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RS20263The Role of Designation of Critical Habitat
under the Endangered Species Act Pamela Baldwin
Legislative Attorney American Law Division
July 16, 1999Summary
On June 14th, 1999, the Fish and Wildlife Service (FWS) called for public comment on its current procedures for designating critical habitat. In addition, a proposal is before the Senate (S.1100) to move the time at which critical habitat must be designated for a species under the Endangered Species Act (ESA) from being (basically) concurrent with the listing of the species to the time a recovery plan is finalized for that species. This report is written as background for considering the current legislative proposal and the FWS notice and may be updated as circumstances warrant.Introduction On June 14th, 1999, the Fish and Wildlife Service (FWS) in the Department of the Interior published a notice calling for public comment on the current system for designation of critical habitat in order to revise its administrative procedures. The Agency made certain assertions regarding the role of critical habitat designation under the Endangered Species Act (ESA).1 In addition, a proposal currently is before the Senate (S.1100) to move the time at which critical habitat must be designated for a species listed under the ESA from being (basically) concurrent with the listing of the species to the time a recovery plan is finalized for that species. This report2 is written as background for considering both the current legislative proposal and the FWS notice.3 There is general agreement that the protection of the habitat upon which a dwindling species depends is essential to its survival and recovery, but how to go about protecting habitat is a complicated question that the ESA does not address fully. Treatment of habitat issues has been evolving over the years of amendments to the ESA. One of the purposes of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,"4 and the Act protects habitat in many ways, including: under one aspect of the definition of prohibited "take;" and through purchase of lands, cooperative programs with states, consultation on federal actions or actions with a federal nexus, and issuance of incidental take permits based, in part, on habitat protection The Act also authorizes the designation of "critical habitat." Designation serves several important express purposes and also informs other aspects of habitat protection under the Act. Designation of critical habitat mav have fewer consequences than many members of the public seem to believe, but may have more consequences than the FWS asserts. Critical habitat is required to be designated at the time a species is listed under the ESA as endangered or threatened unless designation would not be prudent or the critical habitat is not determinable.5 "Critical habitat" is defined as areas essential for the "conservation" of the species in question. "Conservation" is defined as using all means necessary to bring a species to the point it no longer needs the protection of the Act - i.e. recovery.6 All federal agencies are to use their authorities to conserve species and the ecosysterns upon which they depend.7 Habitat currently occupied by a listed species, "may require special management considerations or protection." This language might have supported direct regulation of lands within critical habitat, but has not been so interpreted. "Unoccupied" habitat is additional suitable area necessary for the conservation of the species.8 The appropriate Secretary9 must designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of designating a particular area as critical habitat. The Secretary may exclude an area from designation if the Secretary determines that the benefits of such exclusion outweigh the benefits of specifying an area as part of critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate the area will result in the extinction of the species concemed.10 Actions of the Secretary in designating critical habitat are judicially reviewable.11
Express Roles of Critical Habitat
The designation of critical habitat plays several express and direct roles under the ESA.1) Designation forces consideration of economic and other effects.
The process of designation of critical habitat requires the Secretary to consider what habitat is essential for conservation of the species and also the economic and other effects of including certain habitat areas. Designation ensures that the needs of the species will be considered at the same time as the consequences of those needs. Alternatives in terms of areas to be included and management actions that might be taken or recommended necessarily are considered.2) The designation process provides guidance for landowners.
