Permit to Use Bird Habitat Is Questioned

When the U.S. Fish and Wildlife Service gave a home developer the go-ahead to clear the habitat of dozens of rare songbirds in San Clemente, it may have exceeded the federal limit for how many of the protected Orange County gnatcatchers can be destroyed.

The permit has set off alarm bells in conservation circles. Some environmentalists have called on top federal and state officials to probe why regulators agreed to allow John Laing Homes to destroy the habitat of an estimated 33 California gnatcatchers at the Forster Ranch development to make room for more than 1,000 homes.

Government regulators acknowledged that the limit on gnatcatcher losses may have been reached and said a review of both the disputed permit and the whole system of tracking the threatened songbird is needed.

“We need to get at the issue of how many birds are out there,” said Jim A. Bartel, assistant field supervisor at the U.S. Fish and Wildlife office in Carlsbad.

The controversy offers a telling glimpse of how the current home-building boom could strain a landmark 1993 compromise intended to defuse a regionwide battle over the threatened gnatcatcher, a small gray bird that dwells in coastal sage scrub on some of the nation’s most expensive real estate.

Crafted by the Clinton and Wilson administrations, the nationally acclaimed pact allows some development while large preserves are established to assure that the gnatcatcher and other rare plants and animals do not become extinct. But plans for a preserve are lagging behind schedule in South County at the same time that home-building there is burgeoning.

At Forster Ranch, for instance, Laing plans to build 1,037 homes in a 904-acre area that includes about 140 acres of coastal sage scrub as well as about 4,300 thread-leaved brodiaea, which are blue-flowering plants protected under the state Endangered Species Act. The cluster of plants is considered the largest in Orange County.

Environmentalists say the Fish and Wildlife Service--the agency designated to protect the gnatcatcher--moved too hastily to approve the Forster Ranch permit, putting the songbird and the plant in harm’s way.

Federal biologists believe that about 562 pairs of gnatcatchers remain in South County. Under guidelines updated in 1996, only 19 pairs--or 38 birds--were allowed to be harmed to make way for development.

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The Forster Ranch permit and other recent construction permits allowed the removal or destruction of 54 gnatcatchers--almost 50% more than the limit set two years ago--and may have violated federal guidelines, environmentalists say.

“The conservation community nationwide has been sent a message that the wildlife agencies either do not intend or are not capable of enforcing their own clear, written regulations,” four local environmental leaders wrote in an April 23 letter to U.S. Fish and Wildlife Regional Director Michael Spear and State Resources Secretary Douglas Wheeler.

Fish and Wildlife’s Bartel said last week that his agency will review the permit and may even launch a new study of how many gnatcatchers remain in the region.

“Yes, I would agree we seem to be over the limit,” Bartel said. But no one seems to know for sure how many birds remain, he said. Some call the counting system inherently flawed because of the sheer difficulty of tallying birds that flit from bush to bush across property lines and city borders.

“We just don’t have this thorough analysis that clearly lays out where we are,” he said.

Ken Nishikawa, vice president with Laing Forster Ranch, said private studies show the gnatcatcher population on the property has actually risen.

The coastal sage scrub where the bird lives once blanketed the coastal hills of Southern California. But as much as 90% has been lost to development, making it one of the most depleted habitats in the United States, scientists say.

Concerns about the gnatcatcher’s future ignited a clash among landowners, regulators and developers in the early 1990s, similar to the northern spotted owl conflict in the Pacific Northwest. The gnatcatcher ruckus eased with the 1993 pact, which called for creating large preserves of sage scrub.

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Although a preserve was created in central and coastal Orange County in 1996, plans for a South County preserve may not be finished for more than a year. Until then, the pact restricts how much habitat can be destroyed. Building is allowed on only 5% of the county’s sage scrub, and cannot displace or kill more than 5% of the region’s gnatcatchers.

If those limits are exceeded, developers could face a more time-consuming permitting process that could dramatically slow building.

Environmentalists are also critical of a flurry of permits that allowed developers to clear sage scrub just days before the official Feb. 15 start of gnatcatcher nesting season, a period when regulators forbid such work.

Documents show that in the days leading up to that ban, Fish and Wildlife officials issued four permits allowing the clearing of a total of 49 gnatcatchers in South County. Permits were issued Feb. 10 for the Ladera and Talega Valley developments and a Coto de Caza expansion, and the Forster Ranch permit followed a day later.

State and federal regulators initially balked at issuing a permit for the Forster Ranch project, documents show, in part because a state supervisor decided that the project would harm too many gnatcatchers.

But both agencies eventually overruled their earlier decisions. In a joint Feb. 11 letter, state and federal regulators agreed to issue the permit as long as certain conditions were met, including an agreement by the developer to add 55 acres to an open-space preserve.

Southern Orange County is not the only area where the development boom is threatening carefully crafted plans intended to protect the gnatcatcher while allowing growth.

In San Diego County, the cities of Chula Vista and San Marcos have both used up their quota of sage scrub, meaning that developers must now go through more time-consuming steps before they can clear sage scrub habitat. Carlsbad could soon face a similar problem.

The building boom has heightened the importance of getting preserves in place before too many birds are lost for good, officials say.

Environmentalists, meanwhile, want to assure that wildlife regulators don’t cut corners as construction speeds up.

The Forster Ranch permit was “an abuse of the system,” said Dan Silver, coordinator of the Los Angeles-based Endangered Habitats League, one of the environmentalists who signed the letter protesting regulators’ actions.

“It’s an outrage,” he said. “All we’re asking them to do is to follow their own written regulations.”