in the use of 
this beneficial tool. To date, the Fish and Wildlife Service 
has negotiated more than 250 HCPs, and has approximately 
another 200 in process.
    HCPs sound like the type of ``win/win'' solution that we 
would all like to see for threatened and endangered species, 
protection of the species, and flexibility for landowners to 
carry out activities on their land.
    It is unfortunate that the reality of negotiating HCPs has 
not tracked more closely with what the law and the subsequent 
policies have intended.
    While the Fish and Wildlife Service and the National Marine 
Fisheries Service have sought to improve the process of 
negotiating HCPs through its Habitat Conservation Planning 
Handbook and other guidance, the process remains fraught with 
obstacles for property owners seeking HCPs.
    Landowners involved in negotiations and those who have 
completed plans have demonstrated their willingness to conserve 
species by coming to the table, ready to engage in 
negotiations, and implementing measures on the ground. But all 
too frequently, the process has proved to be inadequate in 
getting HCPs completed.
    This is not a favorable outcome for the species in need of 
protection, or for property owners who must continue to make 
decisions about the activities that will be carried out on 
their land.
    I am keenly interested in making HCPs work better. 
Americans have a rich conservation history, and we have 
demonstrated a commitment to protecting our wildlife and 
fisheries resources, particularly those threatened or 
endangered.
    Private landowners do and can make important contributions 
to the endangered species conservation. But we must have 
mechanisms in place to allow property owners to make a living 
from their land. HCPs are definitely the right idea. But 
modifications must be made if they are to achieve their 
intended goal.
    I believe today's witnesses will provide the subcommittee 
with a better understanding of the problems that habitat 
conservation and planning present, so that we can consider and 
improve this tool, and make it a truly beneficial tool to the 
species and to the people.
    I will ask the chairman of the full committee, Senator 
Chafee, if you wish to make an opening statement.

OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Chafee. Well, thank you very much, Mr. Chairman. I 
want to commend you for holding these hearings on habitat 
conservation planning under the Endangered Species Act.
    I believe they are critical to our understanding of the 
important issue that is instrumental in the continued success 
of the ESA.
    Before exploring the policies we should adopt to protect 
endangered species, it seems to me we have got to explore the 
scientific foundation supporting these policies. And that, of 
course, is what you did when you had your hearings in July. We 
heard testimony from a number of witnesses who provided insight 
into the science underlying HCPs.
    I was particularly impressed by the general agreement among 
the scientists that HCPs, by and large, are essential for the 
conservation of species. And while improvements are needed, the 
basic principles behind the HCPs are sound.
    I want to compliment you, Mr. Chairman, on holding these 
hearings. And I anticipate that today's hearing will be equally 
informative. And I would ask that the balance of my statement 
be included in the record.
    Senator Crapo. Without objection.
     Senator Chafee. Thank you very much.
    [The prepared statement of Mr. Chafee follows:]
   Statement of Hon. John H. Chafee, U.S. Senator from the State of 
                              Rhode Island
    Thank you, Mr. Chairman. I want to commend you for holding these 
hearings on habitat conservation planning under the Endangered Species 
Act. These hearings are critical to our understanding of an extremely 
important issue that is instrumental in the continued success of the 
ESA.
    Before exploring the policies that we should adopt to protect 
endangered species, we must explore the scientific foundations 
supporting those policies. With respect to HCPs, the hearings that you 
chaired in July accomplished exactly that: we heard testimony from a 
number of witnesses who provided insight into the science underlying 
HCPs. I was particularly impressed by the general agreement among the 
academic scientists that HCPs by and large are essential for the 
conservation of species, and while improvements are needed, the basic 
principles behind HCPs are sound. I would like to complement you, Mr. 
Chairman, on holding those hearings, and I anticipate that today's 
hearing will be equally informative.
    The need to protect threatened and endangered species on non-
Federal lands could not be greater. (By non-Federal lands I mean those 
lands that are either privately or state-owned). Consider these facts: 
two-thirds of all listed species have over 60 percent of their habitat 
on non-Federal lands, and one-third of all listed species are dependent 
entirely on non-Federal lands. The conservation of these species thus 
rests largely, if not entirely, on the ability of non-Federal 
landowners to take appropriate measures. The primary tool under the ESA 
for their activities is the HCP.
    At the same time, landowners have long criticized the ESA for being 
inflexible and unworkable. HCPs provide liability coverage against the 
prohibitions of the ESA, but more importantly, they provide a 
management tool for landowners. With the new policies instituted by the 
Administration, HCPs have become economically and logistically feasible 
for landowners. Since 1994, more than 245 HCPs covering six million 
acres have been approved, with another 200 under review.
    However, there are still numerous questions regarding the 
development and implementation of HCPs. Conservation groups criticize 
the HCP initiatives, particularly the no-surprises policy, as 
undermining species conservation. Landowners complain that they still 
run into obstacles in both negotiating and implementing HCPs, and that 
the Administration does not always apply consistent standards.
    In addition, critics on both sides believe that the Administration 
has exceeded its statutory authority in implementing these new 
policies, and are challenging them in court. This morning, we will hear 
from two of the lawyers involved in the litigation challenging the no-
surprises policy.
    As you know, last Congress we attempted to reauthorize the ESA, and 
our bill included a number of provisions to address HCPs. As we 
consider new legislative initiatives on HCPs, it is useful to further 
explore the science and policy behind the current policies. Your 
leadership on these hearings, Mr. Chairman, is both timely and 
critical. I look forward to the testimony of our distinguished 
witnesses this morning.

    Senator Crapo. Senator Reid.

  OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Reid. Thank you very much, Mr. Chairman.
    Your predecessor, Senator Kempthorne, with the chairman of 
the full committee, Senator Chafee, the ranking member, Senator 
Baucus, and I, I think, did some of the best legislative work 
that I have ever been involved in, in my several decades 
involved in the legislative process. We came up with a 
Endangered Species Act.
    We had the language passed out of this committee. We were 
very proud of that. It got on the Senate floor and was not 
brought up.
    By the time we were ready to bring it up, a lot of darts 
had been thrown at it. We were unable to move that legislation. 
It was, I think, just a remarkably good piece of work. It is 
too bad that we did not move on it when we could.
    We have not, and now we are trying to enact bits and pieces 
of the Endangered Species Act. It may be the way to go.
    I would like to welcome all the witnesses today. Habitat 
conservation plans, I believe they are a useful, creative tool 
for the protection of both endangered species and private 
property rights.
    They have not given us a perfect answer, but they have 
moved us in the right direction. I think a fresh look at what 
we have learned is beneficial.
    The largest habitat conservation area in the United States 
is in the State of Nevada. People do not realize the State of 
Nevada is the most densely populated State in American, the 
most urban State in America. Ninety percent of the people live 
in two metropolitan areas, Reno and Las Vegas.
    We are more urban than Rhode Island, New York, California, 
Florida. It surprises some to learn that the largest habitat 
conservation area in the United States is in the most densely 
populated part of Nevada. That is the Las Vegas area.
    That habitat conservation plan for the desert tortoise 
encompasses almost 6 million acres, and has allowed for 
relatively peaceful coexistence of the threatened desert 
tortoise with as many as 10,000 new residents moving into Clark 
County every month.
    These new residents have brought with them one of the 
longest sustained building and economic booms in the history of 
the United States. Yet, all of it is taking place despite the 
presence of the desert tortoise, a species that was emergency-
listed in August 1989.
    Jim Moore, formerly the desert tortoise HCP coordinator for 
the Nature Conservancy of Nevada, is here this morning to 
describe the process and procedures that were used in Las Vegas 
to bring about what has been a very successful solution in 
southern Nevada.
    I am happy that Jim is here this morning and I certainly do 
not want to give away his testimony. I have read his testimony. 
It is extremely interesting and precise.
    It is safe to say that the HCP process that was followed in 
southern Nevada has been successful. The entire process was 
time consuming, and at times, very frustrating.
    The amount of public participation that went into the final 
plan was unprecedented, in addition to the amount of private 
money that went into the plan to make it successful. But the 
end result was a system that everyone could live with, and one 
that protects the species that have been listed.
    Earlier this year, when I sat down to discuss the agenda of 
this subcommittee with you, Mr. Chairman, I shared with you my 
concern that comprehensive reform of the Endangered Species Act 
was probably unrealistic this year, and probably in this 
Congress, especially given last year's fate of S. 1180.
    I think the committee can make substantial progress by 
taking an incremental bipartisan approach. As a group, there 
are many things we can and should address in the ESA.
    This hearing is the latest in a series of forums that this 
subcommittee has held this year on specific issues within the 
Endangered Species Act. Earlier this year, we held hearings and 
drafted up legislation concerning recovery habitat. That 
legislation is currently awaiting action on the floor.
    Based on what we hear and read, this committee may move 
forward to try to improve the procedures and processes 
surrounding habitat conservation plans.
    While the desert tortoise HCP has been very successful, 
other communities have struggled, particularly with issues such 
as: what level of assurance is required for both sides; what 
level of public participation should be required; and what 
happens in the event of a mistake? All of these are valid 
concerns, and there are others that we will hear about today.
    The things that we, as a group, can come to consensus about 
and act on to improve the use of HCPs, I think we should do 
that forthwith.
    However, before we move too far down the path on habitat 
conservation plans, I want to see the fate of our recovery 
habitat bill played out a little more.
    If the consensus and cooperation that mark this committee's 
work on S. 1100 carries through to full Senate consideration of 
that legislation, then I will be much more comfortable moving 
ahead in other areas of the ESA.
    So, Mr. Chairman, I thank you for agreeing to hold this 
hearing. Throughout the year, I have been very impressed with 
your knowledge of this subject, and your willingness to listen 
to different sides. And I look forward to this hearing.
    I do apologize, because of the duties that I have in the 
Capitol, I am not going to be able to stay for the entire 
hearing. My friend from Nevada will be on the second panel.
    Senator Crapo. Thank you very much.
    Senator Thomas.

