CONSERVATION PLANS, THE ENDANGERED SPECIES ACT, AND THE CONSTITUTION

The Origins of Habitat Conservation Plans
Gail Kobetich, Office of the Secretary of the Interior

The Direction of Regional Conservation Planning
Marc Ebbin, Of Counsel, Beveridge and Diamond

The Origins of the Sonoran Desert Conservation Plan
Chuck Huckelberry, Pima County Administrator

The Endangered Species Act and the Constitution
Fred Bosselman, Chicago-Kent College of Law

MAY 22, 1999 EDUCATION SESSION

THE ORIGINS OF HABITAT CONSERVATION PLANS
Gail Kobetich, Special Assistant to the Secretary of the Interior

The idea of developing a process that would establish a method for conserving native flora and fauna and the habitats on which they depend evolved from the confrontation of urban expansion and the provisions of the Federal Endangered Species Act.

That this confrontation first developed in California should not be a surprise since the rapid rate of growth of the human population in many areas of California was consuming millions of acres of habitat occupied by a host of species which often existed nowhere else. California was rapidly losing many of its endemic species and unique habitats.

However, with the passage of the Federal Endangered Species Act in 1973 and the subsequent listing of many of California's endemic species, the stage was set for a confrontation between urban development and the provisions of Federal Law.

The Federal Endangered Species Act clearly states that anyone subject to the jurisdiction of the United States Government cannot take a species listed as endangered or threatened unless that take is authorized by a provision in the act.

The 1973 Endangered Species Act, as it was originally written, did not have a process that would allow for the take of a listed species unless the activity being proposed was a project of, or needed a permit from the Federal Government. Federal agencies could use a consultation process with the United States Fish and Wildlife Service that would allow the project to go forward, even if it took an Endangered Species as long as the agency complied with the list of conditions imposed by the Fish and Wildlife Service. There was no similar process for the private sector.

In 1982, in San Mateo County, California, a developer began planning for a massive housing project around and on San Bruno Mountain, the last large remaining open space in the area. San Bruno Mountain contained habitat for a number of endemic species, two of which were listed as endangered under the provisions of the Endangered Species Act.

The project's proponent soon discovered that they would be subject to severe penalties of the act if they proceeded with their project because their activity would take some of the endangered species; in this case, two butterflies. Rather than giving up on their project or alternatively violating the Act they in concert with local environmentalists, approached the Fish and Wildlife Service and proposed a solution not unlike the consultative process allowed Federal agencies under the Act.

The solution being proposed would allow a take of a listed species providing a project proponent developed a plan that would protect the listed species, and that any take would be incidental to and not the purpose of the otherwise lawful activities.

Since the land development process in California is largely a local jurisdictional process, governments of the cities around San Bruno Mountain and San Mateo County were involved in and contributed to the development of the language that would guide this and subsequent efforts. This language was amended into the Endangered Species Act and it established standards that a plan would have to meet before the Fish and Wildlife Service could approve it and issue a permit for the take of a listed species.

The intent of this new process was to produce a plan that would cover all or a significant portion of a species range and would need to have clearly defined conservation goals and process requirements. Also, it quickly became apparent that efficiency would be served if permits were given to jurisdictions rather than to individual developers, although permits for single development could still be issued.

By issuing permits to jurisdictions rather than to individual developers there would not be a need to do a habitat conservation plan every time another development was proposed. The Fish and Wildlife Service would delegate its take authority to the local jurisdiction as long as the local jurisdiction enforced the provisions of the Habitat Conservation Plan when permitting development.

The provisions in the plan required that preservation of a listed species must be assured by actions available to the jurisdiction through their land use authorities. Generally, this resulted in habitats being set aside in preserves that were managed. Developers generally had to pay a significant part of the cost of the preserve and the management, a cost that they accepted because this innovative process provided them with assurances that their projects would not be stopped by the Endangered Species Act.

What was the significance of this planning process?

It has been truly significant because in order to avoid violation of the Endangered Species Act it has given jurisdictions the impetus and the need to control land use over which they have authority in order to obtain incidental take permits. It has allowed the jurisdictions to use all of their land use decision making tools to be brought to bear on the issue of conserving listed species and their habitats while accommodating development.

For those jurisdictions that have listed species within their boundaries, they now have the opportunity to develop a program meeting the standards for species protection in the Endangered Species Act and that regulates growth and development in relation to these standards. The basic provisions of the plans that have been completed and approved have been to allocate between listed species and development where each would occur and what percentages and configurations of remaining open space each would occupy. As a part of the basic elements of these plans, the permit recipients, in this case the jurisdictions, have to commit to the implementation of the plan.

In negotiating components of a Habitat Conservation Plan and the means to implement them, local jurisdictions often discover that they must change the ordinances governing how and what they permit and quite often, amend their general plans.

Some jurisdictions have inserted new elements into their general plans that raise the consideration of conservation of habitat and species to the same level as other major elements in the general plan such as transportation, etc.

The ability of local jurisdictions to change ordinances and amend their general plans in order to implement Habitat Conservation Plans has been one of the more significant developments in the efforts to protect listed species.

In the past, many local jurisdictions gave the protection of species and habitats only passing consideration, if at all. The result has been the passing of laws such as the Federal Endangered Species Act and other statutes at the state level designed to provide protection to species and habitats in order to correct this lack of responsibility at the local level.

The passage of tough federal and state laws, however, has forced local jurisdictions to realize that they must plan for the conservation of habitats and the species that are dependent on them if they want development to proceed and do not want to violate the provisions of these laws. The incidental take provisions of the Federal Endangered Species Act have given these local jurisdictions the way to do this.

This is having a truly positive effect on the way in which local jurisdictions confront of contingent between development and conservation. In those jurisdictions that have adopted this approach, conservation of natural resources is no longer an afterthought but a major element that has to be considered during the regular land use permitting process.

This is a profound change in the way these local jurisdictions treat the conservation and natural resources and if adopted, more widely promises to correct the lack of action in the past. An essential element of this process is the commitment to implement the plan after is it completed. Local jurisdictions must not rely on the take provisions of Section 9 of the Endangered Species Act as the enforcement mechanism, especially if the local jurisdictions have requested coverage for unlisted species and plants.

