Endangered Species Act Amendments:
Habitat Preservation

Section Table of Contents

Habitat Preservation

Current Law
S. 1180

Current Law

Under current law, habitat is protected in several ways. It is protected directly through designation of critical habitat and acquisition of habitat; and indirectly through issuance of incidental take permits, cooperative agreements with states, and the inclusion of significant habitat destruction within the take prohibitions through the definition of "harm" contained in current regulations.¹⁵

The ESA provides for the designation of critical habitat at the time of listing. This designation may affect what actions are allowed and how actions are structured, modified, or mitigated as a result of § 7 consultations involving federal actions or non-federal actions with a federal nexus. Designated critical habitat may also factor into an evaluation of "harm" under the take prohibitions of § 9, by possibly maliing it easier to demonstrate the extent of injury and disruption required under the implementing regulations.

Under § 4(a)(3) of the ESA, "to the maximum extent prudent and determinable," the Secretary shall designate critical habitat for species being listed as endangered or threatened at the time of listing.¹⁶ Under § 4(b), the Secretary is to designate habitat after considering and weighing various factors:

The Secretary shall designate critical habitat, and make revisions thereto under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

Under current § 4(b)(8), whenever the Secretary publishes a listing regulation that includes or revises critical habitat, the summary accompanying the regulation shall, "to the maximum extent practicable, also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such habitat, or may be affected by such designation." This provides some guidance to landowners as to when they might need to obtain a permit under § 10 for harmful activities.

Section 10 authorizes various exceptions to the § 9 prohibitions that otherwise would apply. Habitat may be protected through the issuance of "incidental take" permits to non-federal persons under § 10(a) of the Act. This allows otherwise prohibited takes of listed species if the takes are incidental to otherwise lawful activities and the applicant submits a conservation plan that meets the requirements of that subsection (usually referred to as a "habitat conservation plan" or HCP). To approve a conservation plan and issue a § 10 permit, the Secretary must find that: the taking will be incidental; the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; the applicant will ensure that adequate fluiding for the plan will be provided; the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and any additional measures required by the Secretary will be met The Secretary must also have received whatever other assurances the Secretary requires that the plan will be implemented.

Although the § 10(a) permit process was little used in the past, many more permits have been issued recently. Several policies were put in place administratively that facilitate the § 10 process.s "Safe Harbor" allows a landowner to improve habitat and later return to the previous level without penalty. "No Surprises," allows the Secretary to negotiate agreements to which (basically) new requirements cannot be added without the landowner's consent, although the government in some circumstances can intervene at its own expense. ¹⁷ Other measures provide small landowner exemptions and streamlined processes. Proponents assert that these measures help to remedy the current disincentives that can discourage owners from maintaining or restoring habitat. Opponents question whether the measures are authorized by current law and whether they adequately protect listed species. The "no surprises" policy, in particular, has been questioned because of the difficulty in crafling conservation agreements, e.g. how to balance the desirability of longterm agreements that would provide more accurate estimates of the amount and quality of habitat over a meaningful length of time versus the desirability of having the agreements be short enough to adjust for changed circumstances. Some ecological conditions require a long time to be produced (e.g. late-successional forests), which might argue for a long-term agreement, yet future conditions can be difficult to envision and provide for adequately (e.g. the rapidity with which personal motor vehicles, highways, and suburban sprawl has occurred).

Habitat may be acquired by the government under current § 5. Habitat may also be conserved under cooperative agreements with one or more states under § 6. Lastly, some protection of habitat against significant destruction is encompassed with the current regulatory definition of "harm" as part of the takings of listed species that are prohibited under § 9.

Both bills would build on current law. Both would include at least some versions of the recent administrative changes as new law, and both attempt to build in incentives for private landowners to cooperate in providing habitat for listed species.

See also, Incentives for Private Landowners.

 

S. 1180

 

The Senate bill would affect habitat conservation in several ways. The current provisions on land acquisition would be retained as new § 5A, and § 6 on cooperative agreements with states would also be retained.