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Thank you, Mr. Chairman. I am glad to be 
able to participate in this hearing today on conservation 
plans.
    I think the future of the endangered species is one of the 
most important issues that we have to deal with on this 
committee. And I agree with my friend from Nevada, that we had 
an opportunity last year, but unfortunately, were not able to 
put it into place.
    There are lots of examples of good intentions to recover 
endangered species that have gone astray. A lot of folks in 
Wyoming are clamoring for some type of reform.
    At the outset, let me say that even though today's meeting 
is focused on habitat conservation plans, I think we need to 
look at substantially more changes than that. I also have a 
bill that deals largely with listing and de-listing.
    We have found that the quality of science used in listing 
and nominating petitions falls short. They are of postage stamp 
petitions. We need to change them, rather than trying to shore 
them up.
    We need to take a look at HCPs as a tool. Apparently, they 
have been a better tool for large landowners than they have for 
small landowners. We need to take a long look at that. It is 
very costly for a small landowner. The incentives, I think, are 
not very high.
    In general, I just believe we have to have an Act that is 
more effective in trying to protect the local landowners and 
public land managers and communities.
    Our efforts are sure to fail if there is not some more 
cooperation among the Federal, State, and local governments. 
Many times, we say we are partners, and we are going to work in 
a partnership, but it is kind of a ``one horse, one dog'' 
partnership.
    The city of Douglas, WY, for example, just recently got 
caught up in the bureaucratic administration of it. The city's 
water main broke. Inside of the break, a Preble's meadow 
jumping mouse, was found.
    It took 2 months for the agency to issue a permit to fix a 
line, which left half the city of Douglas at risk for drinking 
water, and the whole city at risk in terms of fire protection.
    Now come on. One jumping mouse is hardly an excuse for 
doing that. So I think we have a lot of things to do. This, 
perhaps is one step, Mr. Chairman, and I appreciate it.
    [The prepared statement of Senator Thomas follows:]
         Statement of Hon. Craig Thomas, U.S. Senator From the 
                            State of Wyoming
    Mr. Chairman, thank you for holding this hearing to examine both 
the benefits and the policy concerns related to Habitat Conservation 
Plans (HCP). I think the future of the Endangered Species Act (ESA) is 
one of the most important issues we'll deal with in the Environment and 
Public Works Committee. Unfortunately, the Act has become one of the 
best examples of good intentions gone astray. Folks in Wyoming are 
truly concerned and are clamoring for some type of reform.
    Out the outset, I want to make it clear that even though our focus 
today is on Habitat Conservation Plans, we really need to look at 
making substantial changes to the entire Act. As you know, I've 
introduced a bill S. 1305, the ``Listing and Delisting Act of 1999'' 
that deals with the core of the Endangered Species Act--sound science--
specifically the quality of science used in the listing and petitioning 
process. Right now, it's basically a ``postage stamp'' petition: any 
person who wants to start a listing process may petition a species with 
little or no scientific support. We are simply going to have to make 
some real changes to an act that is not working.
    Unfortunately, given the political reality, the Endangered Species 
Act is what it is. By that, I mean it is not going to be repealed and 
most likely is not even amendable with the significant modifications I 
and others have offered. Given that grim scenario, I will discuss 
Habitat Conservation Plans. HCP's are tools for some landowners to help 
manage their lands once a species has been listed. However, HCP's seem 
to be a better tool for very large companies rather than the small 
private landowner. For a small landowner, the HCP's could be very 
costly--where is the incentive? In many cases, these people depend on 
their land for their livelihood.
    In general, we need to make the act more effective for the species 
we're trying to protect, and more effective for the local landowners, 
public land managers, communities and State governments who truly hold 
the key to the success of any effort to conserve species. If there's 
one lesson to be learned from the failures of the current act, it is 
that the only way we can successfully recover a species is through true 
partnerships.
    Truthfully, our efforts are sure to fail if there isn't cooperation 
between Federal, state, and local governments, as well as private 
interests. Many times, this is easier said than done. The average 
citizen of Wyoming or anywhere for that matter is extremely leery of 
Federal agencies and they have a right to be. The city of Douglas, 
Wyoming just recently got caught up in the bureacracy of the 
administering of the ESA. The city's main water line broke and at the 
site of the break, a Prebles Meadow Jumping Mouse was found. It took 2 
months for the Agency to issue a permit to fix the line which left half 
the city of Douglas at risk in terms of drinking water and the whole 
city at risk for fire protection. This example illustrates the 
inability of this particular Federal Agency to cooperate and deal with 
folks in a real world manner. Mr. Chairman, I look forward to hearing 
from our witnesses and working with you as we discuss and ultimately 
amend a law that is simply not working.

    Senator Crapo. Thank you very much.
    Senator Baucus.

  OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE 
                        STATE OF MONTANA

    Senator Baucus. Thank you, Mr. Chairman.
    I appreciate your holding this hearing. Maybe we can get 
something accomplished here on a matter which is extremely 
important--a lot of landowners feel hamstrung by the Act. A 
well-intended group people are limited by a well-intended law, 
and therein lies the problem.
    As has been mentioned earlier, we endeavored gallantly in 
the last Congress to come up with a basic solution to the 
reforms of the Endangered Species Act, which included habitat 
conservation plans. I thought it was a very good bill. It was 
virtually passed, but not quite.
    My main point, Mr. Chairman, is that we have got to provide 
cooperation and leadership here. I agree with the comments of 
my good friend from Wyoming, that sometimes when we talk about 
partnership, the people on the other side do not live up to the 
spirit of what is intended.
    But we are the Congress, and we make the laws. What we do 
here has an effect on what happens in the States whether in 
terms of what Federal agencies do, like the Fish and Wildlife 
Service or the Forest Service, or what States do.
    For me, there is really not much alternative because the 
law is the law. We should find a compromise that works, and 
provide the leadership for a compromise. If we pass something 
here that is effective, then we are going to get the 
cooperation of Federal, State and local agencies.
    An example that comes to mind, is the Safe Drinking Water 
Act. We found a common sense balance, and got the job done.
    Another example is a bill that I am introducing. It is a 
mining reclamation cleanup bill. The States are cleaning up 
hardrock mine sites, abandoned mines, but they are doing 
nothing about the water. The water just continues to leak out 
and contaminate. They are doing nothing about the water because 
of the Clean Water Act. There is virtually no way in the world 
a non-mining entity, a city or a town, can find the money to 
comply with the standards of the Clean Water Act; they are so 
stringent. I must say in my State, and I know it is true in 
most other States, polluted water is still running downstream, 
even though the abandoned mine site has been cleaned up.
    So what is the solution? My idea is to allow States to 
submit a remediation plan to the EPA with less than the 
standards of the Clean Water Act, but still with some kind of a 
cleanup. Either we have some cleanup, or no cleanup of the 
water. My view is that some cleanup is better than none.
    The same general philosophy applies here to the Endangered 
Species Act and habitat conservation plans. Either we do 
something or we do nothing. In my view, something is better 
than nothing.
    Perfection is not the enemy of the good. Let us do 
something good here. It is not going to be perfect. It cannot 
be perfect. We live in a democratic society. Everybody has got 
a different point of view. So, by definition, it is not 
perfect.
    So, again, I appreciate your holding the hearing, Mr. 
Chairman. And I implore all of us to get this problem solved, 
and put partisan politics aside. This place is much too 
partisan--this Congress, this Senate, this House. It is the 
most partisan Senate I have seen since I have served in the 
Senate, and it is not helping the country one bit.
    We have done a pretty good job on this committee, in some 
cases, in passing nonpartisan bills. The highway bill comes to 
mind, but nothing gets accomplished in this Congress unless 
there is agreement. Whenever there is partisanship, nothing 
gets accomplished. There is a lot of breast beating and a lot 
of complaining about the Government and a lot of finger-
pointing. But that is not why the people elected us. They 
elected us to solve problems; not to find problems, but to 
solve them. I hope that we solve this one.
    Thank you.
    Senator Crapo. Thank you very much.
    We will now move to the first panel. And as I call your 
names, we would ask you to come forward and take a seat at the 
table.
    Panel No. 1 is composed of Mr. Eric Glitzenstein, counsel 
for the Spirit of the Safe Council, the Defenders of Wildlife 
and Other Environmental Organizations; Mr. Rob Thornton, 
counsel for the Orange County Transportation Corridor Agencies 
and Other Intervenor-Defendants in the Spirit of the Safe 
Council versus Babbitt litigation; and Mr. William Pauli, 
president of the California Farm Bureau.
    I would like to explain, not only to this panel, but also 
to the panel that will come forward following this panel, that 
we do have a 5-minute time limit requirement. And I can assure 
you that your time will run out before you are done saying what 
you want to say.
    [Laughter.]
    Senator Crapo. And we ask you to watch the time limits, 
because we are all very busy, and we like to maintain the 
opportunity for some give and take in questions and answers 
between this panel here and you.
    And we do read your written testimony very carefully, and 
it will be made a part of the record. So if you do not get a 
chance to go through your entire written testimony in your 5 
minute presentation, do not feel that it has been lost or 
wasted. And please follow the time requirements.
    Mr. Glitzenstein, we would like to start with you.

  STATEMENT OF ERIC GLITZENSTEIN, COUNSEL, SPIRIT OF THE SAGE 
    COUNCIL, DEFENDERS OF WILDLIFE AND OTHER ENVIRONMENTAL 
                         ORGANIZATIONS

    Mr. Glitzenstein. Thank you, Mr. Chairman and members of 
the subcommittee. I appreciate the opportunity to be here and 
talk about these very important issues.
    My name is Eric Glitzenstein. I am a member of a public 
interest law firm, Meyer & Glitzenstein, which represents many 
environmental organizations on issues relating to 
implementation of the Endangered Species Act, and HCP issues, 
in particular.
    I am providing my own views, based upon rather extensive 
involvement in litigation, including litigation over what has 
come to be known as the ``No Surprises'' Policy which, as I am 
sure all members of the subcommittee know, has become a rather 
controversial subject in implementation of section 10 of the 
Endangered Species Act.
    I think it is important at the outset for me to say that I 
believe that the underlying intent of the whole HCP process was 
a sound one, when it was enacted in 1982.
    And as I read the legislative history, and some here may be 
far more conversant with it than I am, but as I read the 
legislative history, the basic concept was that there would be 
a tradeoff, in exchange for permission to take members of an 
endangered or threatened species, which I think all would 
agree, is a rather extraordinary kind of permission to give 
someone with regard to a species already deemed to be on the 
verge of extinction, the applicant for that permit would have 
to prepare a habitat conservation plan.
    And the word ``conservation,'' as defined in the Endangered 
Species Act, has very specific meanings. These are activities 
which must promote the recovery of the species, help bring the 
species to the point where it no longer requires the protection 
of the Endangered Species Act.
    So I think the concept underlying the HCP process was a 
sound one. We fear that when we look at some of the HCPs which 
have been, in fact, adopted and approved, especially by this 
Administration over the last number of years, many of these 
HCPs, regrettably, do not meet that basic set of requirements 
which we think was included in the 1982 amendments.
    I have one quick comment on a point that was made by 
Senator Baucus involving the balance and how we strike a 
balance on these kinds of issues. Certainly, trying to strike a 
balance is always desirable. And reaching an appropriate 
compromise is always a desirable policy objective.
    The problem, of course, as you all are intimately aware, 
when you are dealing with endangered species, the room for 
maneuverability and flexibility is, by definition, much smaller 
than it would be in other kinds of circumstances. These are 
species which already have been determined by scientists to be 
facing the prospect of becoming extinct in the foreseeable 
future.
    So I think one of the things for this subcommittee to keep 
in mind is, one of the objectives has got to be to prevent 
species from getting to the point where they actually have to 
be put on the list of endangered or threatened species. Because 
that is where opportunities for compromise and dialog and 
coming up with flexible solutions will be much greater than 
after a species is already in the emergency room, so to speak, 
and the opportunities for that kind of flexibility are, by 
definition, much smaller.
    In my testimony, I give some examples of what I think are 
HCPs which have not accomplished the objectives that Congress 
originally set out. One of them involved a species known as the 
Alabama beach mouse, which was listed in 1985, because its 
habitat had already been drastically reduced.
    Since it was listed as endangered in 1985, the Fish and 
Wildlife Service proceeded to approve at least five or six 
additional incidental take permits and HCPs, which allowed much 
more habitat to be destroyed, leading a Federal Judge, the 
Chief Judge of the Alabama District Court, to conclude that 
several of the most recent HCPs were, in that Judge's words, 
devoid of rationale basis, because they did not provide for the 
actual conservation of the species in exchange for the take 
that was being permitted.
    The mitigation measures ranged from what we would submit 
are truly laughable mitigation measures such as warning 
children not to run across sand dunes where there is an 
endangered mouse--and suggesting that that is actually going to 
help prevent that species from being harmed, to what the Judge 
decided was an extraordinarily paltry sum of money to 
compensate for a rather substantial loss of habitat.
    So I think that while there may be success stories which 
are worth learning lessons from, we also need to learn lessons 
from the very poor HCPs, which scientists and Federal Judges 
have now agreed have been approved.
    In terms of a couple of the policies that I have focused on 
in the written testimony, obviously, as I mentioned, ``No 
Surprises'' is a big concern of many in the environmental 
community and the scientific community.
    I think if you want to put that policy in perspective, it 
is useful to imagine the following scenario. Tomorrow, the Food 
and Drug Administration announces that henceforth, anyone who 
has received a license to market a drug or a medical device 
will receive an unprecedented guarantee that for the entire 
life of that license, even if we learn things about that drug 
or that medical device that threaten people in ways never 
previously anticipated, the recipient of the license will 
receive a guarantee that the license conditions will never be 
changed, no matter how much of a risk that may pose to the 
health of the public.
    Or with the Nuclear Regulatory Commission, we guarantee to 
nuclear permittees that for the next 50 years, even if we learn 
new concerns about the design of the nuclear power plant, we 
will never change the conditions under which that plant is 
permitted to operate.
    I think it is fair to say, however you come out on the ``No 
Surprises'' issue, it is a drastic departure from the set of 
assumptions that go into most Federal permitting and licensing 
approaches.
    If you look at what the Administration has done, the lesson 
to learn here is, if you are going to provide for any kind of 
``No Surprises'' assurance to the holders of incidental take 
permits, at least ensure that when surprises occur--and 
scientists say they will occur all the time, because nature is 
inherently variable and changeable--when they occur, ensure 
that there is some mechanism by which changes to the plans and 
the permits can take place. And that means providing a 
guaranteed supply of funding, so that, in fact, those kinds of 
changes can occur.
    And, also, we should recognize that there is variability in 
nature, and that you have to ensure that there can be different 
kinds of guarantees for different kinds of permits and 
different kinds of species.
    In the written testimony, I also talk about problems with 
public participation in the process, and how that has broken 
down. And, obviously, we would strongly suggest that any 
approach to this issue take into account the need to involve 
the public and independent scientists.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Glitzenstein.
    Mr. Thornton.

