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I. INTRODUCTION |
Colorado's wildlife is one of its most precious and beloved resources. Recent surveys of state residents confirm that the ability to see the beautiful, unique animals of the western United States is one of the factors that brought them to the state -- and that keep them here. The popularity of wildlife is also reflected in the goals and objectives that Colorado's communities build into their local plans -- almost every recent comprehensive planning process for a town or city in the state has included a wildlife protection goal or objective. The citizens of Colorado are unwilling to believe that continuing immigration and development of the state needs to mean less wildlife -- they want development and wildlife to coexist.
Many Coloradans also realize that the state's importance as a destination for tourism, recreation, hunting, and fishing is also tied to our ability to preserve our wildlife populations. This has led to an increasing appreciation that wildlife contribute to both personal quality of life and to our collective prosperity. Many homebuilders and developers have come to the same realization that wildlife protection can make good business sense. More and more housing developments are including natural greenbelts, wildlife corridors, stream corridors, wetlands, and prairie views into their plans. Increasingly, buyers are willing to pay more for those amenities, and the development industry has been quick to respond.
Unfortunately, making development and wildlife coexist is not as easy as it seems. In the real world, the goal of wildlife protection inevitably comes into conflict with other private and public goals. As a result, the process of land development alters, fragment, and destroys wildlife habitat on a regular basis. After a few hundred years of consuming America's vast natural lands, we are finally coming to the realization that our development trends are diminishing a resource that has significant value. Our current activities that control and manipulate the natural environment will continue to usurp more and more of our natural resources if new approaches and management techniques are not developed and used.
Fortunately, nature is forgiving -- despite our bulldozers, road graders, and plows, wildlife does not stop at the city limits. Some form of a natural ecosystem exists in even the bleakest of cityscapes. In order to re-establish a higher quality living environment for humans and wildlife in our urban and rural communities, we need a framework for land-use decision-making that will benefit both humans and the natural environment. This requires a balanced commitment both to acknowledge the needs of growth and development and to implement responsible habitat protection.
A. GROWING INTEREST AND NEED TO PROTECT HABITAT
It is projected that by the year 2000, ninety percent of all United States citizens will live in urban areas. Urban growth results in the fragmentation and loss of natural wildlife habitat, and the process of urbanization will continue to alter the biological and physical components of existing ecosystems as development reaches into more and more natural areas. Even agricultural areas have contributed significantly to loss of wildlife habitat. Habitat diversity in agricultural ecosystems has declined drastically since World War II as hay and pasture requirements for animals have declined. In addition, agricultural activities to drain wetlands, consolidate fields, eliminate fence rows, eliminate idle fields, merge farms, and disturb or fragment grasslands have significantly reduced habitat and the resulting diversity of wildlife
The cumulative impact of land development has a devastating impact on natural ecosystems, and that impact extends far beyond the boundaries of developed areas. Although ecosystems adapt to naturally occurring changes, new conditions caused by residential and commercial construction may produce an imbalance that lasts for decades. In addition to destroying wildlife habitat, buildings, roads, fences, and other obstructions restrict natural wildlife migration. Some species are particularly vulnerable to such obstructions. If a fence blocks the movement of pronghorn, for example, the animals will generally not seek an alternative route, but will instead remain at the fence until they starve.(1) Impermeable surfaces also create heavy runoff that can erode riparian areas. Increasing development to accommodate people generally results in a decline in air and water quality, and we are only now discovering the full extent of the environmental contamination that has occurred over past decades. All of these factors affect the quality and quantity of wildlife habitat in developed areas.
Because of these factors, there is an increasing understanding of the need to protect Colorado's remaining areas of wildlife habitat. In addition, there is an increasing need to discover and use new tools that can successfully balance competing needs for wildlife habitat areas. Land use planners have an important responsibility to foresee harmful effects of human activity on the environment and to take action to prevent or mitigate further damage and to protect existing resources. In densely developed areas, it is important that protective measures stabilize wildlife habitats while allowing public enjoyment and appropriate uses of resources.
