California Has Huge Stake in Federal HCP Debate
Despite what Ralph Nader claimed, the differences between Al Gore and George W. Bush on environmental issues were stark. Those contrasts have become even more vivid during Bush's first few months in office. However, Bush appears likely to continue the Clinton Administration's support for Habitat Conservation Plans as a way of managing endangered species issues.
In March, Bush began eating away at the Clinton environmental legacy. First, Bush announced the United States would not abide by an international agreement calling for reductions in carbon dioxide emissions. The same month, Environmental Protection Agency Administrator Christine Todd Whitman said she would revoke a Clinton administration plan to reduce the allowable level of arsenic in drinking water, and Interior Secretary Gale Norton revealed that she would reconsider a ban on snowmobiles in Yellowstone National Park. Also in March, regional directors for the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) announced they would stop obeying a Clinton order to decrease logging along salmon streams east of the Cascades in the Pacific Northwest, and the Justice Department said it would not defend a rule prohibiting road construction in 60 million acres of national forest — a rule blocked last month by a federal judge in Idaho.
But habitat conservation plans (HCPs) provide a different case, because they embody the new president's clearly expressed faith in stakeholder involvement, respect for property rights and consensus-based policymaking. A previously ignored approach to endangered-species protection, HCPs took on new life under Clinton and his Interior secretary, Bruce Babbitt.
California has an enormous stake in the administration's stance toward these controversial conservation tools; it has more HCPs in place than any other state, and they have become the crucial means by which urban growth is balanced against the needs of a lengthening roster of imperiled fish, plants and wildlife.
Reliance on HCPs to reconcile potential conflicts between use of private property and protection of endangered species was a hallmark of the previous administration, particularly after Republicans took control of Congress in the 1994 midterm election. Republican legislators used their newfound control over key committees in the House and Senate to press for substantial changes in the Endangered Species Act (ESA), a lightning rod for criticism from political conservatives who view it as an impediment to business and an assault on property rights. Revision of the act was a key component of the party's "Contract With America," the sweeping set of policy objectives that had much to do with the GOP's success that year at ending decades of Democratic control over Congress.
In 1995, Republican representatives and senators introduced bills to impose a moratorium on new listings of species as threatened or endangered, to cut off funding to federal agencies that enforce the act, to require reimbursement for landowners whose property values were decreased by ESA restrictions, and to abolish the ESA's protection of habitat.
Those legislative efforts to revise the ESA (which has not be formally reauthorized since 1992) ultimately faltered in the face of rising public opposition, veto threats by Clinton, and defections by moderate Republicans representing suburban districts in the East, where the law remains popular and where few of its impacts are felt. The battle nevertheless had a significant affect on federal policy, indirectly prompting administrative changes in how the ESA was applied and enforced.
Early in 1995, hoping to blunt congressional enthusiasm for rewriting the ESA, the administration proposed exempting some small landowners from regulation and toughening the scientific scrutiny of proposals to list species. It also began encouraging the use of HCPs, first authorized by Congress in 1982 but used only sparingly until that time. Before 1994, only 20 had been adopted. In the next two years, USFWS approved 196. There are now 341 in effect.
Habitat Conservation Plans are voluntary agreements negotiated between the federal government and private landowners or states, allowing the "incidental take" of a listed species during the course of otherwise lawful activity. An HCP must accompany any application for an incidental take permit, spelling out how the effect of the permitted activity on a listed species will be minimized and mitigated. In theory, an HCP incorporates measures that actually improve a species' chances for survival — allowing destruction of a small amount of habitat in one place, for example, while requiring preservation of an even greater amount elsewhere. At the same time, HCPs also enable farmers to continue farming, loggers to continue logging, and builders to keep building.
It is still a bit early to fully gauge the Bush administration's enthusiasm for HCPs. The USFWS does not even have a new director yet, and many policy positions in the Department of Interior remain unfilled. A spokesman for USFWS said the rationale underlying the HCPs program appears to mesh comfortably with the administration's emphasis on local participation in regulatory decisions and balancing conservation with protection of private economic activities. He stressed, however, that no formal pronouncements had come from the Interior secretary's office.
California alone has more than a quarter of all the HCPs approved by the federal government and, therefore, has a huge stake in the administration's eventual position. Despite their popularity among large landowners and businesses, HCPs remain controversial and are particularly unpopular among national environmental organizations.
Perhaps the best example of the pitfalls liable to trip up an HCP is provided by the Natomas basin, a vast swath of farmland and open space on the northwest side of Sacramento.
The area around the state capital is booming, and local planners and elected officials view Natomas — with its convenient access to downtown Sacramento, an airport and two freeways, and its proximity to existing urban services — as a logical place to channel urban growth.
The 83-square-mile basin, which reaches into Sutter County, also is home to several endangered and threatened species, including the giant garter snake and the Swainson's hawk. The presence of those creatures led four years ago to negotiation of an HCP among local landowners, the city of Sacramento and USFWS.
About a quarter of the basin is within city limits; planners project that acreage could eventually be home to 62,000 people. The HCP allowed builders to proceed on the condition that they pay into a fund that land conservancies would use to purchase wildlife habitat elsewhere within the basin. With the HCP approved and an incidental take permit in hand, builders ago began bulldozing home sites two years ago.
Environmentalists sued. Although they lost in Sacramento County Superior Court, they prevailed last year in federal court when a judge ruled the HCP inadequate. The judge noted that the HCP purported to address wildlife needs through the entire basin, even though the other major parties that would have to be involved to make the plan work — two counties, a water company and a reclamation district — had not agreed to participate. By itself, the habitat acquisition program undertaken within city limits could not guarantee survival of the snake and hawk, the judge said.
In May, parties to the lawsuit agreed to a settlement allowing limited development in Natomas to move forward in exchange for a more aggressive habitat-acquisition program — one that includes the possibility that the city might condemn land and purchase it from unwilling owners. The HCP for the basin is also being revised.
Condemnation of private property to benefit wildlife is probably not a strategy the Bush administration would endorse. But the essence of the plan, and even the resolution of the dispute surrounding it, includes bedrock Republican objectives: local involvement, and a balancing of environmental and economic needs. Created during a Republican administration, raised to prominence under pressure from a Republican Congress, the HCP process seems well adapted to survive the new political climate in Washington.
Department of Interior: 202-208-3171
USFWS information about HCPs: http://endangered.fws.gov/hcp/index.html