Participants' experiences with habitat conservation plans and suggestions for streamlining the process

Ecology Law Quarterly

Volumn 23, Issue 2, 1996, Pages 369-446

  Lin, Albert C ^a  

^a NONE

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EID: 21344463712     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (386)

1. See, e.g., Valerie Richardson, Bickering Follows Endangered Species Hearings into Field, WASH. TIMES, Apr. 17,1995 at A4 (reporting a Democratic congressman's criticism that hearings have been loaded with "cockamamie stories" and anecdotes about how the ESA has wreaked havoc on people's lives).
2. See U.S. FISH AND WILDLIFE SERVICE, STATUS OF HABITAT CONSERVATION PLANS (Sept. 30, 1995) [hereinafter USFWS SPREADSHEET].
3. See infra part IV for a discussion of the benefits of HCPs.
4. USFWS SPREADSHEET, supra note 2.
5. The median is calculated from data contained in the USFWS SPREADSHEET, supra note 2.
6. Id.
7. Id.
8. Id. See also infra part II.B. for a discussion of basic facts and statistics on HCPs.
9. U.S. FISH AND WILDLIFE SERVICE, PRELIMINARY DRAFT HANDBOOK FOR HABITAT CONSERVATION PLANNING AND INCIDENTAL TAKE PERMIT PROCESSING (1994) [hereinafter DRAFT HANDBOOK]. The DRAFT HANDBOOK is discussed in infra parts II.C.2 and VI.C.
10. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified at 16 U.S.C. §§1531-1541 (1988)). The "literature contains many fine general discussions of the ESA. See, e.g., BALANCING ON THE BRINK OF EXTINCTION (Kathryn A. Kohm ed., 1991); DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION (1989);
11. Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277 (1993).
12. 16 U.S.C. §1531(a)(2), (b) (1985).
13. The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" with respect to a protected species. 16 U.S.C. §1532(19) (1985). For further discussion, see infra part U.C. In this Comment, as in the ESA literature generally, the terms "take" and "taking" of listed species are used interchangeably.
14. The ESA defines person as "an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision thereof, or of any foreign government." 16 U.S.C. §1532(13) (1985). Although it has been held that a city does not fall within the ESA's definition of "person" because it is a political subdivision rather than an instrumentality, the Act clearly applies to employees, departments, and instrumentalities of cities. United States v. City of Rancho Palos Verdes, 841 F.2d 329, 330 (9th Cir. 1988).
15. See Endangered Species Act, Pub. L. No. 93-205, 87 Stat. 884 (1973).
16. The Section 7 inquiry focuses on whether a proposed agency action will "jeopardize" the continued existence of a species or result in the destruction or adverse modification of critical habitat. 16 U.S.C. §1536(a)(2) (1985). A take approved under this process is classified as incidental and is cleared from the ESA's prohibitions against any taking. Richard E. Webster, Habitat Conservation Plans Under the Endangered Species Act, 24 SAN DIEGO L. REV. 243, 246 n.24 (1987).
17. This responsibility is delegated by statute to the Secretary of the Interior. 16 U.S.C. §1532(15) (1985). The Secretary of Commerce, through the National Marine Fisheries Service, has jurisdiction over certain species by agreement with the USFWS. 16 U.S.C. §1533(a)(2) (1988); 50 C.F.R. §17.2(b) (1977).
18. 16 U.S.C. §1536(a)(2).
19. 50 C.F.R. §402.02.c (1986).
20. H.R. REP. No. 835,97th Cong., 2d Sess. 29 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2870.
21. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411 (1982).
22. Id.
23. See MICHAEL J. BEAN ET AL., RECONCILING CONFLICTS UNDER THE ENDANGERED SPECIES ACT: THE HABITAT CONSERVATION PLANNING EXPERIENCE 52-55 (1991) (describing the land use battle over San Bruno Mountain and the subsequent habitat conservation planning process).
24. Id. at 55.
25. H.R. REP. No. 567, 97th Cong., 2d Sess. 15 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2815; H.R. REP. No. 835, 97th Cong., 2d Sess. 29 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2870.
26. DRAFT HANDBOOK, supra note 9, at 18; H.R. REP. No. 835, 97th Cong., 2d Sess. 29 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2870.
27. See 16 U.S.C. §1531(b) (1985).
28. 16 U.S.C. §1539(a)(1)(B) (1985).
29. 16 U.S.C. §1539(a)(2)(B)(iv) (1985).
30. 50 C.F.R. §17.22(b)(1)(iii) (1985). It is the USFWS' view that no provision of the ESA or its implementing regulations requires that an HCP result in a net benefit to affected species; the Section 10(a) standard merely requires a "no jeopardy" finding. DRAFT HANDBOOK, supra note 9, at 30. Some commentators have criticized the USFWS for this "cramped reading" of its own authority to require mitigation. See, e.g., Melinda E. Taylor, Promoting Recovery or Hedging a Bet Against Extinction: Austin Texas' Risky Approach to Ensuring Endangered Species' Survival in the Texas Hill Country, 24 ENVTL. L. 581, 594 (1994) (noting that USFWS could require mitigation, as Section 10(a) requires an applicant to "minimize and mitigate the impacts of the taking," but chooses to adopt only a narrow "jeopardy" standard).
31. 16 U.S.C. §1539(a)(2)(B)(ii) (1985).
32. DRAFT HANDBOOK, supra note 9, at 30.
33. U.S. DEPARTMENT OF THE INTERIOR FISH AND WILDLIFE SERVICE, WHAT'S ALL THIS STUFF ABOUT "HABITAT CONSERVATION PLANNING" AND "INCIDENTAL TAKE PERMITS"? Sept. 22, 1994 (Region 1 Handout) [hereinafter USFWS HANDOUT].
34. The length of time that an incidental take permit is valid will vary from one HCP to another, depending on the nature of the activity contemplated by the applicant. See DRAFT HANDBOOK, supra note 9, at 72-73; see also 50 C.F.R. §13.21(f) (1989) (indicating that the USFWS will set permit lengths).
35. See USFWS Handout, supra note 32.
36. 50 C.F.R. §17.22(b)(1)(iii)(A), (B) (1985).
37. DRAFT HANDBOOK, supra note 9, at 33.
38. Id. at 34.
39. 16 U.S.C. §1536 (1985). Although the Act requires the Secretary of the Interior to designate critical habitat when a species is listed, this step is often omitted. 16 U.S.C. § 1539(a) (1985); ROHLF, supra note 10, at 33-34; see Houck, supra note 10, at 303 (criticizing the USFWS for too readily resorting to "prudency" concerns to decline designating critical habitat in many cases). Furthermore, the statutory concept of critical habitat is generally limited to "specific areas . . . essential to the conservation of the species," a definition that focuses more on bare survival than on full recovery of endangered species. See J.B. Ruhl, Regional Habitat Conservation Planning Under the Endangered Species Act: Pushing the Legal and Practical Limits of Species Protection, 44 Sw. L.J. 1393, 1401-02 (1991).
40. 16 U.S.C. §1536(b)(4) (1985).
41. 16 U.S.C. §1536(b), (d).
