conservation plans impose unnecessary new burdens on landowners without
corresponding benefits - Comments and analysis regarding habitat
(Note: Excellent article that, while never mentioning Language Deception, lavishly illustrates its usage and power to hurt.)
March 12, 2002
By Bob Perkins email@example.com
Monterey County Farm Bureau
Prior to becoming
executive director of Monterey County Farm Bureau, Bob Perkins served
for 22 years as executive manager of Riverside County Farm Bureau, where
he represented farmers and ranchers in stakeholder committees and
discussions of four habitat planning efforts. This is a compilation and
explanation of notes, issues and recommendations accumulated from those
habitat plan discussions. In a related commentary, he wrote about
“Challenging the ESA.” http://www.montereycountyfarmbureau.org/challenging_the_esa.htm
“I would always recommend that local government avoid habitat conservation plans and that citizens challenge adoption of habitat conservation plans until all of the issues Farm Bureau raises have been fully resolved in public debate and then only where clear and compelling need is determined.” – Bob Perkins
What’s wrong with habitat conservation plans
Local governments often
promote habitat conservation plans as a “solution” to problems
created by federal and state Endangered Species Acts (ESAs). In practice
in California, habitat conservation plans inevitably cause unprecedented
and unnecessary harm to farmers, ranchers and landowners that exceeds
the impacts of existing state and federal law. The amount of land
regulated and the total cost of a habitat conservation plan are always
underrepresented at the outset. A habitat conservation plan always takes
far longer to complete than initially promised … if it can be
completed at all. In the interim, landowners suffer increased costs and
frequently cites the “No Surprises” premise, that a habitat
conservation plan can preclude unexpected new environmental
restrictions. “No Surprises” is a fraud. The details of “No
Surprises” agreements always exclude new restrictions that weren't
specifically anticipated in the habitat plan agreement. A surprise is,
by definition, a surprise.
The only “benefits”
that may accrue can be to a large entity that faces drastic restrictions
or costs arising from presence of a listed threatened or endangered
species or a formal designation of critical habitat. Such an entity
could be an extremely large land owner (for example, a timber company)
or a utility or government agency, such as a university or water
district. For such an entity, a habitat conservation plan can shift the
entity’s costs and regulatory burdens to farmers, ranchers and other
property owners over a large area. The entity enjoys the benefit while
neighboring landowners shoulder the burden.
Local governments may
enjoy increased regulatory authority and enlarged staff but must also
bear new costs, new enforcement responsibility and significant
Habitat conservation plans directly impact farms and ranchers by regulating agricultural activities and choices, by imposing new costs and by distorting land values.
Science and Law
As burdensome as they
are, the state and federal Endangered Species Acts are law, subject to
due process, public debate, legislative change and legal remedy. They
specifically rely on scientific information to arrive at decisions. They
provide a legal process for citizens to petition to add or remove
species and to challenge listings and designations of critical habitat.
plans bypass this process of science and law. Participating local
governments choose to impose restrictions on farmers, ranchers and
landowners for species that have not been recognized through the legal
process of listing under the Endangered Species Act and to regulate land
areas that have not been designated, through the legal process of the
Endangered Species Act, as critical habitat. Farmers, ranchers,
landowners and citizens are denied the due process under the Endangered
Species Act by an unnecessary local government choice.
By including species
and habitats that have not been identified through the legal process of
listing and critical habitat designation in the Endangered Species Act,
local governments extend the reach of the Endangered Species Act without
basis in law. They do this without benefit of the deliberative course of
legislative action, and they bypass the provisions of the Endangered
Key to this problem is the simple fact that local government cannot make law that is less restrictive than state or federal law. Local government can only make law -- or impose regulations -- that are more restrictive than under state or federal law.
Local government will
be sticking its neck out a mile when it adopts a multiple species
habitat conservation plan.
A local government plan
is significantly different from existing laws and regulations imposed by
federal and state agencies. Taxpayers, landowners, citizens and voters
need to be clear on the differences:
responsibility - When the county voluntarily adopts a habitat plan, it
assumes complete enforcement responsibility, duties that ordinarily
burden the U.S. Fish and Wildlife Service and other federal agencies and
the California Department of Fish and Game and other state agencies.
This responsibility comes with enforcement costs and liability for
responsibility - When the county voluntarily adopts a habitat plan, it
assumes responsibility for the fiscal soundness of the plan, for the
funding. Despite talk of equitable sharing of the cost of habitat
protection between federal, state and local sources, the county -- or
more properly, its citizens and taxpayers -- will be on the hook for the
Liability - When the
county voluntarily adopts a habitat plan, it assumes complete liability.
