Bush Administration Believes
In Cooperative Conservation

AUSTIN – The Bush administration believes that "cooperative conservation" is a critically important element of the Endangered Species Act. So says Ann Klee, counselor and special assistant to the Secretary of the U.S. Department of the Interior.

Klee spoke at recent meeting focusing on the federal Endangered Species Act and habitat conservation planning. The meeting was sponsored by CLE International, a provider of continuing professional education programs throughout the United States and Canada. Its seminars focus on emerging legal issues of importance to attorneys, real estate professionals, accountants, consultants and government enforcement agencies.

Klee told listeners that she doubts many really imagined the far-reaching role the ESA would play in land management and water management when it was enacted in 1973. Virtually every major land and water management action that comes up today somehow involves endangered species issues at some point in the process.

"Over time the Act has evolved to the point that it is no longer about protecting species from extinction. It really has become a backdrop against which we have to balance and evaluate all economic and recreation activity against conservation of plants and animals," Klee pointed out.

"In the process it has pitted landowners and water users against species. In some cases it has pitted the West against the East, and in some cases it has resulted in economic hardship, particularly in the Pacific Northwest. It has created a federal bureaucracy that is perceived — sometimes correctly, again unfortunately — as caring more about plants and animals than humans."

The Bush administration, Klee said, wants to create a new era of citizen-led conservation, something they’re calling "cooperative conservation." The Department of Interior, she said, has set forth some simple guidelines to accomplish that task. First, they intend to work with all stakeholders — states, local governments, tribes, conservation groups, the business community and landowners. The idea is to work jointly with these groups to conserve species before they require listing, the speaker explained.

The Secretary of Interior, she said, also recognizes that the process for dealing with species once they’re listed needs to be improved. To do that, they intend to build on strategies already in place, such as habitat conservation plans, candidate conservation plans and safe harbor agreements. The department, she added, will continue to look for new strategies as well.

One such strategy is to provide incentives to landowners to encourage them to become partners in conserving habitat for officially "threatened" or "endangered" species.

"We will reach out to those with differing viewpoints, because that is one of the most important ways to prompt creativity and innovation," Klee told listeners.

"Ultimately, we believe that the ESA has to be viewed as more than a regulatory program. We have to find ways to encourage partnerships that will supplement the existing regulatory regime."

Recovery of listed species, which is the true measure of success of the law, she noted, will largely depend not just on the regulatory program but on the beneficial and often voluntary actions of states, landowners and others to restore habitats.

She focused specifically on the importance of working in partnership with private landowners.

"We face a situation now where over 50 percent of the listed species have 80 percent of their habitat on private land," she pointed out.

"While federal agencies have an obligation to recover species, we will not recover species on federal lands alone. The Secretary’s cooperative conservation plan embraces a philosophy that landowners are the key to successful recovery of species."

Landowners, the speaker said, have repeatedly proven that they are good stewards of the land.

"There are literally tens of thousands of examples of landowners who every day are stepping up to the plate through programs like safe harbor agreements, habitat conservation plans and numerous other programs offered by the U.S. Fish and Wildlife Service. We need the skill and the willingness of landowners to preserve, restore and build habitat," she stressed.

Klee talked at length about some of the tools being used successfully in this cooperative manner. In a Candidate Conservation Agreement, F&WS works with a state or landowner on a plan of action to conserve the species on the property before the species is ever listed. A good example of a CCA, Klee said, is a partnership agreement that F&WS has entered into with Utah to protect the virgin spindeace, a native fish.

"Because the state was willing to act early to address the needs of this fish, we were able to get ahead of the curve and hopefully it will never have to be listed," Klee told listeners.

To date, more than 120 CCAs have been completed and the implementation of these CCAs has obviated the need to list seven species nationwide since 1999.

Some landowners, Klee acknowledged, need assurance that if they agree to enter into a CCA they will not be asked to implement additional conservation measures or have any other land, water or other resource restrictions imposed on their property in the event that a CCA is not successful. In those cases, the service has developed a variation of a CCA that’s called Candidate Conservation Agreement with Assurances.

An Idaho sheep and cattle producer has entered into a CCAA and is helping save the Southern Idaho ground squirrel, which is a candidate for listing. Under this CCAA, the rancher has agreed not to allow the shooting, trapping, or poisoning of ground squirrels on his 43,000-acre ranch. He also has agreed to give F&WS access to his land to conduct surveys and engage in monitoring of the animal. In return, the rancher will not be required to implement any additional conservation measures if the ground squirrel has to be listed, Klee noted.

Three CCAAs have been completed thus far, and F&WS has a dozen more that they expect to complete in the next few years.

For species that are already listed, the F&WS continues to use "safe harbor" agreements and habitat conservation plans to develop conservation partnerships. As of August this year, the F&WS had approved 403 habitat conservation plans covering 31 million acres and protecting more than 500 listed and sensitive species.

"That’s pretty remarkable, considering 10 years ago there were probably only a handful of these kinds of agreements around," Klee told listeners. "The service is currently working on over 200 additional HCPs, and when completed they will cover an additional 27 million acres and 323 species."

Southern California is a rapidly growing area and it hosts dozens of listed species. She sited the San Diego Multi-species Conservation plan as a good example of how an HCP can bring a variety of partners to the table to find innovative solutions to conserving species. The conservation plan brought together state and local officials, developers, the environmental community and private landowners, covers more than a million acres and protects habitat of 85 rare plants and animals while allowing necessary development to proceed.

"It is a good example of how smart growth can work hand and hand with ESA," she insisted.

