Endangered species mitigation banking: promoting recovery through habitat conservation planning under the Endangered Species Act

I. INTRODUCTION Few laws have fallen as short of their goals as the Endangered Species Act (ESA).(1) The ESA, the pit-bull of environmental legislation,(2) seeks to conserve species.(3) In a narrow sense, the ESA has successfully conserved some species by delaying their otherwise imminent extinction.(4) However, one of the ESA's broader goals -- the of listed species -- has gone unmet.(5) In the ESA's nearly three decade existence, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) - the federal agencies with primary responsibility for implementing the ESA - have listed over seven hundred species as or threatened.(6) But the agencies have de-listed only six species for recovery.(7) If is the ESA's ultimate objective, the Act has failed miserably. Political opposition to the Act's restrictive effect on land development, meanwhile, has mushroomed.(8) Since the early 1980's, private landowners have felt the impact of [subsections] 9 of the ESA.(9) Section 9 prevents landowners from unlawfully taking endangered species.(10) Organized groups representing private landowners are now lobbying Congress for an amendment to the ESA requiring the government to compensate landowners whose property is rendered less valuable because of the Act.(11) Many environmental groups are concerned about the impact of these efforts on the Act's on-going, and often stalled, reauthorization process.(12) Meanwhile, in the current political climate, the prospect of strengthening the ESA by amendment is nearly unthinkable. However, the FWS can initiate reforms without further statutory authorization that could improve the prospects of many listed species. This Article suggests that by consistently demanding stringent mitigation measures in high acreage, or regional, habitat conservation plans (HCPs), the FWS could significantly further the of many listed species. Frequently drafted by interested landowners and local government entities, HCPs are legally binding plans that specify, in part, those measures a party must take to minimize the impacts of its proposed actions on a listed species. Section 10 of the ESA allows the FWS to issue an incidental take permit if an applicant's HCP would not reduce appreciably the likelihood of the listed species' survival and recovery.(13) An incidental take permit typically allows the permittee to develop some portion of a listed species' habitat in exchange for the permitee's setting aside of other habitat and engaging in other protective measures.(14) The legal key to expansion of the HCP is to interpret survival and recovery in 16 U.S.C. [subsections] 1538 as synonymous terms. The FWS currently interprets survival and recovery chronologically.(15) To the FWS, survival refers to a species' short-termpersistence, and recovery, to long-term persistence. Instead, the FWS should interpret survival and recovery as involving the same goal: the long-term persistence of a listed species. This alternative interpretation is consistent with the science of conservation biology. FWS implementation of this Article's recommendation would result, through the formulation and implementation of regional HCPs, in the establishment of large habitat preserves and the adoption of other recovery-promoting practices. Thoughtfully delineated habitat preserves, together with other species-specific management actions, are crucial to the prospects of most species.(16) Part I of this Article briefly describes the statutory foundation for HCPs and explains how the FWS has implemented this statutory scheme. Part II discusses the statutory foundation for planning and explains how the FWS has implemented the mandate. Part III discusses how plan implementation and HCP formation can be integrated, and rebuts possible legal challenges to this proposed integration. …

Endangered species conservation on private land: Assessing the effectiveness of habitat conservation plans

Public attitudes toward threatened and endangered species and management options in the Southeastern United States

ABSTRACTOver half of the endangered species in the United States depend on private lands for habitat. In 1982, Congress amended the Endangered Species Act (ESA) to address the conservation of endangered species on private lands through the introduction of Habitat Conservation Plans (HCPs). HCPs enable landowners to comply with the ESA and can foster creative partnerships between the federal government and local stakeholders. Researchers have investigated the scientifically biological merits of HCPs, but comparatively little attention has been given to social aspects despite an emphasis on stakeholder involvement in HCPs. We explore stakeholder perceptions of HCP development through 19 semi-structured key informant interviews. Findings include the influence of interpersonal themes, shared understanding and capacity on process outcomes, and the importance of the external context in which HCP development occurs. Our research highlights the central role of understanding social dimensions to achieve the desired outcomes from collaborative conservation planning processes.