Another impact of the Habitat Conservation Planning process that has resulted in a fundamental change in the manner in which conservation of natural resources is accomplished at the local level regards the creation of partnerships. Before violation of the Endangered Species Act became a real possibility for many jurisdictions in rapidly urbanizing areas, Federal resource agencies were rarely involved in the land use planning process. Even state resource agencies were relegated generally to minor roles. With the advent of Habitat Conservation Planning, however, both state and Federal resource agencies have played a much more important part.

The two basic reasons for this are that the Federal Endangered Species Act is regulatory and must be complied with, which automatically gives the Federal agencies leverage in the process, and secondly, resources available to local jurisdictions are generally not enough to implement the provisions in the Habitat Conservation Plan. Therefore, this has necessitated the formation of partnerships among Federal, state and local governments that had not occurred before.

The local jurisdictions get the benefit of resources available to the Federal agencies to implement their Habitat Conservation Plans such as purchasing and managing preserve systems. The Federal agencies get the benefit of local land use planning methods to implement their responsibilities under the laws.

In addition, local jurisdictions can establish other protective measures for species in their habitats in addition to establishing their preserves. One of the more important of these methods is zoning. It can protect slopes, waterways, specific habitat types and wildlife corridors.

In addition to partnerships among the governmental agencies involved in Habitat Conservation Planning, the private sector also becomes, in most instances, part of the mix. Private land trusts can play an important and critical role in purchasing land for a preserve system. Private land managing entities can manage habitats that governmental agencies at any level cannot easily oversee. Private industry, in the environmental community, play a pivotal role in helping to negotiate the plan and by supplying innovative ideas and resources to help with its implementation.

The formation of partnerships to protect the natural resources in urban areas in a manner not seen or contemplated before has been one of the most beneficial aspects of habitat conservation planning.

Another important aspect of the Habitat Conservation Planning process is the issue of multi-species coverage under one plan. This is a common sense issue: if there are more than one listed species in a planning area then it is much more efficient to include protective provisions for them in one plan rather than doing a separate plan for each.

This generally has been easy to do, however, a controversy arose early in the development of the Habitat Conservation Planning process of how to treat species that were not listed under the provisions of the Federal Endangered Species Act. Some of these species were candidates for listing and might need to be listed in the near future if protective measures were not instituted. Fortunately, when Congress amended the Endangered Species Act in 1982, they in a special report, specifically stated that if non-listed species in a planning area were addressed as if they were listed, then there would be no need to do an additional plan if the species were later listed. For many plans then, a long list of species were addressed and coverage was provided to listed as well as non-listed species.

This also has been a major innovation in this type of planning effort and raises the protection of unlisted species and plants to the same level as listed animals. It also enhances the development of HCP's if a local jurisdiction is willing to impose mitigation and avoidance requirements for these unlisted species. In some planning areas, the area under consideration has crossed jurisdictional boundaries which has necessitated imaginative solutions to address these additional complexities and has allowed for planning on a larger regional scale. Generally the answer has been to draft an umbrella document under which each jurisdiction in a planning area can submit their Habitat Conservation Plan providing it does not violate the provisions of the umbrella document.

There are usually two major phases in the development of Habitat Conservation Plans.

The first phase considers a species for which coverage is being requested and entails a collection and analysis of all available data. This includes all information that will be of use in designing a preserve system and developing special conservation measures such as closures during nesting or flowering seasons.

The second phase consists of evaluating information provided from the first phase and then devising methods to implement the plan. It is during this phase that adjustments are made to the plan in relation to socioeconomic and political needs and therefore, because of these realities, be a difficult process.

As the plan nears completion and the major provisions have essentially been agreed to, an implementing agreement is drafted that is, in essence, the contract that all parties who have responsibilities under the plan will sign, this is a legally binding agreement.

Once a Habitat Conservation Plan and pertinent documents are completed the major work of implementation begins. Since it is impossible to include in a plan all the possible contingencies that might arise, the plan and the other documents will continually require interpretation and clarification. The initiative here, after the completion of a plan can be very difficult and all parties interested in the success of the effort must be ready and willing to provide positive help to solve these problems. It helps to have some of those individuals who were instrumental in negotiation of the plan to be available for consultation during the early phases of the implementation, and regulatory agencies must maintain involvement in the implementation because they must assure compliance with the permit.

And finally, a Habitat Conservation Plan is not about just saving an Endangered Species, although this a rational for its development, but also about improving the overall quality of life for humans. The preserve systems that are established as the result of the planning process will allow for the conservation of species and vegetation communities, while at the same time preserving uncluttered hillsides, keeping streams flowing and clean and providing open space. An important issue is that the local citizenry must have access to the preserve system. When developing the Habitat Conservation Plan, consideration for this human use must be included, otherwise, use will occur that will be haphazard and detrimental to the values for which the preserve was established. It is essential that the management of human use be considered as an integral part of the plan.

In summary then, the Habitat Conservation Planning process amended into the Endangered Species Act in 1982 not only provides a vehicle for preservation of species and habitats but also can have a major, positive effect on the overall quality of life for the citizens in the planning area.

In the packets of information provided to you by the County, I have included a list of items that can be expected from this type of planning process and if you will look in your book, this list is included in there and it is essentially a condensation of my comments.

TRENDS IN REGIONAL CONSERVATION PLANS
Marc Ebbin, Of Counsel, Beveridge & Diamond, Former Special Assistant to the Secretary

I want to thank Chuck Huckelberry who is not here yet, and Maeveen Behan for having me here today. It's a real pleasure to be talking to a gathering of folks who are on the verge of doing something historic for the community and for generations to come. I appreciate the opportunity to tell you a bit about how this approach to conservation you are now considering came to life and why it's worth doing for the Sonoran Desert.

It was about 6-years ago that my former boss, Bruce Babbitt, joined the State of California in testing a new approach to wildlife conservation, an approach aimed at protecting not only an endangered songbird, the California Gnatcatcher, but an entire assortment of other species occupying an ecosystem threatened by the tide of development going through the coastal zone of Southern California. The moment was right for such an experiment.

