Promoting recovery or hedging a bet against extinction: Austin, Texas's risky approach to ensuring endangered species' survival in the Texas Hill Country.

• Author: Taylor, Melinda E.
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   Congress enacted the Endangered Species Act(1) ("ESA" or the "Act" "to restore species that are so depleted in numbers that they are in danger of, or threatened with, extinction."(2) Recognizing that the threat of extinction is almost always caused by loss of habitat, Congress stated that the purpose of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."(3)

   Today, twenty years after passage of the ESA, its record as the federal government's primary tool for protecting biodiversity is far from glowing. Over 650 species are listed as endangered or threatened,(4) and more than 3,600 others have been identified by the U.S. Fish and Wildlife Service (USFWS or Service) as candidates for listing.(5) Only seven species on the endangered list have recovered to the point that they merited "delisting," though 238 others are believed to be "stable or improving,"(6) and at least seven species have become extinct after being placed on the endangered list.(7)

   The ESA's limited success thus far is attributable in part to its inadequate protection of the habitat that listed species require.(8) Nevertheless, in many jurisdictions the ESA is the only legal tool for modifying a project that would destroy essential habitat; it is the safety net for protecting habitat that is not a wetland,(9) and is not located in a national park(10) or wilderness area,(11) or on federal or state land otherwise protected from development. Consequently, the Act has been invoked to modify projects ranging from interstate highways(12) to Forest Service logging plans,(13) and to compel state regulation of groundwater withdrawals.(14) Very rarely, the ESA has been used to stop a proposed project altogether.(15)

   In this era of rapid suburban and exurban sprawl,(16) more and more places which are rich in natural resources--and important habitat for endangered and threatened species--are under siege by construction and development.(17) Because few state or local jurisdictions have taken steps to plan comprehensively for growth, and even those which have tried to plan have not done so with a focus on habitat protection for rare species, it is likely that the ESA and the agencies that are responsible for implementing the Act will continue to bear the brunt of the burden of protecting endangered species' habitat.(18)

   In this article, I discuss regional habitat conservation planning, which is, as a practical matter, the ESA's only viable mechanism for dealing with large-scale habitat protection. I focus primarily on the Balcones Canyonlands Conservation Plan ("BCCP"), the regional habitat conservation plan ("HCP") that has been debated for Austin, Texas and the surrounding area since 1988.(19) While regional HCPs are promising in terms of their potential to protect large tracts of habitat while allowing development, the current model for regional HCPs, in which a tract of preserve land is set aside and unhampered development is permitted in the remainder of the area, has significant shortcomings in terms of providing adequate protection for endangered species. Austin's situation exemplies those shortcomings.

   In Austin, the BCCP was promoted for five years as the solution to conflicts between species protection and economic growth. Consequently, the local governmental entities, environmentalists, and business interests pursued no other avenues for compromise and habitat protection. When a county bond measure to raise funds for the acquisition of habitat preserve areas failed in November 1993,(20) the BCCP's potential for solving the region's endangered species problems all but disappeared. Even if the bond issue had been approved by Austin voters, fundamental problems with the BCCP would have remained. Paramount among those problems was that the BCCP's preserve system alone would not have promoted the recovery of the species for which it was designed to protect.(21) Indeed, the BCCP would not have preserved sufficient habitat to stop the steady decline of the species of concern in the conservation area.(22) The limitations of the BCCP effort underscore the need for state and local planning efforts and incentives for private land management to protect habitat and preserve biodiversity.

2. THE ESA APPLIED TO PRIVATE PROPERTY

   Ever-expanding urban areas and the concurrent increased demand on natural resources, coupled with the growing number of species listed as threatened or endangered in recent years(23) make it ever more likely that a listed species will be found on private property. Because the ESA's prohibition against "taking" a listed animal species applies with equal force to private parties and state and federal agencies,(24) the consequences of discovering a listed species on private property can be dramatic for landowners.

