The Endangered Species Act and Private Land: Four Lessons Learned From the Past Quarter Century

Michael J. Bean

Editors' Summary: Twenty-five years ago, Congress enacted the ESA with the goal of conserving endangered and threatened species, as well as the ecosystems on which they depend. How successful the Act has been in achieving that goal has been the subject of much controversy. This Dialogue assesses the Act's success by examining one aspect of its history — the experience that has resulted from applying its provisions to private land. From this assessment, the author determines that there are four lessons that can be learned. First, limitations on the Act's prohibition on "taking" protected species indicate that this provision alone cannot effectively address many of the most serious threats to these species. Second, the prohibition has prompted many landowners to modify their land in order to prevent the application of the Act to their property. Third, positive incentives can encourage private landowners to take steps to benefit protected species. And fourth, the Act's habitat conservation planning provisions can be used creatively to benefit species located on private land.

Mr. Bean is a senior attorney at the Environmental Defense Fund in Washington, D.C. He is the author, with Melanie J. Rowland, of The Evolution of National Wildlife Law (3d ed. 1997 Praeger), the first edition of which was written in 1977, when he was an attorney at the Environmental Law Institute.

[28 ELR 10701]

Don Barry, the Assistant Secretary for Fish, Wildlife, and Parks of the U.S. Interior Department, has a penchant for metaphors. One he used to describe the Endangered Species Act (ESA)¹ a few years back has proven to be remarkably enduring. Barry called the Act the "pit bull of environmental laws."² To most environmentalists, Barry's metaphor meant that this was a strong law — it had teeth and wasn't to be treated lightly. To some in the regulated community, the image conjured up by Barry's words was more sinister: they feared that if caught in the vise-like jaws of this rather unpredictable beast, they could never be extricated, at least not without suffering a lot of damage or worse.

How closely either of these images fits the reality of actual experience has seldom been examined in any careful way. That fact is all the more surprising, given that the ESA is now in its 25th year. A quarter century of experience implementing this important environmental statute ought to be enough to permit a reasoned assessment of its accomplishments and its limitations. This Dialogue seeks to do that with regard to one aspect of the Act: its record with respect to privately owned lands and the species that occur on them. The assessment that follows begins with a brief recital of the reasons that learning from the experience of the ESA on private lands is important. It concludes with an explication of four significant, and somewhat surprising, lessons to be learned from that experience.

The Importance of Private Lands

Understanding the accomplishments and limitations of the ESA with respect to private lands and the species that occur on them is important for several reasons. First, most land in the United States is privately owned, and in many states (such as Texas, which has one of the highest numbers of endangered species), virtually all the land is privately owned.³ Second, although precise data are missing for many species, it appears that the great majority of endangered species occur at least partly on privately owned land (or in waterways adjacent to private land), and a substantial number occur entirely on such land.⁴ Thus, what private landowners do on and with their land will likely have a major influence on the [28 ELR 10702] success or failure of the ESA, and to date the results are not encouraging.⁵

Third, conflicts — or perceived conflicts — between species conservation and the interests of private landowners are increasingly common and have provided much of the fodder for a recent backlash among many private landowners against not just the ESA, but environmental regulations and programs generally. That backlash, in turn, has led some landowners in some localities to restrict access to their land on the part of conservation officials for any purpose, thus imperiling the quality of information on which conservation programs are based and reducing opportunities for cooperation among government and landowners generally.

These latter consequences may be unfortunate, but nevertheless worthwhile if the benefits currently being secured for endangered species conservationon privately owned land are substantial and there is no other way to secure comparable benefits without triggering a landowner backlash. On the other hand, if what is being accomplished for endangered species is modest, or if similar benefits can be secured through other, less contentious means, then current conservation gains may not warrant their cost. Thus, it is imperative to take a hard look at what is being accomplished and how equivalent or better results might otherwise be obtained.

That hard look produces four somewhat unexpected and ironical lessons. First, the provision of the Act that most directly affects private landowners — the provision prohibiting the taking of endangered wildlife — has a far narrower sweep than either environmentalists or landowners commonly think. Indeed, it fails altogether to address many of the most serious threats contributing to the decline of endangered species. Second, despite the foregoing, fear of incurring land use restrictions as a result of the taking prohibition has prompted some landowners to manage their lands in ways designed to prevent endangered species from ever occurring on them, a practice that can be consistent with the letter of the law while completely undermining its spirit and purpose. Third, because of the two preceding points, new authority that creates positive incentives for landowners to conserve endangered species could significantly improve prospects for the Act's success. Finally, in the absence of new incentives, the only hope for effectively redressing many of the threats that lie beyond the reach of the taking prohibition is the creative use of the Act's provisions relating to habitat conservation.

Lesson One: The Act's Taking Prohibition Has Teeth, But Not Many

The principal provision of the ESA that affects private landowners is a prohibition against "taking" species protected by the law.⁶ This prohibition is qualified in several important respects. First, it is does not generally apply to plants.⁷ Second, it does not automatically apply to "threatened" animals, but may be extended to them by discretionary action of the government.⁸ Third, even with respect to endangered animal species, the taking prohibition is not absolute. The government may authorize the otherwise prohibited taking of an endangered animal in a variety of circumstances. Most important in the case of private landowners is the government's authority to permit the taking of protected species incidental to the carrying out of otherwise lawful activities, including land development, agriculture, forestry, and a potential host of other activities.⁹

The taking prohibition is qualified in another less obvious, but no less important, way. That is, the reach of the taking prohibition is often very unclear. It encompasses such traditionally regulated activities as hunting, shooting, trapping, and collecting, as well as other activities that "wound" or "kill" any member of a protected species.¹⁰ In addition, however, the taking prohibition extends to activities that "harm" a protected animal, and it is this aspect of the prohibition that most often implicates private landowners. The reason is that the U.S. Fish and Wildlife Service (FWS) has defined the term "harm" to include, under some circumstances at least, activities that destroy or adversely modify habitat.¹¹ Thus, landclearing, timber harvest, conversion of rangeland to cropland, and other activities on privately owned land can potentially "take" endangered species and thus be prohibited by the ESA unless expressly authorized by a permit.

The FWS first promulgated regulations interpreting the harm prohibition to include some types of habitat modification in 1975.¹² It was 20 years later, however, that the U.S. Supreme Court finally resolved the question of whether it was within the authority of the FWS to have done so. In its decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,¹³ the Supreme Court finally laid to rest [28 ELR 10703] the controversy over whether the agency's interpretive regulation (the current version of which was issued in 1981) was permissible. The Court upheld the regulation, but did not resolve what it means.