The Endangered Species conflicts of the Pacific Northwest and elsewhere had yielded less than satisfactory outcomes from all perspectives. Indeed, the various interests ended up with tremendous uncertainty, tenuous conservation measures for species, splintered economies, and unpredictable land use restrictions. These experiences, better labeled train wrecks, highlighted shortcomings in the way the Federal Endangered Species Act was being administered, shortcomings that Secretary Babbitt thought could be remedied through imaginative and innovative use of the laws more dextrous provisions.

An opportunity to move the ESA in a new direction availed itself in California with the Federal designation of the Gnatcatcher as a threatened species. Utilizing an underemployed provision of the ESA, the Interior Secretary deferred to the processes established under a state initiative called "The Natural Communities Conservation Planning Program," to provide for the Gnatcatcher.

The NCCP Program embraced a number of concepts that Secretary Babbitt was intent on introducing into the ESA, concepts that were intended to provide the basis for greater protection, for a greater range of species across the landscape, lesser disruption to the economic interests of the area, and closer collaboration between local, state and the Federal Government.

The Secretary recognized that by linking the ESA with the NCCP Act, a model for fundamental change and the way biodiversity is preserved in this country would be in the making. Today, five counties in Southern California participate in the NCCP/HCP Program and are at various stages of developing plans that ultimately will produce a series of interconnected preserves that stretch from Los Angeles down to Mexico.

The first products of the experiment, the Orange County Central Coastal Plan and the San Diego County Multiple Species Conservation Plan, have been completed and are now the focus of national attention. Of course, the question being asked by those interested in such matters including state and local government officials, is whether the plans have lived up to their expectations and are deserving of their status as models for the rest of the country.

In other words, has the Southern California experiment been a success?

The answer is plainly, yes.

What has been developed in Orange and San Diego County's are blueprints for other urbanizing communities committed to striking a balance between growth and development and environmental quality and its notion of livability. These plans successfully put in place conservation measures unprecedented in their scope and breadth and yet do so without compromising the economic vitality of the region.

They are products of open participatory processes that respected the voices of all legitimate interests, yet they are examples of regulatory efficiency in streamlining. They are challenging undertakings for the participants yet they are being thought of as well worth the effort by many communities, not just those in California, but across the nation because they offer a better, more effective response to critical environmental challenges.

So, what are the concepts underlying the Southern California approach that set it apart from other existing and more traditional conservation strategies and provide the basis for a more potent, sensible response to the thorny challenge of species protection?

First, the program embraces the concept that by broadening the scale and comprehensiveness of conservation planning the capacity to conserve species will be greatly enhanced. The approach moves away from the species by species, project by project, nature of the ESA and instead, focuses on the entire landscape and its range of inhabitants.

Thus, the emphasis is on the preservation of ecosystems, not just its parts and on communities of species, not just those already imperiled. By planning on a regional level, conservation measures can be carried out in a systematic way with the needs established in a more anticipatory basis rather than a reactive basis. Unlike the core processes of the ESA which only intervene after a species has been deemed sufficiently imperiled to warrant its protection the Southern California Program is designed to put into place conservation measures intended to protect the future decline, protect against the future decline of species.

The Regional Planning Concept also potentially moderates the effective species conservation requirements on economic concerns of an area, thereby reducing potential friction between competing interests. Again, evaluating conservation needs on a regional basis, opportunities to find room for accommodation of interests increase as does the potential for reaching a sensible balance of the uses on the land.

The comprehensive nature of the regional plans provide landowners with the added advantage of far greater certainty and predictability in their own planning decisions. Addressing the needs of multiple species up-front means that landowners are spared the obligation to do so later. Thus, if a species covered by a plan is later listed, landowners are relieved of any new conservation requirements and assured that development plans can proceed unimpeded. Moreover, by integrating local, state and Federal conservation requirements into a single coordinated process, project proponents are able to move through the regulatory process in a faster, less costly manner.

Finally, the regional approach also provides a mechanism to integrate wildlife protection objectives into the planning processes of local government. Under the approach the primary responsibility is placed into the hands of local jurisdictions to implement these conservation measures. The approach recognizes that decisions about the use of the land are best left to local government and at the tools of local land use planning, unavailable to the Federal and state governments are ideally suited to protect wildlife. In effect, habitat conservation translates largely into land use regulation and is analogous to what local governments do to protect open space. Under the approach the role of the Federal government is limited to setting standards, monitoring performance and providing technical and financial assistance.

So how successfully were these concepts I just mentioned diffused into the Southern California Plans?

Well, let's go through the list.

First, the benefits to the conservation species. You need not be a conservation biologist to know that bigger is better and the plans developed by the Orange County and San Diego County folks are the biggest conservation plans are the biggest conservation plans ever done for an urbanizing landscape, yet they yield more conservation for more species of plants and animals than could have been accomplished under other existing local, state or Federal regulatory processes. But that's only part of the story. The regional planning approach provided for a more thoughtful, informed judgement to be made about the nature and outcome of a conservation program.

How big?

In San Diego, 172,000 acres comprising 18 different habitat types will be preserved at levels sufficient to cover 85 endangered, threatened or rare species. In Orange County where the focus of the planning effort was primarily on the coastal sage scrub ecosystem, almost 38,000 acres of land will be protected, providing adequate coverage for about 39 species. The big picture view ensures that preservation opportunities can be optimized. Under the ESA, plans are often developed on a piecemeal basis with judgements about the biological needs determined in isolation, without the benefit of knowing how the pieces fit together.

The planning processes in Southern California, however, began with a thorough evaluation of the biological resources of the entire region. The conservation needs were then assessed through a detailed portrayal of the patterns and relationships among the critical areas. Without such a comprehensive analysis of the region, the elements of the sustainable preserve system such as its size, its location, its configuration would have been very difficult to shape.

Furthermore, by identifying at the outset the areas of highest biological value, strategies to most effectively build a preserve system could be conceived early on. Knowledge of the quality of the vegetation communities, the whereabouts of species, the location of corridors and linkages and the relationship between geologic, biologic and manmade features was essential in developing the outlines for a preserve system and devising the approaches to putting it together.

This information also provided the basis upon which participating jurisdictions could make determinations about the land use mechanisms best suited to accomplish the objectives of the program.

