The Endangered Species Act has already been updated! Habitat conservation and other incentive approaches have modified the “Macho” law and it does not deserve dismantling of key provisions: The Edwards Aquifer Habitat Conservation Plan as exemplaR

The Endangered Species Act has already been updated!: Habitat conservation and other incentive approaches have modified the “Macho” law and it does not deserve dismantling of key provisions: The Edwards Aquifer Habitat Conservation Plan as exemplar of ESA’s “updated” approach.
 
There are many attempts being put forward in this Republican Controlled Congress that are aimed at weakening the Endangered Species Act (ESA) due to its purported bad effects on development, ranchers, farmers, developers, etc. The proposed measures to “update” the ESA which has not had major changes since 1982 include incorporating cost-benefit calculations so that cost is considered a factor in whether to list & take measures to preserve a species, and decentralizing ESA decision-making to states or giving veto power to states.  But in 1982, the ability to “take” listed species was provided for when habitat conservation plans (HCPs) were created—they did not “take off” until the Clinton Administration but under the leadership of Clinton’s Secretary of the Interior, Bruce Babbitt, HCPs became the “go to” method of resolving conflicts between conservation and conflicts with constituencies such as developers, ranchers, farmers, and state and local governments. The original ESA was focused on a single species by species approach while HCPs are actually advanced beyond this law to take a more ecology-wide approach with most HCPs providing for many different species. The Clinton-Babbitt Administration also emphasized other “incentive” based policies such as “no surprises” and candidate conservation with agreements (to protect unlisted species) that, in effect, revise the very nature of the ESA and make it more a “negotiation” approach than top-down dictation of terms.  Babbitt did this specifically due to his fear that if ESA continued to be viewed as an intractable block and threat to development projects and the interests of powerful groups such as ranchers and farmers that it would be totally undermined politically and be revoked.  These changes and the “new” ESA were dismaying to any conservationists who criticized many of the HCP agreements due to (from their perspectives) belief they compromised too much or due to their concern developers, extractive industries, and other interests are not likely to implement their promises (which is a real concern since implementation responsibilities are not spelled out in the law in any detail.)  But the overall point is that the ESA has been effectively updated and thus there is no sound basis for weakening of the current law. 
 
As a researcher on wildlife conservation, I have found few studies of HCPs in academic journals or books about the process of developing and implementing HCPs nor assessments of their effectiveness. However, the National Academy of Sciences has just published a review of the Edwards Aquifer Habitat Conservation Plan (for the San Antonio area of Texas)  that I find to be of great value in understanding the HCP process and illustrates many of the challenges that anyone seeking to conserve species must deal with. As I point out in Chapter 6 of my book on the ESA, HCPs vary greatly in size with a small number of them covering large areas and many species while many others are small in nature and likewise the resources of the groups running the HCPs vary greatly from small in terms of staff and resources to quite large staffs and resources as appears to be the case with the Edwards Aquifer HCP.  Thus the generalizability of this HCP is limited. However, as I read the National Academy’s analysis of the HCP, it turns up many of the themes on HCPs and wildlife conservation that I make in my book that are worth exploring here. First, the term of the HCP is 15 years which brings up the point that protecting and restoring species generally takes a long time, especially since many of the forces such as habitat destruction have been going on for generations and there is no quick fix for the causes of the problems.  The original impetus for this HCP was a court case brought by the Sierra Club in 1991 for failure to protect species in the aquifer—the Court mandated that the Texas Legislature take actions to protect these species. This illustrates how court actions or the looming threat of court actions provides the impetus for responsible actors to do something. The Texas Legislature authorized the creation of the Edwards Aquifer Authority in 1993. The development of an HCP began in 1999 but the plan presented after 5 years of work did not meet the criteria set by the Legislature. In 2006, USFWS formed an “implementation program” and in the following year, the Texas Legislature mandated that 4 Texas state agencies participate:  the Texas Department of Agriculture, Texas Water Development Board, Texas Parks and Wildlife Department and Texas Commission on Environmental Quality and they also set up a steering committee that included “river authorities” participate in the Edwards Aquifer Authority (EAA).  Indeed, there were numerous participants in the Authority to represent various “stakeholders” including the following: “water utilities, cities, groundwater conservation districts, agricultural users, industrial users, environmental organizations, individuals, river authorities, and downstream and coastal communities.”
 
