Panel discusses the pros and cons of Habitat Conservation Plans and Natural Community Conservation Plans
In recent years in an effort to avoid ‘postage stamp’ conservation, many regional planning efforts have been undertaken that allow for development while at the same time, provide for conservation of habitat and species. Known as Habitat Conservation Plans (HCPs) under federal endangered species regulations and Natural Community Conservation Plans (NCCPs) under state endangered species regulations, these regional plans can encompass hundreds of thousands of acres of land or more, cover dozens of species, and involve multiple state and federal agencies as well as the local agencies who are usually the proponents of the plans; not surprisingly, they are costly and very time consuming to produce.
The Bay Delta Conservation Plan is the example most familiar to Maven’s Notebook readers, but other plans, both large and small, have been prepared and implemented since the first Natural Communities Conservation Planning Act was first enacted in 1991, and updated in 2003.
In this panel from last fall’s Environmental Law Conference at Yosemite, Chris Beale with the Resources Law Group, Loren Clark with the Placer County Planning Department, Clark Morrison, Cox Castle & Nicholson, Kim Delfino with Defenders of Wildlife, Cay Goude with the US Fish and Wildlife Service discuss the promises and pitfalls of regional planning under the federal Endangered Species Act and the state’s Natural Communities Conservation Planning Act, focusing on the promises that such plans hold for both development of communities and conservation of species, as well as the difficulties associated with creating an overall plan that involves multiple parties and activities.
Here is what they had to say.
Chris Beale, Resources Law Group
Chris Beale began by saying that there are several different kinds of conservation plans, but today, the panel would be discussing specifically two specific types of regional conservation plans, one called a Habitat Conservation Plan or HCP under the federal Endangered Species Act, and a Natural Community Conservation Plan or NCCP under state law.
Mr. Beale explained that Habitat Conservation Plans (or HCPs) are large scale plans typically developed by counties, and are a means for obtaining permits to take a species that is listed as threatened or endangered under federal Endangered Species Act regulations.
He then listed the basic standards, noting that there are a lot of other requirements, but these are the overarching standards:
Taking will be incidental: “These are not permits for deliberate taking of species,” he noted. “They are incidental to development of other activities.”
The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking: “This is the key standard you will hear about if you work on HCPs … the bottom line standard for HCPs.”
The applicant will ensure that adequate funding for the plan will be provided.
Taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild: “This is often referred to as the jeopardy standard,” he said.
Other measures, as required by the Secretary, will be met: “Then there’s a catchall. This is where all the other requirements come in, other measures as required by the Secretary of the Interior for species, terrestrial species, and Secretary of Commerce for marine species.”
The requirements for the other type of plan, the Natural Community Conservation Plan, are listed in statute and are much more complex, he said. “The way they work is very similar. They provide a means of obtaining a permit to take listed species under state law. They can also be used to authorize a take of non-listed species,” he said.
An NCCP must meet the detailed requirements in Fish and Game Code section 2820 and NCCPA permit issuance criteria in Fish and Game Code section 2835. “The permit issuance criteria is referred to as the conservation standard of the NCCP Act, and it’s often contrasted to the mitigation standard of the federal act,” he said. “Essentially an NCCP can allow the Department of Fish and Wildlife to authorize a take of listed species if the conservation and management of the species is provided for in the NCCP or Natural Community Conservation Plan.”
Mr. Beale then discussed what he sees as the promises or benefits of regional conservation planning.
More informed land use planning: “One of the basic reasons why regional plans are prepared is to inform local land use planning,” he said. “Regional plans are typically prepared by counties and the cities and the idea is that they want to build in conservation considerations in their land use planning so they can avoid steering development towards where species habitat is and steer development instead to where there will be fewer conflicts with environmental mitigation for species.”
Conservation blueprint: “They provide a conservation blueprint that is useful for land use planning but can be used for other things too,” he said. “They can become the basis for habitat acquisition programs that aren’t related to project mitigation. From a land use planning perspective, it allows you to develop land use plans that incorporate conservation areas into them.”
“It can also allow for a regional perspective in allowing conservation priorities,” he continued. “If you’re looking at conservation or mitigation at a project by project level, you’re really just focusing on how to provide appropriate mitigation for that project, but if you’re approaching this from a regional perspective, you can look across the region to see where it’s really important to protect species. … Essentially, when you identify a conservation area in a regional conservation plan, you are essentially saying that is, for the most part, an avoidance area.”
Address indirect and cumulative effects: “Big plans like this allow you to address indirect and cumulative effects well,” he said. “Because you are talking about a plan that can last 20, 30, 40 years or longer, indirect cumulative effects are in a sense a direct effect of the plan, and you can address them more directly and often in a better way.”
Predictability and consistency in permitting: “You are setting up a mitigation program or a scheme for protecting species that will be implemented over the long term – over decades,” he said. “It allows developers and landowners to read the plan and anticipate what the requirements will be, even if they are proposing a plan 10 years or 20 years into the future.”
“One-stop” shopping: “This has become a bit of a catch phrase for these regional plans,” he said. “The general idea is that the local government prepares one of these plans and gets a state and federal permit based on it so that when a project comes forward for local environmental review, at the same time that the local government decides to approve the plan, they can also extend state and federal authorization, so you’re getting local, state, and federal approvals in one stop. What you’ll hear more about today is the frontier for that is expanding into Clean Water Act compliance and other things. These regional plans can provide a framework for other kinds of regulatory compliance.”
Mr. Beale said that the pitfalls are simpler and more straightforward.
Endless planning process: “It’s considered really, really fast to get one of these things done in five or six years now. Some plans have been going on for over 20 years, and costs add up. It’s a lot of effort.”
“Locked in” to conservation plan: “There is a concern about the very nature of these long term plans. If it’s 30, 40, or 50 years long and you’re really trying to come up with a strategy that is implemented consistently over time, some people fear that you never have perfect information when you develop the plans, so what if it doesn’t work the way you expect it to – isn’t’ that a risk? And then how do you address things that are really hard to predict, like how the landscape will change because of climate change.”