     STATEMENT OF ROBERT THORNTON, COUNSEL, ORANGE COUNTY 
     TRANSPORTATION CORRIDOR AGENCIES AND OTHER INTERVENOR-
DEFENDANTS IN SPIRIT OF THE SAGE COUNCIL V. BABBITT, IRVINE, CA

    Mr. Thornton. Mr. Chairman and members of the committee, I 
am pleased to be here. My name is Robert Thornton. I am 
appearing today as counsel to the Orange County Transportation 
Corridor Agencies, which are two regional transportation 
entities in Orange County, CA, that have played a leading role 
in the Southern California Natural Community Conservation Plan. 
I had the privilege of accompanying Senator Chafee a year or so 
ago on a tour of the nature conservation planning areas.
    I have labored most of my professional career to try to 
make the Endangered Species Act work. I am proud of the fact 
that I was the original advocate for what became the HCP 
provisions of the Act. And I have represented small landowners, 
large landowners, farmers, energy companies, timber operators 
on a variety of HCPs over the last 20 years.
    I have been coming back here now to Washington, after 
having worked here several years, for 20 years. And I am always 
struck by the ebb and flow of the testimony regarding the 
Endangered Species Act.
    I remember testifying before the House committee in 1992. 
And the concern on the part of the environmental community at 
the time was, how do we bring landowners to the table, because 
the Endangered Species Act, section 9, the hammers in the Act 
were not working to promote habitat conservation on private 
lands.
    We could not bring landowners to the table to deal with, as 
Mr. Glitzenstein commented, dealing with the problem before the 
species are in the emergency room.
    And the consensus, at that point in time--and, of course, 
that was a period of time when, politically, the Act was under 
attack--the consensus within the environmental community was 
what we need to have regulatory incentives. We need to have 
financial incentives. We need to encourage landowners to do the 
right thing, and to come to the table and engage in proactive 
planning.
    Habitat conservation plans and the ``No Surprises'' Rule 
are absolutely essential, in my experience, to bring landowners 
to the table.
    Now I want to deal directly with Mr. Glitzenstein's comment 
and the criticism that one hears of HCPs and the ``No 
Surprises'' Rule. And that comment is, ``Well, gee, biological 
systems are full of surprises. How can you have a so-called `No 
Surprises' rule?''
    The issue has been mischaracterized. We acknowledge--I 
certainly acknowledge that biological systems are full of 
surprises. That is not the issue. The issue is, who pays for 
those surprises?
     Fundamentally, the assurances rule is a mechanism to share 
the risks and burdens of habitat conservation between the 
Federal Government and, ultimately, the Federal taxpayers and 
private landowners. And it is an arrangement that is struck 
that in exchange for voluntary consensual conservation that a 
landowner commits to now, he will receive certain regulatory 
assurances that in the future, the deal will not be changed.
    As Secretary Babbitt has said it best, I think eloquently. 
I can not do any better. ``Take a bite at the apple. Take one 
good bite, and then a deal is a deal.''
    The problem that we have is, if you want landowners to 
engage in multi-species planning and address unlisted species, 
species that are not protected by the regulatory protections of 
the Endangered Species Act, if you want landowners to commit to 
conservation of corridors or linkages, which are not occupied 
with endangered species and, therefore, are not subject to 
regulation under section 9, you have got to provide them 
incentives. And regulatory incentives are the most powerful 
incentives that can be provided.
    The problem that we have with our legal systems--it is not 
a problem; it is a reality--is that we have private property 
rights in this society. We have the fifth amendment to live 
with. We know, as a matter of law, that when that landowner 
signs that grant deed over to a conservation agency or to a 
public agency, that his property rights are transferred. They 
are extinguished.
    And so the problem is, how do you rationally tell a 
landowner that you want him to sign that grant deed. You want 
him to provide funding for long-term conservation of endangered 
species, but you also want the ability to come back in 5 years 
or 10 years or 15 years and say, you know we have just 
discovered something new about this species and we have changed 
our mind. You have got to give us more property.
    It is not realistic. If you want landowners to participate 
in the endangered species conservation activities, and you want 
to keep species out of the emergency room, then regulatory 
assurances are essential.
    Now in the limited time, Mr. Chairman, that I have 
available, I have provided some graphics that sort of take you 
from the macro to the micro, to talk about what is going on in 
California, an area that I am very familiar with. I will just 
hold some of these up.
    The bright pink graphic tells the State of the issue in 
California. These colors represent basically the extent of the 
conservation needs in California. I see I am running out of 
time.
    The next graphic shows the conservation planning efforts 
that are under way in California. I have to say, these are 
driven almost entirely by the HCP policies of the Babbitt 
administration and, in particular, the ``No Surprises'' Rule.
    Finally, the last graphic I want to show is the 
conservation efforts that are emerging out of what has come to 
be called the Southern California Natural Community 
Conservation Plan.
    The green shown on this map represents several hundred 
thousand acres of private land that is in the process of being 
put into conservation status, with little or no cost to the 
Federal Government or the Federal taxpayer.
    And, again, the essence of the ``No Surprises'' Rule is, if 
you want to get that level of conservation commitment now, up 
front--and Senator Chafee saw these areas with me--then you 
have got to be prepared to provide regulatory assurances to 
these landowners.
    With that, I would be happy to answer questions. Thank you, 
Mr. Chairman.
    Senator Crapo. Thank you very much.
    Mr. Pauli.

