Copyright 1999 Federal News Service, Inc.
Federal News Service
NOVEMBER 3, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
3928 words
HEADLINE: PREPARED TESTIMONY OF
JAMIE
RAPPAPORT CLARK
DIRECTOR,
U.S. FISH AND WILDLIFE SERVICE
DEPARTMENT
OF THE INTERIOR
BEFORE THE SENATE ENVIRONMENT AND PUBLIC
WORKS COMMITTEE
SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND DRINKING WATER
SUBJECT - IMPLEMENTATION OF THE ENDANGERED SPECIES ACT
BODY:
Introduction
Mr. Chairman and
Members of the Subcommittee, I am pleased to be here today to talk about the
Habitat Conservation Planning program. The Fish and Wildlife Service believes
that habitat conservation plans (HCPs) are essential tools for the conservation
and protection of threatened and endangered species. My testimony will discuss
our commitment to this successful program and the challenges we are facing.
Habitat Conservation Planning is an Innovative and Successful Program
In
direct response to this Administration's goal to reconcile conflicts between
development and conservation, the Habitat Conservation Planning program has
expanded tremendously during the 1990s. When President Clinton took office, the
Service had approved only 14 incidental take permits and associated HCPs. Today,
the Service has issued more than 260 incidental take permits covering
approximately 20 million acres of land, 200 listed species, and many unlisted
species. The Service anticipates being involved in the development and
implementation of about 300 additional plans by fiscal year 2001. HCPs cover
more area, more activities, and more species than ever before due to the
incentives we have created. While this phenomenal growth is a testament to the
popularity and utility of the program, it brings with it additional challenges.
Greatest among these challenges is that demand is exceeding our ability to
deliver the program as effectively as we would like.
The major strength of
the HCP program is that it is based on the development of local solutions to
wildlife conservation. By encouraging the development of regional, landscape
HCPs to cover many habitats, we have provided incidental take authority for many
different land uses and landowners. Here are just a couple of success stories.
Kern Water Bank-- In Kern County, California, the Kern Water Bank
Authority's HCP illustrates how the Service can help the agricultural community
and the State accomplish both water conservation and environmental objectives.
The goals of the HCP are to allow the economic development of water recharge and
recovery facilities; preserve compatible upland habitat and other sensitive
natural areas; conserve the area's 161 covered species; provide a conservation
bank for third-party mitigation; and permit farming. This HCP received two
incidental take permits-- one for the operation of the water bank; the
otherallows the transfer of incidental take authority to third parties through
purchase of mitigation credits in a conservation bank. The plan streamlines ESA
approval for small landowners within the service area of the HCP.
La Rue
Housing HCP-- The University of California, Davis, received an incidental take
permit for their low-effect HCP. The project involved the construction of
student housing and a plant science teaching center. The application was
received in January 1999, and the permit was issued in March 1999. In order to
minimize and mitigate the take of the valley elderberry longhorn beetle, the HCP
called for the planting of elderberry shrubs at a mitigation site that is
protected in perpetuity and owned by the University. The University will also
monitor the mitigation site to ensure that the conservation goals are being
achieved.
The Service has shown creative and flexible approaches in
assisting landowners to develop HCPs that fit the unique circumstances
presented. Though we strive for consistent application of the HCP program, we
have learned from experience, no one template fits all HCPs. The benefit to
affected species, the nature and extent of the habitat covered, and the concerns
and limitations of the landowner will vary from HCP to HCP. The specific
circumstances will determine whether a single species, multiple species, or
landscape scale HCP will be appropriate. The duration of the permit, the use of
adaptive management, and the incorporation of other key components also will
vary. We are committed to using a flexible approach and addressing each HCP with
the type of innovative thinking that has proven successful.
The Sonoran
Desert HCP is a good example of the innovative, successful merging of
conservation and development. When completed, this plan will address the needs
of threatened and endangered species throughout Pima County, Arizona. This
visionary planning effort will actually help to shape urban development within
Pima County while providing for the protection of natural and cultural
resources. Listed species that will be protected include the jaguar, Sonoran
pronghorn, desert pupfish, cactus ferruginous pygmy-owl, pineapple cactus, and
Mexican spotted owl. Pima County and numerous public and private entities
actively support the planning effort, recognize their ESA responsibilities, and
are eager to join in.
