The paradoxes of the Endangered Species Act (and how to fix them)

An Interview with George Wilhere:
The Endangered Species Act (ESA)  in the U.S. prevents the take (i.e. killing, destroying habitat) of listed species, and as such, it serves as the major legislative instrument for protecting at-risk flora and fauna. In a recent article in the journal Environmental Management, conservation biologist George Wilhere points out a few major problems in the ESA, specifically with the language in the Act that authorizes the use of Habitat Conservation Plans (HCPs) and with its implementation.

In 1982, the ESA was amended to allow for HCPs in which an applicant could secure an “incidental take” permit to degrade or destroy habitat of a listed species in exchange for conservation measures that minimized and mitigated the habitat loss.  This was later  expanded to allow landowners to enter into CCAA's in which they could take conservation measures to protect species, not yet federally listed as threatened or endangered, and in exchange receive a "take permit" if the species were ultimately listed.

Wilhere describes three major paradoxes in the ESA with respect to HCPs which we outline below.  We recently interviewed George Wilhere about these paradoxes and how to address them. 
 

1) The Train Wreck Paradox - The conservation measures in HCPs (or CCAAs) are needed to avert the train wreck of species becoming threatened or endangered. However, landowners are only compelled to act when a species is already listed and the ecological train wreck has already occurred.
2) The Jeopardy Paradox - Vague language in section 10(a) of the ESA allows for an HCP to reduce the likelihood of survival of a species but gives no objective limit on the amount of reduction.
3) The Maximum Mitigation Paradox - Refers to the conflict between providing maximum mitigation up front as required by section 10(a) versus reserving financial resources for adaptive management.  
 

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CM:  Can you tell us a little bit about your background and how that's given you insight on the Endangered Species Act and how it's implemented?

GW: I was a wildlife biologist on the technical team that developed a multispecies HCP for the Washington Department of Natural Resources.  At that time, 1997, DNR’s HCP was the largest in history, covering about 1.6 million acres of state-managed forest lands. It is still one of the largest HCPs for single landowner.  After the HCP was approved, I worked on monitoring the HCP.

I now work for the Washington Department of Fish and Wildlife, where I have reviewed and critiqued other HCPs.  I must point out that the opinions expressed in this interview are mine only and do not necessarily reflect those of the Washington Department of Fish and Wildlife.

CM:  You write about the train wreck paradox (see definition above). Can you give an example illustrating this in Washington State?

GW: I don’t have a particular example.  The circumstances surrounding large HCPs are too complex to know why landowners do or do not implement an HCP.  However, the chain of events leading to the implementation of nearly all HCPs clearly shows that landowners wait for a listing or an imminent listing before engaging in the development of an HCP. And why not?  The purpose of an HCP is incidental take of a listed species.  If there are no listed species in the vicinity of a landowner’s property, then a landowner does not need an HCP.

That said, here’s an example.  In Washington State, the northern spotted owl was and continues to be the center of huge controversy. The owl was listed in 1990, but that occurred after the fourth status review!  The first review was in 1981.  Given that history, surely some landowners were betting that the spotted owl would never be listed.  Looking back, the first indications that the spotted owl could be in trouble emerged as early as 1972, but the first spotted owl HCP in Washington State wasn’t implemented until 1993. By 1993, the ecological trainwreck, i.e., a species threatened with extinction, had already occurred.

The ESA was amended to allow HCPs in 1982.  If in 1982 landowners had thought that a listing was imminent, and that illegal take would be closely monitored and prosecuted, how many spotted owl HCPs would we have had by 1984?  Probably a lot.  And as a result, what would be the status of spotted owls and other late-seral forest species in 2010?  Probably much better than they actually are today.

In fairness to private landowners, back in the 1980s and early 1990s, why would we have expected private landowners to change their policies and practices before the National Forest and BLM forest managers did?  For decades the federal government resisted reforms of their timber harvest schedules and harvesting practices.  In 1994 those much needed reforms came about through President Clinton’s Northwest Forest Plan.  By then, the war between environmental groups and the timber industry had driven everyone into entrenched positions from which each side was blind to the other side’s concerns.

Even if both sides had been genuinely interested in finding practical solutions through cooperation and compromise, the window for such solutions had probably passed decades before.  And for those land owners that still had spotted owl habitat, habitat conservation would have seemed unfair.  Why should they protect owl habitat on their land after many of their neighbors had already harvested all theirs?

CM: What reforms to the ESA itself and/or how it’s implemented need to be made to avoid the train wreck paradox?

GW: To avoid ecological trainwrecks, such as the listing of a endangered or threatened species, we should act as soon as we detect potential problems.  The history of the spotted owl shows what not to do, that is, waiting so long to act that equitable, practicable, cost-effective options for habitat conservation are precluded.