He lastly presented a slide showing how regional conservation plans have grown over the years. “On the left is year 2000 where these regional conservation plans had started and there was, early in their development, plans in Riverside County and San Diego,” he said. “The middle slide is 2005 when we were starting to see plans come to Northern California with Placer County, Yolo County and East Contra Costa County, and then on the right is 2010, you see plans being developed much more broadly in Northern California and Southern California, so this is a growing area of planning.”
Loren Clark, Assistant Planning Director for the Placer County Planning Department
Loren Clark began by noting that in terms of the panel, Placer County represents both a local government as well as the party that is preparing the plan, implementing the plan over the permit term, and then managing it in perpetuity. “As such, we obviously have a very important role to play,” he said.
Placer County is in the Sierra Nevada foothills, parts of the valley floor and even extends up into Lake Tahoe, he said. “A relatively small county at about 500,000 acres and around 350,000 persons, but growing substantially. We’re on the edge of the Sacramento metropolitan area; Interstate 80 passes east and west, so we have a lot of activity in the eastern areas of the county, around Lake Tahoe, and the Truckee and Martis Valley area. More importantly is the growth that is occurring down on the valley floor below 400-500 feet in elevation.”
He then presented a map of other planning efforts in the adjacent counties, noting that they are only one of four other regional planning processes underway. Other processes are the South Sacramento County HCP to the south, the large Yolo County effort, and the joint effort of Yuba and Sutter, he said. “Not even counting the Bay Delta effort, there is a lot of activity occurring at the local government level in terms of these regional conservation plans.”
“Placer’s proposal is to seek 50 years of permit authorization through the state and federal Endangered Species Acts, so it’s an incidental take authorization, as well as working with the California Department of Fish and Wildlife on some sort of master – with a small ‘m’, not a capital M – streambed alteration agreement, a process whereby we do the work on behalf of Cal Fish & Wildlife on issues related to impacts to streambed and bank,” he said. “It’s the Endangered Species Act and it’s the Fish and Game Code.”
Mr. Clark said that where sections 404 and 401 of the Clean Water Act are involved for small effects of between 0 to 2 acres, they are looking at having the permit authority assigned from the Corps to the County through the issuance of a programmatic general agreement which would have a programmatic water quality certification from the regional water quality control board. “That would actually occur within Placer County where we’d issue permits for small effects, up to an acre and a half to two acres which is roughly 85 to 90% of all permit activity that would occur west of Auburn,” he said. “These are very small effects, so it’s a relatively small percentage of the total impact, but it’s a lot of permit activity because there are a lot of small effects taking place. The next tier up would be a letter of permission, and the next tier up is for very large projects which actually represent the majority of the wetland fill activity would occur through individual permits still issued by the Corps, but much of the processing would happen at the local level.”
We need a balance between economic development interests/pressures vs. state/federal regulations and local environmental policies. “What we’re trying to manage is the class of expectations between private property owner interests on private land in an area where there are very strong economic drivers for additional growth, not only in the housing sector but in the employment sector as well,” he said. “It is a regional jobs provider in the Sacramento region outside of downtown Sacramento, and also a growing urban and suburban community, not like in Lake Tahoe where it’s a second or a third home; where people live, work and play is in western Placer County. About 90 to 95% of all growth that is projected between now and the year 2060 will occur below 1500 feet in elevation, and the majority of that will occur below 400 feet in elevation on the valley floor around existing communities.”
The growth estimates are that the population of the county will almost double, and of that, the majority will take place within the city of Lincoln. “The largest area where we will see growth is actually in the unincorporated area of the county, so we’re looking at 90,000 new homes, 150,000 new jobs, 224,000 new persons, based upon projections; they will convert somewhere between 40,000 and 50,000 acres of land to accommodate both those jobs and that housing.”
Mr. Clark noted that both the county and the city of Lincoln have completed general plans, and they are about to embark on a general plan update in Placer County. “We’ll follow the PCCP, so the choices made between conservation and development will largely be fixed largely as a result of the PCCP,” he said. “The City of Lincoln has a 50 year permit horizon. A city of 30,000-35,000 today, their build out is around 130,000 in the future.”
The growth is directed towards one of the few large expanses of vernal pool grasslands in the Central Valley, and that is where the clash is, Mr. Clark said. “The transition area between growth in the east and the valley floor to the west is a landscape dominated by ricelands, particularly in Sutter County to the west, and that grassland has a lot of vernal pools,” he said. “Vernal pools are typically considered waters of the U.S. so they are a wetland under 404, and they are also a host to a number of endangered species, both plants and animals, some of which are listed under the federal Endangered Species Act. We’ve been managing at the state, federal and local level impacts in and around for vernal pools since the listings back in 1994 on the invertebrates, so it’s been waters of the U.S. ever since those rules were defined. There’s been a lot of fill activity, a lot of development, and there’s a lot of avoidance that has taken place, so you’ll find vernal pools right across the street from the regional mall in the City of Roseville as part of a large complex.”
The program level objectives of the PCCP include implementing the goals and policies of the general plans and infrastructure master planning, and insuring that the long term public investment on land use and infrastructure planning is not affected by other regulatory programs, he said.
Mr. Clark said they want to get past the project by project review and look at those general plans, the infrastructure planning, the growth projections, and the backbone infrastructure behind that as it can take decades to provide those facilities, and then match a conservation plan to those expectations. “I can relate to one particular facility, a highway facility that will connect Highway 65 to Highway 99 that was envisioned in 1992; the planning work was done in 2010 on a corridor analysis, the funding strategy will start to be implemented around 2018, and it will start to be built probably in 2020-2025. We need conservation plans to account for that long term horizon for these types of facilities.”
