Endangering Species - Developers call Habitat Rules a Threat to the Future

02.01.2001
California Real Estate Journal
By John McCloud
How much is enough?

That's the question nagging property owners and public officials in regard to recent actions by the U.S. Fish and Wildlife Service to designate zones of critical habitat for endangered species.  Many affected parties claim the federal agency is being overzealous in its efforts to protect both existing and future members of affected species, closing off far more land than necessary to do the job.
 
"The government has designated almost 8 percent of the land area of California as critical habitat," points out Rob Thornton, the former managing partner of the Los Angeles law firm Nossaman, Guthner, Knox and Elliott LLP and current chair of the firm's natural resources practice.  "And that's for just four species.  There are 280 species in the state on the endangered species list.  If they continue to take same position with all of them they have with the first four, the entire state will end up designated as critical habitat."
 
The California species covered so far by federal action are the California gnatcatcher, San Diego fairy shrimp, arroyo toad and tidewater goby.  The Peninsula bighorn sheep is scheduled for action shortly and the agency plans to put the official stamp on the red-legged frog habitat in spring.  Some are found throughout the state, some in only certain regions.
 
Thornton, who served as counsel for five of the 14 habitat conservation plans approved by Fish and Wildlife in the western United States, says continuing the current pattern will have a disastrous economic and social impact on the state's future.  He says an analysis of the USFWS critical habitat delineations for the gnatcatcher and arroyo toad alone mean the loss of 200,000 future housing units and 100,000 future jobs in Southern California.  The economic impact, on the foreseeable future, is on the order of $5 billion, he adds.
 
If the analysis is correct, it suggests an impact approaching $700 billion for all species - and double that when Northern California is thrown in.  Of course, there would be considerable overlap among many of the species.  Nonetheless, the total would appear to be in the vicinity of $1 trillion.
 
Bill Curtiss, director of service for the Bay Area office of the EarthJustice Legal Defense Fund, a Washington, D.C.-based organization spun off from the Sierra Club to tackle legal challenges surrounding environmental issues, takes issue with the conclusion.  He does not deny there will be an impact, but he doubts it will be anywhere near as extreme as USFWS critics claim.
The primary result, he says, will be to force local jurisdictions and developers to take much greater care in accommodating growth.  In fact, he argues it will ultimately have a positive economic impact by maintaining the state as a desirable place to live and preserving resources for future generations.
 
Ironically, Curtiss and many fellow environmentalists are as critical of USFWS as Thornton is, but for different reasons.  They say the agency has been overly lax rather than overly diligent in carrying out its mandate to define critical habitat.
 
"The Fish and Wildlife Service is doing a lousy job," Curtiss charges.  "Maybe they carried out their duties regarding the red-legged frog, but it was done at judicial gunpoint."
 
The requirement for habitat delineation is part of the federal Endangered Species Act of 1973. The official USFWS explanation for the failure to do this is that a shortage of money and staff has forced the agency to push habitat designation down the list of priorities.
 
A USFWS spokesman in Sacramento who asked not to named says much of the agency's energies regarding habitat have been continuously diverted to dealing with thousands of cases regarding current development.  Allocating resources to the complex process of determining necessary habitat means either delaying or rubber-stamping pending projects.
 
Curtiss recognizes the legitimacy of the complaint about understaffing.  Neither Congress nor the Department of the Interior, which oversees the agency, has particularly championed the issue over the past three decades.
 
Curtiss says this has been a mistake because failing to establish well defined critical habitat has made it more difficult to plan new development.  A lot of time and money is wasted pursuing projects on properties that, unbeknownst to local authorities or the developers, cannot legally be built on.  The result, says Curtiss, is an atmosphere of uncertainty that creates as many problems for developers as environmentalists.
 
"It is useful to know what parts of the universe are legal, and making a map is one way for developers to know in advance the situation with any particular site," he remarks.
 
But certainty is of no help, Thornton counters, if what is certain is that no site is buildable - or more accurately, that every site is contestable.  The problem is that designated habitat may or may not be developable, depending on the decision - and the agency's strongest critics would say whim - of USFWS, he says.
 
"The owner of any property within a designated critical habitat has to obtain Fish and Wildlife approval for any change to the property, but there seems to be no clear way of knowing whether the approval is likely to be given," he says.
 
According to Thornton, the environmental community generally takes the position that the critical habitat statute allows no modification of a property within the habitat.  He acknowledges the agency has not adhered to such a strict interpretation, but he says there is nothing to prevent it from adopting a more stringent policy in the future.
 
More to the point at present is that there has been a lot of inconsistency in agency decisions. Even more to the point, Thornton asserts, the completed and pending habitat designations are not in accordance with the Endangered Species Act.
 
Following the lead of some of the more extreme environmentalists, "the agency is taking the view that critical habitat covers not only where species are currently found, but where it could be helpful to have them established in the future.  We think Congress intended a narrow definition of critical habitat," he says.
 
Dennis Carrington, a senior planner with the city of Dublin, is uncertain what the interpretation should be.  "I've seen legal opinions saying the actual text of the Endangered Species says when you determine habitat, it has to be based on where critical habitat is or would come back if, for example, cattle stopped grazing on it or some other activity were stopped," he says.
 
This still is not as inclusive as the stricter interpretation, which would seem to encompass such properties as vacant lots, school grounds and cropland as long as they have not previously been built on.  And perhaps even if they have.
 
The issue of is crucial importance to Dublin.  The entire city, not to mention about one-third of both Alameda and Contra Costa counties, appears destined to fall within the boundaries of a critical habitat for the red-legged frog.
 
After Fish and Wildlife released its proposed habitat map last summer, the Dublin City Council sent a letter of protest, saying the designation would block all future projects unless developers could prove they would not harm the frog now or deprive it of needed future habitat.
 
According to Carrington, the habitat document turned out to be somewhat less constraining than first believed.  He says city officials initially thought previously developed areas would be subject to USFWS review, but a closer reading revealed the requirement would apply only to undeveloped sites.

All the same, the designation has the potential to halt all outward expansion.
 
The core issue, says Carrington, is that the habitat designations are based on poor science. "They're essentially drawing lines around urbanized areas and saying this is all now determined to be critical habitat.  That means the creature is there by default, even if it is not," he says.
 
In Carrington's opinion, the federal agency's staff shortage may have prompted it to respond haphazardly and too quickly to the court ruling.  He says it's failing to do the field research necessary to make a sound decision.
 
Curtiss insists the decisions are indeed based on scientific procedures.  He says critics of the habitat delineations simply choose to believe, or at least proclaim, otherwise.
 
"I think the arguments that only the habitat in which a species now exists should count as critical are frivolous.  It's where they are now and what they need to continue to survive.  That is by and large a question of science," he asserts.
 
"Builders don't have any special biology," Curtiss continues.  "The definition of critical habitat calls for decisions to be made on science, not on whose plans are impacted, not whose dreams are punctured."
 
Thornton maintains the amount of land needing designation is quite small, probably fewer than 100,000 acres throughout the state.  Considering the agency has established approximately 158,000 acres of reserves for the gnatcatcher alone, it's obvious there is enormous disagreement.
 
Thornton and Carrington both admit the legitimacy of defining critical habitat, but says Carrington, "We're just looking for fairness in the process."
 
The two sides seem so far apart on the issue that resolution almost certainly will have to come from the courts.  So whatever the final outcome, likely it won't be known for several years.

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