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

• Author: James, Norman D.
• Position: II. The Legislative History C. Subsequent ESA Amendments through V. Conclusion, with footnotes, p. 27-55

3. Subsequent ESA Amendments

   The ESA was subsequently amended in 1979 and 1982. (87) These amendments did not change the narrow scope and limited role of critical habitat. Instead, the discussion in the legislative history reaffirmed Congress' view that critical habitat must be essential to the continued existence of the species.

   1. 1979 ESA Amendments

      The primary purpose of the 1979 Amendments was to increase the level of funding to the Services to carry out ESA program activities, which were expanded in the prior year's amendments. (88) These amendments also made certain changes and corrections to the Act in response to problems that were overlooked in the 1978 Amendments. But the definition of critical habitat and basic requirements for its designation were not changed. (89)

      The House report contained a summary of critical habitat, including the requirement that the Services "evaluate the economic impact of designating critical habitat for listed species." (90) The report also noted the Services' 1978 regulatory definition of critical habitat, and explained that the 1978 Amendments had "significantly altered" that definition. (91)

      The Senate committee report, by contrast, contained virtually no mention of critical habitat. The report did state, consistent with the 1973 committee reports, that "[s]ince protection of habitat is a key element of the protection of all species, the act authorizes the [Services] to acquire land for the conservation and propagation of affected plants and animals," again indicating Congress' intent that critical habitat areas on non-federal land be acquired and protected, rather than regulated by the Services through the Section 7 consultation process. (92)

   2. 1982 ESA Amendments

      In 1982, Congress enacted more extensive amendments to the ESA, which, in addition to authorizing appropriations, were intended to address problems that arose following the 1978 and 1979 Amendments. These changes included authority to postpone critical habitat designations for up to one year after the species' listing so that the economic impact analyses mandated by Section 4(b)(2) could be completed without delaying listings. (93) The House committee report stated that notwithstanding these changes, the Services are expected "to make the strongest attempt possible to determine critical habitat within the time period designated for listing." (94) Otherwise, as the conference committee report explained, "[t]he standards in the Act relating to the designation of critical habitat remain unchanged." (95) Moreover, the discussion of critical habitat in the committee reports is consistent with the 1978 legislative history.

      For example, the House report described critical habitat as "habitat critical to the survival of the species at the time of listing." (96) The Senate report noted that the Services were still failing to designate specific areas as critical habitat, and instead were designating large geographic areas:

      When designating critical habitat, the Secretary is expected to comply with the statutory definition and designate "specific areas." Several witnesses suggested that instead of such "specific areas" the Secretary was designating "geographic ranges." Section 3(5)(c) of the Act states as a general rule that "critical habitat shall not include the entire geographic area which can be occupied by the threatened or endangered species." (97) Finally, Congress again explained that the consideration of economic impacts and exclusion of areas from critical habitat to avoid resource conflicts should play an important role in critical habitat designation:

      Although the Secretary is to determine whether a species should be listed based on biological information on the status of that population, the critical habitat designation, which is to accompany the species' listing to the maximum extent prudent, also takes into account the economic impacts of listing such habitat as critical. ... Desirous to restrict the Secretary's decision on species listing to biology alone, the committee nonetheless recognized that the critical habitat designation, with its attendant economic analysis, offers some counter-point to the listing of species without due consideration for the effects on land use and other development interests. For this reason, the Committee elected to leave critical habitat as an integral part of the listing process but to prevent its designation from influencing the decision on the listing of a species. (98) In short, the legislative history subsequent to the 1978 Amendments lends additional support to the limited scope and role of critical habitat. It is apparent that Congress expected critical habitat to consist of specific areas that are essential to the species' continued existence, paralleling the jeopardy standard in Section 7(a)(2). As shown in the following section, the language and structure of the ESA also supports critical habitat's narrow scope and limited role in conserving species.

      3. THE LANGUAGE AND STRUCTURE OF THE ESA SHOWS THAT CRITICAL HABITAT CONSISTS OF AREAS ESSENTIAL FOR THE SPECIES' SURVIVAL

1. The Definition of Critical Habitat Distinguishes Between Occupied and Unoccupied Areas, Reflecting Congress' Intent that Critical Habitat Focus on Occupied Areas

   As explained above, Congress added the definition of "critical habitat" to the ESA in 1978 to "narrowD the scope of the term as it is defined in the existing regulations." (99) This definition deliberately distinguishes between occupied and unoccupied areas:

   (5)(A)(i) the specific areas within the geographical area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

   (ii) specific areas outside the geographical area occupied by the species at the time it is listed ... upon a determination by the Secretary that such areas are essential for the conservation of the species. (100)

   This two-part definition addressed Congress' concern about the Services' practice of designating unoccupied areas for future population expansion, rather than limiting critical habitat to areas that are truly critical to the species' survival. (101) It effectively creates a regulatory hierarchy, under which unoccupied areas should not be designated as critical habitat absent exceptional circumstances. (102) The deliberate distinction between occupied and unoccupied areas shows that the role of critical habitat under the ESA is limited--it is not intended to provide habitat for a species' population expansion, i.e., for recovery.

2. The Timing of Critical Habitat Designa tion Is Consistent With Its Limited Role Under the ESA

   The Services are required to designate a species' critical habitat concurrently with its listing of the species "to the maximum extent prudent and determinable." (103) As discussed above, both houses of Congress, in connection with the 1978 ESA Amendments, discussed the timing of designating critical habitat. Senator Garn explained, for example, because critical habitat is habitat "necessary for [the species'] continued existence," it should be designated when the species is listed to reduce resource conflicts. (104)

   The courts have followed the plain language of the statute and legislative history in requiring that critical habitat be designated when listing occurs. For example, in Natural Resources Defense Council v Department of Interior, the court rejected the FWS's "not prudent" determination with respect to critical habitat for the coastal California gnatcatcher, concluding that the agency "failed to discharge its statutory duty to designate critical habitat when it listed the gnatcatcher." (105) Similarly, in Northern Spotted Owl v. Lujan, the court explained that the "language employed in Section 4(a)(3) and its place in the overall statutory scheme evidence a clear design by Congress that designation of critical habitat coincide with the species listing determination." (106)

   The requirement that critical habitat be designated concurrently with listing (or in no event later than 12 months after listing when additional information is needed (107)) also indicates that critical habitat is not recovery habitat. In Northern Spotted Owl, the court rejected the FWS's argument that it should be excused from designating critical habitat pending development of a comprehensive conservation plan for the species. (108) Relying on the plain language of the statute and legislative history, the court recognized that critical habitat plays a limited role under the ESA, stating:

   Thus, even though more extensive habitat may be essential to maintain the species over the long term, critical habitat only includes the minimum amount of habitat needed to avoid short-term jeopardy or habitat in need of immediate intervention. (109) If the Services comply with the law and designate critical habitat when the species is listed, they are unlikely to know what specific actions are needed to recover species. Conversely, if Congress had intended that critical habitat include unoccupied areas for recovery purposes, Congress would have allowed the designation to be delayed pending the development of a recovery strategy for the species. As the Northern Spotted Owl court explained, Congress chose not to do so.

3. The Services'Authority to Exclude Areas from Critical Habitat Is Consistent With Critical Habitat's Limited Role Under the ESA

   The language Congress employed in Section 4(b)(2), (110) which grants the Services broad authority to exclude areas from critical habitat, also is consistent with the limited scope and purpose of critical habitat. This provision states:

   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...