[Federal Register: June 14, 1999 (Volume 64, Number 113)]
[Page 31871-31874]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Notice of Intent 
To Clarify the Role of Habitat in Endangered Species Conservation

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: We (the U.S. Fish and Wildlife Service) announce our intent to 
develop policy or guidance and/or to revise regulations, if necessary, 
to clarify the role of habitat in endangered species conservation. 
Identification of the habitat needs of listed species and the 
conservation of such habitat is the key to recovering endangered and 
threatened species. We will examine all the tools available to identify 
and conserve the habitat of listed and threatened species including 
critical habitat determinations (prudency and determinability) and 
designations under section 4 of the Endangered Species Act of 1973, as 
amended (Act). We intend to streamline the processes involved in 
completing critical habitat determinations and designations. Our goal 
is to achieve the greatest conservation benefit in the most cost 
effective manner for imperilled species. We solicit public comments, 
and we will incorporate comments into the new proposed guidance as 

DATES: We will accept comments on this guidance until August 13, 1999.

ADDRESSES: Address comments regarding this guidance to the Chief, 
Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C 
Street, N.W., Mailstop ARLSQ-420, Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Chief, Division of Endangered Species, 
U.S. Fish and Wildlife Service, 703-358-2171 (see ADDRESSES section).



Importance of Habitat for Species Conservation

    The process of habitat protection through the designation of 
critical habitat is properly examined in the broad context of the 
importance of habitat in endangered and threatened species 
conservation. Virtually every study of the conservation of imperilled 
species considers habitat as a major component in a species' 
conservation and eventual recovery. The very purpose of the Act is ``to 
provide a means whereby the ecosystems upon which endangered species 
depend may be conserved.'' The National Research Council recognized the 
importance of habitat in its 1995 book, Science and the Endangered 
Species Act: ``habitat protection is a prerequisite for conservation of 
biological diversity and protection of endangered and threatened 
species.'' The National Research Council further noted: ``the 
Endangered Species Act, in emphasizing habitat, reflects the current 
scientific understanding of the crucial role that habitat plays for 
species' (National Research Council 1995).
    Habitat considerations are a key part of virtually every process 
called for in the Act. We describe the habitat needs of species, and 
threats to habitat, in detail in all listing rules. In fact, Factor A 
of the ``Summary of Factors Affecting the Species'' section of all 
proposed and final listing rules discusses ``The Present or Threatened 
Destruction, Modification, or Curtailment of the Habitat or Range'' of 
the species. For most species, the threats to habitat are the most 
important consideration when determining if a species qualifies for 
protection under the Act. Habitat considerations are prominent in all 
recovery plans, and recovery plans include maps and descriptions of the

[[Page 31872]]

habitat needed to recover the species. The section 7 consultation 
process addresses the dynamic and seasonal characteristics of the 
habitat needs of listed species. New information concerning species' 
habitat use becomes available throughout the listing, consultation, 
habitat conservation planning, and recovery processes. It is essential 
that we consider current and complete habitat information in these 
processes. The analysis of habitat alteration and/or destruction is the 
cornerstone of the Act's section 7 consultation process and the section 
10 habitat conservation planning process; this is true for species that 
have designated critical habitat, as well as for those species that do 
not. Habitat is identified, communicated to affected parties, 
protected, and conserved through all phases of applying the Act's 
protections. The conservation and recovery of imperilled species is 
dependent upon habitat protection and restoration. When species are 
listed as threatened or endangered, the habitats or ecosystems upon 
which they depend are recognized. Conservation and recovery actions are 
directed not only to the imperilled species, but to the species' 
habitat, as well.

