U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   04/10/2003
 
William Snape
Vice President and General Counsel
Defenders of Wildlife

Critical habitat designations under the Endangered Species Act

Introduction

Thank you, Mr. Chairman and Ranking Member of the Subcommittee on Fisheries, Wildlife and Water. On behalf of Defenders of Wildlife (Defenders), where I am vice-president and chief counsel, as well as our approximately one million members & supporters, I appreciate the opportunity to address the value of critical habitat under the Endangered Species Act (“ESA” or “Act”), 16 U.S.C. Sections 1531 et seq., particularly pursuant to Section 4 and 7 of the Act. 16 U.S.C. §§ 1533, 1536. I am also chairman of the Endangered Species Coalition Board.

Today I will focus on four basic values of the ESA critical habitat provisions: 1) the legal, or conservation, benefits of critical habitat; 2) the scientific, or biological, benefits of critical habitat; 3) the economic, or value­based, benefits of critical habitat; and 4) the social, or common sense, benefits of critical habitat. My overarching theme is that while the critical habitat provisions of the ESA have tangibly benefited species at relatively low cost, the provisions have nonetheless not reached their full potential.

Legal Benefits

The tangible benefit of critical habitat is reflected in at least two basic ways under the ESA. First, the definition of the term critical habitat says that it is the “specific areas” that are “essential to the conservation of the species.” 16 U.S.C. § 1532(5)(emphasis added). See also 16 U.S.C. § 1532(3)(“conservation” means to use “all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.”). Thus, critical habitat is a fundamental tool in recovering listed species, the goal and mandate of the Act. Second, the ESA Section 7 standards governing “consultations” between the Services (either the Fish and Wildlife Service, FWS, or the National Marine Fisheries Service, NMFS) and a federal action agency (e.g., Forest Service, Department of Transportation or Army Corps of Engineers) are distinctly different depending upon whether a listed species possesses critical habitat or not. See, e.g., Sierra Club v. U.S. FWS, 245 F.3d 434 (5th Cir. 2001)(discussing and differentiating, inter alia, the “jeopardy” and “adverse modification” standards in ESA Section 7(a)(2)).

No species' ecosystem better illustrates the conservation benefit of critical habitat in this context than the endangered cactus ferruginous pygmy owl of southern Arizona's Sonoran Desert. See, e.g., Defenders of Wildlife v. Ballard, 73 F.Supp.2d 1094 (D. Ariz. 1999)(holding several federal agency actions illegal based upon lack of adequate Section 7 consultation in an area defined by critical habitat for the pygmy owl). Here, critical habitat for the owl, which the Administration has voluntarily agreed to vacate as it redoes its economic analysis for the designation, has not only spurred the successful and collaborative Sonoran Desert Conservation Plan, but it has also tempered many potentially inappropriate developments in a region that is still thriving with growth. In fact, the temporary lifting of the critical habitat designation has had the negative result of green­lighting several troublesome projects opposed by local officials.

Scientific Benefits

As confirmed in a definitive study by Dr. David Wilcove of Princeton University and others, by far the leading contributor to wildlife species imperilment is habitat loss. Not surprisingly, many ESA recovery plans reflect this biological reality. This, of course, is the whole policy point behind the critical habitat provisions in the Act. See, e.g., House Committee on Merchant Marine and Fisheries, H.R. Rep. No. 887 (94th Cong., 2nd Sess. at 3). The leading purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1532(b). Ecosystems largely consist of habitat.

The piping plover is a good example of a species that undeniably needs habitat protection, as specified clearly, both in its recovery plans and in all leading scientific literature. Yet, the final rules designating critical habitat for the piping plover are under attack by interests either ignorant of or hostile to the goals of conservation. With only 72 adults left in the Great Lakes breeding ecosystem, this species needs all the help it can get in Michigan, Wisconsin and Minnesota, as well as in its wintering range that includes states such as North Carolina, Florida, and Louisiana. Even more challenging for this species is the fact that its habitat - beaches influenced by ocean or river tides - can change from year to year. Unfortunately, the Administration illegally and unwisely excluded vital areas such as Padre Island National Seashore in its final rule for the piping plover's wintering habitat. See, e.g., Center for Biological Diversity v. Norton, 240 F.Supp.2d 1090 (D. Ariz. 2003)(holding critical habitat designation for Mexican spotted owl to be illegal because it improperly evaluated benefits of critical habitat protection).

