Federal agencies are applying a double standard in their enforcement of regulations under the Endangered Species Act, according to County Administrator Chuck Huckelberry and environmental groups.
In letters to Republican Senators John Kyl and John McCain and Rep. Jim Kolbe, R-Ariz., Huckelberry complained of "the unequal application of policies and rules that over time will cause two different projects, one private and one public, with similar impacts, within 1,000 feet of one another, to have entirely different mitigation impacts."
Similarly, last month, Tucson Audubon Society Executive Director Sonja Macys also complained that "the Endangered Species Act is not being applied in an equitable and fair way.
"Special interests and for-profit ventures are allowed to circumvent the nation's laws while all other private taxpayers and public entities must comply," she said.
To show its displeasure, the Arizona Audubon Council in July announced it was returning $8,250 it received by way of the Army Corps of Engineers as required mitigation from New World Homes.
"Environmental groups are constantly looking to find funding sources to support their work and many groups accept mitigation funds to carry out their important conservation projects," said Carolyn Campbell, executive director of the Coalition for Sonoran Desert Protection. "The coalition applauds Audubon for having the foresight to realize that although the projects they are conducting on their lands have incredible value for the species involved, the tradeoff is simply too great in terms of the egregious actions taken by New World Homes in dealing with owl issues and the Endangered Species Act."
The mitigation money was for channelization work New World was doing in a wash in conjunction with its plans for development of a 40,000 square-foot office complex on just under five acres at Thornydale and Hardy roads known as Sunnyvale Plaza. Grading has begun at the site and construction is scheduled to start next year.
In contrast, as mitigation for its destruction of nearly nine acres of critical habitat on Thornydale adjacent to the New World property, Pima County was required to purchase and set aside as open space 36 acres of similar habitat.
"Apparently, for whatever reason, the U.S. Fish and Wildlife Service was not asked to consult on the Sunnyvale development project, even though it is an area of high conservation value according to the draft recovery plan for the endangered ferruginous pygmy owl and was formerly critical habitat until the designation was remanded back to the Federal District Court," Huckelberry wrote to members of Arizona's congressional delegation.
"It is highly probable that the property will be critical habitat again when the Fish and Wildlife Service redesignates such due to the known location of pygmy owls in the Northwest part of the Tucson metropolitan area."
Huckelberry added: "Of even greater concern is the fact that the private property may reduce the benefit of the proposed mitigation property being acquired by Pima County, thereby making our mitigation investment less effective.
"In summary, it would appear that the private developer in this case has received favorable treatment as opposed to the public with regard to the Thornydale project," Huckelberry wrote. "Obviously we intend to fully comply with the Endangered Species Act, but we want that act applied equitably to all parties, whether they are private or public sector."
Macys of the Tucson Audubon Society contended New World should have been required under the Endangered Species Act to consult with the Army Corps of Engineers for a permit under the Clean Water Act, with the Environ-mental Protection Ag-ency for a stormwater discharge permit and with the Fish and Wildlife Service to ensure compliance with the Endangered Species Act as it relates to the pygmy owl.
Both the Tucson Audubon Society and the Coalition for So-noran Desert Protect-ion have acknowledged New World's Clean Water Act and EPA compliance but are critical of New World's failure to consult with the Fish and Wildlife Service and of the frequent incidents in which the Corps of Engineers has failed to consult with the service.
The Corps of Engineers had determined that New World's development would have no impact on the pygmy owl, but in a response to Huckelberry's letter earlier this month the Fish and Wildlife Service indicated it didn't agree and recommended consultation between the two agencies regarding its impact determination. There has been no response from the Corps of Engineers.
The lack of communication among federal agencies has been a major concern of environmentalists for some time, as illustrated by pending suits brought by the Defenders of Wildlife and the Center for Biological Diversity against the Corps of Engineers and the EPA for permits they issued without mandating consultation with the Fish and Wildlife Service.
In regards to the differences in how Pima County was treated vs. the mitigation required of New World, Robert Dummer, spokesman for the Corps, said a stormwater and wash infill permits were issued to the developer because the work it was doing impacted less than five acres and was not subject to the Endangered Species Act.
The Sunnyvale site was within critical owl habitat at one time, but is no longer because of the action taken by U.S. District Judge Susan R. Bolton in September 2001 when she removed the pygmy owl habitat label from 260,000 acres in Pima County but upheld the listing of the owl as an endangered species. Bolton also directed the Fish and Wildlife Service to reconsider reimposing the designation after investigating further the economic impact the designation has had.
The ruling was in response to a lawsuit brought the previous year by the Southern Arizona Home Builders Association and other business groups seeking a dismissal of the 1999 designation of critical habitat by the Fish and Wildlife Service and the 1997 listing of the owl as endangered.
Bolton agreed the Fish and Wildlife Service didn't provide sufficient data on the economic and other impacts of critical habitat determination. A study that will include these impacts is scheduled to be completed by April 2003.
In the case of Pima County, Dummer said, the roadwork it was doing on Thornydale had a far larger impact on critical habitat than the Sunnyvale project. And although both projects were in critical habitat before that designation was stripped, New World decided to gamble that it could get its wash improvements done before critical habitation designation was re-established, whereas Pima County decided not to take that risk and incur additional liability for impacts caused by the Thornydale work by consulting with the Fish and Wildlife Service.
Terry Klinger, New World Homes president, blamed Huckelberry for putting the county in a position where it had to give up the 36 acres worth between $2 million and $3 million for the nine acres being disrupted by the Thornydale project.
Klinger said Huckelberry appeared to be back pedaling with his protest to congressional leaders from his concessions to the Fish and Wildlife Service, made, according to Klinger, because of the past transgressions on Thornydale.
"The fact of the matter is, the county didn't have to give up the 36 acres," Klinger said. "They're the ones responsible for the disparity. No federal agency required any consultation. The county volunteered and Fish and Wildlife was happy to accept the offer," he contended.
Sherry Barrett, assistant Southwest area coordinator for Fish and Wildlife, disagreed with that assessment. She explained that while critical habitat designation had been removed from the Thornydale road work site, its impact on the owl had to be addressed because owls had been seen in the area.