U.S. Acts to Shrink Endangered Species Habitats

New York Times
By Greg Winter

LOS ANGELES, March 19 — The Bush administration, under pressure from lawsuits by real estate developers, is urging federal judges to roll back legal protections for nearly two dozen populations of endangered species around the country.

In an effort to resolve as many as a dozen cases against them, the United States Fish and Wildlife Service and the National Marine Fisheries Service, two agencies that enforce the Endangered Species Act, are asking federal courts in California to rescind millions of acres of protected habitat for whipsnakes in the state's northern grasslands, rare birds in the scrublands to the south, fairy shrimp in shallow pools along the coast and salmon among the rivers, estuaries and shorelines of four Western states.

The administration is also questioning whether to preserve the "critical habitat" designations that safeguard millions of acres for about 10 other endangered species, from the Mexican spotted owl to the California red-legged frog, signaling a widespread shift in environmental policy that has consoled developers and incensed environmentalists.

"The Bush administration is voluntarily waving the white flag," said Joel Reynolds, a lawyer for the Natural Resources Defense Council, an environmental group that has intervened in a Los Angeles federal court on behalf of the California gnatcatcher, a tiny brush bird. "It is a significant step in the wrong direction for wildlife protection," Mr. Reynolds said, arguing that the administration's willingness to concede in these cases could indicate it is inclined to do so in future lawsuits.

In cases where they have relented to developers' demands, administration officials contend that they have had little choice. Last May, in a suit brought by cattlemen and farmers in New Mexico, the United States Court of Appeals for the 10th Circuit invalidated nearly 600 miles of protected streams and river beds for the willow flycatcher because the government did not fully consider how businesses and landowners would be affected, as the law requires.

An equally limited economic analysis took place for most of the 150 habitats that have been set aside for endangered species, limiting development in the areas. Most were set aside after the Clinton administration was forced to map protected areas by federal court decisions in lawsuits brought by environmental groups. Because of that, Bush administration officials say they have little confidence of prevailing in the many lawsuits brought by developers nationwide.

"The interpretation was simple: We would lose," said Gordon Helm, a spokesman for the Fisheries Service, which announced last week that it hoped to resolve a suit with the National Association of Home Builders by withdrawing the protected habitats for 19 populations of chinook, chum, coho, sockeye and steelhead in California, Oregon, Washington and Idaho.

While they acknowledge that carving out critical habitats ensures additional protections for rare animals, administration officials say the Endangered Species Act still offers ample ways of shielding the environment from destructive forms of development. Once an animal is listed as endangered, for example, federal officials have the power to intervene in any development that seriously threatens its well-being.

"Vacating the critical habitats is not going to have a significant impact on the species," said Chris Tollefson, a spokesman for the Fish and Wildlife Service. "If it was, we wouldn't be proposing it."

Whenever an animal goes on the endangered species list, the geographic area considered essential to its survival must be listed as a critical habitat, subject to a heightened degree of scrutiny that landowners have long criticized as cumbersome, if not simply unmanageable. Though new homes and even large-scale complexes can still be built in the protected areas, they must often undergo extensive reviews.

The rules have offered a lifeline for environmentalists hoping to curb infringement into pristine habitats. But developers argue that hampering construction on millions of acres of prime real estate, especially for an animal that may not even live in the area, violates the mandate of the Endangered Species Act.

"Is the cost to society at large greater than the potential benefit to the species?" asked David Smith, general counsel of the Building Industry Association of Southern California. "That's what the government is supposed to consider."

As they sketched out the boundaries for dozens of protected areas over the last five years, however, federal officials typically concluded that there were no significant economic consequences to doing so, prompting a wave of federal lawsuits by developers.

"How do you set aside 500,000 acres of the most valuable land in the country and say there is no economic impact?" asked Rob Thornton , a lawyer trying to throw out the gnatcatcher habitat that spans the coast from Orange County to San Diego. Builders in Southern California found that preserving the habitat would cost the state $300 million to $5.5 billion in lost construction jobs and new housing.

Farther north, developers amid the inland hills of Alameda County contend that the 400,000 acres of protected lands awarded to the whip- snake are so ill-conceived they blanket the entire city of Dublin, a town of 32,000 people. "How can a city of thousands be considered a critical habitat?" asked Guy Bjerke, vice president of the Home Builder's Association of Northern California.

Though the government has offered to withdraw many of the contested habitats, at least until it can perform a more detailed economic analysis, it is up to the federal judges reviewing such cases to approve the concessions. In the gnatcatcher case, for example, a federal judge in Los Angeles has indicated his willingness to grant the government's request. If such decisions become common, environmental groups argue, a burst of new development is likely to follow, impinging upon endangered species, even if the government ultimately decides to restore the habitats once its economic review is complete.

"The Bush administration is undoing these critical habitats without explaining what they're going to do instead to recover endangered species from the brink of extinction," said Bill Corcoran, the Sierra Club coordinator who is organizing against developers in Southern California.

But to accuse the administration of being particularly insensitive to endangered species is unfair, wildlife officials argue. After all, President Bill Clinton only began setting aside critical habitats for endangered species after environmentalists forced his administration to do so in the courts.

What is more, Bush officials argue, with all the lawsuits over habitats, filed by developers and environmentalists alike, the Fish and Wildlife Service's ability to put new animals on the endangered species list ground to a halt last year.

"Unfortunately, we're in a situation now where the needs of the species aren't really driving the process," Mr. Tollefson said. "It's who's getting into the courtroom first."

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