Economic Benefits

The process of designating critical habitat under the ESA requires the federal government to assess important economic information about the species' habitat area. See 16 U.S.C. § 1533(b)(2). However, a combination of: 1) severe budgetary constraints; and 2) significant legal confusion regarding the scope of the Act's economic analysis requirement, have hampered implementation of this ESA provision. Perhaps the most glaring present problem is New Mexico Cattle Growers Ass'n v. U.S. FWS, 248 F.3d 1277 (10th Cir. 2001), which held that the FWS must create a second economic baseline to take into account the economic impacts of listing in addition to impacts due to critical habitat alone. The FWS is wasting time and resources complying with this order throughout the entire country, not only because the decision was wrongly decided, but also because it represents bad economics.

No ecosystem better captures the economic centrality of habitat than the Colorado River, one of the most heavily managed and allocated rivers in the world. Like a ribbon of life flowing throughout the arid U.S. West, the mighty Colorado is a whimpering trickle by the time it reaches Mexico, sucked almost dry by the millions of humans dependant upon it. Spurred by the critical habitat designation of large native river fish such as the Colorado squawfish, bonytail chub, and razorback sucker, the federal agencies have finally initiated a rational plan to serve regional people and wildlife protection known as the Lower Colorado River Multi-Species Conservation Plan (MSCP). Although this MSCP presently possesses several key flaws, it is an improvement over the do-nothing past and can be directly attributed to the critical habitat provision in the ESA. See, e.g., Charles Bergman, Red Delta (Fulcrum Press, 2002).

Social Benefits

The Endangered Species Coalition (ESC), of which Defenders and over 400 other citizen groups across the country are a part, understands that there are frequently misperceptions and sometimes even fear over the critical habitat provisions in the ESA. We think these attitudes are misplaced, but we respect the feelings of those who hold them. We believe the answer includes better public education by the Services, a repudiation of the Cattle Growers case (which we don't think even serves the Cattle Growers themselves), and better linking of critical habitat with the recovery objectives in the Act. It should be remembered that the only direct benefit of critical habitat under the ESA occurs only when a federal agency action impacts a listed species with critical habitat.

Two highly imperiled species reinforce our recommendations for increased attention to critical habitat protection. First is the Sonoran pronghorn, North America's fastest land mammal, which is down to as few as 20 individuals in the United States, largely as a result of uneconomic and subsidized grazing on Bureau of Land Management (BLM) lands in southern Arizona. Second is the equally endangered woodland caribou in northern Idaho national forests (i.e., Idaho Panhandle NF), which possesses as few as 12 individuals in the U.S., again as a result of severe habitat loss, in this case old-growth forests. Neither one of these species has the protection of Section 4(b)(2) of the ESA because they were listed before the critical habitat provision became mandatory in 1978. Both species need and deserve critical habitat protection immediately.

Conclusion

For many inter-related reasons, some plainly obvious and others more nuanced, critical habitat is a central aspect of the ESA. Its fate in the coming months and years deserves serious discussion. We support proposals that would strengthen both the ecological and economic implementation of critical habitat for threatened and endangered species. In this regard, we stand with our professional colleagues at the National Wildlife Federation, which is also testifying on this important topic this morning. Thank you for your attention.

Attachment: Critical Habitat Works for Endangered Species, Center for Biological Diversity (2003).

Critical Habitat is Essential to Ecosystem Protection

The Endangered Species Act (ESA) relies on two broad strategies: the listing of species as threatened or endangered, and the designation of critical habitat areas. The listing of species requires that private citizens, states, and federal agencies not “jeopardize” endangered species and that they attempt to mitigate any harm (i.e. “take”) done to them. The ESA's take limitations only apply to the small areas where the species still exist. It does not apply to the much larger area where the species used to live, and where it must reestablish itself if it is to recover. Listing, in and of itself, has proven an effective shield against extinction, but is not sufficient to recover and delist species.