   STATEMENT OF WILLIAM C. PAULI, PRESIDENT, CALIFORNIA FARM 
                     BUREAU, SACRAMENTO, CA

    Mr. Pauli. Good morning, Mr. Chairman and members of the 
committee.
    I am Bill Pauli. I grow wine grapes and Bartlett pears and 
Douglas Fir timber in northern California, which is in 
Mendocino County. I am president of the California Farm Bureau, 
and I am here today on behalf of the American Farm Bureau and 
the California Farm Bureau.
    I welcome the opportunity to present testimony on the 
practical implications of the HCP progress in agriculture. We 
have submitted a long written testimony that I hope you will 
have an opportunity to review and digest.
    This is extremely important as HCPs, in general, simply do 
not work for farmers and ranchers. In fact, our experience in 
California with the regional multi-species HCPs is that they 
are tools for encouraging urban sprawl and magnifying the loss 
of good farm land by forcing productive land into public 
habitat preserves.
    Generally HCPs fall under two types: single HCPs and multi-
species HCPs, like we have in California. The first, as shown, 
works for large, industrial or institutional landowners, hardly 
applicable to many small farmers.
    The second type of HCP is expensive and is time consuming, 
two factors that this type of program can not be used in 
agriculture. Only those changes in the use of the land can 
afford both the time and the money needed to participate.
    Land developers can use this program as they develop part 
of the land and mitigate for the rest. It is a speculative use 
of the land that has nothing to do with the present activity on 
that land. The costs are passed on to the purchasers of the 
property that have been developed. Farmers and ranchers can not 
do the same.
    Additionally, HCP authority also imposes permitting 
requirements on agriculture for activities that do not 
currently require permits. Often, such activities are normal 
farming practices that are necessary to continue the use of the 
land for farming purposes and for a family farming operation, 
that can not afford the cost nor deal with the paperwork 
requirements for the permitting process. It is no wonder that 
this land then becomes available for mitigation, development, 
or for sale.
    We would like to emphasize that given the proper protection 
and incentives, farmers and ranchers can play an important role 
in the protection and recovery of species. In fact, the 
agencies must have the cooperation of farmers, ranchers, and 
private property owners if the Endangered Species Act is going 
to work.
    We do a better job of protecting species than the 
Government. And we contribute to the local tax base, provide 
jobs, and are productive, while still supporting wildlife. 
Farmers and ranchers who own most of the suitable species 
habitat are especially important if ESA is to succeed.
    We hope that this committee would recognize the wide range 
of interest and agree that incentive-based programs work. When 
both the Farm Bureau and the Environmental Defense Fund can 
agree that we solve problems for species and landowners when we 
take this approach, we have a situation that begs for 
congressional action.
    The Farm Bureau has testified before this committee no less 
than six times in the last four Congresses, seeking such 
incentive programs as the Critical Habitat Program. Everyone, 
it seems, agrees that such a program will help species and tap 
into the conservation ethic of all farmers.
    Our rural communities reel under the regulatory excesses of 
the Endangered Species Act. Developers develop land that 
farmers can no longer afford to farm.
    Mr. Chairman, I know that your State is starting to get the 
taste of what California has gone through for the last 10 
years. I hope that you can learn from the mistakes made in 
California. Lawyers, bureaucrats, technicians, and politicians 
do not save endangered species. Farmers and ranchers can and 
want to. We are hoarse with telling Congress this fact.
    Take away the regulatory disincentives that create 
financial ruin in our rural areas. Provide funding and the 
commitment to put in place programs that work on the ground for 
not only the people, but the species.
    In the few seconds that I have left, let me say a couple of 
quick things. You know, you have got two concepts here. You 
have got industrial farming versus rural farming, agriculture 
as we have always known it.
    We provide habitat on our fence lines, around our creeks, 
around our streams. If you want us to destroy that, then 
continue with the kind of regulation you are talking about 
here.
     The easiest way for me to destroy habitat and to protect 
myself is to eliminate those areas along my fence lines and my 
creeks. Because if I protect the species that live there, some 
regulatory comes in says, ``Look, you have got these species. 
Now you are going to have to broaden that.''
    Why are the species there? Because they like where they 
are. They like what I have been doing. I have been protecting 
those species.
    Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much, Mr. Pauli.
    I will ask the first series of questions. And I will just 
start out with you, Mr. Glitzenstein.
    From your written and your oral testimony, it is my 
understanding that one of your concerns with the ``No 
Surprises'' rule is that it essentially shifts responsibility 
for the funding, or for the maintenance and protection, of the 
species from the private landowner to the Federal Government.
    And the question I have is that if endangered species is a 
significant national priority, what is the philosophical 
objection to having the Federal Government participate in the 
recovery of species?
    Mr. Glitzenstein. I do not think there is any objection to 
having the Federal Government participate. And it does in a 
number of different ways, under the Act.
    I think the concern with shifting that responsibility under 
section 10 is that it really reverses decades, literally, of 
environmental regulation precedent, in which the basic concept 
is that the person who receives a permit to, in some fashion, 
harm the environment--and that is what an incidental take 
permit is--is responsible for paying for the damage associated 
with that, including paying for changes that might be 
necessary.
    In my testimony, I point out that that is basically the 
State of the law under the Clean Air Act, under the Clean Water 
Act, under the Resource Conservation and Recovery Act, and 
virtually every other field of Federal environmental law. So 
this is truly a revolutionary change in a historical approach.
    Having said that, if I could just add, I think there is an 
important philosophical question there. But I think the 
practical question is the greater one.
    Under the current scenario, where the burden for surprises 
is shifted to the Federal Government, we have a Fish and 
Wildlife Service and a National Marine Fisheries Service, which 
are woefully incapable, financially, of paying for the changes 
that might be necessary.
    We have Jamie Clark going in and filing affidavits in 
Federal court--and I can provide numerous examples to the 
subcommittee--saying we do not have enough money even to meet 
our mandatory, nondiscretionary duties under the Act. We do not 
have enough money to list species and designate critical 
habitat.
    So how in the world could we expect the Federal Government, 
under the current scenario, to take on the very obviously 
substantial burden of dealing with all of these unforeseen 
circumstances?
    So however you resolve the philosophical question--and it 
is a good one--the more important question is, if you are going 
to resolve the issue in favor of the Federal Government taking 
on that burden, at least make sure that there is an adequate 
source of funding, so that the Federal Government can do what 
it claims it should do, under the ``No Surprises'' approach.
    Senator Crapo. Are you aware of, or do you have any, 
information indicating what the cost would be to the Federal 
Government, if the funding were made available to implement the 
``No Surprises'' policy, and have the Federal Government 
participate as it should?
    Mr. Glitzenstein. That is a very good question. I have 
never seen that. I think, obviously, one of the problems is, 
these are, by definition, unforeseen circumstances.
    I would imagine the almost insurmountable difficulties in 
aggregating all of the unforeseen developments that could take 
place and affect incidental take permits.
    Senator Crapo. That is what I suspected. However, I also 
took from your answer, and I think I would agree with it, that 
the cost could be conceivably extremely high. We are talking 
about a very expensive cost here, in terms of recovery of 
species.
    Mr. Glitzenstein. Well, I think one of the things to keep 
in mind is--and I think Mr. Thornton would probably agree with 
this--the way in which the policy has currently been evolving, 
there has been a distinction drawn between what are called 
changed circumstances, which are different conditions which can 
be anticipated.
    They may not necessarily happen. But in an area which is 
hurricane prone or subject to various kinds of natural 
fluctuations, under the existing policy, the incidental take 
permit holder can be held responsible for those.
    If you look down the road in, say, 10 or 20 years, the 
plight of the species can change. Therefore, we should have 
what are called--and I know the scientific panel testified on 
this--adaptive management provisions.
    The ``No Surprises'' rule is intended to deal with what I 
think we all agree has become defined as a somewhat narrower 
set of circumstances--unforeseen developments, which even 
scientists who are familiar with the area and familiar with the 
species can not anticipate.
    So I think that the amount of money, cumulatively, may be 
much less than if you were dealing with responding to all kinds 
of changes which could take place, both changed circumstances, 
as they have been defined, and unforeseen circumstances. It may 
not be quite as expensive as you might surmise.
    Senator Crapo. All right. Mr. Thornton, what is your 
response to the argument that this is a different concept than 
is pursued in any of our other environmental laws; namely, 
having the Federal Government pay for the consequences of the 
recovery or the action required?
    Mr. Thornton. Well, I do not think that there is any 
Federal environmental statute that asks a landowner to give up 
property rights over a long period of time in order to address 
an issue that is not mandated under the Federal law. And that 
is what HCPs are all about.
    The essence of Mr. Glitzenstein's argument is, why don't 
you just leverage these requirements out of landowners, in 
return for obtaining a permit?
    The fallacy of that argument is that HCPs address what the 
environmental community said they wanted addressed; that is, 
they want large-scale, habitat-based plans that address species 
that are not on the Endangered Species list in addition to 
those that are.
    They want corridors. They want linkages. They want all of 
the things that the National Academy of Scientists and the 
conservation biologists tell us constitutes good conservation 
planning, good preservation design. In order to obtain those 
kinds of commitments, then you have got to provide certain 
incentives.
    Now we have a representative from the Farm Bureau. I have 
represented farmers. You have a different problem that exists 
with farm operations. A number of farmers in California, quite 
frankly, because of the Endangered Species Act, make sure that 
their property remains tilled from stem to stern, year after 
year, without regard to whether they are growing crops on it; 
why? Because they do not want to have the regulatory burdens of 
the Endangered Species Act imposed on them.
    So if we want to encourage farmers to engage in the kind of 
activities that will provide conservation benefits, then you 
have got to provide them regulatory assurances. That is what 
the HCPs are all about.
    Senator Crapo. Thank you. And Mr. Pauli, I know my time is 
running out here for my questioning period. But I think the 
essence of your testimony is that the HCPs, as they are being 
implemented, simply are not beneficial to agriculture.
    Can you see a way in which HCPs could work in a beneficial 
manner, that would provide incentives or encourage farmers to 
participate?
    Mr. Pauli. Well, you know, one of the things that we have 
been trying to do is to find solutions to protecting the 
species. I do not think that anybody is opposed to the concept, 
how do we effectively do it, recognizing the amount of 
urbanization we have in so many parts of the country; and how 
can we be effective in doing it.
    It has to be through an incentive-based program that does 
not put farmers in jeopardy such that when they get one lizard 
or one kangaroo rat, even though they are providing a lot of 
habitat, will lose the farm or the ranch.
    And how do you do that? It is going to have to be with a 
balanced, multi-species approach that tries to improve the 
habitat for all species. Where some of us have this problem 
under ESA, we want to try to protect as much habitat as we can. 
Ultimately, we all have to try to collectively do that.
    By the same token, there seems to be a drive on the part of 
many of the regulators, particularly from the Fish and Wildlife 
Service, to find a reason to put us out of business. Their real 
objective here is to take the land; not just let us continue to 
farm, find a way to farm, to balance off what it is we are 
doing; but really trying to extract our property from us.
    In the West is where we have such a conflict. These species 
have been there for years and years, and they are still there, 
but suddenly, everything we are doing is wrong, and they want 
to take our ground from us.
    In the West is where we have this real conflict. If what we 
are doing is so totally wrong, then why do the species still 
exist there? Yet, we are finding ways to improve the habitat, 
improve the balance of the species, overall.
    We are going to have to recognize, however, that some 
species may become extinct. We have been good stewards, but 
there are a lot of other impacts, from urbanization and growth 
around the country.
    Senator Crapo. Thank you. My time has expired.
    Senator Chafee.
    Senator Chafee. Thank you, Mr. Chairman.
    Mr. Thornton, you listened to Mr. Pauli when he gave his 
testimony. And it was kind of a discouraging presentation. He 
indicated that, in his view, the Endangered Species Act, and I 
am paraphrasing him a little bit, worked exactly contrary to 
its given purposes. Is that a fair summation of what you said, 
Mr. Pauli?
    Mr. Pauli. It certainly has not achieved its overall 
objectives of protecting species.
    Senator Chafee. Yes, and then he gave the illustration of 
the growth along river banks, stream banks, where endangered 
species were surviving.
    But now there is every incentive, as I understood what Mr. 
Pauli said, for the farmer to get rid of that protective 
growth, because they might find an endangered species there. 
And then all kinds of problems arise.
    Although I do think he is going a little far when he 
indicated that what the Government really wants is to take the 
farmers' land, I do not think that is quite fair.
    What do you say to all that? Here you are embracing, as I 
understood your testimony, the ``No Surprises'' policy. Why 
would that not work for Mr. Pauli?
    Mr. Thornton. Well, Senator, in my view, it can work, 
properly implemented. I think that farmers have some unique 
problems that clearly they have a setting that is different 
than an urbanized HCP. The HCPs in agricultural areas are 
different. I have worked on some agricultural HCPs.
    I completely agree with his testimony that the cost of 
processing a separate individual section 10 permit for a small 
farmer is prohibitive. Therefore, you have to do it on a 
municipal or regional basis.
    I have been working in Kern County, CA, for the last 10 
years, which is a major agricultural area, working with farmers 
and with energy companies, to put together a plan that is more 
of a market-based plan that just does not lock land up and not 
use it, but rather tries to provide various forms of assurances 
to encourage farmers to manage their land to retain habitat 
values.
    The problem that I have seen is that the Act, as it is 
currently structured and implemented, tells farmers if they get 
a Tipton kangaroo rat on their property in Kern County, they 
will not be able to put a crop in next season. It is not a good 
statute because the message to that farmer is, make sure there 
are no Tipton kangaroo rats on your property.
    But I think the HCP process can work. Clearly, agriculture 
presents a set of issues that are different from the urbanizing 
area.
    Senator Chafee. It is apparent that we will not be able to 
pass on the Senate floor and by both legislative bodies, a 
radical reform of the Endangered Species Act. We tried that 
under Senator Kempthorne's leadership, and we just did not 
prevail.
    But it seems to me that there is great merit, I believe, in 
the ``No Surprises'' policy. Are you a ``No Surprises'' 
supporter?
    Mr. Thornton. Absolutely, Senator.
    Senator Chafee. And how about you, Mr. Glitzenstein?
    Mr. Glitzenstein. I would certainly disagree with the 
current rule.
    If I could just make one comment about that. I think that 
one of the important areas in your question is that there are 
many different kinds of HCPs and many different kinds of permit 
applicants. The current rule says, ``thou shalt give ``No 
Surprises'' guarantees to each and every permit applicant, no 
matter who you are, whether you are a small farmer or a large 
multi-billion dollar timber company, no matter what species is 
affected, no matter how long the permit, whether it is for 2 
years or 100 years.
    The one thing I would really urge this subcommittee to take 
a look at, at an absolute minimum is at least give the Fish and 
Wildlife Service some flexibility to negotiate when ``No 
Surprises'' guarantees may be appropriate, to a particular 
farmer or someone else, and how long the guarantee should be.
    Some of the environmental groups have suggested you can 
give a guarantee in one situation, that a permit will not 
change for 5 years; but because of variability in nature in an 
