A coalition of local and national environmental groups filed a lawsuit against the U.S. Fish and Wildlife Service in US District Court today for its endorsement of a plan for 1893 acres of commercial development and 123 acres of infrastructure in the Natomas Basin. The same coalition won its suit against the service’s approval of inadequate environmental safeguards just three years ago and is confident that the court will once again insist that the service abide by the law.
At issue is the Metro Air Park project that would develop 2016 acres that is important habitat for protected species — giant garter snakes and Swainson’s hawks. Federal and state Endangered Species Acts protect the giant garter snake as a threatened species. California state law protects the Swainson’s hawk as threatened. The site was farmed for rice and row crops until after the county approved the project in 1997. It is currently occupied habitat for the snake and hawk, species that have been severely impacted by rampant urban development in California’s Central Valley.
The service approved the Metro Air Park project despite the fact that it suffers many of the same serious inadequacies pointed out by a federal district court judge in 2000. Judge David Levi invalidated the prior environmental plan for the area, called the Natomas Basin Habitat Conservation Plan, because it did not adequately minimize and mitigate the killing of protected species and destruction of their habitat. Lawyers for Earthjustice and the National Wildlife Federation are challenging the service’s decision to approve the Metro Air Park Habitat Conservation Plan for once again failing to protect endangered wildlife.
“Unfortunately, instead of cooperating with the City of Sacramento and other entities that are revising the Natomas Basin HCP, the Metro Air Park developers have chosen to push ahead with a project that includes a mitigation scheme already invalidated by a federal court,” said Laura Robb, an attorney with Earthjustice.
The environmental coalition, which includes the Environmental Council of Sacramento, Friends of the Swainson’s Hawk, the Planning and Conservation League, and the Sierra Club, points out that the 0.5 to 1 mitigation ratio adopted from the rejected Natomas Basin HCP is insufficient to meet 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 for an unknown price after development has occurred. Impacts of other development in the Basin, which the plan ignores, will likely cause the mitigation plan to fail.
“This plan lacks the common-sense requirement that an ensured source of funding be in place to guarantee it will work for wildlife. It is guaranteed that the plan will work for developers, but there is no guarantee for wildlife,” said John Kostyack, a National Wildlife Federation attorney. “A federal court has already ruled that a one-sided approach, guaranteeing that 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.”
As their native habitats have been destroyed, both the giant garter snake and the Swainson’s hawk have adapted to live on land dedicated to certain types of agricultural production. If built, the Metro Air Park project would replace existing agricultural lands primarily with commercial and industrial development.
“Development as planned would drastically reduce the foraging habitat of the protected Swainson’s hawk,” said Vicki Lee, Conservation Chair for the Mother Lode Chapter of the Sierra Club. “The developers want to pave over this site now for a shaky promise of protecting half this much land later; we’ve got to find a better balance for both developers and wildlife.”
The Metro Air Park HCP also 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 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 not acceptable 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, President 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 we are.”