Last week, two federal agencies threw in the towel and conceded to open up protected habitats for development. The National Association of Homebuilders--a private coalition of developers--had demanded that the National Marine Fisheries Service (NMFS) open up wetlands and river breeding grounds for commercial development; unlike protocol for the past decade, NMFS has chosen not to challenge these demands. If the proposed settlement goes forward, 19 critical habitats for Chinook and Coho salmon and Steelhead in Washington, Oregon, and Idaho will lose their protection. These concessions, say environmentalists, are part of a larger pattern--from San Diego to Seattle, dozens of critical habitats are being abandoned by the very federal agencies ordered to protect them.
"There has been this silencethey are not defending past policy," explains Paul Shively, a representative from the Sierra Club. Like most environmentalists, he attributes the decision by federal agencies--to not resist developers' demands--to the change in presidential administrations.
Under contention are so-called "critical habitats." Under the Endangered Species Act, Congress may set aside land it believes necessary to protect certain flora and fauna; these designations set up a buffer zone for animals like the Spotted Owl, Coho salmon, and the tiny Coastal Gnatcatcher.
Loggers, miners, and developers have often complained that environmentalists abuse these critical habitat designations as a means to grab land away from them. During the height of the legal fight over the Spotted Owl and old growth forests, pick-ups throughout the Northwest were plastered with anti-conservationist bumper stickers reading: "I only need the backseat to make love, why does an owl need an entire forest?"
The primary complaint has been that critical habitat designations fail to consider how those decisions will impact the jobs and economics of regions that rely on natural resources. Last summer, farmers in the Klamath Falls area suffered from severe drought conditions when they could not divert water from water basins set aside to protect a rare suckerfish.
Traditionally, critical habitat designations have been based on hard scientific data--for example, what the migratory habits of a particular species are or what natural resources are necessary to support a species. But a recent lawsuit in New Mexico has thrown that rationale into question. Last summer, a group of cattle ranchers successfully sued the Fish and Wildlife Service (FWS) to open up nearly 600 miles of protected streams and river beds that had been set aside for the willow flycatcher. The panel of judges explained that the federal government failed to fully consider the economic impacts of the designation.
Now, developers along the West Coast are using the legal argument that federal agencies need to re-consider critical habitat designations with a stronger sympathy towards economic impacts. Instead of fighting those lawsuits, the NFMS and FWS simply have conceded, throwing into question the fate of more than one million acres of land throughout California, Oregon, and Washington.
But environmentalists are not giving up without a legal challenge. Patti Goldman, a Seattle-based attorney for Earth Justice Legal Defense Fund, has taken the lead for several area conservationist groups. Last week, they filed a complaint in federal court in Washington D.C. to halt NMFS from conceding to the Homebuilders' demands from the Association of Homebuilders.
"Just agreeing without (legislative) process is exceeding their authority," argues Goldman, referring to her belief that federal agencies may not rescind critical habitat designations without an opportunity for public comment and review by Congress.
It is expected that a final decision over the 19 critical habitat designations in Washington and Oregon will be reached this summer.