Role of Critical Habitat in the Act

    Critical habitat is defined in the Act as--(i) the specific areas 
within the geographical area currently occupied by a species, at the 
time it is listed in accordance with section 4 of the Act, 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 a species at the time it is 
listed upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Critical habitat, if 
prudent and determinable, must be proposed and designated by regulation 
and thus codified in the Code of Federal Regulations (CFR).
    A designation of critical habitat is not prudent under the current 
regulations when one or both of the following situations exist: (i) the 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species, or (ii) such designation of 
critical habitat would not be beneficial to the species (50 CFR 
424.12(a)(1)). Critical habitat is not determinable when one or both of 
the following situations exist: (i) information sufficient to perform 
required analyses of the impacts of the designation is lacking, or (ii) 
the biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat (50 CFR 
    Once designated, critical habitat has only one regulatory impact: 
under section 7(a)(2), Federal agencies must, in consultation with the 
Service, insure that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. As discussed below, section 7(a)(2) likewise 
prohibits agency actions that are likely to jeopardize the continued 
existence of any listed species. Section 7(b)-(d) of the Act and 50 CFR 
part 402 describe in detail the process by which agencies consult with 
us regarding possible jeopardy to listed species and destruction or 
adverse modification of critical habitat. According to our 
interpretation of the regulations, by definition, the adverse 
modification of critical habitat consultation standard is nearly 
identical to the jeopardy consultation standard.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have long believed that, in most 
circumstances, the designation of ``official'' critical habitat is of 
little additional value for most listed species, yet it consumes large 
amounts of conservation resources. Sidle (1987) discussed the practical 
role of critical habitat designation and posed the question, ``can the 
jeopardy standard alone adequately protect species?'' Several examples 
were provided and the conclusion was very clearly stated, ``it is 
likely that, for listed species endemic to a small area, critical 
habitat is not often necessary.'' Because there are so many varying 
opinions, the Service is seeking input on various aspects of critical 
    Currently, critical habitat is linked only to the section 7 process 
and is only enforceable when a Federal nexus (such as Clean Water Act 
permits, Federal Housing Authority clearances and funding, 
Environmental Protection Agency authorities, etc.) sufficient to 
trigger a section 7 consultation exists. Many activities carried out on 
private, Tribal, State, and Federal lands have Federal involvement, and 
would be subject to section 7. However, on private land, where no 
Federal involvement exists, a critical habitat designation has no 
regulatory impact.
    Moreover, we have long believed that separate protection of 
critical habitat is duplicative for most species. Section 7 prohibits 
Federal agencies from taking actions that jeopardize the continued 
existence of a listed species or actions that adversely modify critical 
habitat. To jeopardize the continued existence of a species is to 
engage in an action that reasonably would be expected, directly or 
indirectly, to reduce appreciably the likelihood of both the survival 
and recovery of a listed species in the wild by reducing the 
reproduction, numbers, or distribution of species. Destruction or 
adverse modification is a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for both the 
survival and recovery of a listed species. For almost all species, the 
adverse modification and jeopardy standards are the same., resulting in 
critical habitat being an expensive regulatory process that duplicates 
the protection already provided by the jeopardy standard. Sidle (1987) 
stated, ``Because the ESA can protect species with and without critical 
habitat designation, critical habitat designation may be redundant to 
the other consultation requirements of section 7.'' Currently, only 113 
species or 9% of the 1179 listed species in the U.S. under the 
jurisdiction of the Service have designated critical habitat. We 
address the habitat needs of all 1179 listed species through the 
conservation mechanisms discussed above, such as listing, section 7 
consultation, and the recovery planning process. For most species, the 
duplication between the jeopardy standard and the adverse modification 
standard exists because unoccupied habitat is not involved. When 
unoccupied habitat is designated as critical habitat, the duplication 
ceases because consultation under section 7 of the Act must then be 
completed on an area not previously included in the analysis. The 
Service is interested in your opinion; do the unoccupied habitat 
aspects of critical habitat designation provide significant 
conservation benefit for imperilled species?