There is another dimension to the regional planning process in San Diego and Orange Counties that affords species a far greater measure of protection than otherwise would have occurred in a comprehensive adaptive management program. Built into the plans is a process to establish management and monitoring programs for the entire preserve system. As a condition of the permits conveyed pursuant to the program, participating jurisdictions were obligated to prepare and implement management plans in coordination with each other to assure that the preserve areas function appropriately.

The process of developing management plans for the preserve will be useful in identifying the most pressing research and data gathering needs. Land managers will require access to the best scientific information available to carry out their tasks. Recognizing that need. a core science group, under the leadership of the Biological Resources Division of the USGS, was formed to help identify research and data gaps and to engage the scientific community in undertaking projects that will increase the understanding of preserve management.

The program also provides an exciting opportunity for scientists to conduct research with real implications for preserve management. In fact, one renowned scientist told me not long ago, he was giving up investigating the reproductive strategies of lichen so that he could turn his attention to matters more relevant to the landscape.

Number two, the benefits to economic interests.

The listing in the Gnatcatcher might have induced a showdown of monumental proportions over the fate of the last remnants of the undisturbed landscape in Southern California. The State of California, fortunately, recognized early on the growing volatility of the situation caused by the anticipated Gnatcatcher listing as well as by a cue of other species awaiting protection under the state and Federal ESA. In response, the state enacted the NCCP Act and soon thereafter, began working with Orange and San Diego Counties to develop plans to avert a looming crisis.

The decision of Secretary Babbitt to put his faith in the NCCP process to provide for the conservation of the Gnatcatcher and to bolster the regional planning approach through a set of ESA administrative reforms, further helped to alleviate the remaining tensions. Consequently, the economic engines of Southern California never stalled and conflict never ignited over the listing of the Gnatcatcher.

The planning processes in San Diego and Orange Counties went forward with the participation and backing of the development community, an acknowledgment that regional planning offered an approach far superior to the other alternatives. To the landowner community the most enticing feature of the regional planning approach was the certainty it affords. Without the assurances provided by these plans, landowners would have had far less incentive to participate in the program.

In exchange for mitigating for impacts to species not under the protection of the state or Federal ESA, landowners have been able to resolve local, state and Federal conservation issues once and for all. The MSCP and the Central Coastal Plan succeed in collapsing an array of regulatory requirements and procedures into a single process.

Specifically, obligations of landowners to mitigate for impacts to biological resources are established through a single plan rather than through a series of disjointed processes, independently derived by different levels of government to supposedly reach similar objectives.

Through the San Diego and Orange County plans, the landowners satisfy the requirements of the Federal ESA and environmental review processes under (NEPA) as well as local regulations protecting biologically sensitive resources. Ordinarily, landowners would make their way through the labyrinth of regulations to secure permits and approvals necessary to proceed with a project that it would impact sensitive areas.

In San Diego County, for instance, the proposed development project potentially effecting state or Federally listed species now bypasses the Federal permitting process and instead, undergoes direct review by the local jurisdiction to determine its consistency with the MSCP.
The participants in the MSCP and Central Coastal efforts found that the one-stop shopping concept was desirable enough to propose the integration of Section 404 of the Clean Water Act into a regional planning framework. Over the past couple of years, the Army Corps of Engineers and the Environmental Protection Agency have been working closely with both San Diego and Orange Counties to devise a similar approach and lay the foundation for undertaking comprehensive planning for wetlands and watershed resources.

Third, benefits to local governments.

Finally the Southern California plans are succeeding in shifting much of the responsibility for protection of the regions by diversity from the Federal and state governments to the local governments. In the MSCP and Central Coastal Plans, the preserve systems will be created mostly through the regulatory authorities of the participating jurisdictions.

In effect, habitat conservation goals will be integrated into general plans for those jurisdictions and will be considered along with residential and commercial development, open space, roads, schools and other public facilities, in zoning and other regulatory decisions. Under the regional planning process, each jurisdiction devises an approached implementation tailored to fit its own particular needs. In the MSCP, for instance, several different land use techniques are being utilized to build a preserve. Some jurisdictions have hard lines delineating where development and preserve areas will be. Hard lines reflect agreements reached between landowners, jurisdictions and wildlife agencies on project design and mitigation requirements. Jurisdictions also have soft line areas where both conservation and development will occur at levels predetermined by the plan but where issues such as project configuration are determined through the local approval process consistent with the parameters set out beforehand. Yet still, another approach offers no lines at all, rather the rules of development are defined by a detailed set of local ordinances which include built-in incentives designed to steer mitigation to areas of highest biological value.

Regardless of the approach local governments are the chief decision makers. The state and Federal governments play primarily an oversight and advisory role in the process, the plans are developed by participating counties, and must comply with the guidelines and standards of the NCCP Program and be approved by the California Department of Fish and Game. The U.S. Fish and Wildlife Service also reviews plans to determine their adequacy under the ESA to protect the Gnatcatcher and other covered species.

If the conditions of the approved plan are breached the wildlife agencies can reassert control over the conservation effort and resume project by project permitting under the state and Federal ESA. The Federal and state governments further participate in the process by assisting the counties in implementing their plans. In addition to providing technical advice and biological considerations and on the sufficiency of the plans under the Endangered Species Laws, the Federal and state wildlife agencies contribute to the acquisition, the management and the research needs of the program. The Federal and state governments, for instance, have enrolled much of their regional landholdings in the NCCP Programs and have agreed to acquire additional lands to help to preserve systems.

So what's next?

The NCCP is succeeding in California but to what extent will the approach be successful in other areas of the country. That depends, of course, on the receptivity of other local governments to assuming the responsibility for taking difficult and controversial steps to ensure balanced uses on the land. For the approach to work elsewhere, local governments must be willing to put measures sufficient to enable the Federal Government to delegate responsibility for the development, implementation and the enforcement of conservation measures mandated under the Endangered Species Act.

As you folks are beginning to learn, carrying out a regional planning process requires enormous commitment on the part of the participants through the process and also to the values and body in the preservation of biodiversity. What is becoming very apparent is that the commitment is strong in many communities throughout the country in protection of the natural environment and regional biological heritage. Since the adoption of the Southern California Plans, there has been great interest in regional conservation planning expressed by a cross-section of communities, particularly throughout the west and indeed, along with Pima County a number are off and running with their own programs. Let me just note a few so you will know that you are not alone.

