About the Study OOOOOOseas.umich.edu/ecomgt/pubs/hcp.pdf · About the Study OOOOOO U NDER the Clinton Administration, the number of landowners preparing Habitat Conservation Plans

About the Study O O O O O O

UNDER the Clinton Administration, the number oflandowners preparing Habitat Conservation Plans(HCPs) to protect themselves from liability under

the Endangered Species Act (ESA) has skyrocketed. Thenumber of approved plans has grown from 20 in 1994 to225 today.1 The U.S. Department of Interior expects thatby the year 2002 more than 27 million acres of land andmore than 300 species will be covered by HCPs.2 Thegrowing scope of HCPs has made them one of the morecelebrated yet controversial aspects of the ESA.

HCP applicants, the U.S. Fish and Wildlife Service(FWS), and, sometimes, outside stakeholders negotiatethe provisions of an HCP. Once the parties havereached an agreement and the FWS has formallyapproved the plan, applicants receive an incidental takepermit that protects them from liability if they uninten-tionally harm endangered species or their habitat in thecourse of completing proposed projects. Without apermit such activities would violate the ESA. Inexchange for the permit, applicants agree to pursuespecific mitigation strategies. These strategies mayinclude avoiding endangered species habitat duringdevelopment, creating habitat reserves, instituting anactive management program such as prescribed burns,paying a development fee, or translocating affectedspecies to public lands.

HCPs raise a number of important biological, social, andpolitical issues that have yet to be answered. Of theseissues, the role of public participation in habitat conserva-tion planning is particularly controversial. As the numberand scope of HCPs has grown, so has the public’s desireand need to be involved. While the character of the HCPdecision-making process has a considerable effect on theshape of final HCPs and the adequacy of wildlife protec-tions, there has not been extensive research on thisprocess and the public’s role in it. How does the publicparticipate in these processes? Are applicants, the FWS, and outside stakeholders satisfied with currentapproaches? How can policies and procedures be changedto improve habitat conservation planning?

To answer these questions, we conducted an 18-monthstudy of public participation in HCPs. The studyincluded:

• A written survey of FWS contacts for the 55 large HCPsapproved after 1991 or likely to be approved by the endof 1997 (data is included from 45 responding HCPs);

• Fourteen in-depth case studies selected from theselarge HCPs that included more than 75 interviewswith a wide variety of HCP stakeholders; and

• Thirteen case studies of public participation in otherenvironmental contexts in the United States, Canada,and Europe.

We focused on large HCPs (greater than 500 acres)because they tend to have greater environmental,economic, and political implications and more extensivepublic participation than smaller HCPs. The survey wasconducted between June and September 1997 and allcase-study interviews took place between November1997 and January 1998.

This publication summarizes a longer report prepared bythe University of Michigan on the role of public partici-pation in the HCP process. The summary captures themajor themes of the full report and provides policymakers with recommendations for improving the HCPprogram. The full report provides a more extensiveanalysis of stakeholders’ roles in the planning processand presents detailed survey and case study results.

The full and summary reports were commissioned by theNational Wildlife Federation, which continues to have astrong interest in endangered species policy and HCPmanagement. We would like to thank John Kostyackand Sara Barth for their support of the study. However,these reports solely represent the work of the Universityof Michigan research team and do not necessarily reflectthe views of the National Wildlife Federation. P

Copies of the full report, including case studies and recommen-dations, can be obtained by sending a check for $35 payable to University of Michigan to: HCP Project, Attn.: Dr. StevenYaffee, School of Natural Resources and Environment,University of Michigan, Ann Arbor, MI 48109-1115.

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Balancing Public Trust and Private Interest:Public Participation in

Habitat Conservation Planning

A Summary Report

Summary Report Written By:Jeremy Anderson and Steven Yaffee

Full Report Research Team:Peter Aengst

Jeremy AndersonJay Chamberlin

Christopher GrunewaldSusan Loucks

Elizabeth WheatleySteven Yaffee, Project Director

The University of MichiganSchool of Natural Resources and Environment

November 1, 1998

Study Commissioned by the National Wildlife Federation

O O O O O O O O O

P r e f a c e

THE National Wildlife Federation (NWF) commis-sioned this study of public participation in theHabitat Conservation Planning (HCP) process

for two reasons.

First, as the study explains, HCPs have rapidly become apopular tool for many state and local governments andprivate landowners seeking to ensure that their economicactivities are consistent with the Endangered Species Act(ESA). Considering the potentially enormous impacts(either positive or negative) that these plans have on thelong-term survival of endangered species, we wanted tolearn how NWF, its affiliates, and other activists couldplay a meaningful role in shaping these plans.

Second, policy makers in Congress and the federalwildlife agencies ultimately decide when and how thepublic is allowed to participate in HCP development.

We wanted to learn if current policies are adequate toensure meaningful involvement and, if not, what policychanges are needed to achieve this important objective.

This policy objective is a top priority for NWF becausebroad public participation helps ensure that HCPs truly protect endangered species and helps build thepolitical support that ESA programs need for successfulimplementation.

The resulting report, summarized here, reflects anoutstanding effort by the University of Michigan team toinvestigate NWF’s questions. We intend to make fulluse of the report’s findings and recommendations, andwe encourage you to do the same. P

— JOHN KOSTYACK

Counsel, Office of Federal and International Affairs, National Wildlife Federation

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O O O O O O O O O

T a b l e o f C o n t e n t s

Introduction: Public Participation In Habitat Conservation Planning ....................................................................7

Public Participation and the HCP Experience.........................................................................................................9

A Wide Variety of Approaches .........................................................................................................................9The Potential Benefits of Public Participation................................................................................................13The Full Benefits of Public Participation Are Unrealized ..............................................................................17

Four Key Obstacles to Meaningful Public Participation ........................................................................................21

Problematic FWS Policies and Attitudes........................................................................................................21NEPA Is Not Enough ....................................................................................................................................24Ineffective Management of HCP Negotiations ..............................................................................................27Fear of Public Participation.............................................................................................................................30

Recommendations ..................................................................................................................................................31

Policy Recommendations: Making Public Participation Meaningful ............................................................31Advice to Practitioners: Making Your HCP More Effective ..........................................................................37

Notes.......................................................................................................................................................................40

BoxesMajor Findings .........................................................................................................................................................4Location of HCPs and Case Studies........................................................................................................................6What Is Public Participation?...................................................................................................................................8HCP Negotiation Model..........................................................................................................................................9Methods of Public Participation.............................................................................................................................10Who Is Involved in HCPs? ....................................................................................................................................10Why Is Public Participation Beneficial? .................................................................................................................12Clark County: Capturing the Benefits of Public Participation ..............................................................................14Level of Independent Science in HCPs .................................................................................................................18Spectra of Outside Stakeholder Participation and Satisfaction ..............................................................................19Tribal, State, and Federal Agency Involvement ......................................................................................................20The U.S. Fish and Wildlife Service’s Public Participation Policy...........................................................................22NEPA and HCP Decision-Making Timelines ......................................................................................................25Policy Recommendations........................................................................................................................................31Innovative Ways to Involve Outside Stakeholders .................................................................................................34Building Effective HCPs........................................................................................................................................37Running an Effective Advisory Committee ...........................................................................................................38

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Major Findings

Awell-managed public participationprocess has the potential to providesignificant benefits to Habitat

Conservation Plan (HCP) applicants,U.S. Fish and Wildlife Service (FWS)staff, outside stakeholders, and affectedspecies. These benefits include: • Enhancing HCP quality, • Improving communication and building new

relationships, • Increasing public understanding of and political

support for an HCP, and• Reducing the likelihood of approval and imple-

mentation delays.

With a few exceptions, applicants and theFWS are neither capturing the full benefitsof public participation nor providingmeaningful opportunities for publicinvolvement in the HCP process. In particular, we found that:• Interest groups and independent scientists are not

involved in a large number of HCPs.

• In the HCPs in which outside stakeholders do partici-pate, the FWS and applicants rarely make significantchanges to HCPs based on their input. In general,outside stakeholder input typically comes too late inthe process to maximize its usefulness.

• FWS staff have low expectations for making changes toHCPs based on public concerns.

• Many outside stakeholders remain dissatisfied withHCPs, which suggests that significant problems existin the HCP program.

There are four key obstacles to meaningfulpublic participation:

• FWS priorities and policies.The FWS has higher priorities than public partici-pation, including streamlining the HCP planningprocess, maintaining congressional support for theEndangered Species Act (ESA), providing flexibility to landowners, and enticing landowners to pursueHCP agreements.

• NEPA as a public participation process.The National Environmental Policy Act does not doenough to facilitate an effective public participationprocess. For example, landowners and the FWS typi-cally negotiate HCP provisions well before commentperiods on NEPA and ESA documents. There are alsofew incentives for the Service or applicant to renegoti-ate these provisions and incorporate changes based onpublic participation, even if the public provides signifi-cant new information.

• Ineffective management of HCP negotiations.HCP applicants and FWS staff often poorly define the roles of outside stakeholders and the FWS in theHCP process, leave outside stakeholders with falseexpectations, and exclude key stakeholders from theprocess. They also fail to ensure that participantscentral to the process, including federal agencies, haveadequate resources to participate.

• Fear of public participation.HCP applicants, the FWS, and outside stakeholdersfear that public participation places too great a burdenon them. In fact, public participation likely increasesthe cost and length of HCP planning processes andrequires participants to expend significant resources.Still, the FWS, HCP applicants, and outside stake-holders stand to gain significant benefits if they learnto manage public participation effectively.

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To strengthen the HCP program, werecommend a number of policy changesaimed at improving the timing and effec-tiveness of public participation. Theserecommendations include that:• The FWS require all HCPs with major effects to have

some form of public advisory committee.

• The FWS build new disclosure and comment periodsinto the planning process to help applicants and theoutside stakeholders communicate about HCP provi-sions before a plan is set in stone.

• The FWS concentrate its efforts on programmaticHCPs developed by local governments rather than on alarge number of small private landowner HCPs.

• The FWS involve independent scientists in HCPs withmajor effects.

• Congress and the FWS encourage public participationby requiring that HCP agreements allow for citizenenforcement and developing a grant program thatrewards innovative approaches to public participation.

To make public participation in individualHCPs more effective, we recommend that:• Congress and the FWS enable the FWS staff to

involve the public more effectively in HCPs by hiringmore field-level staff and providing all HCP staff withpublic participation and negotiation training.

• FWS staff make NEPA documents and other HCPinformation more readily accessible.

• Applicants and FWS staff involve outside stakeholders,including independent scientists, early and consistentlythroughout HCP planning processes. They should usea variety of different outreach methods, including fieldtrips, workshops, and steering committees.

• Applicants and FWS staff communicate clearly withoutside stakeholders about their input and expectationsof the planning process in order to avoid creatingunmet expectations and consequent dissatisfaction. P

Findings from: Balancing Public Trust and Private Interest:Public Participation in Habitat Conservation Planning: ASummary Report, University of Michigan, School of NaturalResources & Environment, November 1, 1998.

Copies of the summary report can be obtained by sending acheck for $3.00, payable to University of Michigan, to: HCPProject, Attn.: Dr. Steven Yaffee, School of Natural Resourcesand Environment, University of Michigan, Ann Arbor, MI48109-1115. Copies of the full report, including case studiesand recommendations, can be obtained by sending a check for $35.00.

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O O O O O O O O O

Location of HCPs and Case Studies

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Number of Surveyed HCPs Per State

0

1

2–3

4–5

20

Location of HCP Case Studies1 Plum Creek I-90 HCP2 Washington Department of Natural Resources HCP3 Weyerhaeuser Willamette HCP4 California Department of Water Resources HCP5 Kern Water Bank HCP6 Western Riverside County HCPs7 Orange County Central–Coastal NCCP/HCP8 San Diego Multiple Species Conservation Plan9 Clark County HCP

10 Balcones Canyonlands HCP11 International Paper Co. Red Hills Salamander HCP12 Georgia Safe Harbors HCP13 Massachusetts Piping Plover HCP14 Wisconsin Karner Blue Butterfly HCP

12

3

4

56

7

8

9

1

1

1

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I n t r o d u c t i o n

IN THEORY, Habitat Conservation Plans (HCPs)are designed to balance the needs of endangeredspecies with the needs of private and other nonfed-

eral landowners. But do HCP agreements live up to thispromise and promote the public interest?

