1
Jul
2004

"NO SURPRISES" rule

COMMENT ON "NO SURPRISES" POLICY BY JULY 26TH!

The Endangered Species Act, the safety net for fish, plants and wildlife on the brink of extinction, is a flexible law allowing the federal government to work with landowners to protect species. In 1982, Congress amended the Endangered Species Act to include some specific exceptions to prohibition against hurting, harming, or killing (taking) species listed as endangered or threatened. This allows the U.S. Fish and Wildlife Service and NOAA Fisheries to authorize the otherwise-prohibited taking of a listed species by issuing an "incidental take permit" under certain circumstances.

To obtain an Incidental Take Permit (ITP), a landowner must develop a Habitat Conservation Plan (HCP). These Plans allow development to proceed if plans specify, with scientific credibility, that the impacts of the proposed habitat changes are minimized to the "maximum extent practicable" and that the take will not reduce the likelihood that the species will survive and recover. According to the Fish and Wildlife Service, as of April 2003, 541 HCPs had been approved; covering approximately 38 million acres and involving more than 525 endangered or threatened species.

In 1994, the Fish and Wildlife Service and NOAA Fisheries updated Habitat Conservation Plan regulations to include a "No Surprises" policy. This change made mitigation more attractive to private landowners by guaranteeing the conditions of the HCP would not be changed over a specific period, lasting anywhere from 25 to 100 years.

The "No Surprises" policy is controversial because it prevents stronger measures from ever being implemented, even if biologists find that the permitted action is having a greater impact on the species than anticipated.

A recent court order requires the USFWS to reconsider the "No Surprises" policy, in the process of re-issuing the "permit revocation
rules" for Incidental Take Permits/Habitat Conservation Plans (ITP/HCPs). They are currently accepting comments from the public
regarding the policy.

ACTION: Please write a personalized comment letter on the "No Surprises" policy by July 26th. Some points you may want to include are pasted below along with more background information.

ADDRESS:
Mail: Chief, Division of Consultation, Habitat Conservation Planning, Recovery, and State Grants, US Fish & Wildlife Service,
4401 N. Fairfax Dr., #420,
Arlington, VA, 22203.
Fax: 703-358-2229.
Email: pprr@fws.gov

For more information on this issue, please visit:
http://www.stopextinction.org/Issues/IssuesList.cfm?c=35

Thank your for working to protect the web of life for future generations!

Sincerely,
The staff of the Endangered Species Coalition
http://www.stopextinction.org


POINTS YOU MAY WANT TO INCLUDE IN YOUR LETTER:

1) If you or your organization has specific examples where Habitat Conservation Plans have either not benefited species or harmed species recovery efforts, PLEASE include those in your letter. The more such cases can be highlighted, the greater weight your comments will have.

These could include, for example,

(a) the species is doing worse than anticipated at the time of ITP/HCP approval and hence more or different mitigation is now recognized as necessary but cannot be furnished because of No Surprises;

(b) scientists have learned more about the needs of the affected species and this new information counsels in favor of changes in the ITP/HCP;

(c) assumptions about conditions in areas surrounding the ITP/HCP have proven to be erroneous - e.g., in approving the ITP/HCP, the Service assumed that certain areas would be maintained as habitat, but they have not been;

(d) the HCP is not working in the manner that was initially anticipated;

(e) new species have been listed or critical habitat designated since the ITP/HCP was approved, but these are not being adequately
addressed by the permittee.

2) Concrete, well-explained examples of previously approved ITPs/HCPs that are impairing the recovery of any listed species, even if they are not contributing to the immediate extinction of the species - e.g., by destroying or degrading travel corridors, unoccupied habitat that is needed for long-term expansion, or any formally designated critical habitat. The Revocation rule changes proposed by the Service would exempt ITPs from a broad revocation rule that applies to all other FWS permits and allows such permits to be revoked whenever they are impairing the recovery of any population of a species. Instead, the Service is proposing to replace that broad revocation standard with one that would allow revocation only when a permit is contributing to the immediate extinction of an entire species and, even then, only when the government has first attempted to rectify the problem and been unable to do so. Hence, it is essential that the public also furnish concrete exampl! es of how this change in policy will immediately harm species covered by ITPs.

3) Reform the "No Surprises" policy by developing rules that require Habitat Conservation Plans to:

a) address all foreseeable changing
circumstances,

b) include comprehensive adaptive
management programs to evaluate HCPs over time
and identify any necessary modifications, and

c) require landowners to modify their HCPs over time, as necessary to recover the species, and to meet other conservation objectives in the plans.

4) Modify the permit revocation rules to:

a) include the original, pre-1999 permit revocation criteria in full, as they are highly relevant to Take Permits/HCPs,

b) clarify that the USFWS has the authority to modify or revoke Take
Permits/HCPs if they are found to impair species'long recovery, not just their short-term survival,

c) give the USFWS the option to revoke Take Permits if the permittees fail to make necessary adaptive management changes to their HCPs, and

d) require the recipients of Take Permits to file performance bonds or other securities to guarantee the implementation of their HCPs'mitigation measures.

5) ITPs/HCPs should, at an absolute minimum, be required to address all "changed" circumstances - which are defined by the No Surprises rule as those that are reasonably foreseeable. While the
preamble to the No Surprises rule acknowledges that such circumstances "should" be addressed, the actual text of the rule gives permit holders a free pass when, for whatever reason, they are not dealt with up-front in the ITP/HCP. There is no conceivable justification for not flatly requiring that all reasonably foreseeable
developments (such as hurricanes in Florida) be addressed in the ITP/HCP. Moreover, the rule as presently written affords ITP applicants a perverse incentive not to address such circumstances since, if they are ignored, No Surprises assurances kick into the same extent as "unforeseen" circumstances (i.e., true
"surprises").


