Points of Concern

Partners in Conserving America's Resources

Points of Concern

These Points of Concern summarize the key issues that have been raised during the course of this project. This is not a complete list of all issues raised. For a complete list of issues raised -- and discussed -- during Phase 1 and 2 of this project, please go to the: Issues Discussion Group.

Points of Concern

As revised, based on input from the May 1998 workshop:

Please click on your choice:

Participants in the "walk about" portion of the May 1998 workshop were given three colors of post-it flags, and asked to use a consensus model to guide their "voting" on the responses to these concerns, as follows:

1. Green flag: This is good; I agree

2. Yellow flag: I may not agree 100%, but I can live with it

3. Orange flag: I cannot agree; this needs major work

Responses are noted below for each concern. Responses also are segregated according to the interest represented by the person doing the voting -- Landowner, representative of Government agency or Conservation organization, or Other interest (University of Florida, for example). Suggestions for edits and changes that were made at the workshop have been incorporated. For a description of the discussions that took place regarding these concerns, please click on Workshop Report: May 1998. Please note: all participants did not vote on every concern. Also, some flags were brushed against and fell off during the workshop, so were not included in the totals below.

Concern #1: What EXACTLY do the taxpayers or panthers get for their money? Is this a subsidy for landowners?

Response #1: This is NOT A SUBSIDY for landowners. The incentive program/compensation package that is being proposed can be viewed either as a payment in return for a service (managing habitat, which we as taxpayers have to pay the government to do on public lands) or as compensation for a landowner's willingness to give up part of the economic use of his or her land (which could generate more money growing citrus, vegetables or houses). The taxpayers and panthers will get:

1. An assurance that essential habitat is not destroyed by more intensive development.

2. An assurance of long-term management to maintain -- and, possibly, improve -- the ecological functions of essential habitat.

3. A reliable prey base that is attracted by nearby agricultural crops and well-managed habitat.

Workshop Responses:

Green: 29 -- 12 landowner, 9 government, 1 landowner/government, 1 landowner/conservation, 5 other, 1 conservation/other

Yellow: 4 -- 3 government, 1 conservation

Orange: none

Comments Offered:

Habitat and prey base does not guarantee panther use. Must have corridors of habitat from known population center and large enough tracts.

Concern #2: Any incentives program must meaningfully advance recovery of all endangered, threatened, and candidate species. Simply making millions of dollars of payments to preserve the status quo -- which, in southwest Florida, is a badly degraded ecosystem -- is not acceptable. As drafted, the proposal clearly does not contain sufficient standards and requirements to ensure that the status of the panther and other listed wildlife and plant species is advanced.

Response #2: This statement is open to debate. Several biologists and administrators at Florida Game and Fresh Water Fish Commission have stated during the course of this project that: "All we in the GFC have ever hoped for is that we could maintain the status quo on Priority 1 habitat. Panthers select those private lands today because of their quality. We don't need to improve them -- we need to prevent their deterioration due to escalating land uses. If we can come up with a program that maintains the status quo on Priority 1 panther habitat, we will be light years in front of whatever else government is doing to protect habitat on private lands!"

The focus of the proposed incentive program will be on ensuring the viable function and integrity of natural habitats, not on the health or numbers of specific species. While there is still disagreement on this point among some project participants, there is unanimity among landowners and agreement among many members of the conservation community that the project should focus only on protecting essential habitat. The factors involved with the Florida panthers' genetics and other factors affecting the species' health are beyond the control of any single private landowner. The best that can be hoped is that, as a result of this project, large numbers of landowners will be willing to commit to long-term management plans that will ensure: (1) essential habitats are not destroyed as a result of ever-encroaching urban development or the need to intensify and expand agricultural operations to keep these operations economically competitive and viable; (2) these habitats are well-managed so they maintain their ecological functions in a manner that is at least equal to, if not better than, what is found on these properties today; and (3) that these habitat protection objectives can be incorporated into existing agricultural operations in a manner that is both practical and profitable for ag enterprises.

Workshop Responses:

Green: 21 -- 4 landowner, 10 government, 1 conservation, 6 other

Yellow: 11 -- 3 landowner, 5 government, 1 landowner/government, 1 conservation, 1 other

Orange: 11 -- 4 landowner, 2 government, 1 conservation, 4 other

Comments Offered:

Orange flag (conservation): Health and A of plant and animal species is a measure of ecological quality.
Accepting land that is clearly mismanaged needs to be carefully looked at.
Who determines ecological function and integrity? How are they measured and by who -- landowners, agencies or third-party ecologists?
Ecological integrity - Who defines it? How is it measured and assessed on these lands? Very important key to this discussion.
If we could maintain the status quo, we would be light years ahead of any other government program that has been proposed.

Concern #3: Will the landholders still ranch/farm and convert land to any land use as they please?

Response #3: Landowners will still ranch and farm. They will continue their operations as normal, even converting from one crop to another as they wish. However, their obligation under the conservation agreement is to DO NOTHING that will jeopardize the integrity of the habitat that is specified in the conservation agreement. If they think an operation might have an impact on the habitat, they are obligated to contact the agency with authority over the conservation agreement and work out an acceptable means of moving forward. See Paragraphs 2.04(a), 2.04(c), 2.05(b), 2.05(c) and 9.02 of the conservation agreement.

Workshop Responses:

Green: 17 -- 6 landowner, 8 government, 1 landowner/government, 1 landowner/other, 1 other

Yellow: 10 -- 1 landowner, 2 government, 1 landowner/conservation, 6 other

Orange: 1 -- 1 government

Comments Offered:

Suggest you change "if they think" to "if the Lessee determines."

Does "converting from one crop to another" cover more intense crop cover? [Yes.]

Question: How are these farm/ranch uses evaluated with respect to wildlife? I foresee citrus development as extremely detrimental to panther habitat, but worry it will still be considered "operations as normal."

Any allowable land-use change should be specified in a management plan.

Effect of fences.
Again, how is ecological integrity going to be determined?

Concern #4: Will the Government have any authority over the land use? If so, please specify what will be the limits of that authority?

