Four Sure Ways to Undermine a Good Idea...and Hurt Endangered Species

Michael J. Bean
Environmental Defense Fund, 1875 Connecticut Avenue, NW, Suite 1016, Washington, DC 20009; mb@edf.org.

If Murphy's Law has variants, one of them must surely be that given the opportunity to screw up a good idea, people will.  Evidence for the existence of this fact is abundant, but here the focus is on endangered species "safe harbor agreements" and a variety of ideas that, if pursued, will surely rob this new conservation tool of much of its potential value.

What are endangered species "safe harbor agreements" and what is their potential value?  Essentially, they are agreements between a non-federal landowner and the US Fish and Wildlife Service (FWS) or National Marine Fisheries Service in which the landowner agrees to restore or enhance the habitat of an endangered or threatened species and FWS agrees that it will not impose added restrictions on the landowner as a result of the species being attracted to, or increasing in, the area where the restoration was done.  In simpler terms, instead of blindly following the maxim, "No good deed goes unpunished," a safe harbor agreement commits a landowner to do a good deed, and commits the government not to punish him or her for doing it.

The "good deeds" that landowners might do under safe harbor agreements can take a variety of forms.  Typically, they will include creating, restoring, or enhancing habitat, managing habitat so as to replicate the effects of natural disturbance regimes that no longer operate effectively, extending forest rotation cycles, reintroducing an endangered species into an area from which it has been extirpated, and controlling exotics or other competing or predatory species.  There are two simple reasons why it is a good idea to induce such practices through safe harbor agreements.  First, for many endangered species, unless these practices are done, the fate of the species is sealed:  without prescribed fire or practices mimicking the effects of fire, species dependent upon fire adapted ecosystems will inexorably disappear; so will species that today persist in small, nonviable populations on highly fragmented landscapes, where each small population is now effectively isolated from the others and at high risk of loss through chance events; so will many species whose habitats are being overrun by exotics.  Taken together, the preceding describes a majority of today's endangered species.  Second, nothing in the Endangered Species Act (ESA) requires such practices to be undertaken and, absent the sort of assurances that safe harbor agreements provide, few landowners will voluntarily undertake them if they understand that a likely consequence of doing so will be to encumber their property with restrictions that would not otherwise exist.  Hence, relieving landowners of those encumbrances in order to secure their willingness to implement essential conservation practices is the central idea of a safe harbor agreement.

The safe harbor idea is thus simple and straightforward.  People have managed, however, to suggest a variety of ways to complicate this simple idea and negate much of its useful potential.  Four of those ways follow:

Combine safe harbor agreements with traditional HCPs.
Safe harbor agreements can take the form of "habitat conservation plans" or HCPs.  Indeed, most safe harbor agreements approved to date have done so.  They are not, however, "traditional" HCPs.  In traditional HCPs, landowners seek immediate authority to harm an endangered species (usually by destroying its habitat) and propose to mitigate that harm through conservation actions that may or may not leave the species as well off as it was before.  In sharp contrast, in safe harbor agreements, landowners have no immediate intention to do anything harmful to an endangered species or its habitat; indeed, their intent is exactly the opposite.  They seek to improve the situation for endangered species on their property and may have no specific intent ever to do anything that will negate that improvement.  They do, however, want to preserve the right to change their minds in the future and to undo the improvements they have implemented if they so wish.  For as long as the improvement is maintained, the species is better off; when the improvement is eliminated, the species is no worse off than it was before the safe harbor agreement.

Combining these two fundamentally different tools is the first, and most likely, way to damage the safe harbor idea.  A number of landowners who need traditional HCPs (i.e., they have an immediate intent to carry out an activity harmful to an endangered species) have concluded that they would be well served by combining that traditional HCP with a safe harbor agreement.  The traditional HCP gives them the right to harm currently occurring individuals on their property; the safe harbor agreement gives them a similar assurance with respect to those that may occur there in the future.  Such a combined measure was approved for a North Carolina landowner, Ben Cone (See 61 Fed. Reg. 36390, July 10, 1996).  Cone sought permission to take all the endangered red-cockaded woodpeckers (Picoides borealis) on his property; if that were granted, he then proposed to manage his land thereafter so as to benefit the woodpecker, provided that he be given safe harbor assurances with respect to those that might later occur on his property.  FWS agreed.

