PRELIMINARY WORK PLAN TO ACHIEVE

INTERIM AND LONG TERM GOALS RELATED TO

ENDANGERED SPECIES AND HABITAT PROTECTION

Background:

This document outlines a preliminary work plan which will begin to provide solutions on a regional scale to the environmental and economic dilemmas posed to Pima County by the listing of the Cactus Ferruginous Pygmy-Owl (pygmy-owl) as an endangered species.

Discussion of endangered species and habitat protection planning began last Spring with the Board's support for the Sonoran Desert Protection Plan. In late August of 1998, the Coalition for the Sonoran Desert Protection Plan (Coalition) decided to expand their original concept and the group has worked constructively with the County to develop the framework of a proposal which is described below.

Interest in pygmy-owl related issues now extends across the community, as reflected by the high level of attendance and participation at the October 6, 1998 public meeting on the topic of the U.S. Fish and Wildlife Service's proposed take guidance and survey protocol. There are concerns among environmental advocates based on the low number of known owls. Members of the business community, development industry and real estate profession have expressed apprehension about the potential economic impact of the listing. Landowners and private property interests also have asked to know more about how their own land use decisions might be affected.

The expanded proposal addresses the concerns of the entire range of stakeholders and includes: (1) a larger planning area; (2) more partners; (3) expanded public process; (4) a more comprehensive approach; and (5) greater scientific oversight and peer review. Without compromising environmental goals, the Coalition has broadened the basic concept of its plan to honor a range of values within the community. In addition to this planning effort the Coalition is working in a proactive fashion with the County, assisting and advising on a site specific basis for projects planned at Arthur Pack Park.

What follows is a review of various obligations and options for Pima County. There is a description of steps that have been taken toward development of interim measures and a cooperative agreement among governmental entities. Finally the elements of a long term endangered species and habitat protection planning effort are described along with the continuing role of the Coalition and recommendations for future action.

Sorting out the Issues and the Rules:

At least three rules create grounds for interested parties to assert either environmental or property rights. These include (1) Section 9 of the Endangered Species Act, (2) Guidance issued by the U.S. Fish and Wildlife Service, and (3) the Fifth Amendment of the Constitution.

Another rule provides for a balancing of these interests: that is Section 10 of the Endangered Species Act.

Section 9 Prohibitions Under the Endangered Species Act

In March of 1997, the pygmy-owl was listed as endangered under federal law. Section 9 of the Endangered Species Act prohibits the "take" of an endangered animal. This means that it is a federal violation to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect endangered fish or wildlife. It is similarly unlawful to attempt to engage in these activities.

Harm has been defined in regulations to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."

The absolute nature of the prohibition in Section 9 of the Endangered Species Act is not always felt since many listed species are either plants, or wildlife species that are somewhat removed from human populations.

The pygmy-owl listing is a particularly difficult situation because the number of known individuals is so low (between 30 and 40 individuals), and many of the known birds are on the urban fringe, near development.

United States Fish and Wildlife Service Guidance

On August 13, 1998, the U.S. Fish and Wildlife Service issued proposed revisions to existing Guidance for landowners. In general, the Guidance identifies potential habitat types, and specific counties which historically had owls and may still have suitable habitat. The proposed Guidance also recommends more stringent survey protocol, including six surveys for owls conducted during specified times over a two year period.

It is rare for the Service to create Guidance. Having such gives some indication of the serious nature of this listing. However, while the newly proposed Guidance brought liability issues to the attention of the community, the Guidance by itself is an insufficient tool. It will not pro-actively address the conservation needs of the pygmy-owl, nor will it provide regulatory assurance or greater financial predictability that the community must have.

Fifth Amendment of the Constitution

The Constitution provides that private property shall not be taken for public use without just compensation.

