The region’s first endangered species “Habitat Conservation Plan” is a danger to the Delmarva fox squirrel it is supposed to protect — and a bad model for future plans — say environmentalists who have filed suit on the issue.
The suit was filed in September by Ned Gerber, a wildlife biologist who lives adjacent to the planned development, and an environmental group, Defenders of Wildlife. It seeks to force the U.S. Fish & Wildlife Service to revoke the habitat plan it approved for the 16-house Homeport development in Maryland’s Queen Anne’s County.
Site preparation work on the property could be halted if the U.S. District Court for the District of Columbia, where the case was filed, agrees with the suit’s contention that the USF&WS failed to adequately protect the squirrel when it approved the plan earlier this year.
“By allowing the Homeport development project to go forward, the Fish & Wildlife Service is sanctioning the further destruction of critically important habitat for this species, in direct contravention of their conservation mandate under the Endangered Species Act,” said Rodger Schlickeisen, president of Defenders of Wildlife.
But the project’s developer, Mareen Waterman, defended the plan, which would preserve most of the existing forested squirrel habitat on the 56.6-acre site abutting Winchester Creek, as well a separate 31-acre forested tract.
Defenders, Waterman said, “seems to think they should have the final say on all habitat conservation plans, not just this one. I guess they think they are better scientists than the Fish & Wildlife Service and others are.”
USF&WS officials were reviewing the suit, and could not comment.
In habitat conservation plans, landowners make specific commitments to protect endangered species and their habitats. In exchange, the USF&WS issues an “incidental take permit” exempting the landowner from hefty Endangered Species Act penalties if a protected animal is inadvertently harmed.
While habitat conservation plans — or HCPs — are widely used in the West, the Delmarva fox squirrel plan was the first written in this region. Many expect such plans to become more common here as development increases and the number of species considered endangered continues to grow.
“We need to make sure this sets a good precedent,” said Gerber. “There is a much bigger issue here.”
The Homeport HCP had called for protecting the existing 50– to 150-foot forest bordering the creek, posting 15 mph speed limits signs in the development, erecting signs alerting people to the presence of fox squirrels, and a variety of other actions aimed at reducing risks to the squirrel and maintaining wooded habitat.
In addition, the plan called for placing into a permanent conservation easement a nearby 31-acre forest tract to serve as squirrel habitat.
Defenders and Gerber said the plan is flawed and charge that the USF&WS intentionally withheld the location of the 31-acre mitigation site from them during the comment period earlier this year.
“In blatant violation of the Endangered Species Act, the Fish & Wildlife Service refused to provide the public with the location of the HCP’s off-site mitigation area, information that is crucial to evaluating the adequacy of the plan,” said Defenders attorney Mike Senatore. He said a review of the mitigation site showed it is “about as useful to the Delmarva fox squirrel as downtown Annapolis.”
The suit said it is unknown whether the mitigation site contains fox squirrels, or whether squirrels would inhabit the site in the future because it is not connected by a forested corridor to any known fox squirrel habitat.
Further, they said the site is bordered by a road serving about 75 homes, and other changes in land use are expected that would pose a threat to the squirrels. Any increase in traffic from new development would further isolate a squirrel population in the mitigation site and increase the threat of roadkills, a major problem for the slow-moving fox squirrel. Also, the suit said the site was already protected from development by an open-space covenant.
The suit contends the HCP does not address what will happen if the mitigation site proves to be “entirely useless” to the squirrels.
“If we don’t make the Endangered Species Act work and the HCP process work very well on this property, it sets a very bad precedent for the entire Delmarva Peninsula that other developers will use to destroy fox squirrel habitat without providing decent mitigation areas,” Gerber said.
He said that if existing wooded fox squirrel habitat is allowed to be a mitigation site, HCPs will still result in the net loss of habitat, as no new habitat is being created.
Waterman defended the mitigation site, saying fox squirrels had been observed there in the past, and that it was connected to other forests by hedgerows that would be used by the squirrels because — unlike smaller gray squirrels — they travel mostly on the ground.
He said the existing open space covenant on the property could still have allowed development, as well as the harvesting up to 75 percent of the trees, the operation of all terrain vehicles and even squirrel hunting — all of which would be prohibited under the easement stemming from the HCP.
“Under the easement being done for the fox squirrel, I can’t cut the first tree” on the mitigation site, Waterman said.
He said biologists from both state and federal agencies had reviewed the mitigation site and approved of it.
Waterman said he expected minimal impact on the Homeport project from the suit, and said home construction could begin early next year. “We see it not impacting the development at all, other than running up our legal bills,” he said. “We will have to intervene in the suit as an interested party. But we are building roads and infrastructure and we frankly think the suit doesn’t make any sense.”
Several habitat conservation plans have faced court challenges. In a ruling last year, a district court judge revoked the incidental take permits issued for a project that could have affected Alabama beach mouse habitat because the habitat conservation plan was inadequate.
HCPs have increasingly been touted in recent years as ways to protect species while heading off conflicts with development. More than 240 plans have been developed since 1993, and another 200 are in development. Altogether, they affect more than 19 million acres, mostly in the West.
Some environmental groups, such as The Nature Conservancy, the World Wildlife Fund and the Environmental Defense Fund have embraced the concept of HCPs as a “win-win” solution to conflicts. But others criticize the plans as “sweetheart deals,” which sign off on development projects while offering minimal protection to species.
The Delmarva fox squirrel has declined throughout its range since the region was settled. Once found throughout the native hardwood and pine forests of the Delmarva Peninsula, southeastern Pennsylvania and southern New Jersey, the squirrel today is found naturally in less than 10 percent of its historic range. It was listed as endangered in 1967.