Elsewhere in California, in Placer County like the Sierra Foothills Community, Central Coast Counties like Monterey; South Coast Counties like Ventura County; and Central Valley Communities like Merced and Alameda Counties are either considering or have begun to undertake efforts along these lines. The State of Colorado and the counties that make up the front range of the Rockies have joined in an effort to develop a regional plan for the conservation of threatened Preeble's Meadow Jumping Mouse and its riparian habitat. And last fall, in fact, Secretary Babbitt arrived in that state to announce the department's issuance of a special rule under the ESA intended to assist these jurisdictions in crafting such plans.

Because of the proliferation of these planning processes the foundation world has begun to turn its attention to helping these efforts. The Packard Foundation for instance, under its 175 million dollar Conserving California Landscapes Initiative has focused on providing assistance to local governments in California, intent on pursuing these plans by granting funding for planning and land acquisition.

In fact, the Hewlett and Irvine Foundation, the National Fish and Wildlife Foundations have also begun to promote these initiatives and in addition, the increasing financial commitment of the Federal Government as evidenced by the Vice President's Livability Agenda as proposed will greatly help assist these efforts.

The list is growing and I think in part due to a recognition by communities of their obligation to take steps to predict life resources in their backyards, but perhaps the stronger, more compelling reason is tied to quality of life concerns.

Many of these regions are grappling with a steady stream of new arrivals that add to the richness of their communities, but sometimes do so at the expense of open space, habitat, agricultural and range lands, water; and ironically, at the expense of the qualities that brought these people to these places in the first place, is the recent recognition by these communities of the intersection of a range of local, state and Federal goals, conserving endangered species, preserving agricultural operations that I think is spurring many more local officials and local citizenry to collaborate with their neighboring communities and with the Federal and state governments to plan for these regions. Thanks very much.

THE ORIGINS OF THE SONORAN DESERT CONSERVATION PLAN
Chuck Huckelberry, Pima County Administrator

I want to just thank everyone for coming and I appreciate the attendance. This is one of a series of educational seminars for the steering committee and obviously, anybody and everybody else is welcome to attend these meetings.

Let me talk to you about the conservation plan, and this conservation plan is something that, although it's been billed as something new and different, it's frankly not that new and not that different. It is the coming together and the coalition of a lot of issues and ideas that had the opportunity to germinate into what it is today partly a Multi-Species Habitat Conservation Plan -- and a part of it is just a general conservation plan of many planning elements that the County has been involved over a number of years. Let me tell you, when I sat down and thought about the origins of the plan, there have really been four factors that have been involved in getting us to where we are today, and I will tell you what they are and come back and talk about each one of them briefly.

The first is growth, the urban growth and urban expansion of Pima County. That is obviously a factor that has pushed us into the mode of conservation.

The second is what I term political will. The political will to take action to advance the principles of conservation.

The third one is this county, city, state and the nation have been blessed with a strong economy, therefore, we have had the capabilities to talk about fundamentals of conservation as opposed to other issues.

The last is the Endangered Species listing of the pygmy-owl that has kind of acted as a catalyst to bring this focus together.

First, let me go back and talk a little bit about growth. As many of you may or may not know, I was born in Tucson a few years ago and the population, in Pima County, when I was born was less than 100,000 people. Today, it is pushing 900,000. So, in the short space of how old I am, this community has grown tremendously.

Urbanization is one of the things we have to think about in Arizona -- and the west is a very popular place to live. We have record migration and have had it year-in and year-out over the last 50 years. I don't anticipate much different in the future with regard to our growth and growth rates.

We know and we can expect and have expected over the last 25 years, about 15,000-20,000 new net residents to be in Pima County -- to live and to work and earn a living; to retire; to do the things that have brought us to this community, its clear skies and mountain views, and the things that people move to Arizona and Tucson for.

They have also, this net population migration, created the need to expand the urban area -- and as we look back at the expansion of the urban area, it is pretty obvious if you take snapshots over time, to see the growing metropolis of Tucson and Pima County and its consumption of land, its consumption of the Sonoran Desert in its urbanization. Our population density, when we talk about density in relationship to land consumption, because there is a relationship there, we could, in fact, have all of our population on just a few square miles very similar to Manhattan, if we had a population density of about 20,000 people per square mile.

We don't like to live that way. The market forces that built this community and basically built the west, have been about a low urban density lifestyle. That low urban density lifestyle has translated into a population density of about 2,200 persons per square mile. Well, it's pretty simple, all you've got to do is do the math. You take 15,000 to 20,000 new residents each year and divide 2,200 into it and you get that every year, year in and year out, we're going to consume anywhere from seven to ten square miles of the Sonoran Desert in expanding urbanization of Eastern Pima County.

So that growth, and that recognition of growth, and the recognition that some of us had, that we used to drive for 10 minutes and be out in the desert but now it takes us 30 minutes to drive and be out in the desert -- that's the consequences of this urban expansion, this free market economy that lets people basically live where they want to live and live in the style that they can afford.

So urban growth, that consumption of the Sonoran Desert, is one of those factors that's been at play for probably 20 or 30 years. It's becoming more acute just in the last ten years. People begin to recognize it because like you, sometimes as I get older I forget things and I know what Pima County looked like in 1990 and 1990 is only ten years ago, I can remember that. Well, in Pima County ten years ago the population was 660,000 people, today it's 850,000 people. That's a 30% increase in one decade. Therefore, we think about that urban growth and that future consumption of the Sonoran Desert, and that is one of the driving forces behind the origins of the conservation plan.

The second one is this thing called political will, and it's important to have the political will to foster a conservation ethic and a conservation plan because it takes some courage to do that. We've had this habit in Pima County -- about every four or five years -- we either talk about growth as being something that's necessary to sustain the economy and should be done at all costs, or we talk about growth as the evil that is destroying the community and the environment and should be stopped at all costs.

So that is translated over the years into this whole discussion about who gets elected, what their philosophies are and everything else. Well, that's a good debate and it sells on t.v. but it does little for the community and little for the environment and little for the economy over the years that I've been in the County and I've been in the County now for 25 years.