42. The document that authorizes take under Section 7 is known formally as an "incidental take statement." This Comment uses the generic term "incidental take permit" when referring to the authorization of take for both Sections 7 and 10. Incidental take statements exempt an agency and its permittees from ESA prohibitions on take if they comply with the reasonable and prudent measures and the terms and conditions of such statements. U.S. FISH AND WILDLIFE SERVICE, DRAFT ENDANGERED SPECIES CONSULTATION HANDBOOK: PROCEDURES FOR CONDUCTING SECTION 7 CONSULTATIONS AND CONFERENCES 4-43 (1994) [hereinafter CONSULTATION HANDBOOK]. While the Section 7 incidental take statement and the Section 10 incidental take permit are based on the same definition of take (found at 16 U.S.C. §1532(19) (1985)), the criteria for their issuance varies slightly. The Section 7 incidental take is defined by three criteria: (1) involving no jeopardy or adverse modification; (2) resulting from otherwise lawful activity; and (3) incidental to the purpose of the action. Id. at 4-44. The Section 10 incidental take considers in addition the effect of mitigation measures. Id. at 4-52.
43. 16 U.S.C. §§1536(a)(2), (b)(4) (1985).
44. 16 U.S.C. §1536(b)(4).
45. 16 U.S.C. §§1536(a)(2), (g), (h) (1985); see generally CONSULTATION HANDBOOK, supra note 41.
46. DRAFT HANDBOOK, supra note 9.
47. Id. at 3-4.
48. Id. at 13-17.
49. Id. at 18-22. "Technical assistance" also includes helping potential applicants address such issues as: what the scope of the permit should be; who the applicant should be; who should be involved in the steering committee, if one is needed; and whether adequate biological information is obtained and considered. Id.
50. See infra part VI.A.2, for a discussion of the role of negotiations in the HCP planning and application process. The entire process of identifying participants to the negotiations is fairly unstructured. If a county is the applicant, for example, local government authorities may identify interests likely to be affected. Public hearings may also be held, at which other groups come forward. The USFWS may also suggest others who should be involved. DRAFT HANDBOOK, supra note 9, at 19-22.
51. A steering committee is a group of persons who represent affected interests in an HCP planning area and generally oversee HCP progress and development. See DRAFT HANDBOOK, supra note 9, at 19-20 (recommending use of steering committees and subcommittees to keep negotiations manageable and more efficient).
52. Id. at 19. For more discussion of steering committees, see infra part VI.B.2.a.
53. A completed application package consists of a permit application form, processing fee, proposed HCP, implementation agreement, draft National Environmental Protection Act (NEPA) document (if required), and a USFWS field office certification that it has reviewed the documents. Id. at 57.
54. Under Section 10(c) of the ESA and implementing regulations (see 50 CFR §§ 17.22,17.32(b)(1)(ii) (1985)), publication of a Notice of Receipt of a permit application in the Federal Register is required for each Section 10 permit application. NEPA requires Notices of Availability of an Environmental Impact Statement to be published in the Federal Register, and it is USFWS policy to publish a Notice of Availability for an Environmental Assessment as well. The notices must offer the public at least 30 days to comment on the documents. DRAFT HANDBOOK, supra note 9, at 68.
55. An Implementation Agreement is the contract that legally binds all parties to the requirements and responsibilities of an HCP and Section 10 permit. DRAFT HANDBOOK, supra note 9, at 86.
56. The Draft Handbook institutes a new administrative policy of granting a waiver of solicitor review for low-effect HCPs. Id. at 67.
57. NEPA applies to actions by federal agencies and requires the filing of a "detailed statement" for actions "significantly affecting the quality of the human environment." 42 U.S.C. §4332(C)(ii) (1988). The USFWS' issuance of an incidental take permit is a federal action requiring compliance with NEPA. DRAFT HANDBOOK, supra note 9, at 45.
58. Id. at 45-46.
59. Id. at 64.
60. Id. at 53-54.
61. Id. at 68.
62. Additional publication may be necessary if significant changes are made in the proposed project, HCP, or EA. Id. at 54.
63. Id. at 71.
64. Id. at 73-74.
65. Charles C. Mann & Mark Plummer, Is the Endangered Species Act in Danger?, 267 SCIENCE 1256, 1259 (1995).
66. Id.
67. Houck, supra note 10, at 293.
68. Id. at 302.
69. Id. at 346-47.
70. Maura Dolan, Endangered Species Act Battles for Its Own Survival, L.A. TIMES, Dec. 21, 1992, at Al.
71. See Daniel J. Rohlf, Six Biological Reasons Why the Endangered Species Act Doesn't Work - and What to Do About It, in ENVIRONMENTAL POLICY AND BIODIVERSITY 181, 184 (R. Edward Grumbine ed., 1994).
72. According to the USFWS' computerized database, between 1988 and 1993, only 126 violations of the ESA involving taking of a listed species within the U.S. were adjudicated. U.S. GENERAL ACCOUNTING OFFICE, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION, ENDANGERED SPECIES ACT: INFORMATION ON SPECIES PROTECTION ON NONFEDERAL LANDS 11, GAO-RCED-95-16 (1994) [hereinafter GAO REPORT]. During approximately the same period, USFWS law enforcement officials nationwide investigated just 321 cases of illegal takings of listed species on nonfederal lands and initiated 100 prosecutions. Id. at 12. USFWS enforcement officials must often rely on informants to catch violators, but witnesses are not always easily found. See The Law That Seemingly Pits Owls Against People and Jobs, L.A. TIMES, Jan. 3,1993, at M4 (op-ed noting that some landowners "stealthily" eliminate endangered species from their land before authorities learn of their presence).
73. For example, the 1990 filing of a petition to list the California gnatcatcher prompted developers to protest that such a designation would scuttle their development plans for thousands of acres of the country's most valuable real estate in Southern California. Ralph Frammolino, Irvine Co. Tries to Forestall Bid to Protect Bird, L.A. TIMES (Orange County Edition), Apr. 25, 1991, at Al. One representative of the building industry estimated that as much as 90 percent of undeveloped land in Orange County "could be affected in some way.
74. " Howard Fine, Developers Facing Protected Species Threat, ORANGE COUNTY Bus. J., Apr. 16, 1990, at 8.
75. Similar instances of landowners' decisions to destroy the individual members of the species or its habitat often precede the listing of a species. For example, one of the three known populations of the San Diego mesa mint was deliberately destroyed just prior to its 1978 listing in an attempt by the development company/landowner to avoid the restrictive effects of the ESA. Mann & Plummer, supra note 64, at 1258.
76. In February 1994, approximately 25 federal and state wildlife officials seized the tractor of Kern County, California farmer Tang Ming-Lin and charged him with disturbing the habitat of the Tipton kangaroo rat and other endangered species. Although Ming-Lin had apparently received warnings that protected species were on his land, the case became a rallying cry for local farmers and for property rights activists, who pointed to the incident as a prime example of the excesses of the ESA. Ming-Lin's case was publicized by radio talk-show hosts G. Gordon Liddy and Rush Limbaugh and also received attention on CNN and on the editorial pages of the Wall Street Journal. Todd Woody, Taking on Endangered Species: The Rat, the Farmer, and the Feds, LEGAL TIMES, July 24, 1995, at 8.
77. Numbers approved are one HCP in 1983, none in 1984-1985, two HCPS in 1986, none in 1987-1989, four in 1990, four in 1991, three in 1992, nine in 1993, sixteen in 1994, and forty five HCPs in the first nine months of 1995. USFWS SPREADSHEET, supra note 2.
78. Id.
79. Id. The streamlining efforts were instituted in hopes of sustaining a regional HCP planning process, the Balcones Canyonlands HCP, that has been underway for more than seven years. Randy L. Loftis, Austin Struggles To Balance Nature with Expansion; Plan To Simplify Land Permits Splits Federal Officials, DALLAS MORNING NEWS, July 3, 1995, at 1A.
80. USFWS SPREADSHEET, supra note 2. Some 200 timber companies are at various stages of HCP planning; at least one such company has cited the government's recent initiatives to increase regulatory certainty as a reason for the increased participation. Energy and Natural Resources Timber Industry: More Firms Adopt Plans for Habitat Care, GREENWIRE, Sept. 26,1995 (Vol. 5, No. 103), at 12. A complete list of approved HCPs and HCPs whose applications have been submitted, as of the end of 1994, is provided in Appendix E.