The agreed-upon implementation plan was finally agreed to in 2011—thus it took 12 years from the start of the planning process to reach completion. Thus, for large-scale HCPs like this one, the planning process often takes many years to complete. Negotiations among such a large number of actors is a time-consuming process. One aspect of their plan is to pay farmers who participate in a “voluntary irrigation suspension” program—thus emphasizing the use of incentives rather than command to achieve participation—one of the themes of the “new” ESA of Clinton-Babbitt. This same emphasis on negotiation and voluntary actions has been continued by the Bush and Obama administrations. Although the emphasis has been on voluntary compliance, the potential threat of ESA listing and Federal court mandates provided the “hammer” that kept the process moving.”  For example, the original coordinator for the EAA, Dr. Robert Gulley, stated that “the approval of the habitat conservation plan will help protect the region from litigation under the Endangered Species Act….”  This account of the history of the project is based on the following article: http://twri.tamu.edu/publications/txh2o/fall-2012/developing-conservation-plan-for-edwards-aquifer/ 
 
To summarize, this HCP’s history illustrates the complexity of the new ESA—it emphasizes voluntary and negotiated agreements but the impetus for it requires the implicit threat of ESA listing and Federal court actions. If the latter are taken away, it is unlikely that anything resembling the conservation actions taken could have been achieved.
 
To detail more specifically the major actions taken, the Plan requires a reduction of 44 percent to maintain flows from the spring. Other restoration measures include aquatic vegetation restoration such as “removal of invasive plant species and replanting of native species” and “sediment management in the spring and river systems.” 
 
As with many major conservation projects like this, the plan employs “models” to determine what conservation measures should be taken in order to achieve goals.  One of the issues that I discuss in Ch.2 of my book is that there usually disagreements over assumptions and parameters built into models. In order to deal with these issues, the EAA modelers employ tools such as sensitivity analysis and test the model for how well its predictions are borne out. The modelers were able to make use of existing “hydrological” models but had to basically create an “ecological model” and they did this by focusing on the few species for which they had adequate data. The models will need be updated periodically—the Academy Report notes that the models already do not make use of the most up-to-date tools and data. In order to simplify their task, the EAA uses data on the Comal Springs riffle beetle (CSRB) because this “species were believed to be good indicator species for the impacts on other Covered Species.”  However, there turned out to be  disagreement about whether the CSRB is an indicator species so the EAA is “moving towards” detailed monitoring plans for the other covered species(e.g., dryopid beetles, Peck’s Cave amphipod, salamanders.)” This demonstrates the enormous data collection task facing implementing bodies and why they seek to use indicator species. 
 
The EAA considered 4 alternative courses of action and selected #2 which was expected to cost 261 million dollars over the 15 year period of the incidental take permit.  This is a huge number but, when one considers the value of the properties that will be developed in the area covered by the HCP, it is not that large. One of the other alternatives would have cost more than 400 million dollars. They justified their selection based on the fact this alternative would deal with the most “varied” forms of threats.  
 
One interesting dilemma faced by EAA is that part of their plan to support species such as the fountain darter is to reestablish native plants that support the species but the Academy found that “there is not enough new habitat from native plantings to maintain populations of fountain darter to balance non-native plant removal.” They suggest that two non-native species have been shown by data to support fountain darters but they acknowledge that “it may be unpalatable to consider non-native vegetation.”  This brings up an issue I discuss in my book in different chapters—can and should non-native species be used to substitute for the functions formerly performed by “native species.”  Many traditional conservationists reject this idea but it is one that the “new conservationists” such as Emma Marris and others support. 
 
The report concludes by citing measures and savings that various governmental bodies such as cities and universities have agreed to take to meet the requirements of the plan. A key point made in their conclusion is the need to continually monitor the plan and its success: “…performance monitoring should be done not only for the first year, but regularly during implementation, with a comprehensive synthesis of the monitoring data about every five years that goes beyond the simple trends analyses found in the HCP annual reports.”  Indeed, it is the need to monitor the implementation and success of HCPs which is at the heart of much of the concern that conservationists have with the “new ESA.”   
 
So, overall, how has the change to the “updated ESA” begun by the Clinton Administration worked?  I would argue that it was realistically a necessary step from a political perspective and also from a resources point of view—the USFWS simply does not have the resources and political resources to push a much more aggressive ESA policy.  However, assessment of the success of the implementation efforts must be done at some point to verify that this approach is working. The case study is based on the National Academy Science Report: Edwards Aquifer Habitat Conservation Plan REPORT 2. Committee to Review the Edwards Aquifer Habitat Conservation Plan. Water Science and Technology Board Division on Earth and Life Studies, National Academies of Science, Engineering and Medicine. Washington, D.C.: National Academies Press. 2017. https://www.nap.edu/catalog/21699/review-of-the-edwards-aquifer-habitat-conservation-plan-report-1