area and a big landowner, 20 years would not be appropriate.
    But the current rule, which I am absolutely opposed to, as 
is every environmental group who commented on it and virtually 
every conservation biologist says that you must give ``No 
Surprises'' guarantees for every permit for the entire length 
of the permit, no matter how long it is. That, I submit, is a 
totally irrational policy.
    Mr. Thornton. Senator, if I might just quickly comment. 
This is the difference between the view from Washington and the 
view down in the trenches, as I like to call it, the ESA 
trenches.
    Believe me, every HCP that I have been involved in, and I 
have been involved in over 2 dozen major HCPs, are very heavily 
negotiated, and the Fish and Wildlife Service does not provide 
blanket assurances.
    There are negotiations over what species are covered. There 
are negotiations over the extent of the mitigation and 
minimization measures. There are negotiations over the term of 
the conservation agreement.
    There is a whole scope and variety of negotiations that go 
on. And believe me, that rule is not being interpreted down in 
the field to provide blanket assurances to landowners.
    Mr. Pauli. Can I make one comment? I think, Senators, one 
of the things we have to keep in mind here, and sometimes it is 
an over-simplification, but I do not really think it is. We 
have got very small versus very large. We have very different 
geographical locations in terms of the type of landscape and 
setting.
    If you go to my State, California, in the southern part of 
the State in the Imperial Valley are 600,000 or 700,000 acres 
of irrigated land. It is high desert with 2 inches of rainfall, 
a very different kind of problem. But when you go up into the 
north coast, we have 40 to 80 inches of rain every year, very 
unstable soils. It is completely different. Yet, we have this 
one big plan. Then, we have big property owners and little 
property owners who cannot deal with the regulatory process, 
where the best lands really are, and some of the best species.
    So you have got to keep in mind, it is not a one-kind-of-
thing-fits-all. And there are two other things. You have got 
the small and the big----
    Senator Chafee. Well, we are on my time here, so if you 
could summarize quickly.
    Mr. Pauli. OK, you know, Fish and Wildlife Service has lost 
the respect of the property owners. Because as you make an 
agreement, through all these negotiations, expense, and time, 
and the next week, you have got a different person, a different 
interpretation, and a whole other problem. So you need to try 
to look at that issue. I mean, you talk about an agreement, but 
it can not keep changing every week and every year and every 6 
months. That is a real problem.
    Senator Chafee. OK, thank you. Thank you, Mr. Chairman.
    Senator Crapo. Thank you very much.
    Senator Thomas.
    Senator Thomas. Thank you. First let me just say, Mr. 
Chairman, that I do not think what we tried to do is a radical 
change to ESA. It does need to be reauthorized, but I think it 
can be changed without being radical. What is radical in Rhode 
Island is not radical in Wyoming, I might add.
    [Laughter.]
    Senator Thomas. Mr. Glitzenstein, is this your list of 
about 150 Ph.D.s and so on?
    Mr. Glitzenstein. That is one letter that was submitted. I 
think actually Ms. Hood in her testimony in July referred to 
another letter, which had many others.
    Senator Thomas. Would you think that all the nominations 
and listings are a result of full and complete scientific data?
    Mr. Glitzenstein. I think in the listing process, certainly 
there are examples where it may not comport completely with 
what scientists would prefer. These days, I think many species 
are not being listed that should be, because of what scientists 
would suggest.
    Senator Thomas. Do you think through a windshield, driving 
through a county and doing it on State and county lines is 
scientific?
    Mr. Glitzenstein. I am not familiar with that particular 
example.
    Senator Thomas. I am, and that is what has been done.
    You point to everything being scientific. The fact is that 
nominations are not in the least scientific.
    Mr. Glitzenstein. I am sure you mean petitions.
    Senator Thomas. Petitions, yes, sure.
    Mr. Glitzenstein. Well, the petitions that I am familiar 
with, with the groups I work with, I must unfortunately 
disagree with you.
    Senator Thomas. OK.
    Mr. Glitzenstein. Because the ones that I have seen, and I 
am not saying every petition that has ever been submitted has 
been scientifically sound, but the ones I am familiar with, 
with the groups I work with, are very thoroughly researched, 
and supported by as much science as possible.
    Senator Thomas. Well, the ones I work with are not. My 
point is, I do not think you can make the generalization that 
the scientific end does everything, and that we ought to just 
live with that. There are lots of things that go into this 
besides the scientific end, as a matter of fact.
    Mr. Glitzenstein. Well, I agree.
    Senator Thomas. Do you consider that a listing of jumping 
mouse changes for a number of years is the same as a nuclear 
listing, a nuclear power plant?
    Mr. Glitzenstein. Well, what I am trying to show with that 
example is, the basic way in which we have approached 
environmental regulation in this country.
    I think it is the same in the sense that if you are going 
to establish a set of criteria for getting a permit to take an 
action which would otherwise be unlawful, and it is critical to 
stress that the taking of an endangered species, under Federal 
law, is unlawful.
    And Congress, when it passed that requirement, said that it 
regarded endangered species as being of the highest possible 
priority, that the loss of any species would be incalculable. 
And some of these species which people----
    Senator Thomas. I understand. It is the idea that you do 
not mow your ditches or you do some things, that is hardly 
equal to a nuclear change.
    Mr. Pauli, have you had any experience with the 4(d) Rule? 
Have they used that at all with farmers and ranchers?
    Mr. Pauli. Yes, Sir, they have attempted to, in California. 
And I am not as familiar as I would like to be on that. I would 
prefer not to comment on that.
    Senator Thomas. But that is an opportunity, I think, is it 
not, to make it more acceptable, to make it more workable?
    We have one pending, as a matter of fact, that has not been 
completed now for a number of months that could make it 
workable, but has not been used.
    Mr. Pauli. One of the problems that we continue to find 
comes back to the relationship with the people, back to your 
windshield kind of view.
    The people on the ground do not have the kind of experience 
that many of us who farmed that ground or lived in that 
community for years and years have. And they simply do not 
understand the biology.
    One of the real problems is the credibility of the 
biologist. We talk about science. We say, ``Well, we should not 
have a contract for more than 5 years because, gee whiz, the 
science might change.'' Well, the science might change in a 
year or a month, but it also takes a long time for these things 
to trend.
    In California, we will have a drought for 5 or 7 years, and 
things are completely contrary to where they were before, when 
you were in rainy sessions for 5 or 7 years.
    Senator Thomas. Mr. Thornton, you have generally 
represented larger users, is not that correct, by the look of 
your maps and so on?
    Mr. Thornton. Well, no, Senator, I have represented public 
agencies. I have represented small landowners, large 
landowners, small developers, small farmers.
    Senator Thomas. Well, is not it easier for Chevron to do 
something or a Weyerhaeuser for 100,000 acres, than it is for 
someone with 250 acres?
    Mr. Thornton. Absolutely, clearly, large landowners have 
greater flexibility and more of the ability to work within the 
system.
    What has worked well, in my experience is, instead of a 
small landowner to attempt to process his own permit, but 
rather to work through a larger regional conservation plan. 
That is what we have done in Kern County. That is what we have 
done in various parts of southern California. And that is 
really more efficient. So then the local governmental agency 
takes on the processing chore of processing the plan.
    Now that does not make it an easy process. Some of these 
efforts literally have taken a decade or more to reach the 
sufficient consensus and wherewithal to get the plan together. 
But that is the way the small landowners have to do.
    The point that I try to make in my testimony is, we have 
got to come up with incentives. And regulatory incentives are 
just part of it. There has got to be financial incentives.
    Landowners, especially small landowners, have to see some 
reason to keep their property in conservation status.
    Senator Thomas. Thank you, Mr. Chairman.
    Senator Crapo. Thank you.
    Senator Baucus.
    Senator Baucus. Thank you, Mr. Chairman.
    Mr. Thornton and Mr. Glitzenstein. Let us assume the two of 
you were to go out. Do you drink beer?
    Mr. Glitzenstein. I do. I have been known to.
    [Laughter.]
    Senator Baucus. Let us assume the two of you were to, this 
evening, just go out and have a couple of beers together, and 
just sat down someplace, out of the spotlight of this hearing, 
away from your clients, just two guys that know each other 
pretty well, and looked at this issue pretty well.
    You are two fellows that are well meaning. I mean, you are 
doing what you think is right for this country. You are red-
blooded Americans.
    Where would you two agree on how you deal with ``No 
Surprises'' in habitat conservation plans? Because there is 
obviously a tension here. Landowners, appropriately, are 
concerned about all these Feds coming down. They are always 
changing their minds all the time. And most landowners are good 
people. They want to do what is right.
    On the other hand, we have got a very important national 
policy. It is protecting endangered species. It is extremely 
important. Because we do not want a society where we wake up 
one day and find the species gone, or at least a significant 
deterioration, as is the case in a lot of other countries.
    So there is an inherent tension between preserving species, 
you know, and adaptive management, say, on the one hand, and 
``No Surprises'', on the other.
    So where would you two start? You know, you are talking to 
each other. What is your first name?
    Mr. Glitzenstein. Eric.
    Senator Baucus. Eric. What is yours?
    Mr. Thornton. Rob, Senator.
    Senator Baucus. Rob?
    Mr. Thornton. Rob.
    Senator Baucus. OK, so Rob, you say, ``Eric, what do you 
think about this?'' And Eric says, ``Yes, Rob, that is a good 
idea. Yes, you know, I hear what you are saying.'' So Eric and 
Rob are having a couple beers together, alone.
    Mr. Thornton. Senator, I am not sure where Eric and I would 
come out.
    Senator Baucus. Well, I am asking just the two of you.
    Mr. Thornton. Right.
    Senator Baucus. Please answer my question.
    Mr. Thornton. But, actually, it is an interesting question, 
because I went through that exercise, 2 years ago, with 
representatives of the World Wildlife Fund, the Environmental 
Defense Fund, the Center for Marine Conservation, the National 
Wildlife Federation. And we spent about a year, along with 
representatives of the National Realty Committee----
    Senator Baucus. That is a lot of beer.
    [Laughter.]
    Mr. Thornton. That is a lot of beer. A lot of beer was 
consumed, Senator, I assure you.
    And there was a consensus reached. And it was ultimately 
articulated in what came to be known as the Endangered Species 
Working Group. Unfortunately, that particular proposal did not 
seem to get legs here on Capitol Hill.
    Senator Baucus. I am sorry, I am not worried about the 
process, here. I am just asking about substance.
    Mr. Thornton. Well, the substance, I would say----
    Senator Baucus. We do not have a lot of time here. So just 
cut to the quick. Where do the two of you tend to agree?
    Mr. Thornton. I would say that the consensus would emerge 
around the quality of the planning that is done. The level of 
public participation, which the environmental community is 
concerned about, although I think it is adequate in the 
existing process. Some commitments regarding some funding 
commitments in the future, to address unforeseen circumstances. 
And that might mean setting up a mechanism in Congress to 
establish some form of trust fund to fund unforeseen 
circumstances.
    Senator Baucus. Eric, what do you think?
    Mr. Glitzenstein. I can not disagree with what Mr. Thornton 
has said. I think, critically, we both agree that there has to 
be some guaranteed form of funding, when these changes are 
necessary.
    We have this philosophical concern that we talked about. 
But putting that to one side, somebody has got to pay for these 
things. And under current law, there is no clear answer to how 
that is going to happen.
    I think public participation is critical. I agree 
completely with that. I think independent scientific input on 
the validity of plans is critical. I agree with that. I would 
hope that the one other thing we could reach agreement on is 
that one-size-fits-all does not make any sense.
    Senator Baucus. OK, let us put the funding aside for a 
second. Do you agree with the concept of more public 
participation?
    Mr. Thornton. I, philosophically, Senator, am not opposed 
to it. And when I hear this criticism, and I offer my response 
to my environmental friends, which is to say----
    Senator Baucus. Slow down, we are not talking about 
criticism, here.
    Mr. Thornton. OK.
    Senator Baucus. Our goal here is to come together.
    Mr. Thornton. I think these planning processes have to have 
significant public participation for them to work.
    Senator Baucus. So more than currently is the case?
    Mr. Thornton. I think there is a lot of public 
participation in the plans that I am working on, but to the 
extent you want to codify and make them more formalized, I 
would not oppose that.
    Senator Baucus. OK, besides money and public participation, 
how are you going to deal with some of the changes that may 
occur? How do you deal with that, or what do you think?
    Mr. Thornton. I think you deal with it through adaptive 
management.
    Senator Baucus. What does that really mean?
    Mr. Thornton. Well, adaptive management means that the plan 
can change within certain parameters. And, ultimately, these 
negotiations, in my experience, get down to a place where the 
plan can change; how can it change, putting sideboards or 
parameters on the changes that can occur that are going to be 
paid for by the landowner.
    Senator Baucus. Do you think that you can agree with people 
in the conservation community as to what those parameters are?
    Mr. Thornton. Well, in my experience, you can reach 
agreement with components of the conservation community who 
have, in fact, endorsed a number of these plans. You can not 
reach agreement with everybody. That is clear.
    Senator Baucus. Well, my time is up. Eric, if you could 
just comment in 15 seconds on what Rob said.
    Mr. Glitzenstein. I think trying to come to an agreement on 
those points up front is critical.
    Senator Baucus. On the parameters.
    Mr. Glitzenstein. On the parameters, and what kind of 
adaptive management there should be. But the critical feature, 
also, which I hope we could come to agreement on, is that the 
small farmer gets different kinds of assurances than the multi-
billion dollar timber company.
    Senator Baucus. Well, that is clearly a problem.
    Mr. Glitzenstein. And those things can be negotiated, as 
well; how much of an assurance is appropriate, given the size 
of the HCP, the nature of the species, the length of the 
permits. Those things should be subject to some, I think, case-
by-case analysis. And I would hope that we could, if we sat 
down, come to some understanding of that, as well.
    Senator Baucus. I encourage you two to help us out here. 
Congress does not lead. Congress follows. Congress does what 
the people want done. So the more you guys are together, the 
more we are going to solve this. The more you are apart, the 
more we will not.
    I am asking you participants, the experts, who know this 
subject, to work this out together. Go have a couple of beers. 
I do not care what it takes. Just find some way to get some 
agreement here, because the more you are divided, this is not 
going to be solved here.
    Members of the House and Senate are going to follow their 
own constituent groups and special interest groups. Money gets 
spent on campaigns and you know what, and nothing happens. 
Congress follows. Congress does not lead. You have got to 
remember that.
    So if you want this solved, you have got to get together. 
You may not want it solved. If you do not want it solved, it is 
not going to be solved. But if you want it solved, you are 
going to have to do more than 50 percent of it yourselves, or 
it is not going to happen.
    Thank you.
    Senator Crapo. Thank you very much.
    Senator Chafee and I have no further questions at this 
point. Did you want to ask any more, Senator Baucus?
    Senator Baucus. No, thank you, Mr. Chairman.
    Senator Crapo. We do have more questions. And we will 
probably submit a series of questions to you in writing. But in 
the interests of time and keeping ourselves on schedule, we 
will dismiss this panel at this time. And we thank you very 
much for your appearance here.
    Our second panel, and please come forward, is Mr. Rudolph 
Willey, president of the Northern California Presley Homes; Ms. 
Brooke Fox, director of Open Space and Natural Resources of 
Douglas County, Castle Rock, CO; Mr. Jim Moore, director of 
Public Lands Conservation of the Nature Conservancy; Mr. Steven 
Quarles, counsel for the American Forest & Paper Association; 
and Mr. Don Rose, manager of the Land Planning and Natural 
Resources, Sempra Energy, of San Diego.
    We welcome you all. Were all of you here when I gave my 
admonition at the beginning about the fact that we are going to 
be seeing a red light before you are done saying what you want 
to say? And please keep your eye on the light, so that we will 
have time for interaction between the members of the panel here 
and yourselves.
    With that, we will start out with you, Mr. Willey.

