VIII. THE NATIONAL ROLE IN WILDLIFE HABITAT PROTECTION

In spite of the increasing importance of local and state governments, the federal government continues to play an important role in wildlife habitat protection. Since 1992, efforts to remove the federal government from wildlife and environmental issues have met with mixed success, and several key pieces of federal legislation have been re-authorized. Key areas of federal involvement will include regulations, incentives, and land acquisition and management programs for the protection of endangered and threatened species, the preservation of wetland areas that serve as valuable habitat for numerous species, and the conservation of land in general. While federal regulation in those areas is not expected to expand in the future, existing programs and regulations will continue to be important. The continued influence of the federal government will be particularly important in states like Colorado with vast tracts of federal land with prime habitat areas.

The future of habitat protection will therefore resemble an increasingly balanced partnership, with local, state, and federal governments each exercising unique protection powers. It is important that Colorado's local elected officials and residents understand the range of federal tools and programs available to supplement local habitat protection efforts. This chapter identifies the more important federal programs and summarizes their most significant provisions.

A. THE ENDANGERED SPECIES ACT

1. THE ORIGINS OF THE ESA

The Endangered Species Act ("ESA") was originally aimed at curbing poaching and smuggling of rare animals. It has evolved considerably since its first enactment in 1966, and was thoroughly rewritten in 1973.⁽¹⁹⁰⁾ Section 9 of the act prohibits the "taking" of an endangered species. This term is defined broadly to include hunting, killing, and other actions that indirectly affect a species -- such as harming or harassing the animals. The act has a broad scope and prohibits takings by private citizens or by state and local governments. It also authorizes citizen suits to enforce the act.

In early litigation under the act, environmental groups persuaded the 9th Circuit of the U.S. Court of Appeals that the destruction of the essential habitat of a threatened or endangered species constituted a taking of the species in violation of the act.⁽¹⁹¹⁾ The Sierra Club Legal Defense Fund, making the argument, was also the first group to use the Section 9 provision as the basis for a citizen suit. Building on that foundation, the U.S. Fish and Wildlife Service began to use a definition of a "take" of an endangered species to include not only actions that "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in such conduct" but also any "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." The result of this definition was to significantly broaden the scope of the act beyond activities deliberately aimed at harming or injuring animals. Overruling a decision by a federal appellate court, the U.S. Supreme Court upheld this broad reading of the terms "harm" and "take".⁽¹⁹²⁾

Section 7 of the act requires the mapping of the "critical habitat" areas that a species needs to survive and the establishment of "recovery plans" for each listed species. Although priority is to be given to species that may be in conflict with economic development, federal agencies have been largely unable to fulfill these directives in pace with the demands of the development community. While the absence of designated critical habitat or a recovery plan does not defeat the protection of a species, the enforcement of the act has resulted in severe penalties being placed on developers who had no way of knowing in advance that development activity would be determined to be a taking of a species.

Section 7 of the act includes a provision for authorizing "incidental takes" for federal activities. For federal projects, the agency must consult with the U.S. Fish & Wildlife Service to determine whether any listed species are present. If a threatened or endangered species is present, the agency must undertake a biological assessment to determine whether the activity would put the species in jeopardy. There is also a possibility of an exemption granted by the Endangered Species Committee, but the required showings are very difficult to achieve. In the case of the snail darter, an endangered fish, a Section 7 exemption was not granted and the construction of a large dam was precluded.⁽¹⁹³⁾

2. HABITAT CONSERVATION PLANS

The rigidity of Sections 7 and 9 and the absence of a permitting provision for non-federal activities has created the need to resolve endangered specie land-use conflicts in the private sector. In an early example of private sector initiative, a developer and local environmental interest groups formed a committee and prepared a workable habitat protection plan for a development that affected several butterfly species, which are an important indicator of the overall health of ecosystems.⁽¹⁹⁴⁾ Under the San Bruno plan the developer donated over 80% of the critical habitat area to the county, development was allowed to proceed on 14% of a critical habitat, and an annual contribution of $60,000 was paid to the county government to offset management costs for the donated land. The U.S. Fish & Wildlife Service approved the plan even though it was somewhat experimental.

