To-The-Point Explanation of Section 10(a) of the ESA
Copyright 1996
in Endangered Species UPDATE , Opinion
Guest Writer
Kimberley K. Walley

Vol. 13 Nos. 10&11,
published by
The University of Michigan,
School of Natural Resources and Environment,
Ann Arbor, MI. 48109-1115.

Kimberley K. Walley, at the time of writing, was an attorney with Meyer & Glitzenstein, a public interest law firm in Washington, D.C., that has represented Spirit of the Sage Council in the legal challenge to the "No Surprises" policy and rule. Kimberley K. Walley Delfino is currently, July 1998, a staff attorney and advocate for U.S. PIRG in Washington, D.C.

Surprises Inherent in the No Surprises Policy

On August 11, 1994, the Department of the Interior (DOI) and Department of Commerce (DOC) jointly issued a new policy entitled "No Surprises: Assuring Certainty For Private Landowners In Endangered Species Act Habitat Conservation Planning" (the "No Surprises" policy). In doing so, they significantly revised how unforeseen circumstances are to be addressed in Habitat Conservation Plans (HCPs). The revision was made effective immediately and promulgated without opportunity for public notice and comment.


Under Section 9 of the 1973 Endangered Species Act (ESA), it is illegal for anyone to "take" an endangered or threatened species. The "take" prohibition applies to any activity that would directly kill or harm a listed species, as well as many activities that cause indirect harm. In 1982, Congress amended section 10 of the ESA by adding an exception to the Act’s strict "take" prohibition. This amendment allowed the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the Services) to issue an incidental take permit (ITP) to a private party that would grant permission to "take" listed species, provided that the "take" is incidental to an otherwise lawful activity and is accompanied by and HCP.

Congress modeled this ITP/HCP exception "after a habitat conservation plan developed by three Northern California cities, the County of San Mateo, and private landowners and developers to provide for the conservation of the habitat for three endangered species and other unlisted species of concern within the San Bruno Mountain area of San Mateo County""(H.R. Rep. No. 835, 97th Cong., 2nd Sess. 31, 1982). In the San Bruno HCP, the parties agreed that the FWS could impose further mitigation measures on almost 90% of the habitat in the event of unforeseen circumstances. Thus, Congress specifically stated that it "[e]xpect[ed] that any plan approved for a long-term permit will contain a procedure by which the parties will deal with unforeseen circumstances" (emphasis added, H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982).

In 1984 the FWS adopted regulations implementing the 1982 amendments. The regulations provided that specific measures must be included in each HCP that address changing circumstances which could jeopardize the survival and recovery of the threatened and endangered species covered by the plan (see 50 CFR 17.22, 17.32b). In 1990, NMFS adopted similar regulations (see 50 CFR 222.22).

The "No Surprises" Policy

The "No Surprises" policy, however, hardly guarantees protection of species regardless of change. Rather, under this new policy, the Services must provide landowners with "general assurances" designed to ensure that landowners do not have to take any responsibility for species protection if unforeseen circumstances arise, even if it means the extinction of the species. These "assurances" apply not only to threatened and endangered species covered by the HCP, but also to unlisted species covered in the plan.

According to the "No Surprises" policy, after an HCP has been approved and an ITP has been issued, the Services cannot pursue any additional mitigation measures aimed at conserving endangered species until they have demonstrated that "extraordinary circumstances" exist warranting such additional protection. "Extraordinary circumstances" are based on a number of factors, including whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.

More importantly, even if such "extraordinary circumstances" are shown to exist, the "No Surprises" memorandum states that the Services:

"shall not seek additional mitigation for a species from an HCP permittee where the terms of a properly functioning HCP agreement were designed to provide an overall net benefit for that particular species and contained measurable criteria for the biological success for the HCP which have been or are being met" (emphasis added, FWS and NMFS 1994).

The policy places primary responsibility for developing mitigation measures on the Services, not the landowner. Finally, under the policy, the Services promise that any…

"[a]dditional mitigation requirements shall not involve the payment of additional compensation [by the landowner] or apply to parcels of land available for development or land management under the original terms of the HCP without the consent of the HCP permittee" (emphasis added, FWS and NMFS 1994).

Therefore, under this new approach to HCPs, if circumstances change for listed species or species not listed, additional mitigation measures are substantially restricted. Foe example, if the FWS finds, after it has entered into an HCP, that a particular species needs certain additional mitigation measures, and the landowner refuses to allow the implementation of those measures, the Services must bear the burden of finding a way to implement the needed mitigation measures.