Section 10 Balancing Under the Endangered Species Act

Under Section 10 of the Endangered Species Act, a level of "take" may be permitted if it is incidental to otherwise lawful activity and a habitat conservation plan is accepted by the U.S. Fish and Wildlife Service. A long term solution to ensure Endangered Species Act compliance is to develop a regional ecosystem based conservation plan which covers multiple species and adopts a high environmental standard.

It is likely that the availability of public land in Pima County will allow this community to uphold the viability of both the environment and the local economy.

As a practical matter, it is unlikely that regional environmental goals -- formulated without the incentives of meeting compliance requirements and lending predictability to economic and development interests -- would be implemented. Past open space plans have been visionary but never fully implemented. A mandatory element of a conservation plan keyed to Section 10 is that funding must be identified in advance. This creates a unique opportunity in environmental and natural resource planning to establish more certainty that environmental goals will be implemented.

• Section 10 relates to the issue of Section 9 prohibitions in the following way:
• There is no law or regulation except Section 10 which provides relief from Section 9 liability for Pima County and other non-federal entities. A conservation plan that is not keyed to Section 10 does not meet the basic regulatory needs of the County.
• Section 10 relates to U.S. Fish and Wildlife Service Guidance in the following way:
• The Guidance has the potential to slow down project development, but it does not offer regulatory assurance to landowners in return for compliance. Further, Guidance is subject to change. Under a Section 10 permit, areas open to development are better defined, the landowner has a level of legal protection, and the rules are not subject to changes with unplanned costs falling on the local community.
• Section 10 relates to Fifth Amendment Constitutional issues in the following way:
• Section 10 requires that conservation proposals present alternatives and describe the impacts of each alternative. Regional plans typically involve an economic impact analysis which allows communities to quantify their environmental goals. Under a broad regional approach there is increased opportunity to achieve many conservation goals in existing public lands, and there must be a role for landowners in the negotiation of a regional plan. Proper and sufficient public participation also creates a check against impermissible taking. This excerpt from a 1998 speech by the Secretary of Interior summarizes the balancing of environmental responsibilities and property rights.

"Now if we simply say there are endangered species, there will be no development, what do you think is going to happen? Bear in mind that private property owners are protected in some measure by the Fifth Amendment of the Constitution of the United States and you can't simply say by federal mandate, the 150,000 acres of privately owned land is off limits to development. That is an invitation to the disintegration of this whole system, because the courts will never allow us to regulate land that way, and they shouldn't. ... So the habitat conservation plan is a way of saying, in exchange for a reasonable development plan which will allow a reasonable economic return on property, you can develop X percent of it, provided you mitigate .... There's not enough money in this town to buy every piece of land. So that's why we have to make these tradeoffs. ... What we're trying to do is navigate a very tortuous and important path between constitutionally protected property rights and an overriding national interest in preserving habitat." (1998, Secretary Babbitt)

Applying the Rules and Identifying Options for Pima County Government and the Community

Obligations

Pima County's obligation to comply with federal protections for the pygmy-owl and other species is similar to that of the landowner who wants to build a storage shed and move some native vegetation in the process, or a large-scale developer. We will undoubtedly face endangered species dilemmas more often than other parties, though, because of the scope of our activities. Day-to-day business of Pima County government such as road repair or road widening projects, issuing certain permits, or pursuing bond projects could present endangered species compliance issues. Even if Pima County government were completely without environmental aspirations, we would have to work with United States Fish and Wildlife Service to seek compliance advice on a project-by-project or organization-wide basis; i.e., Pima County simply needs the regulatory assurance offered under Section 10 to conduct daily business.