The creativity that has served the HCP Program so well
is also leading to innovative solutions for small landowners. The Lewis County
Forest Stewardship HCP, which is under development, would establish a
programmatic approach to cover small timber operations. This approach would
enable small timber operators to receive incidental take coverage by adopting
management practices. It will greatly enhance our ability to work with small
landowners by reducing the need to negotiate each HCP individually. Similarly,
the Statewide Conservation Plan for red-cockaded woodpeckers in Georgia, which
was recently released for public comment, will provide all landowners in the
state the opportunity to participate in two options for receiving incidental
take coverage. The Wildlife Resources Division of the Georgia Department of
Natural Resources elected to pursue a statewide Plan to cover private land in an
effort to resolve continuing conflicts over management of small, isolated
red-cockaded woodpecker populationson private lands. The agency sought an
approach that would offer benefits to red-cockaded woodpeckers and flexibility
to landowners. The resulting plan provides two options to landowners: 1)
mitigated incidental take-- the HCP option, and 2) management agreements-- the
Safe Harbor option. Other States within the range of the red-cockaded woodpecker
are considering using this Plan as a model for providing private landowners a
flexible, streamlined process for resolving conflicts with conservation.
The
foundation of the HCP program is sound science. We base our determinations on
the best scientific and commercial information available. We also must approach
the use of science on an HCP-specific and species-specific basis, so that
general principles are not translated into "cookbook" approaches that may be
misapplied across a range of HCPs and fail to conserve species.
We Are
Actively Managing the HCP Program
The HCP program has seen a lot of change
since its beginning in 1983. The ideas generated by the Service, applicants, the
environmental community, and other concerned individuals and groups have
strengthened the HCP program. We remain open to learning from our experiences
and considering new ideas in developing and revising our regulations, policies,
and guidance. We develop our policies to balance concerns of applicants and
species conservation yet strive to reduce procedural burdens.
The
collective knowledge gained from past experience is available to the public in a
joint Handbook for Habitat Conservation Planning and Incidental Take Permitting
Process (HCP Handbook). The goals of the handbook are threefold: (1) to ensure
that the goals and intent of the conservation planning process under the
Endangered Species Act are realized; (2) to establish clear guidance and ensure
consistent implementation of the section 10 program nationwide; and (3) to
ensure that the Service and NMFS offices retain the flexibility needed to
respond to specific local and regional conditions and a wide array of
circumstances. Specifically, the HCP Handbook gives, among other things,
instructions for processing permit applications, hints for approaching different
issues, suggestions for helping applicants develop their HCPs, and guidance for
meeting regulatory and statutory standards of the HCP program. The HCP Handbook
not only provides consistent guidance to Service staff; it is a popular and
useful resource for applicants.
Since the HCP Handbook was finalized, the
Service has continued to provide national direction for the HCP Program. As the
program has matured, the Service and NMFS recognized that a clearer policy
regarding the assurances provided to landowners entering into an HCP was needed,
and subsequently codified those assurances into regulation with the No Surprises
final rule (63 FR 8859; February 23, 1998). The Service and NMFS also recognized
a significant need to elaborate on the principles included within the handbook,
so we issued a draft addendum to the HCP Handbook, which is commonly known as
the "five- point policy." The policy requires all HCPs to include biological
goals and objectives; provides additional guidance on the role of adaptive
management strategies in HCPs; encourages those developing HCPs to involve the
public in the planning process; clarifies the role of the Service, NMFS and
permittees inconducting compliance and effectiveness monitoring; and provides
clarification on how to determine an appropriate duration for incidental take
permits. We have reviewed the public comments that were submitted and are in the
process of addressing them. We expect to issue the final policy shortly.
Beyond issuing written policies and regulations, the Service manages the HCP
program by facilitating communication about HCP issues. We hold annual national
HCP workshops that foster consistency within the national HCP program, provide
for the exchange of experiences among regions, and facilitate discussions of
solutions. The Washington office holds monthly conference calls with the
regional HCP coordinators and instructors for our National Conservation Training
Center's HCP course to discuss current topics. We are providing more information
to the public through the Internet and are starting to announce public comment
periods and provide HCP documents electronically. The National HCP webpage is
currently under revision and will be maintained to provide up-to-date program
information and access to the National HCP data use. The regions hold regional
workshops for the purposes of advanced training of Service staff or for
introducing potential applicants to the HCP process. For example, the Southwest
Region recently held a workshop for State and county officials, and other
stakeholders involved in the Sonoran Desert Conservation Plan.
The Service's
National Conservation Training Center (NCTC) is also playing an active role in
managing the HCP program. NCTC puts on one or more sessions each year of the HCP
course and these sessions are often attended by potential applicants or State
agency officials in addition to Service employees. In addition, NCTC offers many
other courses that support Service biologists working in the HCP program.
Example courses include: Interagency Consultation (section 7); Scientific Tools
for Endangered Species Conservation; Introduction to Conservation Biology;
Natural Resource Law; Natural Resource Policy; Complex Environmental
Negotiations; Community-Based Consensus Building; Extraordinary Customer
Service; Conserving Endangered Species on non-Federal Lands; and Scientific
Principles and Techniques for Endangered Species Conservation.
