To Whom it May Concern:
The National Association of State Foresters (NASF) is a non-profit organization comprised of the directors of forestry agencies in the states, territories and the District of Columbia of the United States. As leaders in natural resource management across the country we strongly support a goal of preventing the man-caused extinction of plant and animal species. Our principal clientele are private forest landowners in the United States. We appreciate that U. S. Fish & Wildlife Service (USFWS) is seeking public input on how it can strengthen incentives and voluntary partnerships for landowner conservation of wildlife (Docket #FWS-R9-ES-2011-0099). Conservation is generally more effective and less expensive when deployed earlier rather than later.
Unfortunately, the manner in which the Endangered Species Act (ESA) has been administered since its passage has made landowner adoption of this goal much more challenging than should desirably be the case. We see four primary causes:
Whether deserved or not, the program is perceived as a heavy-handed federal encroachment on private property rights;
The legal instruments for cooperative endangered species management, such as Safe Harbor Agreements and Habitat Conservation Plans, are costly to prepare, difficult to implement under adaptive management approaches and still subject to challenge even after agreement has been reached between the landowner and the federal government;
Too much focus is placed on single species versus a comprehensive approach to resource management that looks at the full suite of ecological, economic and social issues and opportunities; and
Too much focus has been placed on confronting landowners with regulatory constraints versus offering them positive incentives.
The vast majority of landowners we deal with take tremendous pride in being good stewards of natural resources. When aware of special sites or unique species on their lands nearly all landowners will voluntarily make some accommodation to protect that resource. Ironically though, if there is mention of a “threatened or endangered” species the perception that they will become subject to federal control, or even prosecution, often becomes a common driver in their decisionmaking.
Whether or not this perception is warranted the federal government needs to create a much more positive image around this program. Until landowners regularly celebrate finding an endangered species on their property, rather than bemoaning the day, achieving the goals of the program will be more difficult than necessary.
For private landowners to play a major positive role in species recovery, they need to be involved in the process early, given appropriate information on what they can and cannot do, and have certainty about the fate of their own land management practices under ESA. There are some internal actions that the USFWS can promote to make the ESA more user friendly. They include:
Improving consistency in implementing the processes of landowner agreements and plans;
Reducing the transaction costs associated with developing and approving landowner agreements;
Providing guidance to allow flexibility and creativity in application of the tools to accommodate diverse landowner needs;
Improving training of staff that may lack experience and expertise on the policies and processes for these landowner agreements, including other relevant mandates such as National Environmental Policy Act;
Improving the quality of resources to use in planning and implementing these programs, such as updated handbooks, templates, and guidance; and
Encouraging other Federal agencies to move forward with management programs for listed and candidate species through a variety of approaches including information exchange and participating in strategic conservation plans.
Instruments for the cooperative management of endangered species are not simply resource management plans, but they must also be legal documents and biological dissertations. As such they are expensive and time consuming to develop. In some instances where multiple species are involved agreements come under the jurisdiction of both the Interior Department’s Fish and Wildlife Service and the Commerce Department’s Marine Fisheries Program. Dealing with two federal agencies with different mandates and interests adds even greater expense and time spent in negotiations.
Cost notwithstanding, the fact that they can be, and are frequently, challenged does not create the level of certainty that is necessary for these to be optimally attractive approaches. In addition, the science of managing various species is constantly evolving and the management approach needs to reflect that new knowledge. In some cases challenges to agreements are meant to resist any change to management because the appellant’s principle interest is in the management approach, not necessarily the species.
In other cases, the challengers may argue that the current management has not been successful enough and must be changed, which in the case of forest landowners typically means lowering the rate of timber harvest. Unless the use of these instruments is guided by solid information and predictable decision-making processes landowners will be reluctant to use them. Over the years natural resource managers have evolved substantially in managing whole ecosystems for diverse ecological, economic and social benefits. Yet by nature the program has created a decision environment where individual species concerns over-ride more comprehensive views of resource management.
Narrowly defined objectives inevitably lead to greater conflict among interests because there is room for only a small group of perceived “winners.” The Endangered Species Act needs to be updated to better accommodate both modern science and modern collaborative approaches to addressing the needs of diverse stakeholders. We urge the USFWS to pivot from a species by species to a multi-species and multiple benefits focus at a landscape-scale level. The challenges of undertaking multi-species, working landscape conservation put a premium on developing tools for cross-jurisdictional, public-private, and
private-private coordination and cooperation.
If such efforts are to be truly successful, however, Congress must also revisit the punitive nature of the ESA’s regulations. So long as the Act penalizes private landowners who own undeveloped habitat for endangered species, it will create perverse incentives that work against effective habitat conservation on private land.
