CHAPTER 4
ENCOURAGEMENT THROUGH
“CARROTS” AND “STICKS”
This chapter and the next one explore the role of government as an institution at a programmatic level in collaborative efforts. In this chapter, a governmental institution, the Endangered Species Act (ESA), plays an important role in encouraging collaboration. Rather than simply being one of many laws that can stymie public agencies and private actors in court, thereby creating problems in local communities, the ESA authorized a proactive program for habitat conservation planning that created a venue for collaboration among a wide range of stakeholders. Public and private actors participate in this federal program to avoid the ESA's more stringent command-and-control rules.The ESA does not require collaboration as a condition for participating in this program; instead, government officials offer incentives to encourage collaboration.This chapter uses the case of habitat conservation planning to assess how governmental actors can use their influence through command-and-control rules, in combination with other incentives, to encourage collaboration.
THE ENDANGERED SPECIES ACT AND HABITAT CONSERVATION PLANNING
The Endangered Species Act is a landmark piece of federal legislation designed to prevent species loss. When the ESA became law in 1973, policymakers tended to believe that particular types of human activities, such as hunting, were the primary causes of extinction. Their understanding was partially accurate, because hunting had decimated some well-known species, such as the passenger pigeon, bison, and gray whale, and because they thought largely in terms of charismatic species, such as marine mammals and the bald eagle. Yet scientists and environmental activists saw a bigger picture. Many more species—particularly less charismatic ones that most Americans knew little or nothing about—were nearing extinction or headed in that direction, and the primary cause of their decline was not hunting. It was, and still is, loss of habitat.
Throughout the world, the leading cause of the decline and extinction of species is habitat transformation, including fragmentation, degradation, and loss. Therefore, reversing the decline of most species requires preserving habitat (Noss et al. 1997; Noss and Cooperrider 1994; Morrison et al. 1992). Yet this is often difficult to do, for at least two reasons. First, humans continue to transform species’ habitats because doing so is productive economically. In the United States, some of the leading causes of habitat transformation today include logging, farming, and suburban sprawl. If habitat cannot be purchased to limit these human activities, then political will is required to regulate them.
A second reason is that the habitats of many species cross multiple public jurisdictions and private parcels. Thus coordination among public and private actors to create effective habitat preserve systems is an important component of conservation efforts (Thomas 2003b). Effective coordination requires knowledge about the location of species, the relative quality of remaining habitat patches, and appropriate planning tools for balancing human uses with habitat conservation. With this knowledge, conservation planners can design habitat preserve systems in principle, but collaboration is needed in practice to plan and implement preserve systems that cover multiple ownerships and jurisdictions.
The ESA provides the statutory framework within which habitat conservation planning occurs. As in the case of forest management in the Applegate Partnership (Chapter 2), governmental institutions play an important role in endangered species protection through rules that primarily constrain economic activities while indirectly encouraging collaborative planning processes. Without the ESA, habitat conservation planning would be much more limited in scope on public land, and perhaps not exist at all on private land. Nonprofit organizations such as The Nature Conservancy still would acquire or manage habitat for conservation purposes, as would some local, state, and federal agencies. But most private actors would not sacrifice economic gain, and most public agencies would not sacrifice their primary missions, for habitat conservation. The ESA provides the regulatory authority to prohibit human transformation of species’ habitats on public and private property. The ESA does not, however, mandate collaboration as a means for compliance; instead, public officials encourage collaboration through a wide variety of techniques during the habitat conservation planning process. Thus government as institution and government as actor interact to create a powerful set of incentives for stakeholders to collaborate as a means for compliance.