  STATEMENT OF RUDOLPH WILLEY, PRESIDENT, NORTHERN CALIFORNIA 
                  PRESLEY HOMES, MARTINEZ, CA

    Mr. Willey. Thank you, Mr. Chairman and members of the 
subcommittee.
    Before Presley purchased land in San Jose in 1997, we were 
aware that the property once had been occupied by the 
threatened Bay checkerspot butterfly.
    We contacted the nationally recognized Stanford 
conservation biologist, Dr. Dennis Murphy, who addressed this 
subcommittee on July 20 on science and habitat conservation 
planning. We contacted Dr. Murphy, because he was the 
petitioner of the butterfly. And no scientist is more committed 
to this species than he.
    Stanford researchers who studied the species for decades 
told us that the butterfly had abandoned the site in the mid-
1990's, and that weedy exotic grasses had virtually replaced 
the host plants on which the butterfly survives, making it 
impossible to recolonize the site.
    Dr. Murphy worked with Presley to develop a plan to bring 
the butterfly back. Even though there were no animal species on 
the property, and thus, no incidental take permit required, 
Presley chose to pursue a section 10 habitat conservation plan, 
because it was prudent to obtain the No Surprise Assurance, and 
it was the right thing to do.
    We used the best scientific data available to produce a 
plan with extraordinary conservation commitments, with specific 
biological goals to achieve a 71-acre butterfly habitat, with 
17 acres of host plants, 20 dedicated plant conservation areas, 
the first agency sanctioned man-made tiger salamander pond, and 
an environmental trust, to which Presley will deed over 50 
percent of the 575 acres, and provide initial funding of $1.6 
million for recovery and restoration, and annual funding of 
$200,000 in perpetuity for professional management and 
monitoring.
    Given the voluntary nature and the progressive scope of the 
HCP, we expected the plan to be embraced by the Service.
    Senator Chafee. By the Service, you mean Fish and Wildlife?
    Mr. Willey. Fish and Wildlife Service, yes, Sir.
    But when we presented our draft at a large meeting, a 
Service-staffed biologist simply asserted that nearly the 
entire property constituted habitat for the butterfly, but did 
not offer any empirical or scientific evidence to support this 
assertion.
    It did not matter that annual surveys confirmed a complete 
4-year absence of the butterfly; nor, that the habitat was so 
degraded, the species could no longer re-colonize, without 
heroic restoration efforts.
    The Service then failed to comment in writing on the HCP. 
For nearly 4 months, we waited, called, and wrote, and even a 
letter to the Chief of California Operations went unanswered.
    Finally, we met with the supervisor in Sacramento, who said 
he had something in writing, but wanted to talk to Dr. Murphy 
before giving it to us.
    He listened to Dr. Murphy. And we pointed out that unless 
the Service engaged in a dialog to move this process along, we 
could legally proceed anyway, without an incidental take 
permit. He said he understood, and had told his staff that 
unless they cooperated, they would lose their opportunity to 
contribute to this project.
    He said he was powerless to override or direct his 
subordinates' actions, because he feared lawsuits from third 
parties' special interest groups. In the end, he gave us 
nothing in writing.
    We secured the appropriate permits from California 
Department of Fish and Game, Army Corps., and got a waiver from 
the Regional Water Quality Control Board.
    At every step of the way, the Service contacted these 
agencies, demanding they deny the permits. But each concluded 
the Service had no jurisdiction.
    In June, the city issued a grading permit, allowing for 
clearing the site, and work began. The Service had passed on a 
section 10, was denied a section 7 by the Army Corps., and had 
no grounds for a section 9. So now they elected to step outside 
the regulatory process altogether.
    First, they sent documents to private interest groups, 
which were used to sue another Federal agency, the Army Corps. 
Then, they sent the city of San Jose threatening letters and e-
mails claiming, without substantiation, that grading the site 
would cause illegal take of butterfly, for which the city would 
be held liable, under section 9. They demanded the city 
withhold any more permits.
    The city capitulated, explaining they could not upset the 
Service, because it was holding up $3.5 million in Federal 
funds for city projects.
    So we have been at a costly dead stop for 3 months now, and 
have lost a chance to construct any type of habitat, man or 
butterfly, until the dry season next Spring.
    We have contacted every level of the Service to get this 
resolved. And, at last, 2 weeks ago, they acknowledged there 
was no take, no grounds for a section 9 action.
    I asked for a simple letter to give to the city of San 
Jose. It arrived just this last Friday, and it was a qualified 
letter, at that.
    I ask you, where is the certainty in the regulatory process 
for me, as an applicant? The Administration promotes HCPs. Yet, 
mine was insufficient, with the species absent.
    And, finally, on behalf of all endangered species, is not 
this sending the wrong message, not to get involved in HCPs or 
restoration efforts? The butterfly has lost. And there is no 
escaping the irony, here. The developer attempts to protect and 
restore the species. And the Services blocks that effort.
    Thank you. I would like to make the committee aware that I 
will have James Meek, Project Manager available for technical 
questions, if any.
    Senator Crapo. Thank you very much, Mr. Willey.
    Ms. Fox.

   STATEMENT OF BROOKE FOX, DIRECTOR, OPEN SPACE AND NATURAL 
           RESOURCES, DOUGLAS COUNTY, CASTLE ROCK, CO

    Ms. Fox. Thank you.
    Mr. Chairman and members of the subcommittee, my name is 
Brooke Fox, and I am the Director of Open Space and Natural 
Resources for Douglas County, CO.
    I am honored to be here today on behalf of the Douglas 
County Board of Commissioners and the Coalition for Responsible 
Species Conservation to testify about our experience with the 
federally listed Preble's meadow jumping mouse, and our habitat 
conservation plans.
    Specifically, I would like to talk a bit about Douglas 
County, our HCP and ESA issues, and I will finish with just a 
few thoughts.
    Douglas County is located between Denver and Colorado 
Springs, the two largest cities in Colorado. We are 
conservative politically, and at the same time, our voters and 
elected officials are committed to protecting our beautiful, 
diverse landscapes and wildlife habitat. In fact, our voters 
have voted consistently three times since 1994 to tax 
themselves to preserve open space.
    Our county's master plan, zoning regulations, and open 
space preservation programs implement the county's commitment 
to preserve wildlife habitat. These documents, regulations, and 
programs consider wildlife, in general, and are not aimed at 
one specific species.
    Douglas County has successfully preserved over 26,000 acres 
through our open space preservation program, and through our 
development review process.
    I am sure you have heard numerous stories about the time 
and expense it takes to deal with the ESA. Briefly, here are a 
few of ours.
    The Fish and Wildlife Service in Colorado lacks the 
sufficient resources to review every day and long-term ESA 
issues in a timely manner. This affects us in two ways. Simpler 
issues needing attention before our regional HCP is approved 
take too long.
    For example, Douglas County recently purchased 150 acres to 
preserve Preble's meadow jumping mouse habitat and to provide 
some limited public access. Of the 150 acres, the trail could 
not avoid 400-square feet of mouse habitat. The required low 
effect HCP took 8 months to be approved.
    Second, we think given this experience, it is probably 
going to take us between 2 and 3 years, just to get our 
regional HCP approved.
    Because the Fish and Wildlife Service's goals and direction 
tend to change, everything takes longer. For example, many have 
relied on the proposed guidance provided in the Fish and 
Wildlife Service's proposed 4(d) Rule for the mouse.
    The 4(d) Rule was issued to provide clarity on what is and 
is not considered a take of mouse habitat during the period 
before the regional HCPs are approved. Well, the rule is about 
to be re-proposed. And we have heard that some of the 
guidelines such as extent of habitat will also be changed.
    I have outlined in my written testimony what we have and 
what we expect to spend to develop our HCP. I would like to 
make the point now that we are expected to spend upwards of a 
half a million dollars all to put our successful programs into 
a language that the Federal Government understands.
    My last issue is common sense. First, focusing on the 
``species du jour'' does not make good sense. Our efforts, the 
county's efforts to work toward preserving landscapes and 
wildlife habitat as a whole does make sense.
    Second, by the Fish and Wildlife Service imposing arbitrary 
mitigation ratios, they may actually create disincentives to 
preserve high quality, occupied habitat. The Fish and Wildlife 
Service's proposed mitigation ratios for the mouse actually 
provide incentives to restore or enhance marginal habitat that 
may yield questionable benefits for the mouse.
    To me, it makes more sense to provide incentives to ensure 
that the really good habitat, occupied habitat is preserved.
    And in conclusion, I have just a couple of quick thoughts. 
In our situation, the Fish and Wildlife Service must be 
provided with adequate resources to fulfill its legal 
obligations.
    We are faced with the scenario where we are going to be 
spending at least a half a million dollars to put in place just 
a plan. But we also may be required to pay for the Fish and 
Wildlife Service's NEPA requirements. We think that is an 
unfunded mandate.
    Second, we also encourage Congress to consider streamlining 
the HCP process. Third, we would like you to consider keeping 
the species preservation decisions as close to the local level 
as possible, to allow for common sense solutions.
    And fourth, and finally, I totally agree with a lot of what 
has been said today. We need to work on providing incentives 
for landowners to become partners in this preservation effort.
    I would be happy to answer any questions that you may have.
    Senator Crapo. Thank you very much, Ms. Fox.
    Mr. Moore.

