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Shopping Centers Today -> July 2002
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INDUSTRY WANTS ENDANGERED SPECIES ACT REVISED
By Dave Bodamer
The Endangered Species Act is endangering the livelihood of some landowners, according to an ICSC-backed coalition pushing to have the law revised.
“The act is being used as an anti-development tool, mostly through lawsuits,” said Alton R. Brown III, SCSM, CLS, chairman of ICSC’s Environmental Subcommittee and president of The Pelican Group, Mobile, Ala.
The group seeking the law’s revision, the National Endangered Species Act Reform Coalition, says action is needed to help balance private property rights with environmental interests. Large tracts of land, especially in California, have been deemed endangered species habitats, meaning owners can’t develop them and are not compensated.
About 36 million acres of California’s total area (roughly 36 percent of the state) has either been officially designated as critical habitat or is in the process of being so-designated, said Rex S. Hime, president of the California Business Properties Association, a commercial real estate lobbying group, and Cliff Moriyama, the group’s senior vice president of governmental affairs.
Individual protected areas end up being quite large — thousands of acres at a time.
“Some of the species have a couple of thousand acres, which is understandable,” Moriyama said. “But if you look at the bighorn sheep and red-legged tree frog [in California], you’re talking about millions of acres.”
One of the highest-profile projects that has been affected in the state is the Newhall Ranch residential development near Los Angeles, calling for 22,000 new housing units on 68,000 acres. It is being challenged by environmental groups for allegedly threatening the Santa Clara river habitat and wildlife corridors. A plan for about 1,000 new housing units in San Francisco has also been challenged under the act, Moriyama said.
“We’re seeing that go on and on due to lawsuits that have been put forward by entities like the Sierra Club and the Center for Biological Diversity,” Moriyama said. “There is a clear mandate in federal law that the government should be designating critical habitats … but we’re arguing that [those designations] were not made with very sound science.”
One ongoing case deals with the Klamath Basin in Oregon, where the federal Bureau of Land Management, at the behest of environmental groups, has stopped thousands of farmers from irrigating. In ongoing lawsuits, environmental groups argue that the irrigation is depleting the river and threatening the coho salmon, but the farmers question whether the area is truly a habitat for the coho.
“The point of these habitats is to ensure the survival of the species, but some of the species haven’t even been sighted on some of these properties,” Moriyama asserted. “It places the landowner in the position to disprove what was done by government, when it should be the exact opposite.”
Developers say this case is typical of what happens time and again. In some instances, certain species, some of which are not endangered in the first place, are placed on the list but not removed once they have recovered their numbers, Brown said. “Others that are endangered are not getting listed.”
The Concho water snake is a prime example, according to the coalition. The snake was listed as endangered in 1986 after environmentalists convinced the government that only between 600 and 800 of the reptiles existed.
The area where the snakes were purported to live was part of a water district in New Mexico. The district spent $9 million to investigate how to protect the snake and an additional $1.5 million to conduct a 10-year study, according to the coalition. By the time the study was completed in 1996, however, the researchers had handled 13,997 individual snakes and estimated that the figure represented just 20 percent of the actual population. The snake, however, remains on the threatened list.
To revise the law, ICSC and other trade groups are supporting H.R. 4840 and S. 1912, federal legislation that would require a peer review process before a piece of land is deemed critical habitat.
“This is a priority for us because, unfortunately, the act has become a tool for those that want to curtail growth,” said William Hoffman, ICSC’s director for environmental issues.
Florida’s developers have also had their share of problems with the act, said Susan Murphy, senior land planner in the Tampa, Fla., office of law firm Ruden, McClosky, Smith, Schuster & Russell, who has dealt extensively with endangered species and smart-growth cases. “The percentage of the whole site that you’re allowed to build on is getting very small.”
Developers are not the only ones who stand to lose, Brown said. Taxpayers do, too, because impediments to development stifle the growth of the property tax base. Noted Brown, “It’s insidious as it works its way through the economy.”
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