This article presents a theoretical framework and empirical evidence on the relationship between regulatory uncertainty induced by the possible invasion of an endangered species—the red‐cockaded woodpecker (RCW)—and timber harvesting. The results indicate that landowners whose forests are close to a known or perceived RCW habitat have a high propensity to cut timber and use a clear‐cut method. These preemptive actions are apparently aimed at destroying potential RCW habitat so that the existing values of their property could be protected from the Endangered Species Act (ESA)–related land use limitations.

Habitat conservation plans (HCPs) permitted under Section 10(A) of the federal Endangered Species Act, have been increasingly used to overcome conflicts between urban development and species conservation. This article profiles one such HCP, the Coachella Valley (CA) Fringe-Toed Lizard Habitat Conservation Plan. The second HCP officially approved by the US Fish and Wildlife Service, the Coachella Valley case is frequently cited as a model for resolving conservation and development conflicts. The article begins with a discussion of the use of HCPs, and then provides a detailed discussion of Coachella Valley experience, its history, specific provisions, and success to date. A final section examines whether Coachella Valley does in fact represent a positive model. It is argued that the HCP has been less than fully successful and leaves unresolved a series of fundamental ethical and policy questions concerning the protection of endangered species.

I. INTRODUCTION II. STATUTORY REQUIREMENTS FOR EFFECTIVE PUBLIC DELIBERATION ARE LACKING III. THE CURRENT INSTITUTIONAL STRUCTURE IS INADEQUATE TO ACHIEVE TRUE PUBLIC DELIBERATION IV. PUBLIC PARTICIPATION IN THE BALCONES CANYONLANDS CONSERVATION PLAN: A CASE STUDY V. EMPOWERED PARTICIPATORY GOVERNANCE IN HCPS CAN RESULT IN GOAL ATTAINMENT, DEMOCRATIC LEGITIMACY AND PROMOTE STEWARDSHIP VI. CONCLUSION: RECOMMENDATIONS FOR REVISING THE HANDBOOK I. INTRODUCTION Habitat Conservation Plans (HCP's) have become more commonplace as vehicles that allow private landowners to conduct development projects on non-federal lands that otherwise would have been prohibited if the project was likely to cause the taking of endangered or threatened The Endangered Species Act (ESA) [section] 10 was amended in 1982 to allow for protection of endangered or threatened species on private lands that were increasingly targeted for development. The goal of habitat conservation plans is to provide collaborative partnerships between the public and private sectors in preserving species and their habitats. (1) The success of this model in balancing the preservation of species and development on non-federal land remains questionable. Several factors that hinder the success of HCP's have been identified, particularly in large multi-species conservation plans (MSCP). (2) These factors include the type of applicant, land ownership patterns, the extent to which HCP's affect the local economy, and public participation. (3) Of these factors, a well managed public participation process has the potential to provide significant benefits to applicants, U.S. Fish and Wildlife Service (FWS) staff, outside stakeholders and affected species. (4) Effective public participation and deliberation is identified as one of the most important elements to a plan's ultimate success. The importance of public deliberation to the success of large MSCP's was recently underscored in Southwest Center for Biological Diversity v. Bartel, where a U.S. District Court enjoined the defendants from implementing an incidental take permit first granted in 1997. (5) The lack of public deliberation on appropriate mitigation measures and funding assurances was one of the principal reasons for the court's order. (6) Public deliberation is defined as a dynamic process in which the ... [s]takeholders share information with each other about their interests, concerns and ideas. (7) The sharing of information in a manner that achieves meaningful participation requires: 1) applicants to solicit and incorporate public participation during the planning process, 2) that all parties communicate expectations of how public input will be used in the planning process, and 3) creating an environment of trust in which the parties can work together to formulate creative, acceptable solutions to problems. (8) Public deliberation is beneficial because it improves the quality of an HCP, builds long-term public support for it, provides a measure of success during the planning process and supports the Congressional goal of creating partnerships between federal agencies and private landowners in facilitating mutually supported mechanisms for both development and species preservation. (9) Yet, the complexity of fostering public deliberation in large MSCP's is often viewed as an impossible, inefficient and even illegal process. (10) The process of developing an is governed by the Endangered Species Act [section] 10, a basic no frills regulation codified in 50 C.F.R. [section] 17.22(b) and the detailed guidelines set out in the HCP Handbook, an internal guidance document. However, the regulatory framework created by these sources is too linear and reductionistic to meet the complex goal of balancing the preservation of species and economic development, much less than to meet the goal of facilitating public deliberation. …