GOVERNMENT AS INSTITUTION
Section 9 of the ESA prohibits all persons and organizations, other than federal agencies, from taking fish or wildlife species listed as endangered by the U.S. Fish and Wildlife Service (FWS).1 Take is defined broadly in Section 3 to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”2 On its surface, this language appears to target only human activities that affect individual members of a species, not those that affect its habitat. Yet the FWS subsequently expanded the ESA's definition of take through a rule that defined harm to include “habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering” (50 CFR 17.3). Because of this rule, human activities that modify the habitat of a listed species are included under the Section 9 prohibition on take. This rule opened the door for environmental activists, who could now successfully sue a private landowner for altering habitat through logging, farming, or grading land for housing developments, among other activities. Environmental activists also could sue a local government or state agency for permitting these activities to occur. The Supreme Court, in a pivotal ruling, upheld this rule in 1995.3
Although the Section 9 prohibition on take applies only to fish and wildlife species listed as endangered, Section 4 of the ESA authorizes the FWS to issue specific rules for species listed as threatened.4 Subsection 4(d) instructs the FWS to promulgate rules deemed “necessary and advisable” to provide for the conservation of threatened species. These special rules can extend the prohibition on take and the rule on harm to threatened species. As of November 2003, 388 animal species were listed as endangered and 128 as threatened in the United States (U.S. FWS 2003). (Plant species also are listed in both categories, but they are not covered by the Section 9 prohibition on take.)
If this were the end of the regulatory story, there would be little incentive for collaborative environmental management. It simply would be a traditional enforcement story about command-and-control rules, albeit one played out primarily through the courts rather than through the discretion of agency personnel. Collaborative environmental management arose because Congress amended the ESA in 1982 to encourage those subject to the prohibition on take to develop habitat conservation plans (HCPs) that would protect species and their habitats proactively. Specifically, new language in Section 10(a) authorized the FWS to issue permits for take that is “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” To receive an incidental take permit, applicants must submit an HCP to the FWS that specifies how sufficient habitat will be preserved to maintain the long-term viability of the species. In other words, rather than protecting habitat through reaction by blocking bulldozers, chain saws, and plows at numerous sites, Congress placed incentives in Section 10 for private actors and local and state governments to develop proactive plans to protect habitat in exchange for allowing some human uses to continue. Federal agencies do not have a direct incentive to participate in HCPs, because they are not covered by the Section 9 prohibition on take and thus do not need incidental take permits. Nevertheless, some federal agencies and officials occasionally do participate in HCPs.
Some environmental activists since have argued that HCPs allow resource users and developers to evade the ESA's strict prohibition on take. Although undoubtedly true, this critique overlooks some important points regarding the actual impact of the strict prohibition on take. Federal officials never have been able to monitor habitat modification at every site, which means that evasions routinely occur. Moreover, given the extent of habitat degradation that was occurring, some scientists have argued that it makes more sense to think in terms of triage, preserving the best habitat patches through proactive planning rather than struggling to preserve all remaining patches through the strict prohibition on take. If the strict prohibition on take cannot protect each site in practice, then attempting to do so may produce haphazard outcomes in which some of the best habitat patches are lost while other patches with less conservation value are saved. Moreover, the saved patches might not result in an interconnected preserve system that would increase the conservation value of each patch. Hence the new Section 10 language on HCPs did not simply reflect a compromise between species protection and economic development; it also reflected a scientific logic regarding the importance of foresight in conservation planning.
To receive an incidental take permit, applicants must submit an HCP that meets several basic conditions (U.S. FWS and NMFS 1996, III-10). The HCP must include the following:
• detailed information on the likely impacts resulting from the proposed take;
• measures applicants will undertake to monitor, minimize, and mitigate such impacts;
• available funding to undertake such measures;
• procedures to deal with unforeseen circumstances;
• alternative actions applicants considered that would not result in take, and the reasons why they will not pursue these alternatives; and
• any additional measures the FWS requires as necessary or appropriate for purposes of the plan.
How applicants meet these conditions is left largely to them, subject to FWS approval. This discretion empowers applicants to determine the institutional design of their HCP. They need not collaborate in preparing or implementing an HCP, but they often can benefit from doing so wherever habitat sprawls across private parcels and public jurisdictions.