The only way the FWS could then ensure that the mitigation measures are implemented would be to buy the land in question. However, even assuming the landowner is willing to sell the property, the purchase of lands, especially lands that are attractive to developers, is extremely costly, and the Services have offered no assurances that adequate funding will be available to purchase these lands. Indeed, in light of existing budget constraints, such a guarantee is unlikely to be forthcoming any time in the foreseeable future.

Since its enactment, this new policy is being applied to HCPs at a dizzying pace. Currently, there are more than 150 HCPs being negotiated nationwide -- all of which must contain assurances that all species covered in the plans are considered by the Services to be "adequately" protected by the terms of the plans (see Frampton 1995). Many of these HCPs are scheduled to last for up to 100 years, covers tens to hundreds of thousands of acres of land, and attempt to assure the continued survival and recovery of listed and unlisted species.

For example, on July 17, 1996, Secretary Babbitt signed off on the Natural Communities Conservation Plan (NCCP) and HCP for the central and coastal subregion of Orange County, California, which is a 75 year permit for construction, infrastructure development, grazing, mining and recreation. This HCP applies to 208,713 acres, of which approximately 78% are open to development. The plan purports to adequately assure the continued survival and recovery of 47 species, including seven threatened and endangered species.

In another example, the recently approved Plum Creek HCP in Washington covers approximately 170,000 acres, claims to adequately ensure the continued survival and recovery 285 vertebrate species, including the threatened Northern spotted owl (Strix occidentalis caurina), grey wolf (Canis lupus), and grizzly bear (Ursus arctos horribilus) , and is scheduled to last between 50 to 100 years. Yet timber harvest under this plan is prohibited on only about 1,400 acres, and is deferred for a 20 year period on about 2,900 acres (a total of 4,300 acres, which is approximately 2.5% of the entire acreage). These and other massive HCPs contain the "No Surprises" assurances. Thus, if the plans do not prove to adequately protect the affected species, as appears probable, it will be almost impossible to revise them.

In light of the extensive duration of these HCPs, the large area that each plan covers, and the enormous numbers of species that are supposed to be protected under each of these plans, an obvious question about the "No Surprises" policy is: How can the Services conceivably assure that all of the effected species will continue to survive and recover under the terms of these plans throughout the duration of the permit period? It is this overriding question that has caused 164 biologists, including some of the premier conservation biologists in the world, to write letters to members of the House Committee on Resources expressing their serious concern that the "No Surprises" approach in habitat conservation planning "Does not reflect ecological reality and rejects the best scientific knowledge and judgment of our era" (emphasis added, Meffee et. al. 1996; Soulé 1996).

Scientific Concerns

According to these leading scientists, the "No Surprises" policy is deeply flawed for two interrelated reasons.

Changing Circumstances - The first reason is related to the fact that change does occur. It is extremely unlikely that biological conditions during the life of an HCP, especially an HCP that is expected to last for 50 to 100 years, will remain static. To the contrary, "uncertainty, dynamics and flux" are the "best descriptors of ecological systems" (Meffe et al. 1996). Some of the sources of uncertainty include:

"unpredictable, localized environmental events such as fires, disease outbreaks, [and] storms that alter [habitat] structure," "losses or changes of genetic structure in small populations that affect their future adaptability," "the influence of random events on survival of very small populations," and "[I]nsufficient knowledge" (Meffe et al 1996).

Thus, according to these scientists, their "collective scientific experience indicates that there will be many surprises in conservation planning" (emphasis added, Meffe et al. 1996).

Uncertainty, however, is not limited to biological changes alone; common sense dictates that political and social changes are also likely to change over the course of time. For example, last year Congress passed the logging rider, which allowed salvage logging of dead, diseased or dying trees without the benefit of any environmental analysis. As a result of this rider, HCPs that had been developed assuming full protection of species habitat within President Clinton’s 1994 Northwest Forest Plan are suddenly faced with changed circumstances that may affect the status of a species that is covered by an HCP. As such, even the FWS has acknowledged that the rider has thrown these plans "out of balance," thus requiring additional mitigation under those HCPs (Davies 1996). The "No Surprises" guarantee, however, would effectively make such changes to an HCP impossible.