The principal ambiguity of the regulation stems from its requirement of an actual death or injury to protected wildlife. Specifically, the regulation provides that "harm" 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."¹⁴ Courts since the Sweet Home decision have been all over the lot in their efforts to decipher this requirement. Some have construed it very narrowly, effectively extracting the teeth from this putative "pit bull"; others have indulged in more generous interpretations.

An example of the former is United States v. West Coast Forest Resources Ltd. Partnership.¹⁵ In that case, the government sought an injunction to prevent logging of a 94-acre tract, on the theory that such logging would harm a pair of northern spotted owls that nested more than a mile away, a distance within the average home range of such owls. The court held that "the 'harm' that is imminent must be the death or actual injury of an identifiable animal," that "mere speculation is not sufficient" and that "ordinary legal principles of causation apply."¹⁶ Most importantly, it held that the government could not prove harm by relying on statistics showing average home ranges for owls, but must produce radiotelemetry and actual habitat use data for the specific owls in question. Though the government failed to meet that test, the court issued an injunction giving the government one year to gather the data necessary to prove its case, because "although defendants should not bear the brunt of the government's failure to present dispositive evidence, neither should the … owls."¹⁷

If this was a victory for the government, then it was surely a Pyrrhic one. The requirement to radio-tag individual animals in order to prove their taking imposes an enormous practical burden on enforcement efforts, and entails some degree of risk to the animals that must first be captured and tagged. Moreover, the court left unresolved what degree of use of the disputed 94-acre parcel is necessary in order to treat the cutting of the trees on it as a taking of the owls. If the radiotelemetry data show that the owls use the site, but only 5 percent of the time, will that be sufficient to prove a taking? What about 1 percent? Or less?

Another, more recent case took a similarly narrow view of the regulatory requirement that an actual death or injury must occur in order for an action to cause "harm." In Defenders of Wildlife v. Bernal,¹⁸ the plaintiffs sought to halt construction of a school in an area where an endangered cactus ferruginous pygmy owl had been seen. In dismissing the case, the court appeared to require proof that the pygmy owl occurred in the precise area where the school was to be built. The possibility that the presence of the school might reduce available foraging habitat or introduce sufficient disturbance to render the site no longer suitable for the owl was dismissed as speculative. The Ninth Circuit has enjoined construction pending appeal.¹⁹

Strikingly different reasoning underlies other cases. In Marbled Murrelet v. Babbitt, the Ninth Circuit held that "a habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to 'harm' under the ESA."²⁰ The court implicitly concluded that the impairment of breeding and sheltering itself constituted an "injury" for purposes of the regulation's definition of "harm." Likewise, in Strahan v. Coxe, the First Circuit concluded that the ESA "not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party [here the state as licensing authority for vessels] that bring about the acts exacting a taking."²¹

Together, these cases add up to considerable confusion about the circumstances under which habitat modification constitutes a prohibited taking of endangered species. That confusion, in turn, means that landowners who want to know what they can do without running afoul of the law often face a very real practical problem: no one can give them a definitive answer.The rote answer that the landowner can do anything that doesn't "actually kill[] or injure[] wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering" is generally unhelpful. Many landowners will not know anything at all about the "essential behavioral patterns" of the endangered species that occur on their property, and very few will know what constitutes a significant impairment of those behavioral patterns.

A potential solution to this dilemma is to develop species-by-species regulations or guidelines that translate the general prohibition against "harming" a species by modifying its habitat into more specific descriptions of prohibited activities. Thus far, the government has tried to do this for only a handful of species. One of them, the endangered red-cockaded woodpecker, illustrates both the value and limits of the approach.

The woodpecker is a denizen of southeastern pine forests. It requires relatively large pine trees (10 inches or more in diameter at the base, a size not usually reached until 30 years of age) on which to forage for insects. It requires very old pine trees (usually at least 90 years of age) in which to excavate its nesting and roosting cavities.

Since 1992, the FWS has used widely available guidelines to advise private landowners what they must do in order to avoid any possibility of harming the bird through timber harvest activities.²² The guidelines are very detailed. Among other things, they specify that within one-quarter mile of any active woodpecker colony site (defined by the nesting and roosting cavities of the birds in the colony), a landowner who maintains at least 60 acres of pine trees that are 10 inches or more in diameter and that have a cumulative [28 ELR 10704] basal area (a measure of the area of a tree at its base) of at least 3,000 square feet need not worry that any timber harvest activity the landowner carries out will "harm" red-cockaded woodpeckers by adversely modifying the habitat they require for foraging.

These guidelines likely facilitate voluntary compliance. For the landowner who knows that a family of red-cockaded woodpeckers lives on his or her land, the guidelines say exactly what must be done to stay out of trouble. There does in fact appear to be a fair amount of voluntary compliance, because many consulting foresters and consulting biologists routinely work with forest landowners in the Southeast to plan their tree removal activities in accordance with the guidelines.

While these guidelines have almost certainly facilitated voluntary compliance by many landowners, they haven't necessarily made the task of enforcing the harm prohibition against noncomplying landowners much easier. In part, this is because the guidelines describe what is not harm but do not precisely spell out what is harm. A landowner who reduces the number of pine trees or pine basal area below the amounts specified in the guidelines does not automatically thereby violate the taking prohibition. This is because the guidelines are only guidelines; they are not regulations. The FWS must still prove that harm has occurred, and its definition of harm requires an actual death or injury. That is relatively easy when a landowner dramatically reduces standing timber below the specified amounts and woodpeckers promptly disappear from the site. On the other hand, if a landowner reduces available habitat only slightly below the requirements of the guidelines, the birds may well persist there for years. Linking their eventual disappearance to habitat modifications made years earlier presents an enormous practical challenge to enforcement officials. Further, in any case, enforcement is possible only if enforcement agencies can demonstrate that the birds were in fact present when the habitat modification occurred, and that is no easy matter, given the restricted access to many private forestlands in the Southeast.

Just as enforcement officials might be unaware of the presence of a red-cockaded woodpecker colony on a particular forest tract, so adjoining landowners might be, too. Recall that the FWS' guidelines require that a specified amount of suitable foraging habitat be maintained within one-quarter mile of an active colony. Where that one-quarter mile circle overlaps adjoining properties, the guidelines purport to require that the responsibility for providing foraging habitat be proportionally allocated among the landowners. That is, if a landowner owns 10 percent of the area within the circle, he or she must provide 10 percent of the foraging habitat. If, however, the landowner is unaware of the colony's presence on a neighbor's land, how is the landowner to know of his or her obligation to provide any habitat at all? If the landowner does know, the guidelines facilitate voluntary compliance. They do little, however, to reduce the inherent practical difficulties of enforcement.