The ocelot (Leopardus pardalis) is a wild cat distributed from the southern U.S. to northern South America. In the U.S., ocelots are classified as endangered, and breeding ocelot populations are only found in Texas—a state composed of mostly private lands. Ocelot recovery in the U.S. depends on successful conservation actions on private lands. Unfortunately, throughout the history of the Endangered Species Act (ESA), listed species conservation on private lands has often been plagued by poor landowner participation due to fear of ESA regulations impacting land use. Here, we examine an effort to accelerate the recovery of the ocelot by reintroducing the endangered cat to private lands within its historic range in Texas. The case study of the planned ocelot reintroduction on private lands in Texas, combined with review of literature on ESA implementation on private lands, has illustrated key factors for enabling private landowner engagement in threatened and endangered species recovery. Such factors include providing financial incentives and regulatory assurances to landowners, connecting to landowners’ intangible motivations to conserve wildlife, meeting the practical needs of conservation project implementation while still giving landowners autonomy over the effort, maximizing landowner comfort with a conservation program, and allowing participation to be nonpermanent and adaptable. Over the next 50 years of ESA implementation, these will be important considerations for accelerating species sustainment and recovery efforts on private lands.

Telephone interviews were conducted during summer of 1998 to evaluate the process of Habitat Conservation Planning (HCP) under the Endangered Species Act in 11 cases, of which five were in the southern states (Georgia, North Carolina, Louisiana, Texas, and Alabama), one in Montana, and the remaining five were in the Pacific Northwest (Oregon, Washington and California), USA, to understand better how private and public rights regarding privately held forest resources might be integrated and balanced. Results showed that there was a considerable involvement of specific stakeholders in HCP. The private landowners and timber companies were part of a pioneering group seeking to integrate economic and conservation decision making with the Services through HCPs. The non-Service HCP participants played various roles, the two most common of which were the development and management of data and technical information, and providing guidance and review services. Variability was also found regarding how different HCPs integrated multiple interests and negotiated final agreements, and the three different decision making strategies were using previous experiences in other plans to help them outline their expectations, information and options between the Service and the permit applicant, and face-to-face negotiation. Two very specific participant concerns expressed by applicants were Service bureaucracy and an absence (in some cases) of Service leadership and facilitation.

