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Fed Agencies Suspend Take Permits for 'No Surprises' HCPS by CBB Staff Columbia Basin Bulletin - June 18, 2004

A U.S. District Court judge in the District of Columbia ordered the U.S. Fish and Wildlife Service and NOAA Fisheries to suspend issuing incidental take permits under the Endangered Species Act that include "no surprises" agreements.

When completing a Habitat Conservation Plan, landowners can agree to certain actions that help the threatened or endangered species in question. In turn the federal agencies can agree not to impose any additional conservation or mitigation measure on the landowner. It is an explicit contract between the agency and the landowner that promises there will be no future surprises if the landowner adheres to the contract.

However, Pasadena, California-based Spirit of the Sage Council and others sued Fish and Wildlife and NOAA Fisheries over the no surprises policy, arguing that it is a violation of the ESA and the Administrative Procedures Act. They said the policy gives "developers and timber companies decades-long permits to destroy endangered habitat, even if new information demonstrated that the species would go extinct."

District Court Judge Emmet Sullivan agreed with the Spirit of the Sage Council in a December 2003 decision, which was upheld on appeal this month. However, Fish and Wildlife said that inability to give no surprises assurances to landowners is an impediment to the agency's ability to conserve habitat.

"This administration believes that policy is a fundamental covenant with citizen stewards of our natural resources," said Craig Manson, assistant secretary of the Interior for Fish and Wildlife and Parks. "These conservationists should be assured that the government will not come back in the future and require them to do more than is stated in the agreement. Simply put, the policy embodies the American value of 'a deal's a deal.'"

He added that the policy gives landowners certainty and an incentive to take affirmative measures that they would not otherwise be required to do.

Hugh Vickery of the Department of Interior said that HCPs with no surprises agreements have been very successful in bringing people to the table to work on endangered species. "But, under the way this is happening right now, we cannot sign an incidental take permit with the no surprises in it."

The Clinton-era rules were adopted in 1998 to give developers and timber and mining companies some assurance that they would not be subject to additional rules while providing protections for listed species. But, Judge Sullivan said the result of the rule is that the "public has consistently been denied the opportunity ... to weigh in on decisions likely to have significant effects on public resources."

"Now, a permit isn't worth the paper it's written on," said Duane Desiderio, a vice president of the National Association of Home Builders in an Associated Press report. He called the ruling a serious setback for his industry because most species whose survival is imperiled are found on private property and near developed areas. Sullivan gave NOAA and Fish and Wildlife until Dec. 10 to revise the regulation so that there is more public input.

At this point, Vickery said, the current agreements stand, but the ruling does not permit future HCPs that contain the no surprises guarantees.

Brian Gorman of NOAA Fisheries Northwest Regional Office said that the no surprises agreements can be found in all HCPs, including the HCP recently issued to Grant County Public Utility District for its two mid-Columbia dams. He said that NOAA has about 12 to 15 HCPs in total that contain no surprises agreements and that Fish and Wildlife has about 49. There have been 379 incidental take permits issued by both agencies since 1994. The plans account for protections on 30,000,000 acres of land for about 200 listed species.

"This strikes me as a big deal," Gorman said. "But, how much it will affect NOAA Fisheries, we don't know." He said the agencies may appeal the decision, but federal attorneys have yet to make that decision.

The Spirit of the Sage Council is a non-profit coalition of environmental organizations and American Indians that defend and conserve native plants, animals and sacred lands.

Links: U.S. Fish and Wildlife Service: www.fws.gov NOAA Fisheries NW Regional Office: www.nwr.noaa.gov