The first incidental take permit was issued in 1983 for an HCP that covered 3,500 acres on San Bruno Mountain south of San Francisco. The second permit was issued in 1986 for an HCP that covered 70,000 acres in the Coachella Valley near Palm Springs. Since then, the pace of HCP planning, permitting, and implementation accelerated markedly, peaking in 1995, when more than 80 permits were issued. As of November 2003, the FWS had issued incidental take permits for 435 HCPs (U.S. FWS 2003). Although the first two HCPs were collaborative, this has not been true of all HCPs, which vary widely on many dimensions (Thomas 2003a; Karkkainen 2003). Some are small, covering only a few acres. Others are large, covering tens of thousands—even millions—of acres. Typically, larger HCPs are more collaborative, because they involve more stakeholders, but this is not always the case.
HCPs have become an attractive alternative for complying with the Section 9 prohibition on take, because incidental take permits provide increased certainty in the minds of private landowners and local and state officials regarding what land uses will be possible in the future. Without this permit, the ESA's regulatory hammer looms, poised to foreclose any and all activities on nonfederal land. This increased certainty provides the fundamental incentive for nonfederal actors to participate in HCPs. In the words of one FWS official, who participated in several early collaborative HCPs:
[W]hen you're putting these planning efforts together, and when you have a listed species, then you are looking at people and saying “To get a permit [for incidental take] you gotta come up with a plan that protects the species, and that means you're gonna have to give up some of your property or [purchase] some property somewhere else. In other words, you're giving up some of your assets, hopefully to get permission to earn more.” I strongly believe ... that you're not gonna get very many people that will do this sort of thing voluntarily. (Thomas 2003b, 218–19)
Thus HCPs tend to occur where the Section 9 prohibition on take is enforced aggressively (Yaffee et al. 1998, I-1). Government as institution, therefore, provides the background conditions for collaboration, because the ESA and its implementing regulations provide the basic incentives to prepare and implement an HCP. Without these incentives, there would be no HCPs, let alone collaborative HCPs.
GOVERNMENT AS ACTOR
While federal institutions provide the background conditions for encouraging HCPs, federal officials play a more direct role in encouraging collaboration within HCPs. Sometimes they are joined by local and state officials, in which case government as actor may involve public officials at all three levels of government. Federal officials encourage collaboration by providing technical and financial assistance to help private actors and public officials at the local and state levels prepare and implement HCPs. They also provide assurances that additional regulatory burdens will not be imposed on those who take proactive steps to conserve habitat. Because these regulatory assurances, in addition to the incidental take permit itself, further enhance certainty about future land uses, they provide a significant incentive to prepare HCPs and for federal officials to influence the content of those HCPs.
ISSUE DEFINITION
Federal institutions and actors play different roles in defining the issues for which HCP collaboration occurs. Federal institutions such as the ESA and its implementing regulations frame the problem as preserving species and their habitats, while empowering stakeholders to determine the biophysical and social scales of the HCP. Thus an HCP may cover most or relatively little of the habitat of a particular species; it may cover many species or only one; and it may include many or relatively few stakeholders. No explicit rules determine the biophysical or social scale of HCPs. FWS officials offer guidance, which carries authority because they must approve HCPs before issuing incidental take permits, but there are no general rules carrying the force of law. Thus federal institutions largely determine the issue framing, while federal officials may shape the biophysical scale of policy alternatives and the social scale of the planning process within each HCP.
One might argue that FWS guidance constitutes an institution if the guidelines are formally written and disseminated. Indeed, written guidelines encourage public participation for large HCPs, but these guidelines do not require public participation for any HCP or provide standards regarding who should participate. Moreover, these guidelines do not carry the force of law. Given the vagueness of these guidelines, and the fact that they are not rules, they should not be considered part of the institutions governing collaboration. As individual actors, FWS officials play a more important role than institutions in this regard when using their discretion in approving HCPs, because they can argue that more public participation should be included in a specific HCP.
