Negotiating Nature

n a hot, clear, late summer day just a few miles from one of the fastest growing sections of Orange County, Calif., there are no signs of human life. No factories, office buildings, homes or paved roads mar the view. Instead, the hillsides are covered with coastal sagebrush and chaparral. Stately oak and sycamore trees line dry creek beds. Mountains dot the horizon.

Here, just south of Los Angeles, roam mule deer, gray foxes, bobcats and mountain lions. Ravens, red-shouldered hawks, white-tailed kites and turkey vultures soar overhead. Two threatened species of birds, the cactus wren and the California gnatcatcher, make their nests here.

"There are species that will go extinct without places like this," says Trisha Smith, a land manager with the Nature Conservancy. She is speaking not of a national wildlife refuge or national park, but of a local nature reserve that symbolizes the Fish and Wildlife Service's new approach to species protection.

Smith manages the nature reserve for the Irvine Co., a local land developer. The reserve is one of two parcels of land the Irvine Co. is donating to Orange County under an FWS-approved habitat conservation plan. In return, the company gets federal approval to develop other parcels free from many of the restrictions usually required under the Endangered Species Act.

The new approach is a dramatic change from the way FWS operated in the years after the Endangered Species Act was passed in 1973. FWS long took a strict regulatory approach to enforcing the law's provisions, handing down rules and edicts to protect plants and animals.

In 1982, FWS won authority to approve habitat conservation plans, but it rarely did so. In 1993, at the beginning of the Clinton administration, only 14 habitat conservation plans had been approved, covering 481,000 acres. Then, Interior Secretary Bruce Babbitt made the plans a key part of the administration's species protection effort. In the last five years, more than 200 new plans have been added, totaling 6 million acres. Another 200 awaiting approval would add 18.5 million more acres.

With the habitat conservation plans, FWS uses negotiation and incentives, rather than restrictive regulations, to get private landowners to preserve lands that are home to endangered species. "We have completely changed our relationship with local landowners from conflict to consensus," Babbitt said in a July speech.

Since then, Babbitt has asked Congress to provide a stronger legal basis for habitat conservation plans and other innovative approaches to species protection in long-awaited legislation to reauthorize the Endangered Species Act. Several bills that would achieve this goal have been introduced in Congress.

Big Plans

Most of the habitat conservation plans the Fish and Wildlife Service has approved, especially the early ones, deal with only one or two endangered species and owners, and usually small parcels of land. The smallest is a half-acre site in Florida whose owner wanted to build a single-family house in an area used by Florida scrub jays, an endangered species. The owner promised to improve the quality of the remaining scrub habitat and landscape around the house to promote native vegetation.

More recent plans, though, often aim to save chunks of land large enough to preserve entire ecosystems. The plan approved for Orange County, for example, protects 38,000 acres of land.

A similar plan in San Diego would preserve 172,000 acres. Even more impressive is a recently approved plan that covers 1.6 million acres of timberland in Washington state. And Wisconsin is preparing a plan covering the entire state to protect an endangered insect, the Karner blue butterfly.

Most large-scale habitat conservation plans conserve dozens of species. The Orange County plan, for example, aims to protect more than 40 species at risk of extinction, while the San Diego one covers 85.

"We're getting people to do things for unlisted as well as endangered species," says Donald Barry, acting assistant secretary of the Interior for fish, wildlife and parks. "It is much better to protect species and their habitat now than to wait until they are critically endangered before we do anything."

Further, many recent plans have involved multiple partners, long negotiations and complex deals. The San Diego plan was signed last year after seven years of negotiations. The talks involved officials from FWS, two state agencies and nine city and county jurisdictions, plus representatives of several thousand landowners and local environmental and community groups.

"We've begun a long-overdue dialogue with landowners" on how to protect rare plants and animals on private property while also allowing economic development, Barry says.

No Surprises

The reason for Barry's focus is clear. A 1994 General Accounting Office report noted that more than a third of the 1,080 species FWS lists as endangered or threatened are found only on private property. Indeed, at least some of all listed plants and animals live on non-public lands.

Moreover, while the numbers of wolves, bald eagles, brown pelicans, black-footed ferrets and California condors are rising, other endangered species have not fared as well. A 1997 FWS report to Congress said that despite protection under the Endangered Species Act and other laws, only 10 percent of listed species are recovering. Nearly 40 percent continue to decline.

