S. 1100 Endangered Species Act Critical Habitat

Jamie Rappaport Clark


May 27, 1999

Mr. Chairman, I appreciate this opportunity to comment on S. 1100 and issues relating to critical habitat, an aspect of the Endangered Species Act which the U.S. Fish and Wildlife Service believes needs to be amended.

Mr. Chairman, I would like to thank you and Chairman Chafee, of the full Committee, and Senator Domenici for your leadership in introducing S. 1100, a bill which attempts to improve the effectiveness of the critical habitat designation process. The Service worked extensively with the full Committee in the last Congress on legislation to reauthorize the ESA (S. 1180). We were able to come to agreement on many complicated aspects of the legislation. Although the bill was never enacted, the process of its development demonstrated that we can work together effectively on complex and difficult issues. We hope to work similarly with this Committee to produce even more effective results.

The U.S. Fish and Wildlife Service (Service) is committed to improving the efficiency and effectiveness of the Endangered Species Act (ESA) in order to achieve its purpose of conserving threatened and endangered species and protecting the ecosystems upon which they depend.

The Service believes the process under the ESA of designating critical habitat for listed species should be improved in order to more effectively achieve the goals of the ESA. We firmly believe that attention to, and protection of habitat is paramount to successful conservation actions and to the ultimate recovery and delisting of listed species. However, in 25 years of implementing the ESA, we have found that designation of "official" critical habitat provides little additional protection to most listed species, while it consumes significant amounts of scarce conservation resources. We believe that the critical habitat designation process needs to be recast as the determination of habitat necessary for the recovery of listed species. This "recovery habitat" should be described in recovery plans.

Because of our concerns about the critical habitat designation process, the Service has prepared a notice of our intent to clarify the role of habitat in endangered species conservation. In the notice we will solicit public comments on how the critical habitat provisions of the ESA should be administered. We intend to take a wide-ranging look at our current interpretation of critical habitat and at our methods for determining and designating it. We will request comments from interested parties on ways to improve the overall process. We look forward to engaging in a meaningful dialogue on this complex issue. It is our intent to publish a notice in the Federal Register next month to begin this process.

S. 1100 addresses some of the Service's criticisms of the current process. We believe that the protective purposes of the ESA would be better served if habitat necessary for the conservation of species were identified and protected primarily through the development and implementation of recovery plans. S. 1100 accomplishes this. However, the Service has concerns with certain aspects of S. 1100. We believe that critical habitat designation should not be accomplished through a redundant regulatory process and S. 1100 does not remove the redundant process. S. 1100 also places additional deadline requirements on the Service without including authorization for appropriations to help meet these deadlines. The bill does not provide a priority ranking system to act as a "safety valve" in the case that insufficient funds to meet the new responsibilities are appropriated.

I will comment more extensively on S. 1100 and will provide the Subcommittee with suggestions we believe will improve the bill. To begin, I will provide background on the existing critical habitat process to give an understanding of why the Service believes it needs to be amended.

Habitat Considerations in the Endangered Species Act

Habitat considerations are a key part of virtually every process called for in the ESA. For most species, threats to habitat are the primary consideration in determining whether a species qualifies for protection under the ESA. When species are listed as threatened or endangered, the habitats or ecosystems upon which they depend are recognized and protected. The first factor of every listing rule discusses "The Present or Threatened Destruction, Modification, or Curtailment of the Habitat or Range" of the species. Once listed, conservation and recovery actions are directed to the species as well as their habitats. In addition, habitat considerations are prominent in all recovery plans, and recovery plans include maps and descriptions of the habitat needed to recover the species. Finally, the analysis of habitat alteration and/or destruction is the cornerstone of the ESA's section 7 consultation process and the section 10 habitat conservation planning process. The preceding is true for all species regardless of whether or not critical habitat has been designated.

Effects of Critical Habitat Designation

There exists a wide range of perceptions on the meaning, purpose, and value of critical habitat. Contrary to popular understanding, critical habitat does not create a "park" or a "reserve" and has no regulatory effect at all on private land when no Federal involvement is present; it rarely affords additional protections to species listed under the ESA; and it does not require economic analyses of the impact of species listings.

As defined in the ESA, critical habitat is --

(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 ESA, 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.

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.

Thus, critical habitat is linked only to the section 7 process and is only enforceable when a Federal nexus, meaning some sort of Federal involvement, exists sufficient to trigger a section 7 consultation.