The effectiveness of public participationin the HCP decision-making processprovides critical insights for answeringthis question. As a negotiation processthat seeks to balance private and publicinterests, habitat conservation planningmust find ways to deal effectively withthe concerns of HCP applicants; publicagencies; and outside stakeholders, suchas independent scientists, interestgroups, Native American tribes, localgovernments, state and other federalagencies, nonapplicant landowners, andthe public.

HCPs that incorporate the ideas and concerns ofaffected parties while meeting the biological require-ments of the Endangered Species Act (ESA) maysuccessfully balance the needs of species and ecosystemswith the need for of economic development. However,HCPs that lack the involvement of key outside stake-holders risk undermining their scientific credibility andpublic support.

Indeed, we found that meaningful public participation inthe HCP process has the potential to provide significantbenefits to the U.S. Fish and Wildlife Service (FWS),the lead federal agency in most HCPs, as well as toHCP applicants, affected species, and the public.Specifically, public participation can enhance the infor-mation on which HCP decisions are based, improveunderstanding and relationships among HCP stakehold-ers, increase public and political support for HCPs, andprovide applicants with greater certainty about the long-term viability of HCPs.

However, many of these potential benefits are not beingfully realized. Our research indicates, with several impor-tant exceptions, that outside stakeholders have a limitedability to change the substantive provisions of HCPs andare unsatisfied with HCP processes and outcomes.

The benefits of public participationare not being achieved for severalreasons. The FWS’s policies and atti-tudes suggest that public participationis not a high priority within theService. In addition, public commentperiods on documents created underthe National Environmental PolicyAct (NEPA) and ESA—the mosttypical form of HCP public participa-tion—come too late in the HCPdevelopment process to provide mean-ingful opportunities for public

involvement in HCP decisions. In many HCPs, FWSstaff and HCP applicants also ineffectively manage thenegotiation process leading to HCP agreements.

This report outlines the potential benefits of publicparticipation and then analyzes why the benefits ofpublic participation are not being fully realized. Itconcludes with a series of recommendations for betterinvolving the public in the HCP planning process. Ourrecommendations do not deal with all of the problemsfacing those engaged in habitat conservation planning.For example, other recent reports provide importantlessons for improving the scientific basis of HCPs.3

Nevertheless, our findings suggest that improving thedesign and management of public participation will leadto better and more enduring HCPs.

We draw extensively on case studies and survey results tounderstand the perspectives of FWS employees, HCPapplicants, and outside stakeholders who are activelyinvolved in the HCP process. As much as possible, wetell the story in their words in order to share the variety

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“While I believe whole-heartedly that there are badHCPs out there, the mainreason for this is little or nopublic participation.”

— CHRISTINE ROBINSON

Clark County Desert Conservation PlanAdministrator

Public Participation In Habitat Conservation Planning

of HCP experiences we encountered. In many respects,this story is discouraging and frustrating. Still, in a smallnumber of our case studies, FWS staff and applicants

effectively involved the public and balanced private andpublic interests. These success stories provide usefullessons for improving habitat conservation planning. P

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I n t r o d u c t i o n , continued

Public participation is defined in thisstudy as…

The involvement of all nonapplicant and non-U.S.Fish and Wildlife Service participants in HCP devel-opment and implementation. Outside stakeholdersinclude independent scientists, interest groups,Native American tribes, local governments, state andother federal agencies, nonapplicant landowners, andthe public.

Meaningful public participation is…

A dynamic process in which applicants, the FWS,and outside stakeholders share information with eachother about their interests, concerns, and ideas. Whilethis may take many forms, depending on the contextof individual HCPs:

• It requires applicants to solicit public participationwhen it can be incorporated into the planningprocess, to listen and respond to public input, and toimplement proposed changes when appropriate.

• It also requires that all parties clearly communicatetheir expectations of how public input will be usedin the planning process.

• In the most effective processes, parties work togetherto find creative and acceptable solutions to problemsand develop trust through face-to-face interaction.

T h e H C P E x p e r i e n c e

HCPs are essentially products of negotiations betweenlimited parties—primarily the applicant and FWS.Outside stakeholders—independent scientists, interestgroups, Native American tribes, local governments, stateand other federal agencies, nonappli-cant landowners, and the public—are involved to varyingdegrees in particularHCPs. Their involve-ment depends agreat deal on thepolitical, legal,and biologicalcontext of theHCP and thewillingness of theapplicant toinclude them.

Indeed, the HCPs we stud-ied used many different forms ofpublic participation, and outside stake-holders tended to play a variety of roles during thenegotiation of individual HCPs. Approximately half ofthe 45 large, recent HCPs included in our survey resultsheld public forums, 40 percent convened steeringcommittees, and 30 percent gave site tours. According toour survey, state agencies were involved in a highpercentage of HCPs, while local governments, interestgroups, independent scientists, and tribes were involvedin fewer HCPs.

In a number of our case studies, outside stakeholders hadsignificant opportunities to participate in the developmentof the HCP, and the applicant and FWS respondedmeaningfully to their input. In many of these cases,HCPs stakeholders were allowed to participate directly inHCP negotiations. In others, applicants made a concertedeffort to communicate with stakeholders about their inputand changes made to the HCP as a result of that input.

For example, the applicant in the Karner blue butterflyHCP in Wisconsin used a collaborative steering commit-tee process in which the committee developed the entireHCP for FWS approval. The committee consisted of a

number of outside stakeholders,including state agencies, environ-

mental groups, utility compa-nies, and forest products

companies. In thisand similar cases,

outside stake-holders tendedto be very satis-fied with theHCP process.

Indeed, this typeof HCP illustrates

many of the poten-tial benefits of a well-

managed public participa-tion process.

However, we found two other types of HCPs that weremuch more common. In the first, the applicant andFWS provided significant opportunities for publicparticipation but failed to respond meaningfully to thepublic’s input. In the Plum Creek HCP, for example,the applicant provided outside stakeholders with numer-ous opportunities to comment on its plans and createdexpectations that it would seriously consider thosecomments. However, many outside stakeholders feltfrustrated that the company and FWS ignored theircomments. In the second and most common type ofHCP, the applicant and FWS did not provide signifi-cant opportunities for public participation during thedevelopment of the HCP. For example, in itsWillamette HCP, Weyerhaeuser negotiated directly withthe FWS, and the public was only formally involved latein the process through a comment period on an environ-mental assessment (EA) prepared under NEPA.

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A Wide Variety of Approaches

HCP ContextPolitical, Legal, and Planning Factors

Negotiation Setting

Nonapplicant Landowners

General Public

FWS

State and Other Federal Agencies

Independent ScientistsInterest Groups

Applicant

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Methods of Public Participation

Who Is Involved in HCPs?5

These two types of HCPs have several common charac-teristics. First, outside stakeholders sit on the peripheryof the negotiations between the applicant and FWS. Asa result, they are forced to use other legal and politicalmeans to influence the HCP. Stakeholders also tend tobe dissatisfied with these HCPs because they do notprovide meaningful opportunities for public participa-tion. Indeed, we found that stakeholders are less satisfiedwith HCPs that provide less meaningful opportunitiesfor public participation. Finally, these HCPs providenumerous examples of pitfalls to avoid when designingand managing a public participation process. Thesepitfalls are discussed throughout the report.

The actual level of outside stakeholder involvement in anHCP depends on their perceived power and the contextof the HCP. Because FWS policy gives applicantsalmost complete discretion to shape public participationbeyond the comment period requirements of the ESAand NEPA, outside stakeholders are typically involvedonly to the extent that the applicant perceives theirinvolvement to be in its interest. If the FWS and appli-cant perceive outside stakeholders as powerful, they aremore likely to address outside stakeholders’ concerns, atleast cosmetically, during HCP negotiations. Stake-holders have power if they can affect or delay an HCPdecision through litigation or have political influenceover the primary negotiating parties.

For example, in the Orange County Central-CoastalHCP, which was one of California’s first planningefforts under the Natural Community ConservationPlanning (NCCP) program,4 environmentalists whoparticipated on an advisory committee initially had littleclout. Many of their early suggestions were ignored.However, as Dan Silver of the Endangered SpeciesHabitats League explained: “As time wore on, we hadmore [influence] as the resource agencies realized that the overall NCCP program wasn’t going to have muchsupport in Congress or the Legislature if the first one[NCCP] had no conservation group support. In the end,they [FWS and the applicant] made the easy changesbecause they needed our support politically.” PeterDeSimone of the National Audubon Society similarlyexplained: “It’s all politics and personality. The politicsare so extreme here that you are better off schmoozingwith some politician than sitting down and doing somereal planning.”

The level of stakeholder involvement in HCPs alsodepends on landownership patterns, the type of appli-cant, and the extent to which HCPs affect localeconomies. In particular, outside stakeholders tend to bemore involved in HCPs with state or local governmentapplicants than they are in HCPs with private landownerapplicants. While many private applicants do notperceive themselves as having incentive to pursue mean-ingful public participation strategies, government appli-cants typically have extensive public participationrequirements and experience. Government applicantsalso tend to have a greater political interest in publicparticipation, because their HCPs affect a wider varietyof interests and public resources. P

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T h e H C P E x p e r i e n c e , continued

O O O O

Public Participation…

• Can improve the quality of an HCP.Outside stakeholders can bring technical informationand other resources to HCP decision-making. Theyare more likely than either the applicant or the FWSto be able to articulate their real concerns with anHCP, which allows these concerns to be addressed inan effective and efficient manner. Outside stakeholdersalso can help craft creative solutions that balance therange of interests involved in HCP decisions.

• Can build public support for an HCP.Involvement in the decision-making process canimprove stakeholders’ understanding of the choicesmade in an HCP and the constraints facing both theapplicant and FWS. Applicants can also be moreresponsive to stakeholder concerns. Meaningful publicparticipation can build relationships and trust that can enable the HCP to move forward. For an HCPinvolving a single, private applicant, public support isneeded to provide the enhanced certainty that land-owners seek. For an HCP involving governmentapplicants or public lands, public support is neces-sary for the plan to achieve political acceptability.Ultimately, a plan that is supported by outside stake-holders is more efficient than one that faces potentiallitigation and political action.

• Provides an important measure of the likelysuccess of an HCP.For many HCPs, evaluation of success in biologicalterms will not be possible in the near term. One indi-cator of the likely success of an HCP is the satisfac-tion level of outside stakeholders, including indepen-dent scientists. If people with different interests,knowledge, and perspectives all look favorably on thedirection set in an HCP, it is more likely that it willachieve its biological targets. In addition, a plan that issupported by outside stakeholders is more likely to beimplemented successfully.

• Is a vital component of the FWS’s responsibili-ties under federal law and landowner obliga-tions as neighbors in communities.Congress has established public participation as animportant element of endangered species decision-making. Through the citizen suit, review-and-comment, and full disclosure elements of the ESA,NEPA, and other laws guiding federal administrativeprocedures, the FWS is directed to organize an effec-tive process for involving the public. Such involvementis an important element of a democratic society, andits significance is magnified in decisions affectingpublic trust resources such as wildlife, publicly usedlandscapes, and public funds, as are often involved inHCP decision-making. Involving the public in HCPdecision-making is also part of being a good citizenand neighbor. Well-established norms associated with communities establish responsibilities associatedwith citizenship and landownership. P

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Why Is Public Participation Beneficial?

AMEANINGFUL public participation process hasthe potential to provide significant benefits to HCPapplicants, the FWS, the public, and affected species.

While the majority of HCPs do not currently capturethese benefits, these potential gains suggest reasons whyapplicants and the FWS should consider improving theirpublic participation policies and practices.