This problem is further exacerbated by the fact that many of the recent, larger HCPs include numerous species which have not yet been listed. For most of these species, scientists have not even begun to assess what is required for their survival and recovery. The question arises as to how the measures in an HCP "adequately assure" the continued survival and recovery of a species if the needs of a species are unknown at the time an HCP is approved by the Services. The Keystone Report, which resulted from a dialog between FWS officials, developers and scientists, raised the same issue. Participants stated that there was a "concern about the application of the "No Surprises" policy to unlisted species if there is no later opportunity to review whether the HCP has contributed to the decline in the species if the species is subsequently listed" (Keystone Center 1995, p. 25). Simply put, there is no conceivable way the Services can know the mitigation measures in an HCP will adequately protect a species which has been subjected to little or no scientific scrutiny prior to listing.

Addressing Change - A second gaping flaw, related to the biological and political reality of changing circumstances, is the issue of how to address change in the HCP process. A logical response to changing circumstances would be to revise the management of an HCP in response to these changes, an approach commonly referred to as "adaptive management" (See Soulé 1996). However, the "No Surprises" policy simply "close[s] the door to adaptive management by saying that, once an agreement is made, new and better scientific information will not alter it" (Soulé 1996) except in the unlikely event that the landowner agrees to new restrictions or the event that the Services can afford to finance the alterations themselves.

Process Considerations

The "No Surprises" policy also undermines the right of affected individuals, conservation groups, and scientists to comment on whether, and under what circumstances, an ITP/HCP will be issued. Since the policy provides that "no surprises" guarantees will be included in every HCP, regardless of circumstances, it effectively forecloses the public’s ability to comment on whether such a guarantee is biologically advisable or damaging in any particular circumstances. For example, commentators criticized the application of the "No Surprises" policy to the NCCP and HCP because it restricted the FWS’s "no jeopardy" duty under section 7 of the ESA. The FWS responded to this criticism by summarily stating that the HCP accurately reflects the FWS’s new policy.

It is difficult to comprehend why the Services have not at least retained the regulatory flexibility to determine, on a case by case basis, whether a "no surprises" guarantee will further the purposes of the ESA in any particular instance. Instead, the agencies have, in effect, "shown their cards" before even entering into negotiations with those wishing to "take" endangered or threatened species. In other words, the policy effectively forfeits the use of a "no surprises" assurance as a bargaining chip to secure better conservation commitments because it mandates that all landowners will have the benefit of these assurances irrespective of the conservation commitments of the conservation commitments they are willing to make. Individuals now come to the bargaining table expecting that these assurances will be given by the FWS. They may even demand that these assurances will cover any species that exists, or may exist, on the land in question. Hence, the policy not only forecloses case by case public input into the degree to which particular HCPs should be susceptible to new mitigation measures, but it also ties the hands of the agencies’ own biologists and other officials in negotiating meaningful, biologically sound HCPs.


Secretary Babbitt stated one year ago that "[i]f sound science and wise management of our natural resources guide our actions, we will benefit not only threatened and endangered species, but the human species as well" (Babbitt 1995, p. 13). However, as the "No Surprises" policy now stands, it ignores the most basic of biological principals, that nature is anything but predictable; fails to allow for the incorporation of the best scientific information into HCPs; strips the public of the ability to offer any meaningful comment on HCPs; and gives away one of the Services’ major bargaining chips even before the parties reach the table. This, if "sound science and wise management" are truly to guide the government’s actions, the "No Surprises" policy, in its present form, must be abandoned.


Literature Cited

Babbitt, B. July 13, 1995. Testimony on the Endangered Species Act before the Subcommittee on Drinking Water, Fisheries and Wildlife of the Senate Environment and Public Works Committee.

Davies, S. March 1996. Rider may cause FWS to revisit HCPs. Endangered Species and Wetlands Report. p.5.

Frampton, G. May 25, 1996. Testimony on the Endangered Species Act before Endangered Species Task Force of the House Resources Committee.

Meffee, G. K., et al. July 22, 1996. Letter to Senator John Chafee and Congressman James Saxton.

Soulé, M. June 18, 1996. Letter to Senator John Chafee and Congressman James Saxton.
Keystone Center. July 25, 1995. The Keystone Dialogue on Incentives for Private Landowners to Protect Endangered Species. Washington, D.C..

U.S. Fish and Wildlife Service and National Marine Fisheries Service. August 11, 1994. No Surprises: Assuring certainty for private landowners in endangered species act habitat conservation planning. Joint Memorandum.