Recent administrations have sought to offset these effects through various cooperative conservation programs designed to encourage voluntary conservation efforts and provide landowners with greater regulatory certainty. The ESA toolkit, with Safe Harbor Agreements, the “no surprises” rule, conservation banks, and recovery credits has softened landowner disincentives to protect species. These represent a fairly limited number of programs that offer landowners incentives to develop or conserve habitat. More opportunities are needed to provide building blocks for large-scale, cross-boundary conservation. Expanding programs during difficult budget times is clearly problematic, but still essential to changing current attitudes about endangered species.
Greater investment is clearly needed in order provide the landowner services and support necessary to put these and other efforts on the ground. Funding could come from a variety of sources. The US Forest Service and the US Natural Resources Conservation Service provide such funding, but do so with the expectation of specific accomplishments. The US Fish and Wildife Service and US Natural Resources Conservation Service could ensure that sustained technical assistance focused on endangered species issues is delivered to forest landowners by entering into funding support partnerships with state forestry agencies, as these state agencies are already the key interface between this landowner community and a host of government programs. Experiments with voluntary incentives suggest these more positive approaches hold promise. The North American Waterfowl Management Program, Partners for Wildlife, and the Wetland Reserve Program demonstrate that even modest financial incentives can produce significant ecological gains at modest cost. Were Congress to support expansion of such efforts, and authorize greater use of incentives under the ESA, it should be possible to enlist many more landowners in species conservation efforts.
Several areas are ripe for providing additional monetary conservation incentives for private landowners, such as:
Recalibrating tax deductions to reflect the value of conservation easements for their biological values rather than relying upon the fair market value of the donated easement, that is, upon the reduction in value in the underlying piece of property resulting from the donation of the easement;
Expansion and improvement of the Endangered Species Habitat Recovery Tax Treatment provisions as authorized in the 2008 Farm Bill, particularly as applied to forest management: and
Changes to current inheritance tax laws that cause the new owners to break up and sell larger tracts in order to pay taxes.
The USFWS needs to concurrently develop new approaches and tools to integrate landowner regulatory protections with existing and future conservation incentive programs. The most successful programs now provide monetary incentives but do not provide regulatory protections. Both are needed. A whole suite of federal, state, and private conservation programs exist that can be much more effectively used to protect and restore rare species if coordinated across landscapes and expanded to provide regulatory protections for participants. The suite of conservation programs under the Farm Bill, WHIP, EQIP, FRPP, CRP, CREP, Forest Stewardship, as well as acquisition programs, provide enormous conservation benefits that should provide conservation credits to landowners that participate. State agencies have similar programs that both protect and manage landscapes for native species conservation. There are many similar initiatives across the country such as the western states and federal agencies Greater Sage Grouse Initiative, the Prairie Grasslands Initiative, and other such landscape scale efforts. These types of efforts have the potential to not only preclude the need to list candidate species, but in cases where the partnerships are working to recover listed species, benefit many associated taxa in these ecosystems. The USFWS should develop tools where participating landowners gain regulatory protections if desired when doing conservation work in these initiatives.
The planning and management done by state forestry agencies under the Statewide Assessment of Forest Resources - State Forest Action Plans, and state wildlife agencies under the State Wildlife Action Plans, do, or have the potential to, layout the foundation for more comprehensive approaches to landscape-scale planning and conservation. These and other State plans can be the foundation to structure new expanded tools for landowner regulatory protections and further encourage landowner participation. We recommend that a thorough “land conservation benefits analysis” be done for the full range of existing federal, state and private conservation efforts to identify and enhance existing conservation efforts as well as missing gaps where future conservation efforts should be focused.
We would urge the USFWS to explicitly recognize the benefits of conservation actions taken before a species is listed, and to allow those benefits to offset adverse impacts to the species if it is listed. The ESA already contains several tools for conserving candidate and other unlisted species. Candidate conservation agreements with assurances, for example, encourage private landowners to conserve candidate species in exchange for a permit that authorizes certain harmful impacts after listing. No current tool, however, specifically addresses how conservation measures that benefit an unlisted species can be used to satisfy mitigation requirements for that species if it is listed. For example, a framework could be developed that allows a private landowner to receive credits for pre-listing conservation measures and then use or sell those credits to offset post-listing impacts to species.
Promoting a sustainable, working forest landscape across the nation is the National Association of State Foresters’ core mission and is also critical to maintaining diverse species of plants and animals. Achieving a sustainable forest resource requires that ecological values are provided at a level that is sufficient to maintain the underpinnings of economic productivity, notably soil, water and biological diversity. At the same time economic values must be generated in amounts sufficient to afford maintaining the forest base and its ecological benefits. The two sets of values are not competing, they are interdependent. Today, the nation is losing approximately one million acres of forest land per year because economic values incent landowners to convert to other uses. Helping landowners realize economic benefits as they produce habitat could help counter this trend and well serve the goals of the Endangered Species Act for conserving species.
Thank you for the opportunity to comment on this important resource issue.
NASF President and WV State Forester