It may not be immediately apparent why the approach taken in the Cone example is necessarily a bad idea.  If landowners agree to as much mitigation for the incidental taking of currently occurring individuals on their property as the law requires, yet are willing to make some additional, voluntary commitments that may result in endangered species using their property yet again in the future, why not let them do so in a combined traditional HCP and safe harbor agreement?  There isn't a strong theoretical answer to this question, but there is a very compelling practical one.  The practical concern is that the amount of mitigation required by law for any proposed incidental taking is never known at the outset.  It is not derived through a mathematical formula.  It is rather the product of a negotiation, heavily influenced by what is "practicable" in light of the unique circumstances of the particular landowner.  Thus, there is a danger that the safe harbor component of this package will be perceivedˇby the landowner, by FWS, or by the publicˇas part of the mitigation for the immediate incidental take.  It isn't, and it shouldn't be, but it will never be possible to eliminate the perception that it is.  That perception will have a corrosive effect upon the value of, and support for, safe harbor agreements.  Landowners will demand that FWS reduce the amount of mitigation they must do, citing their virtuous agreement to enter into a post-hoc safe harbor agreement; FWS will be tempted to do so to avoid a nasty conflict with the landowner; environmentalists will become suspicious of safe harbor agreements because they no longer assure that "baseline" condition will be maintained, and endangered species will be worse off.  Better to not go down this road at all.

Combining traditional HCPs and safe harbor agreements will have one other detrimental effect:  it will destroy the important concept that under safe harbor agreements the current situation for an endangered species gets no worse.  This concept is embodied in the description of an endangered species "baseline" that exists at the time the agreement is negotiated.  The baseline represents the landowner's existing (i.e., pre-agreement) obligations under the ESA, if any.  A safe harbor agreement grants a landowner a future right to take endangered species incidental to lawful activities, provided that incidental taking not reduce the status of the species or its habitat on the land in question below its baseline conditions.  As the Ben Cone example illustrates, the combination of a traditional HCP and a safe harbor agreement severely undermines the baseline concept.  The effect of that agreement was to allow Cone to eliminate all present red-cockaded woodpeckers on his property and all future woodpeckers.  Thus, the "baseline" was rendered meaningless.

Give safe harbor assurances for activities that are legally required.
A key feature of safe harbor agreements is that they commit a landowner to undertake activities they are not otherwise lawfully required to undertake and are not likely to undertake absent such an agreement.  A pending HCP illustrates that this important requirement that safe harbor assurances be extended only for voluntary actions may not be adequately understood, at least by regulated interests and possibly by FWS itself.  That HCP concerned a beach resort development in the Commonwealth of the Northern Mariana Islands (See 63 Fed Reg. 31226, June 8, 1998).  The development was likely to result in the incidental taking of nightingale reed-warblers (Acrocephalus luscinia), an endangered species.  The HCP was offered in support of an application for a permit to take the reed-warblers.

Another endangered species on the island, one not found on the site, is the Mariana common moorhen (Gallinula chloropus guami).  Because it did not occur on the project site, no permit to take it incidentally was sought by the developers.  The Commonwealth government, however, had imposed a number of requirements on the project under local environmental legislation unrelated to endangered species concerns.  Among these was a requirement to construct several "mitigation ponds."  The HCP rather casually noted that the required mitigation ponds might in the future attract moorhens.  If so, it said, the resort developer would address that issue through a safe harbor agreement.  Implicit in this assertion is the apparent belief that safe harbor agreements are a vehicle for relieving landowners from any responsibilities toward endangered species, even those that become established on the land prior to the agreement as a result of legally required activities.  A more profound misunderstanding of safe harbor agreements can hardly be imagined.

