Habitat conservation plans impose unnecessary new burdens on landowners without corresponding benefits - Comments and analysis regarding habitat conservation plans




(Note: Excellent article that, while never mentioning Language Deception, lavishly illustrates its usage and power to hurt.)



March 12, 2002



By Bob Perkins mocofb@redshift.com


Monterey County Farm Bureau


Salinas, California





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 regulations.


Local government 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 liability.


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.  


Habitat conservation 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 Species Act.


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:


Enforcement 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 enforcement actions.


Financial 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 funding.


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 Impacts



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 occurs haphazardly.  


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.


“Incentives” 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 to landowners.


Among the hazards to owners of private property are:


Restrictions on 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 property.


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.  


Such cost-shifting 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 and taxpayers.


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 and regulation.)


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”



“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 unreliable.  


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



Another problematic 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 seller.  


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 and landowners.


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.