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Flood of HCPs Raises Questions

Habitat conservation plans, the agreements used to broker deals on land where endangered species are found, are likely to be the central battleground for biological diversity over the next decade. With more than 200 HCPs approved since the Clinton administration took office in 1993 and 200 more in the pipeline, the agreements are coming under fire from environmentalists - and their lawyers - who are clamoring for better scientific scrutiny, more solid funding sources and increased citizen input. "I'm not against HCPs," says Peter Galvin of the Southwest Center for Biological Diversity. "But they have to be done right."

How to do them right remains the question. Formal debate began with a case successfully argued by prominent wildlife attorney Eric Glitzenstein, which forced U.S. Fish & Wildlife to issue a regulation formalizing a controversial element of the HCPs - the "no surprises" policy. The policy assures landowners that they will not have to provide any more land or money than called for under the HCP, even if new scientific evidence shows that species are declining, either because of changing conditions or flaws in the plan. The final rule on the policy took effect March 25.

The debate continues as legislators consider two alternative revisions to the Endangered Species Act. Idaho Senator Dirk Kempthorne's revision, S. 1180, codifies many of the practices now being used in HCPs, including the no surprises policy. Rival ESA bill H.R. 235, put forward by California Representative George Miller, contains many of the landowner incentives found in the Kempthorne bill but also has strong provisions for citizen input and scientific review of HCPs.

The 1982 amendment to the Endangered Species Act that made HCPs possible was suggested by two California real estate attorneys working for a Bay Area developer. Steve Shimberg, who now works for the National Wildlife Federation, was on the staff of the Senate Environment and Public Works Committee in 1982, when the lawyers came to him with a proposal to protect a chunk of land on San Bruno mountain outside San Francisco if the rest of it could be developed without interference.

Shimberg thought this might be a good idea, but insisted on strengthening protection for the mountain's mission blue and callippe silverspot butterflies. What resulted is Section 10 of the ESA, which allows endangered animals or plants to be killed in exchange for protection and management in other parts of their habitat. An HCP is a mandatory, stakeholder-negotiated, public-private planning document that outlines the conditions under which this exchange can take place.

"HCPs were supposed to contribute to recovery of the species, to be a net gain for species, not a net loss," says Shimberg. "But now, they (U.S. Fish & Wildlife) say if you're not jeopardizing the species, that's enough. They seem so gun-shy that they'll do anything to keep the developer from complaining."

Last year, the National Science Foundation and the American Institute for Biological Sciences funded a team of 119 graduate students and professors from eight universities to evaluate 206 HCPs. Their findings echoed Shimberg's critique. One problem they found is that adequate research to support the plans often doesn't exist. The other was that even when good science is available, it is often eclipsed by politics.

"There are a huge number of HCPs that probably should not have been written," says the University of Washington's Peter Kareiva, who organized the study. "On the other hand, people have said there's no science in HCPs and that's just not the case. Where the information exists maybe half get the science pretty well."

Eric Glitzenstein believes that the emphasis on habitat conservation plans obscures the fact that U.S. Fish & Wildlife is simply failing to enforce the Endangered Species Act's prohibition on destroying habitat, which has been legally defined as a prohibited "take" of species. "They've never tried to enforce in any meaningful way the provision against taking (or harming) species on private land," says Glitzenstein. "Imagine trying to enforce the Clean Water Act by telling people we won't enforce any action on what comes out of the pipes, it's all voluntary. Do we offer people incentives to comply with criminal laws? The ESA should be like other laws, not the bastard stepchild of environmental law."

To see the federal register go to www.access.gpo.gov/su_docs/aces/aaces002.html

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