We recognize
the pivotal role private lands play in conserving threatened and endangered
species and the necessity of creating incentives for non-Federal landowners to
engage in conservation activities. The numbers of HCP applicants today clearly
shows that these incentives are effective. We are also committed to reducing
burdens to the applicants. For instance, we are developing guidance regarding
the role of section 7(d) in the HCP program. Section 7(d) of the ESA states that
after consultation has been initiated, the federal agency or permit applicant
"shall not make any irreversible or irretrievable commitment of resources..." A
recent district court decision (Environmental Protection Information Center v.
Pacific Lumber Company, 1999 WL 669191 (N.D. Cal)) asserts that section 7(d)
applies to formal and informal consultation conducted under section 7(a)(2) of
the ESA. As a result of this ruling, potential HCP applicants are concerned that
entering into discussions with the Service or NMFS regarding an HCP will result
in their ongoing activities being halted. This type of response from the private
sector mayhave a negative effect on the development of some HCPs, so the Service
and NMFS recognized the need to clarify how section 7(d) and the HCP process
should interface.
The Service disagrees with a suggestion raised at the
October 19 hearing before the Subcommittee that section 7 consultations should
not be conducted on HCPs. We support continuing to conduct section 7 review of
HCPs because it fulfills two important roles: 1) it provides for review by other
Service biologists not involved in the development of the HCP to ensure that the
taking will not appreciably reduce the likelihood of the survival and recovery
of the covered species in the wild; and 2) it ensures that the HCP will not
result in jeopardy or adverse modification of critical habitat for other listed
species that are not the target of, or covered by the plan.
In some cases
reinitiation of consultation may be required. I want to clarify that
reinitiation of consultation or any meaningful reexamination of the HCP does not
nullify the No Surprises assurances attached to an incidental take permit. The
Service and NMFS will not require the landowner to provide additional mitigation
measures in the form of additional land, water, or money if they are properly
implementing their HCP. However, additional mitigation measures can be provided
by another entity. Similarly, the No Surprises rule does not preclude the
Service or NMFS from shifting emphasis within an HCP's operating conservation
program from one strategy to another in an effort to enhance an HCP's overall
effectiveness, provided that such a shift does not increase the permittee's
costs. Moreover, if the Service or NMFS reinitiates consultation on the
permitting action, and if additional measures are needed, we will work together
with other Federal, State, and local agencies, Tribal governments, conservation
groups, and private entities to ensure additional measures are implemented to
conserve the species.
Our commitment to the HCP program was affirmed earlier
this year by the Secretaries of Interior and Commerce in a memorandum directing
both the Service and NMFS to make the HCP program work for both species and
landowners. We will continue to advance the Administration's commitment to
forging ESA partnerships through HCPs, by adhering to the following principles:
Timeliness: We must demonstrate that HCPs can, and will, be developed and
processed efficiently and without undue delay by working with applicants at the
outset of the process to establish and implement an agreed upon work plan and
joint time line for developing each HCP.
Credibility: We expect applicants
to bring meaningful proposals to the table and to deal with Federal officials in
good faith. For each HCP, we will abide by the commitments and agreements made
throughout the development process and not revisit old issues once agreement has
been reached. If ongoing and new information is expected to emerge during the
negotiation process, the agency officials must explain this at the outset and
discuss the effect the information could have on the process.Coordination: The
Service and NMFS will coordinate their efforts whenever possible. Interagency
teams must ensure that all involved players on the Federal side coordinate their
review efforts and assert consistent positions.
Efficiency: Agency officials
need to coordinate and process each HCP application without undue delay or cost
and ensure that the information being requested of the applicant is truly
necessary to the process. Efficiency is important at all phases of HCP
development. However, the agencies must continue to ensure that the quality of
HCPs is paramount.
Creativity: In the past, both the Service and NMFS have
demonstrated creative and flexible approaches in assisting landowners to develop
HCPs that fit the unique circumstances presented. Agency officials are
encouraged to retain this approach and view each HCP with a commitment to the
type of innovative thinking that has proven successful.
Commitment to
Success of Permits and HCPs: The creativity required for development of HCPs
must also be applied to the implementation of the permit. The Service and NMFS
remain committed to the success of each and every incidental take permit issued.
Sound Science: The foundation of the HCP program is sound science.
In reviewing proposed HCPs, the Service and NMFS must ensure that the best
available science is taken into account and exchanged with the applicant.
Public Participation: The draft Five-Point Policy Initiative calls for
increased public participation in the HCP process by extending the public
comment period of most HCPs and reaffirming the Service and NMFS' commitment to
encouraging public notification and involvement. We appreciate that this
commitment increases the complexity of the HCP process, but expanding our public
outreach will advance support for our HCP program.