FWS officials also can influence the scale of collaboration among permit applicants, some of whom might initially prefer to prepare their own HCPs, regardless of the scope of public participation. An individual applicant may not own or manage sufficient habitat to maintain the long-term viability of species covered by the HCP. Hence FWS officials may not grant an incidental take permit for the HCP or might signal to an applicant that they will issue a permit only if the HCP is coordinated with other HCPs. FWS staff used this signaling strategy to encourage collaboration in Natural Communities Conservation Planning (NCCP), a state-run program in California that provided the opening vignette for this book. The FWS issued incidental take permits for numerous HCPs within the 6,000-square-mile NCCP planning area. Because NCCP covered numerous species, jurisdictions, and private parcels, some participants were tempted to prepare their own HCPs independently of the larger state-sponsored program. To encourage participation and collaboration, FWS officials let it be known that anyone choosing to develop a separate HCP would have to demonstrate that it was compatible with NCCP plans. Thus if permit applicants chose not to participate in the larger NCCP planning process, they would still be bound by NCCP plans, so it behooved them to shape those plans by participating (Thomas 2003b).
Federal officials have another important lever for influencing the scale of collaboration. Since 1994, they have offered permit applicants regulatory assurances providing immunity from specific rules in exchange for proactive efforts to conserve habitat. The most prominent such assurance is the No Surprises Policy, which was introduced in 1994 and codified in 1998 (U.S. FWS and NMFS 1998). During the interim period, the policy was so popular among permit applicants that at least 74 HCPs were thought to contain No Surprises assurances (Yaffee et al. 1998, 2–5). When applied, this policy assures permit applicants that no additional land-use restrictions or financial compensation will be required with respect to species covered by an incidental take permit if unforeseen circumstances arise indicating that additional mitigation is needed. Instead, the federal government, not the permit holder, assumes responsibility for implementing additional conservation measures. This broad guarantee increases the leverage of FWS officials in encouraging applicants to broaden the scale of their HCP, because activities covered by the incidental take permit will be immune from further regulation if new findings indicate that species covered by the HCP are in more trouble than initially thought.
This broad guarantee sparked criticism from numerous parties, including scientists who argued that the No Surprises Policy should take into account uncertainty about the actual condition of species and habitat when permits are issued. To reconcile this conflict, federal officials issued revised guidelines in the Habitat Conservation Planning Handbook (U.S. FWS and NMFS 2000). According to these new guidelines, “an adaptive management strategy is essential for HCPs that would otherwise pose a significant risk to the species at the time the permit is issued due to significant data or information gaps” (U.S. FWS and NMFS 2000, 35252). Under these guidelines, each HCP planning group should adopt its own adaptive management strategy, which would become part of the HCP and a condition of the permit; thus any adjustments within the stated range of the adaptive management strategy would not constitute a regulatory surprise under the No Surprises Policy. These are only guidelines, but they do provide FWS officials with some leverage to shape the scale of collaboration within HCPs.
RESOURCES FOR COLLABORATION
Human, technical, and financial resources can shape collaborative efforts in important ways. Collaboration in habitat conservation planning depends significantly on governmental actors, as federal officials have great discretion to determine how resources are allocated to specific HCPs.
Human Resources
Permit applicants are the most significant human resource in HCP planning processes. Because the FWS is understaffed relative to its mandated tasks, its officials participate sporadically during HCP planning processes. Permit applicants have a strong incentive to encourage the participation of FWS officials because the FWS must approve their HCP before issuing an incidental take permit. Without this permit, applicants cannot implement the HCP, which means they cannot legally pursue the economic activities that led them to develop the HCP in the first place. Once the permit is issued, FWS officials play a much more limited role, with other actors such as environmental activists usually monitoring HCP implementation. For this reason, permit applicants may invite broad public participation in the planning and implementation phases to allay suspicions, enhance legitimacy, and ward off lawsuits. Federal guidelines encourage public participation, though it is not required.
