Habitat Conservation Plans Under the U.S. Endangered Species Act: The Legal Perspective

Habitat Conservation Plans under the federal Endangered Species Act have become an increasingly popular tool for resolving conflicts between land development and species conservation. Their primary purpose, however, is legal and regulatory rather than biological. They are what landowners must prepare in order to obtain a permit to "take" animals listed by the U.S. Fish and Wildlife Service as threatened or endangered. Unfortunately, many professionals involved in the HCP process aren't sufficiently cognizant of the legal and regulatory functions and the purposes and limitations of HCPs. I provide an overview of the regulatory structure of the ESA, the role HCPs play in that structure, and the specific legal requirements associated with HCPs. I then discuss the practice of crafting an HCP and the most common issues that arise in the process. Finally, I assess several very fundamental current problems with the HCP program, problems that threaten to undermine the HCP program to such a degree as to end its utility to landowners and thereby end the tremendous conservation opportunities the HCP program represents.     

The Coachella Valley Multiple Species Habitat Conservation Plan: A Decade of Delays

This article describes the history of the Coachella Valley Multiple Species Habitat Conservation Plan (CVMSHCP), in the Riverside County region of Southern California. When this collaborative biodiversity conservation planning process began, in 1994, local participants and supporters had numerous factors working in their favor. Yet, as of April 2007, nearly 13 years had passed without an approved plan. This is a common problem. Many multiple species habitat conservation plans now take more than a decade to complete, and the long duration of these processes often results in negative consequences. The CVMSHCP process became bogged down—despite strong scientific input and many political advantages—due to problematic relationships between the Plan’s local supporters, its municipal signatory parties, and officials from the state and federal wildlife agencies, particularly the regional office of the US Fish and Wildlife Service. This case study demonstrates the crucial importance of institutional structures and relationships, process management, and timeliness in habitat conservation planning. We conclude by offering several related recommendations for future HCP processes.     

Integrating Climate Change into Habitat Conservation Plans Under the U.S. Endangered Species Act

Habitat Conservation Plans (HCPs) under the Endangered Species Act (ESA) are an important mechanism for the acquisition of land and the management of terrestrial and aquatic ecosystems. HCPs have become a vital means of protecting endangered and threatened species and their habitats throughout the United States, particularly on private land. The scientific consensus that climate is changing and that these changes will impact the viability of species has not been incorporated into the conservation strategies of recent HCPs, rendering plans vulnerable biologically. In this paper we review the regulatory context for incorporating climate change into HCPs and analyze the extent to which climate change is linked to management actions in a subset of large HCPs. We conclude that most current plans do not incorporate climate change into conservation actions, and so we provide recommendations for integrating climate change into the process of HCP development and implementation. These recommendations are distilled from the published literature as well as the practice of conservation planning and are structured to the specific needs of HCP development and implementation. We offer nine recommendations for integrating climate change into the HCP process: (1) identify species at-risk from climate change, (2) explore new strategies for reserve design, (3) increase emphasis on corridors, linkages, and connectivity, (4) develop anticipatory adaptation measures, (5) manage for diversity, (6) consider assisted migration, (7) include climate change in scenarios of water management, (8) develop future-oriented management actions, and (9) increase linkages between the conservation strategy and adaptive management/monitoring programs.     

Three Paradoxes of Habitat Conservation Plans

Habitat conservation plans (HCPs) are enabled under section 10(a) of the Endangered Species Act. The substantial increase since 1994 in the number of HCPs has motivated numerous critiques of nearly every aspect of HCPs. These critiques have overlooked several paradoxes that expose fundamental shortcomings of section 10(a) or its implementation. I refer to them as: the Trainwreck Paradox, the Jeopardy Paradox, and the Maximum Mitigation Paradox. The Trainwreck Paradox states that HCPs are needed to avert the listing of species as threatened or endangered, but federal listings are needed to motivate landowners to develop HCPs. The Jeopardy Paradox stems from the vague language of section 10(a) which allows an HCP to reduce the likelihood of a species’ survival and recovery but establishes no objective limit on the magnitude of reduction. The Maximum Mitigation Paradox argues that if a landowner provides maximum mitigation at the onset of an HCP, then there will be no financial resources for adaptive management in the future, but if resources are reserved for adaptive management, then the landowner is not mitigating to the maximum extent practicable as required by section 10(a). The purpose of this article is to explain these paradoxes of HCPs and discuss potential remedies.     