Communication: Applicants
look to the Service and NMFS to provide leadership in HCP negotiations in the
form of forthright, explicit guidance. Effective communication by the agencies
does not overshadow efficiency and the use of sound science, but facilitates the
HCP process and improves the agencies' credibility.
The challenges to
accomplishing the goals of the ESA are constantly growing. The Federal
Government's response must rise to this task. The points presented in the
Secretaries' memorandum represent the direction for the Service and NMFS to meet
the challenges of promoting cooperative partnerships to advance the goals of the
ESA through this innovative and critically important program. The Service is
making a concerted effort to advance these goals.Delivering a High-Quality HCP
Program Requires Adequate Funding and Staffing
Applicants look to the
Service to provide leadership, and, therefore, the success of the HCP program is
contingent upon the Service being thoroughly involved in the development,
implementation, and monitoring of these plans. An essential element in
delivering an effective HCP program is our ability to hire and train qualified
staff to meet the increasing workload associated with monitoring existing HCPs
and assisting applicants in the development of new plans. However, while trying
to deliver our commitments to the HCP program and to respond to this increased
workload, the Endangered Species Program's budget for consultation and HCPs
experienced a decrease in fiscal year 1996 and only modest increases in fiscal
years 1997, 1998 and 1999. For example, in FY 1999, we requested $36.5 million
for consultation and habitat conservation planning but were appropriated only
$27.2 million. Similarly, for FY 2000 we requested $37.4 million but the recent
House-Senate conference report provides less than $31 million after subtracting
new earmarks and uncontrollables.
Funding at the levels requested by the
President is essential to the continued success of the HCP program. Because of
the increasing demand for HCPs and the increasing complexity of the program, our
HCP biologists are pushed to their limits. We are finding it increasingly
difficult to recruit qualified staff and to retain our experienced workers. The
consequence of this is less than desirable levels of service, as reflected in
some of the testimony this committee heard two weeks ago. In addition, the
demand will continue to grow for the Service to provide adequate monitoring and
adaptive management, as we approve more and more HCPs. It is important that we
have adequate staff and funding to be able to fulfill these responsibilities.
As you heard in the previous hearing, smaller governments and operators
often do not have the staff to support the planning and coordination necessary
to develop HCPs. For instance, Foster Creek Conservation District is
coordinating the development of an HCP with wheat farmers in Douglas County,
Washington. These farmers are enthusiastic about proactively planning for the
protection of wildlife in their County while receiving assurances for their
farming activities. However, it has been difficult for them to find the planning
resources necessary to develop a regional, multispecies plan. Similarly, small
timber operators in Lewis County, Washington also wish to develop a regional,
multispecies plan so that they can receive the same benefits as large timber
corporations. Smaller, less wealthy counties, such as Laramie County, Wyoming,
are hesitant to embark on regional HCPs because of the demands placed on their
existing planning staff. The Service is devoted to assisting these communities
in the development of their plans. The President's FY 2000 budget request of $10
million to support HCP development grants within the Land Legacy
Initiative would provide the financial assistance necessary to launch
community-based, landscape-level, multispecies plans that would benefit the
small landowners within these communities. However, this request was zeroed out
in both the House and Senate.
The President also requested $26 million in FY
2000, as part of his Lands Legacy Initiative, to support HCP
Land Acquisition grants that could be used by States to support approved HCPs.
This popular program is a significant tool in our toolbox and provides tangible
assistance to HCPpermittees and the species that are covered by the plans. The
demand for this program has rapidly grown during the program's three years of
existence. In FY 1997 we requested, and received, $6 million. For FY 2000, the
President's Budget requested $26 million, unfortunately, the House-Senate
conference provided only $8 million.
Conclusion
The Service is
implementing an HCP program that empowers the applicants to integrate endangered
species conservation into their activities while using the best available
science and approaches. I am proud of the ideas and the hard work that has
strengthened the HCP program, but remain concerned about the escalating workload
without significant increases in resources. In facing the challenge of managing
the HCP program, we will continue to enlist the support of others in the HCP
process, including environmental and scientific communities, state, local and
tribal governments, landowners, and other stakeholders. In doing so, we will
enrich species conservation and accommodate economic development. All of us
involved in species conservation must continue to look for new and better ways
to improve the HCP program.
Finally, I cannot emphasize enough the
importance of funding the HCP/Consultation program as requested in the
President's budget. The increasing demand for development of new plans, combined
with the needs associated with implementing and monitoring the approved plans,
is seriously straining our ability to provide the high-quality customer service
that the American people deserve.
Mr. Chairman, this concludes my testimony.
I would be happy to answer any questions that the Subcommittee may have.
END
LOAD-DATE: November 4, 1999