Combatting landowners' urge to shoot, shovel and shut-up

Posted: Dec 11, 2019


Many homeowners understand the headaches that accompany zoning laws in their neighborhood.  Law-abiding citizens attempting to comply with these laws find themselves immersed in a bureaucratic tangle of paperwork, waiting periods, and permit fees for simple things like building a tool shed.  Those that skirt zoning requirements face penalties and fines.  What if you had the opportunity to avoid this mess?  How far would you go?

Some landowners who face harsh restrictions under the Endangered Species Act (ESA) have taken drastic steps to prevent being subjected to further regulations.  Landowners in North Carolina cut down pine trees before they reached maturity to discourage the red-cockaded woodpecker from nesting.  Ranchers in Idaho developed the mantra of “shoot, shovel and shut-up” to deal with pesky grey wolves.  

These individuals are not enemies of the environment and many would enjoy the sight of a rare animal on their land.  However, the difficulties they face if an endangered species settles on their property turns that animal sighting from wonderment to woe.  If a person’s land is pegged as critical habitat, they face restrictions, devaluation of their property, and stiff penalties if they don’t cooperate.  Property rights advocates resent this heavy burden that private parties are forced to bear in the name of the “public good.”  

The government faces an even trickier situation when attempting to save candidate species not yet listed as endangered.  Though candidate species face serious threats to their survival, higher priority animals prevent candidates from being listed and gaining the protection of the ESA.  Consequently, landowners whose actions adversely affect candidate species do not face any repercussions for their actions.  The fate of these species rests entirely upon the voluntary actions of citizens, though many are reluctant to provide sanctuary to animals that may cause them a heap of trouble in the future.  

Federal agencies, lacking the stick of the ESA, are increasingly turning to carrots to entice private landowners to take up conservation efforts.  The Department of Interior (DOI) is considering expanding voluntary incentive programs to partner with landowners in protecting land for candidate species.  With seventy percent of all land in the United States privately owned, these partnerships are essential to combat habitat destruction and reverse declining population trends before they reach a tipping point.

Habitat Conservation Plans (HCPs) are among the tools that agencies have used to encourage land conservation.  For an HCP, land developers must submit a plan detailing the environmental impacts of their project and how they will mitigate those impacts.  Mitigation can take the form of payments to a conservation fund, restoration of degraded habitat, or the preservation of suitable land.

In exchange, developers receive “no surprises” assurances that they will not be forced to take further action or commit additional resources if the candidate species is listed as endangered in the future.  An incidental take permit may be issued, which protects developers by allowing a certain amount of harm to a species if it were to be listed.  As long as the conditions of the HCPs are met, the binding agreements will be honored, even in the face of unforeseen circumstances.  

Although I support the use of HCPs, they must be designed to adapt with changing conditions.  The “no surprises” assurances may prove too restrictive and instead should remain flexible to respond to changes in the environment or new information about a species.  Negotiations should include room for adaptive management strategies that are tied to specific goals, such as providing a suitable habitat for a certain number of animals.  Obligations to achieve these goals can be altered to address new circumstances.  Limiting the regulatory certainty provided by HCPs may impact their attractiveness to developers, but agencies can combat this by guaranteeing no further commitments will be sought for a limited period of time, such as 10-15 years.
The DOI has also suggested the use of “conservation banks” as a way to improve the mitigation efforts required by HCPs.  Conservation banks are for-profit entities that permanently protect land to benefit a species in exchange for habitat credits.  A number of states, particularly California, have used banks to successfully preserve wetlands.  These banks can conserve land by either purchasing and managing it themselves or buying conservation easements on the land of individuals.  Easements give the bank the authority to ensure that conservation efforts are permanently maintained, but without retaining title to the land.  The one-time credits they have earned can be sold to developers seeking to off-set their environmental impact.  

Conservation banks can help consolidate mitigation efforts and provide meaningful habitat protection.  Critics say this is nothing more than paying to pollute, but banks have several advantages over individual conservation efforts.  Banks have the ability to preserve large swathes of land, not small isolated parcels that may not provide quality habitat.  And unlike mitigation efforts by developers, who promise only to preserve land for the duration of the HCP, credits are only issued for permanent conservation efforts.  This ensures that species will be protected both now and in the future.

Banks also offer advantages to federal agencies that are given the task of overseeing conservation efforts.  Agencies can focus efforts on just a few banks instead of individual developers, making it easier to implement regional conservation plans and monitor compliance more efficiently.  Controlling the amount of available credits is also a simple way to limit development in critical areas and reward bank owners with a higher price.  As long as banks are closely monitored and the market price sufficiently represents the true cost of development, they offer a better alternative than individual mitigation plans.

Candidate Conservation Agreements with Assurances (CCAAs) are another incentive program that works in a similar way to HCPs, but instead rewards individual landowners who take measures to improve their own land.  Landowners can take proactive measures to improve the habitability of their land in order to attract candidate species.  As long as these improvements are maintained, they will not face further restrictions if the species becomes listed.

CCAA’s have the same pitfalls as HCPs as far as their rigidity and impermanence.  CCAAs give too much regulatory certainty for measures which may not provide the benefit to the species as originally sought.  An alternative to CCAAs are conservation grants which provide monetary incentives to landowners seeking to improve the habitability of their land.  If landowners agree to complete and maintain approved projects, the government will split the bill.  Although more costly, they provide permanent projects that can be adapted to meet species needs without relinquishing future regulatory authority.    

Although HCPs and CCAAs can both be successful, there is a risk of overusing them.  The assurances in these agreements will severely limit the protections afforded to a species if they become listed as endangered.  If measures taken by developers come up short, an extensive array of assurances will tie the government’s hands and make further conservation measures impossible.  Agencies will lose their stick if the carrots don’t work.

The DOI should utilize all of the tools in their toolbox to encourage landowners' voluntary conservation efforts.  When past experiences have proven that certain conservation techniques will be effective, limited assurances for landowners that undertake such measures are appropriate.  However, the DOI should not prematurely sign away their ability to combat future habitat destruction for unproven short-term gains today.  Voluntary incentives should be used to compliment the ESA, not contract it out of existence.

Another danger of these incentive programs is their influence on whether a species should be listed as endangered.  The Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) allows agencies to consider protection measures that have not proven effective or have not yet been implemented when a species is up for review.  A recent decision not to list the dunes sagebrush lizard as endangered was due to these existing voluntary agreements.
Listing decisions should be based on the best available scientific data, not on shaky voluntary agreements that may produce results sometime in the future.  The incentive programs the DOI is proposing will certainly aid in enlisting private landowners to step-up conservation efforts, but they may not always be enough.  The powerful protections provided by the ESA give federal agencies a significant weapon to implement habitat protection if necessary.  Dangling carrots can move efforts forward, but the government should not be afraid to use their stick too.  

The DOI is seeking comments from the public as part of a public process to expand voluntary partnerships with landowners.  Comments on ways to make existing conservation tools more effective and how to improve incentives will be accepted until July 13th.

Learn more about this proposal and leave a comment for the DOI.

~Brian O'Neill

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