Opportunities

At the same time, we can choose to achieve higher conservation goals than the federal law defines as the minimum. A high environmental standard of long term survivability has been and will continue to be promoted. There is also an opportunity to adopt a regional approach instead of a Pima County Government-only approach. The advantages of a regional approach include:

• The development community gains predictability once the planning process identifies where population growth and development will occur;
• A regional plan returns local land use decision making to the local level;
• In the absence of a shared community commitment to upholding conservation goals and balancing numerous values, we will see a continuation of Amphi-type litigation;
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• The community has the ability to work toward long term survivability of multiple-species, since identification of a sustained revenue source is a mandatory element of a plan submitted to U.S. Fish and Wildlife;
• A regional plan can prevent the scenario under which numerous individuals will pursue Habitat Conservation permits from the federal government, leading to fragmented conservation efforts that are more costly to the community;
• Continued population growth will lead to continuation of listings. A regional plan creates the opportunity to undertake preventive measures and provide protection for unlisted species and listed species in the plant community.

Elements of an Interim Strategy for the Pygmy-Owl:

The pygmy-owl is vulnerable, as is the local economy. While we start the planning process for a long-term and comprehensive regional plan, we must pursue interim measures to advance the science of the owl and to protect the pygmy-owl. These measures fall generally into the categories of research and land use decisions.

Research -- Interim Studies:

On September 25, 1998, a request for funding interim studies was made to the Secretary of Interior based on the recommendations from meetings of biologists, agency staff recommendations, and comments from community members.

Five types of studies were identified, including:

1. Initiate More Comprehensive Surveys

These studies would further our knowledge of how many pygmy-owls there are, and where they are located. Surveys need to be conducted at two levels: (A) survey for individual owls at a cost of $1,500 per survey ($4,500 per year or $9,000 for two years on average for a 160 acre plot), and (B) survey of habitat. The estimated total cost is $275,000 to $750,000.

 

2. Telemetry Studies

The study effort would provide information necessary to tailoring recovery and conservation plans to protect the owl and the economy. Questions that would be addressed include: Where do pygmy-owls go upon dispersal? How far do they travel? Is there exchange with other populations? Are they residents of specific areas, rather than migratory? How tolerant are they of various urban occurrences? How adaptable are they? The method of the study would involve placing transmitters on 60 birds (30 from the Arizona population, assuming more birds will be found through surveys). To study 60 owls with a $300 transmitter each would cost about $18,000 for equipment (minimum). If each owl was tracked 24 hours per day by an employee making $8 per hour, the cost per day per owl would be about $200. Labor for 84 days (12 weeks/the life of a transmitter battery) per bird would be approximately $16,800, or $1,008,000 for 60 owls. The estimated total cost is up to $1,026,000.

3. Habitat Assessments

Basic questions underlying these studies are: Can we describe the habitat that pygmy-owls need? Can we prescribe the habitat where pygmy-owls could breed, nest, feed and rest? What are the characteristics of that habitat in terms of density, height, breadth etc? Using sites discovered through surveys and telemetry studies, for 60 sites (30 Arizona; 30 non-Arizona): (A) perform on-the-ground data gathering (cost of maps plus time for on-the-ground gathering; 40 hours for 5 acres at $15/hour) and (B) perform statistical analysis (200 hours at $30 - $50 per hour). The cost is estimated to be a minimum of $150,000.

4. Population Viability Analysis

These studies answer questions such as: What number of owls is necessary to have a viable population? How can the length of the recovery period be predicted based on reproduction / survival rates? Using habitat and behavioral information, develop a model based on meta-population methods of the Southern Arizona population of pygmy-owls. Studies will rely partially on Texas data and other data gleaned from studies mentioned here to create statistically significant findings. The total cost is estimated to be between $100,000 and $250,000.

5. Genetic Research

These studies would begin to answer the question of whether the Arizona population is related to the population in Mexico or elsewhere. Through analysis of feathers or blood samples these studies would compare 30 Arizona pygmy-owls (assuming more owls will be located through greater survey efforts) to 30 non-Arizona (Mexico based) pygmy-owls. Studies would involve 60 to 120 genetic tests at a cost of approximately $1000 each. The estimated total cost is $60,000 to $120,000.

