U.S. Considering Compromise on Gnatcatcher : Wildlife: If approved, plan would allow developers to avoid restrictions by voluntarily setting aside preserves.

Federal wildlife officials are considering a unique compromise for protecting the California gnatcatcher that would allow developers to avoid the restrictions of the Endangered Species Act if they voluntarily participate in efforts to create preserves for the bird.

John Fay, chief of listing at the U.S. Fish and Wildlife Service, said the agency is exploring an option of listing the bird as “threatened” instead of “endangered.”

That would allow the federal agency the flexibility to come up with special rules to protect the bird--such as exempting landowners who are participating in a voluntary state conservation program created by Gov. Pete Wilson.

“If this were to happen--and I’m not guaranteeing it will happen--it would be the first example of its kind,” Fay said. “You’re talking about a cutting-edge exercise, if we decide to do it.”

The deadline for the federal decision on whether to grant endangered species protection to the gnatcatcher is March 17. The 4 1/2-inch gray songbird, one of the tiniest birds in North America, nests in sagebrush found in Orange, San Diego, Riverside and San Bernardino counties and the Palos Verdes Peninsula. Much of the bird’s habitat is found on coastal land prime for development.

The compromise would be good news--but not great news--for many of Southern California’s developers, including the Irvine Co., who are active in the Wilson Administration’s voluntary planning to protect the bird’s habitat. The developers, however, prefer that the gnatcatcher receive no federal protection, since they believe that the bird is not imperiled and that current state and local efforts would guarantee its survival.

Environmentalists, however, said they are concerned that such a special rule would not provide enough protection for the bird, which many biologists fear is on the verge of extinction.

“The gnatcatcher is endangered, and it should be treated as such,” said Joel Reynolds, a senior attorney with the Natural Resources Defense Council.

The compromise “would allow the service more flexibility in approving (development) projects. . . . I’m concerned about too much flexibility,” he said. “It would make it more difficult to get a court to step in if we felt they weren’t enforcing the law.”

Reynolds said he was contacted last week by Jeff Opdycke, manager of the federal wildlife agency’s Southern California office, who asked him how environmentalists would view the compromise. Lawyers for developers also were contacted by the federal agency.

If the federal government declares the gnatcatcher endangered, there is no flexibility allowed in the law. Every development that impacts its habitat would have to go through time-consuming, expensive planning and permit processes that could halt or delay projects for years. But under the compromise idea, if developers voluntarily agree to set aside land, they could avoid such delays.

The idea of coming up with special rules to protect some species while easing the burden on developers has been discussed for several years at the Fish and Wildlife Service’s headquarters in Washington.

Now, however, the timing for actually implementing it may be right, since top Clinton Administration officials emphasize that compromise is necessary to protect both the environment and the economy.

Newly appointed Interior Secretary Bruce Babbitt told a congressional committee last week that preventive planning is a top priority because it would protect species while averting the need to list them as endangered, which he said causes “an economic train wreck.”

The wildlife agency must decide, however, if the gnatcatcher is in too much peril for a flexible approach. “That’s the critical question,” Fay said.

Fay said his office in Washington is awaiting the advice of the agency’s Southern California staff in Carlsbad. The recommendation from Carlsbad will come sometime after March 2, when a public review period closes.

“Whether it’s a front-running option at this point, I don’t know,” Fay said.

Opdycke and other U.S. Fish and Wildlife Service officials in the Carlsbad office repeatedly refused to discuss their recommendation.

Many other species already have been listed as threatened, including the Northern spotted owl. But only in a few, isolated cases have special rules been developed to protect them. Most of those cases involve exemptions to allow some sportfishing of endangered species of trout; none exempts developers.

“It has been a silent provision in the law for almost 20 years now and a lot of us are thinking it ought to be explored,” Fay said. “Particularly where there is a lot of private ownership involved, we have to be careful about what we regulate.”

A special ruling would boost the Wilson Administration’s efforts to come up with a voluntary solution to protect the gnatcatcher.

Since September, 1991, the state Resources Agency has been working with developers, environmentalists and local governments to protect coastal sage scrub, the habitat of the gnatcatcher and about 75 other rare or sensitive animals and plants.

The program, called Natural Communities Conservation Planning, was mounted as an alternative to listing the gnatcatcher as a state endangered species.

California Undersecretary of Resources Michael Mantell said the compromise being considered by the federal government would encourage more developers and landowners to participate.

“We’ve tried to stay out of the listing issue, but we have asked (federal officials) whatever way you go, please try to do (it) in a way that fosters the good work that we’ve already done,” Mantell said.

The Wilson Administration has already persuaded about three dozen of the area’s major developers or landowners to hold off on development of the habitat until permanent preserves can be created.

Nearly all Orange County developers who own gnatcatcher habitat already have enrolled in the Wilson Administration’s program. None in Riverside County, however, is participating.

Babbitt told a House committee last week that he hopes to overhaul endangered species protection to create similar programs on a national basis.

“They have taken a real interest, not only in terms of what might go on in Southern California, but as a potential model nationally,” Mantell said.