Designation of critical habitat. Section 2(c)(2) of the bill (p. 87) would amend § 4 of the ESA to eliminate the current requirement that the Secretary designate critical habitat concurrently with the listing of a species. Under § 3(b) of the bill (p. 123), new ESA § 5(n) would contain the provisions on designation of critical habitat, which would now be done in connection with recovery planning. A recovery team, if one is appointed, would make recommendations for critical habitat and special habitat management considerations to the Secretary. These recommendations would be due within 9 months of a final listing regulation. Then, under new ESA § 5(n)(2) (p. 124), not later than 18 months after the date on which a fmal listing is made, the Secretary, after consultation and in cooperation with the recovery team, would publish a proposed regulation designating critical habitat for a species, with a final regulation to follow within 30 months after listing. Recovery plans are to be developed in cooperation with affected states as well. As a general matter, therefore, designation of critical habitat would be required within 30 months of listing in instances when a recovery plan is prepared If a recovery plan is not developed, the Secretary would be required to publish a fmal critical habitat determination for a listed species not later than 3 years after listing (p. 125). The Secretary may designate critical habitat concurrently with a final listing regulation if the Secretary determines that designation at that time is essential to avoid the imminent extinction of the species.

It is not clear what happens with respect to designation of critical habitat when a state prepares a recovery plan. In developing plans, states would be required to comply with the substantive requirements of recovery plans contained in new ESA § 5(e) (pp. 109-113), but the critical habitat designation provisions would be in new § 5(n) (p. 124), so the extent to which a state would be required to address critical habitat is not clear. It appears that state recovery team planners would make recommendations to the Secretary, who then would make the designation.

The factors the Secretary would consider when designating critical habitat under the new provisions would be similar to those in current law, except that the additional factor of "impacts to military training and operations'' would be required to be considered. The current language on excluding habitat would be preserved.

A new process for petitioning for revision of critical habitat would be provided in new ESA § 5(n)(6) (pp. 126-127). This process would parallel the current process for petitions to list - requiring a finding of whether the petition presents substantial scientific or commercial information indicating that revision may be warranted. Upon making this finding, the Secretary would publish a notice of how the Secretary intends to proceed. A regulation to designate or revise critical habitat would proceed in the same manner as a listing regulation.

Guidance to landowners. Section 2(c)(7)(C) of the bill (p. 96) would strike the current provision that requires guidance for landowners as to what activities might adversely modify habitat of listed species. Perhaps the new provision for a recovery team to recommend areas of critical habitat "and any recommendations for special management considerations or protection that are specific to the habitat" is meant to replace the current landowner-guidance provision. However, there is no requirement for the Secretary to act on recovery plan recommendations, or to include special management considerations and protections in a final designation of critical habitat.

Section 9(c) of the bill (pp. 173-174) would add another type of agreement to § 9 of the ESA to authorize a non-federal property owner to enter into an agreement to identi~ activities of the property owner that will not result in a violation of the taking prohibitions of § 9. However, the Secretary, the Attorney General, or any other person could still begin an enforcement action under § 11. Therefore, these "agreements" are more akin to advisory opinions, although in practice they might carry some weight. These agreements appear to replace the current § 4(b)(8) description of activities that might adversely modify habitat. Note that the current descriptions of activities are necessarily general; whether the Secretary would be able to respond adequately to individual landowners under the new provisions, and do so within the required 90-day period appears doubtful. In addition, landowners might seek these agreements in lieu of submitting conservation plans.

State agreements on proposed or candidate species. Section 2(c)(12) of the bill (pp. 101-102) would amend § 4 of the ESA to add new express authority for the Secretary to enter into agreements with one or more states for the conservation not oniy of listed species (as is permitted now), but also of species that are proposed for listing or are likely to become a candidate species in the near future. Such agreements might address necessary habitat, but this is not expressly stated.

Federal implementation plans. As discussed in Recovery Plans above, under new ESA § 5(1)(2) (p. 117), federal agencies and the Secretary wou1d enter into mandatory recovery implementation agreements, the contents of which, for purposes of the recovery section, would be totally within the discretion of the agency and the Secretary and hence insulated from judicial review. The requirements of current § 7(a)(2) on consultation and avoiding jeopardy also appear not to apply to these agreements and the agreements can include actions by non-federal parties if those actions receive federal approval or funding. Therefore, it is possible that some actions that do not comply with current law might be included in these agreements and be insulated from review. The effects of such agreements on habitat are therefore difficult to assess.