All exactions, restrictions and enforcements will be under the authority
of local government, which therefore assumes all liability against
lawsuits and other challenges. This issue was resolved when a landowner
group called Property Owners Working for Environmental Responsibility
took a local government joint powers authority, the Riverside County
Habitat Conservation Agency, to court. The court ruled that the habitat
agency -- not the U. S. Fish and Wildlife Service -- must answer legal
challenges in court … and bear the cost of defending its habitat plan.
Exceeds the law - When
the county voluntarily adopts a habitat plan, it exceeds existing law.
Federal and state endangered species acts have specific applications to
listed and proposed species and for designation of critical habitats. A
county plan seeks to conserve nonlisted species that otherwise have no
legal protection and to regulate private property that has not been
legally defined as critical habitat. This excess opens the county to
additional liability when it impacts, restricts or takes private
property to preserve species that have no legal status.
Habitat conservation is
not a benign land use. It can have serious, unexpected consequences for
owners of private property.
These impacts become a
serious and long-term worry in habitat plans, which can have a span of
from 20 to 75 years to acquire and assemble habitat. A long-term plan
like this produces intermittent, piece-meal conversions of private
parcels to government-owned habitat or to dedicated habitat. No
individual property owner can know for certain when or if adjacent
landowners might sell or dedicate for habitat. This
is as troubling for land use planning as if piecemeal urban development
The conversion of
neighboring properties to habitat can trigger restrictions on
agricultural uses, on potential future uses of property, and on the
property's value. The U.S. Fish and Wildlife Service has previously
demonstrated that it views agricultural uses of property as incompatible
with habitat conservation, both on-site and on neighboring properties.
Habitat mapping creates
impacts for private property. Maps are commonly developed at the
beginning of discussion of a habitat plan, overlaying private property
without consent of the affected property owners. Regulatory agencies
such as U. S. Fish and Wildlife Service will then treat such local
government maps as hard-line restrictions. The agencies will deny
federal permits for any land use activity, affecting the private use and
the appraised value of the land.
A habitat conservation
plan can have supremacy over land management plans that have previously
gained support by property owners and local governments. Habitat plans
are generally seen as the overriding controls on land use decisions and
are generally more rigorous and restrictive than other land use plans.
When a local government
establishes a habitat conservation plan, it obtains permits for listed
species from federal and state regulators. The local government becomes
the permit holder -- not the individual property owners as required
under federal and state Endangered Species Acts. The local government
will "volunteer" its constituents to be regulated under the
habitat conservation plan. [I]ndividual landowners would have no choice.
considered in local government habitat conservation plans assume that
landowners will be forced to participate. In essence, local government
places a new burden on property owners, then offers to partially relieve
that burden as an “incentive” to cooperate.
The U.S. Fish and
Wildlife Service has made it clear that it will require that local
government habitat conservation plans treat nonlisted species as if they
are listed. The demand bypasses the legally defined listing process in
the federal Endangered Species Act.
In an example of the
policy ideas proposed under habitat conservation plans, a property
owner, seeking a building permit to build his own single-family home on
a lot designated as mountainous because of slope, would be required to
build on, for example, the 25% least-sensitive portion of the property
(as determined by government agencies) ... and to dedicate the remaining
75% as a conservation easement.
Mapped areas for
habitat conservation are extended by overlaying maps of lands restricted
for government ownership, open space designation, mountainous
designation, existing habitat reserves, natural hazards, and so on, and
by broad patches marked for potential corridors between protected areas
and for expansion of existing reserves. The mapped areas can appear so
huge that any subsequent reduction is represented as a generous benefit
Among the hazards to
owners of private property are:
commodity production: As one example, it has been suggested the
"mountainous" land use designations, where local government
limits dwellings to large acreage because of steep slopes, could serve
as habitat conservation. However, an owner of a sloped property still
might choose to plant a crop suited to hillside cultivation or to run
cattle or horses on the land or find some other productive agricultural
use. It's clear to Farm Bureau that the U.S. Fish and Wildlife Service
will not accept such activities on designated habitat. Farm Bureau
anticipates that local habitat plans could seek to restrict or prohibit
such agricultural uses on private property as a way of achieving
conservation goals without buying the land.