Participation clearly improves thequality of information available todecision-makers. Ninety-four percentof FWS respondents to our surveysaid that public participationincreased the quality of informationavailable to develop HCPs.According to Rich Wininger ofWeyerhaeuser, public participationcan bring up legitimate issues thatcan “help defuse misperceptions.”

Public participation can also helpstakeholders learn about the legal,political, and biological complexitiesof HCPs. If participants are involvedearly and consistently in the process,this learning can help establishcommunication and trust amongparticipants, which is important forplan approval, implementation, andfuture conservation efforts. In theKarner blue butterfly HCP, forest products and utilityindustry representatives reported that the inclusive HCPprocess improved their communication with others intheir field. Nonprofit and government representativesalso improved their relationships with the private sector.As Nancy Braker of The Nature Conservancy said, “If ithad been an easy process, and we only had to meet acouple of times, we would have never developed strongerties with the timber companies that have resulted infurther opportunities to do effective conservation workin Wisconsin.”

Involvement of outside stakeholders can build publicsupport for an HCP and increase the likelihood of planapproval and implementation. With opportunities forlearning and building trust, public participation can helpgarner the support of potential critics and prevent futureconflicts and delays. Our case study results show thatthis is especially true when HCPs provide for early andconsistent public participation. HCPs with a greater

level of public participation tend tohave higher and broader levels ofoutside stakeholder satisfaction,which decreases the chance offuture delays through administra-tive appeals or litigation.

On the other hand, HCPs that donot effectively involve the publiccan become vulnerable to lawsuitsand other delays. In the RiversideCounty Stephens kangaroo ratHCP in California, the public hadsignificant opportunities to partici-pate, but many participants felt thattheir comments were ignored. Oneresult was a high number oflawsuits from environmentalists andproperty owners, which slowed theplanning process and drained thecoffers of the joint county-munici-

pal authority created to develop the HCP. By 1996(before the HCP was approved and even more lawsuitswere filed), the joint county-municipal authority reportedspending $1.3 million on litigation and legal services. Thecounty seems to have learned from its mistakes. Localofficials developing a multi-species HCP in WesternRiverside are trying to avoid the high degree of contro-versy associated with the earlier single-species HCP.Although the multiple species HCP is not yet complete,all participants—applicant, FWS, and outside stakehold-ers—characterized it as a more collaborative and satisfac-tory process than the first plan.

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The Potential Benefits of Public Participation

“In the past, there [have] been

no forums for this kind of

dialogue and shared learning.

These forums bring some really

disparate groups together, build

up trust, and forge relationships

that otherwise would never

occur. [These relationships]

can form the basis for continued

conservation planning.”— JIM MOORE

The Nature Conservancy, Clark County HCP

THE CLARK COUNTY HCP for the deserttortoise effectively managed several aspects ofpublic participation. As a result, the HCP enjoys

wide support in this growing area of Nevada.

As with other HCPs that enjoy public support, ClarkCounty, the primary applicant, created a steeringcommittee at the outset of the planning process thatinvolved a wide array of interests, including the county;local, state, and federal agencies; academics; developers;off-road vehicle interests; miners; and national and localenvironmental groups. This diverse membership legit-imized the committee process and helped build trust andownership of the plan.

Dolores Savignano, a FWS biologist involved in theHCP, said: “There was good buy-in because of all theparticipation. Our approach definitely lowered thecontroversy level and actually promoted learning, whichhas resulted in more actions getting implemented.”

The steering committee kept the planning processrunning smoothly by hiring a facilitator and establishingtwo subcommittees. The technical subcommittee keptthe steering committee from bogging down in technicaluncertainty, while the education subcommittee workedto enlist the public’s support in protecting the tortoise.They educated the public by using a telephone hotline,speaking engagements, school materials, videos, bill-boards, and newspaper, radio, and TV ads.

Participant continuity also facilitated the success of theHCP by building trust and understanding. The steering

committee met more than 100 times over eight years.Many of the core committee members stayed involvedthroughout the planning process and even formed animplementation and monitoring (I&M) committee.

The committee operated on a principle that compromisewas necessary and that everyone needed to buy into theoverall document. According to Paul Selzer, the processfacilitator: “No matter how long we took we were nevergoing to get total unanimity. The key was consensus noton every little item but on the whole thing.”

Broad committee support translated into broad publicsupport. When the committee submitted its plan to thecounty commissioners, the commissioners unanimouslyvoted for it and submitted it to the FWS as their officialHCP application. As Selzer noted: “ESA matters areexplosive and most government entities love it when theenviros walk hand-in-hand with the biggest developersin the region and request in unison for them to dosomething.”

While some biological and policy questions linger, theplan continues to be supported by key stakeholders.According to Selzer: “No one from any side has reallycomplained about the plan or its implementation. Thereare issues and everyone is not totally happy. But if youasked them, would you rather have this plan or not, theywould all want it.” In fact, the process worked so wellthat the county is using the I&M committee to preparea new, five-million-acre multi-species HCP that will bethe largest HCP in the country if it is approved.6 P

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Clark County: Capturing the Benefits of Public Participation

If structured and managed correctly, steering and advi-sory committees enable outside stakeholders to getinvolved earlier and more consistently in the develop-ment of HCPs, thereby helping to capture many of thebenefits of public participation. Forexample, an environmentalistinvolved in a number of HCPs saidthat being part of a working group:“allowed us to understand how theplan developed and evolved. [Theplan] is easier to accept if you under-stand the series of step-wise deci-sions that occurred. We had theopportunity to satisfy ourselves thatwe couldn’t do certain things likeconnect two reserves…[The plan]worked for me, but if I had not beena part of the working group, I wouldlikely not have been able to acceptthe plan. Having that ability to see itas it was developed was critical.”

The involvement of outside stake-holders, particularly independentscientists, can also strengthen thenegotiating position of FWS staff.In negotiations information ispower, and outside stakeholdersoften provide useful and credible information to FWSstaff. Having groups other than the FWS make the casefor permit conditions can also strengthen the Service’sbargaining position.

According to interviewees, outside stakeholders can alsoaid field-level FWS staff in making their case withupper-level decision-makers.

HCPs that include the involvement of outside stakehold-ers after HCP approval are more likely to be implemented

successfully. For example, in the Georgia Safe HarborsHCP, the steering and scientific advisory committees—both made up of outside parties—will oversee the imple-mentation process. In the Orange County Central/

Coastal NCCP/HCP, three publicmembers sit on the 15-memberboard of the nonprofit corporationcreated to implement the HCP.They can act as watchdogs, inform-ing the agencies and outside stake-holders if problems occur.According to Dave Harlowe, anassistant FWS field supervisor: “I think more people will comearound to appreciate this element ofthe final plan. It is a very positive,partnership-building mechanism,and it essentially gives continuedlife to the plan so that it doesn’tbecome like many processes, wherefrankly the final product is largelyforgotten by the public.”

The involvement of outside stake-holders can also help the FWS andapplicants leverage other valuableresources and expertise, which isparticularly important given the

FWS’s chronic budget and staffing problems. For exam-ple, The Nature Conservancy has been critical to theimplementation of the Coachella Valley fringe-toedlizard HCP in southern California, which was one of thefirst HCPs ever completed. The Conservancy providedfunding, secured options on reserve lands, and is therepository and distributor of mitigation fee funds. It alsomanages the reserve, oversees management activities, andconducts public outreach. All parties to the HCP agreethat the plan would not work without the Conservancy’scontinued involvement.7

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“[The working group was] thekey to our success. …Even thoughwe didn’t have all four [environ-mental members] supporting theplan in the end and might nothave enjoyed every minute ofworking with them, the plan wasbetter because of the workinggroup.…Its net effect was that the primary organizations in our community were neutral or supportive.”— SAT TAMARABUCHI

Vice President Environmental AffairsIrvine Company, Orange County Central-

Coastal NCCP/HCP

The involvement of independent scientists can have aparticularly beneficial effect on HCP processes andproducts. In several of our case studies, independentscientists helped design conservation strategies andimproved the scientific basis of theplans. For example, in the ClarkCounty HCP, independent scientistswere involved in a technical subcom-mittee early in the planning process.They helped formulate the plan andprovided scientific review of thesteering committee’s proposals. Asthe plan developed, members of thetechnical subcommittee continued tosit on the overall steering committeeand played a critical role in shapingthe plan.

Continued involvement by indepen-dent scientists in the planningprocess can also increase the publiccredibility of an HCP. For example,in the Washington Department ofNatural Resources (DNR) HCP, ascience team recommended overallconservation strategies. The team’swork was widely supported by indus-try groups and environmentalistsalike. Unfortunately, those groups lost confidence in theplan when, according to Tim Cullinan of the NationalAudubon Society, among others, the “policy people tookover” and the scientific basis for the plan was perceivedto have been altered.

The early involvement of independent scientists also hasthe potential to help applicants and the FWS negotiateHCPs more efficiently by providing information thatenables the FWS to clarify requirements for applicants.Applicants tend to negotiate plans that come as close as possible to the minimum acceptable conservationstandard. However, this minimum standard is often

difficult to define in practical terms, and the FWS oftenkeeps standards ambiguous in individual HCPs tostrengthen its negotiating position. For example, KristiLovelady, senior administrative analyst of the Riverside

County Habitat ConservationAgency, described her frustrationwith the lack of FWS clarity:“They were supposed to be theauthorities on how much isenough.…The whole process ofthe plan was like trying toconstruct something in a pitchblack room and somebody saying‘you’re kind of close.’ ” Early scien-tific involvement can reduce prob-lems like this by shedding light onbiological questions that bog downnegotiations and providing objec-tive criteria to which negotiatingparties can appeal.

In the best of situations, publicparticipation can also “expand thepie” and help participants discovercreative solutions that at leastpartially meet their interests. AsPaul Selzer, the facilitator for theClark County HCP, said, “You

might not get your way on every item, but in the end thedocument ought to be better for all than the status quoand any alternative you could get through regulation orlitigation.” In this inclusive HCP, everyone receivedsomething they wanted. Developers received greaterassurances that they could continue to develop in fast-growing Las Vegas. In addition, development fees paidfor state and FWS research, fencing along highways toprotect desert tortoises, public outreach on tortoiseconservation, the purchase of grazing leases from willingsellers, and other activities that met the interests ofparticipating stakeholders. P

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“Public participation makes allthe difference in the world interms of product, because it putsadded pressure on the applicantto do the right thing and it putsthe Service in a position ofstrength in the negotiations.…Management would have beenless likely to listen to their staffthat some of these issues wereproblems if public comment hadnot reinforced them.” — JOE ZISA

FWS Biologist, Weyerhaeuser Willamette HCP

UNFORTUNATELY, while there are a number ofHCPs that illustrate the benefits of engaging in ameaningful public participation process, most of the

HCPs we studied do not capturethese benefits. In fact, accordingto our survey and case studyresults, interest groups and inde-pendent scientists are not involvedin a large number of HCPs, andfew HCP agreements are signifi-cantly changed because of publicparticipation. Significant substan-tive changes to HCPs tend tooccur early in the planningprocess, before interest groups orother stakeholders are involved ina significant way. As a result,outside stakeholders generally areless satisfied with HCP processesand agreements than applicants orthe FWS.

Outside stakeholders are not significantly involved in alarge number of HCPs. According to our survey results,groups representing environmental, Native American,and commodity interests were not involved in more than40 percent of large HCPs. We also found that whenthese groups were involved, the timing of their involve-ment diminished their influence. They tended to be moreinvolved during comment periods on ESA and NEPAdocuments than during earlier phases of the planningprocess when most key HCP decisions are made.

Nonagency and nonapplicant scientists generally are notinvolved in most HCP processes. Independent scientistswere actively or moderately involved in only 28 percentof surveyed HCPs. Less than a third of surveyed FWSstaff reported that they or the applicant submitted docu-ments for peer review by independent scientists.