Another objective of the PCCP is to insure that there is a balance between economic growth and conservation of resources in a collaborative manner that is long range in its perspective, and there is a desire within the community and a desire of the people who live in and work in Placer County to achieve that balance, said Mr. Clark. “We’ve had the Placer Legacy Open Space and Implementation Program in effect since 2000 where we are working with two or three land trusts and actively conserving lands throughout Placer County, not just for biological resource reasons, but for other reasons that are important to our community, so there is a societal element that is indicative of the people who live and work in Placer County.”
Other objectives include:
Certainty for the regulated community – public and private: “We all like certainty; we all like to be able to plan ahead – what is it going to take to do this, how long will it take to do it, and what will it cost, and something like the PCCP helps with that.”
Efficiency and elimination of redundancy: “We have known wetland policies, the state has the similar policies, and obviously the overarching federal policy; can we combine those state, local, and federal interests into one common strategy.”
‘One stop shop’: “When you look at the programmatic general permit, that is literally a one stop shop and that will occur at our front counter.”
Faster turnaround times on permit actions: “You can actually start to lock in real expectations on how long it will take to permit, because you’ve locked in elements of your strategy and process through your local rules.”
CEQA mitigation outcomes reflect FESA and CESA and 404/401 mitigation requirements: “A very important one for us is that CEQA mitigation reflects federal Endangered Species Act and state Endangered Species Act mitigation; it’s not two separate bites of the apple but a coordinated bite of the apple.”
Implementation of a plan, as opposed to project-by-project decision-making, without a long range plan that is geographically tied to the distinct characteristics of your area.
More local control
Better conservation and monitoring
Better integration between FESA/CESA and CWA
He then presented a slide depicting the proposed reserve system. He said the reserve area is essentially a mirror reflection of the growth area, noting that the area in green is a crescent of conservation that extends from the foothills to the valley floor, the pale yellow area is where growth is and is expected to occur; and the dark green are conservation areas in existence today around which they want to continue to build.
The challenges are many, Mr. Clark noted.
Time: “These plans can easily take 5-10 years to complete. In our case we’re at 14 years. Seven of those fourteen years were spent resolving local issues. We barely engaged the agencies because we had to reconcile with our partner the City of Lincoln, who was conserving and who was growing.”
Using the “best” available scientific information, which isn’t necessarily the best: “Best available scientific information is always a challenge because within a ten year horizon, you have insufficient time to collect real scientific data.”
Developing a plan on private property with modeling and remote sensing: “There is a lack of data about property in Placer County because it’s all private land. We do not have a large public land resource. So it’s all done through remote sensing and modeling.”
Local political cycles – decision-makers can change every 2 years: “Our Board of Supervisors changes every two years. We’ve had at least one case during this plan preparation where one board member was very active in trying to have the process be terminated. Three members of the board disagreed.”
Funding: It’s very very expensive and Section 6 only makes a small contribution: “It’s a lot of local money that gets put into these plans, there are some grant dollars out there, but they can’t carry the weight of the program.”
Local champions: “Without a local champion, you simply can’t have these projects move forward.”
Getting stakeholder consensus and getting stakeholder input: “Not just consensus at the regulatory level but consensus at the stakeholder level, and sufficient input from stakeholders.”
Agency expectations on what is achievable: “You’re trying to answer the requirements of regulators at the state and federal level, but also the interests of the environmental community, the business community, and the agricultural community.”
Getting lost in the minutiae, and data analysis paralysis: “We all spend a lot of time on data, partly because we’re data junkies, partly because we like more data and we want more data, and partly because we don’t know how to say no when it comes to obtaining new information.”
Permit term: How long is too long and how short is too short?
Contribution to recovery with a contribution to fund it: “It’s very, very difficult to find steady reliable dollars to move these projects not just out of the mold of mitigation, but into actually contribution towards recovery.”
The Goldilocks Syndrome – getting the porridge just right: “My own Goldilocks syndrome, I had the little Goldilocks nesting dolls on my desk behind me, because we’re always trying to get it just right. Too much, too little, where’s the just right, and minutia in the data analysis paralysis and all those things, unfortunately, make that very challenging sometimes.”
The PCCP has some unique elements, Mr. Clark said. “We have a high level of integration as we perceive it,” he said. “As Cay [fellow panelist from USFWS] will say, she perceives it more as a parallel processing. To the regulated community, it doesn’t matter. Whether we are taking care of with the integration or we are taking care of the parallel processing, to them it’s one outcome. They have an entitlement, they CEQA, they have 404 and 401 addressed, they have their endangered species act, all within one mitigation package.”
The ‘Regional LEDPA’ and its three elements (avoidance at the landscape scale, stream system avoidance and LID), allows us to look at the landscape as opposed to the project as the area of avoidance and minimization, he said. “So when we adopt the PCCP, our landscape of conservation for the corps is the area of avoidance and minimization. That gives us some flexibility in terms of our off-site alternatives analysis and some other features. There are efficiencies we want to gain from preparing a program level CEQA document and NEPA document, and those benefits will accrue to the regulated community.”
Question: In regards to financing, you said the grant sources from the feds and the state aren’t sufficient enough, how have you financed it? What’s the combination mix?
“It’s a split in our case between the foothills and the valley floor,” Mr. Clark replied. “We’re roughly 60/40 locally funded on the valley floor and 70/30 in the foothills. The local funding portion is mitigation dollars. So you impact, you pay. The 30-40% is the contribution to recovery portion, and we all look to a federal program, which section 6 of the Endangered Species Act, nationally that ranges between $50 and $100 million. 60% of those dollars come to California, but if Chris’s map that shows all those plans that come online need that money, $50 to $100 million does not go very far.”