Restrictions on pest
control: The use and method of application of agricultural chemicals,
specifically pesticides but possibly fertilizers or any other materials,
could face restrictions when adjacent to habitat. The USFWS has already
asked for controls on pesticide use on private properties adjacent to
habitat, demanding a setback or buffer area where chemicals can't be
used and demanding that aerial application be prohibited. These demands
can impose added cost or lost income on the owner of the private
Restrictions on future
use: Future land use on a private property can be constrained when the
adjacent land becomes habitat. For instance, water discharge (ordinary
runoff) from private land development into a habitat will trigger
federal Clean Water Act provisions and add delays and costs to the land
use. Increasing federal regulation can bring new restrictions at any
time. These restrictions could constrain an owner’s use of the land to
build a home or to engage in agriculture.
Loss of value:
Appraised value of private property depends on surrounding land uses and
the anticipation of potential future use of the appraised property. When
a property is adjacent to -- or partly or entirely surrounded by --
habitat, its future potential is severely limited. Property values are
depressed by the conversion of adjacent land to habitat. This is a real
and direct harm to the asset value and creditworthiness of the owner of
the private property.
Force conversion of agriculture: Restrictions on raw land that prohibit development will, sooner or later, encourage conversion of agricultural lands to non-agricultural uses. Raw land that hasn't been cleared or leveled is a prime target for habitat conservation. Land that has been actively farmed may be a lower priority for conservation or even excluded from conservation goals. The restriction on unused land combined with availability of agricultural property that isn't restricted for habitat conservation can encourage conversion of that agricultural property. Habitat planning will force future demand for economic growth onto productive agricultural land. As agricultural acreage and production diminish, the volume of agriculture may shrink. It can lose the critical mass that supports an agricultural infrastructure of labor, processing, transportation, equipment and supplies. Excessive habitat demands are far more likely to spell the end of agriculture than is economic and urban growth.
As one Farm Bureau manager in a rural county put it, “We don't have a problem with urban sprawl; we have a problem with conservation sprawl.”
The questions of who
pays, and how much, are recurring issues in all habitat plans. Typically
the dollar cost shifts to “new development” -- where it is
ultimately paid by new businesses and by new home buyers.
ignores the question of nexus, the connection between the impact of a
land use on habitat and species and the cost that land use must pay. A
nexus study should be the first step in habitat planning. Farm Bureau
has argued that any threat to species and habitat began with the first
human resident, and all should share an equal burden.
Discussion of the
funding mechanism is usually delayed until local governments have too
much invested in habitat planning to back out of the process. Disclosure
of funding mechanisms is delayed as a way to avoid opposition from those
who will pay. (In the case of future businesses and home buyers, they
simply have no voice in the discussion because they aren't here yet.)
Fiscal analysis of any
habitat plan should also be prepared before plan development proceeds.
Typically it is deferred -- or even never done -- to conceal
the true cost of the habitat plan and to avoid opposition from citizens
Federal and state
government may or may not be willing to share the cost of a habitat
conservation plan. Habitat conservation plans are developed to fulfill
or anticipate the demands of federal and state Endangered Species Acts.
If federal and state government balk at sharing the cost, the burden
would fall entirely on local property owners.
Where a proposed
funding plan calls for equal cost sharing among the federal government,
state government, and the local area, U.S. Fish and Wildlife Service
routinely opposes any requirement that it put up one-third of the cost
or the land. While funding discussions suggest federal funding likely
would come from a variety of agencies and sources, local habitat
planning agencies have found it difficult to obtain federal and state
resources. Federal government participation usually consists of
dedication of government land -- which is already supposed to be
committed to protection of listed species and habitats under the
Endangered Species Acts. Such government land dedications may agencies
other than just wildlife agencies. Discussions in local government
planning efforts have also indicated that wildlife agencies may require
proof that habitat conservation plan is fully funded before they will
sign agreements or issue permits ... which could require county
taxpayers to front the entire cost of the program.
Farm Bureau proposes
that local government prepare a comprehensive cost analysis of any
habitat conservation plan proposal, allocating full costs for all
properties committed to the plan whether conserved by acquisition or by
other means, and for all related activities such as future management.
Farm Bureau further proposes that local government make full disclosure
of such cost analysis at its earliest opportunity.
Farm Bureau takes the view that the full cost of a habitat conservation plan will be the value of the total acreage of private property conserved through the plan and that the cost analysis and disclosure must fully account for the total value of all of that conserved land, whether in direct purchase payments or in incentives, conservation easements or donations of land.
Habitat conservation plan is difficult to complete
Completing a multiple
species habitat conservation plan can be extremely difficult, as
competing interests find it impossible to reach consensus. Both U. S.