Based on the San Bruno plan, the Endangered Species Act was amended in 1982 to authorize the issuance of "incidental take" permits for private sector land development activities. Section 10(a) now provides for the preparation and approval of a habitat conservation plan ("HCP") as the basis of a permit.⁽¹⁹⁵⁾ The process is more extensive than the process required to authorize incidental takings in connection with federal actions under Section 7. If the proposed HCP is authorized by the U.S. Fish & Wildlife Service, development activities following the terms of the plan are considered to be exempt from potential violations of the act. An HCP needs to address biological, economic, and political issues. Another important component of many successful plans is the ongoing management of protected habitat areas for both biological integrity and damaging human activities. Successful plans also attempt to enhance the survival of the threatened species.

An HCP can be for a single development project or for a multi-jurisdictional area with many different issues. At a minimum, Section 10(a) requires an HCP to specify (1) the impact that will result from the taking, (2) steps that will be taken to minimize and mitigate the taking, (3) funding to implement the plan, (4) an analysis of possible alternative actions including why they were not chosen, and (5) other elements if found necessary or appropriate. A permit may be issued if the following four standards are met: (1) the taking is found to be incidental to an otherwise lawful activity, (2) impacts will be minimized and mitigated to the maximum extent practicable, (3) implementation of the plan will be adequately funded, and (4) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.

Most HCP plans are prepared by an independent consultant and involve a steering committee made up of major stakeholders and community representatives. The committee is frequently chaired by a neutral group or conservation entity. Specialists are hired by the consultant to perform background studies. Most HCPs set aside a certain amount of land in habitat preserves and typically include other long-term management techniques such as habitat restoration and land-use controls. Since the 1982 amendments, at least 18 HCPs have been prepared. The plans prepared to take advantage of Section 10(a) are sometimes called "special area management plans", "resource management plans", "watershed plans", or "natural community conservation plans". Regardless of their names, all of them use the same collaborative process of including both private and public stakeholders interested in a more flexible set of options than allowed by Sections 9 and 7 alone. Even though the HCP process adds considerable costs to a development project, the development community has responded positively and several plans have now been approved and are in various stages of implementation.

As might be expected, the HCP process has been criticized by some and praised by others.⁽¹⁹⁶⁾ Critics believe that the plans undermine and erode the intent of the Endangered Species Act and that HCPs simply put a price on environmental destruction. Supporters argue that the plans are a much needed vehicle for flexibility and the scientific analysis provides a sound method of addressing environmental issues at the appropriate point in the development process. They agree that although there are many compromises in the development of an HCP, the process provides a forum that can diffuse hostilities between polarized interest groups and the result is generally a net benefit regarding the core environmental issues.

3. NATURAL COMMUNITIES CONSERVATION PLANNING PROGRAM

While HCPs result in both positive and negative effects for environmental and economic issues, a more general criticism can be directed towards the underlying single-species approach of the Endangered Species Act itself. An HCP does address the habitat needs of the subject threatened or endangered species, but is not required to analyze the larger biological patterns or effects on an entire ecosystem. This may result in incomplete studies and inadequate conservation measures, even after considerable sums have been spent on the development of the plan.

A multi-species approach to habitat conservation would magnify all the problems associated with environmental regulation and would essentially be beyond the scope of the Act. California has addressed this situation by initiating its own Natural Communities Conservation Planning Program ("NCCP") that attempts to identify and resolve issues before the Endangered Species Act is applicable. In essence, the NCCP uses local planning resources to find ways to protect substantial assemblages of habitat land before the area becomes so fragmented or compromised by development that the listing of individual species is likely under ESA.