One of the great strengths of the HCP programs, Klee said, is their flexibility. Conservation plans can vary tremendously in size and scope.

In Texas the Capital Area Council, Boy Scouts of America, is working with F&WS through an HCP to restore habitat for the Houston toad. The Boy Scouts recently acquired title to the 5000-acre Griffith League Ranch southeast of Austin. It’s in what is called the Lost Pines Ecosystem, which also happens to be one of the few remaining large tracts of habitat for the toad.

Klee also discussed the "no surprises" policy, which she said simply means that a deal is a deal.

"When a landowner enters into an agreement with the government they can be assured that the government will not come back in the future and require them to do more than is stated in the agreement for the species covered in that agreement," Klee said. "It also gives landowners who want to use the land something that they need, and that is regulatory certainty."

The "no surprises" policy, the speaker said, is currently being challenged in district court in Washington DC, but she assured listeners that the Bush administration would continue to support and strongly defend the policy.

The administration, she said, will also continue to use and improve safe harbor agreements. These agreements also employ a similar kind of regulatory assurance. Thus far, F&WS has entered into 15 safe harbor agreements with 140 landowners that cover several million acres. Another 30 agreements are pending.

Klee talked about a recent safe harbor agreement between F&WS and the Peregrine Fund, just one of the programs that has achieved real conservation benefits on the ground. This particular agreement, she noted, underscores the importance of regulatory assurances to landowners.

In this case, the Peregrine Fund was interested in reintroducing the officially endangered Aplomado falcon in southwestern Texas. The grasslands here are said to be ideal habitat for the bird, which coexists nicely with cattle.

Ranchers were initially reluctant to allow reintroduction of the bird on their land because they were concerned about the implications of allowing this protected species back on their land. In addition, the ranchers didn’t really want F&WS coming onto their land and telling them how to manage the land or their cattle.

The Peregrine Fund, Klee said, worked with F&WS to come up with an agreement that would sufficiently address landowners’ concerns.

The program, the speaker said, has been a tremendous success. So far, 702 falcons have been released on more than 1.6 million acres. This past year there were 33 wild territorial pairs and they had fledged 59 young.

To aid in these various partnership approaches, Klee said the Bush administration is committed to funding grants and other financial incentives to private landowners and states. So far, more than $100 million has been given as grants. This year’s budget also includes funding for two new programs — a $40 million Landowner Incentive Program and a $10 million Private Stewardship Grants Program.

One of the biggest challenges facing the current administration, Klee said, is finding a way to reduce the amount of litigation generated by the ESA.

"Virtually every decision we make or don’t make is subject to challenge," she told listeners. "As it stands now, the ESA is driven by litigation and not by biologists using their professional judgments to determine priorities. We have lawyers telling scientists what needs to be done."

Litigation, Klee stressed, is preventing F&WS from doing its job.

"We have some of our best people dealing with listing litigation rather than working on creative ways of how to recover species. Solving this crisis has to be one of our top priorities."

Congress, Klee said, may eventually need to address the litigation problem by amending the ESA.

"We need Congress to give F&WS more flexibility to set priorities and to allow us to implement biologically based listing programs."

Another area where the department and F&WS face significant litigation and significant criticism relates to the economic analysis part of critical habitat designation.

"Although ESA requires that most of the decisions be based solely on best available scientific information and not economics, there is a notable exception, and that is in the designation of critical habitat," Klee explained. "Here the Act requires that we consider economic and social impacts. Unfortunately, in the past the economic analyses have been relatively cursory, asserting that the economic and social impacts are due to listing and not to the critical habitat designation."

In response to considerable public input and direction from courts, Klee told listeners, recent economic analyses have been more robust.

"We are currently developing a framework document to guide how we do economic analysis in the context of critical habitat designation. We expect to publish a draft for public comment before we finalize it."

Those in charge of implementing the Act have also been criticized and accused of using bad and biased science, and in some cases no science at all in making decisions.

"Those concerns are not entirely illegitimate," Klee admitted. "We have been criticized fairly in some cases, I think, over the quality of our science, our willingness to consider the science of others, and agenda-driven science.

"It is imperative that we address those concerns, because the very credibility of the decisions we make depends on the public having confidence in the science that underlies our decisions."

The Department, Klee said, is in the process of addressing these concerns on several fronts.

"We will have internal reforms to improve the quality and reliability of our science. We will subject our listing determination, critical habitat designation and recovery plans to independent peer review. We will invite independent scientific review of all of our science, and we will welcome any outside expertise," she noted. "All of these measures are to ensure that our decisions are based on the best available science, science that is sound and defensible."

Klee told listeners that she disagrees with many who say the Endangered Species Act is totally inflexible.

"Can it be improved? Absolutely. Will legislative issue fixes help? Yes, I think they would. I just don’t think they’re forthcoming in this Congress or probably any foreseeable Congress," Klee said.

"Have courts made matters worse on some issues? I think they have, but I also believe that the law, albeit flawed in its current form, provides sufficient flexibility through Sections six and 10 and even through Section seven to develop partnerships with the state to manage wildlife to provide landowners with the flexibility certainty that they need to manage their land in an economically viable way while recovering endangered species," she insisted.

Klee concluded her remarks by reiterating the need for cooperation among all groups.

"We believe that cooperative conservation can provide the foundation for an era in which endangered species are viewed not as a problem, but rather as an asset. To succeed in recovering species, however, we must reduce the controversy associated with ESA, we must restore the balance between the rights of individuals and the legitimate needs of species, and we must use the flexibility that’s built into the ESA to promote partnerships for conservation."