After years of aborted attempts, the Legislature is poised to approve a controversial overhaul of California's Endangered Species Act, creating new rules that allow developers to destroy imperiled species and their habitat if they fully mitigate the damage caused.
The two-bill reform package has the support of Gov. Pete Wilson and will probably become law. But it has sliced a nasty gash through the environmental community, with some groups hailing the compromise and others predicting that it will nudge stressed wildlife populations ever closer to extinction.
One of the bills, (SB 879) by Sen. Patrick Johnston (D-Stockton), would authorize the state Department of Fish and Game to issue permits for the "taking," or killing, of a species as a byproduct of development.
Such permits--now negotiated in private--would be subject to public review and would require developers to compensate for any destruction to an extent equal to the harm they cause.
The second bill, (SB 231) by Sen. Jim Costa (D-Fresno), exempts farmers from penalties under the act if they accidentally kill an endangered species during "routine" agricultural activities. It also offers farmers further protection under the law if they agree to create wildlife habitat on their land.
Both bills easily passed the Assembly this week and are awaiting final action in the Senate. Their toughest test will come today in the senate Natural Resources Committee, where the chairman, Tom Hayden (D-Los Angeles), fiercely opposes both--but concedes that he probably lacks the votes to sink them.
"Despite what the proponents say, these bills have a lot of small parts that add up to big threats for species," Hayden said.
Mirroring a movement at the national level, farmers and developers in California have been pushing to rewrite the state's Endangered Species Act for four years, calling it unfairly restrictive.
Previous bills have stalled in Sacramento; those considered too developer-friendly were killed in Hayden's committee, while those viewed as too "green" typically failed in the Assembly, tanked by Republicans and Democrats from agricultural districts.
This year's effort was spurred by the 1st District Court of Appeal, which said in April that the Department of Fish and Game had no authority to issue permits for the "incidental" killing of species by developers. More than 150 such permits--for industrial parks, housing tracts, transportation improvements and other projects--have been granted since 1989.
The ruling--now under review by the state Supreme Court--cast a cloud over many of those projects, including the Mojave Industrial Park in Victorville, a light rail project in San Diego and a residential and a golf course development in Rancho Palos Verdes.
Johnston's bill would lift the cloud over the projects and give the department clear authority to issue the so-called "take permits," said Craig Manson, legal counsel for Fish and Game.
Representatives of three environmental groups--who crafted the final version of the bill in negotiations with developers and the Wilson administration--say it also carries many benefits for imperiled species.
Joe Caves, lobbyist for the Planning and Conservation League, called the bill a "significant improvement" over current law because it spells out developers' responsibility to compensate fully for harm they cause wildlife and their habitat. Such compensation would typically involve purchasing land of equal environmental value elsewhere for preservation, or restoring a degraded area.
"This is a big gain because it removes any ambiguity about what is required in terms of mitigation," Caves said. "Under current law, it's all done at the discretion of the government."
Changes in the state law also will not affect developers' and farmers' obligations under the federal Endangered Species Act.
Another benefit for environmentalists is the requirement that the permits be subject to public comment and review, said John McCaull of the Audubon Society. Assemblywoman Debra Bowen (D-Marina del Rey), chairwoman of the Assembly's Natural Resources Committee, agreed.
"The [state] has been negotiating these deals in secret, and there was no chance for public input," Bowen said. "This bill opens that process to the light of day."
The business community is equally bullish on the bill. Alan Zaremberg, lobbyist for the California Chamber of Commerce, said Johnston's legislation "is not really a compromise, because it meets our goals."
Developers wanted "statutory certainty" that they could kill a species so long as they mitigated such harm, and also wanted a limit on how much mitigation government could extract, Zaremberg said.
"I don't think there's anything bad about this bill," he said.
Critics, however, see it differently, and on Wednesday they fired off faxes and e-mails, seeking to stir some eleventh-hour opposition. Among the opponents are the Natural Resources Defense Council, the California Native Plant Society and California Trout.
Their chief criticism is that the Johnston bill relieves developers of any obligation to help with the recovery of various species listed as threatened or endangered.
"This bill lets developers off the hook when it comes to that responsibility," said Tara Mueller, an attorney with the Environmental Law Foundation. "It leaves that job to the state, but there is no funding set aside for the state to do it."
Mueller also criticized the standards Fish and Game would have to meet in determining whether to grant a take permit. Officials could only deny a permit, she said, if they concluded a project "would jeopardize" the continued existence of a species. Under federal law, the standard is "would likely jeopardize."
"How do you justify a finding that a project would absolutely jeopardize a species' continued existence?" Mueller said. "That would be very difficult to defend."
Other critics voiced concerns that if California adopts the bill, it could harm efforts underway in Washington to reform the federal Endangered Species Act. Last month, Rep. George Miller (D-Martinez) introduced an ambitious bill to reauthorize the federal act, with strong backing from the environmental community.
"There is a lot of concern that the position California appears to be taking [in Sacramento] would undermine those working on the federal level," said Andy Igrejas of the California Public Interest Research Group, which opposes the Johnston bill. "Absolving developers of their responsibility to help with the recovery of species sets a bad precedent."
Johnston, however, says developers should only be liable "for the damage they cause--no more, no less.
"We can't shift to individual property owners the responsibility for recovery of a species whose decline has been caused by a multitude of factors," Johnston said. "That is properly the obligation of the people of California as a whole."
Johnston added, however, that he is sympathetic to Hayden's request for a state commitment to fund recovery projects.
"I'm willing to try to do that, but time is short. We're in the last waning hours of the legislative session," he said.