An article Sunday incorrectly identified Eric R. Glitzenstein. He is an attorney with the law firm Meyer & Glitzenstein, which represents Defenders of Wildlife. (Published 11/23/99)
The Delmarva fox squirrel hops languorously about Maryland's Eastern Shore, a slow-footed creature with an unfortunate tendency to become road kill.
This trouble would be just a curiosity but for two things. The big, silvery squirrel is an endangered species. And suburban sprawl is thrusting into its territory, consuming forest and bringing potentially squirrel-flattening traffic.
Given those colliding realities, is it acceptable if a few squirrels die so Mareen Waterman may build 16 luxury waterfront homes on a delightful peninsula about six miles east of the Chesapeake Bay Bridge?
Federal wildlife officials say the answer is "yes," as long as Waterman preserves woods nearby where squirrels can live.
Their stance enrages some environmentalists, who call it emblematic of Clinton administration reluctance to protect endangered species.
But if the U.S. Fish and Wildlife Service has its way, the deal it struck on behalf of the Home Port development in Grasonville will stand as a model for managing endangered species in a region stretching from Virginia to Maine.
"An excellent process," says John Wolflin, the wildlife service supervisor in charge of drafting the Home Port deal. "It's good for the landowner. It's good for the squirrel. And it's good for the Endangered Species Act."
Critics say Waterman's 56-acre project in Queen Anne's County eats into crucial habitat for a species with precious little territory left to lose. The fox squirrel survives in 10 percent of its former range. Farming, timbering and human settlements long ago gobbled up the mature forests where it thrived.
In addition to generating traffic, critics say, Waterman's homes would bring dogs and cats likely to chase and sometimes catch fox squirrels. At three pounds, the rodent is a little too heavy to leap nimbly from tree branch to tree branch, and it spends more time on the ground than the common gray squirrel that is roughly half its size.
All this makes the Home Port plan "a blatant violation" of the Endangered Species Act, says Michael Senatore, an attorney for Defenders of Wildlife, a private nonprofit group suing to overturn the Home Port deal. No hearing date has been set for the lawsuit in U.S. District Court in Washington.
Waterman, reluctantly, has become the first private landowner in the Northeast to take part in a Clinton administration program aimed at defusing opposition to the Endangered Species Act.
The law forbids harming nearly 1,200 types of plants and animals. Property-rights advocates say the act can prevent landowners from using their tracts, as when logging was halted in the early 1990s in the Pacific Northwest to protect the spotted owl.
To head off such controversies, the Clinton administration seized upon a little-used legal mechanism that allows activities such as farming, timber harvesting and construction, even if endangered species might be harmed.
In return, landowners draw up so-called habitat conservation plans that detail how the damage will be mitigated. For instance, a developer could conserve more acres than a project uses.
Only 14 such plans were approved in the 10 years after Congress created the program in 1982. Since 1992, the Clinton administration has approved 260 such plans that cover 20 million acres of land, mainly in Western states.
"It's a way to show the endangered species act works for people, too, as well as species," said Nancy Gloman, chief of the Wildlife Service's endangered species division.
Some environmentalists say plans have been formed without sufficient public input or scientific information. Others are more caustic, saying the program cuts ill-advised deals.
"The wholesale taking of endangered species is authorized in exchange for woefully inadequate . . . plans," said Defenders of Wildlife President Eric R. Glitzenstein in testimony before Congress in July.
The Fish and Wildlife Service says it wants to approve an additional 300 habitat conservation plans by 2002. At least 10 of those are being negotiated in the Northeast, where Waterman's project serves as a bellwether.
Waterman bought the old farm destined to become Home Port in 1991. He said he did not know fox squirrels lived on the spit of land that lies between arms of Winchester Creek, a tributary of the Chester River.
John E. "Ned" Gerber III, who lives across Winchester Creek and is party to the federal lawsuit, says he knew all along that fox squirrels were there. Around New Year's 1997, he shot videotape of a fox squirrel hopping about near Home Port's entrance and sent the tape to federal officials.
The wildlife service last year invited Waterman to devise a habitat conservation plan. Waterman acceded, in part, he said, for fear of criminal penalties he otherwise could face if a squirrel died at Home Port.
His plan called for cutting a half-acre of forest and permanently conserving 32 of the site's 56 acres--roughly the proportions envisioned today.
Nobody is sure how many fox squirrels live at Home Port. Last fall, Waterman hired trappers who captured, tagged and released five squirrels.
Federal biologists combined that information with data about fox squirrel deaths in Eastern Shore wildlife refuges. They concluded that vehicles driving around Home Port can be expected to kill 2.63 to 11.23 fox squirrels over 50 years.
They rounded the number up to 15 to account for habitat degradation and predation by pets. Then they asked Waterman to outline mitigating measures.
He agreed to a 15 mph speed limit to lessen the chances of a vehicle hitting a squirrel. He said he would warn homeowners that squirrels are present. He will leave untouched a 150-foot conservation strip that begins in woods where squirrels nest.
The resulting waterfront lots are unlikely to have a view of the water from their first floor, since thick shoreline brush is in the conservation area and may not be cut.
Waterman also offered for permanent conservation 31 acres he owns about three miles from Home Port, and hired trappers to show there are squirrels there, too.
Waterman estimates he has spent nearly $500,000 on fees for trappers and consulting biologists, and in interest payments as his project is delayed. The experience has left him no fan of the Endangered Species Act.
"This is environmental terrorism, if you want to call it that," Waterman said, adding that he considers his legal travails a case of NIMBYism, or not-in-my-back-yard sentiment about development, by Gerber.
Gerber, a biologist who is president of a local conservation association, said he has long worked to preserve the squirrels' range and was astounded to see habitat jeopardized right next door.
He said Waterman could end the controversy by building Home Port's main road farther from squirrel-sheltering woods and placing its houses close together to minimize disturbances to the landscape.
Federal officials should demand such changes, Gerber said.
"The precedent this sets is terrible," Gerber said. "When the day is done, the Delmarva fox squirrel will have slightly less quality habitat than it did before this thing started."
Delmarva Fox Squirrel
Federal wildlife officials have given approval for a developer to build 16 waterfont homes near Grasonville -- a move that has upset environmentalists, as the area being developed provides habitat for the endangered Delmarva fox squirrel.
A distinctive look
The Delmarva fox squirrel is distinguished from other squirrels because of its large size (up to three pounds) and unusually fluffy tail. Fox squirrels have sliver-gray fur with white underbellies and a pronounced black stripe on the outer edge of their tail.
At one time, fox squirrels lived in southeastern Pennsylvania, southern New Jersey and the entire Delmarva peninsula. The current population is confined to four Maryland counties: Queen Annes, Talbot, Dorchester and Kent. This represents less than 10 percent of the species' historic range.
Listed as federally endangered since 1967, much of the fox squirrels' habitat has been lost to timber harvesting, the conversion of forested land into farms, housing developments, roads and commercial property.
Predators include red and gray foxes, weasels, minks and eagles. Accidental mortality can be attributed to vehicles or being shot by hunters who mistake them for gray squirrels.
Groves of hardwood or pine trees, small woodlots, agricultural fields.
SOURCES: Chesapeake Bay Field Office, McCrone Engineering/Environmental Sciences/Land Planning & Surveying Construction Services