The Service believes that the protection conveyed by designation of critical habitat is duplicative of the prohibition against jeopardy for most species. Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7
prohibits Federal agencies from taking actions that jeopardize the continued existence of a listed species or actions that adversely modify critical habitat. In our implementing regulation, jeopardy is defined as engaging 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. These effects are caused, almost without exception, by impacts to habitat. Destruction or adverse modification of critical habitat is defined as 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 Federal actions, the adverse modification of critical habitat and jeopardy to the species standards are the same, resulting in critical habitat designation being no more than regulatory process that duplicates the protection already provided by the jeopardy standard.

Because the complex biological needs of many species are not well documented at the time of listing, the importance of unoccupied habitat for population expansion, species introductions, or out plantings/seeding of rare plants becomes known during the recovery phase of the conservation process.

A major misconception of critical habitat designation is that it calls for examining the economic impacts of listing. This is not the case. The economic analysis that is required for a critical habitat designation examines the economic impacts of the designation only. For almost all species, there are no significant economic impacts associated with a designation of critical habitat because there are usually no additional restrictions on activities beyond those resulting from listing of the species.

Critical Habitat Litigation

Some parties view critical habitat as providing additional regulatory protection. One result of this view is that we are experiencing an increasing number of lawsuits designed to compel critical habitat designations. These lawsuits necessitate the diversion of scarce Federal resources from imperiled, but unlisted species which do not yet benefit from the protections of the ESA.

All of the critical habitat lawsuits with which we are burdened concern species that are already listed and are receiving the full protection of the ESA. There are currently 15 active lawsuits involving critical habitat designations. In addition, there are currently six critical habitat lawsuits that have been resolved by a court order requiring the Service to reconsider earlier critical habitat decisions or to designate critical habitat. Lastly, we currently have 12 Notices of Intent to sue for alleged violations regarding critical habitat; some of the Notices of Intent cover more than 30 species.

The litigation burden placed on the Service is causing serious delays in our ability to protect the many highly endangered species which are not listed, and are therefore not afforded any of the ESA's protections. For example, in Hawaii, a single court order remanded 245 "not prudent" critical habitat determinations for Hawaiian plants. There are other species in Hawaii that are not yet listed and are facing severe conservation risks while precious resources are being depleted on critical habitat litigation support and the reexaminations of critical habitat prudency determinations for species already listed.

This situation is causing the delay of listing actions of all types, including final determinations, new proposed rules, resolution of candidate's conservation status, and even the processing of petitions from members of the public who have specific listing and delisting actions they want the Service to consider. Additionally, the administrative burdens associated with litigation on a regular basis are taking their toll on staff at all levels of the Service. Many listing program duties are not being completed because of the demand of staff attention to the preparation of responses to a steady stream of complaints, the compilation and certification of species' administrative records, and the necessity for declarations and affidavits.

Critical Habitat Designation Process

I would like to describe for the Subcommittee the steps involved in designating critical habitat under current law. The Service believes that this process needs to be recast, and included in recovery plans, as the determination of habitat necessary for the recovery of listed species (or more succinctly stated, "recovery habitat").

Designation of critical habitat is a complex, science-based task. First, information on population locations, ecological needs, and habitat use of the species must be compiled and analyzed to determine what areas meet the definition of critical habitat as specified in the ESA. These areas must be delineated on a map. Land ownership must be researched and identified. We must then complete an analysis of the economic impacts of critical habitat designation, and determine if such impacts indicate that the benefits of exclusion of a particular area outweigh the benefits of its inclusion. The economic analysis is usually contracted to a third party which prepares a draft report for review. The draft is usually made available for public comment, and once all comments are analyzed, a final economic analysis is completed, printed, and distributed. A proposed critical habitat designation is published as a proposed rule in the Federal Register, and a comment period is opened. During this time, public hearings and/or public meetings are held. Written and oral testimony may be entered into the record at these meetings. Lastly, the Service compiles all comments (both written and oral) and data received during the comment period and analyzes them for use in the final decision making process.

The Service believes that conducting this analysis in an open, collaborative environment, at the appropriate time (the recovery planning phase) is a more efficient way to conserve and recover species.

Comments on S. 1100

I would like to make some comments on S. 1100, however, given that the bill was just recently introduced, it is possible that further analysis will yield additional comments. I ask that the Subcommittee accept any additional comments we may provide in writing for inclusion in the record.

Section 1 of S. 1100 requires a recovery team to be appointed by the Secretary within 60 days of the publication of a final listing regulation. This is not a realistic deadline. Listing regulations are not effective until 30 days after publication in the Federal Register. This is required by the Administrative Procedures Act, and is only excepted when an emergency listing is necessary or in the rare case that necessitates immediate effectiveness of the listing for biological timing purposes (e.g., imminent nesting or spawning).