Fish and Wildlife Service and California Department of Fish and Game
share an interest in opposition to property owners, and their
participation generally doesn't actually contribute to solutions but
rather seeks to force different parties to stay at the tables and to
smooth over local worries.
Among the problems is
the almost total failure to maintain any kind of schedule. Plans that
call for fixed periods to prepare alternatives, conduct plan reviews or
complete habitat plans have routinely failed. Ambitious programs that
envision steps taking from 90 days to two years have consistently
dragged on for five (Riverside County Multiple Species Habitat
Conservation Plan) and ten years (Kern County’s multiple species
habitat conservation plan) without end. And
supposedly-“completed” plans can come back to haunt landowners,
(such as Coachella Valley’s Fringe-toed Lizard Habitat Conservation
Plan, that was reopened after almost 15 years to demand even more land
A main obstacle to consensus is the inevitable demand from the environmental community that any habitat conservation plan include requirements for interim regulations. These can include outright land use restrictions, mitigation demands or habitat transaction credits, in addition to an upfront habitat mitigation fee. Farm Bureau has said, just as repeatedly, that landowners will not accept interim controls or a plan that uses policy requirements to restrict private property or mitigation demands added to fees.
No guarantee of “no surprises”
means no surprises … unless there’s a surprise. The so-called “No
Surprises” policy of regulatory agencies does not work.
The U. S. Fish and
Wildlife Agency has made it clear that this policy does not apply if
there is new biological information that was not anticipated in the
habitat conservation plan permit issued by the Service. The Service has
clearly stated that "No Surprises" wouldn't cover
"unforeseen" circumstances. The “No Surprises” promise is
The ultimate scale of a
habitat conservation plan is always misrepresented at the outset as
smaller than the end product. The amount of land that is impacted by
habitat planning and the amount of land demanded for conservation
inevitably multiplies. (For example, the Riverside County Multiple
Species Habitat Conservation Plan started with an estimate of 40,000
acres to be conserved but grew to 153, 000 acres to be set aside, with
regulatory restrictions and mitigation demands on 320,000 acres of
private property.) Property owners are asked to commit to a habitat
process before they learn the true size and cost.
Adaptive management raises uncertainty about a habitat plan. Adaptive management is kind of like an adjustable rate mortgage ... the cost of a habitat conservation plan can change over time. Conservation requirements for different species can change as more is learned about them, changing the demand for money or land. Environmental groups and regulatory agencies have indicated that all future habitat conservation plans will require adaptive management. In theory, adaptive management would define the kinds of changes that might be required, in effect guaranteeing "no surprises" by spelling out the kinds of surprises that can be expected.
Land Values and Acquisition
issue is the value of land to be acquired for habitat and the method of
acquisition. Habitat conservation plans involve acquisition by local
government of private land for permanent preservation. The best
preservation is through ownership, so local government usually expects
to acquire fee title to large amounts of land. Local
government therefore has an interest in land values that is adverse to
that of private property owners. Private property owners want to
maximize the value of their land and to realize the highest market price
when they sell. Governments want to minimize their costs and to buy at
the lowest price.
Land is valued based on
an expectation of its productive use. At its fundamental value, land is
priced according to its agricultural production. In many parts of
California as in many parts of the United States, this price can range
around $1,500 to $3,000 an acre, but the potential for high value crops
can drive the figure much higher. There is often an expectation –
which is not the same as an entitlement – that a property can be used
for purposes that are more financially rewarding than agriculture, uses
such as industrial, commercial or residential development. Just the
possibility of such future uses can drive land value up. This
speculative value can translate into creditworthiness and into actual
prices paid in property sales.
Government has the
power to control land values. Habitat conservation planning inevitably
creates a new and different set of expectations that will immediately
change perceived values of land, affecting land sales and
creditworthiness. Unfortunately, local governments may use this process
to their benefit. Local governments may impose habitat designations and
restrictions as a way to drive down or to hold down the value of land
that they intend to acquire. Worse yet, local government may use its
land use authority to restrict land, to downzone land or at the very
least to prevent higher uses as a deliberate step to hold down the
future price for habitat acquisitions.
Government also has the
power to control the method of acquisition.
Habitat may be
protected through conservation easements. Local government creates the
conditions for acquiring easements. While these acquisitions are often
characterized as voluntary agreements by willing property owners, the
reality is usually quite different. Government creates “willing”
sellers through its land use powers to deny land use, to downzone land
through direct or indirect action and to overlay land with restrictive
designations such as “conservation planning areas.”
