TESTIMONY OF JOHN F. KOSTYACK
SENIOR COUNSEL
NATIONAL
WILDLIFE FEDERATION
BEFORE THE
SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER, SENATE COMMITTEE ON ENVIRONMENT
AND PUBLIC WORKS
APRIL 10, 2003
Good morning, Chairman Crapo and members of the subcommittee. My name is John Kostyack, and I am here to speak on behalf of the National Wildlife Federation, the nation’s largest member-supported conservation education and advocacy organization.
I greatly appreciate the opportunity to testify today regarding critical habitat protections under the Endangered Species Act (ESA). I have been working on ESA issues for nearly ten years, serving as a litigating attorney, a policy analyst and commentator, and most recently, as manager of NWF’s Species Conservation program. Based on this experience, I have developed an ever-increasing recognition of the importance of critical habitat. At the same time, I have come to recognize that significant changes are needed in how the two federal wildlife agencies designate and protect critical habitat. My testimony explains why critical habitat is important and suggests measures that could be taken to make it work better.
THE
IMPORTANCE OF CRITICAL HABITAT
The ESA reaches its 30th
anniversary this year, and there is much to celebrate. Hundreds of species that
were once heading toward extinction are now either recovering or at least
stabilized. Across the country, people recognize the ESA as a vitally important
law for protecting the nation's precious biological heritage.
Yet many of the species on the ESA’s list of
threatened and endangered species are not yet on the path to recovery.
Scientists tell us that the chief reason why so many of our animal and plant
species are declining toward extinction is habitat loss, fragmentation and
degradation. We need to do a better job
protecting, managing and restoring habitats.
We cannot hope to save endangered species until we come to grips with
the continual, piecemeal loss of their habitats, even after their listing under
the ESA. It hardly matters what else we
do for an endangered species if we fail to protect its habitat. Congress itself recognized this essential
point when it enacted the ESA in 1973, stating at the outset its that its
purpose was to conserve “the ecosystems upon which endangered species and
threatened species depend.”
Congress and the Administration should now focus on improving implementation of each of the ESA provisions that conserve habitats. Looking first at the critical habitat provision, as this Subcommittee is doing today, makes sense. For at least three reasons, the ESA’s requirement to designate and protect a listed species’ critical habitat is among the most important of the ESA’s habitat protection provisions.
First, Section 4 of the ESA requires that, with few exceptions, critical habitat be designated for every species listed as either endangered or threatened. The ESA’s implementing regulations require that when designating critical habitat, the U.S. Fish and Wildlife Service or National Marine Fisheries Service (“Services”) must produce maps delineating all designated critical habitat. Drawing lines on a map gives clear guidance to the public about which lands and waters are particularly valuable to listed species. This helps educate people about the natural world they inhabit, and, more importantly, helps to ensure that key habitats are not destroyed out of sheer ignorance. As the U.S. Fish and Wildlife Service stated in connection with its designation of critical habitat for the northern spotted owl:
“[C]ritical habitat serves to preserve options for a species' eventual recovery…[It] helps focus conservation activities by identifying areas that contain essential habitat features (primary constituent elements) regardless of whether or not they are currently occupied by the listed species, thus alerting the public to the importance of an area in the conservation of a listed species.” 57 FR 1796 (emphasis added).
Second, Section 3 of the ESA defines critical
habitat as encompassing all areas “essential for the conservation of the
species,” and defines conservation as those methods and procedures needed to
achieve species recovery. Thus, the
critical habitat provisions are designed to protect more than just the habitat
occupied by the species in its depleted state; they ensure that all habitats
needed for recovery are taken into account.
Third, once a species’ critical habitat is established, Section 7 of the ESA prohibits federal agencies from carrying out, funding or permitting any action that is likely to result in the “destruction or adverse modification” of critical habitat. Thus, Section 7 gives federal agencies a clear mandate to protect the habitat essential for species recovery.
MAKING
THE CRITICAL HABITAT PROVISIONS WORK BETTER
Seven steps by the Administration
and/or Congress would make the ESA’s critical habitat provisions work better
for both people and wildlife.
Define
Which Lands And Waters Are “Essential” to Conservation
Critical habitat designation is essentially a three-step process:
·
First,
the Services must define what habitat areas, whether occupied by the species or
not, are “essential to the conservation of the species,” and what habitat areas
occupied by the species “may require special management considerations or
protection.” 16 U.S.C. § 1532(5).
