A coalition of local and national environmental groups sent a letter to the U.S. Fish and Wildlife Service (USFWS) today announcing their intention to sue the agency for approving a Habitat Conservation Plan (HCP) for a commercial development zone north of Sacramento. The groups contend that the plan would violate the Federal Endangered Species Act by not balancing the incidental killing of animals during development with protection of adequate habitat elsewhere.

Under the habitat plan approved by the USFWS, the proposed Metro Air Park would convert 1,892 acres of mostly agricultural land in the Natomas Basin, north of Sacramento, into hotel rooms, commercial space, and a golf course. Although the site is currently fallow, the land was composed of rice fields, occasional wetlands, irrigation canals, and drainage ditches until the County approved the project in late 1997. The land currently provides habitat for the giant garter snake, a threatened species listed under the Federal and California Endangered Species Act, and the Swainson’s Hawk, protected under the California Endangered Species Act.

Lawyers from Earthjustice and the National Wildlife Federation are representing the coalition that includes the Environmental Council of Sacramento (ECOS), Friends of the Swainson’s Hawk, the Planning and Conservation League and the Sierra Club.

“Development of the site would lead to destruction of the canals and ditches, which connect to other viable habitat as well as themselves providing habitat for the snake. The development as proposed would also drastically reduce the open lands used as foraging territory by the protected Swainson’s hawk,” said Vicki Lee, Conservation Chair for the Mother Lode Chapter of the Sierra Club.

The planned development of Metro Air Park is only a portion of the entire Natomas Basin development plan. In 1997, the USFWS approved a regional Natomas Basin HCP and issued an incidental take permit to the City of Sacramento allowing for development of basin lands within the city limits. This action was challenged by many of the same environmental groups represented here as violating the Endangered Species Act and the National Environmental Policy Act.

In August 2000, the Federal District Court in Sacramento, Judge David Levi presiding, invalidated the Natomas Basin HCP because it did not minimize and mitigate take of covered species “to the maximum extent practicable,” and did not “ensure” that adequate funding existed to implement the mitigation measures, in violation of the ESA. The City of Sacramento and Sutter County have released a proposed draft revised Natomas Basin HCP for public review and comment, which has not yet been approved by the wildlife agencies.

“Instead of cooperating with other entities on the revised Natomas Basin HCP, the Metro Air Park developers are attempting to push ahead with a project that includes a mitigation scheme already invalidated by a federal court,” said Laura Robb, an Associate Attorney with Earthjustice who is representing the coalition.

The environmental coalition points out that the .5 to 1 mitigation ratio adopted from the rejected Natomas Basin HCP, which requires that for every acre of habitat that is destroyed only half an acre is set aside as “reserve” habitat elsewhere, is insufficient to meet the Endangered Species Act requirements for preservation of species. The plan does not consider the relative value of the habitat destroyed and the habitat acquired, nor does it consider whether the species will even live on the acquired land, let alone recover from the losses suffered from the Metro Air Park development. Because all the land within the Metro Air Park site will be developed, mitigation reserve lands will be purchased away from the Metro Air Park site at unknown locations and price.

“This plan lacks the common-sense requirement that an assured source of funding be in place to guarantee it will work for wildlife as well as for developers,” said John Kostyack, a National Wildlife Federation attorney. “A federal court has already ruled that a one-sided approach, guaranteeing habitat will be lost to imperiled wildlife but providing only good intentions that other suitable habitat will be acquired, is not acceptable. We’re simply asking that the Fish and Wildlife Service comply with the law and the court’s ruling.”

The Metro Air Park HCP replicates the funding mechanism found to be deficient by the Federal Court in the Natomas Basin HCP. Because mitigation lands are to be purchased in the future at a price that is unknown at the time the developers pay their one-time mitigation fee, there is no assurance that the mitigation fund will be adequate to pay for the mitigation set-aside lands or the cost of operations, monitoring, and restoration. In addition, there is no mechanism enforceable by a disinterested party, such as the wildlife agencies, for retroactively increasing the fees or assessing additional funds from the developers who have paid their one-time fee. The only group with the power to enforce such assessments is an organization controlled by the property owners, who have no incentive to expose themselves to further liability.

“It is certainly not okay to preserve only one-half of the amount of land you destroy through development. If this project is to go forward it must protect at least as much habitat for the protected species as it plans to pave over, preferably more,” said Andy Sawyer of Environmental Coalition of Sacramento. “The Federal Court, which ruled on the old Natomas Basin HCP, will likely see right through this blatant attempt to submit the same deficient mitigation plan that the Court rejected in the original lawsuit. It’s a shame we may be forced back into court over the same issue, but here we are.”