One Big Litter Box

REVIEW SUMMARY
What. Panther habitat costs spread wide and deep.
Issue. Will a required economic study help defeat the Panther habitat lawsuit?
Impact. Critical habitat designation on top of other burdens could cripple the region's economy permanently.

A couple of hundred large cats could yet doom Florida's economic future.

Property owners, builders, developers and local governments would face prohibitive expenses if the federal government is forced to designate 3.1 million acres of Southwest Florida critical habitat for the Florida panther.

While that is an area nearly the size of Connecticut, environmentalists appear to want much more.

Roughly 1.1 million acres is privately held, according to The Conservancy of Southwest Florida, based in Naples and led by Andrew McElwaine.

A chunk of that private land is planned for future development.

But much is agricultural land already under threat from a different lawsuit by environmental groups creating controversial nutrient standards for surface water. Those standards are set to be put in place beginning in October, the result of environmental groups, including The Conservancy, suing the U.S. Environmental Protection Agency.

The EPA ultimately agreed to settle the case by proposing restrictive criteria that critics claim are impossible to meet with current technology. Agriculture Commissioner Charles Bronson says the new standards are “dangerous” and threaten the state's $111 billion agriculture industry.

In February, a coalition of environmental groups led by The Conservancy and the Sierra Club, filed suit in federal court in Fort Myers against the U.S. Fish and Wildlife Service and the U.S. Department of the Interior. The 35-page lawsuit is the result of the Fish and Wildlife Service's decision not to agree to designate the area a critical panther habitat, as the environmental groups' requested in 2009.

“Designating critical habitat for the Florida panther will have huge economic impacts,” says attorney Douglas Rillstone, an environmental law expert and partner with Broad and Cassel in Tallahassee. Rillstone specializes in federal and state natural resources regulation, and chairs the firm's land use and environmental law practice group.

Property owners' representatives in Southwest Florida have already begun discussions with Rillstone about the designation's potential effects on their land, but he has not yet been retained, he says.

Rillstone also sees the bigger picture. The designation combined with numeric nutrient criteria, new stormwater regulations and other regulatory and economic issues tied to the recession, creates a “perfect storm” for the already hard-hit region.

In aggregate, costs could run into the tens of billions of dollars if an economic study of the critical habitat designation for the California gnatcatcher offers clues. The cost to developed land in the California study averaged $150,000 an acre, but exceeded $400,000 an acre in some areas.

That gnatcatcher study conservatively puts the total economic cost to the Southern California economy in a range of $4.6-$5.1 billion in direct costs for a 17-year period through 2020. While both areas include prime real estate, the area the small bird's habitat covers is less than one-sixth the size of the proposed panther habitat.

And environmental organizations' scientists are already scouting out even more land north of the Caloosahatchee River in Gulf Coast counties and also further inland.

Jumble of panther numbers
In fact, the environmental group would like to have enough land to accommodate at least 240 panthers to guarantee long-term survival. Based on panther range data cited in a recent study, it adds up to more than 15.9 million total acres needed, or nearly half of Florida. That's 10 million more acres than environmentalists admit they're after — a very big, expensive litter box to be sure.

The state already has about 9.4 million acres of public and private conservation land — more than 27% of the state. “We don't need to acquire any more land,” says state Rep. Trudi Williams, R-Fort Myers. “It's basically silly” says the chairman of the House agriculture and natural resources policy committee, commenting recently about the governor's proposal to put $50 million back in the budget for the state's conservation land buying program.

Yet, one 2006 study (“An Assessment of Habitat North of the Caloosahatchee River for Florida Panthers”) shows eight “panther habitat patches” in Central and South Florida all connected by wildlife corridors from Miami-Dade to as far north as Hillsborough, Polk and Orange counties. The areas north of the river around Avon Park, Duette Park, Fisheating Creek, and Babcock Ranch total 2.8 million acres.

Currently, most of the 100 or so panthers roaming the region occupy about 2.3 million acres south of the Caloosahatchee River, mostly in the Everglades and Big Cypress National Preserve, on other public conservation lands.