“Then we rely on state bonds,” Mr. Clark continued. “We’ve had no bonds until Prop 1 this fall. So we finally have a water bond coming online, we finally have an opportunity. Bonds are cyclical; bonds are competitive, and the NCCP-HCP world has a very difficult time getting a line item in those bonds, so we end up having to chase programs through those bonds that were not written to implement these habitat conservation plans. Sometimes we get them, sometimes we don’t. So we can guarantee our 60-70%, that’s a solid number we will deliver on. It’s harder to get the 30-40% on the conservation side.”
Mr. Clark was asked if the PCCP is an HCP or is it an NCCP as well; he replies that it is both. The questioner then asks in his experience, how has he dealt with the criticism that the NCCP portion is actually funding mitigation for development?
“It’s a pretty bright firewall in our case between what is a mitigation action and a conservation action,” said Mr. Clark. “You might end up on the same piece of real estate in the end, and that’s been an issue in the past with can you blend mitigation dollars with conservation dollars to acquire property. So in our case, we need that blending. Can you use mitigation dollars as a match to conservation dollars has also been an issue. But in terms of what our mitigation burden is versus our conservation burden is, that’s a pretty precise understanding. We have a lot of opportunity for conservation and recovery in certain areas of the landscape.”
Clark Morrison, Cox Castle & Nicholson
Clark Morrison began by saying that in his presentation, he would be discussing how they have been evolving from the classic HCP into a much broader application of the statute, both at the HCP level and the NCCP level.
“I call these MCPs for Monster HCPs, and there are two of them under preparation in California right now for wildly different purposes, and they have stretched everybody’s comfort zone to figure out how you take these statutes and fit them around something other than houses versus kit fox,” he said. “The two examples are the Bay Delta Conservation Plan (BDCP) and the Desert Renewable Energy Conservation Plan (DRECP).” He noted that he has only had incidental involvement with BDCP, so his presentation will focus more on the DRECP which in some ways is more complex.
Mr. Morrison said that the BDCP is essentially intended to address the problems in the Delta. It’s a 50 year Habitat Conservation Plan primarily set up to establish permitting mechanism for a very large set of infrastructure facilities to move water through or around the Delta; it also includes 22 conservation measures aimed at improving water operations, protecting water supplies and water quality, and restoring the Delta ecosystem within a stable regulatory framework, he said.
He presented a map of the Delta, with the plan area boundaries for the BDCP marked on it, and noted that the BDCP overlaps with a number of the land based HCPs. “The fact is that it’s covering a different set of activities than those HCPs are, but as you can see, it is just absolutely monstrous in scope.”
He then presented a map of the potential conveyance facilities that are evaluated in the BDCP documents, and pointed out that the document is quite complex. “Three intakes, two tunnels, 30 miles, 9,000 cfs capacity, etc, covering 57 species,” he said. “And obviously the entirety of the state of California, or at least Bay Area south, is going to depend on the outcome of this. Hopefully it will resolve the decades of controversy in State Water Board proceedings and in federal court.”
There are a lot of agencies involved: NMFS, USFWS, CDFW, the Department of Water Resources, the Bureau of Reclamation, and all of the state and federal water contractors up and down the valley … a lot of permittees, he said.”Like any HCP, it has a somewhat complicated organizational structure. We’re seeing worse in other plans.”
The BDCP is intended to provide the permits necessary for the new infrastructure facilities, he said. “The agencies are going to have to make some very complicated findings under the ESA,” said Mr. Morrision. “One of the big hooks for HCPs is ensuring that there’s adequate financial support for the plan in the long term. We learned the hard way about how to comply with this in one of the early HCPs, the Natomas Basin HCP where we lost in federal court there because financial assurances weren’t guaranteed. In a plan like this, how do you meet that requirement up front? It’s a very, very difficult task.”
He then turned to the Desert Renewable Energy Conservation Plan (DRECP) which had been released and was out for public comment until January of 2015. “It’s somewhere between 7 and 10,000 pages of text and maps,” he said. “Any of us who are involved in it right now are a little bit grumpy because we’re losing a lot of sleep just trying to figure out what the thing says. The effort was commenced around 2010 with planning agreement and various MOAs between the involved agencies and an executive order from then Governor Schwarzenegger.”
“The agencies are trying to find a way in the original MOAs to expedite renewable energy planning in the California desert, so the HCP covers when solar, geothermal, biomass, and transmission, and those are the only activities it’s really supposed to cover,” he said. “It’s not intended to be a land plan for other activities, whether it’s oil and gas, fracking, off-road vehicles or anything else that happens in the desert. So the plan is giant, covering 22 million acres over 7 counties and 37 covered species, but it’s really for a very defined scope of covered activities.”
He next presented a slide of the governance structure for the DRECP, noting that it’s a little more complicated than governance structure for the BDCP, and even this one is vastly simplified. “The basic idea is that you have California Energy Commission, BLM, California State Lands Commission, working with the state and federal fish and wildlife services and ostensibly the counties to come up with a plan to implement,” Mr. Morrison said. “The counties have not been super enthusiastic participants, which raises some complications in plan implementation.”
He then presented a slide of the plan area, noting that it incorporates BLM lands, state lands, private lands, and includes various protected lands. There are Legislatively & Legally Protected Areas (LLPA), Land Use Planning Amendment (LUPA) lands managed by BLM, lands covered under NCCPs and General Conservation Plans, as well as military lands. He noted that military use is a major constraint on activities in the desert, particularly for wind for a variety of reasons. “It’s really a giant jigsaw puzzle over 7 counties, and 22.5 million acres,” he said.
“The goal of the DRECP is to streamline permitting and provide more efficient regulatory assurances for the applicants,” he said. “The idea is that the land use plan amendment that comes out of the DRECP will structure where those projects go and provide a lot of biological data to help analyze those decisions. If it’s on private land on the applicant’s side, we’re hoping it would be very much like the structure in Orange County where you have counties that have direct control over developments, and they would be the ones issuing permits to the actual applicants. That doesn’t look like it’s going to be the case here because the counties aren’t necessarily on board, and so this reason and many others, the HCP element of the plan is being crafted as what we call a General Conservation Plan, or GCP.”