However, even if outside stakeholders have an opportu-nity to participate in an HCP, this does not necessarilymean that they will be meaningfully involved or have

their comments seriously consid-ered or implemented. Indeed,even when the public is involved,most substantive changes toHCPs are driven by the interestsof applicants and the FWS, notthe public. Only 14 percent ofFWS staff responding to thesurvey said that public participa-tion resulted in significantsubstantive changes to the HCPsin which they were involved. Inmore than a third of HCPs,public participation led to nosubstantive changes. In the PlumCreek I-90 Corridor HCP, theFWS and Plum Creek tightly

controlled the development of the HCP. According toJim Matthew of the Yakima Indian Nation, “It was basi-cally a Plum Creek and FWS show, and whatever theywere came up with is what we got.”

While there are important exceptions, outside stakehold-ers tend to be dissatisfied with HCP processes and finalHCPs, and their expectations of influencing HCPs typi-cally go unmet. In a number of our case studies, appli-cants provided significant opportunities to participate,but outside stakeholders did not feel that applicants orthe FWS incorporated their input. As a participant inthe Washington DNR HCP stressed: “The WashingtonDNR came out and said, ‘OK, we’re going to do allthese things to retrieve input from the public and we arereally interested in what you have to say.’ And the publiccommented at length and intelligently, and that inputwas not only ignored, but in some cases it was almostridiculed by the Department.” Dennis Hollingsworth of

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The Full Benefits of Public Participation Are Unrealized

“At the time we were encouraged [by the process].…They appeared to belistening. But as it went farther along,you could tell they were smiling andbeing very pleasant, but they weren’tchanging the substance. It was sugarkrispies: sugar-coated on the outsidebut no nutritional value.”

— CHARLIE RAINES

Sierra Club, Plum Creek HCP

the Riverside County Farm Bureau, a participant in theStephens kangaroo rat HCP echoed this sentiment. “Wecan say that we had a lot of accessibility to the process bythe public.…But if we look at how it all came out in thewash, it didn’t matter. There’s a healthy number of folksthat feel like their public input was wasted—that it wasnothing but window dressing.”

Clearly, pleasing everyone, especially single-issue interestgroups, can be difficult given the complex nature of HCPagreements and the biological requirements of the ESA.As Chuck Turley of the Washington DNR suggested,“There’s a difference between providing someone anopportunity to comment and making some sort of up-front guarantee that you’re going to do everything theyrecommend.” Neither the law nor FWS policy requiresthe applicant or the Service to change HCPs based onpublic comments. And except in unusual cases where theapplicant and Service prepare an environmental impactstatement (EIS), the FWS’s public participation policydoes not require the applicant or Service to respond topublic comments.

However, unmet stakeholder expectations can lead todisappointment and dissatisfaction. For example, failureto acknowledge and respond to public comments canfuel outside stakeholders’ impressions that applicants andthe FWS ignore their comments. Furthermore, theFWS and applicants can create expectations that publicinput will be incorporated into an HCP, which leads tofrustration when comments are not addressed. As MikeCollins of Plum Creek observed: “If you are going tomake [your HCP] available to the public and they aregoing to comment on it, then you really have an obliga-tion to respond to what they say. There is a tradeoff ofmaking information more available but creating amonster in terms of being able to manage the resultsthat you get.” Applicants trying to improve their imageor curry public favor should be wary of promising mean-ingful public participation if they do not intend torespond to public concerns.

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Independent Scientific Peer Review

Involvement of Independent Scientists

Level of Independent Science in HCPs

Our analysis indicates that outside stakeholders aremore satisfied with the HCP planning process whenHCPs have early and consistent public participation,involve advisory committees, and use independentscientists. Furthermore, outside stakeholders’ satisfac-tion with HCPs increases when they are able to partici-pate more intensively—to work with others to developa plan rather than provide feedback on a plan.Similarly, the less involved a group is in the negotiationprocess, the more opposed to the HCP they tend to be.This suggests that outside stakeholders may be moresatisfied with future HCPs if they are able to partici-pate earlier and more consistently in the process.Unfortunately, this is not the norm.

While outside stakeholders are generally dissatisfied withthe HCP process, FWS staff believe that they are veryresponsive to public concerns. An amazing 94 percent ofFWS survey respondents reported that their final HCPagreement responded very effectively or moderatelyeffectively to the concerns and interests of outside stake-holders, including those not actively involved in theplanning process. This wide difference in groups’ satis-faction is also evident in our case studies. For example,when asked to rate their satisfaction with the

Washington DNR HCP, both the FWS and the DNR(the applicant) gave the final HCP a 4 on a scale of 1 to5, with 5 being very satisfied. Environmentalists,however, ranked the final plan as a 2 and Bob Dick ofthe Northwest Forestry Association asked, “is thereanything less than a 1?”

The fact that FWS staff perceive that they respond effec-tively to public concerns while the public is dissatisfiedwith many HCPs suggests that there are real problemswith the HCP program. Either FWS staff do not expectto make significant changes to HCPs based on publicinput, or staff are not effectively communicating with thepublic about the changes made to HCPs based on theirinput. In either case, the FWS is not managing theprocess to maximize the benefits of public participation.Moreover, while stakeholder satisfaction is certainly notthe only measure of HCP success, it is an important one.The more satisfied stakeholders are with an HCP, themore likely that HCP is to protect affected species andbalance public and private interests. Unfortunately, theHCP experience to date suggests that many stakeholdersare dissatisfied with the process and that the balancebetween private interests and public trust is missing. P

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Spectrum of Outside Stakeholder Participation

Completely Completely OpenClosed Door More Groups with More CollaborativeNegotiations Non-NEPA Representatives Group Steering

(NEPA Only) Meetings of the Public Impact Group

Weyerhaeuser Plum Creek Orange County Riverside GA Safe Harbors Clark CountyInternational Paper Piping Plover WA DNR Balcones San Diego Karner blue butterfly

Kern Water BankCalifornia DWR

Spectrum of Outside Stakeholder Satisfaction9

Low Middle High

Weyerhaeuser California DWR Orange County Balcones Piping Plover Clark CountyRiverside WA DNR Plum Creek San Diego Karner blue butterfly

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O O O O O O O O O

AS ARTICULATED in the FWS’s HabitatConservation Planning Handbook, the FWS hasspecial responsibilities to Native American tribes,

states, and other federal agencies.8 Our research,however, indicates that these outside stakeholders facemany of the same obstacles to participating effectivelyin the HCP process as other stakeholders. For exam-ple, according to Patty Garvey-Darda, a Forest Servicebiologist: “Plum Creek circulated things, but onlysome, and more importantly they would not incorpo-rate our feedback. The sense was ‘here it is, but don’task questions.’ They didn’t really want us involved.”

O O O O O

Native American tribes share similar experiences. Theenvironmental impact statement for the WashingtonDNR HCP describes significant efforts to incorporatethe interests of tribes, and one FWS contact felt that“tribes were catered to a bit on this project.” Yet,according to Terry Williams of the Tualip Tribe, “thetribes were left out of the planning process.” Indeed, anumber of tribes recently filed a notice of intent to suethe DNR over the HCP. Mike Collins of Plum Creekexplained a similar difference of perceptions in thePlum Creek HCP by saying: “No one translated theHCP into the issue that concerns the tribes the most,and that is treaty rights. We thought more in terms ofconsidering their interests biologically, but to expand to the bigger issue of treaty rights—we missed it.”

Tribal, State, and Federal Agency Involvement

THE FWS’s policies and attitudes limit HCP partic-ipants’ ability to capture the full benefits of publicparticipation. The Service sends its staff conflicting

messages about the importance ofpublic participation relative toother agency priorities, such asstreamlining the planningprocess, securing HCP agree-ments, and being flexible advisorsto applicants. Indeed, we foundsignificant evidence that theFWS prioritizes other goals abovepublic participation.

For example, Service policy state-ments promoting public participa-tion are vague and unenforceable,while policies that limit participa-tion are specific and effective. The FWS’s HabitatConservation Planning Handbook (Handbook) directs staffto “encourage” applicants to involve outside stakeholderslike federal and state agencies and to use steeringcommittees or other means to involve interested partiesin HCPs.10 We found little evidence to suggest that thisvague policy is leading to meaningful public participation.

In fact, the FWS has several specific policies that under-mine effective participation. FWS staff are under pres-sure to meet Service-imposed approval deadlines, such asthe target permit processing times outlined in theHandbook.11 These deadlines limit stakeholders’ ability toreview HCPs thoroughly and the FWS’s ability torespond effectively to public input.

For example, despite receiving more than 34 lettersasking for a comment period extension in the OrangeCounty Central-Coastal NCCP/HCP, the FWS andthe applicant denied the request because of a previouslynegotiated deadline. In the Plum Creek HCP, theEnvironmental Protection Agency (EPA), ForestService, and Washington Department of Fish andWildlife (DFW) felt constrained by the limited time to

review documents. Dave Whipple of the DFW stressedthat Plum Creek had defined a specific timeline and “insome instances we ended up without enough time to

review things thoroughly.”

Other HCP policies also limitpublic participation. For exam-ple, the FWS’s policies of cate-gorically excluding “low effect”HCPs from NEPA review andrecommending that applicantsprepare environmental assess-ments (EA) instead of environ-mental impact statements (EIS),which require more publicdisclosure and involvement,sends the message that publicparticipation is not a high

agency priority.12

The FWS also follows a satisfied customer approach toworking with applicants, which places a high priority onmeeting the needs of applicants and securing HCPagreements. The Service has been encouraged to takethis approach from several sources. Government“reinvention” efforts have encouraged agencies to focuson customer service. The Clinton Administration hasalso defended the ESA by using HCPs to show that theAct can be used to balance species protection and devel-opment. Indeed, in response to national and local pres-sures, the Service has deferred more to applicants inorder to develop a constituency of satisfied applicantsand increase the number of HCPs.

Numerous respondents told us that these dynamicsreduce the power of outside stakeholders and FWS staffand give applicants excessive control over the process. Asa FWS biologist working on numerous HCPs said: “Wehave been bombarded from above with this sort of can-do attitude—to get out there and work with the appli-cant and get some product on the market. Anything thatdelays that or makes it more difficult is not viewed

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Problematic FWS Policies and Attitudes

O b s t a c l e s t o P a r t i c i p a t i o n

Four Key Obstacles

• Problematic FWS policies and attitudes.

• NEPA as a public participation process.

• Ineffective management of HCP negotiations.

• Fear of public participation.

TOGETHER, ESA, NEPA, and state environmen-tal laws such as the California EnvironmentalQuality Act require applicants and the FWS to

disclose proposed activities and their potential impacts,consider a range of alternative actions, and accept publiccomment on those actions.

The Service typically notices receipt of an HCP applica-tion in the Federal Register and then conducts at least a30 to 45 day comment period on NEPA and ESA docu-ments depending on whether an environmental assess-ment (EA) or more extensive environmental impactstatement (EIS) is being prepared. If an EIS is beingprepared, the Service and applicant also conduct a scop-ing period early in the planning process to identify issuesto be addressed in the EIS.

The law does not require the FWS to incorporate publiccomments into an HCP or make decisions based onpublic comments. Instead, the Service reads publiccomments, makes a final decision to approve or rejectthe HCP, prints its decision in the Federal Register, andin the case of an EIS, publishes a record of decision andfinal EIS.

The law provides the FWS with significant discretion toshape its own public participation policy. However,rather than using the law’s flexibility to craft effectivepublic participation processes, the FWS interprets thelaw narrowly and focuses on explicit disclosure andcomment period requirements.

The Service encourages applicants to pursue the bareminimum in NEPA documentation and comment periods. For example, it encourages applicants to pur-sue EAs or “mitigated EAs” instead of more extensive

EISs.13 Only EISs include an analysis of alternativeactions and a response to public comments.

