Developer-Environmental Pact Policy Is Challenged

Several environmental groups sued the federal government this week, challenging a policy that is key to environmental compromises with developers such as a landmark plan launched this year in Orange County.

Environmentalists claim that the Clinton administration’s 1994 “no surprises” policy, intended to defuse developers’ criticisms of the Endangered Species Act, in fact dangerously weakens federal protection of rare plants and animals nationwide.

U.S. Interior Secretary Bruce Babbitt has long cited the policy as proof that the act is more flexible than critics claim.

Under the policy, developers entering into special habitat protection programs are given assurances that they will not be surprised with the loss of development rights or additional costs during the life of the plan.

That approach is being used by federal officials in Southern California and across the country to forge conservation agreements with developers on land containing endangered plants and animals.

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In Orange County, for example, public agencies and developers signed an agreement in July creating a 37,000-acre preserve in the county’s central and coastal areas. In return, landowners were granted new assurances they would not face objections based on the Endangered Species Act, when they seek to build outside the preserve’s boundaries.

But environmentalists, in a lawsuit filed Thursday in U.S. District Court in Washington are now challenging the legality of the federal policy.

“They’ve said that industry and development come first,” said environmentalist Leeona Klippstein, a plaintiff in the suit. She said the “no surprises” policy does not provide for unanticipated events such as fires that can destroy valuable habitat and change the natural balance that existed when pacts with developers were forged.

“Nature is full of surprises,” Klippstein said.

In their lawsuit, attorneys for the environmentalists claim the government adopted the policy without public notice or opportunity to comment.

A top-level federal attorney, however, said he is confident the government complied with the law. He and other officials called the policy an important part of preserving endangered wildlife through so-called “habitat conservation plans”--voluntary agreements with landowners.

As many 400 such plans are now in place or being negotiated across the country, compared to only about a dozen before the policy was embraced by the Clinton administration, said John Leshy, solicitor for the U.S. Department of the Interior.

“The ‘no surprises’ policy has certainly played an important part in making that possible,” Leshy said Friday. And when those plans are put together, he said, scientists work to anticipate changes and prevent mistakes.

“We’re dedicated to making the Endangered Species Act work, and make it work in a user-friendly way,” Leshy said.

The lawsuit names Babbitt and top administrators of the U.S. Fish and Wildlife Service, U.S. Department of Commerce and the National Marines Fisheries Service.

It was brought by several environmental groups, including Klippstein’s Spirit of the Sage Council, the Biodiversity Legal Foundation, the Fund for Animals, the Shoshone Gabrielino Nation and the Southwest Center for Biological Diversity.