General § 10 provisions. Section 5 of the bill would expand the current § 10 provisions on conservation plans to provide various opportunities for property owners to undertake measures to conserve species. The current provisions of § 10 with respect to listed species would be preserved, and under § 5(a) of the bill (p. 142), the Secretary would be authorized to issue § 10 permits to take species on the high seas as well as within the United States and its territorial waters as is the case under current law. In addition, under § 9(5) of the bill (p. 173), "territorial sea" would be defined to mean the 12-nautical mile maritime zone set out in Presidential Proclamation No.5928, dated December 27, 1988, rather than its current meaning of (generally) three miles. ¹⁸ Given the widely accepted legal meaning of this term, use of a different term such as "maritime zone" in this context might avoid confusion. The new defmition would allow the Secretary to issue incidental take permits for species such as salnion, various whales, birds, and seaturtles in waters for which § 10 permits have not been issued and therefore this language represents a broadening of current applicability.

Monitoring. Under §5(b) of the bill (p. 143), the Secretary would expressly be authorized to require submission of monitoring data. There is no general duty for the Secretary to monitor conservation plans.

Multiple species plans. Section 5(c) of the bill (p. 143), addresses multiple species conservation plans. As discussed above, current law authorizes the Secretary to issue an incidental take permit if the Secretary approves a conservation plan that meets the requirements of the Act. New provisions in S. 1180 would provide that a conservation plan covering listed species could also include -- at the request of the applicant -- proposed, candidate, or "other species" if the Secretary were satisfied that the permit application met the requirements for listed species and the new requirements with respect to any other species. If any of the species covered by the agreement then is listed, a permit would automatically take effect for parties in compliance with an agreement, presumably on the same terms as the agreement.

The first of the new requirements (p. 144) for a multiple species permit would be that the impacts of the plan on "non-listed" species would be "incidental." The term incidental is also used in current § 10(a)(2)(B), where it apparently refers to its use as part of the phrase "incidental to otherwise lawful activity." If that is the sense in which the term is intended in the new requirement, use of the entire phrase could avoid the possibility of the term being interpreted as having its other meaning "of minor consequence."

The next new requirement would be for the applicant, to the maximum extent practicable, to minimize and mitigate impacts. The necessity for this requirement could be questioned to the extent it would apply to "other" species that are neither listed, proposed, nor candidate species, and which may in fact be plentiful.

The Secretary would also be required to find under new § 10(a)(3)(B)(ii)(p.144), that the actions of the applicant with respect to proposed or candidate species, "if undertaken by all similarly situated persons within the range of species, would be likely to eliminate the need to list the species as an endangered species or a threatened species for the duration of the agreement...." This provision appears intended to improve the status of the species in question and to distribute the burden of providing assistance to the species in question among all the landowners available in an area. On the one hand, this would ensure that no one owner would carry a disproportionate share of the beneficial actions that are needed. On the other hand, absent some assurance that other landowners would also participate, it is not clear whether this approach would afford sufficient protection overall, since the penalties of the Act would not apply to takes ofproposed or candidate species until they are listed. Under new § 10(a)(3)(F) (pp.146-147), a § 10 permit would be issued for species included in a multiple-species agreement once those species are listed. Therefore, actions allowed under a before-listing agreement that were premised on other actions hypothetically being taken that might not materialize, would apparently continue to be allowed once the species is listed. Continuation of such actions might become harmful once a species had dropped to the point of needing the protection of the ESA. Perhaps if the benefit of this lesser burden was extended only to those owners participating in area-wide agreements, this might encourage more owners to join in broader, area-wide efforts in order to achieve the least burdensome restrictions for their individual properties. Arguably, such area-wide agreements could provide a more sound basis for post-listing protections, since the commitments by landowners would be actual rather than hypothetical.

Also, depending on the duration of an agreement, these agreements could provide an opportunity to halt the decline of proposed or candidate species, or could result in a drop in numbers of the proposed or candidate species after the end of the term of the agreement.¹⁹ As drafted, there is no requirement that the Secretary take into account the relationship of the duration of the agreement to the likelihood of eliminating the need to list the species, given the actions an applicant seeks to carry out and the conditions likely to exist by the end of the agreement.

With respect to agreements involving non-listed species other than proposed or candidate species, new language (pp. 144-145) would be added as § l0(a)(3)(B)(iv) requiring the Secretary to find that actions taken by the applicant, if undertaken by all similarly situated persons within the range of the other non-listed species, would not be likely to contribute to a determination to list such species for the duration of the agreement. This is similar to the provision discussed above and similar comments can be offered. However, because the species involved may not be in decline, the required level of response under this provision would be merely to avoid contributing to a determination to list the species.

