The Keystone Dialogue on Incentives for Private Landowners Introduction This Report presents a wide range of incentives for private landowners to conserve threatened and endangered species. These incentive options, if adopted, should help reduce the controversy surrounding the Endangered Species Act (ESA) and improve the status of threatened and endangered species. The Report was developed by participants in The Keystone Dialogue on Incentives for Private Landowners to Protect Endangered Species, which included over 30 key individuals from: environmental, mining, ranching, and agriculture organizations; non-industrial private landowner groups, forest product companies; real estate interests; Congressional staff; federal and state agencies; and others. The Dialogue Group was convened by The Keystone Center, a neutral, nonprofit organization that facilitates national and international consensus-building policy dialogues involving diverse interests. The Dialogue Group presents the recommendations here as a set of ideas that it believes deserve further, more careful consideration in the course of reauthorizing the ESA. The Group recognizes that an assessment of the merits of the ideas presented here, including their costs and likely benefits to conservation, will require more analysis than the Group could undertake in the short time frame available for its work. Members of the Group participated as individuals and not as representatives of any organization. Endorsement of this report by the participating individuals does not necessarily imply support of its contents by the organizations with which they are affiliated. The Issue The current debate in Congress over reauthorization of the ESA is polarized on many issues, with the issue of "take" being particularly contentious. Controversy exists about how this provision of the law does and should apply to private landowners. However, all sides agree 'To "take" is defined as "[t]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. Sec. 1532. The Supreme Court, in the recent Babbitt v. Sweet Home Chapter decision, upheld a Fish and Wildlife Service (FWS) regulatory definition of "harm" which could apply to significant adverse modification that result in actual death or injury to listed species. conceptually on one point: that it would be highly desirable to further the goal of conserving endangered species through greater voluntary participation and involvement of the private sector and by providing positive incentives that reward landowners for taking action to protect or conserve endangered or threatened species and their habitat. Incentives for private landowners may take a variety of forms, including tax benefits, alternative regulatory and management approaches, direct payments, greater participation in decision-making, and technical assistance, among others. There has been agreement at the theoretical level that such incentives are desirable; however, their actual design, cost, and implementation have been given only modest attention to date. In addition, there have been limited opportunities for the various stakeholders and interested parties to explore areas of agreement on the nature of effective incentives. The Keystone Dialogue on Incentives for Private Landowners to Protect Endangered Species sought to address this need by providing a forum for discussion and consensus-building on the development of incentives and the removal of disincentives. The Dialogue Group agreed that conserving endangered species is an important national goal, but that endangered species protection is a public concern and should not unfairly burden individual private property holders. While Dialogue participants could not reach consensus on the issue of compensation to private landowners, all participants agreed that enactment of incentive programs, such as those contained in this Report, would help address fairness to landowners as well as endangered species protection. Dialogue participants also acknowledged that many of the proposals contained in this Report will require additional funding. However, the Dialogue Group feels that such expenditures will increase species protection, reduce animosities and litigation associated with the ESA, and create significant long-term cost savings. Given the current political climate to reduce spending, Dialogue participants have proposed ways to generate the money needed through mechanisms such as revolving funds. The issue of incentives for private landowners appears to provide the best opportunity for a diverse group of interests to reach some agreement. It is hoped that the recommendations in this Report, and the discussions in which they were reached, will positively impact the ESA debate and help provide solutions to very difficult issues. Scope of the Recommendations and Discussions Dialogue participants discussed a wide range of ideas for creating incentives and removing disincentives. The Dialogue Group developed 18 proposals on which there was general consensus. Consensus was defined by the Dialogue Group to mean that participants could live with a proposal. Individual participants therefore might support some proposals more than others. There were three areas of proposals: Increasing Participation in Voluntary Endangered Species Conservation Pre-Listing Conservation Agreements Safe Harbors "No Take" Cooperative Agreements Guidance to Landowners and Agencies at Time of Listing Recognition/Award Program Conservation Reserve Program Approach for Endangered Species Increased Regulatory Flexibility Habitat Conservation Planning Streamlining the HCP Process Seed Money for Community-based HCPs Financial Incentives and Resources Estate Tax Reform Estate Tax Concepts for Land Conservation Federal Tax Credits for Endangered Species Management Practices Deducting Costs Associated with Endangered Species Habitat Endangered Species Habitat Trust Fund In order to jointly evaluate these ideas and help determine which held the most promise for potential consensus proposals, participants developed a list of characteristics they would like to see in any program to create incentives or remove disincentives. Specifically, Dialogue participants felt that any incentive program should: be voluntary; be financially feasible (for the landowner, relevant government agencies, etc.); have a positive ecological impact; be appealing and useful to landowners; encourage partnerships; be politically feasible; be simple and clear; achieve a balance between consistency and flexibility; provide certainty for the landowner; be implemented at the management level (local, state, or federal) appropriate to achieving the desired result; consider anti-trust implications; consider different regulatory scenarios; and consider the relationship of the incentive to other statutes. The Dialogue Group made no assumption about whether the existing regulatory requirements will be continued as they currently are, changed, or eliminated altogether. To the extent possible, the Group's proposal should have merit regardless of what Congress chooses to do with respect to the existing regulatory requirements. Some of the tax proposals are clearly of this type. Other proposals necessarily assume that some form of regulatory requirement will continue, though the nature of those requirements could be altered. For example, all the proposals related to Habitat Conservation Plans (HCPs), and the various proposals incorporating some notion of "safe harbor," necessarily assume some form of regulatory requirement, since without any regulatory requirements there will obviously be neither HCPs nor any need for safe harbors. It was recognized that issues beyond the scope of the ESA hamper the overall ability of stakeholders to engage in innovative approaches to protecting endangered species. Provisions under the Federal Advisory Committee Act (FACA) and various anti-trust laws have constrained the use of cooperative approaches to implement the ESA. While the Dialogue Group recognized the fundamental intent of FACA to promote open decision making and the importance of anti-trust laws, participants agreed that these overriding issues need to be addressed but were beyond the scope of this Dialogue. The Dialogue Process The goal of this Dialogue was to outline strategies to eliminate disincentives and promote incentives for endangered species conservation on private lands. In order to achieve this goal, Dialogue participants adhered to three ground rules: 1) People participated as individuals, not as formal representatives of their 2) All conversations were off-the-record and not for attribution. 3) The Final Report was not released to the public until agreed to by the entire Another informal ground rule was that documents produced in meetings or by a Dialogue member could be circulated to others outside the Group for comment, with the explanation that they were draft discussion pieces only and did not represent the consensus of the Group. |