TESTIMONY OF JAMIE RAPPAPORT CLARK, DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND DRINKING WATER REGARDING IMPLEMENTATION OF THE ENDANGERED SPECIES ACT

November 3, 1999

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 other allows 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 populations on 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 in conducting 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 database. 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 may have 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 HCP permittees 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.

Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.

Last updated: January 10, 2013