Bird Advocates Say Tollway Unit Hurried Grading Job : Gnatcatcher: Environmentalists accuse the road agency of clearing scarce habitat just before a decision that could save the species.

Orange County’s tollway agency has cleared up to 43 acres of land in an area that environmentalists say was home to the California gnatcatcher just days before state officials will decide whether to protect the bird as an endangered species candidate.

Local environmentalists criticized the agency Wednesday for trying to sidestep the imminent possibility of gnatcatcher laws by bulldozing a stretch of the Foothill tollway route northwest of El Toro Road.

But tollway officials said the area did not contain gnatcatchers and was not prime habitat. In addition, they said the grading schedule was laid out months ago and that they are actually a few weeks late in getting the work started. They insisted that the timing of the work has nothing to do with the meeting at which a decision is to be made, noting that the state originally was supposed to decide the issue earlier this month.

The Fish and Game Commission will address whether to declare the small songbird a candidate for the state endangered-species list at 10 a.m. Friday. If the action is taken, the bird would be protected for at least one year, and the state would have the power to delay or stop grading of its habitat.

The clearing of 172 acres along a 3 1/2-mile stretch east of the El Toro Marine Corps Air Station began Friday and is expected to be completed today. Tollway officials estimated that the cleared land included between 25 and 43 acres of coastal sage scrub, the type of vegetation in which the gnatcatcher lives.

The work was done without a county grading permit because the Transportation Corridor Agencies has the authority to grant itself permission since it is a government agency.

Local environmentalists and biologists were disturbed when they discovered Wednesday that the tollway planners have self-policing authority over grading land. They also said they thought that the county agency was acting irresponsibly by destroying the habitat so close to the state’s decision.

“Why are they grading it now? It just happens to be a few days before the meeting, and there are gnatcatchers there,” said Pete DeSimone, manager of a National Audubon Society preserve in nearby Trabuco Canyon. “Planning in Orange County is in deep trouble. There’s so much of the cart before the horse.”

But tollway officials said the work was simply going forward as scheduled for months. Any delays, they said, could have put the agency in a position to lose $5,000 a day to construction crews hired for the project on July 25.

“This week, someone says we should wait for the gnatcatcher; next week, someone would want us to wait for something else,” argued Jerry Bennett, the agency’s chief engineer. “There are a lot of people who don’t want to wait for this road to go into operation.”

UC Irvine botanist Fred Roberts, who has studied grading of gnatcatcher habitat for several years, said the land was prime coastal sage scrub used by gnatcatchers and other species. He said he saw several of the birds on adjacent untouched land Wednesday morning, as well as four pairs of cactus wrens, another sensitive species, perched on piles of dead plants uprooted by the bulldozers.

“It was absolutely fabulous habitat,” Roberts said. “That area is prime gnatcatcher habitat all right. There is no doubt about that.”

To survive and breed, the gnatcatcher needs coastal sage scrub, a depleted, sensitive mix of vegetation that used to grow throughout the coastal canyons of Southern California. Now it is found only in Orange, San Diego and western Riverside counties, and in a small part of the Palos Verdes Peninsula.

Roberts said the area uprooted by the Transportation Corridor Agencies contains unusually high-quality scrub that had a thick undergrowth with very little intrusion by non-native plants.

Tollway officials, however, contended that the uprooted scrub brush was extremely degraded vegetation that, to their knowledge, did not contain any of the birds.

“It’s not like we’re doing anything that’s a big secret,” said Steve Letterly, the agency’s environmental manager.

He said tollway officials notified the Fish and Game Commission about the work. He also noted that the project has wound its way through all the various permit processes, resulting in requirements that the agency replace gnatcatcher habitat that is destroyed.

Roberts said he has worried that the Foothill tollway area might be graded by the agency before the gnatcatcher decision, but he thought the agency would at least need county permits.

“I think they should have to go through the normal county process like everyone else. Where’s the oversight if the TCA can handle its own stuff?” Roberts said.

DeSimone said it was a “dead issue” when he learned the plowing was done legally. But he said “it troubles me. It’s the fox guarding the henhouse type of thing. . . . It’s another example of taking an authority and abusing it.”

But tollway officials said the agency’s power is hardly unusual. The county or cities are not required to get grading permits for their own projects, and the same goes for the tollway agency, which is a coalition of representatives from the county and various cities along the route.

“It sounds like they think there’s supposed to be a superior agency granting permits, but that’s only true with respect to private development,” Bennett said.

County officials said the tollway agency does not need grading permits for the parts along the route it owns, but it does need permits for any bulldozing on private land. Tollway agency officials requested county permits in May for grading the adjacent property, which they said will be used as “borrow pits” to dump surplus soil.

“As long as they stay within their right of way, there are no separate county permits required for that. The grading code exempts any government agency,” said Win Mettke, the county’s supervisor of grading-plan checks.

If the TCA had needed county permits for the work, such permission would have been several weeks away and the work could not have been done legally before Friday’s gnatcatcher decision, Mettke said. He added that the agency has not been granted the permits requested in May for grading the nearby land because his office is not satisfied that the work meets all codes, such as noise controls.

Mettke said he didn’t know if the TCA began the work to avoid gnatcatcher rules.

“Whether they were trying to get a jump as far as clearing and grubbing, I have no idea,” he said. “But it is standard practice to award the contract and then they have the right to start the work. This project has been going on for years and years and they have been trying to get started for a long time.”