Because of its species-specific approach, the ESA often attempts to protect small, disconnected parcels of land where significant numbers of the threatened species exist, but not the larger tracts that would allow the continued health of the entire ecosystem of which the threatened species is a part. NCCP takes the broader view. Partners in the program -- which include several agencies of state government and developers -- enroll in the program and agree to set aside critical habitat areas and to monitor the ecosystems within them. California believes that the NCCP program improves on standard ESA practice because it adds certainty to both the environmental and development communities, it provides technical assistance to prevent rather than fix problems, it avoids the need for single species recovery plans, and it allows limited interim development while an NCCP is being developed for the area. When a species is listed as threatened under ESA, the existence of an NCCP program can lead to a special rule under section 4(d) of the act. Section 4(d) rules are a third alternative to rules under section 7 or 10(a) of the act, and involve state and local governments as partners in the process.

4. COLORADO'S MEMORANDUM OF UNDERSTANDING

Colorado has recently become 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. This agreement may have implications for the design of local habitat protections. In particular, as the Colorado Division of Wildlife acts pro-actively to prevent some species populations from declining, it may need the assistance and cooperation of Colorado's local governments. In some cases, the DOW may need to request that local programs be initiated or expanded to focus on habitat that is necessary to avoid application of the Endangered Species Act. On the positive side, if the state is successful in working with local governments to craft unique solutions within Colorado, local governments may reap the benefit of being able to plan for habitat protection without having to work around the rigid federal requirements and remedies of the ESA in some cases.

B. THE NATIONAL BIOLOGICAL SURVEY/BIOLOGIC DIVISION

For almost a century, there have been calls for the federal government to create a comprehensive biological inventory for the country. One hundred years ago, a division of biological survey was formed within the U.S. Department of Agriculture. In 1939, that function was transferred to the Department of the Interior, where it became the Fish & Wildlife Service. While many of the original goals of the agency were developed, the "survey" function gradually declined.

More recently, concerns over the loss of species, wildlife habitat, and other natural resources has created a myriad of environmental regulations at the local, state, and federal government levels. Across the country, these regulations have led to serious conflicts between environmental protection and economic growth. The Secretary of the Interior has termed these situations "economic and environmental train wrecks," because they sometimes lead to the derailing of major construction projects at the last minute because of an endangered species, wetlands, or late-emerging environmental issue. The increasing complexity of environmental regulation and the desire to minimize the number of future "train wrecks" has led to renewed calls for a comprehensive biological survey.

In 1994, in order to help balance the goals of ecosystem protection and economic progress, the U.S. Department of the Interior spearheaded the formation of the National Biological Survey ("NBS"). Essentially, the NBS was created by drawing research scientists from various divisions of the Department of the Interior into a single new agency. The charge of the NBS is to inventory, map, and monitor the nation's natural resources and to provide objective information about the environment to assist decision-making by a variety of federal agencies. The NBS is envisioned as a combination of several existing programs and environmental specialists from several departments that would act as an independent science bureau. It would not advocate positions on resource management issues and would not have regulatory or land or water development authority. Instead, it would provide information to help:

• Identify ways to preserve the nation's biological heritage.

• Manage biological resources in a sustainable manner.

• Maintain essential ecological services, such as water supply, flood and erosion control, and climate amelioration.

• Understand the impact of human settlement patterns including metropolitan growth, renewable land use, and non-renewable resource extraction.

• Maintain the contributions of our nation's biota to the aesthetic quality of life.

• Understand the effects of climate change.

• Derive new economic wealth from biological resources.

• Restore degraded environments.⁽¹⁹⁷⁾

Recently, the National Biological Service's Status and Trends Program produced an impressive first product titled Our Living Resources: A Report to the Nation on the Distribution, Abundance, and Health of U.S. Plants, Animals, and Ecosystems, which is recommended as a reference work.

Although recent federal legislation has redefined NBS as the Biologic Division of the U.S. Geological Survey instead of a free-standing agency (effective September 1, 1996), its charge and role as a center for research science has not been altered. It is too early to tell whether the re-organization of the NBS into a sub-agency will lead to a dilution of its role or reduced funding in the future.