·
Second,
the Services must consider “the economic impact, and any other relevant impact,
of specifying any particular area as critical habitat.” 16 U.S.C. § 1533(b)(2).
·
Third,
the Services “may exclude any area from critical habitat” if they determine
“that the benefits of such exclusion outweigh the benefits of specifying such
area,” unless they find that a failure to designate a particular area “will
result in the extinction of the species.”
Id.
Unfortunately, the Services often have excluded lands from critical habitat in the first step of this process despite the fact that the lands are “essential to the conservation of the species.” This approach has undermined the vital role that critical habitat plays in species recovery. Only by defining which lands and waters are essential to conservation can the public be informed about which habitats are needed and empowered to begin devising measures for saving those habitats. Any exclusions from critical habitat should be handled in the third step of the designation process, not the first.
The Services have sometimes justified the exclusion of lands essential to the conservation of a species on the ground that they are protected by other regulatory mechanisms and thus may be receiving "special management considerations or protection" within the meaning of ESA §3(5). However, this justification reflects a fundamental misunderstanding of ESA §3(5) and the purpose of critical habitat. Under ESA §3(5), the fact that a particular area is protected through a habitat conservation plan or as a park argues for its status as critical habitat, not against. Although a listed species may already be receiving "special management considerations or protection" on certain parcels of land, it would receive important additional benefits from a critical habitat designation on those parcels. For example, such a designation educates land managers and others about the importance of maintaining and enforcing those management considerations or protections. It also provides a "safety net" of protection in the event those management considerations or protections are removed.
In Center for
Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), a
federal court struck down the Services’ interpretation of ESA §3(5)’s “special
management considerations or protection” language. The court explained that this interpretation – which limits the
number of allowable protections to a listed species’ habitat – is not only
“unsupported by the English language, but runs contrary to one of the
enunciated policies of the ESA.”
The Services should issue new regulations defining
“special management consideration or protection.” The new definition should recognize that the existence of special
management considerations in an area does not operate as a basis for excluding
habitat there from designation. To the contrary, it should lead the Services to
presume that such an area is, in fact, critical habitat.
A consistent methodology for drawing critical
habitat maps is also needed. No
commonly accepted methodology has been developed to date. In some circumstances, the Services have
taken short cuts such as drawing lines around entire regions, encircling both
habitat areas and developed areas. The Service should solicit public and
scientific input on alternative approaches to map drawing, with the ultimate
goal of achieving a uniform methodology that is both cost-effective and
scientifically rigorous.
Change
the Timing of Designations
To ensure that designation of critical habitat is
based on carefully-developed science, Congress must change the deadlines for
critical habitat designations. Under
current law, which requires designation at the time of listing or at most one
year thereafter, the Services have little time to gather the best scientific
thinking on a species recovery needs.
In this general time period, the Services are focused on the challenges
of making the listing determination and on the threats contributing to species
decline, not on what is needed to ensure species recovery. Initial designations should be postponed to
coincide with development of the recovery plan, so that the recovery team’s
thinking helps to inform the decision on the scope of critical habitat. Similarly, the decision on critical habitat
can help inform the recovery plan.
Because the ESA does not currently impose deadlines for completion of recovery plans, Congress should impose deadlines of 3 years from the date of listing for both critical habitat designations and recovery plans. This was the approach taken in S.1100, a bill introduced in 1999 by the late Senator Chafee (R-RI), Senator Crapo (R-ID) and Senator Domenici (R-NM). The bill was approved by the Senate Environment and Public Works Committee and won the support of conservationists, industry groups and the Clinton Administration. It also established a reasonable and enforceable schedule for clearing up the critical habitat backlog. A similarly targeted approach to improving the critical habitat process would be welcome today.
Issue
Guidance on Economic Impact Analysis
In New Mexico Cattle Growers Ass’n v. U.S. Fish & Wildlife Service,
248 F.3d 1277 (10th Cir. 2001), the court upheld an industry challenge to the
ESA §4(b)(2) economic impact analysis of the southwest willow flycatcher’s
critical habitat. Without soliciting
public comment, the Administration elected to adopt this controversial ruling
as its national policy, rather than to fix the underlying problems that led to
the lawsuit. As discussed below, this
decision is wreaking serious havoc with the entire critical habitat
program. New guidance on ESA §4(b)(2)
economic impact analyses is needed to minimize the damage caused by the
Administration’s wrongheaded approach.
