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Designations Do Have Economic Impact

To ensure the health of the state, we must balance our resource needs and not disproportionately favor one species over all others.

November 12, 2000|LYNN JACOBS and DAVID SMITH | Lynn Jacobs is president of the Greater Los Angeles / Ventura chapter of the Building Industry Assn. of Southern California. David Smith is general counsel of the Building Industry Legal Defense Foundation, a wholly owned subsidiary of the Building Industry Assn. of Southern California

Responding to court rulings that it is violating the Endangered Species Act, the U. S. Fish and Wildlife Service wants to designate critical habitat for endangered species throughout California. Unfortunately, the Fish and Wildlife Service is attempting to fix one violation of law with an equally or more egregious transgression. As always, two wrongs do not make a right.

Critical habitat designation is not a new concept. The Endangered Species Act has required Fish and Wildlife to designate critical habitat for more than 25 years. However, it has been the consistent position of Fish and Wildlife that designating critical habitat affords no increase in protection to species listed under the act as endangered or threatened. Accordingly, Fish and Wildlife consistently refused to designate critical habitat. Then came the lawsuits.

Methodically, groups such as the Natural Resources Defense Council and the Center for Biological Diversity sued Fish and Wildlife to force it to designate critical habitat for any number of species. These plaintiffs are enjoying remarkable success, not only forcing the agency to designate critical habitat but further draining its limited resources with attorneys' fees awards (i.e., your tax dollars).

An ever-diminishing budget and inadequate court-imposed time frames emerging from these cases, however, are not sufficient excuses for the indefensible critical habitat designations Fish and Wildlife is cranking out in blatant violation of the Endangered Species Act.

The act is unmistakably specific that the bounds of critical habitat are to be limited to those areas actually occupied by the species "on which are found those physical or biological features essential to the conservation of the species." If Fish and Wildlife includes areas not actually occupied by the species, the secretary of the U. S. Interior Department must make a specific finding that such areas, again, are "essential for the conservation of the species."

Of the habitat designations proposed recently, that for the California red-legged frog has caught many an eye. According to Fish and Wildlife, this critter actually occupies or requires as essential habitat more than 5.4 million acres throughout the state. Also exemplary of the pattern emerging with these designations is the proposed designation of 875,613 acres that Fish and Wildlife claims are occupied by eight--yes, eight--ewe groups of peninsular bighorn sheep. That's nearly 110,000 acres occupied by each ewe group.

No one wants to see the extinction of any of these species. But that is not the issue. When talking of government intrusion onto private land, the Endangered Species Act is very specific as to what will and will not be tolerated. Unfortunately, after 25 years of apparently ignoring one provision of the act, Fish and Wildlife is trying to rectify that transgression by ignoring and violating numerous others.

In addition to considering the biology of what is "occupied" and what is "essential," the act mandates that Fish and Wildlife consider the economic impacts of critical habitat designations. Here, too, Fish and Wildlife flagrantly ignores the act's mandates. Fish and Wildlife produces economic impact reports for critical habitats that uniformly find no economic impact arising from these designations.

Unfortunately, that is not the case. School projects, desperately needed transportation infrastructure developments and attempts to remedy California's housing crisis are all being impacted by these proposed designations.

In California, about 270 species are listed as threatened or endangered under the Endangered Species Act. Fish and Wildlife's critical habitat designations for just five of these would cover almost 8% of California. Considering that only 6% of the state is urbanized, this is huge.


Some authorities expect that within 18 months, the entire state will be blanketed with critical habitats overlapping each other. Although Fish and Wildlife may continue to bury its head in the sand as to the impact of such designations, those concerned with remedying California's housing crisis, establishing locations for new schools and securing reliable sources of water will not have that luxury. The outcome of unchecked critical habitat designations without due consideration for economic and other social impacts--as already mandated by the Endangered Species Act--could be devastating for the entire state.

It is time for Fish and Wildlife to do the job mandated by the Endangered Species Act, completely and accurately. We are all part of the biodiversity of California. To ensure the health of this state, we must carefully balance our resource needs and not disproportionately favor one species over all others.

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