The region’s Multiple Species Conservation Program, which I wrote about in my story today about the decline of the county’s burrowing owls, offers some legal protection to the tiny owl.

It also allows owls to be killed. Here’s how.

When construction happens and may impact an owl, the developer is required to avoid that impact (meaning construction atop the owl’s home). But that requirement has a caveat. Impacts must be avoided only to the “maximum extent practicable.” Meaning that if it isn’t practical, you don’t have to do it.

That legal phrase — “maximum extent practicable” — has been derided by a federal judge who has heavily criticized the habitat plan. U.S. District Judge Rudi Brewster wrote in an October 2006 ruling that those three words were a “malleable standard … (that) virtually guarantees development.”

Brewster made his ruling in response to a lawsuit filed by a coalition of environmental groups, who’d protested that the phrase allowed endangered species found in vernal pools, a rare local habitat, to be improperly impacted.

David Hogan, conservation manager of the Center for Biological Diversity, the lead plaintiff in that suit, said it would be more difficult to file a similar suit protesting the owl’s treatment, because it is not listed as an endangered species.

“A species that is listed is treated much more seriously and is more likely to receive better protection than a species that is not,” Hogan said.


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