1. QUALITY OF LIFE
Coloradans increasingly realize that the presence and protection of wildlife improves the quality of their lives. There is an obvious value to wildlife habitat in areas where people live, even though it is difficult to assign actual values to that habitat. A look at the real estate section of almost any metropolitan newspaper reveals that people desire a natural environment and wildlife habitat near their home, work, school, and recreational areas. And this is true even if they never actually see the protected wildlife. The mere knowledge that wildlife is nearby and that we have contributed to its protection often improves the quality of our lives. Unfortunately, for many Americans, the concept of wildlife habitat is defined by an urban perspective. For the growing percentage of our population residing in cities and towns, wildlife is "out there," beyond where the sidewalk ends. Although many Colorado residents are able to enjoy a variety of birds and small mammals, the general concept of our surroundings is based on a built-up environment rather than as humans living within a larger natural environment. In addressing the multitude of competing interests surrounding economic growth and environmental protection, tough and sometimes expensive decisions must be made. Even though our land-use patterns tend to diminish wildlife habitat, paying attention to both man and nature should be mutually beneficial, not mutually exclusive. Development and environmental protection can and do coexist well if planning is applied in harmony with the environment rather than dominating it.
2. ETHICAL AND MORAL CONSIDERATIONS
Many Coloradans also feel an ethical and moral imperative to protect wildlife and its habitat
from the growing impacts of human development. For them, the words of Edward LaRoe, of the
National Biological Service ring true:
"Certainly extinction is natural; it naturally occurs as newer forms of life evolve. But
under the forces of population growth, technology, and special interests, humans have
driven the rate of extinction today to about 100 times -- two orders of magnitude --
the natural rate. Even worse, the rate of extinction is still increasing and will be 100
to 1000 times faster yet in the next 55 years; scientists predict that between now and
2030, half the expected lifetime of a child born today, the earth will lose between a
quarter and a third of all existing species. And this is in the absence of new forms of
life to replace them. The last time Earth lost this large a share of its life was 65
million years ago, when it may have collided with an asteroid; the impact of humans
on our planet today may have been last equaled by the collision of two heavenly
bodies."(2)
3. RECREATIONAL
The protection of wildlife also contributes substantially to the recreational opportunities
available to Coloradans. Birdwatching, wildlife hikes, fishing, and hunting are only a few of the many
recreational activities that depend on the availability of wildlife. In 1995, the Division of Wildlife
issued the following numbers of resident and non-resident licenses for recreational hunting and
fishing.
| TYPE OF ACTIVITY | RESIDENT | NON-RESIDENT |
| Deer | 116,629 | 73,501 |
| Elk | 128,859 | 97,428 |
| Other big game | 20,615 | 1,551 |
| Small game | 45,127 | 3,082 |
| Fishing | 417,928 | 224,267 |
| TOTAL | 729,158 | 399,829 |
During the same year, a significant percentage of Colorado's adult population participated in hunting and fishing activities.
| TYPE OF ACTIVITY | URBAN | SMALL CITY | RURAL |
| Big Game Hunting | 3.3% | 5.8% | 13.9% |
| Small Game Hunting | 3.7% | 6.4% | 9.4% |
| Fishing | 20.0% | 30.0% | 37.0% |
4. ECONOMIC IMPORTANCE/TOURISM
The protection and preservation of wildlife also contributes to the economic health of the state
through tourism and otherwise. In 1990, an economic impact model developed by the Colorado
Chapter of the Wildlife Society estimated that direct spending on hunting and fishing totaled over
$570 million (excluding spending by the Colorado Division of Wildlife itself) within the state. When
all direct and secondary spending were counted, the figure rose to over $1.3 billion for the state, and
this figure did not include the fact that the opportunity to view wildlife is considered to account for
about 20% of all general tourism to Colorado. In 1995, total expenditures by fishers and hunters
within the state totaled almost $1.7 million. Expenditures for fishing alone topped $400,000.
5. AVOIDING POTENTIAL FEDERAL INTRUSIONS
In addition, some Colorado communities feel that adequate protection of wildlife habitat will
help minimize the likelihood of federal intrusion into local decision making. Ever since its inception,
the Endangered Species Act has provided strict control procedures that will be invoked when a
species is listed as "threatened" or "endangered". Under the provisions of Sections 7 and 9, the
listing of a threatened or endangered species shifts effective decision making about habitat for that
species to the federal level. There is therefore an incentive for local communities and state
governments to find ways to protect and enhance habitat for different species in order to sustain the
numbers of that species and defer or prevent their listing as either threatened or endangered.
Although Section 10(d) of the Act now allows states and localities more voice in how certain habitats
will be managed, it still requires substantial coordination with the federal government. Active habitat
management on the local level before the Endangered Species Act is invoked can pay rich dividends
in protecting flexibility for local solutions.
B. INCREASED RELIANCE ON LOCAL INITIATIVES
Over the past ten years, local governments have begun to emerge as a prime partner and
implementer of effective wildlife preservation programs. This trend is the result of two important
factors. First, it reflects citizens that are increasingly vocal and involved with habitat conservation
issues at the local level. Second, it reflects a significant retreat of the federal government from
involvement with wildlife issues.