Land Use Decisions and the Protection of Existing Populations of Pygmy-Owls:

A second element of an interim protection strategy for the pygmy-owl involves land use decision making. Thus far, the County has worked with community groups to study the possibility of proposing changes in plans for County-owned property to accommodate the interim protection needs of the pygmy-owl.

Pima County has two potential projects planned for development on the Arthur Pack Park site in Northwest Tucson: a YMCA Community Center and a Pima Community College Campus.

Members of the Coalition for the Sonoran Desert Protection Plan along with members of the Northwest Coalition for Responsible Development expressed concerns that developing the Arthur Pack Park site as planned would remove an important area of prime pygmy-owl habitat from the Ironwood vegetation community.

These groups were invited to work on an ad hoc basis to advise County staff about the impacts of planned development on the site, and the availability of alternatives. The map on the following page shows the importance of the Arthur Pack Park site through these data layers:

• the map identifies public land ownership in Northwest Tucson;
• the map shows the relation of patches of habitat owned by the county, the state and other public entities;
• the map shows linkage between patches of habitat via washes and undeveloped land parcels;
• the map shows the density of development to the south of Arthur Pack Park;
• the map shows vegetation communities and the important location of state land.

One step in working to ensure the long term survivability of the pygmy-owl is to actively preserve habitat on Arthur Pack Park.

Such a preserve will not be sufficient to support the recovery effort for pygmy-owls. That effort will likely require actions across western Pima County.

However, as an interim measure, protection of existing populations in the Northwest area is critical, and the large block of County land that Arthur Pack Park represents along with some amount of other public land and land owned by the State, are necessary components of this interim plan.

Interim conservation achievements will need to be acknowledged by the U.S. Fish and Wildlife Service as a contribution to the long term regional planning process.

The Need for an Intergovernmental Cooperative Agreement and Steering Committee:

On July 16, 1998 a letter was sent to Department of Interior requesting advice about whether the Department would support an ecosystem based conservation plan. There was a positive response to the idea of framing a regional conservation plan in terms of ecosystem protection. Federal and state natural resource agencies also indicate that there is support for a regional planning process if the County enters into a cooperative agreement, establishes a steering committee, and engages in a recognized conservation planning process under Section 10 of the Endangered Species Act. With the help of the Coalition, there has been significant progress in building interest with and among private property rights advocates, environmental advocates, and developers. Upon receiving Board approval to pursue a formal cooperative agreement all local governmental entities within Pima County will be asked participate in a regional conservation planning initiative, as well as the Tribes within the regional planning area of the Pima County boundaries, and other interested parties.

The cooperative agreement would seek consistency in planning among jurisdictions and with Recovery Team efforts. Additional funding will be sought from interested governmental entities so that the cooperative agreement is followed by a cost sharing agreement. The cooperative agreement will also facilitate the establishment of a Steering Committee by the County. The Endangered Species Habitat Conservation Handbook provides the following guidelines for the structure and purpose of Steering Committees:

• "[S]teering committees are usually appointed by the permit applicant and can fulfill several roles -- they can assist the applicant in determining the scope of the habitat conservation plan (planning area, activities to include), help develop the mitigation program and other habitat conservation plan conditions, provide a forum for public discourse and reconciling conflicts, and help meet public disclosure requirements. Steering committees are particularly useful in regional conservation plans, especially those in which the prospective permittee is a state or local government agency, and are recommended for these types of efforts." (P. 3-3)
• "Ideally, a steering committee should include representatives from the applicant; state agencies with statutory authority for endangered species; state or federal agencies with responsibility for managing public lands within or near the habitat conservation plan area; tribal interests; affected industries and landowners (especially those with known or possible endangered species habitats); and other civic or non-profit groups or conservation organizations with an interest in the outcome of the habitat conservation plan process."(P. 3-3)
• "Steering committee meetings should be open to the public." (P. 3-5)
• "The composition of the steering committee will depend on the type of habitat conservation plan involved. Regional habitat conservation plans involving numerous activities and in which the applicant is a government entity ideally should include representatives from all affected interests." (P. 3-5)

Elements of a Long Term Eco-System Based Conservation Planning Process:

The original concept of the Sonoran Desert Protection Plan has been expanded to include both a biological assessment and an economic impact assessment. In general, the Coalition has worked with the County in creating a proposal which now has (1) a larger planning area; (2) more partners; (3) expanded public process; (4) a more comprehensive approach; and (5) greater scientific oversight and peer review.