At the press conference in Sarasota Feb. 18 announcing the lawsuit, a Sarasota County parks staffer who was an eyewitness to a recent panther sighting in southeast Sarasota, held up a photo and a cast of a paw print to prove that a male panther was seen on county parkland. The Sierra Club's national president, Frank Jackalone, then admitted they will be looking at designating critical habitat north of the Caloosahatchee River, too.

The Conservancy's McElwaine told reporters male cats require 180,000 acres, though a recent study says males only need an average of 95,000 acres, and females less than 37,500 acres.

Interestingly, a 2006 study identifies 2.3 million acres as “lands essential to the long-term viability and persistence of the panther in the wild,” according to a report prepared by The Florida Panther Protection Program Technical Review Team. That's about what they have now: 2.27 million acres.

Known as the Kautz study, after its author Randy Kautz, it adds another 27,883 acres as a “Dispersal Zone” to facilitate future expansion north of the river. And that's on top of more than 812,000 acres identified as a “Secondary Zone” contiguous to the primary zone, “currently used by few panthers, but which could accommodate expansion of the panther population south of the Caloosahatchee River.” (See map)

Property rights battle
For property owners, the impacts of critical habitat designations are judged project by project, according to the California gnatcatcher economic impact study prepared for the California Resource Management Institute.

Three types of impacts explained in the report are out-of-pocket expenses to the developer, completion delays, and reductions to a project's output. The ultimate bearers of the costs are consumers paying higher housing or commuting expenses and taxpayers paying more for permitting any government projects.

Brandon Middleton, an attorney with the Pacific Legal Foundation's California office, says, “It can sometimes make land development infeasible economically. It can take so long it can sometimes make the land worthless.”

To avoid such a scenario, the quality of the economic impact study required for critical habitat designation is vital. Because the designation process is the only time in the Endangered Species Act when economics may be considered.

Those economic studies must follow specific federal requirements contained in the act and court decisions.

However, the method used to estimate economic costs “is seriously lacking on both conceptual and empirical grounds,” according to a study quoting David Sunding, director of the department of agricultural and resource economics at the University of California, Berkeley, and was a senior economist in the Council of Economic Advisors during the Clinton administration. Sunding also authored the gnatcatcher economic study.

Also important for property owners and local governments to realize is that in addition to critical habitat designation reducing property value, there is little recourse. Florida's Bert J. Harris property rights law applies only to state and local regulations, not federal regulations.

Combined, the two new layers of federal regulations could leave property owners with equally unattractive choices for using their land.

The new EPA water quality standards would likely put pressure on farmers to give up on agriculture. At the same time, added federal permitting requirements to comply with the Endangered Species Act could inflate infrastructure and other development costs.

It adds up to expensive choices for landowners and fewer tax dollars for local governments facing big budget deficits again this year.

“Frankenstein big cat”
There's also some grand irony in this cat-bites-man drama.

First, the collaborative approach for panther protection is moving forward in a public-private partnership involving the Fish and Wildlife Service, property owners in east Collier County, and the Florida Wildlife
Federation, Defenders of Wildlife, Audubon of Florida and the Collier County Audubon Society. These four groups wrote in a November letter to Kenneth Salazar, secretary of the U.S. Department of the Interior, that this “path ... will ultimately provide greater conservation benefits” for the panther.

The Fish and Wildlife Service supports implementing the Florida Panther Recovery Plan and evaluating the proposed Florida Panther Protection Program designed to protect 150,000 acres in South Florida.

Second, all this attention is being brought to bear for an animal of questionable genetic make-up.

Robert “R.J.” Smith, director of the Center for Private Conservation, wrote in an email response about the lawsuit and the mixed breeding of panthers and mountain lions:

“What are we achieving here? We've created an artificial Frankenstein big cat to use to attempt to halt economic growth and development across 3,000,000 acres of Florida, ... in which this artificial hybrid takes precedence over the life, liberty and property of people.”

Smith also adds, “Many critics of the ESA [endangered species act] view it as having been from the very beginning little more than a cost-free national land-use control for the Greens.”

But it looks like it will be very expensive for everyone else.

Jay Brady covers state and local government issues. He can be reached at {encode="[email protected]" title="[email protected]"}, or at 941-362-4848.