1. STATE AND LOCAL GOVERNMENTS STEP FORWARD
Because the preservation of wildlife contributes to the perceived quality of life for many residents, generates significant revenue through sports and passive tourism, and fulfills a growing sense of a moral obligation to protect wildlife, state and local governments have stepped into the field of habitat protection. Instead of relying on federal wildlife programs, local citizens and state legislators have often agreed to pursue the same aims at the local level. Their approach has often involved less money, less bureaucracy, more flexibility, and more local control than the programs they replace. Examples of this trend include the growing inclusion of wildlife components into community comprehensive plans and the growing number of sensitive lands ordinances that include wildlife habitat lands.
Perhaps the most dramatic example of the state government's growing interest in wildlife
protection has been the inclusion of habitat programs within the Great Outdoors Colorado ("GOCO")
initiative. In November 1992, the voters of Colorado approved a ballot issue directing that all lottery
proceeds be devoted to park and open space uses. To implement this initiative, the state created
Great Outdoors Colorado, which is authorized to divide the lottery proceeds into four different
funding categories. Under this structure, a substantial share of the total GOCO lottery proceeds are
allocated to programs of the state Division of Wildlife annually.
2. DECLINING ROLE OF THE FEDERAL GOVERNMENT
The importance of state and local efforts has been further highlighted by the retrenchment and restructuring of federal wildlife programs. Ever since its enactment in 1966, the strongest statement of the importance of wildlife and biological diversity to Americans has been the Endangered Species Act ("ESA"). Although originally aimed at curbing the poaching and smuggling of rare animals, the act has evolved considerably since then.(3) The act was amended in 1969, and a thorough revision in 1973 forms the core of the current act. Section 9 of the act prohibits the "taking" of an endangered species, which is defined to include hunting, killing, harming, harassing, or otherwise acting in ways that indirectly affect a species. The act has a broad scope and prohibits takings by private citizens, state and local governmental entities, and also authorizes citizen suits.
During the past ten years, however, the federal government's role in the protection of species
and habitat has been declining. As early as 1982, amendments to the Endangered Species act
allowing "incidental takes" of protected species showed the pressures to reduce federal protections
for wildlife. Those pressures have been reinforced by the need to balance the federal budget, which
has led to questioning of funding for environmental protection in general, and particularly those
programs that could slow down or stymie private development projects. Following the Congressional
election of 1994, both the Endangered Species Act and the Army Corps of Engineers' section 404
wetlands permitting procedures have been under intense attack by both Congress and property rights
advocates who argue that their effect on small landowners is often oppressive. Fortunately, many of
these efforts to roll back federal protections have resulted in strong public opposition and only limited
changes. The pressure remains, however, and it is probably wise to expect that the federal
government will not be on the leading edge of wildlife protection in the foreseeable future.
3. COLORADO'S SPECIAL ROLE IN THE ENDANGERED SPECIES ACT
In 1995, Colorado became the first state in the U.S. to execute an agreement with the U.S. Department of the Interior designed to give the state a greater role in the application of the Endangered Species Act. Under this agreement, the state Division of Wildlife will act pro-actively to prevent the populations of certain animals from declining to levels that would trigger the provisions of the ESA. Focusing on preventing wildlife scarcity problems rather than responding to them makes sense because it allows local wildlife biologists more flexibility to address the problem. It also avoids the relatively rigid requirements and remedies that come into force once a species is officially listed as "endangered" under the federal act.
Colorado already has experience in using a pro-active approach to increase the number of the
greenback cutthroat trout. By actively working to breed, stock, and distribute that fish, state and
federal biologists together increased the population from less than 1,000 in only two locations to
more than 70,000 in scores of streams and lakes. A species once considered threatened is now
thriving -- and may be delisted as a threatened species -- without the application of the Endangered
Species Act. The U.S. Department of the Interior is actively promoting the adoption of similar
agreements as a way of reducing federal involvement with the states in the future.
4. MOST LAND USE DECISIONS ARE MADE LOCALLY
Because of Colorado's long tradition of local self-government, most decisions regarding the use of land are made at the local level. The state's courts have long held that zoning and subdivision powers are matters of "local concern" that prevail over state concerns unless the General Assembly adopts specific legislation overriding or sharing those powers. Even so-called state land use acts such as "1041 powers" are aimed at enhancing the powers of local governments, and are generally triggered by local authorities rather than state authorities. As a result, some of the most powerful tools that can threaten or protect wildlife habitat are in the hands of Colorado's boards of county commissioners, city councils, and town boards. The members of those commissions and councils are often very familiar with the types of wildlife found in their communities. It is important that they also understand how their planning, zoning, subdivision, and other land use decisions will affect that wildlife. Thoughtful actions to protect wildlife habitat at the local level can often protect specific habitats better and cheaper than even the best-intentioned state or federal protection scheme.