In adding the critical habitat provision to the ESA, Congress clearly saw that species-based conservation efforts must be augmented with habitat-based measures:

“It is the Committee's view that classifying a species as endangered or threatened is only the first step in insuring its survival. Of equal or more importance is the determination of the habitat necessary for that species' continued existence .... If the protection of endangered and threatened species depends in large measure on the preservation of the species' habitat, then the ultimate effectiveness of the Endangered Species Act will depend on the designation of critical habitat.”

Critical habitat contains “all areas essential the conservation of the species” where “conservation” is defined as full recovery. They contain most or all of the places where the species still persists, but more importantly, they contain areas where the species used to live and where it must reestablish itself in order to recover. Federal agencies are not permitted to “adversely modify” critical habitat areas. They must instead manage them for the recovery of the species and the ecosystem upon which it depends. Critical habitat does not affect private lands unless their development requires federal permits.

Critical Habitat Works

In 1994 and 1996, the U.S. Fish and Wildlife Service assessed the status of all threatened and endangered species under its jurisdiction.' Of the 560 species with a known status in 1994, those with critical habitat were 11 % less likely to be declining and 14% more likely to be stable than species without critical habitat.' Of the 697 species with a known status in 1996, those with critical habitat were 11% more likely to be improving and 13% less likely to be declining than those without critical habitat.' The benefits of critical habitat accrue over time: those with critical habitat for over five years were in better shape than those with critical habitat for five years or less.

The following examples show how critical habitat designation makes real, on-the-ground improvement for ecosystems and species.

Peninsular Bighorn Sheep. The Peninsular bighorn sheep inhabits the foothills of Southern California's Peninsular Mountain Ranges. It has declined by 77% due to diseases spread by livestock, overgrazing by livestock, ORVs, roads, and urban sprawl. Though the Fish and Wildlife Service first announced in 1985 that it may be endangered, and listed it as an endangered species in 1998, little was done to protect its habitat. By 2000, there were just 334 animals left, leaving more golf courses in the Palm Springs area than bighorn sheep.

In 2001, the U.S. Fish and Wildlife Service designated 845,000 acres of critical habitat. Suddenly, land management began to change. The Bureau of Land Management removed livestock from all 226,026 acres of critical habitat under its jurisdiction, closed illegal roads, and instituted seasonal road closures in critical lambing areas. These protections were not offered to areas outside critical habitat. The U.S. Forest Service likewise removed livestock from all 17,982 acres of critical habitat under its jurisdiction. Local cities have enacted growth decisions to protect portions of the bighorn's critical habitat.

Desert Tortoise. Desert tortoises in the Mojave Desert have declined by 90% since the 1930's due to livestock overgrazing, car collisions and respiratory disease. Though biologists first warned of its possible extinction in 1970 and the U.S. Fish and Wildlife Service listed it as an endangered species in 1994, few proactive steps were taken to protect its habitat. In response to complaints that its critical habitat areas were being degraded, the Bureau of Land Management issue decisions in 2000 and 2001 prohibiting new or expanded mining operations on 3.4 million acres of the critical habitat, prohibiting or limiting livestock grazing on 2.2 million acres of critical habitat, closing approximately 4,500 miles of illegal roads, and prohibiting off-road vehicles on approximately 500,000 acres of the critical habitat. Tortoise habitat outside designated critical habitat zones were not given these protections.

Steller Sea Lion. In western Alaska, Steller sea lion populations have plummeted by up to 90% since the 1970s, due in part to a massive increase in large-scale commercial fishing. The National Marine Fisheries Service listed the sea-lion as a threatened species in 1990, designated critical habitat in 1993, and upgraded it to endangered status in 1997. In response to complaints about overfishing within critical habitat zones, the National Marine Fisheries Service closed or limited specific commercial fisheries within the sea-lion's critical habitat. High levels of fishing still occur outside the critical habitat areas.