Indicators Assessment for Habitat Conservation Plan of Yolo County, California, USA

/ Whereas habitat conservation plans (HCPs) have been intended to provide comprehensive environmental mitigation for multiple species, they often narrow in focus to one species and either one mitigation site or unspecified sites. We developed an indicators framework from which to rate land units for their ecological integrity, collateral values (nonbiological qualities that can improve conservation), and restoration and conservation opportunities. The ratings of land units were guided by the tenets of conservation biology and principles of landscape and ecosystem ecology, and they were made using existing physical and floral information managed on a GIS. As an example of how the indicators approach can be used for HCPs, the 29 legally rare species targeted by the Yolo County HCP were each associated with vegetation complexes and agricultural crops, the maps of which were used for rating some of the landscape indices. The ratings were mapped so that mitigation can be directed to the places on the landscape where the legally rare species should benefit most from conservation practices. The most highly rated land units for conservation opportunity occurred along streams and sloughs, especially where they emerged from the foothills and entered the Central Valley and where the two largest creeks intersected the Sacramento River flood basin. We recommend that priority be given to mitigation or conservation at the most highly rated land units. The indices were easy to measure and can be used with other tools to monitor the mitigation success. The indicators framework can be applied to other large-area planning efforts with some modifications.KEY WORDS: Ecosystem; Indicators; Landscape; Mitigation; Planning; Yolo County; California     

Multiple Species Habitat Conservation Planning: Goals and Strategies of Local Governments

Drawing from experiences gained from the development and implementation of four approved habitat conservation plans (HCPs), I describe the goals and strategies used by the nine local government members of the Riverside County Habitat Conservation Agency (RCHCA) to reconcile conflicts among a rapidly growing population and the need to conserve the habitat of a number of declining wildlife species in western Riverside County, California. Several important goals have been pursued by RCHCA member governments in their sponsorship of multiple-species habitat conservation plans (MSHCPs), including (1) establishing certainty and control over future uses of land; (2) eliminating project-by-project negotiations with federal and state wildlife agencies; (3) coordinating mitigation obligations under the Endangered Species Act, Clean Water Act, California Environmental Quality Act, and other federal and state laws; (4) reducing conflict and litigation resulting from land development activities; and (5) ensuring that wildlife conservation activities are conducted in a manner that permits local governments to perform those functions necessary to maintain public health, safety, and welfare. I also describe the emergence of strategies by local governments to achieve MSHCP goals, including (1) use of an inclusive planning process that seeks to build consensus among affected interests; (2) extensive involvement of federal and state wildlife agencies in the preparation of MSHCP documents; (3) management of public lands to support MSHCP conservation objectives; (4) encouragement of voluntary conservation by private property owners through incentive programs; and (5) active solicitation of federal and state funding for MSHCP implementation activities.     

Public acquisition versus private stewardship for wetland protection: an evaluation of the St Lawrence valley national wildlife refuge,USA

Private stewardship can be an efficacious strategy for wetland protection in areas not subject to development pressure, provided landowners are environmentally conscious and a safety net of regulations has been enacted. Public acquisition is better directed toward areas undergoing rapid land‐use change. The St Lawrence Valley National Wildlife Refuge proposed by the United States Fish and Wildlife Service was ill‐advised, because wetlands are not being converted to other uses, landowners are engaging practices that promote and enhance wildlife, and wetlands are protected from serious losses by state regulations. A less costly and less contentious role for governmental agencies in such situations is to initiate and support activities of private landowners.     