I can remember in 1974 when we had Ron Asta and Ron Asta was for controlled growth. I can remember when we had another election a few years later and we went into what we called the business board. The Board said, "We want to grow." And so back and forth and back and forth and back and forth -- and the only thing real that has ever happened in that debate and discussion was that every year, Pima County grew by 15,000 to 20,000, regardless of how we debated or whether we thought growth was good or bad.

So it takes the political will to recognize that whether you are one side or another, you basically better begin to think about coming to grips with solving the problem because those 15,000 to 20,000 people are still coming here each and every year.

We've had a Board who have had that political will to move forward, have the courage to say it's time to do something and it's time to do something right, let's bring everybody in, talk about it, discuss it, debate the issues and we can reasonably debate and disagree but in the end we ought to come to what we want this community to look like and settle it.

It requires that longstanding political will to make a choice to change because if we have these swings of philosophy back and forth, the only thing that really suffers in the long run is true, final positive direction and planning. We go one direction one year, we take another direction another year so this political will is very, very important, political stability in that discussion is also very, very important to move forward. That's the second area.

Strong economy: I was at a meeting this morning with a free breakfast served and we talked a lot about that free breakfast but during the free breakfast discussion, everyone circulated raffle tickets so there is no free breakfast, no free lunch and there is no free conservation. You have to pay for it and you have to figure out how to pay for it and I can tell you, it is much easier to talk conservation, and the taxation that is going to be necessary to implement conservation measures when in fact the economy is strong and healthy and that there are tax revenues flowing into the treasury, whether it's the County, city, state or the nation.

Though strong economies basically allow us to afford conservation, and we've been fortunate in the last five to seven years to have a very strong economy locally, in the state as well as the nation, so all we can do is hope that those prognosticators of the economy and the nation and those who keep the money supply in balance continue to do a good job so we can have reasonable economic expansion to be able to afford conservation. That is also a factor that has put us in a position of where we are today.

Finally, the whole thing that got all this stirred up and moving in a direction was the Endangered Species listing of the pygmy-owl and many of you attended some of the forums, either in costume or in person, on the pygmy-owl.

That particular issue was just symptomatic of what is occurring with urban land consumption, the loss of natural resources, the issue on the political will and the collision of the economy: in other words, the threat to the local economy that the pygmy-owl is going to shut down all building in Eastern Pima County. That particular listing was the catalyst that basically got people thinking about how we ought to act as a community and in issues of conservation.

Those four things in combination set the stage for where we are today with the issues of conservation plans. We've had a lot of other discussions along the way. We've had a Board of Supervisors who took office in 1997 that said we ought to do something about growth, and set the staff off to working and thinking. Independent groups are also working on issues, and that all came together in 1998 to foster the first release a conservation plan as you've seen it, as it has been discussed and when you asked to be placed on a Steering Committee to guide its development over the next 24 months.

It has been called new and revolutionary, different and all those things but it's not any of those. This Plan is a steady state and continuation of some of the practices that have gone on for many, many years.

Let me tell you why I believe that and think that. When we talk about the six elements of the conservation plan, it is pretty straightforward.

The first element is called Ranch Conservation and you are going to have some educational seminars on it later. This element is trying to keep ranchers ranching to help preserve rural areas of this community so they do not get fractionalized and destroyed by what we call "unregulated development." That is an area that the County has had an interest in for about 12 years now.

If you remember, former Supervisor David Yetman in 1986 or 1987, he had the revolutionary idea, as a politician, to raise the tax rate of the Flood Control District by about 50% and he did that for one reason and one reason only. It was because the Empire and Cienega Ranches were threatened to be sold by the mining company that had those ranches and if they were sold, there was a planned community in the Cienega Valley Basin for 100,000 new residences. Now those 100,000 new residences would have urbanized that basin, cause increased flooding and taking all of the water out of the basin that naturally flows into the Tucson Basin, all of those things.

For 12 years, the County has had an interest in Ranch Conservation and the city has recently has had an interest in Ranch Conservation with the purchase of Bellota Ranch and it's an idea that is catching on. We think that it's an important element. It's nothing that is particularly new, but it needs to be codified and needs to be in our comprehensive plan.

Historic and Cultural Preservation -- we've had an interest in that for a number of years and we need to make that one of the focal points of this community because the heritage and culture of the west requires some protection and preservation. We believe quite strongly in it.

We talk about another element called Mountain Parks. Now Pima County has only been interested in Mountain Parks for 70 years. The very first acquisition of this area of Tucson Mountain Park occurred in 1929. The last acquisition occurred just one week ago when the Board of Supervisors expanded Tucson Mountain Park by adding about another 300 acres into the east front of the Tucson Mountains going down into the urban area.

Riparian Protection -- well because of our need to drink water we have basically pumped the Tucson Basin and destroyed about 90% of the existing riparian vegetation that used to be in this basin. The riparian areas in the southwest are some of the most important with regard to biodiversity and the things that make the Sonoran Desert the Sonoran Desert. It is the oasis of the Sonoran Desert.

Our Riparian Protection element is designed to talk about bringing back rivers that have long since been pumped dry, dumped on and encroached upon back to a more natural environment so that the folks in the urban area as well those out in the outlying areas can enjoy a natural riparian environment that may come in and bisect the urban community, we believe that is extremely important since water is a key, water is important and we need to work with our neighbors across the street on the issue of water and how to reintroduce water to these riparian systems to restore and protect them.

The other areas deal with the Endangered Species. The Endangered Species Act focuses on the pygmy-owl, and not just the pygmy-owl, but a whole series of threatened and endangered species that could or might be listed and as we urbanize and destroy habitat.

We need to take some protective actions to decide that we need that which is most important. Not all of it, we can't do that but we can in the biological corridors and in the critical and sensitive elements bring to the forefront, introduce real science in the land protection and the protection of these particular areas so that we have a rational basis in order to proceed with reasonable regulation and/or if necessary, acquisition.