   Congress defined "take" in the ESA as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(25) "Harm" is defined broadly in the USFWS regulations to include "modification or degradation" of habitat:

   Harm in the definition of "take" in the Act means an act which

   actually kills or injures wildlife. Such act may include significant

   habitat modification or degradation where it actually kills or injures

   wildlife by significantly impairing essential behavioral patterns,

   including breeding, feeding, or sheltering.(26) Thus, a landowner may be prevented from conducting activities such as grazing, clearing, irrigation, and construction on his property, for fear of "taking" a listed species by modifying its habitat, thereby facing civil or criminal penalties.(27)

   Section 10 of the ESA is the vehicle by which private parties (i.e., not government agencies) may obtain a permit from the Secretary for the "incidental taking" of species,(28) provided the taking occurs in the context of an approved habitat conservation plan.(29) Though the HCP process has not been used often since it was added to the ESA in 1982,(30) the popularity of section 10(a) permit applications is on the rise.(31)

   Developers and many environmentalists are becoming interested in regional conservation plans that cover large geographic areas and may protect more than one species. Regional conservation plans are touted by their supporters as the answer to achieving balance between economic development and species protection.(32) Regional conservation plans lead to economies of scale for developers, who are absolved from going through the costly, time-consuming section 10(a) permit process for each individual activity within the area covered by the regional permit.(33) The plans are also promoted by environmentalists as the best way of ensuring that large, contiguous tracts of habitat remain undeveloped in perpetuity.(34)

   In enacting section 10(a), Congress pronounced its intention that HCPs should "encourage creative partnerships between the public and private sectors and among governmental agencies in the interest of species and habitat conservation."(35) At their best, regional HCPs would seem to be a tool for achieving workable compromise. In a community between growth and species preservation. However, a review of the regional HCPs which have been approved by the USFWS reveals that such plans do not necessarily assure the long-term viability of the species they are designed to protect.(36) The "compromise" effected by the regional HCP is often weighted heavily in favor of development, with the result that only fragmented, isolated pieces of habitat that require intensive management are protected by the HCPs.(37) One reason that HCPs have failed to live up to their potential for species protection is that they have not been crafted in conformance with the blueprint that Congress apparently intended for them--they are not designed to promote the chances of survival of the protected species. When preserve tracts created by the regional HCP constitute the only protected habitat in the HCP conservation area, the implications of the plan's failure to promote the species' recovery may be dire.

   1. The Genesis of Regional HCPs

      Section 10(a) was added to the ESA by Congress in 1982 to allow private parties to obtain a permit to escape the Act's absolute prohibition against takings "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."(38) Section 10(a) was modeled after the San Bruno Mountain HCP process.(39) The San Bruno Mountain HCP was a habitat conservation plan developed by local governments, private landowners, and developers in Northern California to permit some development while conserving habitat for the Mission Blue and other rare butterflies in the San Brano Mountain area of San Mateo County.(40) Congress made clear in the legislative history of section 10 that "the adequacy of similar conservation plans should be measured against the San Bruno plan,"(41) and described in unusual detail the basic elements of the San Bruno plan.(42)

      In the legislative history, Congress emphasized that the San Bruno HCP enhanced the species' chances of survival.(43) Congress noted that enhancement was the first of the "basic elements" of the San Bruno plan,(44) and stressed that the Secretary consider this factor in determining whether to issue a long-term permit.(45) Yet, the statute does not explicitly require that an HCP enhance the species' chance of recovery.(46) Moreover, the USFWS, in reviewing HCPs proposed since the San Bruno Mountain plan, has not held the plans to an enhancement standard.(47) For reasons discussed below, the lack of an enhancement goal or requirement for regional HCPs, particularly regional HCPs which cover a large part of a listed species' range, has meant that the protected species included in the plan receive protection inadequate to ensure their recovery, and, possibly, their continued survival.

   2. "Enhancement" in the Context of...