New Environmental Hopes

Years of legislative debate over how to protect flora and fauna on California’s endangered species list have produced more deadlock than decision. But Sacramento now appears poised to make some constructive changes.

The arguments on California law parallel debate over federal law: Environmentalists worry that endangered species acts do not adequately protect threatened animals, insects and plants and their habitat; developers and farmers protest that the law infringes on their property rights.

A state appellate court decision in April has forced the issue in California--quite possibly to the benefit of all. The court held that the state Department of Fish and Game, which administers the California Endangered Species Act, has no authority to continue its long-standing practice of permitting “incidental taking”--the unintended destruction of endangered flora and fauna in the course of activities otherwise permitted under the state’s Environmental Quality Act. These activities include building homes and shopping centers, farming and upgrading or maintaining utilities, all of which are to some degree regulated by the Environmental Quality Act.

The decision alarmed farmers, developers and others who had assumed that agreements and permits from the Fish and Game Department shielded them from damage charges if their activities inadvertently harmed fragile animal or plant populations.

In Sacramento, lawmakers spurred by the decision and responding to their constituents went to work. Instead of just addressing the specific problem identified by the court, this effort has generated broader proposals that could produce a degree of consensus rare among environmentalists, developers and farmers.

A bill by Sen. Patrick Johnston (D-Stock- ton), already passed by the Senate, explicitly authorizes the Department of Fish and Game to allow incidental takings. But the measure sensibly imposes some conditions. For example, developers and farmers would be required to monitor, and where possible mitigate, species destruction. The law also requires developers and farmers to have adequate funds for the task and to post notice and receive public comment on the intended work.

Johnston’s efforts look promising. So too are discussions aimed at developing a legislative framework for the sort of sweeping habitat conservation agreements that environmentalists and developers have reached in Orange and San Diego counties in recent years. These plans require developers and local officials to set aside open space for endangered wildlife in exchange for permission to build on other land. The ad hoc deals have won high praise from federal and state officials. They could help, and so too would the approach of Sen. Johnston.