The first test of San Diego’s Multiple Species Conservation Program came little more than a year after it was passed. Cousins MarketCenters Inc. wanted to build a 453,000 square-foot shopping center and an apartment complex just north of downtown, on 66 acres that were home to more than 60 vernal pools. The developer told the city that it had already invested $25 million in the property, and that preserving all the pools was not economically feasible. So despite environmentalist opposition, he was allowed to bulldoze all but one.

The U.S. Fish and Wildlife Service signed off on the project, saying that, even though most of California’s vernal pools are gone, the development would not jeopardize the endangered San Diego fairy shrimp, which lives only in the vernal pools. The 66 pools the project would destroy covered only one-fifth of an acre, the agency’s biological opinion concluded, although the agency later sent the city a pointed letter expressing “concerns about impact to vernal pools and the lack of avoidance on-site.”

According to the city, the project is merely “infill” development of a site already surrounded by an arterial road, a freeway, a small commercial center, a mobile home park and a community college campus.

The city called the pools “low to moderate quality” and said the developer would buy or create “high quality” vernal pool habitat to replace them, three times the size of what would be destroyed. But Ellen Bauder, a San Diego State University research professor and a leading expert on vernal pools, had many doubts about the deal. She walked the Cousins site on April 15, 1998, and described the pools as “ponding water well,” and suffering at most modest disturbance. She observed fairy shrimp, mosses, ferns and flowering plants, as well as birds and a coyote: “Clearly, this site is sufficiently large and undisturbed to sustain an array of plants, animals and temporary wetlands.”

The city-approved mitigation plan, in contrast, was “entirely inadequate,” she said. One replacement site was only five acres and surrounded by development: “Upland shrub cover is severely diminished. We saw no evidence of vertebrates. Weeds were a major component of the vegetation.”

The replacement site did support San Diego mesa mint, a federally endangered plant, but even with restoration, the site will be less biologically rich than the area slated to be bulldozed, she wrote the city in July 1998: “It is the quintessential postage stamp preserve with limited potential for long-term viability of the pools and the plants and animals they sustain.”

Environmentalists united in opposition to the Cousins project, and filed suit to try to stop its construction. But the wheels of government turned in Cousins’ favor. In summer 1998, the city approved the new Mira Mesa Market Center, and a judge refused to halt its construction.

Today, the site is home to Ross Dress for Less, Barnes & Noble, Albertson’s, Starbucks and a host of other chain stores and restaurants that surround a huge parking lot on the property’s north side. On the property’s southern edge lie 422 tile-roofed apartments.

The sole remaining vernal pool fills a triangular-shaped parcel below the apartment complex, separated from the parking lot by a black iron gate. There’s a bench nearby, but no signs explaining the pool’s significance. “There should be a little box out here that says, ‘Fairy shrimp food, put a quarter in,’ ” says former Center for Biological Diversity activist Allison Rolfe, laughing, as she stands by the pool with David Hogan of the center. They say the Cousins case shows a fundamental flaw in the conservation program’s “vague, discretionary language.” “It can’t protect imperiled species if it allows something like that at all,” says Rolfe, now director of San Diego Baykeeper, another environmental group.

But apartment complex residents John Singelman, a student at neighboring Miramar Community College, and his girlfriend, Stephanie Martin, don’t understand the fuss. They could understand saving mountain lions and coyotes, they say, “but not fairy shrimp.”

“We were actually wondering why they were leaving that dirt, as opposed to putting in a grass lawn,” Martin says. “I thought it was ugly as sin.’’