These examples reveal the uncertainty that still clouds the scope of the Act's taking prohibition; however, even when a taking clearly occurs, practical considerations often preclude any prosecution of it. The routine killing of endangered species by watercraft or land vehicles illustrates this point. Although collisions with such craft are responsible, either demonstrably or putatively, for deaths of manatees,²³ the diminutive Key deer of southern Florida,²⁴ desert tortoises in Nevada,²⁵ northern right whales,²⁶ Delmarva fox squirrels,²⁷ and Florida panthers,²⁸ these collisions never lead to prosecution of vehicle operators. Such collisions are clearly "takings" of listed animal species, yet the absence of prosecution reflects the practical problem that the responsible parties are generally unidentifiable unless they report the accident to the authorities. Prosecution of those who report such accidents would likely deter others from reporting similar accidents, and would be unseemly in any event. Hence, it isn't done. Thus, in these examples, the take prohibition is of no real consequence to the vehicle operator.

A couple of recent cases suggest that responsibility for takings such as these may rest with state or local agencies that license or regulate the conduct that directly causes the taking. Scarcely mentioning the Sweet Home case, the First Circuit in Strahan v. Coxe held the state of Massachusetts responsible for the incidental taking of endangered right whales by commercial fishermen because the state had licensed their fishing operations.²⁹ More recently, a divided panel of the Eleventh Circuit concluded, for the limited purpose of establishing a plaintiff's standing, that a taking claim could be brought against Volusia County, Florida, for its failure to regulate beachfront lighting by private property owners in such a way as to avoid causing disorientation of hatchling sea turtles. The court concluded that because beachfront lighting harms hatchling sea turtles, and the county's efforts to regulate such lighting were alleged by the plaintiffs to be inadequate, the plaintiffs could be heard to assert a claim that the county was liable for "harmfully inadequate" regulation of such lighting.³⁰

[28 ELR 10705]

If "harmfully inadequate" regulation is a basis for holding state and local authorities responsible for the taking of endangered species as a result of the activities they inadequately regulate, then it is hard to exclude any taking from this principle. The state of Florida, for example, registers automobiles owned by residents of the Florida Keys and licenses drivers there as well. The state and local authorities also regulate driving speeds on roadways in the Keys. That all of these various regulatory measures are "harmfully inadequate" is abundantly clear from the fact that automobile collisions are the single greatest cause of mortality to endangered Key deer. Are the state and local governments therefore liable for the taking of Key deer, as the reasoning of the Volusia County case suggests? Why are they any more responsible for these takings than is the FWS itself, which also could act to restrict activities that individually have only a small likelihood of resulting in the incidental taking of endangered species, but that cumulatively are certain to do so? Such reasoning lay at the heart of regulations issued by the FWS' sister agency, the National Marine Fisheries Service, which require shrimp nets to be equipped with devices designed to exclude endangered sea turtles, even though the chance that any given fishing vessel will drown a turtle is tiny.³¹

Even more common and important than the situations in which enforcement of the take prohibition is difficult are the situations in which the take prohibition is inadequate to address major threats to listed species. Loss of habitat is the single most important cause of species endangerment; it is a factor in the listing decision of nearly every species on the endangered or threatened list.³² Loss of habitat, however, can take many different forms, and relatively few of these fall clearly within the scope of the ESA's taking prohibition.

Many of today's endangered and threatened species are associated with natural communities that historically were maintained by frequent fires.³³ Kirtland's warblers, Karner blue butterflies, and red-cockaded woodpeckers are but a few of the many examples. Take fire away from their habitats, and those habitats inevitably change: jack pine trees grow too old to be used for warbler nesting; lupine, the larval food plant of the butterfly, disappears in the shade of encroaching trees and shrubs; and the open pine forest favored by the woodpecker becomes an inhospitably dense mixed forest of pine and hardwoods.

Natural fire has ceased to operate as a landscape-shaping force in much of the country either because of active fire suppression or because grassland and forest understory fires that historically would have burned over vast areas now halt at the nearest road's edge. Thus, habitats on which a great many endangered or threatened species depend are slowly and subtly being degraded and lost, yet the ESA's prohibition against taking has had no impact on this widespread threat.

Even more subtle is the continuing loss of effective habitat as a result of "edge effects" stemming from past habitat fragmentation. Fragmentation of formerly continuous blocks of habitat creates many smaller parcels and opens up much formerly "safe" habitat to depredation by domestic or wild animals and to nest parasitism by brown-headed cowbirds, a threat to many endangered songbirds. Just as fire-dependent natural communities now need prescribed fire or other management replicating its effects in order to maintain habitat values, so too do many fragmented habitats need cowbird control or other measures to keep remaining habitat values from being lost altogether. Again, the Act's taking prohibition fails to address this common habitat threat.

Habitats on which endangered species depend have also been degraded or destroyed as a result of the accidental or deliberate introduction of non-native species.³⁴ Tamarisk or salt-cedar has invaded and transformed many western riparian habitats, further threatening many endangered aquatic species. Non-native grasses have overrun numerous California habitats, threatening species like the Bay checkerspot, mission blue, and Lange's metalmark butterflies. Indeed, a recent study found that threats from non-native species are the second most common source of species endangerment, contributing to the decline of nearly one-half of all endangered and threatened species.³⁵

On private lands, the Act's taking prohibition has had no effect on this pervasive threat to rare species and their habitats. In a pair of cases, the Ninth Circuit held that the state of Hawaii was responsible for taking the palila, an endangered bird, by maintaining in its habitat herds of feral sheep and goats.³⁶ This, the only litigation to find a taking as a result of the failure to remove a non-native species from endangered species habitat, has yet to be extended to any other landowners, public or private. Moreover, the Ninth Circuit's decisions preceded the Supreme Court's Sweet Home case, and are based on an interpretation of the harm prohibition that the Supreme Court neither embraced nor rejected.³⁷

A final footnote worth adding to the discussion of the Palila cases is that the significant reduction of feral sheep and goats from the bird's habitat has been followed by a dramatic increase in other exotic species, highly flammable introduced grasses. Freed from the browsing pressure of these non-native herbivores, the non-native grasses have proliferated, creating a new threat to the palila's habitat — the threat of an unnatural conflagration.³⁸ In short, reducing the threat that endangered species would be taken by one cause has increased the threat that they may be taken by another. In light of such challenging realities, it is clear that the taking prohibition alone cannot effectively address many of the most serious threats to endangered species.

