Nancy Chu, Chief
Endangered Species Division
National Marine Fisheries
Office of Protected Resources
1315 East-west Highway
Silver Spring, Maryland 20910

July 26, 1997

Re: Fed. Reg. Vol. 62, No. 103, pp. 29091-29098 and No. 113, pp. 32189-32194 -- Proposed "No Surprises," "Safe Harbor," and "Candidate Conservation Agreement" rules, including permit-shield protection provisions

We hereby declare to the National Marine Fisheries Services, and the US Fish and Wildlife Service (hereafter referred to as the Services), as well as to the US Departments of Commerce and the Interior, that we are opposed to the proposed rules termed No Surprises, Safe Harbor, and Candidate Conservation Agreements including the permit-shield provision. Furthermore, we disapprove of any rule that would give Incidental Take Permit (ITP) holders general assurances that they need not comply with the Endangered Species Act (ESA) should unforeseen, changed, or extraordinary circumstances arise. Such assurances given to the holders of ITPs contradict the survival and recovery assurances given to the threatened and endangered species by the ESA. By implementing the referenced proposed rules, the Services would:

• prematurely and erroneously conclude that the Habitat Conservation Plans (HCPs) and Candidate Conservation Agreements are functioning properly;

• rely on faith that today’s available scientific information, as applied to the HCP/ITP and Agreement, will remain the best into the future;

• forego adaptive management, which is regarded as a critical tool by the Services (Federal Register 62(60):14940), and which has legal foundation (ESA Section 2(b));

• disregard a large body of scientific evidence, along with the professional opinions of many scientists, that surprises are inherent in the distribution and abundance of both common and rare species, as well as in our interpretation of nature generally;

• disregard the body of scientific evidence that translocations of biota or their habitat to provide Safe Harbor will most often fail to conserve that biota, and may, in fact, cause further harm to biota in the area receiving the translocation.

These ramifications of implementing such assurances rules and provisions to the ITP-holder indicate to us that, not only will the ESA be seriously degraded, but also that science was inadequately used to guide the Services in preparation of these proposed changes to the ESA. The most rigorous scientific standards must be involved in HCP/ITP preparation from start to finish. The advances made in the last ten years clearly demonstrates the need to allow new scientific findings and adaptive management practices to be applied to HCP/ITPs. Re-opener clauses are necessary in the HCP Implementing Agreement to ensure the survival and recovery of species in the wild. Such a re-opener clause is especially important given the extent of land conversions involved in the HCP/ITPs and the history of scientific standards not being adequately applied to conservation and mitigation planning for issuance of HCP/ITPs.

The proposed rules and provision would assure the ITP-holder of no further ESA compliance obligations so long as the permit-holder has adhered to the terms of a properly functioning HCP. However, these terms and their proper function are based on contract agreements between the Services and the ITP-holder, which in turn are based on conclusions of the environmental consulting industry and the Services’ Section 10 support staff biologists. Neither the Services nor the environmental consultants are without undue influence, economically or politically, which may lead to conflicts of interest in the outcome of species conservation. The scientific standards mandated by the ESA (i.e., best scientific information), but often overlooked in the planning process, include:

• Risk assessment (Population Viability Analysis, or PVA) of project impact(s) on the ability of species to survive and recover in the wild, thereby requiring certain details of population distribution, temporal dynamics, and demography of each species;

• Identification and designation of critical habitat on and beyond the project site;

• Ecosystem assessment conducted at a functionally relevant scale by scientists professionally trained in ecosystem ecology;

• Detailed explanation of intended adaptive management practices, along with a description of the conceivable types and magnitudes of changes in environmental and social conditions and species’ status;

• Independent scientific review of the data, analyses, and biological assessment/opinion used to justify the HCP/ITP and Agreements. Most scientific research results are reviewed by independent peers prior to publication. The science used to justify an HCP/ITP or Agreement should also be independently reviewed by scientists prior to approval.

By failing to meet the modern scientific standards relevant to species and ecosystem conservation, most if not all HCPs/ITPs have not been based on the best scientific information available. Therefore, the Services are proposing to implement the proposed No Surprises and Safe Harbor rules to HCPs/ITPs that are already legally and functionally deficient.

Conventional environmental mitigation already exacerbates the conditions predisposing surprises in legally rare species conservation. Mitigation impacts predisposing surprises include the following:

• Cumulative habitat loss and habitat fragmentation due to the incidental taking and other human activities;

• Frequent failure of translocations of individual organisms or their habitat away from the project sites;

• Inadequate species accounts on project sites, thereby excluding some legally rare species from mitigation and conservation planning;

• Absence of uncertainty analysis or risk assessments performed for impacts of the HCP/ITP;

• Absence of adequate buffers or other stabilizing design features planned for mass mortality or habitat loss due to natural catastrophes on and around the mitigation lands.

Until these impacts and mitigation failures are corrected by ITP-holders and the Services, the take associated with the HCPs and agreements will continue to surprise conservationists and the Services with decline and extinction of species’ populations. The proposed rules would greatly increase the risk of extinction of rare, threatened and endangered species in the wild.

We strongly recommend that the Services not implement the proposed No Surprises and Safe Harbor rules, nor the permit-shield provision. These assurances are not only inapplicable to the HCP process in general, but they are contrary to the conservation assurances provided to the species by the ESA. The Services have no other acceptable alternatives but to refrain from providing assurances to land holders who apply for HCP permits, nor have we been convinced by any evidence that ITP applicants and holders require such assurances. Based on our experience and scientific knowledge, we do not believe the No Surprises assurances are applicable to any species in the United States, let alone to those supposedly "covered" by a section 10(a)(1)(B) permit. We are strongly opposed to the permit-shield provision and to the proposed regulatory changes to 50 CFR Parts 13, 17 and 222. The proposed rules and permit-shield provision are antithetical to the Endangered Species Act because they preclude application of the best scientific information and adaptive management to species conservation, while also shutting the door on citizen participation in HCP/ITP decisions and enforcement of ESA requirements through legal actions.

For further information on our points made in this letter, please consider the attached paper, entitled "Science missing from the no surprises policy," authored by Dr. Smallwood with assistance from many of the co-signers of this letter.

Signed,