Technical assistance would be made available in new § 10(a)(3)(C) (p. 145) for the development of multi-species agreements and these agreements would be subject to public notice and comment.

Section 5(e) of the bill (p 153) would amend § 10(c) of the ESA to provide for, with the approval of the applicant, public participation in the development of a multiple species conservation plan and permit application. This contrasts with p.143 of the bill which states that the Secretary could approve a qualifying multiple-species conservation plan and issue a permit after notice and opportunity for public comment. Another part of § 5(e) states that if a multiple species conservation plan is developed without an opportunity for public participation, the Secretary should extend the public comment period for an additional 30 days.

Note that the multiple species agreements duplicate the concepts and terms of the agreements for candidate species (which also include proposed species and other species) discussed below.

Low-effect permits. A streamlined process for permits for low-effect activities would be added as new ESA § 10(a)(4) (pp. 147-148). These permits would provide a faster, less expensive process for applicants whose proposed activities would not be likely to have significant impacts. A low-effect permit could be issued if the Secretary determines that the activity will have no more than a "negligible effect, both individually and cumulatively" on the species, "any taking associated with the activity will be incidental, and the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." These permits would require appropriate actions to be taken by the permittee to offset the effect of the permitted activity on the species. Again, it is not clear, especially in this context, whether the term "incidental" is intended to mean "incidental to otherwise lawful activity" or "of minor consequence." The Secretary is directed to develop "model permit applications that will constitute conservation plans for low effect activities." Given the diversity of activities that may qualify for low-effects permits, an alternate approach might simply authorize the Secretary to develop streamlined processes for low-effect activities.

"No surprises" provisions. A new § 1O(a)(5) (pp. 148-149) would enact the "no surprises" concept by requiring each conservation plan developed under subsection (a) of §10 to have a no surprises provision. (Possibly this language should refer to permits rather than plans here.) The no surprises language would provide that a person who has entered into and is in compliance with a conservation plan may not be required to undertake additional mitigation measures for species covered by the plan that would require additional money or the adoption of additional use restrictions on otherwise available land, waters, or "water-related rights" without the consent of the permittee. It is not clear what effect the inclusion of the phrase "water-related rights" would have, and this point is not clarified in the cominittee report^.20 It is possible, for example, that water received under contract from Bureau of Reclamation facilities, which apparently currently can be reduced in times of drought or for ESA-compliance purposes and other reasons under a standard term in such contracts, might not be able to be so reduced.²¹

The language also states (p. 149) that the Secretary and the applicant, by the terms of the conservauon plan, may identify modifications to the plan.or other additional measures that the Secretary may require under extraordinary circumstances, but not at the expense of the permittee. The statutory language does not state that these are the only modifications allowed. It is not clear exactly how the agreements are to anticipate the unforeseen. It appears that these agreed-upon terms could constitute advance consent by a permittee to additional requirements that could be imposed on the permittee under the circumstances articulated in the agreement. It is not clear to what extent the Secretary could impose additional requirements, aside from the terms of an agreement, under which the federal government could implement additional measures at the expense of the government. For example, there is no curtailment of the basic eminent domain authority of the government, under which the Secretary might, for example, condemn an easement in order to accomplish additional protections upon payment of compensation to the landowner.

The possibility that the Secretary could impose additional requirements, as long as the property owner does not pay, is supported by the language creating the Habitat Conservation Insurance Program in § 5(m) of the bill (p. 161). This Program is to finance additional measures "not anticipated and addressed" in § 10(a) plans. Payments may be made to "any party" to a conservation plan under § 10(a). This apparently may apply to the government. The report language does not reconcile the language on the Program that refers to additional unanticipated measures with the "no surprises" provisions that refer to agreed upon modifications in extraordinary circumstances. The report states that the negotiated changes are the "only" modifications allowed.²²

Other issues related to reopening the agreements could arise; if the correct interpretation is that the Secretary could carry out additional conservation measures, but at the expense of the government, how the Secretary would do so, considering private lands are involved is not specifically addressed. Also, it is not clear how much agencies could do to carry out the new responsibilities, given the chronic inability of personnel to complete current responsibilities.

The issue of what changes the Secretary might be able to make under the no surprises provisions is also relevant to how much flexibility the federal government might retain with respect to the management of its own lands - if the federal government cannot accomplish additional protective measures on private lands, even at its own expense, would the federal government be obligated to rely on federal lands more heavily to provide additional conservation measures in case of unplanned impacts and natural disasters?

