NCCP and "No Surprises Clause"

by Jim Knight

Wildlife is a public resource. When wildlife inhabit private lands, the landowners rights and the public trust doctrine both need to be considered. The Endangered Species Act (ESA) prohibits the taking of any listed endangered wildlife species, even on private land. This includes destruction of habitat critical to that endangered species. Section 10 of the ESA provides a limited exception from this requirement in the form of Incidental Take Permits (ITP), but only if a Habitat Conservation Plan (HCP) is prepared. California has a similar conservation plan concept called the Natural Communities Conservation Plan, or NCCP.

One of the inherent sore spots of the ESA for developers was the fact that endangered species is protected in perpetuity. And, as biologists and other scientists attained new knowledge about the species or its habitat, the boundaries of what the developer was permitted initially could change at a later date.

This uncertainty made getting loan commitments and investors more difficult. Developers were very reluctant to come on board with any conservation plan. Few plans were being implemented. They lobbied their woes to the Clinton administration and in 1994 the U.S. Dept. of Interior and Dept. of Commerce added the "no surprises clause" to the HCP, NCCP process. This clause in essence said that, once a conservation plan is in place and agreed to, then the developerŐs entitlement rights would be "locked" in. Financing and/or additional investors could be assured of their vested interests being protected from future uncertainties under the ESA. Developers began signing on more readily.

But a number of scientists immediately pointed out that this clause was not functioning to save endangered species. In fact, even though a HCP might be found to be contributing to the extinction of a protected species, the Government would not require the developer make the needed changes to help the plan.

The regulatory assurances provided to the landowner were not being matched by the level of assurance to the public's wildlife. Given the lack of biological information on most species and the long time frames of most HCPs, there is often a large degree of uncertainty for the wildlife. If changes occurred with the advent of fires, floods, climate change, disease, a previously "threatened" species changed to "endangered" or any new knowledge of the species' needs or habits, the conservation plan was locked in and alterations to habitat boundaries by the developer to accommodate those changes, and thusly save the endangered species, was locked out.

Basically the HCP and NCCP were stripped of any science by the no surprises clause. The illusion that one could inventory a species and its habitat within a limited time then set in stone an exact map of protected and unprotected areas ran contrary to the dynamics of a real, functioning ecosystem. Nature is full of surprises.

Since the primary reason for species to be listed is loss of habitat, and in many cases their habitat has very specific (and often unknown) characteristics, HCPs and NCCPs must meet a high level of habitat protection to be successful. The "no surprises clause" undermines this fundamental premise. Leading biologists, environmentalists and resource agencies are in the process of trying to work out a solution.

For more information contact Leeona Klippstein with Spirit of the Sage Council at: www.sagecouncil.com