MORE BACKGROUND INFORMATION:

The "No Surprises" rule is contrary to the principles of sound science, and effectively prevents the modification of Take Permits and HCPs for decades, despite the fact that scientific knowledge, environmental conditions, and landowners''s own resource management practices inevitably change over time.

The "No Surprises" rule effectively prevents modification of Take Permits/HCPs for decades despite the fact that most HCPs allow substantial losses of threatened and endangered species'populations and habitats, fail to adequately support species'recovery, are based on faulty science, and/or employ inadequate adaptive management programs. A landmark study in 1999 by the National Center for Ecological Analysis & Synthesis and the American Institute for
Biological Sciences found that most HCPs are deeply flawed. Yet no enforceable rules have been developed to correct these problems. Among other things, the NCEAS/AIBS report found that: about 50% of HCPs allow 50% or more of species'populations or habitat in the plan area to be eliminated; nearly 30% of HCPs allow 100% of species'populations or habitat in the plan area to be eliminated; and 84% of HCPs fail to specify how monitoring will be used to evaluate
the plans, i.e., the HCPs lack adaptive management programs.

"No Surprises" provides unnecessary regulatory guarantees by exempting companies from regulatory changes for periods as long as 50 or even 80 years. "No Surprises" assumes that businesses cannot handle change, when in fact businesses must constantly adapt to a variety of changing conditions to be successful. "No Surprises" even
exempts landowners from modifying their HCPs to address changes they themselves make to their resource management practices. At the same time, "No Surprises" provides no guarantees to threatened or endangered species.

"No Surprises" is also deeply unfair, as it makes the taxpayers - instead of the recipients of Take Permits - responsible for fixing problems with Take Permits/HCPs. This is despite the fact that Take Permits/HCPs benefit timber companies, developers, and other landowners by allowing them to harm threatened and endangered species and their habitats, and by providing regulatory guarantees lasting many decades.

Therefore, "No Surprises" should be reformed by the development of rules that require HCPs to:

1) address all foreseeable changing circumstances,

2) include comprehensive adaptive management programs to evaluate HCPs over time and identify any necessary modifications, and

3) require landowners to modify their HCPs over time, as necessary to recover the species, and to meet other conservation objectives in the plans.

New rules requiring HCPs to address foreseeable changing circumstances should require that HCPs address:

changes in the landowners'land management and development practices;

changes that may be proposed to the HCP as a result of monitoring and adaptive management;

additional species listings over time;

declines in the condition of the covered species due to inadequate conservation measures in the HCP;

designation of critical habitat for the covered species;

development of recovery plans and recovery plan provisions for the covered species;

fires, windstorms, pest outbreaks, disease outbreaks, and other "stochastic" events that are natural ecosystem processes; and

increased susceptibility of the habitats to invasive exotic pests, pathogens, and plant and animal species due to the landownerís resource management practices.

Other foreseeable changing circumstances include the effects of human-induced climate change, which is likely to cause ecological gradients, vegetation zones, and species'habitat needs to shift significantly, and is likely to create more severe weather patterns, further impacting species and ecosystems.

New rules requiring HCPs to include adaptive management programs should require, among other things that: HCPs monitor each covered
species'populations, reproductive success, primary habitat components, and other key biological outcomes and trends, including those which correlate to the species'recovery. The rules should also require HCPs to include thorough and effective adaptive management protocol that:

are linked to effectiveness monitoring for all biological goals,

include comprehensive adaptive management triggers, and

outline the responses and responsibilities that can result from adaptive management reviews.

Reviews should include independent peer review and public participation. All plan components should be subject to adaptive management.

New rules requiring landowners to modify their HCPs should require that landowners adopt modified, new, or additional conservation
measures to recover the covered species, should their original conservation measures prove ineffective or should conditions change in ways that are foreseeable or under the landowners' control. The rules must require landowners to remain responsible for modifying their HCPs in response to monitoring and adaptive management reviews, and in response to foreseeable changing circumstances, regardless of whether the specific adaptive management changes and changing circumstances are specified in the HCP. The USFWS should also establish a program to cover the costs of other changes, which may be needed to HCPs over time, in response to genuinely unforeseeable circumstances that are beyond the landowners' control.

The USFWS should also modify the permit revocation rule to:

1) include the original, pre-1999 permit revocation criteria in full,

2) Clarify that the USFWS has the authority to modify or revoke Take Permits/HCPs if they are found to impair species'long recovery, not just their short-term survival, 3) give the USFWS the
option to revoke Take Permits if the permittees fail to make necessary adaptive management changes to their HCPs, and 4) require the recipients of Take Permits to file performance bonds or other securities to guarantee the implementation of their HCPs'mitigation measures.

The normal, pre-1999 revocation rules include provisions that are highly relevant to Take Permit/HCPs, including a provision that was
eliminated in the post-1999 rules for Take Permits/HCPs. This provision essentially states that the USFWS can revoke permits in cases where they are detrimental to species that continue to slide towards extinction. The post-1999 Revocation Rule exempts Take Permits/HCPs from this important provision. The USFWS also needs
to be given authority to revoke Permits if landowners fail to make necessary improvements to their HCPs over time; without such authority, landowners will have little incentive to fix their plans.

The existing and proposed permit revocation rules will not be sufficient to guarantee the implementation of mitigation measures where the "take" of threatened and endangered species is allowed prior to the implementation of those mitigation measures. Threatening to revoke a Take Permit will have little effect after the
permittees have finished their desired activities, i.e., the "take" of species'habitats.

Thus the USFWS should develop rules requiring the recipients of Take Permits to file performance bonds or other securities to guarantee the continued implementation of mitigation measures.


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