The Service suggests that at least 120 days be allowed for the formulation of recovery teams. Recovery teams are comprised of species experts and interested parties who often have very busy and conflicting schedules. Identifying, contacting, and formally appointing appropriate people willing to participate in the recovery planning process can be logistically difficult. A greater allowance of time will result in more stable and effective recovery teams.

S. 1100 moves the designation of critical habitat from the listing phase to the recovery phase of the ESA. The Service believes this shift is highly appropriate. Because listing focuses on threats to a species, there are many instances where the biological elements necessary for the conservation and eventual recovery of the species are not known until later in the conservation process, namely during the recovery phase. Also, the recovery phase is the appropriate time for analyzing the economic effects of designation of critical habitat because recovery planning inherently involves consideration of economic feasibility.

Once a species is listed, a recovery team comprising scientific experts on the species is identified and convened. The team identifies conservation measures that will facilitate the recovery of the species. The more that is known about a species' needs, the easier it is to address those needs through on-the-ground conservation and recovery measures. If areas of unoccupied habitat are required for a particular species to recover, that information will become available through the recovery team and the recovery implementation process and critical habitat can be specified accordingly.

Section 2(a) of S. 1100 requires publication in the Federal Register of a proposed regulation designating critical habitat concurrent with the publication of a draft recovery plan. The Service strongly suggests adopting a much more collaborative approach that fully integrates the identification of recovery habitat into the recovery planning process. This will allow recovery teams to identify and determine habitat essential to listed species' conservation during the recovery planning process. This is more effective than requiring recovery plan development and the redundant designation of critical habitat by separate regulation. Recovery plans would still be subject to public review and statutory deadlines for the publication of draft and final plans. This cooperative process will give the experts and stakeholders comprising recovery teams flexibility and adequate time to determine the habitat necessary for recovery. These parties, working together, are best suited to describing species' habitat needs and determining and implementing the recovery actions necessary for the conservation of listed species and eventual delisting. The product of this collaborative process would be published in draft and final recovery plans, which could then be appropriately revised as new information becomes available.

The Service is concerned that passage of S. 1100 as now written will result in litigation which could delay or halt the implementation of actions necessary for the eventual recovery and delisting of species. The well-intentioned parties that now sue the Service over perceived critical habitat requirements currently linked to listing regulations, may refocus their efforts on litigation involving critical habitat regulations linked to the recovery planning process. Instead of crippling the listing process and delaying the ESA's protection, such litigation would affect the recovery planning process, and on-the-ground recovery actions could be delayed for species only a few short steps away from downlisting and eventual delisting.

In advocating the revision of the critical habitat designation to a more collaborative, science-based recovery habitat determination, the Services' intent is not to circumvent our legal responsibilities to protect listed species and their habitat. Rather, our intent is to better uphold our responsibility to protect and restore declining species in the most efficient and effective manner possible. The protection, conservation, and recovery of endangered and threatened species is what matters most in the entire ESA process. We believe that this new process will better serve this goal.

The recovery planning requirements included in S. 1100 will impose additional workload burdens on the Service. S. 1100 requires completion of a draft recovery plan within 18 months and a final recovery plan within 3 years of a listing regulation. To accomplish these tasks, many additional Service biologists will need to participate as recovery team members or facilitators. Without additional appropriations, other recovery duties could be delayed. The Service recommends S. 1100 include sufficient authorization for appropriations above current ESA authorization levels to offset these burdens, and our success in carrying out these additional responsibilities will depend upon the will of Congress to appropriate the necessary funds.

The Service further recommends including language to establish a priority ranking system, similar to language in S. 1180 (105th Congress), for certain requirements in the bill. Such a system would allow the Service to address situations on a prioritized basis in the case that sufficient funds are not appropriated to carry out the requirements of the bill on time. Without such a "safety valve," and without the needed appropriations, the Service would likely be subject to even more litigation. Taxpayers will pick up the tab for the lawsuits which will be filed as a result of missed deadlines, and protection for listed and imperiled species will be diminished.

I want to conclude by emphasizing that the Service continues to believe that identification, protection, restoration, and conservation of habitat are paramount to the successful recovery of endangered and threatened species. The scientific determination of habitat necessary for species recovery should be undertaken during the recovery planning process and not as part of a duplicative regulatory process. I again commend the Subcommittee's efforts to address the complex, controversial, and poorly understood issue of critical habitat. We look forward to working with the Committee on critical habitat issues.

Mr. Chairman, this concludes my prepared testimony. I would be pleased to respond to any questions you and other members of the Subcommittee might have.

Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.