Habitat may also be
protected through outright acquisition. Here the government faces
challenges with negotiating with landowners and establishing fair market
values. A local government may pursue property purchases through real
estate agents without disclosing the true buyer or purpose. The local
government will also keep individual purchases secret, to conceal prices
paid and to maintain its bargaining position. Government exercises its
land use authority to deny land use changes, to limit potential use of
land, and to block encroaching uses that would increase neighboring land
prices. The private seller has little or no leverage on the government
buyer, while the government has a significant leverage over the private
As a buyer on a scale
far greater than most private acquisitions, governments can engage in
selective acquisition to minimize future prices. For instance,
government will acquire distressed properties or will target sellers who
desperately need to sell and who face the alternative of selling to the
government or waiting on a slow and indefinite acquisition process.
These distressed sales then put pressure on neighboring properties to
sell at prices similarly below market. Government also uses targeted
acquisitions, a kind of “checkerboarding,” to acquire key
properties, to block expansion of economic uses, extension of
infrastructure, or the spread of value-enhancing development, as a
deliberate means of holding down prices of future acquisition. Again,
the leverage is entirely with government.
One traditional method
by which government acquires property from private owners, where the
private owner refuses government’s offers or disputes government’s
offered price, is eminent domain. While farmers and ranchers don't like
the idea that government can take their property, they recognize the
usefulness of condemnation. They want to retain the ability to take
local government to court to determine the fair market value of their
land. Eminent domain guarantees that local government could obtain
private property that is essential to a habitat plan like it does for
any other public works project. Condemnation serves as an ultimate
dispute resolution process. It also provides some tax benefits to
property owners, who have the opportunity to reinvest in other land.
However, farmers and ranchers expect local government to use its eminent
domain powers to acquire private property only after all attempts at
negotiation, including mediation, have failed.
Local governments will argue that funding for habitat planning could be quickly depleted by landowners seeking court determination of land value. Farmers and ranchers answer that local government can avoid expensive legal battles by bargaining in good faith, offering fair market value and carefully choosing which private lands to acquire. The argument that local government can't afford to pay market value for private land proves that government seeks to acquire land for less than market value and simply strengthens the argument that land set-asides for habitat protection are a taking of private property.
Notice to affected
property owners that a habitat conservation plan may affect them is
another recurring problem.
Farmers and ranchers want local government to send individual notices to all property owners who may be affected by a habitat plan. Notices should be sent at the very beginning of habitat planning discussions. Farm Bureau has said press coverage and other general public information is not adequate to alert individual property owners. Farm Bureau has said it is absolutely necessary to inform all individual property owners about habitat planning discussions and about their opportunity to attend meetings and participate in the planning process.
In areas where local
governments have initiated habitat conservation plans, Farm Bureau has
offered recommendations for minimizing the effects on farmers, ranchers
Farm Bureau has said
that the constitutional protection against taking of private property
without just compensation must apply strictly and absolutely throughout
any habitat conservation plan, for all taking of private property
whether by outright acquisition of by any restriction resulting from the
plan. Compensation must be provided for onsite restrictions, such as
limitations on farming and ranching activities to protect habitat and
species where property may not be purchased by local government, and for
offsite restrictions, such as any kind of setback or limitation on
farming and ranching on properties adjacent to the habitat conservation
area. Compensation must be provided through payment or incentives
without threat of penalty and at current, fair market value without
influence from habitat plan restrictions. The full cost of all such
compensation must be determined and disclosed in a cost analysis.
Farm Bureau has also
proposed that local government make a public determination, about
whether, when completed, a habitat conservation plan will be accepted by
the United States Fish and Wildlife Service and California Department of
Fish and Game as mitigation for targeted species in place of any
critical habitat already designated for some species included in the
plan and whether USFWS and CDFG will eliminate critical habitat
restrictions on all lands not conserved through the plan.
Farm Bureau has also
proposed that local government make a public determination about
whether, if any local governments fail to join the habitat conservation
plan, the plan can be completed and implemented and whether U. S. Fish
and Wildlife Service and California Department of Fish and Game will
accept it as mitigation for targeted species.
Farm Bureau has said
that critical habitat designations impose additional burdens on property
owners beyond the conservation proposed under a habitat conservation
plan, that a principal reason for creating a habitat conservation plan
is to manage the cumulative conservation required through formal
assurances from the regulatory agencies, and that failure to gain such
assurances removes any benefit derived from enacting a plan.
Monterey County Farm
Bureau is the private, nonprofit association of farmers and ranchers in
this California county.