“As envisioned here, a GCP is a plan that’s basically prepared and adopted by the agencies, rather than having it applicant driven plan, so it kind of sits out there in the regulatory environment,” he explained. “Individual developers can come in and apply for participation in the GCP, and once that’s approved, then they get their incidental take authority. So there’s no middle man … and that may reduce some of the streamlining benefits of the plan, and it’s probably a drawback for those of us on the applicants side, but that’s the way it’s probably going to work.”
Mr. Morrison said the by adopting the GCP mechanism, it appears the agencies are realizing that in the short 4 or 5 year time period that its taken to create this plan, there are still a lot of things to be figured out. “There’s a lot of biological data we don’t have, there’s a lot of commercial data we don’t have, including impacts of renewable energy and the need for renewable energy, so there’s a lot of numbers that are still in flux, but the GCP and the broad scope of the plan and the BLM side do create an overall framework, at least to tell you where renewable energy can go and where it can’t go,” he said. “In my view, that’s really the primary function of the plan is really the one map that tells you where the Development Focus Areas are which are where renewables can go, and everything else which is where renewables cannot go.”
He then presented two slides with the streamlined process for permitting under the plan, noting that it’s still pretty complicated because the agencies weren’t able to lock up final decisions within the short time period. “There is going to be further analysis of projects, eagle studies need to be done, Mojave ground squirrel studies need to be done, etc, so there is some streamlining, but only for projects within Development Focus Areas,” he said. “At least we know where projects are entitled to get permits and where they’re not.”
He then discussed what he saw as the promises of the DRECP. “The promises of DRECP for the regulated community are foremost due diligence in trying to site renewable energy facilities,” he said. “Until these maps were formulated in the last couple of years, we had clients on both solar and the wind side that started popping up all over the desert, but driven by where the best solar resources were, where the transmission was, or where the best wind resources were, so it was very market driven, but very opportunistic. We didn’t have these maps here, but everybody kind of knew where the eagles and where the ground squirrels were, so those projects that were in the wrong places just kind of moved nowhere; we had developers investing millions of dollars in permits, and nobody could quite tell them, you’re in the wrong place. But now that the maps are here, we know where developers won’t be investing money which is anywhere outside of a DFA. And that is very good for the market because it does bring a certain amount of certainty into it.”
“There should be benefits in terms of standardization primarily of conservation actions and mitigation actions which has been a big problem in the desert; it’s been kind of haphazard,” he said. “We’ve been struggling mightily with respect to eagle impacts and how to mitigate for those at all. It looks like there is going to be a process of money invested in DRECP to really figure that out over the next 5 years.”
“I think the biggest promise of the DRECP isn’t the streamlining per se, but it’s really creative effort that has gone into figuring out how to connect the different statutory regimes that will apply to renewable, so it’s not just NCCP, it’s not just HCP, it’s FLITMA obviously, it’s CEQA, NEPA, and I think most importantly for wind, it’s the Bald and Gold Eagle Protection Act, and MBTA, and the state’s fully protected species statute, which covers golden eagles,” he said.
There are some pitfalls, Mr. Morrison said. “It’s a short term plan, only 25 years,” he said. “We know that’s just the beginning. This plan is intended to cover 20,000 megawatts of renewable energy, which will get us through 2040, but most people will acknowledge that between 2040 and 2050, the demand for renewable shoots skyward in a hyperbolic curve. The decision was made not to try and address that demand in this plan, so it ostensibly plans just enough acreage for 20,000 megawatts with a little margin of error.”
“The problem is that you’re locking up a plan, which even if it’s only 25 years, people are going to view as permanent, and this is where renewable should and should not go, and it could really tie our hands when we realize down the road that we’re not going to get all the GHG benefits we want out of painting our highways white and that’s there’s going to be a need for utility-scale solar, and we’ve really locked up one of the best solar and wind resources on the planet,” he said.
They are also unsure if 20,000 megawatts really will be accommodated by the plan, he said. “The Desert Focus Areas have squeezed wind and solar development into very tight areas, but unfortunately it’s not clear if that’s where the best wind resources are or where the best solar resources are,” he said. “This plan is going to cost about $3 billion to implement, ostensibly being paid for through fees provided by renewable energy … it’s not clear that the 20,000 will generate the fees necessary to accomplish the oath of conservation.”
“We’ll know more as this goes forward, we’re just at the draft stage,” he said. “People are feverishly writing their comments and we’ll see what happens. To see what the agencies put out in a five year period, it’s just absolutely monumental amount of information with really great data collection and really great maps. Unfortunately, we have to figure out what to do with this now, and I’m not sure the answers are all there.”
Kim Delfino, Defenders of Wildlife
Kim Delfino began by noting that she has been working on regional planning issues since 2000, starting with the effort to revise the NCCP Act back in 2001 – 2002.
She first briefly reviewed the
promises of regional conservation planning:
Large Conservation Reserves, not piece-meal: “It has the benefit of providing large conservation reserves, not piece-mealing postage stamp conservation strewn willy-nilly across the landscape in no real coherent way other than where conservation banks may have bought enough land where it’s available and cheap enough to make a profit,” she said.
Focus on Conservation and not just mitigation: “You’re not just looking at what the impacts are of the project, but you’re looking across the area and species range and figuring out what it is that the species need to exist, what are the environmental needs that are there, and the gradients – it’s a bigger picture on how we’re going to provide benefits for these species over the long term.”
Focus on Science and Science-Based Standards: “One of the benefits that has come out of the DRECP planning process is this effort called Databasin, which is a really amazing product where a lot of information and mapping is put up in a way that is accessible for the public and allows science and data to become more available,” she said. “The DRECP has driven enormous amounts of research and improvements on vegetation mapping in the desert, so there are really great science benefits from this type of planning.”