Now, your role as members of the steering committee is to help us make all those decisions and help the Board implement long term policy, long term procedures that will lead to what we call a sustainable plan, not a flash in the plan kind of idea about conservation but something that can withstand the test of time -- withstand the test of time with regard to legislative actions and most importantly, withstand the test of time with regard to the inevitable swings in our economy which will ultimately occur.

Now is the opportunity within the next 18 months to put in place, a permanent, long term, stable, sustainable conservation plan for Pima County and that's your charge. That is what you are here for. We need your help, but in offering your help you need to go through a series of sessions that you are going through, and we hope you all attend every one of the educational seminars because each of you, in your own areas, are experts. You are an expert on something, and what we need is for you to be more expert on everything so that you can reach reasonable balance and conclusions and make those same recommendations to the Board of Supervisors. Thank you very much.

THE ENDANGERED SPECIES ACT AND THE CONSTITUTION:
Fred Bosselman, Professor, Chicago-Kent College of Law

I've had a long interest in and acquaintance with the Endangered Species Act and I am going to resist the temptation to talk about it generally and concentrate on the issues that I've been asked to address which is the Endangered Species Act or as we know and love it or hate it, the ESA and the Constitution.

I will give you a synopsis for those who want to leave early about what I am going to say. After all, lectures on Constitutional Law, I understand if I see a few people nodding off. Even my students have been known to do that.

When we talk about Constitutional issues in relation to the Act, of course, what we are really asking is, is there a likelihood that the Endangered Species Act is unconstitutional in part or as applied to particular situations? There are three basic situations in which the constitutionality of the Endangered Species Act might be at risk to some degree. I am going to just summarize those real quickly and then we will come back and talk a little more in detail about.

Whenever we talk about risk, obviously we're talking about two elements. One is the likelihood that something will happen, and the second is, the severity of what would result if it did happen. Those are really separate concepts.

Okay, the first risk with the Endangered Species Act is that some parts of it will be held to have been beyond the power of Congress to enact because they are not permissible exercises of the Interstate Commerce power. The likelihood of that occurring is quite low. The risk and severity of the impact on the Act of that occurring would be catastrophic. So you have an issue of low likelihood, but catastrophic severity.

The second issue is the application of the Endangered Species Act to certain tracts of private property in a manner that would deprive that property of all beneficial use and constitute a taking of property. The likelihood that that might happen in individual instances is low to moderate. The severity of its happening is also low to moderate, we'll come back to that in more detail.

The third and perhaps least recognized risk associated with the Endangered Species Act is that the mitigation demanded by the government as a condition for being allowed to take Endangered Species will exceed the power of government to demand because of a lack of a nexus in rough proportionality -- two tests that the Supreme Court has come up with in recent years. The likelihood that this may occur in given situations, is in my opinion, moderate to high. The impact of its occurrence is relatively low, the severity of the occurrence is relatively low.

Okay, let's start with some basics. When we talk about the constitutionality of a statute, we're talking about the American system, right? We have a Federal Statute here. We have since Marbury versus Madison back in the early part of the 19th century, accepted the fact that the United States Supreme Court may declare an Act of Congress to be unconstitutional. We also, as a local government here, have to comply with other state and Federal Statutes, the state constitution and so forth, but the only issue I am focusing on is the possible unconstitutionality of the Endangered Species Act, the Federal Statute.

The ESA has been in affect now, as you have already heard, since 1973. We had known of its applicability to private property to the issue of protecting habitat since 1980. There have been numerous challenges to the Endangered Species Act in the courts and there has yet to be an appellate decision of a Federal Court holding unconstitutional in any way, any aspect of the Endangered Species Act; either on its face or as applied to individual property.

This is a surprising fact to a lot of people because a lot of people have focused on the Endangered Species Act and have assumed that it has an extremely severe impact on private property. And it is puzzling to them that given this situation -- why has there never yet been a case in which a court has held that the application of the Endangered Species Act to this property constituted an unlawful taking?

That's not to say that there won't ever be or that there may not be cases coming up through the system right now that may produce such a result, but in the 20 years or so that we've been applying the ESA and the way we are applying it now, it hasn't happened yet.

Remember, when we are dealing with the United States Supreme Court, the fact that it hasn't happened yet, even though you've had 20 years does not mean that it may not happen in the future. The court only decides issues that are presented to it. It does not, like law professors, go out and ramble on about what might happen in the future or what might be constitutional if they did something differently.

Secondly, the Court is changing the law, the Court is always changing the law. You may have noticed in the media this week the Court adopted a very significant change in constitutional law in regard to the right to travel, they held unconstitutional a California Law that provided it different standards for welfare for people that recently moved into the state.

The Court is changing the law all the time. I only digress as far as I can see by the way, the right to travel does not affect the Endangered Species Act. If a state should designate owls as citizens so that they would be subject to the privileges and immunities clause of the Constitution, that might change -- but I'm being facetious. It is interesting though that the Endangered Species Act, as we will come to see, was largely motivated by travel, by the right of species to migrate, and by the prevention of the trade in International and Interstate Commerce in rare species and products from rare species.

The other thing you have to recognize when you are talking about the current Supreme Court is that this is not a Supreme Court of environmentalists. It's a Supreme Court of elderly people, many of them even older than I am, who grew up at a time when they didn't learn about the Amazon Forest in school the way kids do today. They didn't have the conception of the environment that younger people do today and they really don't understand this stuff, they just don't. It's not that they are necessarily hostile to things like the Endangered Species Act, but when you read their opinions you know that they are just mouthing the words, they don't really understand these issues. Whenever the Supreme Court takes a case involving the Endangered Species Act, most of us just cross our fingers and hope for the best.

Okay, let's start then with this question of the commerce clause. Under our Constitution the Federal Government is limited in its powers to those powers that are specifically set forth in the constitution. One of those dating way back to the beginning of the nation is the power to control Interstate and Foreign Commerce. All right, virtually anything it wants, as long as it calls it part of the Interstate Commerce, as long as it says it, has some relationship to Interstate Commerce.

That situation has lasted until just a few years ago, between 1935 and 1995, the Supreme Court never held unconstitutional a Federal Statute for having violated or gone beyond the commerce power. In 1995, you had the famous Lopez decision in which the court began to change that attitude. You may remember that case, it was the case in which the Federal Statute made it a crime to have a gun within so many feet of a school. The Supreme Court threw out that statute and said it was beyond the power of Congress, it dealt with a local issue which was education, and it did not deal with any commercial issue so it was beyond the power of Congress. They have subsequently held another part of the statute unconstitutional on a similar basis.