Response #4: Don't forget this is private land, and a landowner has a lot of leeway with what he or she can do with that land (just as you have a lot of leeway with what you can do inside your own home). Also, the compensation the landowner is receiving is much less than would be received under a conservation easement or from outright public purchase. Hence, the obligations of the landowner and the amount of the government's authority over the land and the owner's operations will be less -- commensurate with the level of compensation. Nevertheless, the taxpayer will be able to get exactly what he or she pays for: The base conservation agreement will cost about the same on a per-acre basis as we currently pay government agencies to manage land that is in public ownership. And that is what we will get back from the landowners: good management of the habitat. If we want more, then we will pay more.

Workshop Responses:

Green: 14 -- 4 landowner, 7 government, 1 landowner/government, 1 landowner/other, 1 other

Yellow: 5 -- 4 government, 1 other

Orange: none

Comments Offered:

Yellow flag (other): Need management plan.

Concern #5: Will landowners be required to provide environmental habitat enhancement, i.e.. take land out of agriculture use and restore to wild state?

Response #5: Required, no. Offered the option for additional compensation, yes.

Workshop Responses:

Green: 22 -- 7 landowner, 8 government, 1 landowner/government, 1 landowner/conservation, 1 landowner/other, 4 other

Yellow: 3 -- 2 government, 1 conservation

Orange: none

Concern #6: Getting what we pay for. One of our most serious concerns regarding the strategy and the proposed conservation agreement is that payments will be made to landowners who are not advancing the recovery of the panther. Under Article 3 of the proposed conservation agreement, the first level of payment is for the landowner to forego non-agricultural development. Many people may think that protecting family farms is a laudable goal, but such a goal can clearly conflict with panther conservation. Whether panther habitat is converted to residential developments or converted to citrus, vegetables, or sugar cane makes very little difference from the standpoint of the panther; in either case, people have destroyed panther habitat. Payments should not be made for non-agricultural rights when the landowner can then cause similar adverse impacts though agricultural activities and ask for a second level of compensation.

In addition, non-agricultural development rights payments suffer from an additional problem: payments can be required even when the landowner has no intention of developing a particular area. Paying someone to not do something that they would not have done anyhow certainly is not a good use of limited funds. Where else does "the market" operate in this manner?

Response #6: The approach being discussed in the Panthers & Private Lands and Private Habitats: Havens for Threatened and Endangered Species project is designed specifically to ensure that American tax payers will, as you say, "get exactly what they pay for."

An economic analysis was conducted in 1997 comparing the costs of the conservation agreement strategy with conservation easements and public land purchases on an annualized and per acre basis. The analysis, which was conducted by Florida Stewardship Foundation in collaboration with the Acting Chief of the U.S. Fish and Wildlife Service's Economic Division and the University of Florida, IFAS, Southwest Florida Research and Education Center, shows that the annualized cost of the strategy ranges from one-quarter to one-third the cost of a public land purchase and from less than one-half to three-quarters the annualized cost of a conservation easement. Plus it keeps land on local property tax roles and in economic production.

You will not buy as much "protection" with the proposed strategy, but you also won't pay as much. Other studies conducted by Florida Stewardship Foundation show that agricultural lands require very few public services; hence, for every dollar in revenue that is collected, they often generate as much as a 70-cent surplus for county governments and schools, even under the low Greenbelt rates at which agricultural properties are taxed.

Because the conservation agreement will provide landowners with a reduction in operating costs and/or a revenue stream for maintaining natural habitats, it will help to offset the economic incentives (and temptation) a landowner might have for converting these habitats to other uses.

Payments to landowners will start out at the same cost per acre per year that public land managing agencies now spend to manage their properties. Our research indicates this cost averages $11 per acre per year for public lands in southwest Florida, not including administrative costs. The "farm plan" that accompanies the conservation agreement will set forth guidelines for managing the habitats covered by the conservation agreement. In most cases, the basic agreement will be offered to landowners with priority habitat who already are doing a good job of maintaining and managing those habitats. Hence, at its first, basic level, the document will be a long-term management agreement. The cost to the public for this habitat management will be the same as would be paid to a government agency for the same service. The property also will remain in economic production and on local property tax roles -- and the public will not have to pay to purchase it.

Payments to landowners will increase as more services are requested or as more requirements are placed on them. The economic analysis we conducted in 1997 calculated the annualized cost of the "conceptual plan" at $33 to $35 per acre. Hence, there is a lot of room to move up the scale from a simple management-only agreement, with limited access, to an agreement that also allows for data gathering, wildlife research and activities that will advance recovery of the panther. And at each step up the scale, the public will be getting exactly what it pays for -- no more, and no less.

Workshop Responses:

Green: 24 -- 10 landowner, 8 government, 1 landowner/government, 1 landowner/conservation, 1 conservation, 3 other

Yellow: 16 -- 5 landowner, 7 government, 1 landowner/other, 2 conservation, 1 other

Orange: none

Comments Offered:

Put less land in conservation easements than more land in conservation agreements that could become houses in 25 years or 5 years after the landowner opts to SEVER his agreement.

Concern #7: Permit denial. Article 5 of the proposed conservation agreement (now Paragraph 2.04(a) in the current draft of the agreement) provides that additional payments would be made if a landowner does not receive a permit to expand a proposed agricultural activity. Based on existing law, we are very concerned that this wording unduly restricts the review of a wide range of human activities which adversely impact the panther. For example, agricultural businesses have learned to convert native uplands to crops while avoiding dredging or filling wetlands; thus, a Clean Water Act permit from the Corps is not required and the Service is never involved in an Endangered Species Act consultation. Likewise, while the South Florida Water Management District is involved in reviewing requests to modify surface water flows or to withdraw ground water, this agency's regulatory provisions to protect the panther are extremely limited. Unquestionably, a landowner could conduct many activities which are detrimental to the panther without a permit denial ever occurring.

If panther conservation is to be advanced, an accurate baseline must be established regarding the existing native habitat and agricultural operations on the property. We agree with the July 14, 1997 comment of Dennis Jordan that a "farm operation document" should be prepared by the landowner which establishes the baseline. Any changes to the operation document that involve destruction or fragmentation of native habitat or human activities which may adversely affect the panther must be made through a modification to the operation document.

Response #7: A "farm plan" or "farm operation document" that establishes the baseline should be a part of the conservation agreement. This document will be used to determine what activities can be conducted by the lessor as part of his or her normal operations, without any notification to the lessee, and which could adversely affect the integrity of the habitats covered by the agreement. Those activities that could adversely affect the habitats will require discussion with the lessee so a mutually acceptable way can be found to accommodate (and/or modify) the activities to assure the continued integrity of the habitats.