Some HCPs receive no public review. HCPs deemed“low effect” by the FWS can be categorically excludedfrom NEPA review. These HCPs are not necessarilysmall. For example, the FWS recently determined thatthe 400,000 acre Gulf States Paper Corporation HCPwas a “low effect” HCP that could be excluded fromNEPA review.14

The FWS also grants much of its discretion under thelaw to applicants. According to the Service, the develop-ment of an HCP “is considered a private action and is,therefore, not subject to public participation or reviewuntil the Service receives an official application.”15 Asoutlined in the FWS’s Habitat Conservation PlanningHandbook (Handbook), FWS staff are directed to“encourage” but not require applicants to provide forpublic participation beyond that explicitly required bythe ESA and NEPA.

The Handbook makes special mention of encouraging the development of stakeholder advisory committees and the involvement of other federal and state agenciesand Native American tribes. It also outlines a number of suggestions for making committee processes functionmore effectively. While this is sound advice, we foundthat FWS staff do not make public participation a highpriority with applicants. In most HCPs, the vagueencourage-but-not-require policy fails to lead to mean-ingful public participation. In fact, in most HCPs, theNEPA and ESA comment periods are the sole publicparticipation mechanism. P

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The U.S. Fish and Wildlife Service’s Public Participation Policy

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O b s t a c l e s t o P a r t i c i p a t i o n , continued

favorably. The whole concept of customer service hasbeen really stressed with the applicant being consideredthe only customer.”

While streamlining the process is a valid goal, the publicmust remain an important customer too, and its interestsmust be represented in permitting decisions.Unfortunately, many in the FWS view public participa-tion as a procedural burden rather than an opportunityto improve its negotiating position or develop betterHCPs. Indeed, many see public participation simply as alegally required step in an approval process that must becompleted as quickly and effortlessly as possible.

FWS staff are also left to decide for themselves how tobalance guidance that they be advisors to applicantswithout being “rigid dictators.”16 We found littleevidence to suggest that FWS staff make encouragingpublic participation a high priority with applicants. Wealso found that staff have low expectations for makingchanges to HCPs based on public input. Peter Cross, aFWS field director, summarized his interpretation ofFWS policy by saying, “The FWS doesn’t think it’sproper to dictate who an applicant should or shouldn’tinvite to attend.”

The Service’s narrow view of public participation partlyreflects its history and capabilities. The FWS facesstaffing and other resource shortages, and deadlines limitthe staff’s ability to effectively involve the public. TheFWS has years of experience as a regulatory agency, buteffectively managing HCPs and other cooperativeconservation programs requires staff to use new tech-niques, work with new constituencies, and balance morecomplex issues than it has in the past. Unfortunately,many HCP staff do not have effective collaborative deci-sion-making or negotiation skills. Indeed, 59 percent ofFWS survey respondents reported that they did not havepublic participation training. FWS staff also work in acomplex legal environment defined by statutes like theFederal Advisory Committee Act, which makes themeven more wary of dealing with outside stakeholders.

Ultimately, the Service’s approach undermines the effec-tiveness of the HCP process. To improve the HCPprogram, the FWS should carefully review its internalpriorities and improve its policies. P

O O O O O O O O O

NEPA provides important access for outside stake-holders into the HCP decision-making process. But thedynamics of the negotiation processused to design HCPs are ill-matched tothe opportunities that NEPA providesfor public participation. Thus, NEPAprovides a necessary but insufficientapproach to public participation inhabitat conservation planning.

The NEPA process was designed toprovide the public with informationabout project objectives, alternativeactions, and environmental effects. Indoing so, it can provide a consistentvehicle for public disclosure and comment on nearlyfinalized HCPs, which is especially important when anHCP has been negotiated by landowners and the FWSbehind closed-doors. NEPA also gives the public animportant opportunity to file formal comments onproposed HCPs. Finally, because it is required and insti-tutionalized, NEPA creates benchmarks that help stake-holders gauge the progress of the planning process.

However, NEPA was not designed to facilitate publicparticipation in the negotiations that take place in thedevelopment of most large-scale HCPs. The timing ofcomment periods on NEPA documents is particularlymismatched with the dynamic decision-making thatoccurs in HCP negotiations. NEPA provides for scopingperiods early in the planning process when an EIS isprepared and comment periods on ESA and NEPAdocuments at the end of the planning process wheneither an EIS or less extensive environmental assessmentEA is prepared.17 However, in HCP negotiations, keydecisions tend to be made iteratively throughout theprocess. Indeed, most key HCP decisions are negotiatedafter the NEPA scoping process (if an HCP has one,and most do not) and well before the comment periodon ESA and NEPA documents. As a result, unless theyare involved in a committee process, outside stakeholdersdo not typically have an opportunity to participate in theplanning process when key decisions are being made.

This timing problem is magnified by the dynamics ofHCP negotiations, which can be intense, involved, and

protracted. Over time, issues becomeincreasingly interconnected, andnegotiators become vested in specificelements of the agreement and reluc-tant to unravel tentative agreements.Several FWS staff indicated that oncea planning process is underway, everyplan provision becomes hinged toevery other. As Bill Vogel of the FWSexplained “an HCP becomes like ahouse of cards where you don’t wantto risk altering too much for fear thewhole structure will collapse.” By the

time ESA and NEPA documents go out for publicreview late in the planning process, negotiators areincreasingly unlikely to change tentative agreements evenif new information is discovered or legitimate concernsare raised during the comment period. As Ruth Siguenzaof the EPA said: “The culture of [NEPA and HCPs] isa very rough fit. NEPA alone is not a very effective toolwhen it comes to HCPs in terms of affecting changesthat come out of the whole process. I have seen folks atthe FWS go back to the negotiating table after NEPAbut it is very hard to do that.”

FWS staff are also reluctant to make significant substan-tive changes to HCPs because they do not want toprepare supplemental NEPA documents. Applicants canuse this reluctance to their advantage and out-negotiateFWS staff. As a FWS staff person acknowledged: “Thepolitical pressures got pretty nasty. Because the publiccomment period had already occurred, there wastremendous pressure brought on us not to change theHCP too much. People said, ‘If you change it too much,you’ll have to do a supplemental EIS.’”

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NEPA Is Not Enough

“Once you get to the draft

EIS they have already cut

the deal. At that stage, you

can’t really do too much to

the document.”— JIM MATTHEW

Fisheries BiologistYakima Indian Nation

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Similarly, as the planning process nears completion,negotiators become increasingly less open to scientificinput that challenges tentative agreements. Indeed, theburden of proving that there are scientific problems witha negotiated agreement can shift away from the appli-cant and the FWS and onto independent scientists andinterest groups concerned with HCP provisions. In thePlum Creek case, Dave Whipple of the WashingtonDFW said, “We had to prove that what Plum Creek wasproposing was bad, not necessarily that they had toprove what they were proposing was good.”

The mismatch between the NEPA process and the char-acter of HCP decision-making can be extremely frustrat-ing to outside stakeholders who often invest significantamounts of time reviewing, commenting, and trying toinfluence HCPs at the end of the process when theircomments are less likely to be useful or incorporated intothe HCP. Our case study and survey results indicate thatpublic participation before the comment period on ESAand NEPA documents results in more substantivechanges to HCPs than participation during other phasesof planning or implementation. Yet we also found thatinterest groups tend to be more involved during thecomment period on ESA and NEPA documents thanduring any other planning phase.

Outside stakeholders also expect their input to be incor-porated into the plan, and when it is not, they tend to bedissatisfied and unsupportive of the process and resultingHCP. According to Timothy Neely, the county plan-ning administrator involved in developing the OrangeCounty Central-Coastal NCCP/HCP: “The problemwas people felt they had already missed the point toreally affect the plan and that the decisions were alreadymade [by the point of the NEPA comment period]. Alesson we learned was the need to do more public work-shops before the comment period—when it was easier tomake adjustments.”

Although outside participants understand the legalimportance of filing written comments for the publicrecord, some outside stakeholders have also learnedstrategies for dealing with these dynamics. DaveWhipple of the Washington DFW reported: “What Ilearned is to be super prepared. If we don’t comment orhave feedback when something is presented they willtake it for approval. Silence is really consent in thesearenas.” Other outside stakeholders push for advisorycommittees to be created as a vehicle for providing inputthroughout the negotiations. Others design innovativeways to provide comments that are difficult to ignore.For example, environmental groups concerned about theWeyerhaeuser Willamette HCP commissioned twoscientific review panels to analyze the HCP.

Mismatch Between HCP Decision-Making and Timing of the NEPA Process in a Typical HCP

By itself, NEPA also fails to facilitate active communi-cation among the parties interested in an HCP. InHCPs with broad public support, stakeholders oftenbuild personal relationships and open new lines ofcommunication with other participants. These lines ofcommunication help build trust among the participants,dispel misinformation, and open new opportunities forcooperation in the future. But the NEPA process—withits focus on written documentation—does not facilitatethis type of cross-party communication. As RichWininger of Weyerhaeuser said: “A lot of commentscame out of NEPA. With many, we thought we couldhandle or answer them, but that is not our job. Onceyou go through public comment, it is the Service’s jobto respond and the applicant isn’t supposed to beinvolved. It’s frustrating. I don’t think a lot of environ-mental groups realize all the things that we have sinceworked through and resolved.” In an effective process,the lines of communication would be open so that theinterested parties would know about these types ofchanges and might actually be working with the appli-cant to craft them.

Designing a reasonable range of alternatives, as requiredby NEPA, is also difficult in many HCPs. As RuthSiguenza of the EPA said, “What is quirky about HCPsis that because they are voluntary and negotiated, it ishard to come up with three or four reasonable alterna-tives as the process leads you to some sort of settlement.”Tony Metcalf of the San Bernardino Audubon Societysimilarly complained of the Riverside Stephens kangaroorat HCP: “If you look at the various alternatives thatwere proposed by the environmentalists, you don’t seethem anywhere. The only thing that comes even close,unfortunately, is a ‘no project’ alternative which nobodywas really happy with.”

Although the FWS and applicants have adequate roomwithin the guidance of NEPA and the ESA to craftprocesses that provide more opportunities for effectivepublic participation, they rarely do so. As currentlyapplied, the formal public participation process ismisleading to outside stakeholders and an unsatisfactorydecision-making process. P

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O O O O O O O O O

APPLICANTS and the FWS have also structuredand managed individual HCPs in ways that fail tocapture the full benefits of public

participation. Research and experiencein other natural resource decision-making arenas suggests that managersof effective negotiations design dynamicprocesses in which stakeholders shareinformation about their interests andconcerns, test the validity of competingtechnical arguments, develop trustthrough face-to-face interaction, andwork together to find creative andacceptable solutions to problems.18

They also ensure that participants’ rolesare well defined, the agenda and scopeof the negotiations are defined early inthe process, all legitimate interests arerepresented, and participants have anincentive to be involved in a good-faithmanner. In our research, we found anumber of examples where theseelements of an effective process are notincorporated into HCP negotiations.

Managing effective negotiations requires a differentapproach than the traditional public participationapproach that most HCPs follow. Most HCP negotia-tions are not structured so that the outside stakeholdersconcerned about an HCP can continue to communicatewith and learn from each other throughout the planningprocess. As Jim Fries of The Nature Conservancy ofTexas commented on the traditional nature of the processin the Balcones Canyonlands HCP: “The public partici-pation process allows people who already have precon-ceived positions to continue to state them and argue forthem, not to adjust their positions based on new informa-tion. That’s a real deficiency. I don’t think it’s a dynamicor real iterative process; it’s a real static process.”

There is often confusion during HCP development aboutthe role of certain stakeholders, particularly the role of

FWS staff. For example, in theRiverside Stephens kangaroo rat HCPand the Balcones Canyonlands HCP,Service staff initially took a hands-offapproach while participants expectedthem to provide more guidance. AlanGlen, a committee member represent-ing the Greater Austin Chamber ofCommerce, said of the Balcones HCP,“There was confusion about whetherthe FWS was really a participatingmember or whether they were aresource for the committee.” In bothHCPs, the resulting misunderstandingled to significant frustration on thepart of participants.

