Home builders call for formal reviews

PHOTOS Trouble's not so troubled (JOE BURBANK/ORLANDO SENTINEL FILE) Nov 20, 2005

A federal lawsuit filed in Orlando this month is trying to remove dozens of animals from federal protection in Florida, which would make land development easier and less costly.

From the American crocodile to the wide-leaf warea, the state is home to dozens of species protected by the federal government as threatened or endangered, which can lead to restrictions on development.

The Sacramento, Calif.-based Pacific Legal Foundation, which won a settlement in a similar case in California earlier this year, contends that the U.S. Fish and Wildlife Service has failed to conduct the reviews every five years as required under the federal Endangered Species Act.

As a result, some species may have recovered to the point that they no longer need protection, said attorney Steven Gieseler, who runs the Pacific Legal Foundation's Atlantic branch in Coral Gables, near Miami. That can prevent developers and builders from getting permits and restrict use of land and water around the state.

"We are trying to make sure the species on the list are the ones that should actually be there," Gieseler said. "Resources need to be spent on species that need protection."

The Florida lawsuit, filed in U.S. District Court in Orlando, identified the 106 species that had never been formally reviewed, ranging from such icons as the bald eagle and manatee to the more obscure such as the Key Largo woodrat. Nationwide, there are 996 animals and plants listed as endangered and 276 on the threatened list, according to the U.S. Interior Department.

Frequently, it is the lesser-known species that cause the biggest headaches as far as developers are concerned.

Builders, politicians and environmental groups in Escambia County have wrangled for years over how to protect the endangered Perdido Key beach mouse. Developers have also frequently jousted with environmental groups in Brevard County and around the state over the threatened Florida scrub-jay.

In September, a federal judge ruled that the Federal Emergency Management Agency can't issue flood-insurance policies for new development in areas of the Florida Keys that are habitat for a variety of species unless it complies with the Endangered Species Act. These include the Florida Key deer, Key Largo cotton mouse, Lower Keys marsh rabbit and Stock Island tree snail.

Lawsuits brought around the country by the Pacific Legal Foundation and other property-rights groups are forcing the Fish and Wildlife Service to more broadly accelerate its reviews nationally of endangered and threatened species. A memo sent in April from the service's Washington headquarters urges all regional offices to "show expeditious progress" in the reviews to keep the federal courts from dictating policy.

"There has been a renewed emphasis to do the five-year reviews so we don't have our priorities driven by litigation," said Fish and Wildlife Service spokeswoman Valerie Fellows.

Environmental groups acknowledge that the law requires the five-year reviews. But they say the agency can be hamstrung by these court orders, which divert precious personnel and scarce federal dollars from working on endangered and threatened species that need the most attention.

"Fundamentally, these kinds of challenges aren't going to do anything to improve the administration of the Endangered Species Act or protect the species on it," said Jason Rylander, attorney with the Washington-based Defenders of Wildlife. "You're taking away the service's ability to react to situations where protection is required."

Yet in fast-growing states such as Florida, the Pacific Legal lawsuit contends that development necessary to meet the needs of a burgeoning population and provide affordable housing could be unnecessarily blocked by protected animals and plants. In other cases, the cost of compliance drives up housing prices, the lawsuit says.

In the Sept. 20 California settlement with Pacific Legal, the Fish and Wildlife Service agreed to review 194 species within eight years. The case was brought on behalf of the California Cattlemen's Association, California Forestry Association and others.

"We expect this effort will allow Californians to get back to work building the schools and homes they need that have been mired in gridlock because of outdated listings," said Rob Rivett, Pacific Legal principal attorney.

The Fish and Wildlife Service memo says that one goal of the reviews is to determine whether a species should be classified differently or possibly removed from a protected list completely. But such changes are far from automatic, requiring public comment and other steps before they can occur.

Rylander said a better approach would be to let science determine whether a species' classification should be reviewed and changed, as has happened with Florida species such as the American alligator and is currently proposed for grizzly bears, which have made a comeback from 200 to about 600 animals near Yellowstone National Park.

"They're really just tying the administration's hands and forcing them to respond to court orders," he said of the Pacific Legal lawsuit.