Collaborative: “That can be a positive or a negative,” she admitted. “It’s a positive because when you do it right, you have everyone invested and pulling in the same direction, but to get to that point as others who have experienced the joy of conservation planning, is that it’s not an easy thing to do. You have a lot of different interests, you have a lot of different values, and you’re trying to blend them all together into one plan.”
Leverage Private Funding with State/Federal Funding: “There is a benefit there to matching federal dollars to mitigation dollars to state bond dollars.”
Permitting Efficiencies: “There can be the benefit of permitting efficiencies if you do these plans correctly.”
Ms. Delfino said she’d be focusing her time on the ‘pitfalls’ or perhaps better described as difficulties in regional conservation planning, and she’ll be focusing on three things: the conservation standard debate, are we taking the NCCP concept and stretching beyond of what it is really capable of doing, and then once completed, the hard work of implementing these regional plans.
The ‘original’ NCCP was contained within a single county and usually focused on housing development and transportation, but times are changing and it’s become much more difficult, she said. “There is less available habitat out there. We are living in the time of the tragedy of the commons, and we are literally running out of habitat for species. Vernal pools are an excellent example. The South Sac HCP is struggling mightily to be able to find enough vernal pools to be able to meet the conservation standard. This is a reality. We are living in an age of Noah’s ark where we are just collecting up the remnants and the bits and trying to keep it together and it is making it very difficult to do regional conservation planning.”
There are difficult resource decisions to be made and the BDCP and the DRECP are excellent examples of that, she said. “We have the very difficult task of coequal goals under the BDCP of providing for sufficient and reliable water supply along with protecting rapidly declining endangered and threatened species, the salmonid species in particular and the smelt. How do you reconcile those needs and those issues? And with the DRECP, how do you protect a very fragile desert landscape? Where once you break that desert crust, you’ve destroyed that area for a millennia, because it took a millennia to achieve the biological value of that land, so once you break that crust and you put in wind or geothermal or solar, that area is lost for species forever – in our idea of what forever is, not geological terms.”
She pointed out that climate change is occurring and we’re witnessing it now. “We’re living in it,” she said. “We watch species and pollinators struggling, and trying to match up migratory patterns with how plants are providing food for those species, but they are getting out of whack,” she said. “It makes it very difficult to plan for species conservation when you’re essentially, as I say, planning on an Etchasketch where climate change just shakes it up and you have to start planning all over again. This leads to great uncertainty, which is the very thing that regional conservation planning is trying to resolve.”
The Conservation Standard Debate
She then turned to the conservation standard. “Does the NCCP provide for the conservation of species or does it just contribute to recovery?” she said. “There’s a lot of debate about this issue when you are doing conservation planning. The Fish and Game Code section said you can get a plan as long as the conservation and management of that covered species is provided for in the plan, so when you go to the definition of ‘conserve’, what does conservation mean, it says you use all the methods and procedures within the plan area necessary to bring that species either to recovery or delisting, or to the point where you won’t need to list them again, at all, for those unlisted species. So that is all measures and procedures within the plan area necessary to bring a covered species to those points; it is not linked to the covered activities. That was actually done on purpose when we wrote the NCCP Act.”
Ms. Delfino said that the NCCP is there to allow development projects to move forward with certainty, but the idea of the NCCP is to provide for a larger conservation strategy for species, so what does that mean? “This is a really complicated and difficult issue,” she said. “It’s simple if you have a species that lives entirely within your plan area, so for that species, the plan must protect that species so that it would no longer need to be listed, so it wouldn’t need to be listed under the federal endangered species act, and it would be essentially put on the road to recovery, or will be moving towards and consistent with the recovery strategy for this species under the state Endangered Species Act.”
But when you have species that exist both within and outside of the plan area, this is where it gets really tough, Ms. Delfino said. “What about if all the threats to that species are within the plan area, or if none of the threats are within the plan area, or if the plan area includes all the breeding habitat for that species, or if it’s only 10% of that species range?”
She said that they’ve had issues with some saying that the conservation standard has to be somehow linked to the covered activities, or that it’s only the covered activities that we’re dealing with. “No, I would submit that is an incorrect interpretation of the NCCP Act. However, there are arguments being made to that effect.”
“I’d also say don’t look at the amount of time that’s actually spent for a species within the plan area or only at the percentage of the habitat that’s in there,” she said. “You have to look at what is the species life history, what are their needs in order to persist, and look at where the threats lie, and then look at what’s occurring in the plan area. It may be that you may only have a species that all of threats are in the plan area, and then I would say your NCCP plan must deal with all those threats. Period.”
Are we stretching the NCCP concept to the breaking point?
“I think we probably are pushing ourselves well into the breaking point because the idea of conservation planning is something we all love, but when you get down to the brass tacks of doing it, and what’s going to be required of the counties, the state and federal governments, and of the developers, sometimes it’s more than they are willing to give or pay for.”
Ms. Delfino said that she thinks that NCCPs in the ag setting actually works. “Yolo County is working very hard, but it is a difficult thing to do because we’re talking about planning in an area which is more than 70% farmland, and if anyone’s farmed, you know unless you have tree crops, generally speaking, it’s a shifting mosaic of cropping patterns; you have to figure out you are going to be doing conservation in that type of landscape,” she said. “The folks that are putting the Yolo County plan together are coming up with some very creative ways of requiring hedgerows, looking at linkages, conservations easements or agricultural easements, but this is not something necessarily that we thought about a whole lot when we were rewriting the NCCP Act.”
The Bay Delta Conservation Plan (or BDCP) is a ‘beast’, she admitted. “We’re basically trying to plan in an aquatic setting,” she said. She pointed out that all of the state and federal project operations that affect the amount of water that’s flowing into the Delta occur outside the plan area such as Shasta Dam and Lake Oroville. “The issue of how you do water reoperations and how that actually affects your plan, that’s a really significant issue, and a lot of folks are saying, ‘we don’t have to look at reoperation as part of the plan,’ but I would argue that that is something that you do need to think about and it is complicating the BDCP tremendously. There are a lot of issues with the BDCP; it’s very difficult – we did not think very much about planning in an aquatic setting when we were rewriting the NCCP Act, I’ll just say that.”