Revocation. Under § 5(c) of the bill (p. 149), a new paragraph (6) would be added to § 10(a) of the ESA to authorize the Secretary to revoke any permits for excused takes issued under subsection (a) after notice and an opportunity for correction. It is not clear whether a permittee could be charged with § 9 takings during the time allowed for correction of noncompliance, or whether a permittee could only be charged after permit revocation. The revocation provision would apply to all the types of agreements issued under § 10(a) of the Act, but would not appear to apply to similar agreements placed outside § 10(a) such as the safe harbor agreements and possibly the candidate species agreements. Candidate species agreements would be a new subsection (k) to § 10, which placement would seem to indicate the revocation provisions would not apply to them. However, candidate permits would be cross-referenced in § 1 0(a)(l), so possibly the revocation provisions were meant to apply. If the revocation provisions would not apply, it is uncertain what recourse and remedies might be available to the Secretary for non-compliance with the terms of candidate agreements.

Candidate species agreements. Section 5(d) of the bill (p. 149) would add a new subsection (k) to § 10 of the ESA to provide separately for conservation agreements involving species that are proposed, candidate, or "likely to become a candidate species in the near future on property owned or under the jurisdiction of the person requesting such an agreement." Most of the provisions on these agreements would not be a part of current §10(a) where many other new provisions on conservation plans would be placed, including the multiple species agreements that are so similar. Yet, as discussed above, permits issued based on a candidate species agreement once a species is listed, are included in subsection (a). Agreements under this part differ from the new multi-species plans in that they do not involve listed species and they refer to species likely to become candidate species rather than "other species." Since interpretive issues may arise, Congress may decide to consolidate these types of agreements or to provide other clarification. Likewise, since safe harbor agreements and habitat reserve agreements are placed outside § 10(a), it might be helpful to specify which general provisions (such as those on revocation, public participation, no surprises, and rulemaking) apply to which types of agreements under that § 10.

"Safe harbor" agreements. Section 5(f) of the bill (p. 153) would add new subsection (1) to § 10 of the ESA to authorize "safe harbor" agreements. These agreements are similar to the current administrative initiative of the same name. The new statutory language would provide that if a person creates, restores, maintains, or improves habitat, the Secretary shall permit the person to take listed species included in the agreement, incidental to other lawful activities, down to a baseline level that was agreed to in advance. This baseline may be expressed in terms of the abundance or distribution of listed species, quantity or quality of habitat, or other appropriate indicators. The Secretary is to issue standards and guidelines for the development and approval of safe harbor agreements. The bill (p. 155) also would make financial assistance available to landowners in carrying out these agreements. The assistance would be in addition to assistance available under other federal programs, but actions that are otherwise required under a permit, the ESA, or other laws, would not be eligible.

Safe harbor agreements are intended to encourage landowners to provide additional habitat and seem likely to contribute to that result. It is uncertain, however, (whether these agreements are statutory or not) whether it will prove possible to adequately determine baselines and to enforce these agreements. Because the saf~Jiarbor agreements would be located outside § 10(a), it appears advisable to clarify that the Secretary may permit takes of listed species that would otherwise be prohibited under § 9 of the ESA. This language is used in current § 10(a) to make clear that authorized takes are excused under the ESA, and the same language could be used for other, non- § 10(a) permits.

Habitat reserve agreements. Section 5(g) of the bill (pp.156-158) would add a new subsection (m) to § 10 to authorize habitat reserve agreements. These agreements would be implemented through contracts or easements to assist non-federal property owners in preserving and managing suitable habitat for listed species. The Secretary would be required to pay owners for carrying out these agreements unless the activities in question are otherwise required by the ESA. The Secretary would issue standards and guidelines for the development and approval of these agreements. The agreements would include provisions on duration and on specific management measures the owner would implement, the conditions under which the property could be used, and the nature and schedule for payments. It is not clear whether these agreements may authorize "takes" of listed species.