Workshop Responses:

Green: 24 -- 9 landowner, 8 government, 1 landowner/government, 1 landowner/conservation, 1 conservation, 4 other

Yellow: none

Orange: 1 -- 1 government

Comments Offered:

Orange flag (government): Land uses should remain as is during the term of the conservation agreement.

Concern #8: Additional payments to landowners if expanded use of land is denied. (The following is excerpted from a March 3, 1998 letter by Dennis B. Jordan, Florida Panther Coordinator, U.S. Fish & Wildlife Service)

"Since 1993, Fish and Wildlife Service staff have been involved as reviewers and workshop participants in Phases 1 and 2 of the 'Panthers & Private Lands' project.... The original project's basic concept of providing economic incentive/compensation to private landowners for protecting and maintaining panther habitat on their lands has been wholeheartedly endorsed by the Service.... Any program that results in a private landowner viewing an endangered species on his or her land as an asset rather than a perceived liability is a plus.

"The goal of the expanded Phase 3 effort is the, 'protection of essential habitat for threatened and endangered species on private agricultural and forestry lands throughout Florida and the U.S.' The Service certainly supports this goal and we clearly understand that most of the processes that will be required to achieve project success are yet to be finalized.

"However, we would be remiss if we did not make clear our position on one of the processes being discussed. Specifically, the concept of providing payment to landowners in the event of permit denial because of adverse impacts to the Florida panther (Lease, Paragraphs 2.04(a) and 3.04(i)), causes us great concern. This appears in essence to be a payment for the takings of certain property rights. Because of the legal and policy ramifications, it is a process we cannot support. These issues are of such significance that they would have to be approved by our Director and perhaps the Department."

Response #8: How do we resolve this? Your suggestions are welcomed and encouraged.

Workshop Responses:

Green: 2 -- 1 government, 1 conservation

Yellow: 4 -- 1 landowner, 2 government, 1 other

Orange: 3 -- 1 landowner, 1 landowner/government, 3 government

Comments Offered:

I like the whole Farm Plan idea. If the expanded use is included in the Plan, which is incorporated in the conservation agreement, then additional compensation would be warranted if expanded use is denied. However, the landowner should not be permitted to enter into a conservation agreement and then expand his land use and claim additional compensation when that expanded use is denied.
Specify what can and cannot be done under the conservation agreement -- which will address permit applications. If permits are denied for other reasons, this should not affect the conservation agreement.
This issue needs to be negotiated within the context of the conservation agreement and the specific operating plan in place for each property.
It depends on how the expanded activities affect panthers. If the activities are non-ag, use should be denied and no additional payments made.
One way to resolve this is to not fight this battle now (and, possibly, risk losing the opportunity to advance the rest of the project forward). This reason for compensation can be removed from the current project. Landowners can bring it up as a separate issue later.
Additional payment with federal money would equate to payment for property takings. It is unacceptable and feds will not do this.
Before this process proceeds any further, the Florida Stewardship Foundation should have a meeting designed specifically to educate project participants on the constitutional definition of "takings" and the governments' powers to regulate.
Tell me more.
Review permitting parameters in concert with conservation agreement or service contract. Holistic agency involvement.

Break-Out Group Suggestions:

The breakout group considering this issue proposed that the following language be considered:

"If lessor is denied the opportunity to expand or escalate a land use, a conservation agreement amendment will need to be negotiated. At the time of renegotiation, the lessee needs to determine whether additional compensation will be paid to the lessor [to preclude the proposed use]. The other option will be for the lessee to terminate the conservation agreement on that portion of the property affected."

Additional payments -- including payments for a permanent conservation easement or fee-simple purchase -- may be considered if expanded use is denied.

This issue was deferred to Web/committee for further discussion. To post a comment to the web discussion group, click: Post Comment.

Additional Proposal for Consideration:

Incorporate "Comments Offered" numbers 1-4, above, into lease/management agreement:

Include description in "Attachment 3: Farm Operation Document" of expanded ag uses that are most likely to receive serious consideration by Landowner during the term of the agreement. This would cover uses that are the "best prospects" for expansion, based on the Landowner's "best estimate" of future conditions (for example, the Landowner may already have permits to convert native or improve pastures to citrus).

Also: include description in "Attachment 3" of other expanded uses that Landowner might entertain. This would cover uses that are less likely to occur but, depending on market conditions and other factors, could conceivably be considered at some date in the future.

Uses that are not acceptable to the Agency would be discussed during negotiations for the agreement. In this way, uses that may have been contemplated by the Landowner, but will not be permitted by the Agency under the terms of the agreement can be spelled out right up front in "Attachment 3" of the agreement. The results of this negotiation also will have a direct effect on the compensation that the landowner receives under the conservation agreement. The Landowner will know at the onset which expanded uses of the property will not be allowed. The payment per acre that is negotiated will be arrived at by mutual consent with this consideration in mind. In accepting the agreed-upon payment (as a lump sum, as an annual payment, or as a base annual payment for X years, with an escalated annual payment beginning in year X, when the proposed expansion for a use that was "seriously considered" would have occurred, had it been allowed to go forward), the Landowner also will accept the restrictions on expanded uses that have been negotiated.

All potential uses of the property that are listed in "Attachment 3" will include uses that the Agency is either willing to accept or entertain, contingent upon further research and consideration and final approval at the time that Landowner asks to move forward with expanded use.

If any of these uses are denied, then the Landowner will receive additional compensation, which will be negotiated at the time the parties enter into the agreement and which will be spelled out in "Attachment 5: Additional Rent Sums."

If the Landowner wishes to pursue any other agricultural use that was not contemplated or for which no viable market existed at the time the agreement was executed, the Landowner can request that "Attachment 3: Farm Operation Document" be amended, and the parties can discuss whether this use will be allowed or, if it is denied, if the Landowner will receive any additional compensation.

A basic premise of this agreement is that the Landowner will give up all non-ag uses of the property for the term of the agreement. Expansions of ag use, however, are an important consideration since agricultural operations must be profitable to survive, and it is very difficult in today's market to predict which crops are going to remain profitable and can be reliable mainstays of an ag operation over the next 20 years.