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Lesson Two: An Exaggerated Fear of Land Use Restrictions Has Prompted Preemptive Land Management Practices and a Reluctance to Carry Out Beneficial Practices

Notwithstanding that it fails to address many of the most important threats endangered species face, that it is virtually never invoked against private landowners, and that it is successfully invoked against them even more rarely, the ESA's prohibition against taking endangered species has occasionally prompted landowners to take preemptive action designed to ensure that endangered species never have the opportunity to occupy their land. Such actions contravene the spirit of the statute and frustrate its purpose, though they do not necessarily violate its letter. And similar fears, no less significantly, have instilled in other landowners a reluctance to carry out land management practices that could benefit rare species.

How frequently species-preempting practices are undertaken is difficult to gauge, though it is clear that landowners are commonly advised to engage in them. A conspicuous example of such advice can be found in a publication of the National Association of Home Builders entitled Developer's Guide to the Endangered Species Regulation.³⁹ In a chapter entitled Practical Tips for Developers, the following appears:

Unfortunately, the highest level of assurance that a property owner will not face an ESA issue is to maintain the property in a condition such that protected species cannot occupy the property. Agricultural farming, denuding of property, and managing of vegetation in ways that prevent the presence of such species are often employed in areas where ESA conflicts are known to occur. This is referred to as the "scorched earth" technique …. The scorched earth management practice is highly controversial, and its legality may vary depending upon the state or local governing laws. But developers should be aware of it as a means employed in several areas of the country to avoid ESA conflicts.⁴⁰

When the Building Industry Association of Southern California succeeded in winning a court order suspending the listing of the California gnatcatcher (a bird whose coastal sage scrub habitat is prized for development), one of its attorneys made the mistake of talking about the scorched earth approach in an interview with the Wall Street Journal. When he was quoted there to the effect that during the suspension "[a] lot of landowners will look seriously at clearing their land of coastal sage brush to rid themselves of this problem," the court promptly reinstated the listing, thus ending the temporary window of opportunity for a preemptive removal of habitat.⁴¹ In Texas some years earlier, where land developers were similarly rushing to raze the habitat of the golden-cheeked warbler before the FWS could complete the normal listing process for it, the FWS had to make rare use of its emergency listing authority to put a halt to the destruction.⁴²

These examples are not meant to suggest that it is only developers who have embraced the scorched earth approach as a way of avoiding endangered species "problems." In the Southeast, consulting foresters reportedly often advise owners of pine woodlands to cut their trees before they are old enough to serve as foraging habitat for red-cockaded wood-peckers. One forest landowner who was conspicuously voluble in his threats to act on such advice was North Carolina landowner Ben Cone. Referring to the fact that wood-peckers occurred on only a portion of his forest property, Cone proclaimed, "I cannot afford to let those woodpeckers take over the rest of the property. I'm going to start massive clearcutting."⁴³ In the Northwest, commercial and other timber interests have foregone economic opportunities associated with longer harvest rotations in order to avoid having northern spotted owls take up residence on their property.⁴⁴ In California's Central Valley, farmers have plowed fallow fields to prevent native vegetation and endangered species from reoccupying the fields.⁴⁵

The above are all examples of landowners carrying out active measures to keep endangered species from occurring on their property. Harder to document, but very likely no less important for the goal of recovering endangered species, are the examples of landowners simply refraining from carrying out the sorts of management activities that would benefit endangered species by restoring or enhancing habitat, reconnecting habitat fragments, controlling exotic species, allowing land to be used for species reintroductions, and the like. If the status of many endangered or threatened species that depend heavily on private land is to improve, these are exactly the sorts of actions that landowners will need to undertake.

Two facts strongly suggest that little of this is occurring. The first is simply the very low percentage of listed species judged by the FWS to be improving.⁴⁶ If significant numbers of private landowners were actively carrying out such beneficial practices, the fraction of listed species judged to be improving would almost certainly be much higher. The second strongly suggestive fact is the enthusiastic response of private landowners where "safe harbor" programs have been initiated.

Safe harbor programs are intended to overcome the fear by landowners that if they carry out practices beneficial to endangered species, their reward will be added restrictions [28 ELR 10707] on the use of their property. In essence, a safe harbor agreement confers on a landowner the right to "freeze" his or her ESA responsibilities at their current levels for a particular species if the landowner agrees to restore, enhance, or create habitat for that species. It does not, however, confer on the landowner any right to harm any endangered species already present on his or her property at the time the agreement was entered into (the landowner's "baseline" responsibilities). Those responsibilities are unaffected by a safe harbor agreement.

The first safe harbor agreement was approved in the spring of 1995 for the Sandhills of North Carolina.⁴⁷ At present, about two dozen landowners have enrolled approximately 24,000 acres of land in the safe harbor program. Participating landowners include nonindustrial forest landowners, horse farms, golf course resorts, and even residential property owners. Enrolled parcels range in size from 2.5 acres to several thousand acres. The Sandhills safe harbor agreement has served as a model for similar agreements in other localities. In Texas, for example, ranchers are restoring coastal prairie habitat for the endangered Attwater's prairie chicken under a safe harbor program that is a virtual carbon copy of the Sandhills program.⁴⁸ Under another safe harbor program in that state, the Peregrine Fund has used safe harbor agreements to secure the consent of several large ranch owners to try to reestablish the endangered northern Aplomado falcon on their ranches.⁴⁹ In South Carolina, the first ever statewide safe harbor agreement — for the red-cockaded woodpecker — was recently approved by the FWS.⁵⁰ At the time of approval, owners of 84,000 acres of private land pledged to enroll in the South Carolina safe harbor program.

What the enthusiastic response of private landowners to safe harbor opportunities strongly suggests is that fear of incurring new regulatory restrictions does in fact prevent many landowners from carrying out beneficial practices they would otherwise be willing to implement. Acknowledging this, the FWS has proposed nationwide policy guidance intended to stimulate greater use of this new conservation tool.⁵¹ In an arena in which environmental and landowner interests have long been pitted against each other, the safe harbor idea is nearly unique in enjoying broad support in both camps. It has even won praise in both Audubon magazine⁵² and Farm Bureau News⁵³ (perhaps the only endangered species idea ever to accomplish that). The only virulent critics have been from the far fringes of the "Wise Use" movement, and they have predictably denounced this entirely voluntary initiative as "the moral equivalent of selling your soul to the devil for a few fleeting sinful pleasures in exchange for an eternity in hell."⁵⁴

Lesson Three: Without Positive Incentives, the Act's Goals Are Unlikely to Be Achieved

The third lesson of the past quarter century flows inexorably from the first two. Given that the ESA's only current tool to affect the behavior of private landowners — the taking prohibition — does not effectively address many of the most serious threats to rare species, and given that fear of that tool has sometimes prompted landowners to act against — rather than for — the best interests of such species, other conservation tools are clearly needed. Simply deterring harmful conduct — as the taking prohibition seeks to do — is not enough. It is necessary as well to encourage and reward beneficial conduct.