That had raised then, in people's minds, the question of, is the Endangered Species Act within the power of Congress to regulate Interstate Commerce? It is interesting that today it would raise that question in people's mind because at the time that the Act was adopted there was no doubt that is what Congress had in mind in passing the Endangered Species Act. The thing that Congress was focusing on at that time was, in fact, the trade in Endangered Species -- the importation of parrots and various rare birds by collectors, butterflies that were being traded, ivory and many products from endangered species and of course, the Fish and Wildlife Service still spends a very large amount of its effort under the Endangered Species Act as the policeman for smuggling and trade in Endangered Species.

We have now gotten so accustomed to thinking of the Endangered Species Act as a habitat protection vehicle that it is not unrealistic today to say, "Well is local habitat protection something that is within the power of Congress to regulate under the Endangered Species Act?" The groups that wanted to raise this issue thought they had an excellent vehicle for it. It was in Gail's territory while he was in office in California, and it was the famous flower loving fly which occupied a doomed area which was San Bernadino County in California. It was a very rare species, highly localized and never found outside the county, much less outside the State of California. And unlike butterflies or some more colorful insects, it was not regularly collected by people who trade in things like butterflies.

So the people that were attacking the statute thought they had a good opportunity here to get a test from the Supreme Court of whether the Act could apply to something that was as localized and is non-commercial as the flower loving fly. That case went up to the District of Columbia Court of Appeals. The Court upheld the validity of the statute, but with three different opinions by three different judges that were all, let's say written with a certain amount of difficulty apparently and lacking a lot of cohesion in their analysis. The petition for certiorari was filed to the Supreme Court, but just within this term and within this last year, the Supreme Court refused to hear the case.

For the moment at least, the risk of the Supreme Court addressing that issue is declined and it is unknown whether a similar case will come up in the next few years, but I think that the risk is a serious one, that it will be challenged and there are some arguments that frankly I find make me nervous.

Nevertheless, if the court adopts the analysis that I think they will adopt they are going to say that the basic function of the Endangered Species Act is, was and still is, to regulate the trade in Endangered Species and you cannot regulate the trade in Endangered Species if you cannot keep the species alive.

You cannot keep the species alive unless you can control the habitat of the species so I think there are within prior precedents of the Court, plenty of reasons to assume that the entire Endangered Species Act will be found to be valid within the Interstate Commerce power of Congress, but if it is not, what is going to happen?

What is going to happen is presumably those aspects of the Endangered Species Act that do not involve migratory species or that involve particularly localized species might be in some way, culled out of the Act by the Court leaving an administrative nightmare, as whatever test the court might apply would have to be then evaluated species by species or even population by population in a way that I think might really undercut the effectiveness of the statute.

Okay, the second area is this question of deprivation of all economic use. We know that the Supreme Court in 1992 very clearly held that a regulation, whether it be state, federal or local, that deprives property of all beneficial economic use is unconstitutional as a taking.

Why has the Endangered Species Act never been found to be a taking?

Well, the simple answer is that it is not implemented in a way that deprives property of all economically viable use. If you study the way that the Fish and Wildlife Service has actually implemented the statute you know that you will find very rare situations in which you could get any sort of a reasonable argument that because of the Endangered Species Act, my property has been deprived of all economically and beneficial use. It is not that there are not people out there who have been looking for these cases. If you think you have a case there are plenty of organizations that would be happy to come out and look at your property and evaluate it in the hopes that they might find a case that they could take to court. But it is just not the way that the Service has been implementing the statute.

Does this mean that the service has been too lax? That the service has not been doing its job?

I don't think so, I think in most cases the fact is that we can live with Endangered Species. The concept that some people have that it is them or us is not really realistic. In most situations that I have encountered and I have been involved as a practicing lawyer and as an academic in this area for a long time, I really never run into a situation that I didn't think could be worked out to allow both humans and Endangered Species to coexist. Probably not in the way that either of them would perceive as ideal, but they coexist.

The statute has survived. It has never yet been struck down. There are some cases arising out of the Spotted Owl controversy in the Northwest that are tough cases where there really is a very substantial loss of value for large areas. It may be that in those cases there will be a taking in a particular situation but again, I say that the severity of the risk here is relatively limited. It will be limited to particular parcels of property and not have an impact on the application of the statute as a whole.

The third situation is this mitigation issue.

The Act is being implemented as you heard from both Gail and Marc through the use of so called Section 7 consultations and these Section 10(A) Habitat Conservation Plans. In both situations, what is basically happening is mitigation. That is, the project is allowed in some form to go forward on the condition that certain other things be done that will have a benefit for the species, whether that is the creation of a preserve, whether it is shooting cowbirds to protect flycatchers, or even captive breeding of species in extreme situations. All of these things are simply one or more forms of mitigation.

The Supreme Court in a series of cases culminating in the Dolan Case in 1992 has held that when you force somebody or when you make it a condition for somebody to enter into mitigation, that mitigation must have a reasonable nexus as they say, a connection (that's all the word nexus means is simply connection to the problem that you are trying to solve), and that that must be roughly proportional.

That is, the amount of mitigation you are asking somebody for must be roughly proportional to the kind of harm that their project is going to do. It is my experience that the Fish and Wildlife Service and a lot of local governments as well have not really paid a lot of attention to that requirement of rough proportionality either because they do not think it is going to be applied to them or simply because the difficulty in this area of quantifying harm, in quantifying benefit is so great that they may assume that they won't be challenged on that issue.

I think that's an area that they are quite likely to be challenged on and that there is quite a good chance of success in some situations of winning on the ground that the amount of mitigation that you are being asked to pay for is not proportional to the amount of harm that you are going to be doing, so I would only suggest to you that as you go through your own planning process, you keep that issue in mind and try to develop your own methodologies for assuring that you can tell landowners when you ask them to mitigate damages they are going to do, that that mitigation is roughly proportional to the amount of harm that their project would create. Thank you.