C. THE NATIONAL ENVIRONMENTAL POLICY ACT

The National Environmental Policy Act ("NEPA")⁽¹⁹⁸⁾ applies to actions undertaken, sponsored, and in some cases permitted by the federal government. The act is primarily a procedural mandate that requires all federal agencies to conduct an evaluation of any action that may be defined as a "major federal action" that may involve a "significant impact on the natural environment." While judicial interpretations of this threshold definition vary with the circumstances, NEPA generally imposes a requirement that the agency at least consider all environmental impacts of a given action, as well as the alternative actions and measures that may mitigate such impacts. Although NEPA does not effect an outright prohibition even on those federal projects that do involve adverse environmental impacts, it does operate to provide more information about the potential adverse impacts of such projects and opens them to public scrutiny. Among those factors that must be considered is the effect of the proposed project on wildlife populations.

Many state governments have emulated the National Environmental Policy Acts with "little NEPAs" that apply to state-permitted or funded projects. As might be expected, while these state acts generally resemble NEPA language and intent, there are wide variations from state-to-state. Thus some do not apply to local governments, and others cover only discretionary decisions. Colorado has not adopted a state equivalent to NEPA.

Even since its inception, NEPA has been controversial. Its supporters call it a big step forward in requiring project sponsors to think about environmental issues that were previously ignored. There is little doubt that NEPA has helped provide additional information for decision-makers, which should help them make better decisions. In many instances, the required Environmental Impact Reviews and Statements have shown how projects could be altered in minor ways to avoid adverse impacts while still achieving the purpose of the project. On the other hand, NEPA critics who oppose environmental protection have called it a waste of time and money that can only slow down development. Even environmentalists and wildlife supporters have criticized its lack of mitigation requirements and the fact that it sometimes leads to only a cursory or perfunctory review of complex issues. There is little doubt that NEPA studies and procedures can be costly and time-consuming, particularly if the proponent must itself collect information about the environment that is not available from another source. There is also no doubt that a project sponsor intent on ignoring the environment will not be stopped by NEPA, since there is no effective requirement that decision-makers modify their projects to reflect environmental findings.

D. SECTION 404 WETLANDS PROTECTION

Section 404 of the Clean Water Act⁽¹⁹⁹⁾ is relevant to wildlife habitat protection whenever desired habitat will involve wetland areas. This federal act is administered jointly by the U.S. Army Corps of Engineers and the Environmental Protection Agency, and provides significant opportunities for comment and involvement by the U.S. Fish and Wildlife Service. Section 404 creates a permit system that regulates disturbances of wetlands when that disturbance will affect more than one acre of the wetlands. Although the President has recently discussed Executive Orders that would provide broad exceptions for single family homeowners involved in improving their own property for their own use, the permit requirements for land developers or builders are still strict. Permits can be denied if a proposed activity -- including any dredging, channelization, or development in a wetland will result in a "significant degradation" of wetlands. Significant degradation can include diminished recreational or aesthetic values as well as damage to aquatic systems. In addition, permits can be issued with conditions requiring mitigation of wetlands loss by restoring existing wetlands or creating new wetland areas.

Colorado's local governments should be aware that the need for a Section 404 permit may discourage development in wetlands and make it easier to steer development away from wetland habitats. If the existence of wetlands is documented as part of a local wildlife habitat inventory, that information should be passed on to both the Division of Wildlife and to the U.S. Fish and Wildlife Service so that it can be considered in future 404 permitting activities. In addition, when a developer proposes to build in a wetlands and then mitigate the impacts off-site, the developer may be looking for an existing wetlands to restore as part of the mitigation process. Colorado's local governments should therefore be prepared to suggest wildlife habitat areas where restoration or expansion of an existing wetland would promote the quality of the habitat itself.

