Center for Biological Diversity warns San Jose and Santa Clara County not to walk away from Habitat Plan

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(Below is a letter from the Center for Biological Diversity warning San Jose and Santa Clara that withdrawing/suspending their participation in the Habitat Plan could result in immediate legal vulnerabilities.  It’s the same issue I warn about in the video above.  -Brian)

August 29, 2011

Santa Clara County Board of Supervisors
County Government Center
Tenth Floor – East Wing
70 West Hedding Street
San Jose, CA 95110

San Jose City Council
200 E. Santa Clara Street
San Jose, CA 95113

Re: Santa Clara Valley Habitat Conservation Plan

The Center for Biological Diversity has learned that Santa Clara County and the City of San Jose
considering withdrawing from participation in the proposed Santa Clara Valley Habitat
Conservation Plan (“HCP”). While the HCP is a voluntary process, the end result is issuance of
incidental take permits pursuant to the Endangered Species Act that allow for lawful
development, growth and maintenance activities that comply with the Endangered Species Act
by adhering to the plan and providing guaranteed conservation measures for endangered and
threatened species.

Santa Clara County and the City of San Jose have indicated that their agencies can still continue
development, growth and maintenance activities on a legal basis without participation in the
HCP. This is incorrect – the County and City cannot lawfully continue projects or policies that
adversely impacted wildlife species or their habitat protected under the Endangered Species Act,
without a lawful incidental take permit. The County and City are currently permitting, funding,
conducting and authorizing activities and projects that adversely affect listed species in violation
of the Endangered Species Act.

The draft HCP prepared by the County and City acknowledges ongoing impacts of such
activities on listed species, and applies for incidental take coverage for these activities for a wide
range of protected species. Given this admission regarding the take of listed species, the County
and City cannot legally continue to permit, fund, conduct or authorize activities that cause these
impacts while walking away from the HCP and refusing to address ongoing Endangered Species
Act violations through a legally adequate, approved HCP and Incidental Take Permit.

We are particularly concerned about ongoing adverse impacts from City and County activities to
listed species that depend on serpentine soil habitat, such as Bay checkerspot butterfly, Tiburon
Indian paintbrush, coyote ceanothus, Santa Clara Valley dudleya, and Metcalf Canyon
jewelflower. The draft HCP acknowledges that nitrogen deposition in Santa Clara County
threatens serpentine grasslands that support numerous listed species, including the threatened
Bay checkerspot butterfly. Emissions from vehicles and other industrial and nonindustrial
sources increase airborne nitrogen, of which a certain amount is converted into forms that can
fall to earth as depositional nitrogen. It has been shown that increased nitrogen in serpentine soils
can favor the growth of nonnative annual grasses over native serpentine species. These nonnative
species, if left unmanaged, can overtake the native serpentine species.

The draft HCP also acknowledges impacts of nitrogen deposition on non-serpentine habitat by
resulting in the displacement of native forbs in over 300,000 acres, or 60% of the study area. The
vast majority of the area considered in the HCP, especially the highly-vulnerable serpentine soil
habitats, is subject to current impacts from activities permitted, funded or authorized by the
County and City that result in harmful nitrogen deposition. While some emissions come from
other areas, the draft HCP acknowledges that a substantial portion originates from within the
study area. While even minor impacts to listed species may constitute violations of the
Endangered Species Act, the City of San Jose’s contribution alone is significant, and Santa Clara
County as a whole consumes power, generates traffic, and makes land use decisions that also
increase nitrogen deposition.

Section 9 of the ESA specifically prohibits the “take” of a listed species, 16 U.S.C. §
1538(a)(1)(B), a term broadly defined to include harassing, harming, pursuing, wounding or
killing such species, 16 U.S.C. § 1532(19). The term “harm” is further defined to include
“significant habitat modification or degradation where it . . . injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R.
§17.3 “Harass” includes any “act or omission which creates the likelihood of injury to wildlife
by annoying it to such and extent as to significantly disrupt normal behavior patterns which
include, but are not limited to, breeding, feeding, or sheltering.” Id. The ESA’s legislative
history supports “the broadest possible” reading of “take.” Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687, 704-05 (1995). The take prohibition applies to
any “person,” 16 U.S.C. § 1538(a)(1), state agencies, cities, and counties, 16 U.S.C. § 1532(13).
The ESA further makes it unlawful for any person to “cause to be committed” the take of a
species. 16 U.S.C. § 1538(g). Violations of Section 9 are enforceable under the ESA’s citizensuit
provision. 16 U.S.C. § 1540(g).

Courts have repeatedly held that government regulations authorizing third parties to engage in
harmful actions can constitute an illegal taking under Section 9 of the ESA. See Strahan v. Coxe,
127 F.3d 155, 158, 163-64 (1st Cir.1997), cert. denied, 525 U.S. 830 (1998) (state agency caused
takings of the endangered right whale because it “licensed commercial fishing operations to use
gillnets and lobster pots in specifically the manner that is likely to result in violation of [the
ESA]”); Defenders of Wildlife v. Administrator, Envtl. Protection Agency, 882 F.2d 1294, 1300-
01 (8th Cir.1989) (federal agency caused takes of the endangered black-footed ferret through its
“decision to register pesticides” even though other persons actually distributed or used the
pesticides); Loggerhead Turtle v. City Council of Volusia County, 148 F.3d 1231, 1253 (11th
Cir. 1998) (county’s inadequate regulation of beachfront artificial light sources may constitute a
taking of turtles in violation of the ESA).

The Center submits this letter to encourage Santa Clara County and the City of San Jose to meet
their responsibilities. There are currently impacts on endangered species caused by activities
permitted, funded, conducted or authorized by the County and City – this is not just a matter of
future permits. Failing to obtain legal authorization for take of listed species opens the agencies
to liability from enforcement actions by federal agencies and environmental organizations, which
have standing to enforce the Endangered Species Act to protect listed species and their habitat.
Participation in the Santa Clara Valley HCP is a common-sense process to bring the agencies
into compliance with the Endangered Species Act while allowing well-planned development,
growth and maintenance activities to go forward and at the same time provide for the
conservation and recovery of the Santa Clara Valley’s unique endangered species.

Sincerely,
Jeff Miller
Conservation Advocate

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