If the ag operations participating in these agreements cannot remain profitable, they will no longer be able to afford to maintain the habitats on their properties, and a change to a more intense use will become likely. In this case, the conservation agreement will prevent any non-ag use from occurring during the term of the agreement, but the Agency will be faced with either having to purchase the property to protect its habitat or allowing the property to convert to a more intense use after the agreement expires.

The advantages offered by the lease/management agreement in this case is that: (a) the Landowner and Agency already will have a working relationship and agreement in place; (b) the Landowner and Agency can work through the agreement to find ag uses, management services and/or a combination of the two to help keep the operation profitable; (c) the Agency will have the right of first refusal, should the Landowner find it necessary to sell the property; and (d) the agreement will provide ample time for the Landowner and Agency to discuss the future disposition of the property, and to make arrangements to ensure its wildlife habitats and other natural values are protected. None of these opportunities exist today for a Landowner and Agency to work together in this way prior to the sale of a parcel of ag land for conversion to another use.

Conservation easements will provide greater assurance and protection. But landowners who are willing consider conservation easements will do so anyway. The lease/management agreements are aimed primarily at landowners who do not want to consider conservation easements, but are willing to participate in arrangements that will result in additional sources of revenue. That could be a potentially large number of landowners, if the documents are crafted so they appeal to landowners.

Concern #9: Public Participation. The incentive proposals which are advanced in the strategy and implemented in the draft agreement are missing a crucial element: public participation. Currently, no process has been proposed which would allow interested members of the public to review and comment on a proposed agreement or "farm plan," nor is there any requirement that public comments be considered by whatever entity is reviewing and approving a proposed plan or agreement. As the public will be paying for the incentive program in the form of tax revenues which are not being recouped by the treasury or tax payments from the public to the landowner -- the public certainly deserves the right to provide input regarding the soundness of particular plans. Secret, backroom deals between the landowner and the approval entity will undercut public support for any incentive program and may raise fears that such a program is yet one more example of corporate welfare. In addition, we could not support any program which is not, to borrow a phrase from state government, conducted "in the sunshine."

Response #9: There will be a direct, inverse relationship between the amount of public participation that is allowed and/or required in the negotiations for the conservation agreement, and the number of agreements that are completed. Public agencies have been established and operate at considerable taxpayer expense to act on the public's behalf. I suggest we ask these agencies to represent our interests in negotiating and entering into conservation agreements, and to make sure the process they follow is as simple and straight forward as possible. That way, the public's money can be spent on negotiating as many agreementss as possible to ensure essential habitats are well managed, rather than on endless, protracted process that will serve as an obstacle and deterrent to landowner participation.

All conservation agreements will be public documents that will be available for review. The energies of "watchdog" groups representing the wide and diverse spectrum of public interests might be better spent encouraging agencies to negotiate and complete as many conservation agreements as possible, to cover as much acreage and as many different habitats as possible, and on reviewing the results of the agency actions, rather than micro-managing each individual negotiation. Every person and point of view that is added to the negotiating table will add to the time, complexity and cost of the negotiations and will reduce the number of conservation agreement negotiations that are completed -- or even started in the first place.

At least two documents will be developed and refined during the course of this project: the Private Habitat Conservation Lease, and a set of guidelines to assist government agencies, land trusts and private landowners in negotiating conservation agreements and applying the conservation agreement concept to individual parcels of property. These guidelines will be key in ensuring that the variety of public interests affected by the conservation agreement concept are properly represented. The purpose of workshops like this is to obtain input from as many interested parties as possible to develop these documents so that, taken together, they will address concerns like this that have been raised.

Workshop Responses:

Green: 10 -- 3 landowner, 4 government, 1 landowner/conservation, 1 landowner/other, 1 other

Yellow: 9 -- 6 landowner, 1 government, 1 landowner/government, 1 other

Orange: 3 -- 1 government, 1 conservation, 1 conservation/other

Comments Offered:

In a democracy, the general public must have an opportunity to address conservation agreement implementations.
All agreements of this sort entered into by SFWMD are through a public workshop/public hearing process. No conservation agreements will be made in private. Negotiations - YES. Agreements - NO.
Guidelines Question -- Do you have scientists and scientific studies to back up your methods of monitoring and measuring ecosystem integrity?
The Conservation Districts have an elected Board that represents public interest in each area. If a review is needed -- besides this highly public formation process -- they might be the right group.
Soil & Water Conservation Districts consist of 5 locally elected people who oversee and prioritize USDA-NRCS conservation activities. SWCDs are located throughout the state in each county. SWCDs currently review and approve conservation plans developed by NRCS and private landowners. SWCDs could provide oversight as the public watchdog for Private Habitat Conservation Leases, better than a particular government agency.

Concern #10: Agency approval. We strongly question the proposal's choice of the South Florida Water Management District as the appropriate entity to be the lessee. The proposed incentive program will be based largely on relief from federal taxes. Likewise, environmental laws which protect the panther are almost all based on federal, as opposed to state, provisions. It is not clear why the Florida Panther Interagency Committee -- a much more obvious choice -- was not utilized_.Another alternative would be the creation of a new multi-jurisdictional entity which includes the Service and other appropriate federal and state agencies. Of course, any such entity would have to be balanced in composition, and any approval meetings would have to be advertised and open to the public.

Response #10: The Private Habitat Conservation Lease concept will encompass many more species than the Florida panther ... so the Interagency Committee would not be the best choice. The South Florida Water Management District originally was suggested as the lead agency by the Landowner Working Group because that is the agency that issues most of the permits governing the agricultural operations that encompass Priority 1 and Priority 2 panther habitat. Because federal laws are involved, and because the program is being expanded to encompass other species and habitats in other parts of the U.S., The USDA's Natural Resources Conservation Service was mentioned as a possible lead agency during the October 1997 committee meetings.

Here's another alternative: development of a model conservation agreement document and set of guidelines that can be used by any private land trust, or any government agency, at any level of government in any state. The intent here is to allow any government entity that has leasing or contract authority to utilize existing funds and spending authorities to enter into agreements with as many private landowners as possible to provide long-term management and, where possible, enhancement of: (1) habitats that support threatened and endangered species, (2) wetlands, (3) groundwater resources, (4) surface water resources, (5) riparian zones, (6) estuaries ... or any other natural resource that contributes to this country's environmental health and welfare.