81. See USFWS SPREADSHEET, supra note 2.
82. See id. The large difference between the median and the average is due to the presence of a large number of small HCPs (58 HCPs of 100 acres or less) combined with the presence of a small number of HCPs of extremely large size (four HCPs are 250,000 acres or more). The average is driven up by these large "outliers." With such a skewed distribution, the median is a better estimate of what an HCP picked "at random" will look like, as most HCPs look more like the median HCP than the average HCP.
83. Complexity is a function of the number of species, geographic area, and ecological complexity. The USFWS categorization system is discussed in infra part III.A.
84. USFWS SPREADSHEET, supra note 2.
85. HCPs triggered by development were identified through interview data and information from newspaper accounts of individual HCPs. See supra notes 71-78 and accompanying text.
86. USFWS SPREADSHEET, supra note 2.
87. Id.
88. USFWS SPREADSHEET, supra note 2.
89. Id.
90. Id.
91. See infra parts II.C.2, VI.C.
92. See infra part II.C.3 (discussing Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995)).
93. See infra part II.B.
94. GREENWIRE, supra note 78, at 12.
95. Department of Interior News Release, Administration's New Assurance Policy Tells Landowners: "No Surprises" in Endangered Species Planning, Aug. 11, 1994.
96. See supra part I.A.2 for a brief discussion of mitigation.
97. Department of Interior News Release, Administration's New Assurance Policy Tells Landowners: "No Surprises" in Endangered Species Planning, Aug. 11, 1994.
98. Secretary Babbitt Praises President's Announcement on 5-Acre Exemption to Endangered Species Act, U.S. NEWSWIRE, July 12, 1995, 1995 WL 6618723.
99. Id.
100. DRAFT HANDBOOK, supra note 9.
101. 16 U.S.C. §1538(a)(1) (1985).
102. 16 U.S.C. §1532(19) (1985).
103. See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995); Palila v. Hawaii Dep't of Land & Nat. Res., 639 F.2d 495 (9th Cir. 1981); Palila v. Hawaii Dep't of Land & Nat. Res., 852 F.2d 1106 (9th Cir. 1988).
104. 50 C.F.R. §17.3 (1985).
105. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. at 2413.
106. Id.
107. See Tara L. Mueller, Comment, Stop Before You Shoot But Not Before You Destroy: A Critical Analysis of the D.C. Circuit's Decision in Sweet Home Chapter of Communities v. Babbitt, 2
108. HASTINGS W.-N.W. J. OF ENVTL. L. & POL'Y 169,179-81 (1995) (noting that other parts of the ESA are inadequate mechanisms for fully effectuating congressional intent to protect the habitat of listed species and arguing that the D.C. Circuit's interpretation of "take," which was reversed by the Supreme Court, rendered Section 10 incidental take permits an unnecessary "exercise in futility").
109. Babbitt v. Sweet Home, 115 S. Ct. at 2414.
110. Paul L. Angermeier, Reinstate the Endangered Species Act, ROANOKE TIMES & WORLD NEWS, Feb. 25, 1996, at F3;
111. see U.S. House Committee on Resources Press Release, Please Mr. Secretary, Stick to the Facts-Endangered Species Deserve A Law That Truly Works, 1996 WL 5167148 (Jan. 24,19%);
112. see also Mann & Plummer, supra note 64, at 1257-58.
113. Joel Connelly, Campaign '96: The Politics Of The Environment, ATLANTA J. & CONST., Feb. 4, 1996, at HI;
114. Berny Morson, Senate Hopefuls Lock Horns-Democrats Claim COP Proposals Pose Threat To The Environment, ROCKY MTN. NEWS, Feb. 26, 1995, at 5A.
115. The current uncertainty regarding reauthorization of the Act has hampered the progress of some habitat conservation planning efforts. For example, a seven-year planning process to protect the Balcones Canyonlands near Austin, Texas, has stalled, as the local real estate and development industries wait to see whether Congress will eliminate the need for an HCP by weakening the Act. Brent Walth, Waging Peace on the Eco-Frontier: The Endangered Species Act, PORTLAND OREGONIAN, June 15, 1995, at Al. For a discussion of negotiation theory and bargaining strategies, see infra part VI.A.2.
116. Appendix F classifies all HCPs that had been approved or formally submitted for approval, as well as selected HCPs in the planning process as of the end of 1994.
117. DRAFT HANDBOOK, supra note 9, at 6.
118. Id.
119. The taxonomy focuses on the planning process in order to explore what steps may be effective in streamlining the process, but this function of the taxonomy in no way affects the substantive protections of Section 10. In other words, for the purpose of examining the planning and approval process, the level of conservation that the USFWS demands before issuing an incidental take permit is assumed to remain constant.
120. The role of negotiations in the planning process, as well as basic negotiation theory, are discussed in infra part VI.A.2.
121. FEN O. HAMPSON, MULTILATERAL NEGOTIATIONS 28-29 (1995).
122. See Table 1 in Appendix A.
123. See infra part I.A.2 for a discussion of mitigation.
124. For example, the Nevada Division of State Parks' road reconstruction led to the Valley of Fire State Park HCP. See Appendix D for a description of this and other HCPs.
125. See, e.g., Mark Suwyn, We Saved the Salamander, WALL ST. JOURNAL, Nov. 29, 1993, at A12 (letter by executive vice-president of International Paper Co. touting the company's development of an HCP for the Red Hills Salamander as a "prime example of sustainable development").
126. One example of a Type IIA1 HCP is the Bakersfield County HCP developed for the San Joaquin kit fox and other species. See Appendix D for a brief description of this HCP.
127. For example, a number of state fish and game agencies and water resource agencies have been exploring the possibility of developing an HCP for the lower Colorado River. Telephone Interview with Steve Helfert, Regional HCP Coordinator USFWS Region 2, Albuquerque, NM (Jan. 4, 1995).
128. DAVID A. LAX & JAMES K. SEBENIUS, THE MANAGER AS NEGOTIATOR 106-07 (1986).
129. Id. at 92-93.
130. Reed G. Noss & Dennis D. Murphy, Endangered Species Left Homeless in Sweet Home, 9 CONSERVATION BIOLOGY 230, 233 (1995);
131. see also Edwin M. Smith, The Endangered Species Act and Biological Conservation, 57 S. CAL. L. REV. 361, 367 (1984) (noting that habitat destruction is "the most important contemporary source of human-caused extinction").
132. In passing the ESA, Congress explicitly recognized the importance of biodiversity. The House Report declares, for example, that "[tjhe value of this genetic heritage is, quite literally, incalculable. . . . From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources." H.R. REP. No. 412, 93d Cong., 1st Sess. 47 (1973), reprinted in A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 140, 143-44 (1982).
133. For instance, Peter Singer argues that practicing "speciesism," that is, favoring humans over other animals, is inconsistent with finding racism or sexism unacceptable. See PETER SINGER, ANIMAL LIBERATION vii-xiv, 1-26, 244-45 (1975).
134. The potential value of HCPs is not limited to the conservation of biodiversity. Broader environmental benefits may include improved water supply and quality, open space, recreation, flood control, improved air quality, and noise abatement. House Subcomm. on Env't & Nat. Resources, The Endangered Species Act: The Role of Habitat Conservation, 103d Cong., 1st Sess. 48 (1993) (statement of John C. Sawhill, President of The Nature Conservancy) [hereinafter Sawhill]. Furthermore, HCPs may ultimately protect species that serve as cultural icons to native communities. Better-planned urban development and public infrastructure, and greater investment certainty may also result. Id.
