Court rules pygmy owl habitat designation unlawful

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The National Association of Home Builders predicts that a recent federal court decision finding that the U.S. Fish and Wildlife Service unlawfully designated critical habitat in southern Arizona for an endangered species will have a profound effect on future Endangered Species Act designations. |ret||ret||tab|

According to an NAHB news release, Federal District Court Judge Susan Bolton on Sept. 21 ruled that the FWS's critical habitat designation for the cactus ferruginous pygmy owl was unlawful because the agency failed to fully evaluate economic and other effects. |ret||ret||tab|

That ruling echoed a legal assertion made by plaintiffs NAHB, the Tucson-based Southern Arizona Home Builders Association and the Home Builders Association of Central Arizona. |ret||ret||tab|

Judge Bolton also stated that the FWS's designation was overly broad, lacked sound scientific research and provided little evidence to justify such stringent federal regulation. |ret||ret||tab|

In lifting the designation, Judge Bolton temporarily removed certain Endangered Species Act-related land development restrictions covering 730,000 acres of land in Arizona's Pima, Pinal, Maricopa and Cochise counties until the FWS determines the fiscal and economic impact of the designation, a stipulation required by the ESA. |ret||ret||tab|

"Protecting pygmy owls and other threatened or endangered species is an important national environmental goal, but one whose costs to private landowners, communities and state and local governments must be made clear by federal agencies," said NAHB President Bruce Smith, a home builder from Walnut Creek, Calif. "Under the ESA, the federal government must provide a price tag for environmental protection. For far too long, the U.S. Fish and Wildlife Service has ignored this legal obligation." |ret||ret||tab|

Under the Endangered Species Act, federal agencies are prohibited from is-suing permits and other land use ap-provals that would adversely impact critical habitat, regardless of whether the land is occupied by members of a protec-ted species. Critical habitat for the pyg-my owl was designated by the FWS in 1999 and included land in Pima County. |ret||ret||tab|

In 2000, builders challenged both the listing of the Arizona pygmy-owl population as an endangered species and the designation of more than 700,000 acres of land in Arizona as critical habitat. Judge Bolton rejected the challenge to the listing, but vacated the critical habitat designation. |ret||ret||tab|

Under the ruling, the pygmy owl critical habitat designation (required in Section 9 of the ESA) will be sent back to the Fish and Wildlife Service. |ret||ret||tab|

A new designation that considers the full economic impact and narrows the areas designated as critical habitat to those necessary for the conservation of the owl will have to be developed and circulated by FWS for public review. |ret||ret||tab|

Until the new designation is completed, only development activities that would actually cause injury or fatally harm the owl can be regulated by the Fish and Wildlife Service. Development activities that merely change the owl's habitat cannot be regulated. |ret||ret||tab|

"We hope federal agencies will take Judge Bolton's ruling to heart and work with landowners, communities, state and local governments and Congress to fulfill their legal obligations and develop plans that protect these species, complete with data on the economic impacts."[[In-content Ad]]