Some federal officials bring extensive collaborative expertise to HCPs. At the national level, Interior Secretary Bruce Babbitt and his staff were particularly notable in this regard during the Clinton administration, when the No Surprises Policy was developed. Some FWS staff also bring considerable expertise. Gail Kobetich became legendary in California, where 12 of the first 14 HCPs occurred, and where the initial collaboration success stories emerged. He retired in 1998, after 33 years with the FWS, during which time he oversaw the creation and expansion of the FWS Endangered Species Program in California, worked on the first HCP on San Bruno Mountain, and developed a reputation for collaboration that transcended his position of regulatory authority. In one indication of his reputation for enhancing collaboration, he was “demoted” to a local office in Southern California in the early 1990s to buttress NCCP.
Technical Resources
On one level, technical assistance is simply a bureaucratic matter. As in other policy areas, federal officials provide technical assistance to help permit applicants comply with the law, follow procedures, and complete paperwork. For example, federal officials compiled and distributed the Habitat Conservation Planning Handbook, a thick compilation of technical documents that contains all the rules, guidance, and templates that applicants need to prepare and submit an HCP. Although this type of technical assistance enables more people to prepare HCPs, it plays no obvious role in collaborative compliance. Indeed, the handbook itself does not even contain a section on collaboration, though it does recommend that applicants use steering committees for large, regionally based HCPs to “provide a forum for public discourse and reconciling conflicts,” among other purposes (U.S. FWS and NMFS 1996, III-3).
On another level, however, technical assistance plays a pivotal role in collaborative HCPs by providing evidence and arguments to persuade applicants that collaboration may be in their best interests. Federal officials use technical information about the geographic distribution of habitat, along with technical knowledge about the causal mechanisms of extinction through habitat modification, to educate applicants about the distribution of habitat beyond their property boundaries and the role of others in the collective deterioration of that habitat. In so doing, they educate applicants about the collective-action problem that exists wherever habitat extends across multiple ownerships and jurisdictions, thereby providing a logical foundation for collaboration. In the words of one applicant, who explained how technical assistance from several sources, including federal officials, led her to believe that habitat-wide collaboration was the preferred strategy for conservation planning, “We started hearing the same thing over and over: first of all, you don't look at the species, you look at the habitats; and you do things as comprehensively as you can” (Thomas 2003b, 212).
Moreover, even if several applicants own or manage sufficient habitat to prepare individual HCPs that the FWS would accept unconditionally, collaboration might still benefit them if they were to pool land and other resources (financial, technical, and human) to create a common preserve system. By collaborating on a common plan, and by contributing to a common pool of high-quality habitat, each applicant might be able to set aside less land for conservation purposes and use fewer personal resources, while producing a collaborative HCP that conserves habitat more effectively than several uncoordinated HCPs. Applicants might also be able to reduce the transaction costs of preparing and implementing an HCP by pooling their administrative efforts.
Technical assistance about the benefits of collaboration expands applicants’ understanding of their interdependence with other applicants and the potential gains from joint action. Yet federal officials are not the only source of such technical assistance. Scientists have distilled arcane knowledge about the causal mechanisms of extinction into practical advice for conservation planning (Noss and Cooperrider 1994; Noss et al. 1997). Some environmental groups also provide technical assistance. Although some litigious environmental groups prefer filing lawsuits in federal courts to enforce the ESA's rules, other groups, such as land trusts, favor providing technical and financial assistance for collaborative conservation efforts. The Nature Conservancy, for example, does not litigate, but provides both technical assistance to help others design effective preserve systems and financial assistance to acquire and manage habitat preserves, including core habitat in HCP preserve systems.5
Financial Resources
The federal government also provides financial assistance for HCPs, but these funds are limited and not spread equally across all HCPs. The funds tend to go to collaborative HCPs, primarily for institutional reasons, but also because federal officials use these funds to encourage collaboration. Section 6(d) of the ESA authorizes the secretary of interior to provide financial assistance to states, and through them to local communities and individuals, to aid in the development of programs for the conservation of threatened and endangered species. These federal grants must include a contribution from nonfederal partners, either financial or in kind. The financial match must be at least 25 percent of the estimated cost, or 10 percent if two or more states or territories implement a joint project. Thus the institutional rules encourage collaborative rather than single-applicant HCPs, because the funds are passed through state agencies to local actors and the matching requirement is reduced if more states are involved. Indeed, most of the HCPs funded in 2002 were large, regionally based, collaborative HCPs. Yet this funding varies greatly from year to year, depending on federal budget priorities. In 2002, the FWS awarded $68 million in grants to 16 states to support the planning process for 24 HCPs and land-acquisition costs for 17 HCPs (U.S. FWS 2002).