Many Colorado communities are now taking the initiative to insert wildlife protection goals into their major planning efforts, and this is true in urban as well as rural areas. The award-winning Gateway Plan adopted in 1993 for the development areas around Denver International Airport incorporates a significant wildlife corridor, buffer requirements, and controls on vegetation and lighting near the corridor. Denver's 1995 Stapleton Community Plan likewise integrates wildlife protections into a well-conceived open space plan that acts as a framework for development. The American Planning Association honored the Stapleton Plan with a national award for outstanding planning in 1996. In addition, many Colorado communities -- ranging all the way from Denver to Summit County -- have begun to adopt regulations to implement their wildlife protection goals.
In addition, there is evidence that local voters have more tolerance for programs and
regulations designed and implemented at the local level. As the authors of a previous wildlife manual
stated:
"We believe that programs of land use control, even if fairly radical in
nature, will succeed if they are viewed as local programs, administered
by people living close to the land. For example, Weld, Saguache and
Baca Counties are all very rural, agricultural counties in Colorado.
All have implemented local soil conservation programs that prohibit,
in some cases, the plowing of fragile grasslands. Despite the
seemingly controversial nature of these ordinances, none have been
seriously tested in the several years they have been in place because,
local authorities believe, the rules are designed and directed by local
residents. Similar programs directed at the conservation of natural
resources, such as wildlife, probably will succeed if they remain under
the jurisdiction of local government."(4)
This handbook attempts to do four different things. First, it promotes an inter-disciplinary
approach to wildlife habitat protection. To do so, it presents a framework for thinking about wildlife
that integrates sound science, planning, and legal considerations. Second, it establishes a set of
biological principles that define a new way of thinking about wildlife habitat protection during local
planning and development review. Third, it presents a compendium of protection approaches and
a legal analysis of the strengths, weaknesses, and constitutional limitations of different habitat
protection techniques and strategies. Finally, this handbook will serve as a resource book regarding
innovative habitat protection programs throughout the United States.
Each section of this handbook serves a different purpose. In general, the next four chapters are addressed at Colorado's local governments -- because that is where most of the power lies and where most habitat protection on private lands can and does take place. The final two chapters briefly review the still-important role of the state and federal government in wildlife protection.
Chapter II sets forth a practical framework for thinking about the impact of development on wildlife habitat. It presents a set of simple graphics that distinguish between the urban, suburban, or rural context of the local government and then walks the reader through the typical habitat issues and the appropriate responses to the issues for each type of area.
Chapter III describes how a local government can design a solid foundation for a workable wildlife habitat protection program. It establishes a set of biological principles to use in drafting plans and reviewing development proposals, and describes how basic principles of landscape design and operation can be applied at both the site level and the broader landscape level in order to protect important habitat.
Chapter IV is a critical chapter, because it shows how the science of habitat protection links up with the administrative and legal tools of local government. The heart of the chapter is a matrix identifying which tools are best suited to addressing specific "landscape level" or "site level" problems indentified in Chapters II and III. A good understanding of this matrix will help you find those sections of Chapters V and VI most relevant to your concerns.
Chapter V identifies a full range of tools that local governments can use to craft an effective implementation system for habitat protection principles. It covers development incentives, public-private initiatives, regulatory controls, habitat acquisition options, education programs, and administrative tools that can help get the job done.
Chapter VI goes further to discuss the legal issues raised by different habitat protection tools. It reviews the need for appropriate enabling authority in state law, the need to guarantee due process, and how to avoid claims that habitat protection programs have "taken" private property rights.
Chapter VII outlines the role of state government in protecting wildlife. Among other things, it reviews national trends in state powers and describes specific programs undertaken by other states. It also describes in detail some important programs of the Colorado state government, including the Wildlife Resource Information System, the Heritage Areas designation, and the Natural Areas Program.
Chapter VIII describes the role of the federal government in protecting America's wildlife. Subsections of that chapter cover the National Environmental Protection Act, the Endangered Species Act, the National Biological Survey System, and the Army Corps of Engineers section 404 wetlands protection systems, among others.
Taken together, the combination of scientific background, practical techniques, and legal information presented in this handbook should give most of Colorado's local governments the techniques they need to begin protecting important wildlife habitat or to improve existing protection programs.
ENDNOTES TO CHAPTER I
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