The case for positive incentives is easy to make. No interpretation of the taking prohibition yet embraced by any court compels landowners to restore habitats that were lost before a species was added to the endangered list. Neither does that prohibition compel landowners to replicate the effects of natural disturbances, such as fire or floods, that are no longer occurring, so that remaining habitats do not lose their value through slow transformation. Nothing in the taking prohibition obliges landowners to create dispersal corridors linking habitat patches or to control the introduced species that threaten to overrun many of those patches or to counter edge effects, genetic introgression, or a myriad of other problems with the potential to seal the fate of the species that the ESA seeks to recover. Yet, unless these problems are addressed effectively, the ESA's goal of recovery will prove to be a chimera for a great many species.

One way to achieve the goal of recovery would be for the government (or private conservation organizations) to acquire all the land (and water) needed for that purpose and to manage it accordingly. How much land and water that is likely to be is unknown, but it is almost certainly far more than anyone realistically expects will be acquired any time in the foreseeable future. The alternative, which recognizes that much of the habitat on which the recovery of endangered species depends is, and will remain, in private ownership, is to create for those private owners real incentives to manage their land in ways that aid, rather than impede, the goal of recovery.

The power of incentives to elicit beneficial land management has been amply demonstrated in recent years by the various agricultural conservation programs. The Conservation Reserve Program,⁵⁵ under which more than 30 million acres of former cropland has been planted with perennial grasses or trees under 10- or 15-year rental contracts, and the Wetlands Reserve Program,⁵⁶ under which more than a million acres of wetlands have been restored on private land with the aid of federal cost-sharing assistance, have helped restore continental waterfowl populations to near-record abundance and have reversed the decline of many grassland-dependent birds. Neither of these programs was aimed specifically at helping endangered species, and to date they have produced few tangible benefits for such species. Redirecting the emphasis of these programs to areas capable of producing both the broad, general environmental gains for which they were originally intended, as well as [28 ELR 10708] benefits for endangered species could enhance the environmental benefit of these programs without affecting their cost.

Another example of the power of positive incentives can be found in Texas, the state with the lowest percentage of publicly owned land and one of the highest numbers of endangered species. Two years ago, the Texas Parks and Wildlife Department began an experimental, first-in-the-nation program to give financial incentives to private landowners who agreed to carry out endangered species conservation activities on their land. The program has received $ 100,000 annually from the FWS under § 6 of the ESA and is slated to receive that amount for a total of five years. The money is to be used to cost share management expenses of private landowners who enter into conservation agreements with the state for state-listed or federally listed endangered species. The landowner's share is negotiable, but the state seeks to have the landowner pick up at least 20 percent of the cost. The availability of funds under this program was announced in a variety of agricultural publications, but was not heavily advertised. Interested landowners were invited to submit applications on a special application form. In the first year, program staff received over 600 landowner inquiries and over 160 completed applications for projects in 96 of Texas's 254 counties.⁵⁷ From these, a small subset was approved by a review panel. The maximum grant for any landowner was $ 10,000. While the ultimate success or failure of this program cannot yet be judged, it does clearly demonstrate that if economic incentives for endangered species conservation are offered, significant numbers of landowners will be interested.⁵⁸

Somewhat analogous to the Texas program is the FWS' own Partners for Wildlife program. This modestly sized program offers cost-share assistance to private landowners willing to carry out projects serving wetland or endangered species conservation goals. In return for the financial assistance, the landowner agrees to maintain the project for a period of 10 years, after which the landowner can return the land to its prior condition and use if he or she chooses. To date, the overwhelming emphasis of the program has been on wetlands rather than endangered species projects, at least partly because of the uncertainty about whether the assurance that a participating landowner can return enrolled land to its prior condition and use can be relied on in the event endangered species take up residence there.⁵⁹ Nevertheless, significant numbers of landowners have entered into Partners agreements for projectsaiding endangered species.

Examples like those above only begin to scratch the surface of ideas for possible ways to create incentives for private landowners to carry out the positive management necessary if endangered species are to recover. A host of tax changes have also been suggested as a means of encouraging beneficial management by landowners.⁶⁰ Through such means, landowners can eventually come to regard endangered species on their land as assets and opportunities, rather than liabilities and encumbrances.

Lesson Four: The Need for Creative Use of the ESA's Habitat Conservation Planning Provisions

As noted earlier, the ESA's prohibition against taking endangered wildlife is not absolute. The government may authorize private landowners (and others) to take endangered animals "incidental to … the carrying out of an otherwise lawful activity."⁶¹ Thus, land development, agriculture, forestry, and a potential host of other activities on privately owned land that incidentally take such species can nevertheless be permitted to go forward.

The authority to permit the taking of endangered wildlife incidental to other lawful activities was added to the Act in 1982. Before that, the only exceptions to the taking prohibition were for scientific research and for activities to enhance the propagation or survival of listed species.⁶² Thus, given the FWS' broad 1975 definition of the term "harm," which encompassed habitat modification, the Act and its implementing regulations potentially prohibited much or all landclearing, development, and timber harvesting in habitats occupied by endangered animals. This sweeping prohibition, however, existed only on paper. In practice, neither the taking prohibition nor the FWS' habitat-encompassing definition of "harm" had any apparent effect on the activities of private landowners before 1982. Even if private landowners were aware that they had any responsibilities under the ESA, they didn't approach the agency for permission that they knew it had no authority to give, and the agency simply wasn't about to provoke a conflict over private land use in which its position could only have been that the law flatly prohibits certain uses, without exception.

Thus, the 1982 amendments to the Act did the opposite of what they appeared to do. On the surface, they appeared to weaken the Act by creating a new exception to its nearly absolute prohibition against taking. In reality, they gave the FWS its first practical means of influencing what private landowners did on their land. Landowners now had a reason to make their intentions known to the agency, because it could now approve those intentions, and thus give landowners (and their financiers) the security of knowing that they no longer need fear running afoul of the Act.

The 1982 amendments gave the FWS more than just a practical means of influencing private land use. They also gave the agency a means of persuading private landowners to do many of the very things that the taking prohibition alone has been powerless to compel. That is, the habitat conservation plans (HCPs) that the FWS must approve before it may issue a permit allowing incidental taking of listed species can be the vehicles for restoring former habitat, protecting existing but unoccupied habitat, reconnecting fragmented habitats, ensuring active management to replicate the effects of prior natural disturbances, controlling non-native species, and doing a host of other essential things that the taking prohibition has never been able to compel. Recall that without such measures, the Act's goal of recovery for [28 ELR 10709] many species is likely to remain beyond our reach forever. Simply prohibiting taking doesn't get you there.

