When San Diego’s Multiple Species Conservation Plan (MSCP) was adopted a decade ago, then-Interior Secretary Bruce Babbitt declared it “a model to the nation for how to plan for and balance the needs of man and nature.” Ambitious in geographical scale, daunting in jurisdictional complexity, the plan was intended to regulate development across nearly a quarter of the fast-urbanizing county in such a way as to minimize conflict over scores of rare, threatened or endangered species and their habitats.
It wasn’t long before environmentalists began finding fault with the plan, arguing that it did more to protect the profits of developers and landowners than the survival of imperiled plants and animals. In 1998, a year after the plan was adopted, a coalition of groups filed suit to block it. Late last year, a federal judge agreed with the critics and forced a halt to many of the projects approved under the plan, ruling that it would “permit monumental destruction” of the species it purported to protect.
Environmentalists hailed the court’s decision as a “precedent-setting” rejection of key elements of the plan — and, by extension, hundreds of similar plans that have been or are being negotiated nationwide. For the same reasons, representatives of the building industry expressed alarm. But the October 13 ruling is both more and less than it might seem.
The decision by Judge Rudi Brewster of the U.S. Southern District of California Court throws a roadblock in front of only a small percentage of the development plans regulated under the San Diego MSCP. Yet at the same time, the ruling provides a disquieting look inside the Habitat Conservation Plan (HCP) program as implemented by the U.S. Fish and Wildlife Service (USFWS), lending support to critics’ claims that sloppily drafted agreements can expedite rather than curtail habitat-wrecking activities.
The San Diego MSCP was one of the first large-scale HCPs negotiated. Although they were first authorized by Congress in 1982, HCPs were used only sparingly until the mid-1990s, when the Department of Interior under President Clinton began encouraging them as a way of blunting enthusiasm for a wholesale rewrite of the Endangered Species Act (ESA) by the new Republican majority in Congress. Before 1994, only 20 had been adopted. In the next two years, USFWS approved 196. (There are now 484 in effect.)
HCPs are voluntary agreements negotiated under the ESA between the federal government and private landowners, states or local governments, allowing the “incidental take” of listed species during the course of otherwise lawful activity. An HCP must accompany any application for an incidental take permit, spelling out how the effect of the permitted activity on a protected species will be minimized and mitigated. In theory, an HCP incorporates measures that actually improve a species’ chances for survival — allowing destruction of a small amount of habitat in one place, for example, while requiring preservation of an even greater amount elsewhere — while also enabling farmers to continue farming, loggers to continue logging, and builders to continue building.
The San Diego MSCP encompasses 900 square miles in the southwestern part of the county, including the City of San Diego, and was intended to preserve native habitat for many species rather than focusing efforts on one species at a time. The heart of the plan is establishment of a 172,000-acre preserve, referred to as Multi-Habitat Planning Area (MHPA), which is to be assembled from public land, property donated by developers, and real estate purchased by private or public agencies. Inside the MHPA, development is limited to protect 85 plant and animal species. In return, the federal government has authorized local jurisdictions to hand out incidental-take permits to developers and landowners, so long as their projects comply with the plan.
The court ruling did not invalidate all such permits. It focused specifically on those related to development of property containing vernal pools — shallow, seasonally flooded ponds and puddles that constitute one of the rarest and most threatened habitat types in California. Those in the San Diego area are home to seven listed species: five plants and two varieties of fairy shrimp.
Judge Brewster faulted the USFWS for not evaluating the impact of development on vernal pool species before authorizing incidental-take permits. The agency had deferred such review to the future, deciding that because any project that affected a vernal pool would constitute disturbance of a wetland, specific developments would therefore require Clean Water Act permits from the U.S. Army Corps of Engineers. Potential impacts and suitable mitigation could be determined then, according to the USFWS.
But in a 2001 decision (Solid Waste Agency of Northern Cook County v. United States ACOE, 531 U.S. 159), the U.S. Supreme Court ruled that the Corps of Engineers had no authority under the Clean Water Act to regulate disturbance of “isolated wetlands.” Brewster concluded that this ruling requires USFWS to go back and conduct an environmental review of the effect of development on San Diego’s vernal pool species before any permits can be issued.
According to the San Diego Planning Department, a handful of projects — construction of a half-mile road, a church and a housing development — will be stalled while their impact is analyzed.
The judge didn’t stop with vernal pools. He noted that no secure funding mechanism was identified for acquiring land for the MHPA, meaning the preserve might never be assembled. Of greater significance to HCP negotiators everywhere, he also took issue with the MSCP’s assurance to developers and landowners that USFWS would not require additional land, restrictions, money, conservation measures or mitigation over the 50-year life of the agreement.
These “no surprises” guarantees are among the most hotly disputed aspects of the HCP process, with critics arguing that strategies must change over time to reflect new data. Brewster noted that it’s possible to build adaptive management techniques into the HCP process — pointing specifically to one negotiated for the Natomas Basin near Sacramento — but he concluded that the USFWS had dropped the ball in San Diego.
The agency did not analyze the effect of development on vernal pools because it expected the Corps of Engineers to do that in the future. Yet the USFWS also signed an agreement promising that no additional future restrictions would be imposed. In essence, the judge concluded, this meant that even if future analysis concluded that development would harm listed species, USFWS could do nothing because it had given away its legal authority to require protection.
A hearing on federal officials’ request for clarification of Judge Brewster’s ruling is scheduled for this month.
David Hogan, Center for Biological Diversity, (619) 574-6800.
Neil Levine, Earthjustice, (303) 623-9466.
Betsy Miller, San Diego Planning Department, (619) 533-4543.