With respect to the Trainwreck Paradox, the ESA needs no reforms.  To avoid ecological trainwrecks the Services could proactively wield the sticks they already have.  Conscientious implementation of section 4(b) and stricter enforcement of section 9(a) should motivate landowners to develop HCPs or CCAAs.  Section 4(b) describes the process for listing species as endangered or threatened and section 9(a) prohibits the take of listed species.  At present the Services (U.S. Fish and Wildlife Service and National Marine Fisheries) lack the operational capacity to monitor take, the technical capabilities to prove take (in a legal sense), and the institutional fortitude to prosecute take. 

On the other hand, some policy experts speculate that stricter enforcement of section 9(a) could lead to unintended consequences.  Habitat not occupied or currently used by a listed species is not protected by the ESA.  Stricter enforcement of the ESA could motivate some landowners to destroy unoccupied habitat, thereby eliminating potential future liability due to the ESA.

To encourage landowners to develop and implement conservation plans before species are listed, the Services should also offer carrots. The USFWS awards “Habitat Conservation Planning Assistance Grants that support the development of HCPs and CCAAs.  Unfortunately, financial support for HCP development will not be enough.  If the cost of providing habitat is too high, then landowners may be unwilling to provide habitat without external financial support.

Support could take the form of government subsidies or payments for other ecosystem services such a carbon sequestration.  Subsidies could be modeled after the U.S. Department of Agriculture’s conservation reserve program (CRP), a long-term voluntary program which pays farmers to retire environmentally sensitive cropland.  If society truly values native biodiversity, then it should be willing to pay those landowners that still have it and are actively maintaining it.

CM: You raise an issue with the language in Section 10(a) which states that the issuance of an incidental take permit requires that ‘‘the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.’’  What don't you like about this language?

The word “appreciably” is vague and open to subjective interpretation.  In effect, there is no regulatory standard for the amount an HCP may reduce the likelihood of survival and recovery.

A dictionary definition doesn’t help.  If “appreciably” means “significant”, then what is significant?  If “appreciably” means “measurably”, then the definition raises a statistical question.  How big of a reduction in likelihood is measurable or detectable?  But that question takes you down an absurd path.  A detectable reduction (the effect size) is a function of sample size and sample size is often limited by sampling costs.  Should the acceptable impacts of an HCP (i.e., the acceptable reduction in likelihood) be based on how much we can afford to sample?  Of course not, so we need an operational definition of appreciably.

CM:  If you could rewrite that problematic sentence, how would you rewrite it?

GW: I would eliminate vagueness.  I would replace “will not appreciably reduce the likelihood of survival . . .” with “will not cause a long-term net reduction in the likelihood of survival . . .” and I would define long-term as 100 years or the duration of the HCP whichever is shorter.  Alternatively, “appreciably” could be defined in section 3 of the Endangered Species Act.  An operational definition would need to be quantitative.  Realistically, neither of these changes are likely to happen; Congress couldn’t handle it.

A more realistic fix is to define “appreciably” through federal regulations or agency policy.  Section 402.02 of the Code of Federal Regulations contains definitions relevant to the Endangered Species Act; that’s where “jeopardy” is defined.  The Services could redefine “jeopardy” (and/or “appreciably) so that it is no longer vague.

An easier approach might be that taken by the U.S. Environmental Protection Agency.  The Clean Air Act says that emission standards must, “provide an ample margin of safety”, but “ample” is undefined.  What’s ample mean?  It’s the same problem as what’s “appreciably” mean?  The USEPA developed quantitative objectives for acceptable risk which are now de facto agency policy.  USFWS could do the same.  The process would be highly controversial but it could be done.

CM: You raise concerns about funding availability for adaptive management under HCPs if it turns out that additional mitigation measures are needed.  Currently, what mechanism (if any at all) does the US Fish and Wildlife Service employ to ensure that adequate funding is available for adaptive management?  What mechanism do you think the Service should be employing?

GW: The 4th permit issuance criteria in section 10(a) of the ESA is, “adequate funding for the conservation plan is ensured.”  The Services do their best to ensure that there is enough funding to implement an HCP, and if the plan works there should be enough funding.  But what happens if the HCP doesn’t work?   If the HCP is not working, then more mitigation may be needed, and more mitigation usually requires more funding.

To deal with such situations, funds should be set aside to pay for extra mitigation.  This is rarely done, if ever.  Some critics of HCPs have recommended that some sort of performance bond be required of HCP permittees.  The bond would pay for extra mitigation that might be needed in the future and would be returned (with interest) to the permittee after the permittee demonstrates that the HCP is working.

Wilhere, G. (2009). Three Paradoxes of Habitat Conservation Plans Environmental Management, 44 (6), 1089-1098 DOI: 10.1007/s00267-009-9399-0