The Endangered Species Act prohibits "taking" listed species. Taking includes destroying or altering habitat as well as shooting, trapping or poisoning animals.

The act gave FWS limited authority to issue permits for the "incidental take" of endangered or threatened wildlife as part of otherwise lawful activities. Amendments in 1982 expanded that authority.

To get a permit, applicants must submit a conservation plan for the agency's approval. Plans must further the long-term conservation of endangered species and not reduce their chances of survival. They must also contain provisions for dealing with "unforeseen circumstances."

Under a habitat conservation plan, says Richard Hannan, chief of FWS' recovery and consultation branch, landowners must make up for habitat lost or degraded by development. They can set aside portions of land to be developed for reserves, buy land elsewhere, leave portions of developed land natural or restore land to its previous wild state once development has ended. They also can buy buffer land around or add to existing preserves to protect them from encroaching development.

"The goal is to minimize or mitigate any adverse effects to endangered species, not necessarily to eliminate the effects," Hannan says.

A major reason private landowners are willing to work with FWS to develop habitat conservation plans is what Babbitt has called the "no surprise" policy. "We needed a carrot on the stick [of the Endangered Species Act]," Barry explains.

Under the policy, announced by Babbitt in 1994, FWS promises that landowners who develop and abide by an approved habitat conservation plan will not be required to take or pay for further conservation measures.

That means the federal government must pay for any changes or additional conservation actions if new circumstances arise, if a species continues to decline or if another species found on land covered by a habitat conservation plan is listed as endangered or threatened.

Not all conservationists approve of the "no surprise" promise. "The policy ignores conventional scientific wisdom that recognizes and appreciates the inherent uncertainty of ecological systems," charges Laura Hood, a conservation biologist with Defenders of Wildlife.

In October 1996, eight environmental groups filed a lawsuit alleging that the Interior Department could not enforce the policy since it had never been put out for public comment and officially adopted. The department responded last May by releasing a formal policy for comment. Interior was supposed to issue a final regulation by the end of the year, but in late December the department asked a federal judge for a delay until mid-February to give agencies more time to review comments. In the meantime, the department agreed to a two-month moratorium on "no surprise" agreements.

Interior officials, though, remain committed to the policy. "If developers and local jurisdictions have negotiated in good faith and if we fail to perceive a future threat, then we should pick up the tab," says Gail Kobetich, the head of FWS' Carlsbad, Calif., field office, who negotiated the Orange County and San Diego habitat conservation plans.

Meeting After Meeting

The "no surprise" policy may be the carrot that gets landowners to the negotiating table, but it won't work without the stick of the Endangered Species Act.

Orange County and San Diego, along with neighboring Los Angeles, San Bernardino and Riverside counties, had been considering developing natural community conservation plans under a state law since 1991. But only when FWS declared the California gnatcatcher a threatened subspecies in 1993, did negotiations get serious. The gnatcatcher is a small bird that once ranged from Santa Barbara west of Los Angeles to the Baja Peninsula. An estimated 80 percent to 90 percent of the coastal sagebrush and chaparral habitat it needs to survive has been destroyed.

By declaring the gnatcatcher a threatened species, FWS could have delayed if not derailed much of the proposed development in southern California. But FWS used an obscure section of the Endangered Species Act allowing the agency to permit incidental take of the gnatcatcher as long as the intent was to enhance the bird's conservation.

"The gnatcatcher made all of us in Southern California think about what we were going to do," Kobetich says. "We knew we could not stop all development. It forced people to recognize that no development could move forward efficiently without large-scale planning."

Even so, getting all parties in Orange County and San Diego to agree was a long, difficult task. "It was meeting after meeting after meeting," Kobetich recalls of the legal, tax, scientific and policy committees formed to hammer out a consensus.

The Fish and Wildlife Service's role, Kobetich adds, was mostly to advise. "We were very careful not to be out front," he says. "It had to be a local effort. If it wasn't, there would be no local buy-in."

Still, FWS officials and scientists from the Carlsbad and Sacramento field offices, plus the Portland, Ore., regional office, served on various committees and commented on draft plans. The agency also funded most of the biological surveys used to determine which lands to preserve, counseled on the requirements of the Endangered Species Act and, in the end, approved the plans and issued incidental take permits.

"There were some rocky points where we bogged down, but we never thought about the possibility of failure," says Vicki Finn, FWS' assistant regional director.