More than half of the total land area in the U.S. is controlled by private individuals or corporations that are engaged in agricultural or forestry operations. With the right approach, it may be possible to create long-term public-private partnerships to ensure the continued integrity and ecological functions of a vast array of natural resources and habitats on these properties.

One government agency, or one multi-jurisdictional entity, would be able to negotiate acceptable conservation agreements covering only a fraction of this property -- especially if this agency or entity is hobbled by all the requirements you proposed in your letter -- even after working non-stop for decades. Hence, I will be proposing that the conservation agreement and guidelines be kept as simple and straightforward as possible, designed so they can build on, supplement and expand existing programs, and utilize existing funds and spending authorities at all levels of government. My hope is that we can work together to create a practical, workable, cost-effective tool that will have widespread appeal to private landowners and can gain widespread acceptance and use by private land trusts and government agencies throughout the U.S.

Workshop Responses:

Green: 18 -- 4 landowner, 9 government, 1 landowner/conservation, 4 other

Yellow: 12 -- 6 landowner, 3 government, 1 landowner/government, 1 landowner/other, 1 conservation

Orange: 1 -- 1 landowner

Comments Offered:

Orange flag (landowner): Never!! Not water management.
Should start small to see if this concept really works before making your goals so all-encompassing. [See Discussion of model project on Hall Ranch]
Sideboards on the conservation agreement and how the managing entity operate need to be identified to ensure consistency.

Concern #11: Public enforcement. Currently, if a landowner harms the panther, the landowner is subject to a citizen's suit to enforce the Endangered Species Act. However, the incentives proposal, as it is based on a contract, would apparently allow only the approval entity to enforce the terms of the conservation agreement. As is clear to anyone who has worked on panther recovery issues, the Service and other resource agencies are overworked, understaffed, and completely under-budgeted. Perhaps more importantly, these agencies clearly have been reluctant to enforce the law in controversial land development situations, and the panther has continued to lose habitat as a result.

The ability of interested members of the public to enforce the terms of a conservation agreement is absolutely necessary_.This could be done by including certain environmental organizations with a longstanding dedication to the panther conservation as parties to the conservation agreement. Or, perhaps other statutory changes could be proposed which would provide standing to environmental organizations and citizens to enforce the conservation agreement. Regardless of which approach is pursued, adequate citizen enforcement provisions must be included.

Response #11: It's curious that you tried to make the Interagency Committee the Lessee in Concern #10, but now argue that these agencies are overworked. Which way is it? As to citizen enforcement of conservation agreement terms -- that would kill the program. Citizens just will have to hold government's feet to the fire.

Workshop Responses:

Green: 23 -- 9 landowner, 8 government, 1 landowner/government, 1 landowner/conservation, 1 landowner/other,1 conservation, 2 other

Yellow: none

Orange: none

Concern #12: Sound science. Florida Game Fresh Water Fish Commission biologists have clearly established that Florida panthers avoid intensive agricultural lands such as citrus, sugar cane, or vegetable fields, and that converting native habitat to agricultural or residential lands adversely impacts the panther. These facts are based on a decade of careful field research and radio telemetry studies. Continuing statements by agricultural interests to the contrary -- such as the compatibility of orange groves with panther usage -- are simply incorrect. We can talk about "consensus" all day long, but meaningful dialogue is not advanced by failing to recognize biological reality.

If any incentives proposal is to receive the support of the environmental community, the process must utilize sound science. Whether in drafting the general proposal, considering the terms of the conservation agreement, reviewing a proposed farm plan, or reviewing development proposals, all parties must recognize that certain forms of human activity are incompatible with advancing the recovery of the panther. Unfortunately, at this point, we are very concerned that the best available data clearly contradicts or does not support many of the statements or conclusions which underlie the incentives proposal.

Response #12: I agree. Every step that is taken must be based on sound science. However, I don't believe selective science should be used to buttress a particular point of view or to oppose approaches or alternatives that bear investigation or consideration. We need to be honest with our science. State what is known. State what is not known. And state what is our own opinion.

David Maehr has recently published a book, The Florida Panther: Life and Death of a Vanishing Carnivore (Washington, D.C.: Island Press, 1997). Two interesting points emerge from his long field experience studying panthers. First, Dr. Maehr makes it clear that habitat is the key to the panthers' survival. Period. Also, contrary to what is stated above, he clearly observed panthers using private agricultural lands (and areas with fragmented habitat) for denning, rearing young and hunting.

I have spoken to other biologists at GFC. Here's what I was told: "GFC biologists would never trade natural areas for citrus. But we recognize that row crops, citrus, etc. attract a prey base that supports panthers. We have documented denning and rearing of young in small isolated natural cover areas completely surrounded by citrus. This wouldn't occur if citrus wasn't providing some basic need."

Please do not make the mistake of assuming all agricultural development is bad. As Dr. Maehr says in the conclusion of his book (p. 221):

"Presumably the recovery of endangered species is for the public good. Thus it is not unreasonable to count on public dollars to make it happen. Owners of land that supports panthers should not be penalized for having panther habitat. Without these lands as an integral part of the panther core, all the millions of dollars spent on research, public land management, and underpasses will have been wasted. We seem quite willing to pay $5 an acre per panther on a federal refuge. Why shouldn't we be prepared to spend a comparable amount on private lands?

"As former Panther Refuge Manager Todd Logan has observed, all we need is the money spent for one B-1 bomber to buy all the land needed for panther conservation in south Florida. With the same number of dollars, however, we could leave this land in private ownership, subsidize panther management on it -- and probably increase the range of the Florida panther as well. The private sector holds all the keys to panther recovery; its creativity, honed by wrestling with free market problems, will save the panther if we give it the opportunity to do so. [Emphasis added.]

"What panthers need is space. The two million acres or so still available to them may well be the barest minimum. Ideally, their home should be mostly a forested landscape that can be shared with people. Neither species needs to be excluded. Certainly, panthers will blissfully pursue their day-to-day business in preserves totally devoid of human activity just as they did before humans arrived in Florida thousands of years ago. But they can get along just as well with certain types of human activity. Although intensive development would eliminate them, a variety of land management strategies have been shown to be compatible with panthers. The path to panther recovery, therefore, ends on private land."