Deny safe harbor assurances to landowners receiving federal funds.
Regrettably, ill-conceived ideas are not the exclusive province of the regulated community or the government.  Among the more self-defeating ideas embraced by at least some environmental groups is that landowners who receive public cost-sharing assistance to carry out habitat improvements should not be allowed to enter into safe harbor agreements with respect to those improvements.  Thus, FWS's Partners for Fish and Wildlife Program, USDA's Wildlife Habitat Improvement Program, and other similar cost-sharing programs would, under this suggestion, be off-limits to landowners seeking to enter into safe harbor agreements.  It is certainly true that at present a small number of private landowners are participating in those programs and carrying out activities likely to benefit endangered species, all without any safe harbor assurances, either because they are unaware of the potential encumbrances upon their property, or because they don't care about those encumbrances.  It is also true, however, that participants in these programs typically sign agreements giving them a contractual right to return their land to its prior condition and use, with nothing said about the presence of endangered species qualifying that right.  If landowners who wish to exercise that contractual right discovers that they cannot do so, the consequence is not likely to be beneficial to the program.  Their experience, if widely known, will make it even more difficult to persuade others to take part in such programs if their participation has the potential to cause endangered species to occupy their lands.  Such a result would be extraordinarily counterproductive.

More fundamentally, the objection to providing cost-sharing assistance to safe harbor participants means that only those landowners with the financial ability to pay for habitat improvements out of their own pockets will be able to secure safe harbor agreements.  Wholly apart from considerations of fairness, such a result can hardly be said to further the purposes of endangered species conservation.  By extending safe harbor agreements to participants in cost-share programs, the universe of landowners potentially interested in those programs will be expanded.  That increased demand for participation may or may not result in increased expenditures for these modest programs, but it surely won't justify decreasing those expenditures.

Ignore the Shaker Hymn "'Tis a Gift to Be Simple."
Safe harbor agreements commit landowners to do things they don't have to do.  Furthermore, they do them either entirely at their own expense or with only partial reimbursement from cost-sharing programs.  The surest way to kill a private landowner's interest in this idea is to make it complicated.  If a non-industrial forest landowner with a few thousand acres of mixed longleaf pine and hardwood forest in the Southeast is willing to commit to a program of hardwood reduction followed by regular prescribed burning, and the installation of artificial cavities in suitable sized treesˇall to benefit the highly endangered red-cockaded woodpeckerˇget out of his or her way.  Imposing requirements for frequent written reports, intensive monitoring of results, and similar things are likely only to cause landowners to lose interest in the whole endeavor.  Corporate landowners may be more likely to accept such requirements, but even then one has to ask whether the money spent on compliance would be better spent on on-the-ground conservation.

This doesn't mean that reports, monitoring, and other requirements should never be imposed on safe harbor agreements, but rather that the temptation to go overboard with such requirements may only drive away the very landowners whose cooperation would most benefit endangered species.  In considering this point, it is important to consider the consequences of driving landowners away.  A system so complex that it deters landowners from participating means that conservation of endangered species on private lands must be accomplished primarily through enforcement of the taking prohibition.  That prohibition, however, doesn't even reach many of the most serious threats to species survival, including the loss of natural disturbance regimes, the presence of exotic species, the inevitable downward spiral of small, isolated populations in already fragmented habitats, and so on.  Furthermore, effective enforcement of the taking prohibition presupposes that enforcement officials know where protected species occur and when landowner activities have taken them; for many listed species, that is clearly not the case.  Safe harbor agreements offer the potential to improve both our knowledge of where endangered species occur and our ability to conserve them by enlisting the willing cooperation of private landowners.  That is why it is so important not to ruin them.

Archives | Bulletin Board | Comments | Contribute to the ESU | ESU Staff | Home | November/December 1998 Contents | Links | Next Issue | Search by Keyword | Subscriptions