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with citizen lawsuits for our failure to 
complete the process described above, and we have been challenged on 
numerous ``not prudent'' critical habitat determinations (meaning that 
the designation of critical habitat was determined to be not prudent 
for that species).
    We believe that the present system for determining and designating 
critical habitat is not working. Many conservation organizations, 
affected landowners, and industry groups also recognize that the 
present system is not working. Perception of the value and

[[Page 31873]]

purpose of critical habitat varies widely. Many environmental groups 
view critical habitat as providing additional regulatory protection, 
hence the large number of lawsuits to prompt critical habitat 
designations. Some industry groups view critical habitat as the only 
way economic impacts are addressed in the conservation of imperilled 
    The consequence of the critical habitat litigation activity is that 
we are utilizing much of our very limited listing program resources in 
litigation support defending active lawsuits and Notices of Intent 
(NOIs) to sue relative to critical habitat, and complying with the 
growing number of adverse court orders. In the meantime, our efforts to 
respond to listing petitions, to propose listing of critically 
imperilled species, and to make final listing determinations on 
existing proposals are being significantly delayed. There are species 
not yet listed in Regions or geographic locations where litigation 
support has and will continue to consume much of our funding resources. 
For example in Hawaii, a single court order remanded 245 ``not 
prudent'' critical habitat determinations. There are other species in 
Hawaii that are literally facing extinction while precious resources 
are being depleted on critical habitat litigation support and the 
reexaminations of critical habitat prudency determinations for species 
already listed. Litigation over critical habitat issues for species 
already listed and receiving the Act's full protection has precluded or 
delayed many listing actions nationwide.
    Economic analysis done for critical habitat designation can be 
expensive, in the past, total costs for such analyses for critical 
habitat designations have cost as much as $500,000, against a total 
listing budget of a few million dollars. The National Research 
Council's research committee ``recognizes that because of public 
concern over economic consequences, the designation of critical habitat 
is often controversial and arduous, delaying or preventing the 
protection it was intended to afford'' (National Research Council 
    An additional costly consequence (both in terms of staff time and 
funding) of designating critical habitat is where designation triggers 
compliance with the National Environmental Policy Act (NEPA). The 
circuit courts are split on the issue of whether critical habitat 
designation triggers NEPA. Within the jurisdiction of the Court of 
Appeals for the Tenth Circuit (the states of NM, CO, NE, UT, WY, OK, 
and KS) NEPA is required ( see Catron County Board of Commissioners v. 
USFWS, 75 F.3d 1429 (10th Cir. 1996)). The Ninth Circuit does not view 
the designation of critical habitat as a major Federal action under 
NEPA (Douglas County v. Babbitt, 48 F 3d 1495, 1507-08, (9th Cir. 
1995), cert. denied).

Our Current Policy on Setting Priorities to Maximize Conservation 

    Because we do not have unlimited resources, we believe we must set 
priorities in order to use our funds in the manner most beneficial to 
imperilled species. In the past we have established priorities for the 
use of funds through our Listing Priority Guidance (LPG). The FY 1998-
1999 Listing Priority Guidance consists of three tiers or categories of 
listing activities. Emergency listing actions are the highest priority 
(Tier 1); followed by Tier 2, which comprises final rules, proposed 
rules, and petition findings; and critical habitat actions constitute 
Tier 3. This system and its predecessor LPGs have allowed us to manage 
our listing program for maximum conservation benefit following the FY 
1995-1996 moratorium and funding rescission that created large 
backlogs. When the moratorium was lifted on April 26, 1996, 243 
proposed species awaited final determinations. Currently, there are 
only two proposed species that were included in that very large 
backlog. Our own system for prioritizing listing actions has enabled us 
to provide the full protection of the Act to more than 250 species 
since April 26, 1996. This was possible by foregoing low priority 
listing actions such as critical habitat designations. Now however, we 
are being faced with numerous court orders that require us to complete 
critical habitat designations and reconsider not prudent findings for 
listed species.
    Because of our reducing the listing backlogs, the LPG is evolving. 
The proposed FY 1999/2000 LPG was published in the Federal Register on 
May 20, 1999. That guidance no longer prioritizes critical habitat 
actions with other section 4 actions. Critical habitat actions are 
funded separately (funding still is allocated through the listing 
subactivity), and critical habitat actions will be prioritized on an 
annual basis. For example, in FY 1999, 17% of the listing subactivity 
funds were allocated for critical habitat actions. Court ordered 
critical habitat actions and Regional priorities received funding for 
FY 1999 activity. The LPG will continue to evolve as we continue to 
balance our national listing program.