 STATEMENT OF JIM MOORE, DIRECTOR, PUBLIC LANDS CONSERVATION, 
             THE NATURE CONSERVANCY, LAS VEGAS, NV

    Mr. Moore. Thank you, Mr. Chairman and members of the 
committee. Good morning, my name is James Moore. I formerly 
served as the Desert Tortoise HCP coordinator for the Nature 
Conservancy of Nevada.
    As you have heard from my colleague, Michael O'Connell in 
July of this year, the Nature Conservancy has been involved in 
conservation planning under the Endangered Species Act since 
section 10 was authorized in 1982.
    I was requested to come before you today to discuss a 
successful case study of an HCP, which began in 1989 in the 
unlikely setting for conservation of any kind, Las Vegas, NV.
    In the late 1980's, the economy of southern Nevada was 
booming, with an average of between 5,000 and 6,000 people 
moving into Las Vegas Valley every month.
    In August 1989, the Mojave population of the desert 
tortoise was listed by emergency rule as endangered, and by 
final rule as a threatened species in April 1990.
    Under section 9 of the 1973 Endangered Species Act, no take 
of the desert tortoise or its habitat could occur on private 
lands. Much of the private land in the Las Vegas Valley was and 
is to this day desert tortoise habitat.
    The surging Las Vegas economic train threatened to derail 
over an innocuous herbivorous reptile on the tracks. Numerous 
construction plans and commitments for large-scale projects 
such as school construction, flood control projects, and 
master-planned communities were delayed, while awaiting the 
outcome of court cases and appeals of the emergency listing.
    It was in this atmosphere of conflict that a little known 
provision of the ESA was brought into play. The Nature 
Conservancy had recently participated in a similar setting in 
the rapidly developing resort area of the Coachella Valley 
outside of Palm Springs, CA, when the fringe-toed lizard was 
listed as endangered.
    We assisted State and Federal agencies and private 
landowners to create and implement a successful conservation 
program under the auspices of section 10(a)1(B) amendment of 
the ESA.
    And following this example, Clark County, NV took the lead 
on resolving the desert tortoise listing conflict, and enlisted 
the aid of the Nature Conservancy to provide recommendations 
and environmental input into the development of an HCP to solve 
the needs of private landowners in the Las Vegas Valley. It was 
at this time I was hired as the Desert Tortoise HCP 
Coordinator.
    The first order of business was to assemble a steering 
committee of affected parties; stakeholders representing a 
diverse array of land uses and landowner issues in tortoise 
habitat.
    Livestock ranchers, miners, off-road vehicle enthusiasts, 
hunters, hikers, tortoise advocacy groups, national 
environmental groups, together with private property owners, 
representatives from four cities, State and Federal land and 
wildlife management agencies convened for some tension-filled, 
early, get-acquainted sessions.
    Land use rhetoric and entrenched bureaucratic positions 
abounded on all sides while the group sought a common 
direction. This seemingly impossible task fell to the skilled 
facilitator, Paul Selzer, also involved in the Coachella Valley 
HCP, to set the legal sideboards for the discussions and to 
mold this dynamic oil and water group into a coordinated, 
constructively engaged body.
    The uncertainties inherent in embarking on this relatively 
new provision and untested provision of the ESA attracted much 
scrutiny from environmental activists groups, who wished to 
ensure that a low standard was not set by this HCP.
    The projected lengthy timeframe required to develop a 
conservation plan for 20 or 30 years led the group to submit an 
application for a short term, 3-year HCP. During this time, the 
long-term plan would be developed using lessons learned from 
the short-term experience.
    The shorter timeframe of the 3-year HCP also provided more 
skeptical environmental groups with some assurances that take 
would be very restricted and would be commensurate with the 
conservation mitigation.
    In exchange for the limited take provided, mitigation would 
occur on public lands, where a majority of the best examples of 
viable and protectable tortoise habitat remained at a ratio of 
roughly 20 to 1. This was an extraordinary ratio of 
conservation to take, proposed under this provision.
    Some of the more notable accomplishments of the short term 
HCP were the purchase and retirement of livestock grazing 
permits from willing seller ranchers, encompassing over a 
million acres of public lands; the transfer of competitive off-
highway vehicle racing out of priority conservation areas and 
into areas less ecologically sensitive; the initiation of a 
tortoise relocation program to place tortoises removed from 
developing lands back into previously depleted areas of the 
Mojave Desert; and the reliable funding of public land 
management activities for the benefit of the desert tortoise.
    An additional byproduct of this process was the development 
of trust among the stakeholders involved in the conservation 
planning. This led to the successful negotiation of 
transitioning the short term into a long term desert 
conservation plan, which is now, as Senator Reid pointed out, 
the largest conservation plan in the United States.
    The subsequent successful transition from short term to 
long term also led to the now developing multi-species HCP, 
which is proposing to address the conservation needs of an 
additional 78 species.
    Many uncertainties exist for those additional species. And 
the multi-species plan proposes to integrate a strong adaptive 
management component into its conservation recommendations.
    It relies heavily on trust that the monitoring program will 
be sensitive enough to detect when management assumptions go 
awry for one or more of the covered species. And the appetite 
of landowners for these future adaptations of conservation 
provisions and mitigation measures is, as yet, untested.
    The jury is still out, in conclusion, as to whether or not 
this multi-species plan will pass what I consider the 
environmental smell test; that is, are the species proposed for 
coverage under this plan better off in the presence of a 
coordinated, well-funded conservation planning process than 
they would be in the absence of it? And I believe the answer 
will be yes, but that remains to be seen.
    Thank you.
    Senator Crapo. Thank you very much, Mr. Moore.
    Mr. Quarles.

  STATEMENT OF STEVEN P. QUARLES, COUNSEL, AMERICAN FOREST & 
               PAPER ASSOCIATION, WASHINGTON, DC.

    Mr. Quarles. Thank you, Sir. I am Steve Quarles. I am 
counsel for and appearing today representing the American 
Forest & Paper Association.
    AF&PA believes that habitat conservation planning is an 
extraordinarily valuable tool to elicit from the private 
landowner support for species protection.
    A massive amount of private land has been enlisted in the 
cause of species protection as a result of the habitat 
conservation planning process. AF&PA's members alone have 15- 
to 20-million acres of land in HCPs for which incidental take 
permits have already been issued.
    We have strongly supported legislative reform to provide a 
more solid, statutory basis for habitat conservation planning, 
and to remove some of the more recent problems that have arisen 
in habitat conservation planning.
    More even than the amount of land including within 
incidental take permits is the quality of management on that 
land resulting from habitat conservation planning. Remember 
that the only obligation of a private landowner is to avoid 
take of individual members of the species. That typically means 
that a private landowner that is not engaged in a habitat 
conservation planning simply avoids or perhaps puts buffers 
around discrete pieces of the landscape, where identified 
members of the species are nesting, breeding, or otherwise 
conducting behavior important to their survival.
    And even this minimal habitat is usually not protected long 
term from fire, disease, insect, or simply growing out of the 
appropriate habitat conditions. It is only with HCPs that 
landowners agree to grow and replace habitat. It is only 
through HCPs that landowners are willing to invest the money, 
the time, and the effort to, in fact, ensure additional new 
habitat consistently.
    You know the statistics. Over 70 percent of all listed 
species have 60 percent of their habitat on private land. Over 
35 percent of endangered and threatened species have all their 
habitat on private land. Clearly, habitat conservation planning 
is important for species protection.
    It is also of importance to landowners. The landowner 
obligation absent habitat conservation planning is simple: to 
avoid take. But the consequences are severe: injunctions, 
imprisonment, penalties. Clearly, a landowner would like to 
avoid those consequences, and the habitat conservation planning 
process is the best way to do that.
    Landowners are under no illusion that the process is easy, 
timely or inexpensive. I refer you to a chart in my written 
testimony, I submitted to this committee 5 years ago, in which 
I compared how much more costly, lengthy, and procedure-laden 
is the process for private landowners to obtain incidental take 
protection under section 10, than the process for Federal 
agencies to obtain incidental take protection under section 7.
    But this Administration is to be complimented. It has 
invested significant energy, policies, and resources to make 
the HCP process work better. And the process has become a good 
business investment for landowners who can afford it.
    That is enough of the positive. My task today is to discuss 
the problems that our members have recently and more frequently 
encountered. We really do see a loss of focus and momentum in 
the habitat conservation planning process.
    A number of our members' HCP preparations have come to a 
standstill, with no prospect of obtaining a permit. In other 
cases, HCPs have been abandoned by the companies. And, finally, 
many more of our members are seriously considering whether they 
can justify participation in the habitat conservation planning 
process.
    We see six categories of problems, which I discuss in some 
detail in my written testimony, but I will only summarize here. 
First, are procedural problems that are escalating the costs 
and delays beyond the capacity of even the largest landowners 
to absorb. The Services' habitat conservation planning 
handbooks say that even the most complicated HCPs are supposed 
to be processed within 10 months. Today, we are finding 2-year 
processing time to be precipitous agency actions. We are 
looking at processing times of anywhere from 3 to 6 years. You 
heard Rob Thornton speak of a 10-year period.
    Second, the Services originally encouraged and now they are 
undermining multi-species HCPs by their demands.
    Third, we see the Services sacrificing science to 
administrative efficiency, by seeking boilerplate provisions 
for all HCPs addressing the same species, even though there are 
particular habitat conditions for each landowner, and by 
requiring arbitrary mitigation ratios.
    Fourth, we see threats in the courts and from the Services 
to the linchpin for landowner participation--the certainty that 
a deal is a deal. This, of course, is the certainty that is 
embodied in the ``No Surprises'' rule.
    Fifth, we see the imposition by the National Marine 
Fisheries Service of an inappropriate and unlawful standard of 
recovery as a condition of approval of HCPs--a standard that no 
landowner can meet, and is a principal reason why a great 
number of HCPs are now at a standstill.
    Sixth, and finally, we see a failure of the Services and 
Congress to provide an effective mechanism that allows small 
landowners to pursue the same incidental take immunity attained 
through HCPs.
    This obviously sounds like quite an indictment. It is. We 
are seriously concerned that the HCP program is faltering. But 
you have no greater fans of that program than the American 
Forest & Paper Association. We believe it is the strongest hope 
for species preservation on private lands.
    Thank you.
    Senator Crapo. Thank you, Mr. Quarles.
    Mr. Rose.