Workshop Responses:

Green: 34 -- 14 landowner, 11 government, 1 landowner/government, 2 landowner/conservation, 1 landowner/other, 1 conservation, 4 other

Yellow: 5 -- 1 landowner, 2 government, 2 conservation

Orange: none

Comments Offered:

Citrus is NOT optimal use of the area. Does not imply high quality.
If this is supported by field data, and survival rates in these areas are comparable to other crop types, then all conservation agreements should require a minimum amount of this habitat type.

Concern #13: All "mosaics" are not equal. The concept of "mosaic" is central to the strategy; yet, this word is so vague as to be almost meaningless. Thus, the Strategy notes that "the key is in ensuring that other land uses alternate with or incorporate a connected mosaic of natural habitat which provides cover for the panther and other wildlife.^"To some, this statement may sound nice; however, it completely fails to provide meaningful guidance regarding the level of human alteration which is compatible with panther use. Some "mosaics" will benefit panthers; others will be tolerated; and still others will be completely useless.

We also would note that in Dennis Jordan's June 14, 1997 comments, he proposed that the definition of mosaic be modified to: "Aggregate of native and agricultural landscapes that provide suitable habitat for survival and recovery of the Florida panther while providing for continued agricultural activities." This is clearly an improvement; nevertheless, it would still allow new activities to occur which would adversely impact the panther. Continuing destruction and fragmentation of panther habitat is consistent neither with panther recovery nor with the concept of "paying people to grow panthers."

As proposed, sufficient safeguards do not exist in the strategy and conservation agreement to ensure that panthers really will benefit and the money will not be wasted.

Response #13: Yes. You're correct. The term "mosaic" needs to be defined in such a way so its meaning is clear. However, in the case of Florida panther habitat, Priority 1 is Priority 1, even though not all Priority 1s are equal.

Please note that the term "mosaic" is not included in the current draft of the conservation agreement. Instead, the conservation agreement refers to the "Leased Premises," which are the habitat(s), native landscape(s) or natural area(s) covered by the conservation agreement. In addition, the conservation agreement refers to the "Adjoining Lands," which are lands on which "other activities" take place. Both are shown on Exhibit A (map of Leased Premises and Adjoining Lands) and Exhibit C (Aerial Photograph of Leased Premises and Adjoining Lands) and described in Attachment 2 (Current Agricultural Production Detail and Property Use). The conservation agreement will spell out the terms of protection for the "Leased Premises." See Paragraphs 2.04(a), 2.04(b), 2.04(c), 2.05(a), 2.05(b), 2.05(c), 9.02 and 9.03. It is the development of this language that is critical. I look forward to your input to help us in developing this language.

Workshop Responses:

Green: 15 -- 7 landowner, 4 government, 1 landowner/government, 1 landowner/other, 2 other

Yellow: 7 -- 1 landowner, 4 government, 1 landowner/conservation, 1 conservation

Orange: none

Comments Offered:

How much Priority 1 Habitat has been converted to more intensive use since it was designated? Need to update info on Priority 1 Habitat.
Lease negotiations should be based on prioritized criteria. Persons who have been actively conserving wildlife habitat will benefit most in this manner.

Concern #14: What are the values of different land uses to the panther? Is there a difference in value for native range, improved pasture, citrus, row crops, etc.? How will the value of a conservation agreement which includes land uses of different value to panthers be determined?

Response #14: See proposal for sliding scale payments described in Paragraph 3.04 of the conservation agreement.

Workshop Responses:

Green: 10 -- 4 landowner, 4 government, 2 other

Yellow: 7 -- 5 government, 1 landowner/conservation, 1 conservation

Orange: none

Comments Offered:

Effects of platted lands on conservation agreement implementation?

Concern #15: Actions to be limited on lease lands have not been clearly defined and may be a sticking point in some agreements. I would anticipate this would be more of an issue for agricultural interests than grazing, but I could be in error.

Response #15: The conservation agreement was written in an attempt to avoid long lists of "do's and don'ts," except in cases when the Lessee is given access to the property (when the provisions of Article 5 would apply). Long lists of "do's and don'ts" can make an agreement seem forbidding and extremely onerous, yet often fail because they do not fit every situation and can never be written to forestall every eventuality. Instead, it is clearly stated in the conservation agreement that the Lessor's obligation is to DO NOTHING that will jeopardize the integrity of the habitat that is specified in the conservation agreement. If a landowner believes that a proposed action might have an impact on the habitat, the landowner is obligated to contact the agency with authority over the conservation agreement and work out an acceptable means of moving forward. See Paragraphs 2.04(a), 2.04(c), 2.05(b), 2.05(c) and 9.02 of the conservation agreement.

Workshop Responses:

Green: 15 -- 5 landowner, 6 government, 1 landowner/government, 1 landowner/conservation, 1 landowner/other, 2 other

Yellow: 8 -- 5 landowner, 2 government, 1 conservation

Orange: none

Comments Offered:

More clearly defined rules of changing land use are required, rather than landowner opinion of what will degrade panther habitat. These should be spelled out in the conservation agreement as any change.
Landowner should not be the only one to decide if the activity would harm the integrity here.

Concern #16: Invertebrates and plants are important too. The strategy focuses solely on the Florida panther. While we understand that this emphasis stems from a desire to provide a new mechanism to implement the Panther Habitat Protection Plan, we nevertheless remain very concerned that sufficient safeguards do not exist to ensure that biological needs of other federal and state listed species -- as well as all the species which merit listing -- will be considered. For example, the conservation agreement states that it "does not preclude the standard use of 'restricted use' pesticides." Such use could have extensive harmful effects on invertebrates; yet, the conservation agreement would not prevent such activities. Likewise, issues relating to run-off from private agricultural lands could affect numerous species, as well as the integrity of public lands; yet, the conservation agreement does not ensure that water quality and quantity issues are even addressed.

If the public is to be providing incentives payments to landowners, these payments must not result in activities that harm other sensitive species, but the conservation agreement does not preclude such a result.