In addition to the two new nature reserves in Orange County totaling 38,000 acres, FWS will create a new 56,000-acre San Diego National Wildlife Refuge as part of the 172,000 acres to be preserved there. Similar habitat conservation plans and nature reserves are under negotiation in Los Angeles, Riverside and San Bernardino counties, Finn says.

Not only did FWS have to work with state and local officials and local landowners and conservationists, the agency had to convince its own staffers. "Some people continued to think in terms of a species-by-species or project-by-project approach to conservation," says David Harlow, a wildlife biologist in FWS' Sacramento field office. "We had to get them thinking about ecosystems and consensus."

As a way of overcoming bureaucratic resistance, FWS' Sacramento field office held a series of meetings for its own employees as well as state wildlife biologists. "Once we explained the plans and the new way of doing business, we were able to bring along our organization," Harlow says.

Safe Harbors

Habitat conservation plans represent just one new way FWS seeks to protect species.

The agency has also signed safe harbor agreements, offering private landowners protection from requirements of the Endangered Species Act if they voluntarily conserve habitats for the benefit of listed plants and animals found on their property.

Some landowners feared that if they maintained or enhanced habitats for endangered species, they could not develop the land later, says Heather McSharry, a wildlife biologist in FWS' recovery and consultation branch.

As with habitat conservation plans, FWS negotiates safe harbor agreements based on wildlife surveys. The agreements must provide an overall conservation benefit, McSharry says. That can be achieved by restoring habitat, reducing habitat fragmentation or leaving corridors between habitat fragments.

FWS has approved 25 safe harbor agreements covering 21,000 acres since the program began in 1994. Another 16 under development would add 14,000 acres. "Most landowners are willing to work with us to conserve species," McSharry says.

In addition to the 1,080 listed endangered and threatened species, about 350 others have been nominated for listing. FWS and the National Marine Fisheries Service have proposed to add about a third of those to the endangered species list. Such candidate species are not protected under the Endangered Species Act until they are listed.

FWS has negotiated candidate conservation agreements to encourage private landowners to protect habitat now for wildlife that might be listed rather than face restrictions on developing their property later. Owners who agree are assured they will not have to undertake more conservation measures if a species covered by an agreement is listed.

Candidate conservation agreements "will help a species before it needs to be listed," FWS' Hannan says. "We want to remove enough threats to nullify any need to list them in the future." Some 40 agreements have been signed since 1994, covering more than 200 candidate species.

Not Enough Cops

Perhaps to be expected, safe harbor plans, candidate conservation agreements and especially habitat conservation plans have sparked controversy. Some conservationists argue that they promise developers, timber companies and other landowners too much freedom, given the long-term uncertainties facing wildlife. Nor, critics charge, do they ensure the species' recovery.

"That's the crux of the issue," says Defenders' Hood. "Recovery [of an endangered species] is the purpose of the act. Habitat conservation plans should contribute to a species' recovery."

"What's the alternative?" Interior's Barry asks. "If you think we are making progress [under the Endangered Species Act], then habitat conservation plans are a big gamble. If you don't think we are doing so well, then it is not so big a gamble. Nothing is risk-free."

Habitat conservation plans "are a lousy solution for which there are no better solutions," argues Michael Bean, a senior attorney at the Environmental Defense Fund and an authority on the Endangered Species Act.

The act has been a "paper prohibition with no real-world impact on preventing development," Bean says. "The only thing that really matters in conservation is what happens on the back 40. [Habitat conservation plans] are the only tool that can protect the great majority of endangered species on private lands."

"We can't be everywhere to watch everything. If we can get major landowners to incorporate conservation into their activities, that's a major step forward," Barry says.

Still, some scientists argue too little is known about most species to provide landowners with assurances that further conservation measures will not be needed. In a recent letter to Babbitt, nine experts charged that many habitat conservation plans "have been developed without adequate scientific guidance and . . . have the potential to contribute to threats to listed species and their habitats."

In the end, habitat conservation plans like the Orange County plan may not represent the best absolute protection for endangered species or be based on the strongest possible scientific evidence, says Daniel Silver, coordinator for the Endangered Habitats League, a California environmental group.

But, Silver adds, "we can't wait another 10 or 20 years to get more data or negotiate a better plan. We have to be practical. The conservation achievements are real. We know many species won't be there if we wait."

Jeffrey P. Cohn is a freelance writer who covers environmental and other issues for Government Executive.