135. Paul R. Ehrlich & Edward O. Wilson, Biodiversity Studies: Science and Policy, 253 SCIENCE 758, 760 (1991);
136. see also PAUL R. EHRLICH & ANNE H. EHRLICH, EXTINCTION 53-76 (1981) (describing in detail the medicinal and food benefits of biodiversity).
137. Id. at 77-100; Ehrlich & Wilson, supra note 128, at 760-61.
138. EHRLICH & EHRLICH, supra note 128, at 78. For example, the killing of coral reefs by pollution in the Florida Keys has jeopardized the existence of fish and other marine species that depend on the reef for food and protection. THE WILDERNESS SOCIETY, THE ENDANGERED SPECIES ACT: A COMMITMENT WORTH KEEPING (1992).
139. See Noss & Murphy, supra note 124, at 9.
140. 132. Id.
141. Sawhill, supra note 127, at 50. For example, in comparison to the option of no development at all, limited development within the confines of the San Bruno Mountain HCP appears to have been more beneficial to the threatened butterfly species. The HCP enabled habitat restoration to occur, thereby reversing the gradual conversion of native grasslands (the butterflies' native habitat) to non-native species. TIMOTHY BEATLEY, HABITAT CONSERVATION PLANNING 61-62 (1994).
142. 16 U.S.C. §1533(f) (1985).
143. BEAN ET AL., supra note 22, at 3.
144. For example, the HCP developed by Murray Pacific Corporation for its Mineral Tree Farm in Washington state set aside forested corridors that could play a key role in the USFWS' plan to reconnect an isolated population of spotted owls with other populations. Eric Pryne, Carving a Forest Plan With No Losers-Timber Company Hopes to Prosper While Avoiding Owls, SEATTLE TIMES, May 7, 1993, at Al.
145. See DRAFT HANDBOOK, supra note 9, at 41-42.
146. Department of Interior News Release, supra note 95; see also DRAFT HANDBOOK, supra note 9, at 41-44.
147. DRAFT HANDBOOK, supra note 9, at 41-44; see also supra part II.C.1.
148. See supra part II.A, for some description of experiences under the ESA.
149. Carl Hulse, Building Near Endangered Species, N.Y. TIMES, Dec. 28,1993, at C4 (reporting remarks of USFWS Director Mollie Beattie).
150. Tom Kenworthy, Deal Gives Woodpeckers Golf Habitat, WASH. POST, Mar. 3, 1995, at A19. The "safe harbor" option does not relieve a landowner of any obligation to listed species already present at the time of the development of a "safe harbor" agreement. The possible risk of the program is that species attracted to "safe harbor" land may leave land previously protected under the ESA. THE KEYSTONE CENTER, THE KEYSTONE DIALOGUE ON INCENTIVES FOR PRIVATE LANDOWNERS TO PROTECT ENDANGERED SPECIES 22 (1995) [hereinafter KEYSTONE REPORT].
151. R. EDWARD GRUMBINE, ENVIRONMENTAL POLICY AND BIODIVERSITY 8 (R. Edward Grumbine ed., 1994). Although there is no scientific consensus on the definition of "ecosystem management," its key themes include ecological integrity, hierarchical context, ecological boundaries, interagency cooperation, data collection, monitoring, adaptive management, organizational change, humans embedded in nature, and human values. Id. at 89.
152. Katherine Simmons Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 ENVTL. L. 811, 818 (1990).
153. Michael Clegg, Chair of the NRC panel that authored Science and the Endangered Species Act (issued May 24,1995), as quoted on All Things Considered (NPR radio broadcast, May 24,1995) (NPR Transcript #1857-8). Although the success of the HCPs that are underway is difficult to evaluate, because many HCPs are very recent in origin, and because the net effect of a given HCP on a species or ecosystem may not be discernible for many years, tools for determining the value of HCPs must be developed eventually. Such factors as the adequacy of protection for endangered and threatened species, the net effect on overall biodiversity, and the condition and long-term viability of habitats that are protected should be measured.
154. NRC Report Finds Species Act Has Worked, But Improvements Are Needed, in INSIDE ENERGY WITH FEDERAL LANDS 12 (1995).
155. See USFWS SPREADSHEET, supra note 2.
156. See supra part III.B.2.
157. GEORGE W. GAU & JAMES E. JARRETT, ECONOMIC IMPACT STUDY: BALCONES CANYONLANDS CONSERVATION PLAN 1-12 (1992).
158. Id.
159. See, e.g., BEATLEY, supra note 133, at 212 (describing developer support for regional HCPs).
160. See BEAN ET AL., supra note 22, at 35-37 (describing Type II HCPs in which permit holders are county, city, or other public agencies who collect mitigation fees from private landowners).
161. See, e.g., BEATLEY, supra note 133, at 168 (describing the development community's support for the Metropolitan Bakersfield HCP based on the belief that participating in the HCP and "solving the problem by paying a modest fee" is preferable to negotiation of individual plans).
162. DRAFT HANDBOOK, supra note 9, at 33-34. See supra part I.A.2 for a discussion of responsibilities of the permit holder.
163. BEATLEY, supra note 133, at 130-33.
164. House Subcomm. on Env't & Nat. Resources, The Endangered Species Act: The Role of Habitat Conservation, 103d Cong., 1st Sess. 150 (1993) (statement of Michael J. Bean, Chairman, Wildlife Program, Environmental Defense Fund).
165. See id. at 149-50.
166. See Donald L. Soderberg & Paul E. Larsen, Obtaining Incidental Take Permits Under the Endangered Species Act: The Section 7 Alternative, 20 REAL EST. L.J. 3, 3-5 (1991).
167. Michael A. O'Connell, Toward Consensus Solutions to Complex Problems: The Nature Conservancy's Experience with HCPs, RESOLVE (Center for Envtl. Dispute Resolution), No. 26, 1994, at 8-10.
168. Robert D. Thornton, Industry Perspectives Regarding Habitat Conservation Plans, in RESOLVE, supra note 159, at 12-13.
169. Generally, I asked open-ended questions to encourage interview subjects to give their own accounts of the planning process and its problems. Participants cited those delay factors that they perceived as most prominent. This helped to identify the most frustrating aspects in the process, which seem likely to be correlated to some degree with the greatest delays. An obvious limitation of this method is that perceptions were not normative; however, those who were interviewed were generally willing to adopt a fairly objective viewpoint and to engage in constructive self-criticism. Another limitation of the data is that it does not identify the degree to which a given cause contributed to delay; furthermore, the categories used to describe factors causing delay have some overlap. The reader should contact the author for more specific information regarding interview subjects. Several subjects requested confidentiality because of ongoing negotiations and continuing working relationships.
170. Data was not available for three of the HCPs. In addition, the San Bruno Mountain HCP is not included because the HCP mechanism did not exist when that plan was being developed.
171. As discussed in supra part II.B, forty-five additional HCPs were approved in the first nine months of 1995. Twenty of these were a direct result of the halted development of the Balcones Canyonlands HCP. Even taking the Balcones Canyonlands project into account, the increase still seems significant, suggesting that recent reforms, discussed in supra part II.C, have had some positive effect. Nevertheless, the approval of only two Type II HCPs out of the 45 indicates a continuing need to determine why Type II HCPs are so rarely used. See Appendix F.