Response #16: The strategy now focuses on habitats -- which, in turn, sustain a multitude of plant and animal species -- on private lands. The strategy also has the potential to be extended to address the long-term management and enhancement of other types of natural or constructed resources: surface or subsurface water resources, aquifer recharge areas, water retention or detention areas, flood plains, flow ways, wetlands, estuaries, etc. The extension of the conservation agreement concept to these other resources may be possible because its underlying principle would remain the same: payment to a private landowner to maintain and manage a specific resource in its natural state and not replace it with a more intense form of development, while causing minimal interference with the landowner's ability to conduct normal agricultural operations and quietly and peaceably enjoy his or her property. However, if we begin adding long lists of restrictions and limitations to the program in an attempt to turn it into a solution to all problems, it will interfere with the landowner's ability to conduct normal agricultural operations and quietly and peaceably enjoy his or her property ... and it will fail.

Workshop Responses:

Green: 17 -- 7 landowner, 5 government, 1 landowner/government, 1 landowner/conservation, 3 other

Yellow: 8 -- 2 landowner, 5 government, 1 conservation

Orange: none

Comments Offered:

Scope already has changed from panther to all threatened and endangered species. Could have suitable habitat for several listed species but aren't helping any of them because they aren't there due to not enough habitat, extirpation, etc.
Protection of habitat for a large mammal will extend to others that co-habitat the area. The more restrictions the less likely landowners will voluntarily enter into agreement.

Concern #17: How much access to land under conservation agreement will be needed to monitor program success and/or landowner compliance? This was a very touchy issue left unresolved at the May 1997 workshop. Resolving the way in which we determine program success (Concern #20) will help resolve this issue.

Response #17: See Concern #18, below.

Workshop Responses:

Green: none

Yellow: none

Orange: none

Concern #18: Panther Research. Paragraphs 3.04(m) and 9.01 of the conservation agreement unacceptably restrict the ability of the lessee to enter the property. Designated agents of the lessee -- such as Florida Game and Fresh Water Fish Commission employees -- must have the authority to enter the property to search thoroughly for panthers and radio-collar any panthers which are found on the property. In addition, there must be provisions which allow reentry whenever it is necessary to recollar a panther (the batteries in the collars expire after several years); inspect the health of a particular animal; and remove panthers who have died.

Response #18: As stated in the response to Getting what we pay for (Concern # 6), the conservation agreement will provide the flexibility and opportunity to negotiate arrangements with individual landowners to gain access to the property for all the purposes that an agency might desire. See Paragraph 3.04(m). It simply will be a matter of coming to agreement on how much access is needed, for what purposes, under what conditions, what type of notice is required, and how much additional compensation the landowner will receive. Again, the public will be able to get exactly what it pays for -- little access for little cost in the basic conservation agreement, more access for more cost in a negotiated agreement with mutually acceptable terms.

Workshop Responses:

Green: 16 -- 7 landowner, 4 government, 1 landowner/conservation, 1 landowner/other, 3 other

Yellow: 8 -- 3 landowner, 3 government, 1 landowner/government, 1 conservation

Orange: none

Comments Offered:

Level of monitoring could be limited to annual search for sign - i.e, tracks, scrapes but not collaring. Pay landowners more if (sliding scale) 1- tracks are found, 2 - he allows collaring, 3 - he has a panther denning on his land, etc.
Periodic visits to ensure management programs (fire, exotic control) are being conducted, and that prohibited land use activities (intensification of agriculture, wetlands drainage) have not occurred, are important. Insisting on more is unreasonable unless landowner agrees.
Additional compensation for access to measure success is still a problem. Negotiation of types and amounts of access is good.

Concern #19: Accurate Economics. In previous comments, we have voiced our strong concerns about paying individuals or companies to comply with the requirement of the Endangered Species Act. Putting these issues aside for the moment, and, for the sake of discussion, addressing issues pertaining to an incentives proposal, we have serious concerns about the data and analysis which underlie the Strategy's conclusions regarding the financial benefits for an incentive program. Theses concerns include:

A. The cost of purchasing 25 years of rights will be a large percentage of what the cost would be to purchase the rights permanently;

B. The proposed incentives -- including tax credits and inheritance tax credits --could over compensate landowners. If a market value approach is used, the compensation must be no more than what the market would give up.

C. Owners should not be paid for everything they might possibly do in the future. The strategy proposes to compensate landowners basing the value of the agricultural rights purchased as the difference between its proposed restricted use and the value of land sold on the open market, fully permitted for the most intensive agricultural use feasible. This assumes that all lands that could have citrus groves on them have the value of a fully permitted grove, and that simply is not true. The market does not operate in this manner, and structuring payments in this manner will provide a windfall to landowners.

D. The leasing entity must be able to bargain in as hard nosed a manner with each private landowner. The landowners should submit bids, and the entity be able to pick those areas which provide the most panther protection for the lowest cost.

E. Just as a landowner does not have to agree to a lease, the leasing entity should have the flexibility to go farm by farm. The entity should not be required to lease all lands that are covered by the panther habitat protection plan;

F. Farm budget studies may overstate the market values for agricultural land.

Any incentives proposal must be based on sound economics, and at this point, we continue to have serious concerns about the economics analysis. Any proposal, before it is finalized, should be reviewed by environmentalists who are experts on farming budgets.

Response #19: What is your objective here: to see how difficult and onerous you can make the negotiation and conservation agreement process and, hence, ensure that, at best, years will be spent in completing a handful of scattered conservation agreements, or at worse, landowners will simply refuse to participate? Or do you want to seek out and work toward points of agreement and accommodation to develop win-win agreements that will make people want to work together, and ensure that long-term management agreements can be established that cover as much panther habitat on private lands as possible?

I really do not understand why are you so concerned that a landowner might get a few dollars per acre "too much" to manage panther habitat.

Private landowners are not the enemy; the threat to the panther comes from continued urban development -- and the governmental policies at the federal, state and local levels that fuel and abet continued development.

The economic reality in south Florida today is that, even though some landowners go to extraordinary lengths to nurture the resources on their property and conduct their activities in a manner that is sustainable and compatible with these resources, they must make a profit ... or go out of business.

The market currently pays Florida farmers to produce vegetables, citrus, timber and homesites. But it does not pay for the other "products" for which they are the custodians -- open space, wildlife habitat, water resources, wetlands, etc. more. And therein lies the dilemma: As much as ag landowners may want to protect wetlands or wildlife, they have a powerful inducement not to do so.