Effects of cattle grazing and haying on wildlife conservation at National Wildlife Refuges in the United States

The National Wildlife Refuge System is perhaps the most important system of federal lands for protecting wildlife in the United States. Only at refuges has wildlife conservation been legislated to have higher priority than either recreational or commercial activities. Presently, private ranchers and farmers graze cattle on 981,954 ha and harvest hay on 12,021 ha at 123 National Wildlife Refuges. US Fish and Wildlife Service policy is to permit these uses primarily when needed to benefit refuge wildlife. To evaluate the success of this policy, I surveyed grassland management practices at the 123 refuges. The survey results indicate that in fiscal year 1980 there were 374,849 animal unit months (AUMs) of cattle grazing, or 41% more than was reported by the Fish and Wildlife Service. According to managers' opinions, 86 species of wildlife are positively affected and 82 are negatively affected by refuge cattle grazing or haying. However, quantitative field studies of the effect of cattle grazing and haying on wildlife coupled with the survey data on how refuge programs are implemented suggest that these activities are impeding the goal of wildlife conservation. Particular management problems uncovered by the survey include overgrazing of riparian habitats, wildlife mortality due to collisions with cattle fences, and mowing of migratory bird habitat during the breeding season. Managers reported that they spend $919,740 administering cattle grazing and haying; thus refuge grazing and haying programs are also expensive. At any single refuge these uses occupy up to 50% of refuge funds and 55% of staff time. In light of these results, prescribed burning may be a better wildlife management option than is either cattle grazing or haying.     

A Crosswalk from the Endangered Species Act to the HCP Handbook and Real HCPs

The U.S. Departments of Interior and Commerce published the HCP handbook in 1996 to guide the issuance of incidental take permits (ITPs). The HCP handbook lists six guidelines and provides many others throughout the text. However, the guidelines sometimes contradict the intent of the Endangered Species Act (ESA), and some are vague due to their use of improperly defined terms, such as ecosystem, region(al), net benefits, and habitat types. A proposed addendum provides little improvement to the HCP handbook. The guidelines in the HCP handbook could be prepared to better match those that scientists would expect from the language of the ESA. Three HCPs met only 3-10% of the 39 guidelines I would expect based on the ESA, and they met only 7-20% of the 30 guidelines in the HCP handbook. Based on a recent legal decision on the Alabama Beach Mouse HCP, ITP applicants are expected to follow the guidelines in the HCP handbook. The three HCPs I reviewed are vulnerable to similar legal decisions. However, many of the guidelines in the HCP handbook are inconsistent with the ESA. Therefore, I recommend that the HCP handbook be revised so that it is consistent with the ESA and with academic standards in the use of scientific methods. The guidelines need to be more explicit to be operationally consistent. Such a revision would provide ITP applicants and all the stakeholders with much more certainty in the outcome of the process. In lieu of a revised HCP handbook, I recommend that ITP applicants prepare their HCPs using the standards presented in Smallwood and others (Environmental Management, 1999, 24:421-435), thereby giving their HCPs a strong scientific foundation.     

Assessing impacts of introduced aquatic species: Grass carp in large systems

Introduced species have created environmental benefits and unanticipated disasters so a priori assessments of species introductions are needed for environmental management. A checklist for assessing impacts of introduced species was developed from studies of introduced species and recommendations for planning introductions. Sterile, triploid grass carp (Ctenopharyngodon idella) are just beginning to be used as a biocontrol agent for the management of aquatic vegetation in open waterways. Potential impacts of grass carp in open systems were identified by reviewing grass carp biology relative to the impact assessment checklist. The potential consequences of introduced grass carp were reviewed for one case study. The case study demonstrated that conclusions about potential impacts and monitoring needs can be made despite incomplete information and uncertainty. Indicators of environmental impact and vulnerability of host systems were grouped into six categories: population control, hybridization, diseases and parasites, habitat alterations, biological effects, and management issues. Triploid grass carp can significantly alter habitat and biological resources through the secondary effects of reductions in aquatic vegetation. Potential impacts and significant uncertainties involve fish dispersions from plant control areas, inability to control vegetation loss, loss of diverse plant communities and their dependent species, and conflicts with human use of the water resource. Adequate knowledge existed to assess most potential consequences of releasing large numbers of triploid grass carp in Guntersville Reservoir, Alabama. However, the assessment of potential impacts indicated that moderate, incremental stockings combined with monitoring of vegetation and biological resources are necessary to control the effects of grass carp and achieve desirable, intermediate plant densities. Cooperators: Auburn University (Alabama Agricultural Experiment Station, Department of Fisheries and Allied Aquacultures, Department of Zoology and Wildlife Sciences), US Fish and Wildlife Service, Alabama Game and Fish Division, and the Wildlife Management Institute.     