172. 164. The major limitations and assumptions of this study include: (1) No data from potential applicants who decided not to do HCPs is included. However, data are included from HCPs that have been in planning for a fairly long time and that have not yet been submitted for approval. (2) Only 39 HCPs had been approved as of the end of 1994, yielding a relatively small sample size. To address this weakness, much of the analysis includes data on HCPs that have not yet been approved. (3) The analysis and recommendations assume that the impending congressional reauthorization of the ESA does not radically change the ESA, in particular the Section 10 mechanism. (4) This Comment does not evaluate the success of HCPs as they are implemented. Such analysis is both beyond the scope of this Comment and is premature because most HCPs have been in place for a very short time. However, there is a need to develop effective evaluation tools. (5) One could argue that any study that seeks to increase the use of HCPs cannot focus solely on delays in the planning and approval process. Potential HCP applicants may be discouraged as much by the high costs of developing an HCP as by the length of the process. Unfortunately, accurate data on the costs of developing HCPs was not available. Information on length of the planning process was usually more prominent in participants' minds, while cost data was often inaccessible because sources were reluctant to disclose financial information. Furthermore, "official" accounting costs of doing an HCP often do not correspond with actual costs. Actual costs may be partially disguised as overhead, for example, or costs attributed to the HCP process might have been necessary even in the absence of an HCP in order to satisfy state regulations. The key variables of cost and time are not unrelated, however. In many instances, reducing delay will reduce the cost of using HCPs. An HCP has two major types of cost components: the costs involved in putting together an HCP, and the costs associated with specific conservation measures stipulated in the HCP. The discussion in this Comment is relevant to the first type of costs, which include such elements as consultants' fees, attorneys' fees, and the costs of delayed construction, all of which correspond to the length of the planning process. The cost of specific conservation measures will vary widely from one HCP to another. For example, the conservation measures in HCPs developed for individual homebuilders in Alabama beach mouse habitat have included such relatively inexpensive conditions as a prohibition on house cats, lighting restrictions, and the construction of boardwalks over primary habitat. See, e.g., 60 Fed. Reg. 28,428 (1995). In contrast, the Coachella Valley fringe-toed lizard HCP, which covers 17,000 acres, involved the acquisition of off-site habitat preserves at an estimated total cost of $25 million, with less than one-third of that cost being collected through $600 per-acre development mitigation fees. BEATLEY, supra note 133, at 84-86.
173. See Appendix B.
174. Telephone Interview with Will McDearman, USFWS Field Officer, Jackson, MS, (Dec. 15, 1994).
175. DRAFT HANDBOOK, supra note 9, at 26.
176. See Appendix D for a brief account of the Simpson spotted owl HCP.
177. Telephone Interview with Lowell Dillard, Simpson Timber Co. Biologist, (Jan. 26, 1995).
178. Id.
179. See Amy Smith, Silicon Valley Envies Austin Environment, AUSTIN Bus. J., Dec. 7, 1992, at 1 (not-in-my-backYard ("NIMBY") groups using ESA to halt certain "undesired" developments). For example, in Austin, Texas, Earth First! activists took credit for forcing the developer of a mall to undertake a biological survey for endangered species after the local government had already approved the building project.
180. Ken Martin, Beetle Discovery Could Mean Lakeline Delay, AUSTIN Bus. J., Feb. 26, 1990, at 1.
181. See supra part I.B.2 for a discussion of notice and comment requirements.
182. See supra part IV.B.
183. BEATLEY, supra note 133, at 162-63.
184. Telephone Interview with Peter Cross, USFWS Field Officer, Sacramento, CA (Jan. 4, 1995).
185. Id.
186. Cf. House Subcomm. on Env't & Nat. Resources, The Endangered Species Act: The Role of Habitat Conservation, 103d Cong., 1st Sess. 69-70 (1933) (statement of Ed Sauls, National Association of Home Builders, recommending additional agency staff).
187. In a similar vein, one staff biologist, when asked why only one HCP had been approved although two similar HCPs had been submitted to the same USFWS office at approximately the same time, explained that the successful applicant had constantly kept after him, whereas the other two had not. Confidential Source.
188. O'Connell, supra note 159, at 8-9; see infra part VI.B.2.a for further discussion of steering committees.
189. Timothy J. Wohlgenant & Suzanne G. Orenstein, Negotiating Endangered Species Conflicts: The Habitat Conservation Planning Process, RESOLVE (Center for Envtl. Dispute Resolution), No. 26, 1994, at 4-5.
190. Thornton, supra note 160, at 13.
191. O'Connell, supra note 159, at 9.
192. See Appendix D for a brief account of the Balcones Canyonlands HCP.
193. Alice Wightman, BCCP Issues Remain Unclear as Vote Nears, AUSTIN Bus. J., Oct. 18,1993, at Al;
194. Ralph K.M. Haurwitz, BCCP Bonds Dealt Blow, AUSTIN AMERICANSTATESMAN, Nov. 3, 1993, at Al, A18.
195. Although the USFWS may sit as a nonvoting member on a steering committee, ultimate responsibility for decisions on the plan rest with the applicant. See infra part VI.B.2.
196. See O'Connell, supra note 159, at 9 (noting that plans dominated by one interest over others have in general been less efficient, more costly, and more controversial than those developed by balanced, representative steering committees).
197. Confidential Source.
198. Confidential Source.
199. After a USFWS field office assists an applicant in assembling an HCP application package, the application is submitted to the USFWS regional office for three separate reviews: 1) review of the Implementation Agreement (IA) by the solicitor's office for legal adequacy; 2) review of the HCP and IA by the Section 10 coordinator for scientific adequacy; and 3) review by the environmental coordinator for NEPA compliance. DRAFT HANDBOOK, supra note 9, at 16; see also supra part I.B.2.
200. USFWS SPREADSHEET, supra note 2; Telephone Interview with A1 Pfister, USFWS, Region 1, Portland, OR (Jan. 20,1995).
201. USFWS HANDOUT, supra note 32.
202. Telephone Interview with John Engbring, USFWS Field Officer, Region l, Olympia, WA (Jan. 17,1995).
203. Telephone Interview with Bill Lehman, USFWS Headquarters, Arlington, VA (Jan. 17,1995); Telephone Interview with Dennis Chapman, Manager, UNOCAL Land & Development Co., Coyote Hills East HCP, Orange County, CA (Jan. 17, 1995).
204. Telephone Interview with A1 Pfister, USFWS, Region 1, Portland, OR (Jan. 20, 1995).
205. An alternative way to alleviate the processing bottleneck would be to have fewer layers of review. However, at least for non-standardized agreements or those plans that will have significant effects, the layers of review are justified because the risk and ramifications of any error are high.
206. DRAFT HANDBOOK, supra note 9, at 18, 22.
207. Mat 21.
208. See Appendix D for a brief account of the Valley of Fire HCP.
209. Confidential Source.
210. Telephone Interview with Will McDearman, USFWS Field Officer, Region 4, Jackson, MS (Dec. 15, 1994).
211. For example, Murray Pacific Corp. spent an estimated $650,000 to develop a spotted owl HCP and over $1 million to develop a multispecies HCP for its tree farm in Washington state (a Type IC3 HCP). Kim Murphy, Timber Owners Cut a Deal to Preserve Wildlife Habitat Environment: Pacts Allot Havens for Threatened Species, L.A. TIMES, Aug. 19,1995, at Al. Riverside County spent $290,000 on writing a multiple species HCP alone which is yet to be approved. BEATLEY, supra note 133, at 140.
212. Development mitigation fees for selected HCPs include: $250/acre for the interim Clark County, Nevada HCP; $600/acre for the Coachella Valley, California HCP; proposed $1000-$1250/acre for the Bakersfield, California HCP; and $l,950/acre for the short-term Riverside County, California HCP. BEATLEY, supra note 133, at 26-31; 59 Fed. Reg. 29,436 (1994).