HCPs are essentially plans to mitigate the impacts of authorized incidental taking of endangered wildlife. The applicable statutory standard requires that such impacts be mitigated "to the maximum extent practicable."⁶³ It is easy to see that if mitigation stops with measures to avoid and minimize those impacts, the net effect of HCPs can only be to leave already imperiled species still worse off. All that such plans do is to allow another nibble (or larger bite) out of whatever is left of the species or its habitat, provided only that the bite is not so big that it crosses the impermissible threshold of "jeopardizing the continued existence" of the species.⁶⁴ If the promise of HCPs is to be realized then, it will only be through compensatory mitigation. That is, if mitigation measures that are "practicable" (including from the landowner's perspective) can at the same time compensate for the impacts of authorized incidental taking on the survival prospects of the affected species, then HCPs can leave a species no worse off, and may actually improve its status.

At least two approaches hold out some promise for realizing this goal. One that has been widely triedaggregates a myriad of projects and landowners over an extensive area under a plan coordinated by a county or other unit of local government. Mitigation typically consists of dedicating certain portions of the plan area to conservation purposes, while allowing development in the remainder. Special tax assessments on development allowed in the plan area generate the revenue needed to acquire and manage the parcels dedicated to conservation. What these large-scale plans offer are an opportunity to plan mitigation on a large enough scale to ensure protected areas of sufficient size to support a viable population of the affected species and connectivity among conserved parcels, as well as a reasonably predictable income stream with which to manage these areas in the future.⁶⁵

From the perspective of a landowner within such a plan area, these plans have certain features in common with wetland mitigation banks. That is, the individual landowner can avoid the expense and challenge of designing a unique mitigation plan to fit a particular project. Instead, the landowner need only pay the specified fee and proceed with his or her project. Once that fee is paid, following through on the mitigation effort is someone else's responsibility.

From the conservationist's perspective, there is one critical difference between such regional conservation plans and wetlands mitigation banks. That is, wetland mitigation banks are generally required to demonstrate their long-term viability before credits from such banks can be used to mitigate impacts of development projects elsewhere.⁶⁶ In contrast, under the typical endangered species regional HCP, development precedes (or at best proceeds simultaneously with) the implementation of the mitigation measures. If those mitigation measures ultimately fail, there is no going back, particularly in light of Interior Secretary Bruce Babbitt's policy since 1994 of assuring HCP participants that the government would bear the risk if mitigation measures in an approved plan proved inadequate, a policy known by the sobriquet "no surprises."⁶⁷

Mitigation banking for endangered species is still in its infancy, with only a handful of banks having yet been established.⁶⁸ Creative use of such banks could unleash the potential of habitat conservation planning to be an engine of recovery for rare species. If, as is the case with wetlands mitigation banks, success must first be established before mitigation credits are earned, endangered species mitigation banks could directly address the concerns often voiced about the no surprises policy. Once established, they could provide a practical mitigation alternative for small landowners outside the boundary of any regional HCP. They would also turn endangered species into potential assets for those willing to restore or enhance their habitats, thus creating a reason for entrepreneurial landowners to invest in conservation. For species whose habitats are already so reduced, fragmented, or degraded that long-term survival is unlikely without affirmative restoration efforts, mitigation banking may be the only practical way to move in the direction of recovery.

Though HCPs may be essential to furthering the Act's conservation goals, whether they will actually do so is currently unknown. More than three quarters of the 200 or so plans approved to date are less than 5 years old, still too recent to judge their ultimate effectiveness. It is not too soon, however, to conclude that without creative use of HCPs, the generally poor progress of efforts to conserve imperiled species on private lands that has characterized the past quarter century is almost certain to continue.

Conclusion

When Congress enacted the ESA in 1973, it correctly perceived that many of the nation's wild plant and animal species [28 ELR 10710] were slipping inexorably toward the abyss of extinction, and that to allow their demise would inflict unacceptable harm on the scientific, ecological, and economic interests of the nation. The wisdom and prescience of that judgment have been reaffirmed repeatedly in the ensuing quarter century. The goals of the ESA were, and they remain, one of the best examples of enlightened self-interest embodied in any nation's legislation.

Though the lofty goals of the ESA are as sound today as they were when the Act was written in 1973, dispassionate observers must acknowledge that those goals have been inadequately achieved. Further, and more important, one must also acknowledge that the goals are unlikely ever to be achieved with the same approaches and tools that have been employed over the past quarter century. This conclusion is particularly true for rare species that depend heavily on private land, which (as we now know, though Congress could not have known this in 1973) include most rare species. For these species, the tools the ESA provides are too few, too limited in their application, and often too rigid to accomplish the vital goals of staving off extinction and achieving recovery.

To fashion some of the new tools that could more effectively accomplish the ESA's goals, both creativity and daring on the part of the ESA's administrators will be needed, two traits that have not often been evident in that quarter. To fashion other needed tools, new congressional authority may ultimately be necessary, though prospects for any near-term break in the legislative impasse over the ESA seem remote. What is abundantly clear, however, is that without new, more effective approaches, the goals of the ESA are likely to slip further from our grasp.

1. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

2. See Steven P. Quarles, The Pit Bull Goes to School, ENVTL. F., Sept./Oct. 1998, at 55.

3. According to the National Research Council, of the 2.27 billion acres of land constituting the United States, 1.35 billion acres are in private ownership. NATIONAL RESEARCH COUNCIL, SETTING PRIORITIES FOR LAND CONSERVATION 45 (1993). For a detailed breakdown of ownership patterns, see GREG C. GUSTAFSON, NATURAL RESOURCES ECONS. DIV., ECON. RESEARCH SERV., U.S. DEP'T OF AGRIC., ERS Staff Report AGE830-405, WHO OWNS THE LAND? A STATE AND REGIONAL SUMMARY OF LANDOWNERSHIP IN THE UNITED STATES (1983).