While the FWS officially defines itsrole in steering committees and otherHCP processes as that of a “technicaladvisor,”19 in a more effective processit would play a host of different roles.

At various times throughout HCP negotiations, FWSstaff may need to act as experts, facilitators, leaders,stakeholders, and final decision-makers. These roles aredifferent from those played in traditional regulatorydecision-making processes and will require FWS staff tolearn new skills. These roles should also be articulatedclearly and repeatedly to other HCP stakeholdersthroughout the planning process.

With few exceptions, the public has little role in negoti-ating the agenda or scope of HCP planning processes,even though the scope and agenda have a significanteffect on the shape of final HCP agreements. More typi-cally, applicants, acting to varying degrees with the FWS,determine the basic scope and agenda of planning

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Ineffective Management of HCP Negotiations

“The public participationprocess allows people whoalready have preconceivedpositions to continue to statethem and argue for them, not to adjust their positionsbased on new information.That’s a real deficiency. Idon’t think it’s a dynamic orreal iterative process; it’s areal static process. ”— Jim Fries

The Nature Conservancy of Texas,Balcones Canyonlands HCP

processes. This leads to frustration and, at times, distrustamong stakeholders. For example, in negotiating thescope of the Orange County Central-CoastalNCCP/HCP, the primary negotiating parties excludedfrom the negotiation a major toll road thateventually bisected a key HCP reserve andat the end of the process included acontroversial development project locatedaway from the main permit area. Interestgroups and the public tried unsuccessfullyto affect these decisions. In particular, thelast minute addition of the developmentproject damaged trust among thoseinvolved in the HCP. Dave Harlowe, anassistant FWS field supervisor working onthe project, said, “In the long run, this oneissue really hurt us in terms of understand-ing and support.”

Delays and other problems arise whencritical outside stakeholders are notincluded in the planning process. Theexclusion of a critical viewpoint from anadvisory committee can undermine the legitimacy of acommittee, lead to increased controversy and litigation,and prevent plans from being implemented. For exam-ple, according to Ralph Costa of the FWS, the appli-cants for the Georgia Safe Harbors HCP chose membersfor its steering committee “just by intuition and a lot ofknowledge about the players.”

The committee included an environmental representativefrom the Georgia Wildlife Federation, but it did notanticipate needing a national environmental group repre-sentative. After the HCP was released in draft form,national environmental groups raised serious concernsabout the plan and successfully delayed approval of thefinal HCP. Similar problems can arise when advisorycommittee members do not represent the positions oftheir organizations or claim to represent interests they donot actually represent.

HCP negotiations can also bog down because importantparticipants do not have the incentive to begin negotiat-ing or make hard choices. Paul Selzer, the facilitator inthe Clark County HCP, described that highly collabo-

rative process as a “balance ofterror.” He further stressed: “Theprocess works only when everymember [of the steering commit-tee] is convinced that the productwill be the best available alternativeat that time. So the challengebecomes finding that alternative sothat they become convinced overtime that it is better to participatethan fight.”

For example, in the Orange Countyand San Diego HCPs, the listing ofthe California gnatcatcher and thethreat of development restrictionsgave certain parties more incentiveto move the planning processesforward and made the HCP ripe

for negotiation. Designers of the piping plover HCP inMassachusetts failed to thoroughly consider the incen-tives facing the beach managers whom they wanted toapply for coverage under the HCP. Only one beachmanager applied. According to Susanna von Oettingen ofthe FWS: “Because the HCP was so restrictive, most ofthe beach managers didn’t want to bother. Too muchwork for not enough payback.”

Planning process organizers are not always sensitive tothe needs of certain participants. For example, AnnDeBovoise, an individual landowner affected by the SanDiego MSCP Plan, complained that important workinggroup meetings took place in the middle of the day,which made them inconvenient and burdensome toattend. Allison Rolfe of the Southwest Center forBiodiversity, among others, complained that meetingswere poorly advertised and getting on mailing lists wasdifficult. Moreover, while the San Diego working groupregularly accepted public comments, it did so at the endof its meetings, which often lasted two or three hours.

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“[The FWS] were sup-posed to be the authoritieson how much is enough….The whole process of theplan was like trying toconstruct something in apitch black room and some-body saying you’re kind of close. ” — KRISTI LOVELADY

Riverside County Habitat Conservation Agency


Advisory committees present unique challenges tomanaging a multi-party planning process. For example,in the Balcones HCP, participants acknowledged thatemploying a consistent, neutral facilitator may haveimproved the process. Facilitators can keep lines ofcommunication open and ensure that the process isdesigned to build trust among parties. They can alsokeep the process moving forward by defusing conflictand promoting cooperation and compromise. InBalcones, two interviewees spoke of decisions oftenbeing made “behind the scenes” in unofficial meetingswith only a select group in attendance. Other committeeparticipants disputed this, but the distrust of those whobelieved the process was unbalanced and unfair may havebeen alleviated if an experienced facilitator had helpedthe Balcones committee set up ground rules andcommunicate about the activities of its members.

Outside stakeholders often do not have the resources toparticipate as effectively in the planning process as theywould like. This can lead to nonparticipation by impor-tant stakeholders, significant power differences amongparticipants, and approval delays. In particular, indepen-dent scientists currently have few professional or financialincentives to participate in the HCP planning process.Landowner Ann DeBovoise stressed: “It was irritating tolook around and see all these people who were gettingpaid to do this, especially when their decisions affect ourland and a lot of other people. To participate and protectour interests took all of our spare time, evenings, andweekends.” In the Riverside HCP, environmental repre-sentatives had a particularly difficult time attending HCPmeetings because they were all volunteers.

Both the applicant and FWS staff complained thatdelays occurred in the Plum Creek HCP because theNational Marine Fisheries Service (NMFS) did not havethe resources necessary to participate effectively in theplanning process. As Mike Collins of Plum Creekstressed: “The biggest frustration I had was that NMFS

was a partner in this process in theory only. In practice,because of severe staffing limitations, they were not ableto participate as a true partner. They sometimes inter-vened at points when we thought we had an agreementwith the government. We assumed because of theirabsence at meetings that the FWS was speaking for bothof them, which it couldn’t.”

Applicants and the FWS can also have difficulty gaugingthe public’s level of interest in an HCP at the outset ofthe planning process. In a number of our cases, appli-cants and the Service tried to involve the public early,during the scoping phase of the planning process, onlyto find little public interest in their efforts. In some ofthese cases, the applicant and FWS assumed that lowturnout or minimal controversy at early public meetingsjustified fewer or no public meetings later in the process.In the Plum Creek HCP, this assumption added topublic frustration with the HCP. Several dissatisfiedparticipants reported that while Plum Creek offeredthem a number of opportunities to air their concernsearly in the process, it was not very responsive to theirconcerns later in the process. As Charlie Raines of theSierra Club said, “Plum Creek and the Service startedwith this big splash that didn’t bring them much, and solater on they rationalized ‘let’s just get these documentsout: these meetings are a waste of time.’ ”

As the examples illustrate, applicants and the FWS donot always manage negotiations or public participation aseffectively as they could. HCPs are a different decision-making environment than traditional FWS regulatorydecision-making. In these differences lie the greatpotential for HCPs to balance public and private inter-ests, but only if HCP dynamics are managed more effec-tively on-the-ground. Indeed, a greater understanding ofthe dynamics of the negotiation process and how tomanage public participation could go a long way toimproving HCP planning. P

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THE BENEFITS of public participation are also notrealized in the HCP planning process becauseapplicants, the FWS, and outside stakeholders fear

the burdens of public participation.

Developing an HCP takes significanttime and resources, especially given thecomplexity of most HCPs. Most inter-viewees reported that public participa-tion adds to the cost and length of theplanning process even if it providesother benefits. Applicants who havesignificant investments at stake in anHCP are legitimately concerned aboutdelays and the costs of responding topublic demands. As Bruce Beckett, aWeyerhaeuser representative stated:“The HCP effort is going to die underits own weight. The more the FWSburdens the process down, the less will-ing people are going to be to enter it.” FWS policies andpractices echo concerns that active public participationwill scare away potential HCP applicants.

Outside stakeholders may also not have the interest orresources to participate in an HCP. Participating in anHCP can have high opportunity costs, and stakeholderscan grow frustrated if they feel applicants are not seri-ously addressing their concerns. Some are concerned thattheir involvement will lend credibility to an inadequateHCP. National Audubon’s A Citizen’s Guide to HabitatConservation Plans recommends that activists “carefullyevaluate the time required to fully participate, as well asthe limits of such participation.…If participation doesrequire some measure of support for the final plan, or arole in negotiating the plan itself, conservationists shouldthink carefully before agreeing to participate.”20

While developing an effective public participation processcan be challenging, our analysis suggests that applicants,the FWS, and the HCP benefit significantly by making

public participation more meaningful.As the facilitator in the Clark CountyHCP, said: “We worked out differ-ences without imposing solutions.This is a longer process and moreexpensive—but it works.”

Different HCP applicants and stake-holders have different needs, andthere is no one-size-fits-all approachthat works for everyone. Indeed, notevery applicant should pursue a multi-stakeholder HCP negotiation like theClark County HCP. Meaningfulparticipation may mean forming anadvisory committee with a clearlydefined mission that educates key

stakeholders about HCP trade-offs or calling stake-holders to discuss their input. Outside stakeholdersshould approach applicants by demonstrating their valueto the process. What do they have that applicants want,and how can applicants meet the group’s interests andstill meet their own needs?

This all takes time and effort. Still, our research suggeststhat increasing communication early in the process,seeking input within clearly articulated parameters, andworking face-to-face with others to solve problems, paysoff handsomely in terms of increased credibility, trust,relationships, and support. As such, we strongly encour-age applicants and the FWS to explore ways to maketheir policies and practices more effective. P

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Fear of Public Participation

“Public participation is anuisance. It is a pain in thebutt. It slows things downand it can be difficult to deal with divergent views.But at the same time, it is a nuisance worth dealingwith, as it results in a better product.”

— FWS STAFF BIOLOGIST


R e c o m m e n d a t i o n s

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Policy Recommendations: Making Public Participation More Meaningful

Policy RecommendationsExpand Participation Policies and Proceedures

1. Require HCPs with major effects to be

guided by a public advisory committee.

2. Require new public disclosure and comment periods throughout the HCP process.

3. Extend NEPA comment periods.

4. Eliminate target processing times.

5. Clarify the “maximum extent practicable” standard and document its determination. Expand independent science.

Expand Independent Science6. Facilitate the involvement of independent

scientists in all HCPs with major effects. Develop regional HCPs.

Develop Regional HCPs7. Encourage local governments to pursue

programmatic HCPs. Create new incentives.

Create New Incentives8. Create a grant program that encourages

public participation.

9. Acknowledge the public’s right to enforce HCP agreements. Enable FWS and applicants.

Enable FWS and Applicants10. Increase funding to hire and train additional

HCP field staff.

11. Redirect staff to encourage applicants to pursue expanded public participation.

12. Provide HCP staff with public participation and negotiation training.

13. Create a public participation resource team to help design effective planning processes.

14. Make HCP information more readily accessible to the public.

Expand Public Participation Policies and Procedures

1. Congress and the FWS should require that HCPswith major effects be designed and guided by anadvisory committee that includes outside stake-holders.

Steering or advisory committees can provide a struc-ture that enables participants to get involved earlierand more consistently in the development of HCPs,thereby helping to capture many of the benefits ofpublic participation. Committees that include allaffected outside stakeholders, including independentscientists, interest groups, and members of the public,can find innovative ways to solve problems, streng-then relationships among stakeholders, and developplans that are more biologically and politically viable.HCPs with major effects include those with signifi-cant impacts on species, public lands, or publicfinances or significant public demand for inclusion in the HCP process.

2. Congress and the FWS should build new publicdisclosure and comment periods into the HCP plan-ning process. These periods can be held periodicallyor at trigger points in the planning process. AllHCPs should require public scoping under NEPA.