213. BEATLEY, supra note 133, at 86; see Appendix D for a brief account of the Coachella Valley HCP.
214. It is estimated that land acquisition costs for the Riverside County HCP, for example, will range from $30 million to $50 million. BEATLEY, supra note 133, at 138.
215. Mann & Plummer, supra note 64, at 1258 (reporting the program budget figure for FY 1995).
216. See, e.g., Woody, supra note 74 (reporting support in San Joaquin Valley for farmer prosecuted for violations); Fred Alvarez, Waging a War Against Extinction, L.A. TIMES (Ventura County Edition), May 16,1993, at Bl; Telephone Interview with Bob Williams, USFWS Field Officer, Region 6, Salt Lake City, UT (Jan. 17, 1995).
217. Telephone Interview with Keith Howard, Property owner, Stallworth Preserve, Wallon County, FL (Jan. 23, 1995).
218. House Subcomm. on Env't. & Nat. Resources, The Endangered Species Act: The Role of Habitat Conservation, 103d Cong., 1st Sess. 37 (1993) (statement of Michael Spear, Assistant Director for Ecological Services, USFWS).
219. See Appendix D for a brief account of the Pleasant Valley HCP.
220. Telephone Interview with David Bugher, City Planning Director, Coalinga, CA (Jan. 26, 1995).
221. Although the regional office for Region 1 handled several plans, the field office work was spread among several field offices.
222. See Appendix G.
223. Telephone Interview with Bill Lehman, USFWS Headquarters, Arlington, VA (Jan. 17, 1995).
224. Confidential Sources.
225. Telephone Interview with Peter Cross, USFWS Field Officer, Region 1, Sacramento, CA (Jan. 4, 1995).
226. Id.
227. Telephone Interview with John Crowder, Consultant, Alabama Beach Mouse HCPs (Jan. 23, 1995).
228. Telephone Interview with Peter Cross, USFWS Field Officer, Region 1, Sacramento, CA (Jan. 4,1995).
229. Additional demands may include such measures as a higher mitigation ratio, additional mitigation measures, and changes in the implementation agreement. See Loretta Kalb, Development Debate Rolls On Footing Bill For Natomas Flood Control-Delay of Snake-Protection Plan Urged Over Potential Conflicts, THE SACRAMENTO BEE, Mar. 7, 1995, at Al.
230. Telephone Interview with Peter Cross, USFWS Field Officer, Region 1, Sacramento, CA (Jan. 4, 1995). For a discussion of Sweet Home, see supra part II.C.3.
231. See, e.g., Russell Clemings, Effort To Balance Endangered Species With Urban Growth Abandoned, THE FRESNO BEE, June 25,1995, at B1 (reporting farmers' withdrawal from negotiations on near-completed Pleasant Valley HCP as a result of changed political climate in wake of changes in Congress and state legislature).
232. GREENWIRE, supra note 78, at 12; see also supra part II.C for a discussion of recent reforms.
233. See LAX & SEBENIUS, supra note 122, at 228-30 (describing some ways in which adding or subtracting parties may affect substantive outcomes).
234. BEATLEY, supra note 133, at 167.
235. See infra part VI.A.2 for a discussion of the role of, and room for, negotiations during the HCP process.
236. Telephone Interview with Ray Brandsfield, USFWS Field Officer, Region l, Ventura, CA (Nov. 28,1994). Suggestions as to what mitigation ratio would satisfy Section 10 were made on a case-by-case basis by the individual field office. Id.
237. Id.
238. This accusation tends to arise out of the USFWS' efforts to maintain a fairly clear separation between the regional offices' function of reviewing and processing permit applications and the field offices' function of assisting applicants in preparing applications. See DRAFT HANDBOOK, supra note 9, at 22 (emphasizing inability of field office to pre-approve an HCP because regional office performs application processing independently).
239. See Appendix B.
240. See Appendix C.
241. See supra part V.A. for a description of the data set.
242. The effect of an HCP's political visibility on its handling is suggested by the Valley of Fire HCP, a relatively simple Type IB HCP involving the upgrading of an existing road through desert tortoise habitat. The applicant's proposed HCP was allegedly rejected several times until the U.S. Senator for the state intervened. Confidential Source.
243. See supra part I.B.2. for a description of the Section 10 process, including some discussion of "technical assistance."
244. See DRAFT HANDBOOK, supra note 9, at 62 (describing the internal USFWS review process and the need for early coordination between field and regional offices).
245. Robert D. Thornton, supra note 160, at 14.
246. 16 U.S.C. §1539(a)(2)(B)(ii) (1985).
247. 16 U.S.C. §1539(a)(2)(B)(iv).
248. O'Connell, supra note 159, at 8.
249. See generally David A. Lax & James K. Sebenius, Thinking Coalitionally, in NEGOTIATION ANALYSIS 153-93 (H.P. Young ed., 1992); see also supra part V.C.
250. ROGER FISHER & WILLIAM URY, GETTING To YES: NEGOTIATING AGREEMENTS WITHOUT GIVING IN 104 (1981).
251. Id.
252. ROY J. LEWICKI ET AL., NEGOTIATION 51 (2d ed. 1994). The BATNA includes not only the immediate outcome, but also longer-term interests such as the importance of preserving an ongoing relationship. See Lax & Sebenius, supra note 122, at 50. All of this assumes that negotiating parties act rationally, an assumption that may sometimes prove false, particularly in heated negotiations.
253. FISHER & URY, supra note 240, at 110.
254. Melanie J. Rowland, Bargaining for Life: Protecting Biodiversity Through Mediated Agreements, 22 ENVTL. L. 503, 521 (1992).
255. LEWICKI ET AL., supra note 242, at 91.
256. Id. at 80-83. Creating value is also known as "integrative negotiation." Id.
257. Id. at 48. Claiming value is also known as "distributive negotiation." Id.
258. Id. at 107.
259. LAX & SEBENIUS, supra note 122, at 34.
260. Id. at 35.
261. LEWICKI ET AL., supra note 242, at 351.
262. LAX & SEBENIUS, supra note 122, at 58.
263. Id. at 228.
264. See supra part V.B, and Appendix G.
265. See, e.g., USFWS HANDOUT, supra note 32 (covering such questions as "what is a take?").
266. As one applicant put it: "the reason why they couldn't tell us what they wanted was because they didn't have any better idea than we did." House Subcomm. on Env't & Nat. Resources, The Endangered Species Act: The Role of Habitat Conservation, 103d Cong., 1st Sess. 69 (1993) (statement of Ed Sauls, National Association of Home Builders). Similarly, a development industry trade group argues that greater knowledge would help to overcome indecision by the FWS, which, in the absence of such knowledge, relies on a presumption in favor of absolute protection. Id.
267. See supra part VI.A.I; see also Appendix H.
268. Telephone Interview with Dawn Zattau, USFWS Field Officer, Region 4, Jacksonville, FL (Nov. 15, 1994).
269. See USFWS SPREADSHEET, supra note 2.
270. Telephone Interview with Dawn Zattau, USFWS Field Officer, Region 4, Jacksonville, FL (Nov. 15, 1994).
271. See infra part VI.A.l, and Appendix H.
272. See, e.g., Rob Eure, U.S. Approval of Oregon Plan Opens Door for Logging in State Forest, PORTLAND OREGONIAN, Oct. 3,1995, at B3;
273. Rob Taylor, Babbitt Brings Environmental Push to State, SEATTLE POST-INTELLIGENCER, Oct. 4, 1995, at B1.
274. Taylor, supra note 262, at B1.
275. See supra parts I.A.2, I.B for a discussion of recovery and mitigation plans.
276. Bill Dawson, Nature's Balance: In Warbler Case, Facts Fly in the Face of Perception, HOUSTON CHRON., Nov. 20, 1994, at A1.