The market economy offers landowners a strong incentive to manage their holdings for the highest and best economic return. And that can translate into intensive development that may be at odds with natural resource protection. Of course, landowners are not forced to seek the highest profit obtainable. That

is their choice. But if it is profitable to convert land from native habitat to agriculture and from agriculture to condominiums, chances are land will be converted.

The study conducted by Florida Stewardship Foundation in 1997, The Florida Panther & Private Lands, An Economic Analysis: The Landowners' "Conceptual Plan" Compared With Other Conservation Alternatives (cited in Response #6, Getting what we pay for) indicates it is cheaper to keep land on property tax roles and in economic production while paying landowners for stewardship efforts than it is to buy land, take it off tax roles and maintain it at public cost. It also is cheaper to pay incentives to a landowner to encourage proper stewardship, than to let a resource degrade and pay to fix it or clean it up later.

Contrary to what you state in #A, above, this study shows that the direct, annualized cost of the proposed incentive program will range from one-quarter to one-third the cost of a public land purchase and from less than one-half to three-quarters the annualized cost of a conservation easement. In addition, it will keep land on local property tax roles and in economic production.

This last point is particularly important from an economic standpoint: The study shows that if all the agricultural lands within the priority panther habitat area were purchased by the government, or if the landowners were required to take them out of agricultural production, the annual loss to the regions' economy would be over 9,000 jobs, $114.8 million in earnings by those employees and almost $500 million in economic output. The economic output generated by these agricultural lands averages $1,074 per acre per year. That becomes quite significant over the economic life of the land which, if the land is well managed, is virtually unlimited (25, 50, 100 years).

If these lands were purchased by the government, these figures would be offset by any economic impact that is generated by public access to these lands (recreation, hunting, fishing, camping fees, etc.). A study being done by Florida Atlantic University and Florida International University Center for Environmental and Urban Problems for Everglades National Park, however, shows that the annual economic impact (weighted average) generated by public use from federally owned areas is only $63 per acre.

You will not buy as much "protection" with this proposed strategy, but it also won't cost as much. Payments to landowners will start out at the same cost per acre per year that public land managing agencies now spend to manage their properties. Our research indicates this cost averages $11 per acre per year for public lands in southwest Florida, not including administrative costs. Payments to landowners will then increase as more services are requested or as more requirements are placed on them. Our study calculated the annualized cost of the "conceptual plan" (which includes the costs you refer to in #B and #C above) at $33 to $35 per acre. Hence, there is a lot of room to move up the scale from a simple management-only agreement, with limited access, to an agreement that also allows for data gathering, wildlife research and activities that will advance recovery of the panther. At each step up the scale, the public will be getting exactly what it pays for -- plus the neighboring lands that remain in agricultural production will continue contributing to local economies and property tax roles.

David Maehr concurs with this position in The Florida Panther: Life and Death of a Vanishing Carnivore. He states:

"Landowners must want to help in the recovery of the Florida panther. Coercion will not generate authentic support. Many of them would like to help, but few can afford it. In order to pay their taxes and maintain their quality of life, property owners must make their land produce income. If it is truly agreed that forests on private land must be part of the future panther landscape, then their owners deserve to be compensated for sacrificing income or the potential to earn income on their land. What we really [need is] the appointment of a panther habitat lobbyist -- someone knowledgeable about panthers, south Florida, ranch owners, and local politics -- who could develop proposals to local, state, and federal governments that would provide tax incentives, cash, or other compensation for the voluntary protection of key habitat. Such a program is not only feasible, it is necessary. (p. 200)

"This, I believe, is the crux of the panther's plight. Extinction will result, not from poaching or roadkills or inbreeding or disease or competition with hunters, but from habitat loss. Given the pattern of landownership in Florida, it is clear that the private sector holds all the keys to panther recovery ..." (p. 200)

"Ironically, many owners of large ranches in south Florida are proud to have panthers on their land. Not once, in nearly nine years of dealing with ranchers in Collier and Hendry counties, did I hear disparaging remarks about panthers killing livestock or eating too many deer ... to most landowners, the panther is one more reason their ranches are special places ... But when landowners perceive that overregulation threatens their livelihood, then suddenly the panther becomes a costly liability and its future on private land is cast in doubt." (p. 201)

Workshop Responses:

Green: 18 -- 8 landowner, 5 government, 2 landowner/conservation, 3 other

Yellow: 2 -- 2 government

Orange: 3 -- 2 government, 1 conservation

Comments Offered:

Government taxing forces owners to most economic use of land.
Don't see the points in Concern #19 addressed, just acknowledged.
To what parts of this 3-page discussion are we to agree or disagree about?
I don't see the point to this Concern. All things have value and that value changes. It is not static.
If funds are limited, rank land for best/most habitat.

Concern #20: What determines program success? It was suggested by some at the May 1997 workshop that success should be determined by some measurable, positive, response in the panther population. Should this policy be adopted, quite invasive types of monitoring would be required. I would argue that program success could be determined by a simple assessment of the number of acres of priority panther habitat on which escalated development has been prevented by the agreement. This type of policy would require much less intrusive access to monitor.

Response #20: Good suggestion. The conservation agreement -- and many of the suggestions for applying the agreement -- are now based on this concept. See Lease Concept #3 and Guidelines to Applying the Lease #8, #9, #10 and #13.

Workshop Responses:

Green: 16 -- 9 landowner, 4 government, 1 landowner/government, 1 landowner/conservation, 1 other

Yellow: 2 -- 1 landowner/other, 1 government

Orange: 4 -- 3 government, 1 conservation

Comments Offered:

Some basic wildlife population dynamic monitoring I believe is important to document success. A baseline/benchmark should be defined at the beginning of the conservation agreement, followed by some low level monitoring to adjust land management treatments if deemed necessary.
Periodic (5 year?) site visits are needed to ensure management program are being implemented.
Success should be measured by the amount of natural habitat and "priority" altered habitat that has come under conservation agreement, not the success of any one species.
We cannot guarantee anything related to a specific species. Therefore, our attention must be directed to habitat.
Monitoring is not and does not have to be very "intrusive."
Scope of project has changed from panther to all listed species. "Invasive" types of monitoring is erroneous - there are levels of monitoring. Quality habitat exists for threatened and endangered species, but none use it due to small parcels, extirpation, etc.
Success cannot be based on the # of acres of blocked development. Needs to be ecological and quality based.
The panther is not our concern. Protected habitat is a fair measure of success.

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