REVIEW AND ANALYSIS OF METHODS FOR QUANTIFYING INSTREAM FLOW REQUIREMENTS1

ABSTRACT: Present guidelines for selecting a method to determine instream flow requirements and evaluating the validity of the results from a particular method are insufficient. This paper contributes to the efforts of researchers to develop a guide and critique for instream flow methods. A review of instreani flow methods and recommendations for their application is supplemented by a summary of a comparison of four independent analyses. The four analyses: the Physical Habitat Simulation System approach of the Instream Flow Incremental Methodology by the U.S. Fish and Wildlife Service, the Montana Method by Tennant, and two methods by Orsborn (Maximum Spawning Area Flow and Maximum Spawning Area) represent resource intensive and simplistic data collection and analysis methods. Each analysis was used to independently determine flows to support spawning by chinook salmon (Oncorhynchus tshawytscha) in Willow Creek, Alaska. Results of these analyses indicate that each method can be used independently or collectively to generate instream flow recommendations, if calibrated to the site or area studied. Once adjusted to the species and basin of interest, methods similar to the Montana and two Orsborn methods should be used to determine flow recommendations for areas where competition for water is minimal. The Instream Flow Incremental Methodology or similar methods should be applied when competition for water is keen or when detailed evaluations of the responses of species/life phases to flow variations are required.     

A model for improving endangered species recovery programs

This paper discusses common organizational problems that cause inadequate planning and implementation processes of endangered species recovery across biologically dissimilar species. If these problems occur, even proven biological conservation techniques are jeopardized. We propose a solution that requires accountability in all phases of the restoration process and is based on cooperative input among government agencies, nongovernmental conservation organizations, and the academic community. The first step is formation of a task-oriented recovery team that integrates the best expertise into the planning process. This interdisciplinary team should be composed of people whose skills directly address issues critical for recovery. Once goals and procedures are established, the responsible agency (for example, in the United States, the US Fish and Wildlife Service) could divest some or all of its obligation for implementing the plan, yet still maintain oversight by holding implementing entities contractually accountable. Regular, periodic outside review and public documentation of the recovery team, lead agency, and the accomplishments of implementing bodies would permit evaluation necessary to improve performance. Increased cooperation among agency and nongovernmental organizations provided by this model promises a more efficient use of limited resources toward the conservation of biodiversity.     

Threatened and Endangered Species: At What Cost? The Corps of Engineers Looks at Expenditures and Priorities

Current political conditions, primarily budgetary uncertainty, and the related reluctance to make funding commitments for future generations, have raised questions about the costs of conservation and environmental protection that have not previously been asked. As Federal investments are scrutinized and budgets become ever more constrained, the costs associated with environmental requirements could begin to be of greater importance and to influence decisions on Federal projects. In response to concerns about the U.S. Army Corps of Engineers (Corps) spending under the Endangered Species Act (P.L. 93-205) (ESA), a limited investigation was performed to determine the accuracy of reported Corps expenditures. The investigation showed that, for particular groups of species, actual conservation costs for threatened and endangered species may be twice the amounts previously reported in the annual ESA expenditure reporting to the U.S. Fish and Wildlife Service. In light of this finding, the Corps has sought a means to provide more accurate and consistent reporting of expenditures for addressing threatened and endangered species. A Species Costs Template (template) has been developed to identify the types and magnitude of costs related to the ESA and to counteract the impediments (legal, institutional, and practical) to underreporting costs. The template will be used by the Corps for reporting ESA costs beginning with Fiscal Year 2005 (FY05) (reported in January 2006). Five broad categories of expenditures (effects determination costs, ESA protection and conservation costs, equipment costs, opportunity costs, and other species costs) are identified by the template.     

