Proposal The Dialogue Group proposes that Congress amend the Act to create an energized recovery planning process. Such a process must actively involve private landowners and other stakeholders in its development and provide the incentive that certainty of knowledge about the species' recovery needs can bring. Discussion An energized recovery planning process must: articulate certainty and definitiveness as to recovery objectives for populations identify specific and budgeted tasks for the respective agencies to achieve species recovery; ensure that jurisdictional entities, private landowners, industry, conservation organizations, and others have an opportunity for participation and ownership in the plan and its implementation; facilitate identification and integration of natural resources and land management programs at diverse jurisdictional levels, including regulatory, incentive (including tax and farm conservation), and educational (including technical assistance); address requirements in other federal land management statutes, such as the Federal Land Planning and Management Act (FLPMA) and National Forest Management Act (NFMA), vis-a-vis the ESA; and expedite, where possible and to the maximum extent practicable, the satisfaction of other mandatory consequences of listing under the Act, such as Section 7 consultation, application of Section 9 "take" and HCP/incidental take process. A recovery plan that meets these goals will provide certainty to all parties involved in the recovery effort as to their responsibilities and liabilities, and how the ESA regulatory agencies (federal and state) will treat land use and land management activities-habitat impacts-under the Act. Activities by nonfederal landowners determined to have de minimis impacts on the recovery of the species, should be exempted from the Act through an "escape chute." If nonfederal landowner actions of certain types are determined to have significant impacts on species recovery and could be minimized or mitigated, the recovery plan should identify those conservation actions which would mitigate the Section 9 "take" application, and provide endorsement of those conservation measures to help expedite HCP/incidental take process. Finally, an energized recovery planning process should identify, where possible, those nonfederal habitats that are so essential to the recovery of the species that no conservation measures can mitigate impacts to that habitat, and acquisition of that habitat from willing sellers (or "purchase" of the value of that activity through easements or other means) thus becomes a high priority. Increased Regulatory Flexibility Problem Despite recent efforts by the Secretary of the Interior to develop flexible Section 4(d) rules, there still remains little regulatory distinction between a species listed as threatened and a species listed as endangered. Thus, no incentive exists for a private landowner to work to prevent a species from being up-listed or to recover a species to the point where it is down-listed. A Congressionally reaffirmed distinction between a threatened and an endangered species would increase flexibility in permitted land use practices for threatened species and, thus, present an incentive to landowners to conserve species and the habitat upon which they depend. Proposal Although legislation may not be needed in this area, Congress should reaffirm a regulatory distinction between a threatened and an endangered species. This reaffirmation should also encourage the Secretary to utilize 4(d) rules to allow regulated take by private landowners when a species is listed as threatened versus when it is listed as endangered. Landowners will thus be encouraged to maintain land use practices and habitat in a way that encourages down-listing or, eventually, de-listing. Discussion Increased regulatory flexibility in a recovery plan for a threatened versus an endangered species promotes greater use of regulated take under Section 9 of the Act. This is a direct incentive for a private landowner. In addition, there is an incentive to be gained from the entire process of down-listing of species if this regulatory distinction is restored. Down-listing could be seen as a positive step encouraging private landowners to continue their efforts and communicating that such efforts on behalf of species conservation are rewarded with greater land management flexibility. Chapter 2 Introduction Habitat Conservation Planning Habitat Conservation Plans (HCPs) under Section 10 of the ESA are an important mechanism for reconciling endangered species conservation needs with private property concerns. To improve the effectiveness of HCPs in achieving this important objective, the Dialogue Group identified several needed changes. Many of these relate to improving and expediting the process for developing and approving HCPs. Also proposed is a means of providing financial assistance to aid in the development of HCPs. If implemented, these proposal would provide significant incentives to expand the use of HCPs to reconcile conservation and private land use objectives. Streamlining the HCP Process Problem The HCP program under Section 10 of the ESA has been growing rapidly in recent years. There were 62 permits issued between January 1993 and May 1995, compared to just 14 permits issued from 1983 to 1992. Increasingly, the HCP process is seen as a means of addressing the issue of endangered