4. U.S. GAO, GAO/RCED-95-16, ENDANGERED SPECIES ACT: INFORMATION ON SPECIES PROTECTION ON NONFEDERAL LANDS (1994).

5. Discouraging results on private land have characterized efforts for some of the best known species the ESA seeks to protect, as well as for many of its less familiar beneficiaries. For example, Professor David Maehr, an authority on Florida panthers, observes that "private lands are essential to the continued existence of large cats in Florida" and that "the private sector holds all the keys to panther recovery," yet in his view "no progress has been made in enlisting private landowners in the fight to save the Florida panther." DAVID S. MAEHR, THE FLORIDA PANTHER: LIFE AND DEATH OF A VANISHING CARNIVORE 198, 200 (1997). Phil Rosen, who studies rare southwestern frogs at the University of Arizona, underscores the importance of privately owned land for these species as well. He links the fate of these species to a wetlands restoration effort that "will never work without enlisting private landowners." In Rosen's view, "We need them to help these frogs." See Mark Muro, Exotic Predators Swallow the Southwest's Frogs, HIGH COUNTRY NEWS, May 25, 1998, at 11. A review of recovery efforts for the endangered Delmarva fox squirrel offered a parallel conclusion: "Lack of private habitat protection initiatives appears to be the primary reason why the Delmarva fox squirrel is still endangered." See Dolly Alevizatos et al., Conservation of the Endangered Delmarva Fox Squirrel in Maryland: Recovery Progress and Recommendations for Action (Nov. 1993) (unpublished report on file with author). Finally, after noting that about three-fourths of the habitat preferred by the endangered red-cockaded woodpecker is in private hands, the official recovery plan for that species dismally notes that "whatever red-cockaded populations exist on private lands must be considered in peril. The prospective future is extirpation of the species on most private properties unless efforts are implemented to reverse current habitat trends." See U.S. FISH & WILDLIFE SERV., RED-COCKADED WOODPECKER RECOVERY PLAN 33 (1985).

6. 16 U.S.C. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B).

7. See id. § 1538(a)(2)(B), ELR STAT. ESA § 9(a)(2)(B) (which, among other things, makes it a violation of the ESA to "remove, cut, dig up, or damage or destroy" any endangered plant on nonfederal land "in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law.").

8. See id. §§ 1533(d), 1538(a)(1)(G), ELR STAT. ESA §§ 4(d), 9(a)(1)(G).

9. Id. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B).

10. Id. § 1532(18), ELR STAT. ESA § 3(18).

11. See 50 C.F.R. § 17.3 (1997).

12. 40 Fed. Reg. 44412 (Sept. 26, 1975).

13. 115 S. Ct. 2407, 25 ELR 21194 (1995).

14. 50 C.F.R. § 17.3 (1997).

15. No. 96-1575-HO, slip op. (D. Or. July 28, 1997).

16. Id. at 15.

17. Id. at 21.

18. No. CV-98-120-TUC-FRZ, slip op. (D. Ariz. May 8, 1998).

19. Defenders of Wildlife v. Bernal, No. 98-16099, slip op. (9th Cir. July 1, 1998).

20. 83 F.3d 1060, 1067, 26 ELR 20995, 20999 (9th Cir. 1996), cert. denied sub nom. Pacific Lumber Co. v. Marbled Murrelet, 117 U.S. 942 (1997).

21. 127 F.3d 155, 163, 28 ELR 20114, 20117 (1st Cir. 1997), petition for cert. filed sub nom. Coates v. Strahan, 66 U.S.L.W. 3605 (U.S. Mar. 6, 1998) (No. 97-1485).

22. U.S. FISH & WILDLIFE SERV., DRAFT RED-COCKADED WOOD-PECKER PROCEDURES MANUAL FOR PRIVATE LANDS (Oct. 1992).

23. Between 1974 and 1997, 763 manatees were killed as a result of watercraft collisions. FLORIDA DEP'T OF ENVTL. PROTECTION, MANATEE MORTALITY IN FLORIDA BY CAUSE OF DEATH (Jan. 27, 1998) (one-page chart on file with author).

24. Between 1973 and 1984, road kills accounted for an average of 45 Key deer deaths annually, representing 83 percent of all Key deer deaths. See Florida Key Deer v. Stickney, 864 F. Supp. 1222, 1231 (S.D. Fla. 1994). By 1997, road mortality had nearly doubled to 84 animals. See 1997 Deer Statistics, ALLIANCE NEWS (Key Deer Protection Alliance), Feb. 1998, at 3.

25. According to Dr. Ron Marlow, a biologist at the University of Nevada at Reno, reduced densities of desert tortoises are detectable as far away as 3.5 kilometers from major highways. Telephone Conversation with Dr. Ron Marlow, Biologist, University of Nevada, Reno (Sept. 1, 1998).

26. Between one-fifth and one-quarter of northern right whale mortalities between 1970 and 1990 were the result of collisions with ships. NATIONAL MARINE FISHERIES SERV., FINAL RECOVERY PLAN FOR THE NORTHERN RIGHT WHALE 9 (1991).

27. U.S. FISH & WILDLIFE SERV., DELMARVA FOX SQUIRREL RECOVERY PLAN 15 (1993).

28. Since 1981, 65 percent of Florida panther deaths have been attributed to vehicle collisions. See Mark Matthews, Animal Conservationists Tackle the Threat of Highways, WASH. POST, July 27, 1998, at A7.

29. Strahan v. Coxe, 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997), petition for cert. filed sub nom. Coates v. Strahan, 66 U.S.L.W. 3605 (U.S. Mar. 6, 1998) (No. 97-1485).

30. Loggerhead Turtle v. County Council of Volusia County, Fla., 148 F.3d 1231, 28 ELR 21546 (11th Cir. 1998). The principal holding of the case was that an incidental take permit that authorized the taking of sea turtles as a result of vehicles using their nesting beaches did not also authorize the incidental taking of such turtles as a result of beachfront lighting, even though the mitigation measures imposed by the FWS in the permit expressly obligated the county to evaluate potential weaknesses in its beachfront lighting ordinance and rectify them.

31. The Fifth Circuit upheld these regulations in Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988).

32. David S. Wilcove et al., Quantifying Threats to Imperiled Species in the United States, 8 BIOSCIENCE 607 (1998).

33. For an extensive, but only partial, bibliography, see AMY HESSL & SUSAN SPACKMAN, U.S. DEP'T OF INTERIOR, EFFECTS OF FIRE ON THREATENED PLANTS: AN ANNOTATED BIBLIOGRAPHY 2 (Aug. 1995) (a National Biological Service Information and Technology Report).

34. See OFFICE OF TECH. ASSESSMENT, U.S. CONGRESS, OTA-F-565, HARMFUL NON-INDIGENOUS SPECIES IN THE UNITED STATES 71-74 (Sept. 1993).

35. David S. Wilcove et al., supra note 32, at 607.

36. See Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981); Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988).

