Tara Mueller, Attorney-at-Law

As the debate over Endangered Species Act reauthorization continues, many are calling for Congress to delegate more responsibility to state governments for endangered species protection. The argument apparently is that states have better expertise and information regarding their fish and wildlife resources, and are generally better equipped to manage such species than the federal government. However, as experience has demonstrated in California, these arguments have not necessarily proven to be correct.

In 1991, Governor Wilson initiated a pilot "natural communities conservation planning" program for the highly fragmented and endangered coastal sage scrub habitat in the rapidly urbanizing Southern California region. The coastal sage scrub region was chosen in large part to avoid the impending listing of the coastal California gnatcatcher under the federal and state Endangered Species Acts.

The entirely voluntary NCCP program is purportedly designed to preserve blocks of contiguous habitat large enough to sustain viable populations of listed species and to prevent the need for additional listings, while still allowing for "compatible and appropriate" economic growth and development. The authority for the program stems from the state "Natural Communities Conservation Planning Act," also enacted in 1991. The NCCP Act, while not intended to supersede the requirements of the federal and state ESAs, is supposedly designed to allow for comprehensive, regional multi-species planning in a manner which satisfies the requirements of these endangered species laws. However, the NCCP Act, unlike the federal ESA, contains no regulatory standards for plan approval and implementation.

Despite the NCCP program and over the objections of Governor Wilson's Administration, in 1993, the federal government listed the gnatcatcher as a "threatened" species. However, in order to avoid a conflict with the fledgling coastal sage scrub NCCP program, the USFWS promulgated a special rule under section 4(d) of the ESA. The rule essentially provides that "take" (i.e. killing or harming) of the gnatcatcher will not be considered a violation of the ESA if it occurs in connection with the NCCP program. This rule has allowed the federal government to abdicate its responsibility to administer and enforce the ESA by deferring to an unproven, voluntary state pilot program.

The NCCP program has resulted in the documented destruction of several hundred pairs of gnatcatchers and thousands of acres of gnatcatcher habitat while NCCPs have been prepared. During this interim period, the USFWS has informally reviewed individual projects only for compliance with the NCCP program, not with the federal ESA. Further, once regional NCCPs are completed, the 4(d) rule allows the federal government again to retreat from the more stringent standards of the ESA. Although the NCCP itself supposedly must comply with ESA standards for incidental take, individual projects proceeding under an approved NCCP will not be reviewed by the USFWS at all, even for compliance with the NCCP itself, let alone the ESA.

This deference to state authority is especially troubling given the experimental nature of the NCCP program and significant unanswered questions about its biological integrity and long term viability. Some of the problems with the NCCP process include:

• The NCCP process is heavily weighted in favor of economic development goals. Unlike the federal ESA, the NCCP does not seek to recover endangered and threatened species, but rather to maintain only minimally viable populations of such species, while ensuring largely unrestricted economic development and "regulatory certainty" for landowners. At the same time, however, the program is being misleadingly touted as a substitute for listings and comprehensive recovery planning under the federal and state ESAs, allowing the wildlife agencies to shirk their legal obligations.
• The NCCP is not science-driven, but rather is politically driven. Unlike the ESA, there is no requirement that the best available scientific evidence be used to prepare NCCPs. There is insufficient scientific input throughout the NCCP process, and independent scientific review has been consistently rejected by state and federal wildlife agencies. The state Scientific Review Panel guidelines have been largely ignored, and there is no legal mandate requiring NCCP participants to follow these guidelines. Further, landowners are using the program to obtain broad, habitat-based regulatory assurances for a wide range of "covered" species with little or no biological justification.
• There are insufficient interim controls on take of species during the planning process, and insufficient monitoring mechanisms and provisions for unforeseen circumstances or changed biological conditions. These flaws in the program allow for substantial cumulative loss of species and habitat under the NCCP.
• The voluntary nature of the NCCP and its lack of regulatory mandates seriously undermines the program's effectiveness. Landowners and local jurisdictions can exclude key parcels from the program at their discretion. In addition, regulatory agencies' lax enforcement of existing law provides little incentive for landowners to participate in the program. Finally, and owners and local jurisdictions are free to disregard their obligations under the program even after they have agreed to participate.
• The NCCP fails to ensure adequate public participation and equal status and access for all interested parties. Landowner and industry representatives and their consultants dominate the planning process, which is often conducted behind closed doors.
• The reserve design process is inherently political, and does not necessarily ensure adequate habitat buffers, wildlife corridors and linkages. The reserves also do not necessarily include all habitat which is biologically essential to the species "covered" by the plan. Finally, "reserve" areas are not sacrosanct under the NCCP program. Like HCPs, NCCPs typically allow reserves to be fragmented by road building and other destructive activities.
• There are insufficient criteria and standards for plan approval which will ensure that NCCPs will in fact achieve their stated goal of conserving species. These vague and open-ended legal standards seriously undermines opportunities for citizen enforcement.
• The NCCP contains unregulated and unqualified authorization for incidental take, both inside and outside of reserve areas. Unlike the federal ESA, there is no requirement that take not jeopardize species' continued existence, that impacts of the take be minimized and mitigated to the full extent practicable, that funding to implement the mitigation measures be provided, and that the plan contain provisions to deal with unforeseen circumstances. In addition, the NCCP, unlike the ESA, contains no plan revocation provisions or other penalties for failure to implement the plan.
• The NCCP does not ensure adequate funding to carry out NCCP acquisition programs. Private landowners are often unwilling to pay their fair share of acquisition and mitigation costs, and public dollars are usually far too minimal to provide for plan implementation. Further, the respective roles of state and local government in acquiring and managing preserves, and the role of private entities in funding and maintaining preserves, is unclear and has resulted in a chronic case of "buck passing."
• The NCCP is being used by developers to undermine preservation of open space and agriculture in rural areas if these areas are not deemed biologically critical to covered species. The NCCP is also being used to undermine other state law protections for species. Further, NCCP weakens citizens' and local governments' ability to obtain and/or enforce species protections through other legal mechansims, which may provide stronger protection than the NCCP.