Natural communities conservation planning: California's new ecosystem approach to biodiversity.

AuthorManson, Craig
PositionEndangered Species Act at Twenty-One: Issues of Reauthorization

There is an emerging consensus that current legal approaches to the preservation of species are insufficient to achieve their objectives. The most drastic of these approaches, embodied in the Endangered Species Act of 1973 (ESA),(1) has bogged down in political and economic controversy, bureaucratic inertia, and what has been called "individual species gridlock." These difficulties arise in part from the fact that new threats have supplanted the problems the ESA was designed to address and in part from the realization that our understanding of the value of biological diversity has matured. At the same time, economic realities have forced many landowners to re-examine their important, but often expensive, participation in the preservation of biodiversity.

As long as the ESA was concerned with the disappearance of exotic animals due to depredation (which in fact was not very long), it was a workable approach. The ESA regulatory procedure focuses on the listing of individual species as threatened or endangered.(2) This procedure ignores the complex ecosystems in which species exist. As a result, the ESA approach in most cases cannot reverse the decline of listed species despite strict regulation of activities involving such species. Few species have ever been removed from the threatened or endangered lists.

The listing of individual species and the failure to take notice of an entire ecosystem results in endangered species crisis management. By statutory definition, an "endangered species" is one on its ecological deathbed.(3) Such species need critical care; many probably cannot be saved. Many observers find triage, or the administration of emergency measures in a crisis, inadequate and offensive in this context,(4) for it results in the devotion of enormous resources to hopeless cases.

The ESA approach as it has developed forces a false choice between economic activity and the preservation of biodiversity. Participation by private landowners, perhaps the most critical actors on the stage of conservation, is discouraged by this false choice. It is also discouraged by the apparent unfairness of the ESA regulatory approach, which is perceived as placing the entire burden of conservation and recovery on the landowner or developer with the most recent project.

This article describes the basics of the ESA approach as the background to the development of California's Natural Communities Conservation Planning (NCCP) program. NCCP is the first ecosystem planning program to involve all levels of government--from Capitol Hill to City Hall--and to encourage private landowner participation through incentives.

  1. ESA STRATEGIES

    1. The Federal Endangered Species Act

      The regulatory linchpins in the federal ESA are sections 7 and 9 of the Act.(5) Section 7 requires federal agencies to consult with the Secretary of the Interior(6) to ensure that agency actions are not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of critical habitat of such species.(7) Section 7 acquired its regulatory teeth in 1978, when the U.S. Supreme Court decided that section 7 required a halt to the construction of the Tellico dam to preserve the snail darter, a rare fish jeopardized by the project.(8) Section 7 also covers private activities to the extent that they require the authorization or other involvement of a federal agency.(9)

      Section 9 of the federal ESA prohibits, among other things, the "taking" of endangered species.(10) To "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in such conduct."(11) Section 9 applies to any person, public or private.(12) The regulations promulgated by the U.S. Fish and Wildlife Service (USFWS) further define "harm" as "an act which actually kills or injures wildlife [including) significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(13) In Palila v. Hawaii Dep't of Land and Natural Resources, the court held that showing "harm" does not require proof of death of individual members of a species, but only evidence of habitat destruction.(14) Section 9 and the regulations promulgated under it are, therefore, the blunt end of the club for those who seek to modify critical habitat.

      Sections 7 and 9 represent the least sophisticated aspects of preserving biodiversity. Fortunately, however, they are not the last word in the federal ESA. Section 10(a) of the Act allows the Secretary of the Interior to permit a taking otherwise prohibited by Section 9 "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."(15) To receive such an "incidental take permit," an applicant must submit a plan specifying the likely environmental impacts of the taking, steps the applicant will take to minimize and mitigate the impacts (and the funding available to implement these steps), alternatives to the taking and reasons why they are not being used, and any other measures the Secretary may require as necessary and appropriate to the plan.(16) Such plans are known as habitat conservation plans (HCPs). To secure approval of an HCP, the Secretary must solicit public comment and then find that: 1) the taking will be incidental; 2) the applicant will, to the maximum extent practicable, mitigate and minimize the impacts of the taking; 3) the applicant will ensure sufficient funding for the plan; and 4) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.(17)

      Congress added the HCP process to the ESA in 1982.(18) Shortly thereafter, the process was judicially blessed in Friends of Endangered Species v. Jantzen.(19) In that case, challenges to an HCP based on the ESA and the National Environmental Policy Act(20) were rejected.(21)

      Section 10(a) and the HCP process bring a degree of certainty to the economic aspects of habitat preservation,(22) as well as better cooperation between landowners and wildlife agencies. Most significantly, an HCP allows conservation to be accomplished on a regional basis. Clearly, these are positive aspects of the HCP idea.

    2. The California Endangered Species Act

      The California Endangered Species Act...

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