"No Surprises" and Endangered Species on Private Forestland

Dateline: 02/15/98

A Society of American Foresters report in The Forestry Source  indicates that "in a surprise move, the Clinton administration has suspended a "no surprises" policy that allows private forestland owners to voluntarily protect fish and wildlife on their land in lieu of following stricter rules imposed by the federal government."   Worried about a suit filed in 1996 on the legality of "no surprises",  the administration has agreed to a moratorium on the policy.

Interior Secretary Bruce Babbitt, an administration proponent of the policy, believes that  "no surprises" is a policy insuring that once the government and a  landowner agree as to impacts and mitigation of damages, a Habitat Conservation Plan (HCP) will be agreed upon and both sides must follow the plan.  Babbitt  further indicates that he is "absolutely convinced that it is fair and that the idea of closure that it embodies is essential to bringing the private sector into the conservation process."

Critics of the "no surprises" policy say that the voluntary fish-and-wildlife protection agreements do not provide enough assurance that endangered animals won't become extinct in the future, especially if there is a natural disaster or further loss of habitat.

 The Audubon Society states that :

 "problems with individual HCPs include: the use of unproved scientific assumptions and a lack of independent scientific assessment; the absence of public participation in the preliminary stages of HCP development; a lack of enforcement mechanisms; and the lack of financial integrity. An overall concern with the proliferation of HCPs in recent years is the vast difference in size and duration among HCPs. Plans range from five year agreements for half an acre lots to agreements that affect hundreds of thousands of acres and will last for over 100 years, as in the case of HCPs that have been negotiated by large timber companies in the Pacific Northwest. In addition, because the number of HCPs has grown so quickly, the permitting agencies have not assessed the cumulative impact of this growing program on listed or declining species."

Look at what the moratorium effects:

The Habitat Conservation Plan (HCP)

Prior to the moratorium the plan was an assessment of impacts likely to result from the proposed taking of one or more Federally listed species. It made sure the applicant undertook to monitor, mitigate and minimize the impact on wildlife; assured funding sources available to implement the plan; defined procedures to deal with unforeseen or extraordinary circumstances; and studied alternative actions that the applicant analyzed and the reasons why the applicant did not adopt such alternatives.   No plans are presently being made.

What is "taking"?

The Federal Endangered Species Act defines "take" as any action that would "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" any threatened or endangered species. Harm may include significant habitat modification that actually injures a species. There are no Federal prohibitions under the ESA for the take of listed plants on non-Federal lands, unless taking of those plants is in violation of State law or would accompany a project that requires Federal authorization, permits, or funding.

Under strictly controlled circumstances the Endangered Species Act authorizes the issuance of permits to take protected species. Such permits are known as Incidental Take Permits because they authorize a take of protected species that may be incidental to, but not the purpose of, otherwise lawful activities.

What is the process for getting an HCP and incidental take permit?

You can't anymore!  Up until the moratorium the U.S. Fish and Wildlife Service and National Marine Fisheries Service, when requested, provided detailed guidance and technical assistance throughout the process.

SAF reports that "the administration's reversal regarding the policy came about because it faced a court deadline to answer charges resulting from the lawsuit. Filed in November 1996, the suit says the Interior Department never formally adopted the controversial land use policy, subject to public comment, and therefore can't legally enforce it. The administration agreed on December 29 to a two-month moratorium on the policy, although hundreds of existing exemptions covering millions of acres will remain in effect. The suspension gives the government more time to answer the charges and revise its policy."

More on the "no surprise" issue:

Bruce Babbitt on the Endangered Species Act

Surprises Inherent in No Surprises Policy

Private Landowner Issues - US Fish and Wildlife Service