Habitat conservation plans: protecting species, enhancing democratic legitimacy and promoting stewardship are not mutually exclusive goals.

• Author: Hulick, Anne B.

1. INTRODUCTION II. STATUTORY REQUIREMENTS FOR EFFECTIVE PUBLIC DELIBERATION ARE LACKING III. THE CURRENT INSTITUTIONAL STRUCTURE IS INADEQUATE TO ACHIEVE TRUE PUBLIC DELIBERATION IV. PUBLIC PARTICIPATION IN THE BALCONES CANYONLANDS CONSERVATION PLAN: A CASE STUDY V. EMPOWERED PARTICIPATORY GOVERNANCE IN HCPS CAN RESULT IN GOAL ATTAINMENT, DEMOCRATIC LEGITIMACY AND PROMOTE STEWARDSHIP VI. CONCLUSION: RECOMMENDATIONS FOR REVISING THE HCP HANDBOOK I.

INTRODUCTION

Habitat Conservation Plans (HCP's) have become more commonplace as vehicles that allow private landowners to conduct development projects on non-federal lands that otherwise would have been prohibited if the project was likely to cause the "taking" of endangered or threatened species. The Endangered Species Act (ESA) [section] 10 was amended in 1982 to allow for protection of endangered or threatened species on private lands that were increasingly targeted for development. The goal of habitat conservation plans is to provide collaborative partnerships between the public and private sectors in preserving species and their habitats. (1) The success of this model in balancing the preservation of species and development on non-federal land remains questionable. Several factors that hinder the success of HCP's have been identified, particularly in large multi-species conservation plans (MSCP). (2) These factors include the type of applicant, land ownership patterns, the extent to which HCP's affect the local economy, and public participation. (3)

Of these factors, a "well managed public participation process has the potential to provide significant benefits to HCP applicants, U.S. Fish and Wildlife Service (FWS) staff, outside stakeholders and affected species." (4) Effective public participation and deliberation is identified as one of the most important elements to a plan's ultimate success. The importance of public deliberation to the success of large MSCP's was recently underscored in Southwest Center for Biological Diversity v. Bartel, where a U.S. District Court enjoined the defendants from implementing an incidental take permit first granted in 1997. (5) The lack of public deliberation on appropriate mitigation measures and funding assurances was one of the principal reasons for the court's order. (6)

Public deliberation is defined as a "dynamic process in which the ... [s]takeholders share information with each other about their interests, concerns and ideas." (7) The sharing of information in a manner that achieves meaningful participation requires: 1) applicants to solicit and incorporate public participation during the planning process, 2) that all parties communicate expectations of how public input will be used in the planning process, and 3) creating an environment of trust in which the parties can work together to formulate creative, acceptable solutions to problems. (8) Public deliberation is beneficial because it improves the quality of an HCP, builds long-term public support for it, provides a measure of success during the planning process and supports the Congressional goal of creating partnerships between federal agencies and private landowners in facilitating mutually supported mechanisms for both development and species preservation. (9) Yet, the complexity of fostering public deliberation in large MSCP's is often viewed as an impossible, inefficient and even illegal process. (10)

The process of developing an HCP is governed by the Endangered Species Act [section] 10, a basic no frills regulation codified in 50 C.F.R. [section] 17.22(b) and the detailed guidelines set out in the "HCP Handbook," an internal guidance document. However, the regulatory framework created by these sources is too linear and reductionistic to meet the complex goal of balancing the preservation of species and economic development, much less than to meet the goal of facilitating public deliberation. There is no legal requirement, nor even a real incentive, for citizens from the variety of stakeholder groups to have a meaningful role in HCP development, other than in the sterile public comment periods required by ESA [section] 10(c). (11) These legally required public comment periods are inadequate both in terms of timeframe and process for facilitating true deliberation. (12)

The overall success of preserving species is further hindered by a society rooted in utilitarian rights to private land ownership. Constrained by the legal framework, utilitarian values of land ownership and the current industrial model paradigm, public participation in HCP's has resulted in changes in only fourteen percent of currently developed plans. (13)