In order to accommodate the need to mitigate wetlands off-site, some states have recently begun creating wetlands mitigation banks. The mitigation bank idea arose from criticism that builders were sometimes mitigating their impacts on large wetlands by expanding small ones that were not sustainable or not large enough to achieve the goals of aquifer recharge, water quality improvements, or wildlife habitat protection. The intent of the bank system is to designate large and healthy wetland areas -- often those that support a wide variety of wildlife species -- and encourage developers to expand and improve those areas. In some cases, private investors have actually purchased significant healthy wetland areas and then sold the rights to improve and restore the buyers on an acre-by-acre basis. Potential buyers include builders looking for mitigation sites and an opportunity to get positive publicity by participating in a large and visible habitat area. To date, more than 46 wetlands mitigation banks are operating in the U.S., with most of those located in California and Florida. Oregon, Minnesota, New Jersey, Colorado, and other states have specifically endorsed the creation and operation of wetlands mitigation banks.⁽²⁰⁰⁾

E. FEDERAL LAND PRESERVATION INCENTIVES

Some federal laws offer financial incentives for land protection or impose disincentives by withholding government subsidies for adverse land uses. In many instances, the types of land protected may have important wildlife habitat value. While the scope and funding of these programs is under increasing pressure in Washington, programs such as the Wetlands Reserve Program and the Conservation Reserve Program still exist. In general, federal incentive programs are based on a simple and compelling argument that the government should not subsidize land uses that are harmful and contradict other established laws or policies. Such programs have proven to be very effective in the context of agricultural and wetlands protection.

1. WETLANDS RESERVE PROGRAM

The federal Food Security Act of 1985 and the Food, Agriculture, Conservation, and Trade Act of 1990, known as the "farm bills," established a number of programs designed to provide incentives for retaining wetlands. Perhaps the most significant such program was provided in the "Swampbuster" provisions of the Food Security Act. These established a Wetlands Reserve Program⁽²⁰¹⁾, which offers incentives for preservation of up to 1 million acres of wetlands as well as disincentives for conversion.

Under this program, participating farmers prepare and implement wetlands conservation plans and the federal government pays the farmer for the value of the use of the conserved lands as well as a portion of the costs of restoration and conservation. In addition, if the farmer chooses to convert wetlands to agricultural use, the farmer becomes ineligible for federal agricultural price supports, crop insurance, or any other federal agricultural subsidy programs. By thus maintaining a preservation incentive while eliminating competing incentives to convert wetlands, the federal government has provided a program that promotes the retention of wetlands and related habitat without causing financial harm to farmers. 1992 pilot program involved nine states, 50,000 acres of land, and $47 million in funding. The 1996 reauthorization of the Farms Bills continued the Wetlands Reserve Program, but its scope is still modest. The program now authorizes the inclusion of 12,000 to 18,000 acres of land within Colorado.

2. CONSERVATION RESERVE PROGRAM

Also included in the 1985 and 1990 farm bills are programs establishing a Conservation Reserve Program⁽²⁰²⁾. Under this program, the federal government offers payments and executes voluntary 10 year agreements with farmers who elect to remove highly erosive cropland from production, thereby reducing environmental damage from runoff and preserving wildlife habitat. This should help offset some of the strongly negative affects of our increasingly monoculture agricultural industry on wildlife since WWII. About 36.4 million acres have been removed from production for at least 10 years under the program so far and have been planted with tame or native grasses. One important additional benefit to wildlife has been to reduce pressure on 32 million acres of grass interspersed with lands remaining in production.⁽²⁰³⁾ Almost 2 million acres of agricultural land within Colorado is included in the program -- or approximately one-sixth of all the tilled land in the state. The Conservation Reserve Program has been continued under the 1996 reauthorizations of the Farms Bills, in no small part because it has been shown to be a very cost effective way of reducing pollution that would otherwise have to be abated after the fact.