Proposals for Public Comment

    The Service intends to reexamine our existing approach to 
designation of critical habitat. The legal debate over critical habitat 
prudency determinations involves two key areas of the ``no net 
benefit'' argument to attain a not prudent critical habitat 
determination--(a) the contention that the adverse modification 
standard for the same species with designated critical habitat is 
equivalent to the jeopardy standard for species without designated 
critical habitat; and (b) the treatment of unoccupied habitat in 
prudency determinations. We particularly solicit comments relative to 
when the designation of critical habitat will provide additional 
benefit (beyond that of listing) and what considerations should be 
included in our prudency determinations.
    In order to reduce the costs of accomplishing critical habitat 
actions, we are considering developing a new streamlined and cost-
effective process for critical habitat determinations and designation. 
As mentioned previously in this notice, the current designation process 
is inefficient, and should be redesigned to be more cost-effective and 
in line with the amount of conservation benefit provided to the 
species. Under the current process designating critical habitat for 
multiple species could devastate the listing program, and result in 
scarce funds being spent on activities that have a lower benefit to 
species relative to other activities .
    We believe that describing the areas proposed for designation as 
critical habitat needs to be a much less labor intensive process. We 
suggest that suitable habitat is best described in broader terms. We 
encourage views on whether pinpointing small areas of species 
occurrence and drawing precise small circles around habitat on maps is 
the methodology we should be employing to identify and describe 
critical habitat, or whether instead more general habitat location 
delineations and broad descriptions of habitat types are the most 
efficient descriptors to be used in the designation of critical 
habitat. Very specific lines drawn on a map may not be the most 
efficient way to identify areas that may be important in the recovery 
of rare species. We would encourage commentators to discuss better ways 
to describe habitat and species occurrence. We would suggest that 
commentators consider how a more descriptive approach might be 
employed, rather than a map-based approach. Descriptions might be 
linked to habitat types, elevation, and riparian areas, for example. We 
would also be interested in comments relating to how the Service could, 
at the stage of developing a recovery plan, when much more may be known 
about the needs of

[[Page 31874]]

the species than at the time of critical habitat designation, be more 
specific about the extent of habitat protection necessary for recovery.
    We also intend to redesign other aspects of the process for 
designating critical habitat. We encourage comments on how economic 
analyses can evolve into a streamlined and cost-effective process. We 
also solicit comments on how NEPA compliance, when required, may be 
conducted in a simple and efficient manner. Completing programmatic 
assessments and analyses, for example, may be an efficiency mechanism. 
Perhaps multispecies/geographic species groupings to reduce and 
eliminate administrative redundancy should be more common. We request 
comments and suggestions relative to how we can effectively streamline 
the process and specifically whether and how our existing regulations 
might or should be changed to accomplish this. We also request comments 
and suggestions on possible legislative corrections that might improve 
the effectiveness and efficiency of the critical habitat process.

Public Comments Solicited

    We intend that any actions resulting from this notice and 
subsequent proposed guidance be as accurate and as effective as 
possible. Therefore, we solicit any suggestions from the public, 
concerned governmental agencies, the scientific community, 
environmental groups, industry, commercial trade entities, or any other 
interested party concerning any aspect of this notice. We will take 
into consideration any comments and additional information received and 
will announce proposed guidance after the close of the public comment 
period and as promptly as possible after all comments have been 
reviewed and analyzed. We will make available for your review and 
comment any critical habitat guidance, policy, or regulatory changes 
that are developed.
    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that 
interferes with the clarity? (3) Does the format of the notice 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the notice in the 
``Supplementary Information'' section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?

References Cited

National Research Council. 1995. Science and the Endangered Species 
Act. National Academy Press, Washington, D.C. 271 pp.
Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent? 
Environmental Management 11(4):429-437.

    Authority: The authority for this notice is the Endangered 
Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.

    Dated: May 3, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-15080 Filed 6-11-99; 8:45 am]