The following case study involving the Balcones Canyonlands Conservation Plan (BCCP), is particularly illustrative. The BCCP, a regional MSCP, consists of a permit issued to both Travis County and the City of Austin, Texas on May 2, 1996 by the U.S. Fish and Wildlife Service (FWS), pursuant to [section] 10 of the ESA. (14) The BCCP highlights the complexity of promoting the goal of conserving endangered species in an area experiencing significant growth and serves as a useful case study in analyzing the success of large MSCP's. This paper will argue that in addition to the reconceiving of HCP's as experiments in which society has a real stake, we must confront the fact that transformational leadership is the missing catalyst for the kinds of public deliberation large MSCP's must sustain to succeed. The BCCP provides powerful anecdotal evidence for this claim. (15) The detrimental effects that resulted from inadequate public deliberation support the claim that not only are the ESA [section]10 and the HCP Handbook not prescriptive enough, but the lack of leadership plays a critical role in the outcomes of MSCP's. Fundamental changes are needed to the structure and processes that support the development of an HCP. This paper will suggest that the theoretical framework of Empowered Participatory Governance (EPG), (16) coupled with transformational leadership (17) would provide the means for enhancing public deliberation at the local level.

EPG aims to provide mechanisms for democratic institutions that are "at once more participatory and effective than the familiar configuration of political representation and bureaucratic administration." (18) Three general principles, which are the foundation of the EPG model include: 1) a focus on specific, tangible problems, 2) involvement of ordinary people affected by and close to those problems, and 3) the deliberative development of solutions to these problems. (19) EPG requires a fundamental reconceptualization of the institutions that frame our notion of democracy. This democratic experimentalism envisions a deliberative polyarchy at the local level in which citizens participate directly, supported and encouraged by more efficient, transparent governmental structures. (20) True public deliberation, as articulated by Fung, Wright, and others, could contribute to protection of species while enhancing democratic legitimacy and promoting stewardship on a broader scale. While much has been written on the tangible elements of this reconceptualized model, a normative framework remains under-theorized. (21) The elements of this reconceptualized model include: 1) different structures which allow for collaborative problem solving, (22) 2) increased stakeholder participation and interagency coordination, (23) and 3) adaptive management. (24) However, successful implementation of this model will require true transformational leadership. (25) This paper will build upon previous works that describe these elements in detail by focusing in particular on structures that enhance stakeholder participation and deliberation. This paper will demonstrate how transformational leadership can serve as the critical linchpin in facilitating success in large MSCP's. By focusing on the structures and elements necessary to enhance public participation and deliberation at the local level, this paper will add to a reconceptualized model for HCP's that simultaneously protects species, enhances democratic legitimacy, and promotes stewardship among stakeholders. (26)

II.

STATUTORY REQUIREMENTS FOR EFFECTIVE PUBLIC DELIBERATION ARE LACKING

In 1982 [section]10 of The Endangered Species Act (ESA) was revised to include exceptions formulated in response to complex tensions between development and preserving habitat for threatened and endangered species. (27) ESA [section] 10(a)(1)(B) provides that the FWS may issue a permit to an applicant that authorizes "any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." In amending the ESA, Congress made it clear that individual species must be viewed in relation to their ecosystem and that conservation plans developed pursuant to ESA [section] 10 would be "creative partnerships" for the interest of species and habitat conservation. (28) Public comment requirements are governed by ESA [section] 10(c), which provides that the notice of permit application "shall invite the submission from interested parties, within thirty days after the date of the notice." (29) Public comment periods provide a forum in which the public can review a plan and submit comments or questions in writing. A public meeting is often held. The comment periods alone do not provide a forum for dialogue, nor is there a legal requirement to address or incorporate these comments into the final plan. The legal requirements for public comment are inadequate to meet the HCP goal for creative partnerships for three reasons: 1) timing, 2) the emphasis on efficiency and satisfaction of the applicant, and 3) the forum for public comment actually hinders participation by being time-limited and geared towards obtaining reactions to an already-developed plan rather than engendering input and...