Modeling the Potential Impacts of Climate Change on Pacific Salmon Culture Programs: An Example at Winthrop National Fish Hatchery

Hatcheries have long been used in an attempt to mitigate for declines in wild stocks of Pacific salmon (Oncorhynchus spp.), though the conservation benefit of hatcheries is a topic of ongoing debate. Irrespective of conservation benefits, a fundamental question is whether hatcheries will be able to function as they have in the past given anticipated future climate conditions. To begin to answer this question, we developed a deterministic modeling framework to evaluate how climate change may affect hatcheries that rear Pacific salmon. The framework considers the physiological tolerances for each species, incorporates a temperature-driven growth model, and uses two metrics commonly monitored by hatchery managers to determine the impacts of changes in water temperature and availability on hatchery rearing conditions. As a case study, we applied the model to the US Fish and Wildlife Service’s Winthrop National Fish Hatchery. We projected that hatchery environmental conditions remained within the general physiological tolerances for Chinook salmon in the 2040s (assuming A1B greenhouse gas emissions scenario), but that warmer water temperatures in summer accelerated juvenile salmon growth. Increased growth during summer coincided with periods when water availability should also be lower, thus increasing the likelihood of physiological stress in juvenile salmon. The identification of these climate sensitivities led to a consideration of potential mitigation strategies such as chilling water, altering rations, or modifying rearing cycles. The framework can be refined with new information, but in its present form, it provides a consistent, repeatable method to assess the vulnerability of hatcheries to predicted climate change.     

The Weakness of Tight Ties: Why Scientists Almost Destroyed the Coachella Valley Multispecies Habitat Conservation Plan in Order to Save it

Two groups of biologists were responsible for an unprecedented delay in completing a endangered species habitat conservation plan in the Coachella Valley of southern California. While antagonism grew as each group relentlessly promoted their perspective on whether to add a few areas to the habitat preserve, their inability to resolve their differences was not simply a matter of mistrust or poor facilitation. I analyze how these biologists practiced science in a way that supported specific institutional and ecological relationships that in turn provided a setting in which each group’s biological expertise was meaningful, credible, and useful. This tight coupling between scientific practice and society meant that something was more important to these scientists than finishing the plan. For both factions of biologists, ensuring the survival of native species in the valley rested on their ability to catalyze institutional relationships that were compatible with their scientific practice. Understanding this co-production of science and the social order is a first step toward effectively incorporating different experts in negotiation and implementation of technically complex collaborative agreements.     

Biomonitors of stream quality in agricultural areas: Fish versus invertebrates

Although the utility of using either fish or benthic invertebrates as biomonitors of stream quality has been clearly shown, there is little comparative information on the usefulness of the groups in any particular situation. We compared fish to invertebrate assemblages in their ability to reflect habitat quality of sediment-impacted streams in agricultural regions of northeast Missouri, USA. Habitat quality was measured by a combination of substrate composition, riparian type, buffer strip width, and land use. Invertebrates were more sensitive to habitat differences when structural measurements, species diversity and ordination, were used. Incorporating ecological measurements, by using the Index of Biological Integrity, increased the information obtained from the fish assemblage. The differential response of the two groups was attributed to the more direct impact of sediments on invertebrate life requisites; the impact of sedimentation on fish is considered more indirect and complex, affecting feeding and reproductive mechanisms.The Unit is sponsored by the US Fish and Wildlife Service, the Missouri Department of Conservation and the University of Missouri.     