Financial assistance. The bill would authorize $40,833,333 for payments for habitat reserve agreements. (These funds would have to be appropriated.) Section 5(h) (pp. 158-159) would provide additional financial assistance to states and political subdivisions of a state in developing conservation plans under a new Habitat Conservation Planning Loan Program. Section 5(m) of the bill (p. 161), would add a new subsection (n) to § 10 of the ESA to establish a Habitat Conservation Insurance Program that would be available to pay the cost of additional mitigation measures under a § 10(a) conservation plan or a candidate conservation agreement to minimize or mitigate adverse effects that were not anticipated and addressed at the time the agreement was approved. These grants are to be made to any person who is a party to a conservation plan or candidate conservation agreement. Therefore, it appears that these funds may be used to compensate owners who agree to additional measures.

Miscellaneous. Section 5(i) of the bill (p.160) states that nothing in the section requires modification of existing permits and plans. Section 5(j) (p. 160) would require that final rules implementing the amended § 10(a) be completed by not later than a year of enactment after notice and opportunity for public comment.

Section 5(1) of the bill would add details on how the Secretary may issue § 10 permits for scientific purposes. Section 5(m) (pp.161-162) would add a new subsection (m) to §10 to create a Habitat Conservation Insurance Program to finance additional mitigation measures that were not anticipated in either § 10(a) plans or candidate conservation agreements.

Other educational opportunities and technical assistance would be provided under § 7 of the bill.

Report. Section 5(k) (p.160) would require the Secretaries, not later than two years after enactment, to enter into "appropriate arrangements" with the National Academy of Sciences to prepare a report on the development and implementation of conservation plans under § 10(a) of the ESA. Some of the types of conservation agreements are not under §10(a). The report would assess the extent to which plans comply with the requirements of the ESA, the role of multiple species conservation plans in preventing the need to list species covered by those plans, and the relationship of conservation plans for listed species to implementation of recovery plans. This report would be sent to Congress not later than 5 years after enactment.

Advisory "agreements". Section 9(c) of the bill (pp.173-174) would add another type of "agreement" to § 9 of the ESA to authorize a non-federal property owner to enter into an agreement identi~ing activities of the property owner that would not result in a violation of the taking prohibitions of § 9. However, the Secretary, the Attorney General, or any other person could still begin an enforcement action under § 11. Therefore, these "agreements" might be characterized as advisory opinions, although what weight a court might give them is uncertain. These agreements appear to replace the current description of activities that might adversely modify habitat that are described by the Secretary as part of final regulations that designate or revise critical habitat under current § 4(b)(8) of the ESA, which the bill would repeal. Those descriptions of activities are necessarily general. Under the new language, the Secretary would have to respond to many individual landowners within 90 days, which could require large resources. Landowners might seek such agreements in lieu of submitting conservation plans. No consequence is specified if the Secretary does not respond within the 90-day period.

Tax incentives. Related provisions that would provide various tax incentives to persons who execute conservation agreements are contained in a companion Senate bill, S. 1181. The tax advantages would relate to conservation agreements that evidently would be different from those authorized under S. 1180. Whether some of the agreements authorized under S. 1180 could coincidentally qualifyfor the tax incentives is not clear.

Endnotes

15 50 C.F.R. § 17.3 defines harm as: "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." This regulation was sustained by the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).

16 In practice, designation at the time of listing is extremely unusual, possibly due to costs or low agency prioritv. In fact, as of May 31, 1997, only 124 species had designated critical habitat.

17 The Fish and Wildlife Service and the National Oceanic and Atmospheric Administration jointly proposed a "No surprises" rule in response to the March 21, 1997 settlement agreement in Spirit of the Sage v. Babbitt, No. 1:96CV02503 (§)(D.D.C.), 62 FED. REG. 29091 (May 29, 1997). A final rule has now been published at 63 FED. REG. 8859 (February 23, 1998).

18 See, United States v. California, 332 U.S. 19, 33-34 (1947) and sources cited there.

19 For example, if the term of an agreement was short relative to the lifespan of the species involved, existing individuals could live to the end of the agreement term, but there could be a significant drop in numbers of individuals thereafter if habitat was not maintained so as to produce new generations.

20 S. Rep. 105-128 at 33 (1997).

21 See O'Neill v. United States, 50 F. 3d 677, (9th Cir. 1995).

22 S. Rep. 105-128 states at 34: "The bill recognizes that under certain circumstances, conditions may change in such a way as to warrant some modification to the conservation measures under an approved HCP. The Secretary, under the terms of the plan as negotiated by the parties, may only modify the conservation program of an HCP under extraordinary circumstances, but in no instance may the modification require the payment of additional money or the adoption of additional use, development or management restrictions without the consent of the permittee." (Emphasis added.)