species conflicts on private lands. More and more landowners are turning to the process to resolve these types of problems. However, critics of the HCP process have suggested that it can be time-consuming, procedurally burdensome, and, as a result, more expensive than necessary. Obtaining an incidental take permit requires an HCP, associated documents, and public notification under Section 10 of the ESA; ESA Section 7 review; and National Environmental Policy Act (NEPA) compliance—or three separate tiers of review. This is in addition to the time it takes to negotiate and prepare the HCP. Small landowners with relatively minor projects and modest resources can be especially hard hit by the complexities of the HCP process. One challenge is how to minimize or avoid duplicative NEPA and ESA Section 7 documentation. The ESA strictly mandates the contents of an HCP, as well as criteria for issuance of permits. Similarly, NEPA, like the HCP process, requires analysis of project effects, an alternatives analysis, and public notifications. Even when duplication is reduced through cross referencing and joint notifications, document preparation and procedural time and costs under NEPA remain significant, especially when environmental impact statements (EISs) are prepared. Section 7 review of an HCP permit application also duplicates the HCP in its effects analysis, incidental take statement, and required assurances that the action will not jeopardize the survival and recovery of the species in the wild. Other problems cited are the lack of mandatory deadlines for permit review and processing and uncertain standards for HCP adequacy. If the HCP program is to meet the increasing demands being placed upon it, and realize its full potential as a planning and conservation tool, it must be streamlined and better standardized. FWS is currently considering various HCP administrative reforms in light of these goals. For example, the agency is finalizing a Section 10 policy handbook that establishes HCP categories based on scope and impact of the project; ties document and processing requirements directly to those categories; and significantly streamlines the process for small-scale projects with minor effects. However, these improvements need to be further codified and expanded. Proposal 1. The ESA, or its implementing regulations, should establish an expedited HCP process for small-scale projects with minor impacts. Such "low-effect" HCPs could be characterized as those involving minor effects on federally listed or candidate species or on other environmental values or resources whose consideration is required by NEPA and other federal statutes. Examples of "low-effect" activities include those that: impact a minor percentage of the species' population or range; (i) (ii) impact ecologically minor portions of the species' range; (iii) (iv) (v) create adverse conditions for the species that are highly transitory or of minor invasiveness or duration; involve species with a high reproductive capacity, population numbers that are stable or rising locally or rangewide, or specific animals that are ecologically nonessential to the species; or, involve a planning area that is of small size or simple ownership pattern. (i) Addressed under a "short-form" HCP. A short-form HCP would be similar to a standard HCP except that analysis of alternatives not selected and unforeseen circumstances would not be required. The rationale for this is that low-effect projects typically have few reasonable alternatives (i.e., the landowner is committed to a specific parcel of land or course of action), or are so small in scope or brief in time that significant unforeseen circumstances are unlikely. 3. (ii) Addressed under informal Section 7 consultation procedures rather than formal consultation. The advantage of this is that informal consultation is faster and procedurally simpler than formal consultation. However, to do this it must be assumed that if an HCP meets the standards of the "low-effect" category, its effects will not be adverse to the species as a whole (see discussion). (iii) Categorically excluded from NEPA requirements. NEPA requirements for HCPs that are not "low-effect" could also be relaxed. This can be accomplished in one of the following ways: 4. 5. (ii) Allowing preparation of environmental assessments (EAs) for all HCPs not categorized as "low-effect" and require no EISS for HCP efforts; or (iii) Including a NEPA-style alternatives analysis within the HCP as a substitute for full NEPA analysis. Each of the options discussed in numbers 1 through 3 above will need to address the FWS should be required to more clearly define (i) what constitutes "take"—especially under the "harm" definition-for species addressed under HCPs; and (ii) the standards under which HCPs are approved or denied. Discussion Each of the five proposals are discussed separately: 1. 2. An expedited process for small landowner and other "low-effect" HCPs is critically needed. Presently, the time and costs required to obtain an incidental take permit for these HCPs are well out of proportion to the severity of their effects, resulting in tremendous frustration on the parts of affected landowners. The proposals outlined above would create an HCP system specifically tailored to the needs of these types of projects and landowners. A short-form HCP for low-effect projects, together with a categorical exclusion from |