In New Mexico Cattle Growers, the industry plaintiffs targeted the U.S. Fish and Wildlife Service’s economic analysis of the southwestern willow flycatcher’s critical habitat designation, which concluded that there would be no costs associated with the designation. This no-cost conclusion was arrived at through use of the Services’ baseline method, which called for analysis only of the impacts of the critical habitat designation, not of the impacts of other ESA protections (such as jeopardy and takings) that follow automatically from listing. Applying the baseline method, the Service found that critical habitat designation alone has no costs. Underlying this finding was the Service’s controversial view that critical habitat designations duplicate the protections provided by the ESA’s jeopardy provision. However, the Tenth Circuit did not question this controversial view of critical habitat. Instead, it overturned the Service’s baseline method, finding that “Congress intended that the FWS conduct a full analysis of all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable co-extensively to other causes.”
Without soliciting public comment or waiting for the
judgment of any other Circuit Court, and without revisiting its controversial
assertions about the redundancy of
critical habitat, the Bush Administration has quietly adopted the New Mexico Cattle Growers holding as
Administration policy. This decision
increases the risk to imperiled species in several ways. First, virtually all of the critical habitat
designations across the country will now likely need to be redone, draining
precious resources away from imperiled species awaiting listing, and delaying
critical habitat protections for species that have never had a designation in
the first place. Second, because the Administration has refused to keep
critical habitat protections in place during the remand periods, habitat
already designated as important for species recovery will lose vital protection
for years while new economic analyses are performed. Third, because the Administration will now begin evaluating the
economic impacts of listing, the difficulty of getting new species listed will
increase. Meanwhile, the longstanding
ESA principle that listing determinations be made based solely on science will
be in jeopardy. Fourth, as
Administration officials have suggested in comments to the media, the extensive
re-write of critical habitat rules will ultimately lead to smaller areas
covered by the critical habitat designations, as the Services begin to use the
ESA §4(b)(2) exclusion authority in unprecedented ways.
To ensure that vital species protections are not lost, a rulemaking is needed on how to perform an ESA §4(b)(2) economic analysis. Whether to follow New Mexico Cattle Growers or whether to reinstate the baseline approach is an important policy question that should be answered only after a full public airing of alternatives. The Administration should begin this process by issuing an advanced notice of proposed rulemaking (ANPR) concerning procedural and substantive standards for implementing Section 4(b)(2). Although an ANPR is not required for such a rule-making, it would allow the public to weigh in with the Administration before its views become locked in.
In an ANPR, and the proposed and final regulation
that follows, the Administration should pay close attention to two issues.
First, any methodology must be cost-effective and
time-sensitive, so that overall ESA implementation is not undermined by the
costs and delays of the Section 4(b)(2) process. This is a strong argument for reinstating the baseline approach
and not following New Mexico Cattle
Growers. It is extremely wasteful
to analyze the impacts of ESA protections other than critical habitat when the
sole purpose of the ESA §4(b)(2) process is to decide the scope of critical
habitat protection.
Second, any methodology must give a fair accounting
to the ecological benefits of designating critical habitat and the costs of not
protecting species and ecosystems. Too
often, economic studies have failed to take into account the ecological limits
of economic activity. Input from
experts in the rapidly growing field of ecological economics should be
solicited to ensure that a truly balanced methodology for economic analysis is
developed.
4. Set Limits on Exclusions
from Critical Habitat
In various ways, the current Administration has
signaled that a major expansion of the ESA §4(b)(2) process for excluding lands
from critical habitat is underway. A
random sampling of recent critical habitat designations shows that this
Administration has begun using ESA §4(b)(2) to exclude sizable parcels of land
from critical habitat designations. In
a New York Times article dated March
17, 2003, Assistant Interior Secretary Manson acknowledged that “we in this Administration have been looking at
[this exclusion provision] quite a bit more robustly than has been done in the
past." In testimony before this
Committee last week, Mr. Manson stated that entire Defense Department
installations should be excluded from critical habitat designations simply upon
a showing that a Sikes Act management plan has been completed. This pronouncement was made despite findings
by the Defense Department’s Inspector General that there is no documented
evidence of implementation of those management plans.