Public participation must be better structured to deal with the dynamics of the negotiation process. In particular, the process must consider the on-going nature of HCP negotiations and the strongdisincentives to change tentative agreements oncethey have been made. Comment periods on ESA andNEPA documents, as they are currently imple-mented, generally come too late in the process.

Comment and disclosure periods would be moreuseful if they occurred throughout the HCP negotia-tion process. As such, all HCPs, including those thatonly require an EA should hold scoping periods.Other trigger points for public disclosure andcomment should also be added. These points could bestructured for each planning process and be negoti-ated by stakeholders early in the process.

Points for review might include:

(a) after completion of draft and final conservation strategies or reserve designs,

(b) directly before the preparation of NEPA docu-ments (i.e., the project has been designed and alternatives can be evaluated), and

(c) after applicants submit their application to the FWS.21

The FWS could deem these additional requirementssatisfied for applicants using advisory committees.

3. NEPA comment periods should be extended to aminimum of 90 days for steering committee HCPsand 120 days for all other HCPs.

Many members of the public find current commentperiods prohibitively brief, especially considering thecomplexity and risk associated with HCPs. As such,the length of comment periods on ESA and NEPAdocuments should be extended. Having comparativelyshorter comment periods for open steering committeeprocesses could provide an incentive for applicants toincrease public participation. Presumably, outsidestakeholders involved in an HCP with a committeeprocess would also be more knowledgeable about theHCP and better able to comment quickly on it.

4. The Service should eliminate target processingtimes in its HCP Handbook.

These deadlines send the message that efficiency ismore important than public participation and putpressure on agency staff to speed through the NEPAprocess and their review of the HCP application.

5. The Service should develop criteria used to evaluatewhether an applicant has mitigated take to the“maximum extent practicable” and explicitly docu-ment its determination of this standard in NEPAdocuments for all HCPs.

Before the FWS can approve an HCP it must deter-mine that the plan will mitigate the take of endan-gered species to the “maximum extent practicable.”This approval standard is not very well defined,however, and FWS staff have significant discretion todetermine its meaning in individual HCPs. In casesof scientific ambiguity, applicants often limit publicdisclosure and participation in their HCPs becausethey fear that public input will cause the FWS tointerpret the standard to their disadvantage. As BruceBeckett of Weyerhaeuser said, “When you don’tknow what you are shooting for, your distrust amongparticipants increases.” Moreover, the public oftendoes not have access to the information or logic theFWS uses to make its determination of this impor-tant standard. The standard should be clarified, andthe evidence supporting the FWS’s determinationshould be made available to the public.

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R e c o m m e n d a t i o n s , continued

O O O O O O O O

Expand Involvement of Independent Scientists

6. The Service should facilitate the involvement of independent scientists in all HCPs with major effects.

The involvement of independent scientists benefitseveryone. It helps clarify how regulatory standardswill be interpreted in individual HCPs, makes thedecision-making process more credible and efficient,and provides applicants with greater certainty. It mayalso help bolster the negotiating position of FWSfield staff.

In HCPs with major effects, FWS staff should workto ensure that independent scientific review happensearly and consistently as HCPs develop, particularlyafter baseline data collection and analysis arecomplete. Funding to implement this recommenda-tion is critical. One approach would use a blind trustarrangement with funds provided by the governmentor the applicant. To keep the process independent,the Service should coordinate selection of scientists inconjunction with professional societies and otherfederal and state agencies. Scientists involved withrelevant recovery and other scientific plans should beincluded. The comments of independent scientistsshould be made available to the public, perhaps on ananonymous basis.

Encourage Development of Regional HCPs

7. The Service should encourage more local govern-ments to initiate programmatic HCPs.

Rather than working with a large number of individ-ual private landowners, FWS staff should encouragelocal governments to pursue programmatic HCPs.

Once a programmatic plan is approved, the localgovernment or other public entity that holds theHCP permit provides certificates to landowners whoagree to follow the HCP’s requirements. Localgovernments often have incentive to pursue theseHCPs because they can be held liable under the ESAfor issuing building permits that result in the take ofendangered species.

There are a number of benefits associated with pursu-ing programmatic HCPs. The FWS can developproactive and broad-scale plans to protect affectedspecies. They can also better address the cumulativeeffects of development activities on ecosystems.Programmatic HCPs are also more efficient. Ratherthan participating in a number of small HCPs, FWSstaff and outside stakeholders, including independentscientists, can participate in a larger process. Thiswould also expedite the process for landowners, whowould be able to apply to their local government forthe proper certificate once the programmatic HCP isdeveloped and approved rather than applying for theirown federal HCP permit.

Programmatic HCPs are also likely to have morepublic participation because more people would beaffected by the HCP and interested in the planningprocess. Interest groups and other outside stakeholdersare also likely to invest more resources in the processthan they would in individual landowner processes.Finally, HCPs that are initiated by local governmentstypically have more opportunities for public participa-tion than individual landowner HCPs. As one localgovernment official involved in HCPs said, “Thesuccessful HCP is a government applicant HCP,because the process must be public and totally open.”

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O O O

International Paper’s Red-HillsSalamander HCP: Involving Scientific ExpertsThere was very little controversy regarding InternationalPaper’s HCP for the Red-Hills salamander, in partbecause of the company’s willingness to include scientistsin the planning process. Joe McGlincy of InternationalPaper said that he asked three salamander experts toreview the HCP the company had developed. “I couldanticipate that if we were going to get criticism, it wouldbe from these two or three people. Asking them toreview our plan made them aware of what we were doingas well as brought them on board with us.…When theHCP came out in the Federal Register for the generalpublic review, those guys had already seen it, and therewasn’t a big surprise in it for them.”

The company also contracted a highly respected scientistto perform much of its fieldwork, and had a strong repu-tation for taking cooperative steps to protect salamandersin the past—all of which helped make the HCPnoncontroversial.

Karner Blue Butterfly HCP: Expandingthe Range of Involved StakeholdersIn the Karner blue butterfly HCP in Wisconsin, thoseinvolved in the HCP divided themselves into twogroups: partners who had land or other assets at stakeand participants who were other active members of thepublic. The Wisconsin DNR sought to include as manypartners and participants as possible in the process. FredSouba of Johnson Timber Corporation credited theDNR for their work. “[Short of] actually draggingpeople to the meetings, I think there’s been an excellenteffort made to involve as many public entities and indi-viduals as possible.”

Moreover, decision-making in the process was primarilyby consensus. According to Dave Lentz, the HCP coor-dinator for the Wisconsin DNR: “it’s consensus of allparticipants—in other words, if we have a nonpartnerwho dissents on an issue, we don’t just tell them to goaway. We want them there. We want to know theirposition, we want them to try and convince us and workto great ends to do that.” In only one or two cases werepartner-only votes taken because a decision had to bemade: in all other cases the process remained consensus-based. As a result of the inclusive HCP process, severalparticipants noted improved relationships. The draftHCP is anticipated to be completed during the summerof 1998.

Weyerhaeuser Willamette HCP: InterestGroups Involve ScientistsEnvironmental groups who were excluded from thenegotiations surrounding the Weyerhaeuser WillametteHCP commissioned two scientific panels to review theplan. One panel reviewed the HCP’s aquatic protectionsand the other its terrestrial protections. The environ-mental groups then submitted the panels’ comments tothe FWS as part of their official NEPA comments. Thegroups felt that the panels provided new information andanalysis and helped depoliticize the HCP decision-making process. For a number of reasons, includingconcerns raised by the panels, final approval of the HCPcontinues to be delayed. P

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Innovative Ways To Involve Outside Stakeholders

Create Incentives to Encourage Public Participation

8. Congress or the FWS should create a grant programthat encourages public participation.

Congress should authorize and appropriate funds to the FWS to establish two competitive grantprograms. The first would support innovativeprograms for involving the public in the HCP processbeyond current legal requirements. The FWS shouldselect recipients based on criteria such as the balanceof interests represented, ease of participation, andpotential of replication.

The second grant program would support stake-holders with limited resources who want to partici-pate in the HCP process. There is precedent forfunding participants with limited resources. In six ofthe HCPs responding to our survey, either the appli-cant or the Service provided citizens with financialsupport to participate in the planning process. Also,in the negotiated rule-making model that we studied,federal agencies financially assisted participants whohad inadequate resources.

9. Congress and the FWS should explicitly acknowl-edge the public’s right to enforce HCP agreements.

Outside stakeholders may sue to enforce the ESA andmost other environmental laws. HCPs, however, lackclear outside stakeholder enforcement mechanismsand most recent HCP agreements do not acknowl-edge citizen enforcement rights. Under traditionalcontract law, this failure to either explicitly or implic-itly acknowledge the rights of outside stakeholdersmeans that they lack third-party beneficiary statusand may not be able to enforce the agreements.22

Providing outside stakeholders with the explicit rightto enforce HCP agreements, either in Section 11 ofthe ESA or in individual HCP agreements, wouldprovide more incentive for HCP applicants to addressthe concerns of outside stakeholders and include themmore meaningfully.

Enable the FWS and Applicants to Involve the Public More Effectively

10. Congress and the FWS should increase funding to hire and train additional FWS field-level HCP staff.

Currently, Service HCP staff are stretched thin,often handling multiple HCPs under significanttime constraints. The lack of adequate resourceslimits the Service’s ability to handle the scientificbasis of HCPs, let alone effectively incorporate thepublic into the process. In certain cases inadequateService resources can also contribute to significantHCP processing and approval delays. Increasingstaff funding would improve the efficiency of theplanning process.

11. The FWS should reaffirm guidance in the HCPHandbook to encourage applicants to pursueexpanded public participation.

To its credit, the FWS has included valuable infor-mation about designing an effective public partici-pation process in its Handbook. The Handbookmakes special mention of encouraging the develop-ment of stakeholder advisory committees and theinvolvement of other federal and state agencies andNative American tribes. According to theHandbook, advisory committees can help guidedevelopment of an HCP; consider appropriatedevelopment, land use, and mitigation strategies;and communicate progress to their largerconstituencies, all of which can reduce conflictsurrounding the HCP. The Handbook also outlinesa number of valuable suggestions for makingcommittee processes function more effectively.23

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While this is sound advice, we found that manyService staff are not making public participation ahigh priority with applicants. Given conflictingmessages about the importance of public participa-tion relative to other Service priorities, FWS staffneed to be told clearly that public participation is ahigh priority within the Service. Moreover, in thecase of large effect HCPs, the FWS needs torequire expanded participation.

The Service should also make information abouteffective public participation more accessible toapplicants and staff and develop literature that illus-trates the benefits of public participation. This liter-ature could include case studies of successful publicparticipation processes in completed HCPs. Staffshould distribute this literature to applicants duringinitial conversations about preparing an HCP.

12. The Service should provide HCP staff with publicparticipation and negotiation training.

Communicating effectively with the public, design-ing effective and efficient public participationprocesses, and negotiating complex agreementsrequire skills that many FWS staff do not have.Public participation training would better enablestaff to negotiate HCPs that best meet the needs ofthe species, the Service, applicants, and the public.The Service should prepare a training curriculumthat addresses communication and negotiation witha particular focus on the HCP experience.

13. The FWS should create a public participationresource team made up of individuals with HCP,public participation, and negotiation experience.

The resource team could be called to help otherFWS staff and HCP applicants design effective andefficient public participation processes or overcomeparticipation roadblocks. Drawing on field experi-ence, the team would develop an understanding ofthe factors that facilitated successful HCPs. It couldthen share this knowledge with other FWS staff andhelp them network with those who have experiencedsimilar public participation challenges. The teamcould also help staff strategize for HCP negotiations.

14. The FWS should make information about HCPsmore readily accessible to the public.

The public often has difficulty obtaining current,centralized information about the status of HCPs(both completed and in-process). To alleviate this problem, the FWS should create a publiclyaccessible, comprehensive HCP database that tracksthe progress of in-process HCPs. This databaseshould be posted on the World Wide Web andrevised often.