The BDCP also overlaps other NCCPs and HCPs in Contra Costa, San Joaquin, Solano, Yolo, and South Sacramento, she said. “Here are these local governments that are busily trying to put their plans together and figure out their conservation strategies, what do they need to do in order to meet the standard, and what are the lands available for them to protect, then you lay on top of it the BDCP and all of its needs and where areas are being planned for major conversions to tidal marsh wetlands – it makes it very, very complicated to try to reconcile the standards that plans are meeting on their own versus what the BDCP is trying to do. Potentially it can be done, but it is very complicated.”
Another potential problem is having a small development footprint relative to the plan area, such as in the Desert Renewable Energy Conservation Plan, which protects 22.5 million acres with 2 million acres of proposed development area with only 200,000-300,000 acres that would actually be developed. “That means that the mitigation dollars that associated with the renewable energy is going to be relatively small, because you’re not developing a whole lot of land and yet we’re trying to conserve across a 22 million acre landscape,” she said. “It has produced an interesting theory of sort of this DRECP-NCCP within a larger conceptual NCCP which frankly, I don’t understand. I’m still reading through it and trying to figure it out. I don’t see how it works, and we have to figure out how to make it work.”
Another issue is that 17 million acres of the 22 million acres of the DRECP planning area are federal lands under BLM jurisdiction and has a multiple use mandate, she pointed out. “Frankly, the BLM is not all that excited to put their lands into permanent conservation because they believe and some would argue that it’s inconsistent with the Federal Land Management Policy Act,” she said. “So we’re trying to deal with these issues called durability of conservation on these federal lands and how we achieve durability over the long term. It’s quite a struggle.”
“And if you have a plan where you’re not actually counting on the counties to hold the permits and to agree to what’s being committed to in the plan, how do you actually implement outside the federal lands on all of the private lands, which is where most of the development focus area is and where some of the real key conservation areas are for certain species?” she said.
“I would simply say, having now lived through this now for the last 14 years, is that when you’re doing an NCCP, you have to be realistic about what’s being asked of you,” she said. “Are you willing to give up the land and make the funding and the commitments that really are necessary to meet a real conservation strategy? If you’re not, then maybe you don’t get an NCCP. Maybe you just do a regional CESA permit and leave at that. You don’t get the certainty if you’re not willing to make the commitments or pay the money.”
Implementing NCCPs is hard work
Once completed, an NCCP is very hard to implement, Ms. Delfino said. “You have to keep your conservation land acquisition ahead of your development, you have to do really good monitoring and adaptive management, and then you have to pay for it all at the end of the day,” she said, noting that the western Riverside plan really struggled with the idea of rough-step proportionality between acquisition and development, and it was a real issue and at one point, they were behind.
“You have to build a really strong monitoring and adaptive management plan, especially in the age of climate change and uncertainty,” she said. “I would highly recommend going and reading some of the reports that have come out of the San Diego experience. The USGS also has a report from 2004 that does a nice job of talking about and reviewing how to do regional adaptive management and monitoring, but as they say, ‘it takes work, funding, dedicated people and continued scientific input.’”
You have to fund a lot of things, such as program administration, acquisition, restoration, management, adaptive management, monitoring, and endowments over the long term and it’s all extremely expensive, she said. “How do you fund it? Impact fees are one option, but they only cover part of the cost,” she said. “Open space fees only cover part of the costs and are actually quite hard to do. Federal or state legislation – maybe we might have state legislation with the bonds but forget it on the federal side, it’s just not going to happen. Local/state taxes, forget it. Grants are heavily relied upon but as others have pointed out, the grants, especially section 6 grants, the numbers are going down and there’s more demand. With land swaps, you need willing landowners to do that and they are not always willing. So not surprisingly, securing adequate funding is a constant struggle with these plans once they are done.”
Cay Goude, U.S. Fish and Wildlife
Cay Goude said she’s been working for the US Fish and Wildlife Service since 1989 and when she first started, it was under the Clean Water Act. “A lot of the things we did to save wetlands and vernal pools were by hook and by crook,” she said. “Now Kim kind of depressed me, so I’m going to be on the opposite end of the spectrum. I actually think that large scale conservation can be done, can be done well, and can be done expeditiously.”
Ms. Goude said she’d be speaking from the federal side of habitat conservation planning. “I think the problem with NCCPs is that you don’t have implementing regulations written down,” she said. “At the Fish and Wildlife Service, we have the 5 point policy, we have 5 million litigation cases, and so we have quite a list of regulations, handbooks, and policies that guide in an amorphous sort of way implementation as it relates to HCPs.”
“The California Department of Fish and Wildlife will always say, ‘Our NCCP is much better because we do recovery and you only mitigate, but really at the end of the day, it’s a fine line between what is mitigation, what is contributing to recovery and what is actually recovery,” she said.
She then presented a slide of what she saw as some of the promises of regional planning, noting that the list was much the same as the other panelists. “The one that I think makes a huge difference to me, is that it provides a local control. There’s ownership in it,” she said. “If you look at Contra Costa and Santa Clara, they own those plans, they feel very invested in those plans, and they start to protect them. The plans that are developing in Placer County, or Yolo, those are their plans. You are meeting with the mayors, the city council, and once they decide to do a plan, they own it and that means that conservation will occur on a much better basis than I could ever do on a piece by piece, section 7 by section 7 ability. And I’m not bad at doing that, by the way. So I think involving the local community and the local control is really important. I don’t think I would have said that years ago, but I really do believe it now.”
