Developers Await Federal Word on the Fate of a Bird : Gnatcatcher: California denied songbird protection, so U.S. Wildlife Service must make life-or-death decision.

Round one is over. But don’t count out the California gnatcatcher just yet.

The tiny bird was denied state endangered-species protection last week, but now the spotlight shifts to a far bigger arena--Washington, D.C.

Federal wildlife officials are expected to make a decision within three weeks that will determine the fate of the 4-inch-long songbird, a Southern California native that lives in the region’s coastal brush.

Petitioned a year ago by environmentalists, the U.S. Fish and Wildlife Service has until Sept. 21 to decide if the gnatcatcher is threatened with extinction and should be added to the national endangered species list. The agency has several choices: It can reject listing as unnecessary, it can conclude that it is warranted and initiate a yearlong process of public review, or it could even invoke a rare emergency listing.

Although federal officials have remained tight-lipped for months, experts say the most likely choice is the middle one. Given the extraordinary potential consequences of the decision, many speculate that it will likely be made at the very top, in the office of President Bush’s secretary of the interior, Manuel Lujan Jr.

One federal wildlife official who asked to remain anonymous said that the scientific evidence to support listing is “overwhelming,” but that political influences in the Interior Department may overrule biology.

Environmentalists say that Southern California developers exercise considerable influence in Washington and that they worry that builders have pulled out the stops to oppose designation for the bird, since the decision could disrupt billions of dollars in proposed construction projects.

The Irvine Co., Santa Margarita Co. and Lusk Co. in Orange County are among the developers and builders who have written to the Interior Department. Twelve members of California’s congressional delegation have joined them in complaining about the validity of the scientific data. They warn of the “devastating economic impact” that they say the listing would create.

Listing would be a “tragedy, not just for the thousands of individuals who depend on the jobs and houses generated by the industry but for all the people of California,” Donald Steffensen, executive vice president of the Lusk Co., a national builder based in Irvine, said in a letter to the Interior Department.

But environmentalists, who suffered a major defeat Friday when the state Fish and Game Commission refused to protect the bird, say they’ve just begun to fight.

The Natural Resources Defense Council, one of the nation’s most powerful environmental groups, says it will go to court to overturn the state commission’s decision. In the meantime, supporters remain confident that the federal government will do what California refused to do--grant the gnatcatcher protection under the law.

“This is a disappointing loss in an early skirmish in a long battle,” Jonathan Atwood, an ornithologist who has studied the bird for 10 years and filed petitions with the state and federal government to protect it, said after Friday’s decision. “But I think we will still prevail here.”

In the development community, Southern California landowners and builders believe that they’ve at least gotten a reprieve.

Even if the Interior Department announces this month that the bird qualifies for endangered species status, it would be months before the long process of review and public hearings is concluded. That means it would be about a year before landowners would have to protect the bird, which resides only in Orange, San Diego and western Riverside counties.

An emergency listing, which invokes immediate federal protection, is rare, usually done only if an animal faces an extreme, unusual threat such as disease.

“I think the chances of an emergency declaration is off the table for now,” said Allen Haynie, an attorney representing a coalition of 20 San Diego County developers embroiled in the gnatcatcher issue.

But even without emergency protection, “there is a value in the federal process,” Haynie said. “If there’s the potential for listing looming out there, it motivates (developers). People are going to work hard to try to avoid the need for the ultimate listing.”

The Interior Department is required to make its decision purely on scientific grounds and cannot consider such issues as economic impact. Listing, according to federal law, is necessary if there is “present or threatened destruction, modification or curtailment” of a species’ habitat.

The gnatcatcher lives in coastal sage scrub, a mix of brushy plants found in Southern California’s coastal canyons. The scrub once grew throughout the region, but now two-thirds to 90% of it is gone.

Larry Salata, a federal wildlife biologist who conducted the agency’s three-year review of the gnatcatcher, declined to discuss what recommendation he has made to Washington. But he did say the birds have suffered “a significant population decline.”

