Bird Habitat at Issue : South Bay Project Blocked by Court

A federal appeals court Friday temporarily halted a large highway-construction and flood-control project in the South Bay on grounds that the U.S. Army Corps of Engineers failed to take adequate steps to protect two endangered bird species.

The decision is likely to delay progress on the controversial and long-awaited project, which includes construction of a four-lane freeway called California 54, widening of Interstate 5 and building of a flood-control channel for the Sweetwater River.

In its opinion, the 9th U.S. Circuit Court of Appeals blocked all construction on the project west of Interstate 5 until San Diego County transfers to the federal government 188 acres of wetland and wildlife habitat intended to compensate for environmental damage done by the massive project.

The court also enjoined all work east of the freeway unless the Corps of Engineers moves within 30 days to secure a new assessment by the U.S. Fish and Wildlife Service of the environmental consequences of the work.

Stems From 1978 Opinion

“We had lost everything up until this point,” said Larry Silver, a lawyer for the Sierra Club, which joined last fall with the League for Coastal Protection to block the project until local, state and federal agencies met their legal obligation to turn over the 188 acres.

“I think the important aspect of this is that it . . . puts pressures on the city, county and developers to try to resolve this whole ugly and complex dispute,” Silver added.

The dispute is rooted in a 1978 opinion by the Fish and Wildlife Service that the project would harm the California least tern and the light-footed clapper rail, two species that nest on the land and that are protected under the federal Endangered Species Act.

As is required by the act, the agency recommended that the damage be “mitigated”--in this case, by the acquisition and preservation of 188 acres of nearby wetlands. The transfer of the land to the Wildlife Service was made condition of the project.

But San Diego County failed to turn over the land, apparently because of a dispute over the conditions of the acquisition. The Corps of Engineers allowed the project to proceed anyway, apparently assuming the land would be turned over eventually.

The Wildlife Service then proposed that it reassess the impact of the project under the new conditions. When the Corps of Engineers refused the request, the environmentalists filed a complaint accusing the corps of violating the Endangered Species Act.

The complaint named the corps, a joint sponsor of the project; the Federal Highway Administration, which is providing funding; the state Department of Transportation, another joint sponsor; San Diego County, responsible for acquiring the marshland; Chula Vista, which is partially funding mitigation and channel maintenance; the U.S. Department of the Interior, which enforces the Endangered Species Act, and the Santa Fe Land Improvement Co., owner of the 188 acres.

In the meantime, the federal agencies filed a cross claim against the county in an attempt to force it to live up to its commitment to turn over the land.

On Friday, the appeals court in San Francisco overturned a lower court decision and ordered an injunction against all further work on the project unless the Corps of Engineers “reinitiates consultation” with the Wildlife Service within 30 days.

If the corps complies, the opinion suggests that it is then free to proceed with construction on the east side of I-5.

However, the opinion halts all work on the west side of the interstate, where the land in question is used by the endangered birds. That injunction is to remain in place until the resolution of the court case concerning the acquisition of the 188 acres.

“It will prevent further loss or adverse modification of habitat while the district court resolves the cross claim for the mitigation lands,” the court stated in its 29-page opinion.

The court concluded that the Endangered Species Act dictates that, if an agency plans to mitigate environmental damage by acquiring habitat and creating a refuge, “it must insure the creation of that refuge before it permits destruction or adverse modification of other habitat.”