Special Wildlife Status in Jeopardy

TIMES ENVIRONMENTAL WRITER

The white-tailed kite would seem an unlikely pawn in an environmental battle royal. The graceful, mouse-hunting bird found in Central Valley grasslands is so common that it is not a candidate for the endangered species list.

Yet the kite belongs to an obscure and little-known class of 39 birds, mammals, reptiles and fish that enjoys more protection in California than is provided by the U.S. Endangered Species Act.

The special status prohibits destroying the covered species under any conditions, while endangered species legislation permits killing them under certain conditions.

Now, for the first time, that special status is in jeopardy. Several of the animals on the list have become obstacles to oil exploration, real estate development, water projects and other commercial activities.

Some of the state's most powerful interests--the Metropolitan Water District, the state Building Industry Assn. and timber companies among others--are lobbying hard to strip the species of their "no-kill" status, arguing that, in fact, it hampers conservation efforts.

Environmental groups are lobbying fiercely as well, vowing not to give up the special protection unless the state strengthens other laws that are supposed to safeguard rare wildlife along with the grasslands, mountains, deserts and other open land where they live.

"This is the strongest law we have on the books right now," said Kim Delfino, state director for Defenders of Wildlife and a leading player in the current furor. She called the state Endangered Species Act "a toolbox that's pretty darned empty."

A bill introduced in the state Legislature by Assemblyman Dean Flores (D-Kern County) would phase out special protection. The bill is scheduled for a July 10 hearing.

The list of 39 fully protected species includes some of California's best-known creatures and some of its most overlooked. The bighorn sheep is on the list, and the California condor, the bald eagle, the golden eagle, the southern sea otter and the Pacific right whale. So are the unarmored threespine stickleback, the razorback sucker, the limestone salamander, the San Francisco garter snake and the blunt-nosed leopard lizard.

The federal and state endangered species acts protect 32 of the 39 species. Only seven are not covered, among them the white-tailed kite and the golden eagle, although their numbers are plummeting in some areas of the state. That worries environmentalists, who fear that so little is known about some creatures' health, habitat and population trends that it would be reckless to strip them of full protection.

Some influential environmental groups say they would be willing to give up the fully protected list if state legislators agreed to strengthen the state Endangered Species Act as well as a conservation program popular among developers that is intended to balance growth with habitat protection.

But industry representatives say that the special status of the 39 creatures looms as a major obstacle to their ability to expand operations while preserving some of the land where the creatures live. They want the "no-kill" protection dropped or amended to allow species to be killed or "taken" in certain circumstances.

The standoff reveals just how dramatically in recent years regulators have changed the way they enforce endangered species laws.

Today, projects proceed on private land containing rare plants and animals if landowners set aside land and money to preserve those species elsewhere. In return, the landowners are allowed to carry out projects that may kill or injure endangered species.

A bill introduced by state Sen. Byron Sher (D-Stanford) would set stricter guidelines to make sure such conservation plans provide for the long-term survival of species. The bill is supported by environmentalists but opposed by the state Building Industry Assn., which says it fails to offer landowners incentives to join in such plans.

There are more than 300 such plans operating and hundreds more being created. But now property owners are worried that the laws on fully protected species will thwart their plans.

The most high-profile example is a massive 50-year conservation plan being drafted for the lower Colorado River from the Glen Canyon Dam just north of the Grand Canyon to the Mexican border. That plan is supposed to deal with the effects of altered river flows designed to meet the needs of growing populations that rely on Colorado River water. Changing flows will lower river levels, probably draining some estuaries and leaving fish, birds and other wildlife without their natural habitat.

So water agencies in states bordering the river hope to create new habitat, providing extra protection for 57 species while obtaining permits to "take" species if needed in creating the plan.

But the plan could be blocked if the law on fully protected species is not made more flexible, said officials at the Metropolitan Water District.

"It's got to be fixed," said Jeff Kighlinger, assistant general counsel for the district. "Everyone agrees this is the right thing to do, but we have this legal barrier."

Fully protected species are causing problems elsewhere in the state: A tiny creature called the salt marsh harvest mouse is posing obstacles to development in the Bay Area; several San Francisco garter snakes had to be picked up and moved during a BART expansion near San Francisco Airport.

But environmentalists worry that lesser-known creatures such as the white-tailed kite will be harmed if the law is removed. The kite is considered common in Sacramento County but declining in Southern California because of disappearing grassland and other problems.

"Here is a species on the list that doesn't have any other protection, and may even need protection," added John McCaull, California legislative director for the National Audubon Society. He called the kite "a perfect example of the difficult situation this debate has put us in."

Full protection of species dates back to 1957, when it was granted to certain mammals and birds. Protection was extended to some reptiles and fish in 1970.

For years, little attention was paid to the law. In fact the state issued "take permits" in the mid-1990s for one protected creature--the blunt-nosed leopard lizard--around Bakersfield.

When the error was discovered, the department notified landowners that the lizard could not be killed, said department Deputy Director Ron Rempel.

Now, Kern County farmers, builders and oil producers with expansion plans fear they could be foiled by the same lizard and their inability to obtain permits to take it.

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