The gnatcatcher’s terrain is “one of the most depleted habitats in the United States. . . . Any further losses are a significant threat,” said Salata, who works in the federal agency’s Laguna Niguel field office. According to Atwood’s estimates, no more than 2,000 pairs, and possibly fewer than 1,200 pairs, exist.

The federal wildlife agency, which has solicited the scientific community for data on the gnatcatcher for the past eight years, has reviewed hundreds of letters and documents on the bird. Its file of data about the tiny bird now reaches about 5 feet high.

Other Southern California species made the national list when their habitat losses were similar to those now facing the gnatcatcher. From 500 to 750 pairs of light-footed clapper rails were left--and more than half of their wetlands habitat gone--when the marsh birds were listed in 1973. About 350 pairs of least Bell’s vireos remained and about 90% of the stream-side woodlands they inhabit were gone when that bird was listed in 1986.

If the federal government ultimately declares the gnatcatcher endangered, Haynie said, “it’s a whole new ballgame. Everything could pretty much come to an abrupt halt.”

Federal officials, however, say such concerns are mostly unwarranted. The Endangered Species Act, they contend, has been refined since it was first introduced in the mid-1970s.

“Listening to some of the developers, you’d have to believe that the sky is falling if it’s listed, but I don’t think that will be the case,” said David Klinger, a U.S. Fish and Wildlife Service spokesman at the Portland regional office.

He acknowledged, however, that things would change for the development industry, causing delays in projects and increasing the cost and uncertainty of completing them.

“Certainly it makes things tougher,” Klinger said. “It has injected a new layer of planning and consultation. It changes the way business gets done, but business still gets done.”

Federal law makes it illegal to harm or disturb an endangered species. With that as the backdrop, most public and private construction projects veering into the territory of such a sensitive creature are required to go through reviews with federal wildlife authorities.

Negotiations for this process can last for months, in some cases years.

In Southern California, the U.S. Fish and Wildlife Service has tried to approach such disputes by undertaking broad-based “habitat management plans.”

Before any building can occur on a rare animal’s habitat, the builders must first show they did everything possible to avoid it. Then they would have to get together and compensate for any damage by preserving land and ensuring it is managed as sanctuaries.

“We make conservation recommendations,” Klinger said. “It’s when we roll up our sleeves with the road builders, the dam builders and talk specifics, whether it’s changing the locations of a highway or shifting the construction schedule to accommodate the season changes of a species.”

In Riverside County, for example, federal officials have been working in recent years with public and private officials to set aside space for the endangered Stephen’s Kangaroo Rat, which is being hemmed in by development. Fees on construction are being used to purchase land for preserves.

The federal efforts in many ways mirror a new, experimental conservation plan that state officials are testing to protect the gnatcatcher.

Inspired by an idea first presented by the Irvine Co., Gov. Pete Wilson has drawn together landowners and local officials to set aside preserves that would give endangered species a foothold for survival.

The idea is to get the groups to volunteer to preserve coastal sage scrub, the vegetation found in Southern California coastal canyons that harbor the gnatcatcher and about 40 other plants and animals that also are considered at risk.

Salata said recently that the federal agency supports the governor’s program but that “they are in very early stages of development, and it could be years before these plans are completed, funded and implemented.”

Federal and state wildlife biologists warn that so far, voluntary efforts haven’t worked very well. Salata said city and county governments have almost ignored the bird’s plight until now, despite continue warnings from the federal agency in recent years.

“Zoning is subject to change, and it does not incorporate biology,” Salata said. Also, environmental reviews of developments performed for government agencies “fail in many cases to adequately address gnatcatchers and coastal sage scrub, if they are addressed at all,” he said.

Developers say they support the conservation planning efforts but not the formal listing because they say the law would hinder the process by making it too restrictive and adversarial. Environmentalists, on the other hand, say the law is the only way to ensure that developers will protect the bird.

“This parcel-by-parcel regulation of habitat just does not work,” said Haynie, the lawyer representing San Diego developers. “I think everyone agrees with that. But if a listing occurs, I think you’ll see some genuine hardship cases, people who have spent a lot of money for planning who will just find their projects stopped.”