February 16

Officials of the Bush administration have asked a federal judge to invalidate protection of several hundred thousand acres of land deemed essential for the survival of two Southern California endangered species.

In addition, the officials at the U.S. Fish and Wildlife Service say they are considering whether to reevaluate up to 10 such "critical habitat" designations involving millions of acres of land, primarily in California.

One of the most controversial provisions of the Endangered Species Act, critical habitat is a category of protected land in which development and other uses can be limited or even barred to ensure the survival of imperiled plants and animals.

Critical habitat designations stalled a housing project on behalf of a rare snake in Contra Costa County in the Bay Area and evicted fishing trawlers from Alaskan waters favored by endangered Steller sea lions.

Now, the plan to reevaluate critical habitats has sparked a heated debate between environmentalists and Bush administration officials over whether changing the designations would lead to less land being protected and periods of time when the land isn't protected at all.

"The Fish and Wildlife Service is taking a dive," said Andrew Wetzler, an attorney with the Natural Resources Defense Council's Los Angeles office. "The bottom line is that millions of acres of habitat around the country are going to lose the protection they now enjoy."

"I think that's an exaggeration," countered Chris Tollefson, spokesman at Fish and Wildlife headquarters in Washington, D.C.

Tollefson confirmed that the service wants to lift such protections on more than half a million acres in Southern California while it retools its economic analysis of habitat designated in 2000 for a tiny songbird, the coastal California gnatcatcher, and a freshwater crustacean, the San Diego fairy shrimp. The agency's review could take two years or more.

Fish and Wildlife officials believe that the gnatcatcher and fairy shrimp are shielded sufficiently by other parts of the Endangered Species Act, Tollefson said.

Before designating critical habitat, the service is legally required to analyze the economic impacts on developers, property owners, cities and others who have an interest in the land. Until last year, nearly all of those analyses had said that creating critical habitat would not make it much more expensive to use the land commercially.

Developers, ranchers, farmers and others have long argued that habitat designations were far costlier than the government said they were. The Endangered Species Act already prohibits the killing of species, but designation as a critical habitat protects places where endangered species are likely to dwell, requiring developers to step more gingerly on the land.

One developer-funded study in California estimated that proposed gnatcatcher critical habitat alone would cost the state $5.5 billion in lost jobs, housing and property value over 20 years.

Declines Blamed on Habitat Loss

In California, the wildlife service said that the impacts from the gnatcatcher and fairy shrimp designations would be minimal--a finding that developers said was absurd.

"Come on--500,000 acres of prime Southern California real estate, arguably some of the most expensive real estate in the country--a regulatory enactment of this magnitude is going to have zero economic impact?" said David Smith, general counsel for the Building Industry Assn. of Southern California. "That they even tried to pull that was astonishing."

The issue has particular resonance in California, which has more endangered species than any other state except Hawaii. California species whose habitat is under review include the the Alameda whipsnake, the red-legged frog, the Riverside fairy shrimp, and the Southwestern arroyo toad. For the frog alone, the service has designated 4.1 million acres in 28 counties.

Environmentalists argue that habitat loss is the main reason why species go extinct and that without critical habitat designations, the Endangered Species Act cannot ensure the survival of the plants and animals it is supposed to protect.

Landowners counter that critical habitat spawns unnecessary, costly red tape.

For many property owners, the designations amount to little more than lines on a map. But compliance can be problematic if a landowner depends on federal subsidies or permits--as many major developers and ranchers do.

Some of the most contentious designations have been on land that is not currently occupied by imperiled species but could be inhabited in the future. Service officials initially balked at designating critical habitat in many areas, saying its budget was limited and its staff should focus on listing newly endangered species. However, a flurry of lawsuits by environmentalists forced the service in the late 1990s to start designating habitat for hundreds of species in the West. Some Fish and Wildlife officials said last week that critical habitat has cost them more in publicity and landowners' ire than it has been worth.

The administration's latest decision to reevaluate habitat designations coincides with a slew of lawsuits brought by developers and other landowners nationwide, challenging how the government conducted its financial analyses of the habitat. Landowners' attorneys praised the move.

"We're hoping that for the first time, there will be an honest, thorough analysis of economic impact," said Robert Thornton, an attorney representing the Building Industry Assn. of Southern California and toll road builders in Orange County.

But Thornton said that "no one in the case is arguing that there should be no critical habitat. The issue is what should the critical habitat be and what kind of economic analysis should be done."

The land at issue in Southern California is covered with sage scrub, where the threatened gnatcatcher builds its nests, and dotted with seasonal pools that are home to the endangered fairy shrimp.

In the case of the gnatcatcher, a time-consuming reevaluation of the bird's habitat, environmentalists predict, would allow substantial commercial intrusion.

Two transportation agencies want to build a toll road that would bisect a state park in southern Orange County that is part of the gnatcatcher's currently protected habitat. In addition, Rancho Mission Viejo, a family-owned company, wants to build 14,000 homes in the same area, all in gnatcatcher critical habitat.

Economic Impact Must Be Studied

The company has challenged that designation in court, claiming that gnatcatchers are believed to occupy only 6,157 acres of ranch property, but that more than 29,000 acres have been deemed critical habitat.

In calling for a review of some critical habitat designations, the administration says it is following the lead of a federal appeals court ruling last May that struck down protection of streamside habitat in New Mexico for another bird, the Southwestern willow flycatcher.

The 10th Circuit Court of Appeals ruled that the process used to decide what lands to protect did not adequately analyze the economic impact on property owners and others who make a living from the land.

"We want to do the best economic analysis we can and do it consistently," Tollefson said. "We understand why the court decided the way it did, and we're going to comply with that and broaden that to comply with the spirit of the court's order in other parts of country that aren't covered by the court's decision."

He said the service has not yet determined whether existing critical habitat designations for more than 140 species around the country comply with the 10th Circuit's ruling. Because of budget restrictions, Tollefson said, he does not anticipate a widespread review, but one focused on new designations or ones being challenged in the courts.

The other federal agency that oversees endangered species--the National Marine Fisheries Service--has asked a federal judge in Washington to redo critical habitat designations for some populations of salmon and steelhead trout.

"We will be considering on a case-by-case basis the appropriateness of rolling back critical habitat designations," said Fisheries Service spokesman Gordon Helm.

In the Southern California cases, U.S. District Court Judge Stephen Wilson is scheduled to decide on Feb. 25 in Los Angeles whether to roll back critical habitat designations for the gnatcatcher on 513,650 acres in Los Angeles, Orange, San Diego, San Bernardino and Riverside counties. The judge is to make a similar decision concerning 4,025 acres of habitat for the fairy shrimp in Orange and San Diego Counties.

A backlog of overdue designations means that revised habitat areas may not be completed for the gnatcatcher until October 2004 and for the fairy shrimp until April 2005, at the earliest, according to court documents filed by the federal government.

Environmentalists say this delay is unacceptable because two major developments in southern Orange County--the Rancho Mission Viejo project and the toll road--could be approved before new designations are in place.

"The date the government requests is particularly disturbing because the Fish and Wildlife Service is well aware of these proposals," Wetzler said.