F. FOREST STEWARDSHIP INCENTIVES PROGRAM

The 1990 Farm Bill recognized the importance of stewardship of private forest land and land suitable for growing trees as a vital element in the conservation of the nation's natural resources. The bill created the Forest Stewardship Program ("FSP") and the Stewardship Incentives Program ("SIP"), which are administered nationally and regionally by the U.S.F.S. and at the state level by the Colorado State Forest Service. The FSP provides education and technical assistance to private landowners. The SIP assists private landowners to implement the land stewardship activities recommended in their long-range forest plans and to manage their property for a variety of environmental benefits, including wildlife habitat. The program applies to landowners owning between 2 and 1000 acres of land suitable for growing trees, provided they meet eligibility requirements and implement their plans according to applicable regulations for a minimum of 10 years. Under the SIP, cost-sharing can be used to promote the development of forest stewardship programs, reforestation, agroforestry, forest improvement, riparian and wetland protection, and the enhancement of fisheries and wildlife habitat. From 1990 to 1995, $1 million was distributed in Colorado to support the implementation costs of nearly 1,000 stewardship programs.

G. USDA ENVIRONMENTAL QUALITY INCENTIVES PROGRAM

USDA Environmental Quality Incentives Program ("EQIP") is a new cost-share program under the federal Agriculture Improvement and Reform Act⁽²⁰⁴⁾ that combines the functions of several existing USDA cost-sharing programs, including the Great Plains Conservation Program and the Colorado River Basin Salinity Control Program. The overall benefit of the combined program is the collaborative efforts between the various agencies to ensure that the program runs successfully. The Natural Resources Conservation Service is responsible for policies, priorities, and guidelines. The Farm Services Agency is responsible for administering the program at the state and local levels. Under EQIP, five- to ten-year contracts will be available to landowners to provide cost-share and incentive payments for up to 75% of the cost of installing conservation practices. EQIP is intended to make the administration of programs and funds more efficient. Payments to any person are limited to $10,000 annually and $50,000 for the life of the contract.

H. FEDERAL LAND OWNERSHIP AND MANAGEMENT

About 50% of all threatened and endangered species listed under the Endangered Species Act occur at least once on federal land. In addition, about 36% of the more than 24,000 occurrences of federally listed species are found on federal lands. In some cases, more than 50% of the population of a threatened or endangered species lives on federal lands. As a result, the federal government can have a dramatic impact on the preservation of certain species simply through its actions as a landowner -- and apart from its role in land regulation. This is particularly true in a state like Colorado, where the federal government owns more than one-third of all the land in the state. The federal agency with the largest opportunity to protect endangered species is the U.S. Forest Service, because 16% if all occurrences of listed species occur on lands that it manages. Lands managed by the Bureau of Land Management house 8% of the occurrences. Lands controlled by the Department of Defense account for 4% of occurrences, and lands managed by the U.S. Fish and Wildlife Service and the National Park Service each account for 3% of occurrences.⁽²⁰⁵⁾

I. OTHER KEY FEDERAL LAWS AND POLICIES.

1. U.S. FISH & WILDLIFE SERVICE

The U.S. Fish & Wildlife Service ("USFW") plays a key role in many wildlife habitat protection issues, but it is not responsible for all federal wildlife concerns.⁽²⁰⁶⁾ The mission of USFW mission is tied to national goals, which frequently involve migratory, endangered, interjurisdictional, and international wildlife issues. USFW activities are also primarily concerned with public lands and land set aside specifically to protect critical wildlife habitat. In addition to its primary charge, the USFW also perceives the need to provide the public with opportunities for non-consumptive wildlife activities. Most USFW programs also attempt to set an example to encourage responsible stewardship for the environment and promote citizen involvement in wildlife issues.

It is important to recognize that state governments have a much different role in protecting wildlife habitat based on their various responsibilities to fulfill broad public interests, and local governments have a different role because of urban characteristics and interests. Because relatively little federal land is located in urban areas, the scope of USFW activities in urban areas is limited. One notable exception is the Rocky Mountain Arsenal, whose 27 square miles represent a huge urban wildlife reserve of great importance to the state and the region.