Similarly, the process of designating critical habitat will result in publication of guidance to landowners through consideration of the need for "special management and protection" of areas within the designated habitat. There appear to be public misperceptions that designation results in binding restrictions on private lands. In fact, designation forces consideration of all aspects of the habitat needs of a species and generates guidance to landowners, but has not been interpreted as authorizing direct regulation. Guidance typically addresses activities not likely to be viewed as prohibited "takes" and activities regarding which a landower may wish to seek additional guidance to avoid takes.3) Designation requires "consultation" on federal actions
Section 7 ofthe ESA (16 U.S.C. § 1536) requires each federal agency to insure that any action authorized, funded, or carned out by the agency is not likely to jeopardize the continued existence of a listed species or "result in the destruction or adverse modification of.. " critical habitat. (Emphasis added.) If an action is likely to jeopardize or result in adverse modification of critical habitat, the agency must consult with the FWS (or the National Marine Fisheries Service if the Secretary of Commerce is the responsible Secretary). Note that under the statutory language consultation is triggered by either jeopardy or adverse modification of critical habitat. The consultation process applies to all actions by federal agencies and to all actions with a federal nexus through an approval, permit, or funding, if there is reason to believe that a listed species may be present in the project area and is likely to be affected by project activities. Consultation entails study of the likely effects of project actions, a statement by the Secretary on whether jeopardy or adverse modification is found and suggestions for reasonable and prudent altematives to the harmful aspects of the proposed project in order to avoid jeopardy or adverse modification of critical habitat. All but a few projects have proceeded under an "incidental take" permit that allows limited takes of the listed species as an incidental part of the implementation of the project in question.4) Designation provides an opportunity for judicial review Designation of critical habitat is a statutory duty and the actions and non-actions of the FWS in this regard can be judicially reviewed.12 The adequacy of agency consideration of the habitat needs of the species, the economic and other impacts of designation, and possible alternatives for critical habitat configuration may reviewed.
Indirect Effects of Critical Habitat Designation
The designation of critical habitat also plays several indirect roles in the conservation of species. While any agency studies of the general habitat needs of a listed species could serve these purposes too, designation of critical habitat is a required duty that must include the elements discussed above and is specifically reviewable by the courts. It also is currently required to precede other actions that logically should rest on the information the designation process garners. Some of the indirect effects of designation of critical habitat are:1) The designation process provides necessary information for § 10 permits and habitat conservation plans.
Section 10(a) of the ESA (16 U.S.C.§ 1539(a)) authorizes the otherwise prohibited taking of listed species if the taking is an incidental part of otherwise lawful activities and if the permit applicant submits a conservation plan (known as a habitat conservation plan or "HCP") that minimizes and mitigates the impacts that likely will result from the taking. Adequate knowledge of the habitat needs of the species in question is crucial to and underlies the process of HCP development and approval and is critical to achieving adequate HCPs. Information on the habitat necessary for the survival and recovery of the species in question and on the relationship of particular properties to the entire area critical for those purposes is crucial. While habitat information can be obtained by the responsible agency aside from the formal process for designation of critical habitat, the designation process is the reviewable means of ensuring that adequate scientific information is in fact obtained and that the habitat needs of the species have been considered simultaneously with a consideration of the economic and other effects of habitat protection. 2) The designation process provides information far land acquisition decisions. Similarly, the designation of critical habitat process provides information to inform decisions on possible acquisitions of properties for habitat purposes under § 5 of the ESA (16 U.S.C. § 1534). 3) Critical habitat informs the meaning of "harm" in definition of "take. At the heart of the ESA are its § 9 (16 U.S.C. § 1538) prohibitions against "take" of endangered species. "Take" is defined as killing a listed species, but also includes "harm," which is defined in regulation as including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral pattems, including breeding, feeding or sheltering."13 Although this definition is not limited to critical habitat, as a practical matter it is easier to demonstrate "significant" habitat modification or degradation if the habitat in question had already been found to be critical to the conservation of the species in question. 4) The designation process informs development of recovery plans. Section 4(f) of the ESA (16 U.S.C. § 1533(f)) requires the preparation of a recovery plan for each listed species. Recovery plans provide guidance on what actions, including habitat maintenance and restoration, are necessary to recover a species. Here again, the designation of critical habitat can play an important role in providing the scientific knowledge of the habitat needs of a species and analysis of effects and impacts that is crucial to development of an effective recovery plan. Any agency habitat studies would be helpful in developing a recovery plan, but the designation process, because it entails specific requirements and is reviewable, arguably provides a more sound basis for recover, plans.