Conservation Biology and Private Land: Shifting the Focus

For more than 50 years, the United States (US) Endangered Species Act (ESA) has contributed to the protection, survival, and recovery of numerous species including gray wolves (Canis lupus), grizzly bears (Ursus arctos horribilis), whooping cranes (Grus americana), and spotted owls (Strix occidentalis). Recovery efforts by US federal agencies have largely focused on these well-known, charismatic species. As a result, lesser-known species have often been given lower priority and limited funding. An additional challenge to species recovery has been that ~ 50% of listed species have at least part of their habitats on private lands. Private landowners have sometimes viewed contributing to species recovery as an infringement on property rights. The Preble’s Meadow Jumping Mouse, Zapus hudsonius preblei, (PMJM) is a riparian specialist that serves as an indicator species for the ecological integrity of first and second-order watersheds in the Rocky Mountain region of the US. In 1998, PMJM was listed as a threatened species by the US Fish and Wildlife Service (USFWS). The listing process was prolonged by numerous lawsuits. After two different recovery teams and 21 years to produce a Recovery Plan, the USFWS recognized the need for a different approach to listed species recovery. The result, in 2019, was the establishment of the first Site Conservation Team (SCT) by the USFWS. This new SCT model uniquely combined: community-based participation and collaboration, private landowner leadership of process development and conservation action, extensive community outreach, a scientific foundation, and emphasized watershed health. The establishment of SCTs to address species conservation marked a new era taken by the USFWS. Herein we discuss the PMJM SCT located within the North Fork of the Cache la Poudre River watershed (North Fork SCT) in Northern Colorado. We identify conditions that enabled the new approach, describe the collaborative process, report how community engagement can address fears and lead to shared understanding of environmental benefits, and result in restoration actions that contribute to the species recovery. The North Fork SCT successfully nominated a recovery population nomination, developed a comprehensive conservation plan, and initiated restoration on 102 stream miles of potential habitat for approximately 4,000 PMJM individuals.

Worldwide human population expansion and rising standards of living place increasing pressure on wildlife populations and their habitats. Conflict regarding conservation and preservation of endangered species is among the greatest challenges of the 21st century. Endangered species management on private lands magnifies the problems encountered by natural resource policy-makers and managers. Given that conservation of endangered species increasingly depends on securing cooperation of private property owners in local communities, understanding how to secure that cooperation is important. We used an ethnographic approach to critically review the Habitat Conservation Plan (HCP) processes used in attempts to develop regional HCPs to benefit the Houston toad (Bufo houstonensis) and the Florida Key deer (Odocoileus virginianus clavium; hereafter, Key deer). In both cases, the process was framed as a search for the optimum solution through collaboration and consensus building, and in neither case was the ...

More than 75% of endangered species in the United States rely on private lands for habitat. Although this habitat has long been regulated under the Endangered Species Act, there is now broad agreement that economic incentives are also needed for effective protection on private land. Many different mechanisms for incentive programs have been proposed and tested. For example, recovery credit systems use term‐duration market‐based contracts to engage landowners in endangered species conservation. We examined how market‐mechanism design influences interest in endangered species habitat conservation using a survey of North Carolina Farm Bureau county advisory board members in 93 of the 100 North Carolina counties (n = 735) in 2009. Respondents preferred contracts (57% were interested) over easements (39% were interested). Endangered species conservation ranked low in importance relative to other conservation issues, but 45% of respondents were interested in contracts to conserve endangered species habitat on their property. The preferred contract duration was 10 years, and respondents preferred state‐ and agricultural‐related organizations over federal and wildlife conservation‐related organizations for managing contracts. Younger respondents, respondents who had previously participated in conservation programs, respondents who perceived endangered species conservation as important, and respondents who had lower property‐rights orientation scores, were most likely to be interested in contracts to restore and maintain endangered species habitat on their lands. Our results suggest that market mechanisms could drive down costs and drive up durations for endangered species habitat conservation contracts. Further, term contracts may prove critical for endangered species conservation efforts that require high levels of landowner support and spatial flexibility within relatively short‐time frames. © 2012 The Wildlife Society.

The North American prairie ecosystem is under threat from urbanization, agriculture, oil and gas extraction, and climate change. Biodiversity loss is on the rise and while the United States has a national law in place to protect endangered species across all land parcels, Canada does not. The province of Saskatchewan presently has no stand-alone legislation for endangered species. The province, however, has signaled a willingness to create legislation. Using qualitative and quantitative data from urban residents and rural landowners, this article argues that the province would be well served to heed lessons from 40 years of conservation history in the United States. The amendments to the American Endangered Species Act suggest that it is necessary to incentivize landowner cooperation, particularly when dealing with agricultural landowners. The article concludes that Saskatchewan should emulate the American policies of Safe Harbor Agreements and Habitat Conservation Plans with “no surprise” policies.

An analysis of economic incentives in wetlands policies addressing biodiversity