Critical habitat's limited role under the Endangered Species Act and its improper transformation into 'recovery' habitat.

• Author: James, Norman D.
• Position: I. Introduction through II. The Legislative History B. The 1978 ESA Amendments, p. 1-26 - Author abstract

1. INTRODUCTION II. THE LEGISLATIVE HISTORY A. The Endangered Species Act of 1973 and the Services' 1978 Rule Defining Critical Habitat B. The 1978 ESA Amendments 1. Overview 2. House Bill 14104 3. Senate Bill 2899 4. The Final Law C. Subsequent ESA Amendments 1. 1979 ESA Amendments 2. 1982 ESA Amendments III. THE LANGUAGE AND STRUCTURE OF THE ESA SHOWS THAT CRITICAL HABITAT CONSISTS OF AREAS ESSENTIAL FOR THE SPECIES' SURVIVAL A. The Definition of Critical Habitat Distinguishes Between Occupied and Unoccupied Areas, Reflecting Congress' Intent that Critical Habitat Focus on Occupied Areas B. The Timing of Critical Habitat Designation Is Consistent With Its Limited Role Under the ESA C. The Services' Authority to Exclude Areas from Critical Habitat Is Consistent With Critical Habitat's Limited Role Under the ESA IV. THE SIERRA CLUB AND GIFFORD PINCHOT DECISIONS A. The Services' Post-Amendment Rulemakings B. The Fifth Circuit's Decision in Sierra Club C. The Ninth Circuit's Decision in Gifford Pinchot D. The Meaning of the Term "Conservation" V. CONCLUSION I. INTRODUCTION

   Congress enacted the Endangered Species Act (ESA) (1) in 1973 to provide a program for the conservation of endangered species and to comply with certain treaties and conventions concerning species of wildlife, fish, and plants. (2) Since its enactment, the ESA has evolved into one of the nation's most demanding environmental laws. In Tennessee Valley Authority v. Hill, the Supreme Court, in affirming an injunction preventing the completion of the Tellico Dam to protect a species of minnow called the snail darter, stated that the "plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the cost," and that the ESA "reveals a conscious decision to give endangered species priority over the 'primary missions' of Federal agencies." (3) one of the most confounding aspects of the ESA has been the requirement that critical habitat be designated for species that have been listed as endangered or threatened. (4) The agencies that administer the ESA, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (jointly called the "Services" below), must designate a species' critical habitat at the time a species is listed "to the maximum extent prudent and determinable." (5) Critical habitat normally should be occupied by members of the species, and consists of specific areas that contain "physical and biological features" which are "essential to the conservation of the species" and "require special management considerations or protection." (6) Specific areas that are not occupied may be designated as critical habitat "upon a determination by the Secretary that such areas are essential to the conservation of the species." (7)

   Critical habitat has significant legal and economic consequences for landowners and resource users. Section 7(a)(2) of the ESA requires federal agencies to ensure that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." (8) Thus, federal actions may not proceed if they would destroy or adversely modify a listed species' critical habitat, unless a cabinet-level committee called the Endangered Species Committee grants an exception. (9) Moreover, federal agencies must "consult" with the relevant Service prior to proceeding with a proposed action to ensure that "jeopardy" and "adverse modification" standards imposed by Section 7(a)(2) are not violated. (10)

   The term "action" is broadly defined in the Services' Section 7 consultation regulations and includes "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas." (11) The term includes "the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid." (12) Consequently, the issuance of various federal permits and authorizations in connection with private land uses may trigger the application of Section 7(a)(2).

   As federal regulatory programs have expanded, an increasing number of non-federal activities require some sort of federal permit or approval, or have some other federal nexus that triggers Section 7(a)(2) and the duty to avoid the adverse modification of critical habitat. (13) Consequently, private landowners are often required to consult with the Services when they need federal permits and authorizations to utilize their property. (14) And beginning in the 1990s, the Services became increasingly aggressive in exploiting the Section 7 consultation process to control how land and water resources are used. (15) Therefore, the designation of an area as critical habitat is likely to result in restrictions on land and water uses that go beyond those caused by a species' listing and application of the jeopardy standard. Critical habitat is particularly problematic when it includes land unoccupied by members of the species, because in the absence of critical habitat, Section 7(a)(2) would not be triggered. (16)

   At the same time, critical habitat designations by the Services have expanded dramatically, often including vast expanses of land. (17) Given that habitat loss is frequently the principal justification for listing a species, common sense suggests that if there are millions of acres of land that contain the physical and biological features essential to the species, the species should not be listed. In many cases, however, areas designated as critical habitat are unoccupied and lack habitat essential for the species' survival. Instead, they are set aside for future population expansion--a practice Congress strongly criticized in 1978 when it amended the ESA to restrict critical habitat. (18)

   Finally, in 2014, the Services proposed dramatic changes to their rules governing the designation of critical habitat and to the regulatory definition of "destruction or adverse modification." (19) These proposed rule changes would effectively convert critical habitat into "recovery habitat" by authorizing areas that lack the physical and biological features necessary to support the species to be designated as critical habitat and preserved in the hope that these features may develop later, and defining "destruction or adverse modification" as impairment of the species' recovery. (20)

   The legal underpinning of the Services' proposed rules are two circuit court decisions, Gifford Pinchot Task Force v U.S. Fish and Wildlife Service, (21) and Sierra Club v. U.S. Fish and Wildlife Service, (22) which held that the Services' 1986 regulatory definition of "destruction or adverse modification" was invalid because the definition emphasized impacts to the species' survival. (23) In both cases, the court equated the term "conservation" (24) with recovery and concluded that "destruction or adverse modification" should be a recovery-based standard. (25) As discussed below, the courts read the term "conservation" far too narrowly. As used in the ESA, "conservation" has its ordinary meaning--to manage and protect wildlife--and includes actions that support a species' survival. It is not limited to actions that recover listed species.

   More critically, however, each court relied on the ESA's...