Promoting Recovery or Hedging a Bet against Extinction: Austin, Texas's Risky Approach to Ensuring Endangered Species' Survival in the Texas Hill Country

Article excerpt

I. INTRODUCTION

Congress enacted the Endangered Species Act(1) ("ESA" or the "Act" "to restore species that are so depleted in numbers that they are in danger of, or threatened with, extinction."(2) Recognizing that the threat of extinction is almost always caused by loss of habitat, Congress stated that the purpose of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."(3)

Today, twenty years after passage of the ESA, its record as the federal government's primary tool for protecting biodiversity is far from glowing. Over 650 species are listed as endangered or threatened,(4) and more than 3,600 others have been identified by the U.S. Fish and Wildlife Service (USFWS or Service) as candidates for listing.(5) Only seven species on the endangered list have recovered to the point that they merited "delisting," though 238 others are believed to be "stable or improving,"(6) and at least seven species have become extinct after being placed on the endangered list.(7)

The ESA's limited success thus far is attributable in part to its inadequate protection of the habitat that listed species require.(8) Nevertheless, in many jurisdictions the ESA is the only legal tool for modifying a project that would destroy essential habitat; it is the safety net for protecting habitat that is not a wetland,(9) and is not located in a national park(10) or wilderness area,(11) or on federal or state land otherwise protected from development. Consequently, the Act has been invoked to modify projects ranging from interstate highways(12) to Forest Service logging plans,(13) and to compel state regulation of groundwater withdrawals.(14) Very rarely, the ESA has been used to stop a proposed project altogether.(15)

In this era of rapid suburban and exurban sprawl,(16) more and more places which are rich in natural resources--and important habitat for endangered and threatened species--are under siege by construction and development.(17) Because few state or local jurisdictions have taken steps to plan comprehensively for growth, and even those which have tried to plan have not done so with a focus on habitat protection for rare species, it is likely that the ESA and the agencies that are responsible for implementing the Act will continue to bear the brunt of the burden of protecting endangered species' habitat.(18)

In this article, I discuss regional habitat conservation planning, which is, as a practical matter, the ESA's only viable mechanism for dealing with large-scale habitat protection. I focus primarily on the Balcones Canyonlands Conservation Plan ("BCCP"), the regional habitat conservation plan ("HCP") that has been debated for Austin, Texas and the surrounding area since 1988.(19) While regional HCPs are promising in terms of their potential to protect large tracts of habitat while allowing development, the current model for regional HCPs, in which a tract of preserve land is set aside and unhampered development is permitted in the remainder of the area, has significant shortcomings in terms of providing adequate protection for endangered species. Austin's situation exemplies those shortcomings.

In Austin, the BCCP was promoted for five years as the solution to conflicts between species protection and economic growth. Consequently, the local governmental entities, environmentalists, and business interests pursued no other avenues for compromise and habitat protection. When a county bond measure to raise funds for the acquisition of habitat preserve areas failed in November 1993,(20) the BCCP's potential for solving the region's endangered species problems all but disappeared. Even if the bond issue had been approved by Austin voters, fundamental problems with the BCCP would have remained. Paramount among those problems was that the BCCP's preserve system alone would not have promoted the recovery of the species for which it was designed to protect. …