Improving San Diego's Habitat Plan Lawsuit to ensure the survival and recovery of species by Allison Rolfe
	he nation's model "Habitat Conservation Plan" (HCP) is currently in effect in San Diego. Home to more threatened and endangered species than anywhere else in the continental United States, San Diego recently received permits to allow development on lands where endangered species occur. The basis for allowing development on lands inhabited by species already declining?: the Multiple Species Conservation Program, a regional HCP intended to provide for the conservation of at least 85 threatened and endangered species in San Diego. The MSCP consists of a roughly delineated preserve area and accompanying management guidelines. This plan is the product of an attempt to set aside enough contiguous land to sustain multiple species of plants and animals and expedite development permits for the remainder of the land in the San Diego planning area. The Southwest Center for Biological Diversity will soon sue the U.S. Fish and Wildlife Service ("Service") regarding the City of San Diego's Incidental Take Permit for the MSCP, the first large-scale regional Habitat Conservation Plan under the federal Endangered Species Act (ESA). The lawsuit claims the Service has failed to meet the legal requirements of the ESA. If the MSCP does not meet the standards of the ESA, it cannot achieve what it claims. This lawsuit aims to strengthen the MSCP so that it can actually provide for the survival and recovery of endangered species.
Bypassing the ESA
	Prior to the MSCP, developers were required to comply with the ESA if their property was home to species listed as endangered. Generally, this meant that no direct impacts to endangered or threatened species would be permitted except in very limited circumstances. Today, in exchange for participation in the MSCP process, developers in San Diego can avoid the ESA regulations outside of the MSCP preserve and instead receive permits to kill listed species and/or take their habitat. Upon initial consideration, this may seem to be a fair trade-off, but the plan has evolved in response to the unique political context of San Diego. Here, developers have successfully fought against the inclusion of tight ESA standards in the MSCP plan. Developers make a relatively small contribution to building and managing the preserve (local, state and federal governments shoulder much of the burden). In exchange, they receive a contractual agreement with the wildlife agencies that relieves them of all future ESA obligations, while guaranteeing permitting outside of the preserve. But the plants and animals receive little to no measurable certainty. Additionally, the plan was originally marketed as a substitute for the listing of the California gnatcatcher, an imperiled bird native to southern California. For this reason, the preserve was primarily designed to capture the habitat of the gnatcatcher coastal sage scrub. Later, when it became obvious to developers that this process was a fail-safe means for avoiding ESA regulations, other species and their habitats were added to the list of species the plan purported to conserve. These "afterthoughts" never got the attention they deserved, and the basis for claiming that their survival and recovery are provided for by the plan is weak and not supported by sound science.
Formula for extinction?
	The MSCP lacks specificity. Setting aside tracts of land may very well prevent the decline of some species in the future. However, without species-specific management actions to provide for the care of species currently on the brink, it can do very little, if anything at all, to prevent impending extinctions. For endemic species, such as those dependent upon vernal pool habitat (a rare wetland that has been reduced to 2 percent of its former range), it is often necessary to define actions in precise detail to prevent extinction. In its ambiguous form, the agencies responsible for enforcing the MSCP inherit a plan that possesses major problems for implementation. Without species- and area-specific details and standards, the guidelines established by the MSCP are virtually meaningless. The Southwest Center for Biological Diversity is requesting help to take the MSCP and the U.S. Fish and Wildlife Service to court to challenge the claim that it will achieve what it promises. We in San Diego should be sincere about the MSCP plan and what it can achieve if it is to be touted as a model for the nation. Some argue that the MSCP and all Habitat Conservation Plans are a bad idea, period. Others believe that habitat-based planning is the wave of the future. Either way, the lawsuit will result in an answer. If the MSCP can actually achieve what it claims, the lawsuit will strengthen the plan and improve its success by securing the details and criteria for a scientifically sound plan. At a minimum, the lawsuit will require a solid basis for claiming that the survival and recovery of the 85 species involved is provided for by the plan. If the MSCP cannot accomplish all that it claims, this will be exposed in court. The goal of the lawsuit is to request a substantial disclosure of detail, if it exists. If it does not, the permits should be revoked. The lawsuit is intended to strengthen the MSCP to a point that it can actually achieve what it can currently only claim. If, however, it is determined that it cannot achieve what it claims, based on the best available scientific information, then its proponents should be honest about it. In concept, as a supplement to existing regulations, the MSCP offered much. However, the plan has since evolved in response to the unique political context of San Diego, and reflects the level of power wielded by the stakeholders involved. It is a plan that benefits the developers who want to avoid the permitting requirements of the ESA and benefits politicians who want to be reelected and strengthen their control.
Is the "best" good enough?
	Many claim that this is political reality - that this is "the best we can get for San Diego." This should not be the standard we want to impose upon the rest of the nation. Developers and monied-interests fight to get everything they want. In the MSCP process they have been provided nothing less than a clear contract that entitles them to permits to take listed species and habitats and assures them that they are free from future obligations. They invested the time and effort to secure a contract that guarantees their profit because money is worth that much to them. Conservationists should not resign so quickly, but rather be more persistent than the developers have been in our own fight to protect our natural heritage and quality of life. The Southwest Center for Biological Diversity needs the help of others to make this lawsuit successful. With your help, we can make the MSCP work. The lawsuit could cost as much as $150,000. But the team of attorneys including Neil Levine of Earthlaw, local environmental attorneys Steve Crandall and Michael Harris, and Tara Mueller of the Environmental Law Foundation are willing to spend 3 to 4 years taking this case to its likely end, the Supreme Court. The implications are nationwide, and support is needed to make it successful. If you would like more information or can donate to the costs of the lawsuit, please call me at (619) 223-9218.
Allison is the southern California Coordinator for the Southwest Center for Biological Diversity and is currently completing her graduate thesis at San Diego State University on the MSCP. Southwest Center for Biological Diversity P.O. Box 7745 San Diego CA 92107 ph: (619) 223-9218 fax: (619) 223-9252, email arolfesw-center.org.