277. As of the beginning of 1995, critical habitat had been designated for only 105 species, out of more than 900 listed. See GAO REPORT, supra note 71, at 6.
278. Administration Proposes Endangered Species Act Exemptions for Small Landowners; "Guideposts for Reform" Gives More Authority to States, U.S. NEWSWIRE, Mar. 6,1995 (noting the proposed grant of exemptions from ESA to most activities on single-home residential tracts or other tracts smaller than five acres).
279. See supra part V.B.
280. DRAFT HANDBOOK, supra note 9, at 67.
281. A complete application package includes an incidental take permit application form, the HCP itself, an implementation agreement, a draft NEPA document, and a field office certification. Id. at 57. Internally, the USFWS also generates a biological opinion, a finding of no significant impact (FONSI) or record of decision (ROD), a set of findings, a Federal Register notice, an environmental action memorandum to explain the NEPA decision, and the permit itself. Id. at 58. State requirements may involve even more paperwork.
282. Id.
283. Telephone Interview with Mark Maley, USFWS Field Officer, Region 1, Reno, NV (Jan. 5, 1995).
284. See supra part II.A for a discussion of backlash.
285. See supra part H.A.
286. Brad Knickerbocker, Noah's Ark or Nuisance, CHRISTIAN Sei. MONITOR, Sept. 26, 1995, at 4.
287. Senate Keeps Cap On Endangered List, SAN DIEGO UNION-TRIBUNE, Mar. 14, 1996, at A8 (Senate blocked bid to kill legislation extending the ban on listing new endangered species by two votes.).
288. See supra part II.C.1.a for a discussion of the "No Surprises" policy.
289. Many interviewees related this sentiment. Telephone Interview with Ray Brandsfield, USFWS Field Officer, Region l, Ventura, CA (Nov. 28,1994); Telephone Interview with Dennis Chapman, Manager, UNOCAL Land & Development Co., Coyote Hills East HCP, Orange County, CA (Jan. 17,1995).
290. See supra part I.B.2 for a discussion of the delegation of authority between the field and regional offices.
291. In general, Type II HCPs are larger than Type I HCPs. See supra part IV.A.
292. KEYSTONE REPORT, supra note 142, at 5-6.
293. See supra parts II.B, IV.A.
294. BEAN ET AL., supra note 22, at 12.
295. A number of private landowners in the Austin, Texas area have sought individual Section 7 or Section 10 permits as a result of delays and near-breakdowns in the development of the Balcones Canyonlands Conservation Plan. The Clinton Administration, while trying to encourage the continued development of the regional plan, ordered a streamlined processing of individual permits for single family homes in January 1995. Randy L. Loftis, Austin Struggles to Balance Nature With Expansion: Plan to Simplify Land Permits Splits Federal Officials, DALLAS MORNING NEWS, July 3,1995, at 1A. In the first nine months of 1995, at least 19 permits were issued to individual lot owners in the area. USFWS SPREADSHEET, supra note 2.
296. BEATLEY, supra note 133, at 215.
297. O'Connell, supra note 159, at 9. For example, an HCP attempt in North Key Largo, Florida, was ultimately never submitted to the USFWS because groups who did not feel adequately represented attacked a plan that negotiators had agreed on. Id.
298. See DRAFT HANDBOOK, supra note 9, at 19-20.
299. Id. at 19.
300. Id.
301. Id. at 20.
302. See, e.g., O'Connell, supra note 159, at 9; BEAN ET AL., supra note 22, at 13-14.
303. Wohlgenant & Orenstein, supra note 180, at 5.
304. See DRAFT HANDBOOK, supra note 9, at 20.
305. Telephone Interview with John Crowder, Consultant, Alabama Beach Mouse HCPs (Jan. 23, 1995).
306. For example, the California Department of Fish and Game and the USFWS came to an agreement in developing an HCP for the California gnatcatcher and other species in Orange County under California's NCCP program. Telephone Interview with Linda Dawes, USFWS Field Officer, Region 1, Carlsbad, CA (Jan. 24,1995). A discussion of the NCCP program follows this section in the text.
307. Thornton, supra note 160, at 13.
308. See Wohlgenant & Orenstein, supra note 180, at 5 (selection of experts by entire group will avoid the problem of one side rejecting as biased the findings of experts chosen by the other side).
309. DRAFT HANDBOOK, supra note 9, at 22.
310. Wohlgenant & Orenstein, supra note 180, at 7 (noting that USFWS could provide clear technical guidelines, which would stimulate commitment of funds by ensuring more predictable results).
311. Negotiations are often resolved at psychologically prominent focal points such as round numbers and outcomes derived from simple formulas. LAX & SEBENIUS, supra note 122, at 126.
312. See DRAFT HANDBOOK, supra note 9, at 21-22.
313. See supra part I.B.2.
314. See Appendix G, which summarizes the interview data.
315. CAL. FISH & GAME CODE §§2800-2840 (West Supp. 1995).
316. Craig Manson, Natural Communities Conservation Planning: California's New Ecosystem Approach to Biodiversity, 24 ENVTL. L. 603, 613 (1994).
317. Jon Welner, Natural Communities Conservation Planning: An Ecosystem Approach To Protecting Endangered Species, 47 STAN. L. REV. 319, 342 (1995).
318. Manson, supra note 305, at 612-13.
319. Id. at 610-12.
320. NCCPs apply only to unlisted species. When a species becomes listed, the ESA's prohibition on take then applies, stifling the state's flexibility to develop an NCCP program. Id. at 613-14. Currently, implementation of the NCCP is limited to a pilot effort in the coastal sage scrub habitat of southern California. The listing of the California gnatcatcher as threatened after NCCP planning began brought the federal government into the process. In order to avoid possible legal complications from the ESA, Secretary Babbitt issued a "special rule" that exempted landowners participating in the state NCCP program from the ESA's prohibition on incidental take. Id. at 614.
321. Weakening the ESA's general prohibition on "take" would reduce the incentive for landowners to participate voluntarily, because it is the often drastic effects of the ESA that stimulate participation. See id. at 613.
322. See BEAN ET AL., supra note 22, at 26-27.
323. BEATLEY, supra note 133, at 210.
324. Several interview participants said this. See, e.g., Telephone Interview with Bill Lehman, USFWS Headquarters, Arlington, VA (Jan. 17, 1995).
325. An alternate solution would be to have the USFWS field staff, for a modest fee, conduct biological studies and draft HCPs, particularly for small landowners. The USFWS may oppose this because it would create an apparent conflict of interest and would exacerbate workload problems.
326. Telephone Interview with William Kerr, Biological Consultant on Florida Scrub Jays (Jan. 23,1995). This application was ultimately withdrawn when the county decided to purchase the land for a preserve. Id.
327. Id.
328. Id.; Telephone Interview with Dawn Zattau, Region 4, USFWS Field Officer, Jacksonville, FL (Nov. 15, 1994).
329. Telephone interview with William Kerr, Biological Consultant on Florida Scrub Jays (Jan 23, 1995).
330. Telephone interview with Dawn Zattau, USFWS Field Officer, Jacksonville, FL (Nov. 15, 1994).
331. See M. Lynne Corn, The National Biological Service (Congressional Research Report) (1995).
332. See supra part V.B.I and Appendix G.
333. The cost of studying all endangered species is likely to be prohibitive. However, the NBS can maximize the value gained by focusing its efforts on "indicator" species, which serve as barometers of a biological community's overall health, and on "keystone" species, which are essential elements in the web of life of an ecosystem. See Rohlf, supra note 70, at 184 (arguing that the ESA would preserve biodiversity more effectively by focusing on indicator and keystone species rather than on high-profile single species).