To do a plan or not do a plan, that is a question, she said, pointing out that Solano County is doing an HCP and a 2081 after they looked at the costs and financing needed for an NCCP. “At the end of day, if you look at the conservation that will occur for vernal pools, Contra Costa goldfield and tiger salamander, they will actually implement most of our recovery actions within that area, so I defy someone to say that it’s not recovery,” she said. “We actually write recovery plans, which some other agencies don’t because that’s what guides recovery. Everybody says, ‘we contribute to recovery’ when they need to write a recovery plan to actually demonstrate that they do.”
The Santa Clara and Contra Costa plans looked at things differently and came up with what they thought was needed. “Originally in Santa Clara County, they were wanting to do an HCP for the entire county; they recognized it was probably too big of an area to hit as it was very different – the hills versus the tidal marsh areas, so they segregated,” she said. “Of course, after they finish this one, I doubt if they’ll ever come back to doing the Bay Area portion, but I don’t really think there’s a need.”
Conservation strategies are another way of looking at things. Instead of an HCP, East Alameda developed instead the East Alameda Conservation Strategy which looks, feels, and seems like an HCP and guides all the areas for the east Alameda. “We wrote a programmatic biological opinion to the Corps that basically if you implement that conservation strategy on a project by project basis, then it basically streamlines your whole process,” Ms. Goude said. “All those cities have developed it and used it, and they are using it for their park acquisition. In Santa Rosa, they did the same thing as a for tiger salamander, and basically that’s directing a lot of our activities as it relates to the Sonoma tiger salamander.”
In terms of the pitfalls, she sees the biggest problem where HCPs go wrong is that they have too many species. “You want to include everything, and every time you include something, you have to have a conservation strategy for each and every species that you add, do every time you add something that’s extraneous or something that you think sounds good, it adds costs, time, and analysis. You have to figure out what you would do for conservation for that species and that means you have to know there they are in your local area and you need to have enough data to actually include it, so you have to make some of these decisions.”
Another pitfall is if the species is too rare. “In the San Joaquin HCP I worked on, they were at that time including riparian brush rabbits,” Ms. Goude said. “It was only thought at the time that there were three known populations, so are you going to allow take of the last three bunny rabbits? You couldn’t do it. It’s biologically inconsistent, and so we called it a ‘no take’ species. We included it in the analysis, we talked about suitable habitat, and they got through the permit but they didn’t cover that very rare species, and you can do that.”
“And if there are no impacts to the species then why include it, or species that are not even there,” she said. “That’s my favorite. I love it when people include a species on the list and they are not in the area.”
Other pitfalls include covered activities that are not adequately defined, activities that jurisdictions have no control over, or agricultural activities. “You don’t have activities or ordinances over agricultural conversion, and you can’t cover that in a permit,” she said. “You have no direct control, not unless you’re going to pass an ordinance to deal with that, so having agriculture as a covered activity doesn’t work. … The other one would be activities too far in to the future. It’s something that nobody actually knows or has defined.”
The funding can really be an issue, Ms. Goude said. “It’s all about the money,” she said. “You need to do a good financing plan, you need to figure out how you are going to deal with it, and you better be telling everybody that you’re doing it. What threw off Santa Clara for over a year from the draft to the final is that the money they had for conservation was right at the time of the recession, and San Jose was never going to grow and neither was the county, and it caused basically a delay and they shrunk their plan to deal with the issue.”
Paying for the long term endowment is another issue, she said, explaining that endowment is to pay for the preservation lands through time after the permit ends. “The two plans handled it in different ways,” she said. “Contra Costa hasn’t come up with that, and so halfway through their plan, they haven’t paid for their long term endowment and t hey are going to have to do a reconciliation in about six or seven years, to figure out how to pay for it. Santa Clara built it into their cost structure, and I think Placer is doing the same thing. I would recommend it.”
You need to have a champion on the local level, she said. “I think that this is a key issue and a reason a lot of plans languish,” she said. “I’m not talking about me – I can nag people to push the plan through, but if you don’t have a champion on a local level, those plans don’t move it through.”
“The Implementing Agreement should only restate what is in the HCP – it shouldn’t be trying to make new policy for anybody,” she said. “It basically should be simple and cheap, and it shouldn’t take a long time. And same with the conservation easements.”
“I don’t think it’s right to comment on something and not provide actual language and changes in direction – I think it’s not fair,” she said, recalling that in years past, she would have different people who would work for her who would say, ‘the habitat conservation plan is the locals document and ours is the permit’. “Well, that’s just crap because the bottom line is that if you’re not going to permit it, then you’re not going to permit it, so why would you let them go down this plan without helping them? … I tell my staff that I don’t want to see comments, I want to see edits. Now there’s times when you can’t comment on a document because it’s so confusing you can’t figure out what they are saying, but most times, you can edit. What I do, I just delete things that don’t make sense, and that’s a pretty big sign that you might need to rewrite it.”
“Brief often, and brief everyone,” she said. “It’s amazing to me how few people really actually know what’s going on in the plans,” she said. “And do not reinvent the wheel. Plagiarism is a fine, fine tool as it relates to HCPs, but I would plagiarize from our last one, which would have been Santa Clara.”
Stakeholder involvement is important, it’s also important to continue to show forward momentum over the long haul, and at the end, Ms. Goude suggests writing together and actually putting it on the screen and fixing the language right then and there so it ends the issue.
“So I would say that it is improvement,” she said. “I have had a long career, and it is definitely the best thing I’ve ever done, working on partnerships, recovery, and conservation. The regulatory streamlining – you have to add that in to make everybody else feel good, but at the end of the day, the collaboration and the goodwill I have felt from the overall conservation has been well worth it, and I really do find that is the most fun portion of my job. The least fun is being in the adversarial roles. I can do it, I’ve been doing it for years, but I would much prefer working together.”
“When I say collaboration, it’s a two way street,” Ms. Goude said. “That doesn’t mean it’s your way or the highway, or my way or the highway – it means that we’re actually working together as a team to form a basis of a plan.”
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