37. In her concurring opinion, Justice O'Connor stated that because the regulatory definition of "harm" is "limited by ordinary principles of proximate causation, which introduce notions of foreseeability," these limitations "call into question" the validity of the Palila decisions. 115 S. Ct. at 2418, 25 ELR at 21199.

38. E-mail Communications from Dr. Peter Vitousek, Professor of Biology, Stanford University (July 12, 16, 17, 1996 and Sept. 1, 1998).

39. NATIONAL ASS'N OF HOME BUILDERS, DEVELOPER'S GUIDE TO ENDANGERED SPECIES REGULATION (1996).

40. Id. at 109.

41. Endangered Species Comm. of the Bldg. Indus. Ass'n of S. Cal. v. Babbitt, 852 F. Supp. 32, 24 ELR 20934 (D.D.C.), amended on motion to reconsider, 852 F. Supp. 38, 41, 24 ELR 21588, 21590 (D.D.C. 1994) (citing the Wall Street Journal).

42. See 55 Fed. Reg. 18845 (May 4, 1990).

43. Ike Sugg, Ecosystem Babbitt-Babble, WALL ST. J., Apr. 2, 1993, at A10. Cone never fully acted on his threat. Instead, he secured an incidental taking permit authorizing him to take all the woodpeckers on his property in the course of harvesting timber. See 61 Fed. Reg. 36390 (July 10, 1996); 62 Fed. Reg. 54122 (Oct. 17, 1997).

44. E-mail Communication from James Pissott, Grassroots Program Officer, W. Alton Jones Foundation (and former Northwest Representative at the National Audubon Society), to Kieran Suckling, Executive Director, Southwest Center for Biological Diversity (Mar. 20, 1997) ("plenty of small acreage timberland owners cut too much, too soon and too fast in Washington state in response to 'owl scares.'"); Interview with Carlton Owen, Vice President for Forest Policy, Champion International Corporation, Washington, D.C. (Jan. 15, 1997).

45. Jenifer Warren, Revised Species Protection Law Eases Farmers' Anxiety, L.A. TIMES, Oct. 11, 1997, at A1.

46. Though somewhat out of date, the most recent report to Congress by the FWS on the status of recovery efforts concludes that fewer than9 percent of the 909 listed species then under the FWS' jurisdiction could be characterized as "improving." See U.S. FISH & WILDLIFE SERV., REPORT TO CONGRESS: RECOVERY PROGRAM, ENDANGERED AND THREATENED SPECIES (1994).

47. See 60 Fed. Reg. 10400 (Feb. 24, 1995).

48. See id. at 40853 (Aug. 10, 1995).

49. See 61 Fed. Reg. 37488 (July 18, 1996); 62 Fed. Reg. 64395 (Dec. 5, 1997).

50. See 62 Fed. Reg. 51678 (Oct. 2, 1997).

51. See id. at 32178 (June 12, 1997).

52. Ted Williams, Finding Safe Harbor, AUDUBON, Jan./Feb. 1996, at 26.

53. Herb Manig, An Endangered Species Solution That Just Might Work, FARM BUREAU NEWS, July 29, 1996, at 2.

54. Michael Leamons, Property Rights at Risk with "Safe Harbor" Plan, LAND RTS. LETTER, Mar./Apr. 1998, at 9.

55. The Conservation Reserve Program is codified at 16 U.S.C. §§ 3831-3836.

56. The Wetlands Reserve Program is codified at 16 U.S.C. §§ 3837-3837f.

57. Peggy Horner, Staff Biologist, Texas Parks and Wildlife Department, Presentation at the 25th Annual Meeting of the Texas Organization for Endangered Species (Sept. 5, 1997).

58. Id.

59. No similar uncertainties attend projects involving wetlands restoration. The U.S. Army Corps of Engineers' nationwide permit number 27 authorizes the filling of any wetlands created under the Partners program within five years of the expiration of the Partners agreement. See 33 C.F.R. pt. 330, app. A (1997).

60. See, e.g., KEYSTONE CTR., FINAL REPORT: THE KEYSTONE DIALOGUE ON INCENTIVES FOR PRIVATE LANDOWNERS TO PROTECT ENDANGERED SPECIES (July 25, 1995).

61. 16 U.S.C. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B).

62. Id. § 1539(a)(1)(A), ELR STAT. ESA § 10(a)(1)(A).

63. Id. § 1539(a)(2)(B)(iv), ELR STAT. ESA § 10(a)(2)(B)(iv). In the only case thus far to declare unlawful the FWS' approval of an HCP, the U.S. District Court for the Southern District of Alabama found that the agency had acted arbitrarily and capriciously by failing to explain or analyze its conclusion that this mitigation standard had been met. Sierra Club v. Babbitt, No. 97-0691-CB-C, slip op. (S.D. Ala. Aug. 4, 1998).

64. Literally, the requirement of the statute is that the taking authorized by an incidental taking permit "not appreciably reduce the likelihood of the survival and recovery of the species in the wild." 16 U.S.C. § 1539(a)(2)(B)(iv), ELR STAT. ESA § 10(a)(2)(B)(iv). The quoted language was taken directly from the FWS' regulatory definition of "jeopardize the continued existence of" at 50 C.F.R. § 402.02 (1997). The legislative history is clear that although Congress did not repeat the phrase "jeopardize the continued existence of," it intended that incidental taking permits be judged by "the same standard as found in Section 7(a)(2) of the Act." See H.R. REP. NO. 97-567, at 31 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2831.

65. For a discussion of the scientific aspects of such planning efforts, see REED F. NOSS ET AL., THE SCIENCE OF CONSERVATION PLANNING: HABITAT CONSERVATION UNDER THE ENDANGERED SPECIES ACT (1997).

66. See Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, 60 Fed. Reg. 58605, 58612 (Nov. 28, 1995).

67. The no surprises rule was recently issued as a formal regulation. See 63 Fed. Reg. 8859 (Feb. 23, 1998).

68. The first to be established, apparently, was the ARCO Coles Levee Ecosystem Preserve in Kern County, California. For a discussion of it, see MARK K. LANDY ET AL., THE POWER OF PLACE: A FIELD GUIDE TO CIVIC ENVIRONMENTALISM (Progressive Policy Inst., forthcoming 1998). For applications for endangered species incidental take permits mitigated by the purchase of credits at this site, see 62 Fed. Reg. 37073 (July 10, 1997) (application of Kern County Waste Management Department); 63 Fed. Reg. 30247 (June 3, 1998) (application of Seneca Resources Corporation and Enron Oil and Gas Company). The government of the Commonwealth of the Northern Mariana Islands has also recently proposed to establish an endangered species mitigation bank for development projects on the island of Saipan. See 63 Fed. Reg. 31226 (June 8, 1998).