334. See supra part VI.A.l and Appendix H.
335. David B. Sparks, Borhner Grapples With Newfound Power, SMALL Bus. NEWS DAYTON, Feb. 1, 1995, at 11 (reporting that NBS is required to obtain written permission from landowner to go onto land).
336. See GAO REPORT, supra note 71, at 5.
337. House Subcomm. on Env't & Nat. Resources, Endangered Species Act-Incentives to Encourage Conservation by Private Landowners, 103d Cong., 1st Sess. 72-73 (1993) (statement of Jim McKinney et al, The Wilderness Society).
338. Richard Stone, Incentives Offer Hope for Habitat, 269 SCIENCE 1212,1213 (1995) ("The Keystone incentives appear to be a big hit with Congress.").
339. Consensus was defined to mean "that participants could live with a proposal." KEYSTONE REPORT, supra note 142, at iv.
340. Id. at 21-22.
341. Although finding such "seed money" might be difficult, a one-time appropriation of approximately $25 million may be sufficient to establish such a program. Id. at 22-23.
342. Id. at 26-36.
343. See Todd G. Oison, The Habitat Transaction Method: A Proposal For Creating Tradeable Credits In Endangered Species Habitat, in BUILDING ECONOMIC INCENTIVES INTO THE ENDANGERED SPECIES ACT 37 (Defenders of Wildlife ed., 1993).
344. Memorandum from Michael J. Bean, Environmental Defense Fund, to the author (Sept. 15, 1994).
345. Olson, supra note 332, at 43.
346. Id.
347. As of October 1995, the public comments are being incorporated. Telephone Interview with Bill Lehman, USFWS Headquarters, Arlington, VA (Oct. 23, 1995).
348. Notices of Dept. of the Interior Fish & Wildlife Service, 60 Fed. Reg. 8729, 8730 (1995).
349. DRAFT HANDBOOK, supra note 9, at 1.
350. Id.
351. Id. at 56-57.
352. Only under the Clinton Administration has the HCP mechanism been emphasized as a means of reconciling economic growth and environmental preservation. In the words of USFWS Director Mollie Beattie, "We have taken it out of the closet and begun to use it everywhere we can." Carl Hulse, Building Near Endangered Species, N.Y. TIMES, Dec. 28, 1993, at C4.
353. DRAFT HANDBOOK, supra note 9, at 57.
354. Id. at 40.
355. Id.
356. Id.
357. Id. at 62.
358. See supra part V.B.
359. DRAFT HANDBOOK, supra note 9, at 62.
360. Id. at 53.
361. Telephone Interview with Rick Gooch, Regional HCP Coordinator, USFWS Region 4, Atlanta, G A (Nov. 15, 1994).
362. DRAFT HANDBOOK, supra note 9, at 51-54. NEPA, which requires federal agencies to examine the environmental impacts of their actions, applies to all operational actions initiated or authorized by a federal agency, including issuance of incidental take permits by the USFWS. Id. at 45.
363. Telephone Interview with Rick Gooch, Regional HCP Coordinator, USFWS Region 4, Atlanta, GA (Nov. 15, 1994).
364. DRAFT HANDBOOK, supra note 9, at 9. NEPA requirements can be satisfied by: (1) a categorical exclusion; (2) an environmental assessment (EA); or (3) an environmental impact statement (EIS). See 40 C.F.R. §§1507.3, 1508.4, 1508.9, 1508.11 (1978).
365. DRAFT HANDBOOK, supra note 9, at 9.
366. See, e.g., Christopher H. M. Carter, Comment, A Dual Track for Incidental Takings: Reexamining Sections 7 and 10 of the Endangered Species Act, 19 B.C. ENVTL. AFF. L. REV. 135,168-71 (1991) (recommending the incorporation of Section 7 procedural innovations, such as time limits on USFWS action, into Section 10); but see Robert D. Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 ENVTL. L. 605, 653 (1991) (recommending authorization of the use of Section 7 consultations by private parties).
367. See Carter, supra note 355, at 164.
368. Telephone Interview with John Crowder, Consultant, Alabama Beach Mouse/Perdido Key Beach Mouse HCPs (Jan. 23,1995). In this case, Section 7 procedures were being handled by a local field office (Gaffney, AL), whereas all Section 10 permit applications in the area were being handled by a field office located in a neighboring state (Jackson, MS). Id.
369. Telephone Interview with Dennis Chapman, Manager, UNOCAL Land & Development Co., Coyote Hills East HCP, Orange County, CA (Jan. 17, 1995).
370. Telephone Interview with Steve Helfert, Regional HCP Coordinator, USFWS Region 2, Albuquerque, NM (Jan. 4,1995).
371. For a description of the Sections 7 and 10 processes, see supra part I.B.
372. 16 U.S.C. §1536 (b)(1)(A) (1985). For a more detailed description, see CONSULTATION HANDBOOK, supra note 41, at 4-4.
373. DRAFT HANDBOOK, supra note 9, at 81. At the same time, the USFWS may not propose far-reaching conservation measures that might be more beneficial to protected species if such measures would alter the basic scope of the proposed activities. Carter, supra note 355, at 166.
374. Carter, supra note 355, at 163.
375. Id. at 167.
376. The need to implement an innovative solution was a major impetus behind the passage of Section 10. See supra part I.A.1.
377. See DRAFT HANDBOOK, supra note 9; see also part VI.C, supra.
378. As described in note 161, supra, interviewees were asked to identify prominent delay factors with respect to each HCP. Although at least one participant was interviewed with respect to each HCP, it was not possible to interview all participants. As a result, one can probably assume that not all actual delay factors were identified for each HCP. The methodology used therefore does not accurately identify the total number of HCPs in which each delay factor played a role. Rather, the methodology only identifies the relative frequency of various delay factors.
379. The total number of Type I HCPs in the sample is 39, and the total number of Type II HCPs is 15. As described in note 161, supra, interviewees were asked to identify prominent delay factors with respect to each HCP. Although at least one participant was interviewed with respect to each HCP, it was not possible to interview all participants. As a result, one can probably assume that not all actual delay factors were identified for each HCP. The methodology used therefore does not accurately identify the total number of HCPs in which each delay factor played a role. Rather, the methodology only identifies the relative frequency of various delay factors.
380. BEATLEY, supra note 133, at 160-68; BEAN ET AL., supra note 22, at 101-02; Telephone Interview with Peter Cross, USFWS Field Officer, Region 1, Sacramento, CA (Jan. 4, 1995).
381. Telephone Interview with Lowell Dillard, Simpson Timber Company Biologist (Jan. 26, 1995); Telephone Interview with Michael Horton, USFWS Field Officer, Region 1, Sacramento, CA (Jan. 24, 1995).
382. BEATLEY, supra note 133, at 173-93; e-mail letter from Melinda Taylor, Staff Attorney, Environmental Defense Fund, Raleigh, NC (Jan. 24, 1995).
383. Confidential Source.
384. BEAN ET AL., supra note 22, at 66-79; BEATLEY, supra note 133, at 69-95; Jane E. Brody, Near Desert Resorts, A Threatened Lizard Gets Its Own Refuge, N.Y. TIMES, June 6, 1989, at C4.
385. Telephone Interview with David Bugher, City Planning Director, Coalinga, CA (Jan. 26, 1995); Telephone Interview with Peter Cross, USFWS Field Officer, Region 1, Sacramento, CA (Jan 4, 1995); Russell Clemings, Coalinga Makes the Environment Work for Everyone, THE FRESNO BEE, Oct. 2, 1994, at B1.
386. Acreage figures represent only a rough preliminary estimate in many cases and are subject to change prior to approval.