DiscussionThe FWS in its notice seeking public comment on the role of habitat in the conservation of endangered species asserts that the only impact of designation is that once an area is designated as critical habitat, Federal agencies are required to consult with the Service to avoid jeopardy, and that critical habitat designation has no regulatory impact when a Federal agency is not involved, whether through funding or a permit or other authorization. Furthermore, the FWS asserts that designation of critical habitat provides little additional protection to most listed species while consuming significant amounts of funding, staff time, and other resources.14
These conclusions seem to have resulted from how the FWS has interpreted certain aspects of the ESA. It will be recalled that under the ESA federal agencies must avoid both jeopardy and the destruction or adverse modification of critical habitat. However, the FWS has conflated these two duties by defining "destruction or adverse modification" as meaning "a direct or indirect alteration that appreciably diminishes the value of criticalhabitat for both the survival and recovery of a listed species"15 and then interpreting this phrase as essentially meaning "survival," and therefore as being synonymous with jeopardy in most instances.16 Because it conflated two statutory requirements, the agency then concludes that designation of critical habitat adds nothing that is not already covered by the jeopardy concept. As a result, the FWS has given designation such a low priority that the agency has completed critical habitat designations for only 9% of listed species,17 substituting instead general agency assertions that agency consideration of habitat needs and effects has been adequate. However, the courts have found that the agency does have a duty to designate critical habitat.18
It may be that, while protection of habitat in general is vital to conservation of a species, perhaps the current statutory process for designation of critical habitat may not be the ideal means of accomplishing that end. For example, perhaps the relationship between the gathering of information and consideration of the effects of habitat protection that the critical habitat designation process currently represents and other aspects of the Act (such as the development of HCPs and recovery plans), could be clarified. These issues are presented by S. 1100, in that it proposes moving the decision on designation of critical habitat to the time a recovery plan is developed. This may be advisable since accurate knowledge of necessary habitat underlies sound recovery plans, but the change would present questions as to what should be done regarding issuance of §§ 7 and 10 incidental take permits and HCPs in the interim. Should these actions be allowed to go forward during the interim period based only on discretionary agency habitat studies? Or should permit issuance and HCP approvals be expressly linked to preliminary and final designation of critical habitat in accordance with statutory standards and to recovery team recommendations that could also benefit from and rest on the reviewable habitat studies the designation process entails? Whatever changes Congress may choose to make, arguably it would remain important to preserve some mandatory, reviewable agency duty to study and reach rational decisions on both habitat needs and the effects of various habitat protection alternatives. These requirements underlie and support other important agency actions affecting both the species in question and landowners, and provide a clear point for judicial review of agency decisions.
Footnotes:(back) 1 Act of Dccember 28 1973, Pub. L. 93-205. 87 Stat. 884, as amended, codified at 16 U.S.C. §§ 1531 et seq. (back) 2 This report does not address the conservation of plant species listed as threatened or endangered. (back) 3 64 Fed. Reg. 31871 (June 14, 1999). (back) 4 16 U.S.C. § 1531(b). (back) 5 16 U.S.C. § 1533(b)(6)(C). (back) 6 16 U.S.C. § 1532(3) (back) 7 16U.S.C. § 1531(b) and (c). (back) 8 16 U.S.C. § 1532(5)(A). The distinction between occupied and unoccupied habitat intended by Congress is not clear. (back) 9 Responsibility for terrestrial and freshwater species rests with the Secretary of the Interior, while responsibility for marine species and anadromous fish rests with the Secretary of Commerce. back) 16 See 64 Fed. Reg. 31872, which states: "For almost all species, the adverse modification and jeopardy standards are the same ...." whatever Congress may have intended by its directive to avoid destruction or adverse modification of critical habitat, and whatever may be said about the agency's interpretation of its own phrase referring to "both survival and recovery," it is an elementary rule of statutory, construction that a statute is to be interpreted to avoid rendering any of its provisions inoperative or superfluous. 2A SUTHERLAND STAT. CONST. § 46.06 (5th ed.)(1992 Rev.). See also, MICHAEL J. BEAN AND MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 251-261 (3d Ed.1997), Katherine S. Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 ENVTL. L. 811 (1990). (back) 17 The FWS materials accompanying the June 14th notice state that FWS designated critical habitat for 113 of the listed 1,168 species to date. (back) 18 See, e.g., Conservation Council for Hawaii V. Babbitt, 24 F. Supp. 2d 1074, 1078 (D. Hi. 1998), in which the court set deadlines for the FWS to designate critical habitat for a number of species, even if funds were short (a situation plaintiffs alleged FWS was partially responsible for), and that the agency's remedy for its listing duties and funds was Congress.
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