Climate Change Adaptation for the US National Wildlife Refuge System

Since its establishment in 1903, the National Wildlife Refuge System (NWRS) has grown to 635 units and 37 Wetland Management Districts in the United States and its territories. These units provide the seasonal habitats necessary for migratory waterfowl and other species to complete their annual life cycles. Habitat conversion and fragmentation, invasive species, pollution, and competition for water have stressed refuges for decades, but the interaction of climate change with these stressors presents the most recent, pervasive, and complex conservation challenge to the NWRS. Geographic isolation and small unit size compound the challenges of climate change, but a combined emphasis on species that refuges were established to conserve and on maintaining biological integrity, diversity, and environmental health provides the NWRS with substantial latitude to respond. Individual symptoms of climate change can be addressed at the refuge level, but the strategic response requires system-wide planning. A dynamic vision of the NWRS in a changing climate, an explicit national strategic plan to implement that vision, and an assessment of representation, redundancy, size, and total number of units in relation to conservation targets are the first steps toward adaptation. This adaptation must begin immediately and be built on more closely integrated research and management. Rigorous projections of possible futures are required to facilitate adaptation to change. Furthermore, the effective conservation footprint of the NWRS must be increased through land acquisition, creative partnerships, and educational programs in order for the NWRS to meet its legal mandate to maintain the biological integrity, diversity, and environmental health of the system and the species and ecosystems that it supports.     

Assessing state-wide biodiversity in the Florida Gap analysis project

The Florida Gap (Fl-Gap) project provides an assessment of the degree to which native animal species and natural communities are or are not represented in existing conservation lands. Those species and communities not adequately represented in areas being managed for native species constitute 'gaps' in the existing network of conservation lands. The United States Geological Survey Gap Analysis Program is a national effort and so, eventually, all 50 states will have completed it. The objective of Fl-Gap was to provide broad geographic information on the status of terrestrial vertebrates, butterflies, skippers and ants and their respective habitats to address the loss of biological diversity. To model the distributions and potential habitat of all terrestrial species of mammals, breeding birds, reptiles, amphibians, butterflies, skippers and ants in Florida, natural land cover was mapped to the level of dominant or co-dominant plant species. Land cover was classified from Landsat Thematic Mapper (TM) satellite imagery and auxiliary data such as the national wetlands inventory (NWI), soils maps, aerial imagery, existing land use/land cover maps, and on-the-ground surveys. Wildlife distribution models were produced by identifying suitable habitat for each species within that species' range. Mammalian models also assessed a minimum critical area required for sustainability of the species' population. Wildlife species richness was summarized against land stewardship ranked by an area's mandates for conservation protection.     

Evaluating the policy to restrict the potentially invasive black carp (Mylopharyngodon Piceus): A decision protocol with assurance bonding

The introduction of potentially invasive species is a concern to the public and the aquaculture industry. Used to protect channel catfish from infectious trematode infestations, the non-indigenous black carp has been evaluated by the US Fish and Wildlife Service (USFWS) and deemed potentially ‘injurious’ under the terms of the Lacey Act. Consequently, the black carp may be restricted from interstate commerce and eventually removed from US waters. An alternative approach to evaluating the risks posed by invasive species is considered and compared to that used by the USFWS. Short of outright restriction, reasonable options for management of such invasive species probably exist, including better use of environmental assurance bonds and return-deposit models.     

Improving our legacy: incorporation of adaptive management into state wildlife action plans

The loss of biodiversity is a mounting concern, but despite numerous attempts there are few large scale conservation efforts that have proven successful in reversing current declines. Given the challenge of biodiversity conservation, there is a need to develop strategic conservation plans that address species declines even with the inherent uncertainty in managing multiple species in complex environments. In 2002, the State Wildlife Grant program was initiated to fulfill this need, and while not explicitly outlined by Congress follows the fundamental premise of adaptive management, 'Learning by doing'. When action is necessary, but basic biological information and an understanding of appropriate management strategies are lacking, adaptive management enables managers to be proactive in spite of uncertainty. However, regardless of the strengths of adaptive management, the development of an effective adaptive management framework is challenging. In a review of 53 State Wildlife Action Plans, I found a keen awareness by planners that adaptive management was an effective method for addressing biodiversity conservation, but the development and incorporation of explicit adaptive management approaches within each plan remained elusive. Only ~25% of the plans included a framework for how adaptive management would be implemented at the project level within their state. There was, however, considerable support across plans for further development and implementation of adaptive management. By furthering the incorporation of adaptive management principles in conservation plans and explicitly outlining the decision making process, states will be poised to meet the pending challenges to biodiversity conservation.