Federal Court Decision Will Protect Precious Habitat in the West

Pygmy Owl Habitat to Be Spared from Development

(10/19/1999) - Defenders of Wildlife today hailed a federal court decision that will protect rare pygmy owl habitat in the desert Southwest as a great step in preserving this critically endangered bird. An Arizona district court judge ruled on October 15 that the U.S. Army Corps of Engineers violated the National Environmental Policy Act (NEPA) and the Endangered Species Act by issuing illegal building permits that led to damage of crucial desert washes in southern Arizona. The new ruling prohibits the Corps from issuing any further permits in pygmy owl habitat, and forces urban development in Tucson within pygmy owl habitat to be consistent with Pima County’s effort to achieve sustainable development.

"This ruling is a victory for the pygmy owl and for all endangered creatures in the Southwest," said Rodger Schlickeisen, President of Defenders of Wildlife, which, along with the Center for Biological Diversity, brought the suit against the Corps. "The court has made it clear that the Army Corps of Engineers and developers must consider all of the ramifications of their actions on the land and in the habitat in which they want to build. They can’t just forge blindly ahead while destroying the chances for survival of other creatures."

Urban sprawl in southern Arizona has resulted in the drastic loss of riparian areas, such as washes and streams, and riparian vegetation, both of which are prime habitat for the pygmy owl. The Sonoran desert ecosystem that contains the cacus ferruginous pygmy owl and multitudes of other rare and unique species has been severely impacted by extensive human alteration of the habitat, pushing large numbers of wildlife species to the brink of extinction. The pygmy owl, with perhaps as few as 30 indviduals remaining in Arizona, is considered one of the most endangered creatures in the Unted States.

"We are glad that the Corps will finally have to admit what it already knows," said Bill Snape, Legal Director for Defenders of Wildlife. "They’ve known all along that the cumulative impact of hundreds perhaps thousands of permit authorizations in a region like the Southwest, where riparian areas are so scarce, is too great a risk to ignore."

The Army Corps of Engineers is responsible for issuing permits that allow discharge of fill material into waters and wetlands. Under the Clean Water Act, the Corps issues nationwide permits for certain types of activities, and then authorizes individual projects. However, Defenders charges that by jumping from a national to a site-specific scope, the Corps has overlooked substantial regional effects of permits and their impacts on endangered species and rare habitat. After last week’s ruling, no such auhorizations can be issued until the Corps completes a regional assessment that takes into account the pygmy owl and other imperiled species.

Defenders of Wildlife and the Center for Biological Diversity (formerly the Southwest Center for Biological Diversity) challenged the Corps’ implementation of nationwide permits that authorize bank stabilization projects, road crossings, and discharge of materials that result in the loss of open waters. These permits form the bulk of permit authorizations for new residential and commercial developments, including those in southern Arizona.

"This decision demonstrates that ecological challenges presented by urban sprawl go well beyond the pygmy owl in Tucson or the Endangered Species Act in Arizona. In order to have well-planned development and protect endangered species at the same time, certain natural lands all over the country simply must be preserved," said Snape.

In 1995, the Corps authorized more than 44,000 projects in waters and wetlands under nationwide permits. The Corps based its decision to re-issue the nationwide permits in 1996 in large part on future regional conditions and environmental analyses. Last week, the court relied on the absence of a regionally based, programmatic analysis in finding the NEPA violation.

"The Corps now has before it an excellent opportunity to consider the regional impacts of their permits, and in so doing, a chance to participate with local agencies in the Sonoran Desert Conservation Plan," said Schlickeisen. "This plan is an effort designed to prevent urban sprawl, preserve natural resources and wildlife habitat, and promote recovery of the pygmy owl. This bodes well for helping to protect one of the most endangered species on the endangered species list."

As part of Defenders’ ecoregional conservation program, the organization has taken steps to protect other endangered and rare species in the Sonoran desert, including the flat-tailed horned lizard and Sonoran pronghorn antelope. John Fritschie and the law firm of Meyer and Glitzenstein continue to represent Defenders in this case.



Cat Lazaroff, (202) 772-3270