1. A larger planning area which covers western Pima County will encompass more of the ecosystem, provide greater flexibility at the implementation stage, and create more opportunity to achieve consistency between the locally initiated conservation effort and the federally sponsored recovery effort.

2. Having more partners involved through a formal cooperative agreement will broaden representation in the planning process and thereby increase chances of acceptance of the program within the community, reduce the cost of the study to Pima County, increase the availability of science data through cooperative agreements (particularly with federal natural resource agency partners), and increase the chances that land acquisition proposals submitted for grant funding will be viewed favorably.

3. By expanding the public process to include additional parties early in the process, the Plan will comply with National Environmental Policy Act and thus enhance the utility of the biological assessment for future federal funding purposes, reduce tensions with landowners and other interests by addressing concerns through the process, and reduce the time that the planning process takes by conducting the federal process along a parallel track.

4. The more comprehensive approach encompasses all aspects of federally recognized conservation planning including measuring the impact of alternative conservation scenarios, and measuring economic impact.

5. Greater scientific oversight and peer review will facilitate the establishment of the best science available, ensure the independence of the scientific conclusions and insulate such from interest and advocacy influences, and eliminate duplication of past study effort by relying on the expertise within the community to confirm baseline information, identify gaps, and clarify on-going analysis.

The U.S. Fish and Wildlife Service must have a defined role in the early stages of the process to fulfill its own obligations under a conservation plan. The Endangered Species Habitat Conservation Handbook states: "It is now Service policy to begin integrating the section 7 and section 10 processes from the beginning of the habitat conservation plan development phase, and to regard them as concurrent and related, not independent and sequential processes. In procedural terms, this means that considerations of section 7 consultation requirements should start at the beginning of the habitat conservation plan development phase, not during the permit processing phase." [3-16]

Since a major role in the planning process for the U.S. Fish and Wildlife Service, other federal entities, and the Steering Committee is to define or refine the scope of work, a cooperative agreement should be entered into before the scope is finalized. All stakeholders to the process must have a role in refining the work as it is developed by the County. Initial development has started on the biological scope of work with the assistance of science experts who will not compete for any contract to conduct the biological assessment. A formal process must be established to safeguard the work product and expedite release of the first request for proposals so that work can begin on the biological assessment by January of 1999.

Continuing Role for the Coalition:

Establishing a Steering Committee which complies with the U.S. Fish and Wildlife Service Handbook will not diminish the role of the Coalition. The Coalition has set an example for other interest groups by acknowledging the importance of multiple values within the community and by participating in finding solutions as well as defining issues of concern. The County will continue to meet and consult with the Coalition and we will continue to seek cooperative solutions.

Where Do We Go From Here:

Specific recommendations are included in the accompanying memorandum. In general, it is recommended that the Board take action so that staff can:

1. Ensure that Arthur Pack Park habitat is preserved and that adopted interim conservation measures are recognized by the U.S. Fish and Wildlife Service as a contribution by Pima County to the larger regional planning process.

2. Pursue a cooperative agreement for interim and long term planning to enter into a federally recognized planning process which will establish a public process open to stakeholders, expedite development of a scope of work by stakeholders, and allow work to begin on a biological assessment by January of 1999.

3. Continue to seek the advice and participation of the Coalition.

4. Continue to develop interim solutions.

5. Continue to pursue funding sources.

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