Air Date: Week of July 25, 1997

California's Endangered Species Act is modeled on the federal law, but there's one important difference: The federal version spells out how and when to grant permits for construction projects that may "incidentally" harm an endangered species. California's law doesn't address this procedure, and that's been causing problems. So the courts have thrown the issue back to the state legislature for clarification. As Cheryl Colopy reports, this struggle over how to enforce endangered species protection in California could set a model for other states and for Congress, which must soon reauthorize the federal Endangered Species Act.

Transcript

KNOY: It's Living on Earth. I'm Laura Knoy. Many states have laws that provide protection for animals and plants not covered by the Federal Endangered Species Act. California's Endangered Species Act, passed in 1983, is modeled on the Federal law, but there's one important difference. The Federal version spells out how and when to grant permits for construction projects that may incidentally harm an endangered species. California's law doesn't address this procedure, and that's been causing problems. Governor Pete Wilson's administration granted some general permits in recent years that conservationists say were dangerously broad. So they sued. Now the courts have thrown the issue back to the state legislature for clarification. As Cheryl Colopy reports, this struggle over how to enforce endangered species protection in California could set a model for other states and for Congress, which must soon reauthorize the Federal Endangered Species Act.

(Bird song; airplane in the background)

COLOPY: Swainson's hawks stay quiet when they have eggs in their nests, yet amid the melodies of song birds and the drone of an airplane, you can hear a female hawk's short call.

(Short call of hawk)

COLOPY: She's distressed at our approach even though her nest is high above us in a majestic old oak tree.

EaSTEP: It's made of the material that's in the neighboring trees, so there's cottonwood branches and oak branches and willow branches mixed in there.

COLOPY: Wildlife biology Jim Eastep studies these birds. Once thousands returned each spring from their yearly journey to the Argentine pampas. But as California's population has swelled, the Swainson's hawk has dwindled and is now on California's Endangered Species List. Only a few hundred breeding pairs come back to the old oaks and cottonwoods here in the central valley to nest.

EaSTEP: This is a fairly typical example where you can see they built it up pretty much as high as they could get it, into the tree and away from the road as far as they could, so it's pretty secure. And what they like to do is to get up high and have a nice view of the surrounding area.

COLOPY: But here on the farm lands west of Sacramento, the old trees that haven't already been cut down are dying out, and some common crops are too dense for the birds to see their prey as they soar high above them. Some of the breeding pairs Jim Eastep studied in this area have disappeared, and he says biologists just don't know what happens to them. And throughout the valley, it's only a matter of time before some of the hawks' habitat turns into suburbs.

COYLE: Growth is inevitable. It's going to happen.

COLOPY: Tim Coyle of the California Building Industry Association says development plans being prepared for Swainson's hawk habitat near Sacramento will protect the bird, and he's angry that disputes about how to administer California's Endangered Species Act have suspended development throughout the state.

COYLE: The Endangered Species Act has gone far beyond what it was intended to do, which is to create some balance and some- impose a little bit of care. But it's reached a point, I'm afraid, where it has become a dominant influence in the decisions that are made about how we grow.

(Footfalls and voices, echoes)

COLOPY: Decisions about how California will grow are made here in the State Capitol in Sacramento. Far from the trees and streams where threatened animals live, deals are made that may spare one species and doom another. And one of those compromises will have to be made soon. State courts recently ruled that the California Department of Fish and Game lacks clear guidelines about when and how to grant exceptions to endangered species protections. Environmentalists say Fish and Game has been taking advantage of the law's vagueness for years to grant building permits to developers.

CAVES: We went to court over their issuance of an emergency management permit that gave blanket authority for anybody to do anything.

COLOPY: Joe Caves is a lobbyist for the Planning and Conservation League, the lead plaintiff in a suit opposing Fish and Game's permits. The suit came after Governor Pete Wilson issued an emergency permit following a series of fires and floods. The permit allowed land owners free reign to do what they wanted on their land. That was contrary to practice under the Federal Endangered Species Act, and even contrary to Fish and Game's practice up to that point, which granted permits to specific people for specific purposes.

CAVES: And it was just based on your opinion. You didn't have to report it. There were no controls. So it was probably the most egregious example anybody could ever have come up with, and so it had to be challenged.

(Milling; a roll call is taken: "Weinberg...Johannsen...")

COLOPY: Now that the courts have ruled Fish and Game overstepped its authority, the legislature must clarify the law. Several bills are now being considered. Many expect some solution by the end of the summer. The public supports endangered species protection in California, but a strong business lobby in Sacramento will pose a challenge for environmentalists like Daryl Young, the chief consultant to the California Senate's Natural Resources Committee. He says California's endangered species law is stronger than the Federal ESA because it seeks to restore species and their habitat, not just prevent further harm. And he wants to keep it that way.

YOUNG: We need a stronger act because we've lost so much species. We have less than 2% of our ancient redwood forest left. We have less than 5% of our wetlands left. Most central valley wetlands are now gone. We have so little habitat left. It's not a question of balancing development versus endangered species. We've already done the balancing and the scales have been tipped in favor of development.

COLOPY: But now, after a series of court victories, environmentalists believe they are in a position to insist on a permit process that doesn't jeopardize endangered species.

MUELLER: Ideally we wouldn't be using ESA as a growth management tool, but that's what it's kind of de facto become, because nobody's exercised leadership on this issue.

COLOPY: Tara Mueller of the Environmental Law Foundation also wants to hold firm on the Endangered Species Act. She says California really needs better regional and statewide land use planning. But the chances of that are slim.

MUELLER: Until people, you know, wake up on this issue, we've got to do the best we can with, you know, we've got to preserve the last remaining valuable habitat of some of these species. Otherwise, you know, pretty soon it's going to be like LA from, you know, from end to end. And I'm sure not everybody would like that.

(Traffic and bird song)

COLOPY: Builders are poised to begin work here in the Natomas Basin near Sacramento, but until California's Endangered Species Act is clarified, all development is on hold. From the road atop a wide levee at the western edge of the Natomas Basin, we can see a lone Swainson's hawk circling above the green fields. Sacramento's skyline looms up just a few miles away. The fate of the Swainson's hawk worries biologists like Jim Estep. He says the best thing would be not to build here at all, but this is really the only land left for burgeoning Sacramento to take over.

ESTEP: It's just important to do the best we can in terms of preserving certain aspects of this landscape to retain those biological values for Swainson's hawks and garter snakes and all of the other species that are out here as well.

COLOPY: And in other areas not yet on the verge of being swallowed up by a city, environmentalists want enough habitat set aside to allow species like the Swainson's hawk to start to increase their numbers. And they want any revisions to the Endangered Species Act to support that goal. For Living on Earth, I'm Cheryl Colopy.