Rare Arizona Owl (All 7 Inches of It) Is in Habitat Furor

By DOUGLAS JEHL
New York Times

TUCSON, ARIZONA - March 13, 2003— At last count, the greater Tucson area was home to about 900,000 people and 18 pygmy owls. Under federal law, that ratio is a mismatch.

To protect the owls, an endangered species, the United States Fish and Wildlife Service proposed in November that 1.2 million acres in and around the city be set aside as "critical habitat" for the birds, or about 67,000 acres per owl. The designation, issued under a court order, imposes obstacles to development, so developers in this fast-growing community are fighting back, calling it patently unfair.

"When you come right down to it, this is about land that would be lying fallow for no particular good reason, other than that the environmentalists want to have it that way," said Alan Lurie, the executive director of the Southern Arizona Home Builders Association.

Fights over endangered species like the owl, a brown-and-cream-colored bird about 7 inches high, are not new; over the last three decades, they have become a staple of land-use battles in the West. What is new are the secondary battles like the one here over "critical habitat," a designation that has always been required under the 1973 Endangered Species Act, but one that the Fish and Wildlife Service has only recently begun to impose in earnest, under orders from the courts.

The law, cited by environmentalists to compel the government to act, requires that the designations cover "all areas essential to the conservation of the species." But it also allows the government to weigh whether benefits of a designation outweigh the costs. So in Tucson and other affected areas debates are raging between developers and antigrowth advocates about where to draw the lines.

"The purpose of the law is to protect endangered species," said Kieran Suckling, the executive director of the Center for Biological Diversity, a Tucson-based organization that has brought many of the lawsuits that have required the administration to act. "And here and in lots of other places, that means getting a handle on uncontrolled sprawl."

Out of 1,262 threatened and endangered species listed since 1973 under federal law, the federal government has still designated critical habitats for only 261 of them, mostly because the Fish and Wildlife Service itself has always regarded the designations as a lower priority than identifying which species are endangered.

But in the last two years, the pace of such designations has exploded, as the Bush administration has found itself on the losing side of battles in the courts. Although it has been outspoken in calling the critical habitat designations counterproductive, the administration has now designated some 38 million acres of critical habitat for 115 species, more species than any previous administration.

"Rationally speaking, the costs of critical habitat designation add virtually nothing to the protection of the species," said Craig Manson, the assistant secretary of the interior in charge of the issue. "It sucks up a lot of the resources of the Fish and Wildlife service, and it causes a lot of social and economic upheaval, and the benefit to the species is virtually nonexistent, so it just doesn't make any sense."

Still, as developers and environmentalists fight over the final shape of any restrictions, the administration is finding itself under increasing pressure to take a stronger stand against what the developers have argued could result in economic strangulation.

"From the perspective of our members out in Arizona, the pygmy owl probably represents the pre-eminent problem that they're finding, not only in building new houses, but in keeping housing construction affordable," said Jerry Howard, chief executive of the National Home Builders Association, an industry advocacy group in Washington.

Because the Endangered Species Act includes strict prohibitions against the killing, harming or harassing of listed plants and animals wherever they are found, some contend that its critical-habitat provisions are essentially redundant, while imposing new and strict barriers to development.

But its advocates call the critical habitat provisions vital in setting aside areas necessary for the species' recovery as well as their protection, and suggest that any extra obstacles to development are well worth the costs.

"The pygmy owl, frankly, is what you might characterize as a canary in the coal mine — an indicator that whatever we're doing is not quite balancing economic development and growth with natural resource protection and conservation," said Chuck Huckleberry, the county administrator in Pima County, which is home to most of greater Tucson and is growing at a rate of nearly 3 percent a year.

The Fish and Wildlife Service tried in 1999 to designate hundreds of thousands of acres of critical habitat for the owl. But that designation, after a court challenge by developers, was struck down in 2001. The government's 1.2 million acre proposal is an effort to reinstate the protection in a way that could withstand any further legal challenge.

From the outset, the Bush administration has made no secret of its misgivings about the critical habitat process, saying that the designations — particularly when required under court order — divert the Fish and Wildlife Service from the more important task of determining which species deserve federal protection.

Under Bruce Babbitt, its interior secretary, the Clinton administration voiced similar concerns. But the Bush administration has been more vociferous in its objections, even proposing in 2001 to allow the Fish and Wildlife Service to suspend work on the designations for a year and devote its $9 million endangered species budget to other tasks.

Congress rejected that idea, however, and what has happened since has shifted the battle to places like Tucson, where in vying over whether and how much critical habitat should be designated for species like the pygmy owl, the two sides have presented rival and contradictory visions of what is at stake.

For one thing, developers have argued in federal court in Arizona that the owl is not truly endangered, because the 18 owls in the Tucson area represent just the northern range of a species more abundant in Mexico.

The courts have so far rejected that argument. But the developers are continuing to warn that any benefit to the owl would be outweighed by the economic costs of effectively barring development in 1.2 million acres, or two-thirds of the privately held, developable land in the area.

The developers say that the proposed designation is excessive and would drive up housing costs by an average of $7,000 per home. They are seeking to persuade the Fish and Wildlife Service to shrink the designation significantly, under the provision of the Endangered Species Act that allows the government to apply cost-benefit tests.

"People keep moving here, the county keeps growing, and when you take land out of the supply, the prices go up,"' said David Goldstein, president of Diamond Ventures Inc., a major developer in the Tucson area.

The developers have also challenged the Fish and Wildlife Service's refusal to make public the locations of the owls, and won a federal court order in November requiring the release of that information. The agency has so far refused to comply, saying such information could lead to harassment of the owls by bird-watchers and others. It has been negotiating with the developers over a possible out-of-court settlement.

On the other side of the debate are environmentalists and some local officials who argue that the designation is important to steer development away from areas important to a fast-shrinking population of the birds. They point out that the designation does not prohibit development altogether, usually requiring in practice only that it be less dense, and that the designation applies to private landowners only when projects are subject to federal permits.

The owl, officially the cactus ferruginous pygmy owl, was listed as an endangered species only in 1997, and the environmentalists point out that surveys taken since by the Fish and Wildlife Service have suggested that its numbers have continued to decline. In 1999, according to the federal agency, some 41 adult pygmy owls were counted in Arizona, but those numbers dropped to 34 in 2000, 36 in 2001 and just 18 during breeding season in 2002.

"Don't get me wrong, this is a huge economic question for the area," said Michael Wyneken, a principal planner for the city of Tucson. "But if we're going to protect what we love, then we need to roll up our sleeves and find the answer, and knowing where the birds' critical habitat is would help the process."

The Fish and Wildlife Service is seeking public comment about its proposed designation for the owl and is expected to make a final decision by summer. Under the Bush administration, the agency's final designations have been consistently smaller than the original proposals, by an average of nearly 50 percent. In an interview, Mr. Manson, the senior interior department official, suggested that would be a likely outcome in the pygmy owl case.

"There's a provision of the law that says we may exclude portions of critical habitat, where the benefits of exclusion outweigh the benefits of inclusion," Mr. Manson said. "And that's something that we in this administration have been looking at quite a bit more robustly than has been done in the past."