ORGANIZATIONAL STRUCTURE AND DECISION-MAKING PROCESSES
The institutions of government largely empower applicants to determine the organizational structure and decision-making processes of HCPs. Although FWS officials may suggest changes in these areas for specific HCPs, applicants typically are given much discretion. Thus an HCP may be planned and implemented within the structure of an existing organization, or an entirely new organization may be created to plan or implement an HCP. The Coachella Valley HCP, for example, was developed by a multipartner steering committee specifically created for this purpose (CVHCP 1985). Similarly, applicants may use a highly insular decision-making process, with no public participation, or one that is broadly collaborative. They are free to choose decision-making rules, such as consensus, majority rule, or even hierarchy. Although federal institutions do not determine what structures or decision-making processes are appropriate, FWS officials may use their leverage to encourage certain types of structures or processes.
COLLABORATIVE OUTCOMES
Environmental Outcomes
HCPs produce many environmental management outcomes, such as plans, permits, implementation agreements, land acquisitions, and restoration activities. The most obvious outcome of an HCP planning process is the plan itself. For large, collaborative HCPs, these plans can run hundreds of pages, and they are routinely incorporated into other planning processes, such as local zoning plans. These large, collaborative plans specify numerous implementation activities, such as land acquisitions, restoration activities, funding mechanisms, monitoring programs, and enforcement provisions. When the FWS approves a plan, the agency issues an incidental take permit that specifies the conditions of the permit, including implementation of the plan. For collaborative HCPs, an additional document, known as an implementation agreement, also is prepared, which specifies who is responsible for implementing specific provisions in the plan. The signatures on the implementation agreement provide accountability should parts of the plan not be implemented.
Yet despite all of this documented management activity, it is difficult to assess whether any HCP has had a net positive effect on the environment. One reason is that the baseline for comparison is an unknown counterfactual condition: What would have happened under a strict prohibition on take, in which case some development likely would have occurred without an HCP in existence that contained proactive protection measures? Second, most research on HCPs has focused on the planning process, not implementation. Thus the most we can extrapolate from this research is that “appropriate” planning processes will lead to desirable environmental outcomes. A consortium of scientists examined how science was incorporated into 208 HCPs through 1997 (Kareiva et al. 1999). If one assumes that scientists are the best judges of the environmental merits of an HCP, and that HCPs are implemented as written, then their findings provide an indirect indicator of expected environmental outcomes. Third, only one implementation study of an HCP has been completed, and the findings of this study are ambiguous as to whether the HCP improved environmental conditions (Schweik and Thomas 2002; Thomas and Schweik 1999). Fourth, the FWS does not maintain a database of indicators regarding the extent to which HCPs have been implemented, let alone indicators of environmental impacts. Fifth, even if multiple case studies of HCP implementation and indicators of environmental performance existed, it would be difficult to make claims about the environmental impacts of an HCP, because many other factors can cause fluctuations in the population of a species and the condition of its habitat, such as climate change, weather patterns, and human impacts beyond the boundaries of the HCP. In sum, though we know a great deal about the paperwork generated by HCP planning processes, we know very little about the degree to which any of these activities actually improve environmental conditions, which is one of the reasons why HCPs remain so controversial.
Social Outcomes
As with environmental outcomes, little direct evidence exists regarding social outcomes. Again, we can rely on indirect evidence, because a consortium of social scientists has completed a systematic study of public participation during HCP planning (Yaffee et al. 1998). Hence one might argue that variation in public participation explains variation in social capital. Moreover, if we include economic opportunities as a social outcome, then we can assume that the HCP program has affected social outcomes, because the program was created in part to allow some economic activities to occur within the habitat of endangered species.