2. U.S. FOREST SERVICE

The Forest Service -- which is a division of the U.S. Department of Agriculture -- promotes wildlife habitat protection through its land management practices on the land that it controls. All Forest Service lands are managed under the multiple-use philosophy, which attempts to balance wildlife habitat protection goals with public recreation goals. Many aspects of habitat management practices of the U.S. Forest Service provide excellent models for developing local programs and philosophies.

3. BUREAU OF LAND MANAGEMENT

The Bureau of Land Management is a division of the Department of the Interior that operates under a multiple-use mandate contained in the Federal Land Policy Management Act. A recent strategic plan for the Bureau of Land Management listed fish and wildlife protection as a top priority for the agency.⁽²⁰⁷⁾ The plan represents a new ideology for the BLM and a very progressive attitude towards wildlife habitat protection. The new policies bring fish and wildlife issues, riparian restoration, and recreational priorities more in line with traditional BLM functions of mineral resource and rangeland management.

The implementation policies of the Fish and Wildlife 2000 plan contain some key innovations. For example, the plan targets working cooperatively with state, local, and private interests to achieve common goals and promotes a cost-sharing program to help fund multi-jurisdictional projects. The plan represents a positive change from the BLM's historical tendency to be driven by issues and events and hopes to establish a pro-active attitude to influence and shape the proper management of valuable natural resources. As urbanizing areas continue to encroach on more and more natural resources, this new philosophy could become a valuable asset for future habitat planning efforts.

4. NATIONAL PARK SERVICE

The core philosophies of the National Park Service -- another agency of the Department of the Interior -- present an interesting perspective for wildlife habitat protection. In the face of prevailing wisdom that significant compromises must take place to accommodate both human and wildlife needs, the National Park Service holds fast to the idea that a natural area must be preserved or restored to a completely natural state.⁽²⁰⁸⁾ The basic philosophy that our National Parks should be natural systems functioning under natural processes is often criticized as an unworkable approach to a complex issue, but is increasingly being seen as an ecosystem approach that can help mitigate some of the major shortcomings of the Endangered Species Act.

For example, the National Park Service strives to eliminate any plant or animal introduced to the area with human help, even if the species may be considered desirable. The result is that the original integrity of the natural area is effectively protected without going through an extensive biological analysis required to draft a Habitat Conservation Plan under the ESA. The changing desires of the American people continue to challenge the National Parks philosophy, however.⁽²⁰⁹⁾ As Americans take shorter but more frequent vacations and travel shorter distances, National Park visits near urban areas have increased. This also increases the likelihood of damage to park resources as a result of the park's inability to handle larger numbers of visitors within its ecosystem approach.

Because of the recent development of several national recreation areas in cities, the National Park Service has become involved in the relatively new field of urban wildlife biology.⁽²¹⁰⁾ Through research, management, and interpretation of urban wildlife issues, the National Park Service has shown that wildlife populations can thrive even in highly disturbed areas. The Service's increased willingness to work in disturbed environments will become a valuable tools for habitat protection measures in urban areas.

5. LAND AND WATER CONSERVATION FUND

The federal Land and Water Conservation Fund was established in 1965 to support federal purchases of national park, recreation, and conservation areas, and to make grants to state and local governments to acquire, develop, and improve recreation areas.⁽²¹¹⁾

That purpose has been interpreted to include the acquisition of endangered species habitat. Revenue for the fund comes from leases of rights to resources along the Outer Continental Shelf, motor boat fuel taxes, recreational fees, and the sale of surplus federal property. The combined receipts from all those sources totals receipts $3 or $4 billion annually, but the full amount of receipts has never been made available for spending. Congress authorized a maximum annual spending limit of $900 million, and the actual spending in any one year is usually closer to $200 or $300 million. As a result of spending less than is received, the unspent balance in the fund is now about $8 billion. Over the thirty years that the fund has been in existence, $5.3 billion has been spent for federal acquisitions of land, and $3.2 billion has been spent for state acquisitions. At present, 80% of the fund is allocated to federal acquisitions and the remaining 20% to the states.

ENDNOTES TO CHAPTER VIII

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