What the Administration has not said about the ESA §4(b)(2) exclusion process is where are the limits. Lands and waters deemed by the Services to be “essential” for species conservation should not arbitrarily be denied protection. Policy guidance setting parameters for the ESA §4(b)(2) exclusion process is needed now, before a host of critical habitat designations are finalized, to ensure that the letter and spirit of the ESA’s critical habitat provisions are not undermined by ESA §4(b)(2) exclusions.
Revise
“Adverse Modification” Regulation
Two years ago, the court in Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001), held that critical
habitat serves the goal of species recovery, and comes into play even when
species survival is not immediately affected.
For this reason, the court struck down the 1986 regulation defining
“adverse modification” of critical habitat, which limited the application of critical
habitat to actions affecting both recovery and survival.
To date, the Administration still has not responded
to this court ruling. In fact, despite
its extensive behind-the-scenes policy making on species-specific critical
habitat determinations, it has never enunciated and sought public comment on
its overall approach to critical habitat.
To date, its species-specific actions have moved in a direction opposite
from what the court in Sierra Club suggested
was necessary. Rather than using critical habitat in a
manner that furthers species recovery, it has weakened critical habitat
protections.
Regulatory action is needed now to redefine “adverse
modification” of critical habitat consistent with the Fifth Circuit’s decision
in Sierra Club. If the Administration believes that critical
habitat means something other than habitat essential to a species recovery,
then it is obliged to state what that meaning is, and explain how the ESA would
achieve its recovery goal in the absence of the critical habitat tool.
In addition to furthering the conservation of listed
species, revising the “adverse modification” regulation would also help the
Administration avoid wasting precious resources in ESA §4(b)(2) economic
analyses. The New Mexico Cattle Growers ruling calling for expanded economic
analyses stemmed from the Service’s rationale that the “adverse modification”
definition is redundant with jeopardy.
If the Administration were to fix its “adverse modification” definition,
then the Services would be free to return to the less costly baseline approach
to ESA §4(b)(2) economic analyses without violating New Mexico Cattle Growers.
The baseline approach would lead consistently to findings of both
positive and negative impacts of critical habitat designation, and thus the
basis for the prohibition against this approach in New Mexico Cattle Growers would disappear.
Educate
the Public
In the March 17, 2003, New York Times article discussed above, developers argued that that any benefit of the proposed critical habitat
designation for the endangered pygmy-owl in Arizona would be outweighed “by the
economic costs of effectively barring development in 1.2 million acres, or
two-thirds of the privately held, developable land in the area.” This assertion, which was not rebutted
elsewhere in the article or in any subsequent statements by the Administration,
is not remotely connected with the truth.
As discussed earlier, a critical habitat designation only affects
actions carried out, permitted or funded by the federal government. In other words, most private land
development is completely unaffected.
Moreover, even where a federal action is contemplated, the designation
of critical habitat does not mean that the action is terminated. It simply means that a consultation must
take place with one of the Services to ensure that the action does not cause
adverse modification of the critical habitat.
Unfortunately, the kind of
alarmism about critical habitat voiced in the New York Times article is frequently employed by individuals
seeking to undermine public support for the ESA, with the ultimate goal of
evading their own responsibilities under the law. This is not surprising.
What is disappointing, however, is the failure of the Services to
clarify for the public what critical habitat does and does not do.
Critical habitat is a key
provision in one of the nation’s most important environmental laws. It is time for the agencies charged with
implementing this provision to launch a public education campaign to explain the
meaning and purpose of critical habitat and to build the necessary public
support for its protection.
Provide
Adequate Funding
The Services’ budgets for ESA implementation has never been adequate. In fact, the chronic budget shortfalls for listing and critical habitat determinations have become worse in recent years as more species have joined the threatened and endangered lists and as the Services have embarked upon a massive reevaluation of their economic analyses.
To make the critical habitat program
succeed, the Administration must request, and Congress must appropriate, the
funds needed to remedy this growing budgetary gap. The nation’s goal of recovering and delisting species can be
achieved only if this essential habitat protection program is properly funded.
CONCLUSION
Thank you for the opportunity to testify today. I would happy to answer any questions that
members of the Committee may have.
