JUDGE NIXES OWL HABITAT - Tucson Local Media: Import

JUDGE NIXES OWL HABITAT

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Posted: Tuesday, September 25, 2001 11:00 pm | Updated: 7:46 am, Thu Mar 24, 2011.

The federal designation of critical habitat for the endangered cactus ferruginous pygmy owl, which placed development restrictions on more than 730,000 acres of Southern Arizona land, was voided by a U.S district court judge in Phoenix Sept. 21.

The ruling by U.S District Judge Susan Bolton vacated the critical habitat designation for the state set by the U.S Fish and Wildlife Service in 1999, but upheld the bird's federally protected status.

By affirming the owl's status under the federal Endangered Species Act, much of the bird's habitat will remain protected despite Bolton's removing the official critical habitat designation, said Jeff Humphrey, an outreach specialist with FWS.

"We don't expect this to have really major effects. Critical habitat was just a broad blanket that provided additional protection for the owl. The main protections are contained in the endangered species status, and the judge reaffirmed that status in strong terms" Humphrey said.

The ruling sent the critical habitat designation back to the FWS for further study and possible redesignation at a later date, Humphrey said.

Local builders hailed the removal of habitat designation as a victory for developers and private property owners, but cautioned it was too soon to predict what effect the ruling would have on development in the area.

"We're still trying to digest this and what it will mean in terms of lifting some of the restrictions," said Terry Klinger, president of the Southern Arizona Home Builders Association.

"Obviously it's a big step in the right direction. We've said all along that the service's action in declaring the critical habitat was a rush to judgment. We hope this means that the service will use more caution and accept more input when making these designations instead of just using a broad brush and painting areas as no growth."

Bolton's order came in response to a lawsuit filed filed May 15, 2000 against FWS and the Department of the Interior by SAHBA, the National Association of Home Builders, and the Home Builders Association of Central Arizona.

Defenders of Wildlife, a national environmental organization, intervened on behalf of the federal agencies.

Bolton upheld the home builders' argument that FWS did not comply with federal Environmental Protection Agency regulations and failed to properly take in to consideration "economic and other impacts" when establishing the state's critical habitat for the owl.

Bolton deemed the actions "arbitrary and capricious" in her ruling.

The order also reaffirmed listing of the owl as an endangered species, discounting the home builders' arguments that large populations of owls in Mexico were not considered when owls in Arizona were designated for protection.

"The Endangered Species Act's essential purpose is to conserve and protect endangered species," Bolton wrote in her ruling. "Despite the contentions to the contrary, what is important to the determination of whether a species may be listed as endangered under the endangered species act is whether the species is facing extinction here in the United States, not whether the population in Mexico is plentiful."

Jenny Neeley, a representative from Defenders of Wildlife's southwest office, said her organization did not view the ruling as a setback.

"It doesn't make much difference to us. The listing of the owl (as an endangered species) was upheld in strong terms and that's what is important. The owl will be protected regardless," Neeley said.

Klinger said an appeal of Bolton's ruling that reaffirmed the owl's listing as an endangered species "was a distinct possibility."

Neeley said the decision to appeal the remanding of the critical habitat designation would be made by her organization's headquarters in Washington D. C. Officials there could not be reached for comment.

In Pima County, where the habitat designation was the bedrock of the Sonoran Desert Conservation Plan intended to protect environmentally sensitive lands and threatened species, County Administrator Chuck Huckelberry downplayed the effect of the ruling.

"It is likely that the United States Fish and Wildlife Service will fund the necessary economic impact analysis in the future and critical habitat will be redesignated," Huckelberry wrote in a Sept. 24 memo to the Pima County Board of Supervisors.

Humphrey said redesignation of critical habitat for the owls is expected, but may not begin again until at least for another year because no funding was available for it.

"We receive our appropriations from Congress, and our spending is already done through 2002. Barring any new funding we might receive, we don't expect to have funds until 2003. Redesignation is an expensive operation. We'll have to have a new economic impact assessment completed, public meetings, and a lot of time and manpower that requires funding," Humphrey said.

Huckelberry also criticized the home builders' suit in his memo, citing the "current confusion that is caused by the home builders litigation, which has only delayed resolution of the basic conservation and regulatory issues, and injected more conflict in to the interim period."

In Marana, where critical habitat covered huge swaths northeast portion of the town, Assistant Town Manager Mike Reuwsaat said it was too soon to tell what effect Bolton's ruling would have on the pace and pattern of development.

"It's certainly a chance to establish a dialogue with the Fish and Wildlife Service, but we still have to sit down with our attorney and take this all in. I'm sure we'll be reevaluating some properties that were on the fringe of critical habitat. We have obligations to private property owners who have already vested rights to develop," Reuwsaat said.

FWS had limited disturbances of most land in the former critical habitat to 20 percent of a property and often required off-site mitigation land to be provided by developers to compensate for building in the habitat.

About 25,000 acres of land in the region Northwest of Tucson had been designated as critical habitat.

About 130,000 acres of the 730, 000 acres of critical habitat is privately owned land.

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