CHAPTER 4 DESIGNATING CRITICAL HABITAT UNDER THE ENDANGERED SPECIES ACT: LEGAL ISSUES ON THE WHO, WHAT, WHEN, HOW, AND WHERE
| Jurisdiction | United States |
DESIGNATING CRITICAL HABITAT UNDER THE ENDANGERED SPECIES ACT: LEGAL ISSUES ON THE WHO, WHAT, WHEN, HOW, AND WHERE
Attorney-Advisor
Office of the Solicitor, U.S. Department of the Interior
Washington, D.C.
[Page 4-1]
JOAN GOLDFARB is an Attorney-Advisor with the U.S. Department of the Interior, Office of the Solicitor, in Washington, D.C. Joan primarily advises the Fish & Wildlife Service on matters involving section 4 of the Endangered Species Act. She has been with the Solicitor's Office since 1991, having also worked on matters involving natural resource damages under CERCLA, and provided legal advice to the Office of Surface Mining, Reclamation, and Enforcement. Joan received her J.D. from Boston College Law School, where she was the managing editor for the Boston College Environmental Affairs Law Review. She has a B.A. in English and Mathematics from Wesleyan University.
I. AUTHORITIES AND STANDARDS FOR CRITICAL HABITAT
A. Statutory Authorities
1. Definitions - Endangered Species Act ("ESA") § 3(5), 16 U.S.C. § 1532(5)
2. Critical Habitat Requirements - ESA § 4, 16 U.S.C. § 1533
3. Consequences of Designating - ESA § 7, 16 U.S.C. § 1536
B. Regulatory Provisions
1. Definitions - 50 C.F.R. § 424.02
2. Critical Habitat Requirements - 50 C.F.R. § 424.12
3. Exclusions - 50 C.F.R. § 424.19
4. Section 7 Inter-Agency Consultations - 50 C.F.R. part 402
C. Implementing Regulations Federal Register Notices
1. 84 Fed. Reg. 45052 (Aug. 27, 2019) - 50 C.F.R. §§ 424.02, 424.12
2. 81 Fed. Reg. 7413 (Feb. 11, 2016) - 50 C.F.R. §§ 424.01, 424.02, 424.12
3. 78 Fed. Reg. 53076 (Aug. 28, 2013) - 50 C.F.R. § 424.19
4. 77 Fed. Reg. 25611 (May 1, 2012) - 50 C.F.R. § 424.12
5. 49 Fed. Reg. 38900 (Oct. 1, 1984) - 50 C.F.R. part 424
D. Guidance
1. "Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act," 81 Fed. Reg. 7226 (Feb. 11, 2016)
2. Solicitor's Memorandum Opinion M-37016, "The Secretary's Authority to Exclude Areas from Critical Habitat Designation Under Section 4(b)(2) of the Endangered Species Act" (Oct. 3. 2008) (M-Opinion)
E. Recent Revisions to Regulations at 50 C.F.R. §§ 424.02 and 424.12
1. 84 Fed. Reg. 45052 (Aug. 27, 2019) ("2019 Revisions")
[Page 4-2]
2. Also revised 50 C.F.R. Part 402, 84 Fed. Reg. 44976 (Aug. 27, 2019)
II. WHO DESIGNATES CRITICAL HABITAT
A. ESA § 3(15), 16 U.S.C. § 1532(15)
1. Defines "Secretary" as "the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970"
B. Reorganization Plan No. 4 of 1970
1. Transferred to the Secretary of Commerce numerous functions vested in the Secretary of the Interior, such as migratory marine species
2. In general, Commerce has responsibility for protecting marine and anadromous species (species that are born in freshwater, spend most of their lives in saltwater, and return to freshwater to spawn)
C. Delegations
1. Secretary of the Interior has delegated to the Fish and Wildlife Service ("FWS")
2. Secretary of Commerce has delegated to the National Marine Fisheries Service
III. WHAT DESIGNATING CRITICAL HABITAT DOES
A. Inter-Agency Consultation - ESA § 7(a)(2)
1. Requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to destroy or adversely modify critical habitat
2. Federal agencies must also ensure that actions they authorize, fund, or carry out are not likely to jeopardize species' continued existence
3. May affect private parties if they:
a. Are seeking funding from a Federal agency,
b. Need a permit from a Federal agency, or
c. Are taking action on Federal lands or relying on Federal actions
B. Definition of "Destruction or Adverse Modification" - 50 C.F.R. § 402.02
1. Before 2016: "[D]irect or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species" - 51 Fed. Reg. 19926, 19958 (June 3, 1986) (emphasis added)
[Page 4-3]
2. 2016: "[D]irect or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species" - 81 Fed. Reg. 7214 (Feb. 11, 2016) (emphasis added)
3. 2019: "[D]irect or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species"
C. Adverse Modification and Jeopardy Overlap
1. Actions causing adverse modification in occupied areas often cause jeopardy as well
2. So actions in unoccupied critical habitat are less likely to cause jeopardy
D. But Adverse Modification Differs from Jeopardy
1. The focus of critical habitat is recovery, not mere survival
a. A definition of "destruction or adverse modification" that sets the bar so high that it requires that the species not even be able to survive would be invalid because it would be too similar to jeopardy
• Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059 (9 th Cir. 2004)
• Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434, 443 (5 th Cir. 2001) (" Sierra Club")
b. Even in occupied areas, where a Federal agency would be required to engage in inter-agency consultation to avoid jeopardizing the continued existence of the species, designating critical habitat may benefit the species because results of inter-agency consultations could differ with designation
• Center for Biological Diversity v. Bureau of Land Mgt. 422 F. Supp. 2d 1115 (N.D. Cal. 2006)
• Middle Rio Grande Conservancy Dist. v. Babbitt, 206 F. Supp. 2d 1156, 1182-84 (D.N.M. 2000), aff'd, 294 F.3d 1220 (10 th Cir. 2002)
c. " [A]dverse modification has broader scope and application than the jeopardy limitation in ESA section 7"
• Natural Resources Defense Council v. U.S. Dep't of the Interior, 275 F. Supp. 2d 1136, 1148 (C.D. Cal. 2002)
d. Inter-Agency consultation under the conservation/recovery standard must occur sooner than under the jeopardy standard, which requires a threat to survival
• Id.
IV. WHEN CRITICAL HABITAT GETS DESIGNATED
[Page 4-4]
A. Statutory Provisions
1. The Secretary must designate critical habitat concurrent with listing " to the maximum extent prudent and determinable" - ESA §§ 4(a)(3)(A)(i), 4(b)(6)(C), 16 U.S.C. §§ 1533(a)(3), 1533(b)(6)(C)
2. The Secretary may revise designations of critical habitat as appropriate - ESA § (a)(3)(A)(ii), 16 U.S.C. § 1533(a)(3)(A)(ii)
B. Maximum Extent Prudent
1. Purpose: Gives the Secretary the discretion not to designate critical habitat if it would not be in the best interests of the species
2. Example: Situations where informing the public of the location of the species would lead to an increase in collection of the species
3. Before 2019 Revisions
a. "Not prudent" was defined as situations where designating critical habitat would:
(1) Lead to increased collection threat, or
(2) Not be beneficial to the species
b. Regulations identified factors to consider in determining whether designating critical habitat would "not be beneficial" to the species:
(1) Whether habitat destruction is not a threat
(2) Whether any areas meet the definition of CH
c. Case Law
(1) It may be unreasonable to conclude that designation would be "not beneficial to the species" merely under a theory that adverse modification would not add protections beyond jeopardy
• Sierra Club, 245 F.3d at 434
(2) Balancing the potential for increased collection against the benefits of designating critical habitat may help support a "not beneficial" conclusion
• Natural Resources Defense Council v. U.S. Dep't of the Interior, 113 F.3d 1121 (9 th Cir. 1997)
(3) There is no requirement that critical habitat designation must be beneficial to "most of the species."
• Id.
(4) It would be unreasonable to base a not-prudent finding on increased collection threat if the same location data would be available through other means
• Jumping Frog Research Inst. v. Babbitt, 1999 WL 1244149 (N.D. Cal. 1999), as amended (Jan. 18, 2000)
(5) Congress intended for not-prudent findings to be rare.
[Page 4-5]
• Conservation Council for Haw. v. Babbitt, 2 F. Supp. 2d 1280 (D. Haw. 1998)
(6) Need species-specific analysis for not-prudent finding
• Id.
(7) Critical habitat designations on private lands could still provide benefits to the species
• Id.
4. 2019 Revision
a. Changed the regulations pertaining to not-prudent findings - 50 C.F.R. § 424.12(a)(1)
b. Removed the "not beneficial" basis for not-prudent findings because it was too vague
c. Instead, the revision identified specific circumstances in which designating critical habitat for a species may be not prudent, including situations in which:
(1) The species is threatened by taking and identification of critical habitat can be expected to increase the degree of the threats,
(2) Habitat destruction, modification, or curtailment is not a threat to the species,
(3) The threats to the species cannot be addressed through management actions resulting from inter-agency consultation,
(4) Areas within the United States provide no more than negligible conservation value for a species that occurs primarily outside the United States,
(5) No areas meet the definition, or
(6) FWS otherwise determines designation of critical habitat is not prudent
C. Maximum Extent Determinable
1. Purpose: Allows FWS to finalize listing even if critical habitat is more complex and therefore not ready to be finalized at the time of the final listing rule
...a. General Land Office of the State of Texas v. U.S. Fish & Wildlife
To continue reading
Request your trial