|February 16, 2002 - Los
Officials Target Key Habitat Protections
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
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
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
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
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
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
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
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.
If you want other stories on this topic,
search the Archives at latimes.com/archives.
For information about reprinting this article, go to www.lats.com/rights.