Vol 12 - Number 6
 September 2002

Region’s first habitat conservation plan rejected after violations found

A federal court has ruled that the U.S. Fish and Wildlife Service violated the Endangered Species Act when it approved a plan to protect the Delmarva fox squirrel at an Eastern Shore development site without adequate opportunity for public review.

The mitigation site for the Delmarva fox squirrel turned out to be bordered by a  road serving 75 homes and is adjacent to  another subdivision under development.  Also, it was already protected by an open- space covenant, and therefore provided no  additional protection for the squirrels.  Photo by W. H. Julian courtesy of U.S.  Fish & Wildlife Service

The decision, which overturned a lower court ruling, affects the first habitat conservation plan in the region, which was written for a 56.6-acre development in Queen Annes County. Environmentalists had carefully scrutinized it because they saw it as a precedent for plans that may be written for other rare species in the region as development pressures increase.

“A lot of the issues that were raised in our case are concerns, problems that we see elsewhere around the country,” said Mike Senatore, an attorney with the group Defenders of Wildlife which filed the suit along with Ned Gerber, a wildlife biologist living near the development.

In habitat conservation plans, landowners make specific commitments to protect an endangered species and its habitat. In exchange, the USF&WS issues an “incidental take permit” exempting the landowner from hefty Endangered Species Act penalties if a protected animal is inadvertently harmed.

A plan was required for the 16-house Homeport development along Winchester Creek, a small tidal tributary to the Bay, after Gerber observed several fox squirrels on the property.

The plan approved by the service called for protecting an existing buffer along the creek, posting 15 mph speed limit signs in the development, erecting signs alerting people to the presence of fox squirrels, and a variety of other actions aimed at reducing risks to the squirrel.

The plan also called for placing a nearby 31-acre forest tract in a permanent conservation easement to preserve squirrel habitat as a mitigation site.

Defenders and Gerber contended the plan did not provide enough protection for the fox squirrel, a larger, slower cousin of the gray squirrel and is more vulnerable to cars and attack by pets than other squirrels. They also said the USF&WS failed to provide them with the location of the mitigation site.

The court agreed that the service should have made a map of the mitigation site available as part of the draft plan it submitted for public comment. 

Further, the court ruled, the map was “indispensable” for the environmentalists to make meaningful comments.

The site, Defenders and Gerber said, turned out to be bordered by a road serving 75 homes and is adjacent to another subdivision under development, making it of questionable value as a refuge. They also said the site was already protected by an open-space covenant, and therefore provided no additional protection for the squirrels.

On a second issue, the court agreed with the environmentalists that the service failed to ensure that the habitat conservation plan would minimize impacts to the squirrel “to the maximum extent practicable” before issuing an incidental take permit.

To the contrary, the court said, the service’s own review found that alternatives were available — primarily moving the entrance road to the site — that would reduce potential impacts to the squirrel, but they were rejected by the developer because of added costs and further delay to the project.

The court said the service failed to independently assess whether, in fact, the change would have incurred costs or delays of such a magnitude to render the alternative impracticable.

“Because the service did not make the independent finding required by the [Endangered Species Act] as a prerequisite to issuance of an incidental take permit, issuance of the permit violated the statute,” the court ruled.

Government attorneys declined comment on the decision.

Senatore said the ruling neither halts ongoing development at the site, nor invalidates the incidental take permit. But it will force the service to conduct new evaluations of the development’s impact, and possibly modify the habitat conservation plan to better protect the squirrel, and resubmit it for public comment.

“There are still changes they can make on the site to make it better for the squirrel,” Gerber said, “and I think that is something that we would expect to happen. And, they can come up with a better off-site mitigation site.”

The case was one of a growing number of suits challenging habitat conservation plans nationwide. The plans have been increasingly touted as ways to protect species while heading off conflicts with development, and they are embraced by some environmental groups as a “win-win” solution to conflicts. But others criticize the plans as “sweetheart deals” that sign off on development projects while offering minimal protection to species.

The Delmarva fox squirrel has declined throughout its range since the region was settled. Once found throughout the native hardwood and pine forests of the Delmarva Peninsula, southeastern Pennsylvania and southern New Jersey, the squirrel today is found naturally in less than 10 percent of its historic range. It was listed as endangered in 1967.

© Bay Journal  2002