   STATEMENT OF DON ROSE, MANAGER, LAND PLANNING AND NATURAL 
            RESOURCES, SEMPRA ENERGY, SAN DIEGO, CA

    Mr. Rose. Good morning, Mr. Chairman and members of the 
subcommittee. My name is Don Rose. I work for Sempra Energy.
    My staff and I are responsible for the siting and route 
selections for transmission lines, gas and electric, and the 
siting of other facilities, like substations, and regulator 
stations. We also get the permits and the environmental 
clearances, so those facilities can be developed.
    Sempra is the parent company for San Diego Gas and Electric 
and Southern California Gas, which serves a great deal of 
Southern California.
    I appreciate the opportunity to appear here today on behalf 
of Sempra and the Edison Electric Institute, which is the trade 
association for shareholder-owned electric utility companies. 
We commend the subcommittee for conducting these hearings. We 
are very interested in the hearings. We are especially 
interested in the outcome of the hearings.
    Gas and electric systems are complex. And like lots of 
complex systems, they need constant care and maintenance. 
Without that care and maintenance, there are outages.
    Outages can have serious consequences, which can be 
economic. They can be serious to health. There can be fire. The 
environmental consequences can be quite serious. Because of 
that, the State and Federal Governments on which we must be 
permitted by require and mandate certain maintenance.
    To perform this maintenance, it frequently puts us in a 
conflict situation with the Endangered Species Act. 
Maintenance, typically, must be performed during, weather 
permitting, the nesting season for most of the protected 
species, that being Spring and Summer and Fall.
    During the bad weather, we can not do the maintenance. The 
maintenances for maintaining access roads, et cetera, has to be 
done during the good weather. Therefore, complying with one 
regulation puts us in conflict with another regulation. So the 
regulatory conflict is one of the biggest issues we have with 
the Endangered Species Act. HCPs help resolve that, to a 
degree.
    San Diego County, more than most places in the United 
States, is in this conflict situation. There are more listed 
species in San Diego County than any other county in the 
continental United States. So it is very difficult to go out 
into the natural environment, without encountering that kind of 
a situation.
    HCPs seem to be the solution, so we went for it, 
enthusiastically. We spent $1.2 million on a mitigation bank 
and about another $800,000 on training and all the things 
necessary to process an HCP.
    And it worked very well for about 3 years. We are able to 
do new construction without obtaining additional endangered 
species permits. We are able to do our maintenance year around, 
even during the sensitive time of the year. And we were able to 
maintain our access roads.
    Now the access roads are the most important part of that 
maintenance activity. Because it is the access roads that 
allows us to do all the other maintenance. We must have access 
to the facilities in order to do that.
    Well, along came the Quino checkerspot butterfly. Even 
though we had 110 species covered, that was not on the list. It 
was believed to be locally extinct. It was resurrected, and 
what do you know. It just seemed to love the plant life that 
would gravitate to our access roads. So we were not allowed to 
regrade our access roads.
    We talked about possible environmental consequences. The 
two main activities, at least the ones we do the most 
frequently are what we call insulator washing and line 
clearing. We must wash the insulators. If you do not, they will 
collect dust, and they will conduct electricity, and cause what 
is called a flashover. Tree trimming or line clearing does 
something similar, put out lines or starts fires.
    This is a flashover on a low-voltage line, 26,000 volts. 
The lines we are talking about are the lowest voltage 
transmission lines on our system of 69,000. Three times that, 
138,000 and 230,000 are the two most frequent lines that cross 
the country, and we have a 500,000-volt line.
    Now the ball of fire gets bigger. And I do not know if it 
is arithmetic or what, but it is bigger as the voltage goes up. 
This is not a wolf cry. This is real. We lost 20-square miles 
of very valuable habitat in San Diego County, due to a fire 
from poor maintenance.
    Our HCP is avoidance-based and it is habitat-based. It is 
not species-based like the act, itself. We put aside large 
numbers of acres. We have put our rights-of-way into preserves. 
Concerning our protocols, we completely changed the corporate 
culture, adopted new protocols for people who work in the 
field. They have to do things differently than they have 
historically.
    And I would say, at this point, I think SDG&E is probably 
the most environmentally-sensitive electric utility company in 
the United States, in the way that they do their maintenance 
and their new construction. I have a list of these kinds of 
protocols they must comply with, if you are interested.
    Certainty and comprehensive are the two key words. There is 
no certainty with your HCP. The Quino checkerspot came along. 
Our HCP is now nearly useless. We can not use our access roads. 
We can not wash our insulators. We can not trim the trees.
    It is not comprehensive. If another species comes along, 
even though it is habitat-based, it should be protected, as 
long as it lives in that habitat, but it is not.
    So what kind of things could we do to change that? One is 
that if you have a habitat-based HCP, anything that lives in 
there is afforded the same protection. And it ought to be 
included, unless it can be proved otherwise that there is 
special danger to it.
    But more important would be a separate career path for the 
Fish and Wildlife Service personnel that are managing HCPs, not 
the field biologists. Their charge is to go out and heroically 
protect those things that are on the brink of extinction, not 
to issue a take permit, as philosophically opposed to that. 
People with the broad view and the long view are needed to 
manage HCPs.
    Can I keep going on? I have a red light. But I would love 
to go on.
    Senator Crapo. Well, we probably should conclude with that. 
Your written testimony has been carefully reviewed.
    I will ask a few questions of the panel at this point. We 
thank you all for your testimony.
    I would like to start with you, Mr. Willey. You mentioned 
during your testimony that you hired Dr. Dennis Murphy to 
develop your HCP. And Dr. Murphy, of course, testified before 
this subcommittee in July on the question of the science of 
HCPs. I am assuming that your plan has been through a rigorous 
scientific examination, by not only Dr. Murphy, but others.
    The question is, is the Fish and Wildlife Service's basis 
for not approving your plan based on a problem with the 
science, or have they elaborated a reason for why they have not 
approved the plan?
    Mr. Willey. They did not elaborate a reason. And as I 
mentioned in the testimony, they never gave us any comments in 
writing, whatsoever.
    The comments that we did get from them were verbal and 
sporadic. They ranged from, ``this entire hill is habitat,'' to 
Dr. Murphy, ``you do not know how to count butterflies.'' This 
literally was said to Dr. Murphy.
    Senator Crapo. So at this point, you do not really have an 
understanding of exactly why the delays have occurred or why 
the approval has not been received?
    Mr. Willey. No. I have suspicions, but I have never been 
told. But, yes, our plan, which is right here and costs 
$300,000 to produce, before we even rang the doorbell over at 
Fish and Wildlife, was put together by H.T. Harvey and 
Associates and Sycamore Associates, and reviewed by Dr. Murphy 
and Dr. Ray White and Alan Lonner, the real experts on this 
species in the world. And it was good science. It was a good 
plan.
    Senator Crapo. Can you tell me how much it has cost Presley 
Homes to this point to develop the HCP?
    Mr. Willey. Half a million dollars, so far.
    Senator Crapo. And review with me, again, the amount of 
delay you have incurred.
    Mr. Willey. Well, we have made our formal application and 
submitted the draft HCP in October 1998, and presented it in a 
formal meeting in November 1998. We began grading this summer 
and were stopped after just a couple of weeks of grading. But 
the Service waited until we were out there actually doing work 
before they stopped us.
    Senator Crapo. Mr. Willey, many builders are small volume 
builders. They build between 10 and 25 homes a year or less. Do 
the concerns that you have outlined in your testimony apply 
across the board to small operations like that?
    Mr. Willey. Oh, absolutely. I could not imagine myself 
being a small volume builder, or worse yet, a private landowner 
who has had some land in the family for a few generations, and 
want to develop my property. I can not imagine somebody having 
to go to the Fish and Wildlife Service and go through the maze 
there.
    The private landowners, would not only have the money to do 
the types of mitigations that are demanded these days, but they 
would not be able to afford the scientific help to even get 
started.
    Senator Crapo. Thank you very much.
    Ms. Fox, as you stated, Douglas County is making enormous 
investments in a county-wide HCP. Would the county consider 
these investments without the assurances provided in the ``No 
Surprises'' rule?
    Ms. Fox. That is something that we have been concerned 
about, all along. I think that it would be very difficult for 
us to move forward without those assurances.
    Senator Crapo. You also indicated in your testimony that 
the NEPA costs were in the context, as you viewed them, 
essentially as an unfunded mandate. The cost of the agency's 
compliance with NEPA is being borne by the county.
    Could you elaborate on that?
    Ms. Fox. I think our biggest fear is that after we have 
spent a lot of money, to get to a point where we are 
negotiating our habitat conservation plan with the Fish and 
Wildlife Service, and that if we get to a place where we are 
agreeable, and the Fish and Wildlife Service says, ``Well, this 
is great, but we can not issue your permit, because we can not 
afford it.'' They do not have the money or the resources to pay 
for NEPA compliance. Then the county will have to come up with 
the additional funds.
    The county commissioners would have a pretty hard time 
justifying that, after we have already gone through an 
extensive amount of time and negotiation and cost to our 
taxpayers.
    Senator Crapo. I think that is understandable.
    I happen to have a constituent in Idaho who owns a ranch in 
Colorado, where his elderly mother resides. And that ranch is 
on the market and happens to be habitat for the Preble's meadow 
jumping mouse.
    A few months ago, an offer was made on the ranch, and 
subsequently withdrawn, because the buyers were concerned about 
the presence of the mouse.
    And although I do not know whether this ranch is located in 
Douglas County, I am wondering if the HCP that your county is 
developing would provide assurances to potential buyers that 
they would not be required to undertake burdensome conservation 
measures to protect the mouse, increasing their level of 
confidence in purchasing the property.
    In other words, if this ranch were in Douglas County, would 
the HCP that you are working on help them to be able to provide 
the necessary assurances to a buyer?
    Ms. Fox. One of the things that the county commissioners 
were very concerned about when we launched into this process 
was to do some things that not only covered the county's 
activities, such as building roads and bridges and trails. We 
have a significant amount of rural landscapes in the county and 
ranches. The county commissioners have a strong ethic toward 
agriculture. We wanted to include agricultural activities into 
our habitat conservation plan.
    So we are working with private entities, developers and 
others to work on the development of our habitat conservation 
plan, to make it acceptable to a wide variety of people, and 
take into account other activities besides just our county 
activities.
    Senator Crapo. OK, good.
    Mr. Moore, could the Clark County Desert Conservation Plan 
be used as a model for HCP species in other parts of the 
country, or is this also uniquely different in terms of the 
circumstances that we can not identify model aspects of 
projects such as this?
    Mr. Moore. That is a good question. The term model HCP has 
been used and thrown around quite freely by many of the 
different plans that have been successful in the past.
    The Clark County plan is unique in that the funding 
mechanism for the plan, very early and up front, was the same 
issue, if you will, that caused the listing in the first place. 
That is the rapid development and loss of habitat, also created 
the successful funding mechanism for the development of the 
plan. That is the imposition of impact fees on the private 
property owner that wanted to develop his or her land.
    On the whole, the Clark County HCP, I think, is somewhat 
unique in that both the species requirements, the fact that 
most of the species, the desert tortoise, existed on public 
lands, not private lands, allowed for a pretty flexible 
negotiation process with the Fish and Wildlife Service in terms 
of the mitigation would not be placed on the backs, if you 
will, of the private property owner, but would take place on 
public lands; that is, largely BLM owned and managed landscape.
    So there are components of the Clark County HCP, I think, 
that can not be duplicated elsewhere. But there are lessons 
learned, I think, that can be. And that is the fact that the 
Clark County HCP is recognized as one of the leaders in terms 
of public participation early and up front, which takes away a 
lot of the resistance at the latter part of HCP development.
    It definitely lengthens the process. And if you do not have 
the luxury of a funding mechanism to pay for that process, then 
a lot of public participation is probably not a desirable 
aspect of HCP development, especially for a smaller private 
property owner.
    Senator Crapo. I was interested in the lessons learned 
section of your written testimony and your presentation today 
with that point.
    You indicate that the resistance to the proposed mitigation 
measures was effectively diffused by the large amount of public 
input. Could you elaborate on that?
    I am interested in finding a common approach that could be 
modeled in other areas. Public participation is an area in 
which I have a significant amount of interest because I am 
concerned about the way we go about it under our environmental 
laws today.
    How did you do it there, and what made it so effective?
    Mr. Moore. Well, we did it by identifying not only those 
stakeholders that would be impacted by desert tortoise habitat, 
a take on tortoise habitat--those whose private property is 
actually within the critical habitat designation, but also 
those stakeholders that would be affected by the proposed 
mitigation strategies on public lands, which was not private 
property.
    So we adopted essentially a ``y'all come'' scenario. The 
meetings were open to everybody. The only requirement was that 
if you come in, you come in informed. Do your homework; read up 
on what has taken place before. Still, there was a lot of 
venting up front, a lot of tension.
    The meetings were frequent. We tried to distribute the 
meetings throughout the day, so that people that worked during 
the day could attend some meetings at night because the Las 
Vegas Valley or Las Vegas community is essentially a 24-hour 
town. There are three shifts of people operating at all times. 
We had to make sure that the key landowners or key stakeholders 
in the process had the opportunity to participate.
    One of the difficulties in that scenario, however, is the 
cost associated with participation over a long period of time. 
The thing that brought people to the table and kept them there 
was essentially the balance of terror. It was the belief, or 
the fear, that if they were not there, that something was going 
to be negotiated that they would not have a say in.
    So a lot of people, especially the smaller landowners, the 
small miners, OHV recreationists, who did not actually own the 
private property that affected livelihood or their recreational 
interests, all participated as much as they could.
    In fact, at times, the livestock ranchers dropped out of 
the process, because they did not see a benefit to themselves 
early on.
    Clark County essentially went out and hired an attorney 
known for her adoption of western land use issues, Karen Budd-
Falen. They hired her to represent the livestock interests. It 
was incumbent upon her to go out and solicit input from the 
ranchers and miners and other people that could not participate 
on a daily basis or on a monthly basis, and bring those 
interests to the meetings.
    Senator Crapo. Who was in charge of handling the meetings?
    Mr. Moore. Paul Selzer, the facilitator for Clark County, 
was hired by Clark County because of the success that he had 
had in negotiating the Coachella Valley, development.
    Senator Crapo. And did the Federal agencies involved 
attend?
    Mr. Moore. Yes, definitely, they were all ex officio 
members, from the State, Federal, and local government levels.
    Senator Crapo. How were decisions made? Was a consensus 
process followed?
    Mr. Moore. It was a consensus-based process. Many times, 
you know, we just talked issues out until either people were 
just brain dead or could not argue any more, or did not feel 
strongly enough or impassioned enough in their opposition to 
continue the arguments against a particular direction that we 
were taking.
    Senator Crapo. Then once those decisions were reached--
which Federal agency were you dealing with, in terms of the 
HCP?
    Mr. Moore. It was the Fish and Wildlife Service.
    Senator Chafee. Fish and Wildlife?
    Mr. Moore. Yes, Sir.
    Senator Crapo. How was Fish and Wildlife convinced to agree 
with the consensus that was reached in the meetings?
    Mr. Moore. Well, we were somewhat lucky in our scenario, in 
that the Service was an active participant. They still were 
straddling the NEPA regulations--they cannot pre-decide a 
policy or a decision, based on an application for an incidental 
take permit.
    They could provide the sideboards during the process and 
kind of tweak the process along the way, and let people know if 
they were heading off in the wrong direction.
    Also, we had the benefit of a recovery plan, which took 
kind of the big-picture approach of habitat-based conservation 
planning. So the service was engaged.
    For the development of the short-term plan, there was a 
consistent representation, not only in terms of the staff that 
were participating, but also in terms of the policy that was 
being forwarded by the Service to the committee.
    I have heard a continous strain throughout the discussions 
of various HCPs today--consistency in representation and 
consistency in commitment to policy guidelines that the Service 
representatives bring to the table is essential to negotiating 
an agreement that works.
    Senator Crapo. But if I understand it correctly, though, 
the Service effectively let the process work, and to the extent 
consistent with the legal requirements it was working under, 
accepted the recommendations or the consensus that was 
developed.
    Mr. Moore. Absolutely, and I think the reason behind that 
was that they had enough foresight to see that if they did not 
let the process run its course, if they did not let all the 
stakeholders have their say and have some input in terms of 
deciding how this negotiation was going to occur, and what the 
provisions in terms of the conservation proposal and the 
mitigation requirements was going to be, that they would get 
hammered at the end product. A big document would be produced 
at considerable cost, but it would lay on a shelf, b