Direct evidence of social outcomes from the only case study of HCP implementation is mixed (Thomas and Schweik 1999; Schweik and Thomas 2002). On the plus side, participants in the Coachella Valley Fringe-Toed Lizard HCP built a great deal of collaborative capacity in the 1990s, which carried over to a new and larger planning process for a multiple species HCP nearing completion in 2003. On the downside, critics of the first Coachella Valley HCP argued that it preserved only 5 to 10 percent of the lizard's remaining habitat (roughly 2 percent of its original range), leaving most of the valley open to economic development. Participants later acknowledged that because of incomplete technical knowledge during the planning process, the HCP failed to include some critical habitat in the preserve system, which likely would diminish the environmental effectiveness of the HCP. Thus the scientific legitimacy of the HCP was questioned, although the collaborative process itself, which benefited from government technical and financial resources, as well as the existence of ESA rules, created social capital among the participants. This social capital is now an important factor in the new multispecies HCP, which may incorporate habitat for the lizard that was not included in the original HCP.
CONCLUSIONS
The guiding question in this case was, How can government officials use command-and-control rules, in combination with financial and technical assistance, to encourage collaboration? Financial and technical assistance were insufficient incentives for private landowners and local and state officials to prepare and implement an HCP, regardless of whether it was collaborative, because the cost of preparing HCPs is high. Instead, the fundamental incentive came from the lurking threat of enforcement under the ESA's command-and-control rules. The HCP program provided an institutional alternative to the strict prohibition on take. It also empowered participants to determine their own fate by designing their own land-use plans, rather than allowing courts to determine land-use restrictions. Once the FWS approved an HCP, the incidental take permit provided increased certainty in the minds of permit holders regarding future uses of land and natural resources covered by the HCP. The No Surprises Policy further assured applicants and permit holders that an HCP would not require future revision if new information arose indicating that species covered by the plan needed additional protection.
Government officials fostered collaboration within this institutional context primarily through technical and financial assistance. Of these, technical assistance was more important. To the extent that collaboration arose within HCPs, it was largely because FWS officials, along with academic scientists and nonprofit actors, provided technical assistance that educated applicants about the collective-action problems they faced and the benefits of collaborative solutions. Specifically, they used information about the geographic distribution of habitat, along with knowledge about the causal mechanisms of extinction through habitat modification, to educate applicants about the distribution of habitat beyond property boundaries and the collective-action problem that exists wherever habitat extends across multiple ownerships and jurisdictions. Federal institutions could have required collaboration as a rule for participation in the program, but this would have done little more than make people sit at the table together. Meaningful collaboration depends on participants understanding how common problems can be solved through this venue, which is why technical assistance of this sort was crucial.
Once collaboration was under way, financial assistance encouraged and supported it. For institutional reasons, federal funds under Section 6 of the ESA were passed through state agencies to local communities, which increased participation by some actors. The federal matching requirement also was reduced if more states were involved. In addition, federal officials targeted large, collaborative HCPs, rather than small, single-applicant HCPs. Although this funding varied greatly by year and did not cover the entire cost of HCPs, it did provide a supplemental incentive for collaboration. It also increased the likely success of collaborative HCPs by providing significant financial assistance through matching grants passed through states.
Federal institutions have left great discretion to permit applicants to determine the geographic scale and collaborative nature of each HCP. Although an HCP must necessarily occur within the geographic boundaries of the habitat of one or more listed species, federal rules have not required that HCPs cover the entire habitat. Thus some HCPs have been tiny, covering less than five acres. With such small geographic areas, applicants saw less reason for collaboration or public involvement. Technical assistance from FWS officials and other actors educates such applicants about larger collective-action problems of which they might be a part. Where such technical assistance has been unsuccessful, FWS officials have occasionally upped the ante by issuing explicit regulatory threats that HCPs might not be approved if they are not linked with other HCPs in the vicinity (as occurred with NCCP in Southern California). To the extent that these threats are perceived to be plausible, applicants have an additional incentive to collaborate.