We also found that outside stakeholders can haveproblems obtaining key HCP and NEPA docu-ments. The FWS should require that field-levelstaff make NEPA and other documents readilyavailable to the public. To obtain copies of NEPAdocuments, those interested in an HCP shouldneither be directed to HCP consultants nor asked topay exorbitant fees. P

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O O O O O O O O O

Building Effective HCPs1. Involve the public early and consistently in

the process.

2. Form a steering committee.

3. Involve independent scientists.

4. Define stakeholders’ roles early in the planning process.

5. Tell outside stakeholders how they can help the process.

6. Use a variety of public outreach tools.

7. Hold public meetings, workshops, and field trips.

8. Make planning documents available.

9. Communicate with the public about their input.

10. Begin following existing FWS guidance.

DURING our conversations with FWS staff, appli-cants, and other HCP stakeholders and ourresearch on public participation, we heard several

consistent messages about how to design more effectivepublic participation processes.

1. Involve the public early and consistently in the process.

Early, consistent, and meaningful public participationfacilitates learning about proposed projects and thecomplexities and trade-offs of the HCP planningprocess. It also gives outside stakeholders an opportu-nity to outline their interests and concerns beforetentative agreements are reached that limit the negoti-ating parties’ ability to make substantive changes tothe HCP. Finally, early, consistent, and meaningfulinvolvement can reduce conflict surrounding an HCP,help participants begin to trust each other, and buildownership of evolving agreements. As Susanna vonOettingen of the FWS said, “I think we are gettingthe message to get the public involved and knowl-edgeable as soon as possible. The trigger point for

getting people involved should be the start of theproject. Let folks know, get the players involved.”

To involve the public throughout the process,managers may want to consider forming a steeringcommittee or accepting written comments at any timeduring the planning process. Interviewees also recom-mended distributing draft documents or newslettersthroughout the process to solicit public comments.

2. Form a steering committee.

Our research shows that outside stakeholders tend tobe more satisfied with an HCP when public partici-pation begins early in the planning process andinvolves a steering or advisory committee.Committees help participants understand the difficultissues and choices involved in designing an HCP.When managed well, they can also help establishtrust among participants and build public support forthe HCP. The steering committee’s job in theGeorgia Safe Harbor HCP was to oversee andapprove the actions of advisory subcommittees. Thesystem worked well, according to Ralph Costa of theFWS, “I don’t see how you could do a plan of thismagnitude without those committees.”

Still, committees are not a panacea. Participants haveto be given the opportunity to participate meaning-fully in the process and have their input taken seri-ously by applicants and the FWS. Participants will beunsatisfied if “Everyone at the table has an equalvoice and no power,” as Tony Metcalf of SanBernardino Audubon Society described his involve-ment in the Riverside Stephens kangaroo rat HCP.

3. Involve independent scientists.

An effective process is both technically sound andpublicly credible. Independent scientists, especiallywhen they are involved early in the process, can helpachieve both of these goals. Their involvement alsohas the potential to make the process more efficientby helping to resolve the controversial technical issuesthat often surround HCPs.

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Advice to HCP Practitioners: Making Your HCPs More Effective


Advisory committees, working groups, and steeringcommittees are particularly effective at involving outsidestakeholders in the HCP process. The mix of technicalexpertise and the collaborative process can help shapeHCPs with wide credibility and support. Practitionersoffered the following advice for making committeesmore effective.

• Ensure that all legitimate interests are represented.

The exclusion of a critical viewpoint can undercut the legitimacy of a committee and lead to increasedcontroversy, litigation, and delay. Orange County used a creative method to identify environmentalcommunity representatives: they allowed statewideconservation organizations to nominate environmentalrepresentatives.

• Participate in committee meetings.

Because applicants and the FWS are the decision-makers in the HCP process, their active involvement in meetings gives committees legitimacy, preventsend-runs around the committee process, and providesoutside stakeholders with some assurance that theirinput will be used.

• Form subcommittees.

Subcommittees with certain areas of expertise can makethe committee process more manageable and efficient,especially when the committee is faced with complexand controversial scientific or financial issues. Smallergroups can also help build trust among participants.

• Hire a skilled facilitator.

A facilitator can help keep negotiations movingforward, encourage compromise, and expand thenegotiating pie by helping parties find creative solu-tions to problems. Participants in several HCPs,including Karner blue butterfly and Clark County,found a facilitator to be very useful.

• Work to maintain committee member continuity.

Building strong relationships among participants anddeveloping an understanding of complex HCP issuescan take a long time. Regular attendance at meetingsand continuity of committee participants helps theprocess move more smoothly. According to landown-ers involved in the San Diego MSCP Plan, continuityhelped participants move away from posturing, develop respect for divergent positions, and improvecommunication.

• Assist committee members who lack the financialresources to fully participate.

Environmentalists and other interest groups are oftenunable to fully participate because they lack adequateresources. Several of the HCPs we examined dealt with this problem by reimbursing some participants’expenses or otherwise helping these groups participate.

• Open committee meetings to the public.

Open meetings help communicate complex HCPprovisions to citizens or interest groups who are notactively involved on an advisory committee. Openmeetings can also help make the process more credi-ble. The Balcones HCP took this idea further by televising several committee meetings and giving thepublic opportunities to voice their concerns followingmeetings.

• Train committee members.

The legal and scientific issues surrounding HCPprocesses can be very complex. The more participantsknow about the legal and scientific underpinnings ofthe HCP the better. Providing negotiation skills train-ing can also help participants learn how to communi-cate their interests and participate more usefully. P

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Running an Effective Advisory Committee

4. Define stakeholders’ roles early in the planning process.

Applicants and outside stakeholders often grow frus-trated when they have conflicting expectations oftheir roles or the FWS’s role in the planning process.Defining the scope of the project, ground rules,timing of public participation, and different partici-pants’ roles in the process early in the planningprocess, can make the process more efficient and lessfrustrating. Indeed, the closer outside stakeholders’expectations are to reality, the less likely they are tobe frustrated by the HCP process.

5. Tell outside stakeholders how they can help the process.

Applicants should explain their goals with their prop-erty and HCP, and ask outside stakeholders to helpthem figure out how to meet the group’s interestswhile still meeting their goals. Many creative solu-tions have come from this approach. Applicantsshould be sure to preface their remarks by explainingtheir expectations of the relationship. Applicants cantell outside stakeholders that they do not need theirpermission to do a project, but that they want thestakeholders to be informed about it and will acceptreasonable advice if it can be accommodated.

6. Use a variety of public outreach tools.

A number of HCPs use large mailing lists, personalphone calls, or newspaper, radio, or television adver-tisements to alert the public to the HCP process.Information displays in public places, such aslibraries, may also be useful. In the Georgia SafeHarbors HCP, the FWS conducted a series ofstatewide public meetings, but attendance was low.Attendance increased considerably, however, afterthe Service advertised the meetings using newspa-pers, television, and radio.

7. Hold public meetings, workshops, and field trips.

Holding public events or targeted meetings withparticular outside stakeholders gives applicantsopportunities to solicit early feedback and to educateoutside stakeholders about their HCP vision andcertain complex HCP issues. Field trips provide aspecial opportunity to educate stakeholders and spurrelationships among participants.

8. Make planning documents available.

Outside stakeholders often have difficulty obtainingHCP documents, especially while HCPs are beingdeveloped. Some even have trouble during theNEPA comment period. The public needs easy and timely access to draft plans, ESA and NEPAdocuments, and other information to educate itselfon HCP issues and participate meaningfully in the process.

9. Communicate with the public about their input.

If changes are made to an HCP based on publicinput, let outside stakeholders know about it. Ifchanges are not made, explain to them know whythey were not. Involve outside stakeholders in craft-ing certain changes to the HCP. In many cases,public comments can be easily addressed. Involvingthe public in making those changes will build valu-able relationships and trust.

10. Begin following existing FWS guidance.

The Handbook provides a number of useful ideasfor structuring an effective HCP process, such asnegotiating in good faith, assigning experiencedstaff to large-scale or regional HCPs, including allaffected interests in the process, and paying atten-tion to stakeholders’ perceptions of the process.24

Public participation would be more meaningful andeffective if applicants and FWS staff regularlyfollowed this guidance. P

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1 L. Hood, Frayed Safety Nets: Conservation PlanningUnder the Endangered Species Act, Defenders ofWildlife, Washington, DC, 1998, p. v1.

2 FWS, Strategic Plan for 9/30/97–9/30/00, p. 20.

3 Frayed Safety Nets; P. Brussard et al., A Statement onProposed Private Lands Initiatives andReauthorization of the ESA from the Meeting ofScientists at Stanford University, April 3, 1997; G.Meffe, Letter from 169 Scientists to Senator Chafeeand Congressman Saxton, July 23, 1996; J. Kostyack,“Surprise,” Environmental Forum: March/April 1998,15(2), pp. 23–28.

4 The California NCCP program is a state programthat encourages conservation planning activities inurban southern California, with a special focus oncoastal sage scrub habitat. It was passed by theCalifornia legislature in 1991 and has been marketed(much like the HCP program) as a means to resolveenvironmental-economic conflicts over endangeredspecies on private lands. Two of the HCPs that westudied through case studies (Orange CountyCentral-Coastal HCP and San Diego MultipleSpecies Conservation Program Plan are movingthrough the HCP and NCCP processes concurrently.

5 Item includes 43 of 45 responding HCPs.Stakeholders were viewed as “involved” if FWSrespondent reported that they were moderately or veryactively involved in at least one of the following stages:before the comment period, during the commentperiod, or after the comment period.

6 Las Vegas Review Journal, November 17, 1997, p. B1.

7 M. Bean, S. Fitzgerald, and M. O’Connell,Reconciling Conflicts Under the Endangered Species Act:The HCP Experience, World Wildlife Fund,Washington, DC, 1991, pp. 66–78.

8 FWS and NMFS, Habitat Conservation PlanningHandbook, (Washington, DC, US Department ofInterior and Commerce, 1996).

9 Case study interviewees were asked to report theirsatisfaction level with the HCP process, product, andparticipation level using a scale of 1 to 5, with fivebeing very high. The HCPs at the far left of the

spectrum represent those in which all stakeholdersreported low levels of satisfaction (1–2). HCPs writ-ten in italics received high and low satisfaction scoresfrom different respondents. Interviewees for 3 casesdid not provide sufficient information to place themon the spectrum.

10 Handbook, pp. 3–8, 6–22.

11 Handbook, pp. 1–10, 1–14.

12 Handbook, p. 5–2, 5–3.

13 Handbook, p. 5–3.

14 FWS, Notice of Availability of an Application byGulf States Paper Corporation, Federal Register:63(103): 29423–29424, May 29, 1998.

15 FWS, Habitat Conservation Plans and the IncidentalTake Permitting Process.

16 Handbook, pp. 3–6.

17 ESA documents include a draft HCP and an imple-mentation agreement.

18 J. Wondolleck, Public Lands Conflict and Resolution,Plenum Publ., New York, 1988; S. Yaffee,“Cooperation: A Strategy for Achieving StewardshipAcross Agency Boundaries,” pp. 299–324, in R.Knight and P. Landres, Stewardship AcrossBoundaries, Island Press, Washington, DC, 1998.

19 Handbook, pp. 3–5, 3–6.

20 M. Minette and T. Cullinan, A Citizen’s Guide toHabitat Conservation Plans, National AudubonSociety, August 1997, p. 12

21 T. Cullinan, “Habitat Conservation Plans inIndustrial Forests of the Pacific Northwest ” End.Species Update, July/August 1997, 14(7&8) p. 31.

22 John Kostyack, “Surprise,” The Environmental Forum,March/April 1998, 15(2) p. 28.

23 Handbook, pp. 3–4, 3–5.

24 Handbook, pp. 3–4, 3–5.

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Documents

About the Study OOOOOOseas.umich.edu/ecomgt/pubs/hcp.pdf · About the Study OOOOOO U NDER the Clinton Administration, the number of landowners preparing Habitat Conservation Plans