Agency Resistance Reflects Illegal Reagan Era Policy

Since habitat loss is the primary cause of endangerment for 84% of all listed species, Congress stipulated that barring rare circumstances, all species should have critical habitat areas. Prior to 1987, the U.S. Fish and Wildlife Service regularly implemented this portion of the ESA (see figure 1). After 1987 the U.S. Fish and Wildlife Service rarely designated critical habitat. The shift came in response to a policy enacted by the Reagan administration eliminating recovery as the standard for critical habitat management.' Instead, Reagan required that critical habitat be managed under the much narrower extinction avoidance standard. In this emasculated form, critical habitat added little to the protections which automatically ensue with species listing. As University of Virginia School of Law professor E. Perry Hicks wrote:

“Historically this protection [critical habitat] has had enormous practical consequences, but subsequent to the Department of Interior's 1986 amendments to regulations implementing section 7 of the ESA, it is doubtful that critical habitat has any practical value.”

In the late 1990's, endangered species advocates won a series of lawsuits putting critical habitat designation back on track. In 2001, the 5th circuit court of appeals struck down the Reagan policy, affirming that critical habitat must be managed at the higher recovery standard.' In 2001, a similar decision was rendered in the 9`h circuit.' Thus the stage has been set for improved ecosystem management through critical habitat designation.

Bush Administration Slashing Critical Habitat Designations

The Bush administration has adopted an illegal policy prohibiting final critical habitat rules from expanding upon proposed rules, even if such expansion is called for by scientific peer reviewers. Between the proposed and final decisions, it decreased the size of 75% of the 32 critical habitats it designated in 2001 and 2002. It did not increase the size of any. Cumulatively, the proposed designations were reduced by 51%, thus depriving almost 39 million acres of habitat protection.

In the case of the San Bernardino kangaroo rat, the administration reduced the proposed rule by 22,113 acres, contradicting all six peer reviewers. In the case of the Mexican spotted owl, it reduced the critical habitat proposal by 8.9 million acres over the objections of agency biologists. A federal judge struck down the decision in January 2003, calling the designation “nonsensical” because it excluded over 90% of all known owl locations and virtually all lands under actual threat of logging.

Budget Being Used as a Weapon Against Critical Habitat and Listing

Ignoring the fact that species with critical habitat are recovering faster than those without, ignoring the many examples of critical habitats being managed better than non-critical habitat areas, and ignoring the court orders striking down the 1986 Reagan policy, the Bush administration continues to insist that critical habitat protection should be limited to avoiding extinction and is thus duplicative of the protections that ensue with listing. Thus the Bush administration attempts to justify its refusal to protect endangered species' habitats.

Unable to sway the courts or environmentalists, the Bush administration is using its budget authority as a weapon to limit both the designation of critical habitat and the listing of endangered species. While the U.S. Fish and Wildlife Service says it needs $137 million to address the backlog of critical habitats and listings,9 the Bush administration asked congress for just $9 million in FY 2003 and $12.3 million for FY 2004. The requests are so inadequate that the Fish and Wildlife Service has announced that it will not be able to list any species or designate critical habitats in FY 2003 other than those already ordered by the courts.” It is no wonder that in 2001 and 2002, the Bush Administration listed fewer species under the ESA than any two year period since Reagan in 1982-1983.

While all other USFWS ESA line items have increased at least 1,319% since 1979, the listing and critical habitat budget increased just 406%. Accounting for inflation, it has remained nearly static since 1979 (see figure 2). As a proportion of the total USFWS ESA budget, listing and critical habitat has declined from 24% to 3% (see figure 3).

1. House Committee on Merchant Marine and Fisheries, H.R. Rep. No. 887, 94th Cong. 2nd Sess. at 3(1976)

2. U.S. Fish and Wildlife Service, U.S. Department of the Interior Report to Congress, Recovery Program, Endangered and Threatened Species (1994); U.S. Fish and Wildlife Service, U.S. Department of the Interior Report to Congress, Recovery Program, Endangered and Threatened Species (1996).

3. Jeifiey Rachlinski,”Noah by the Numbers: An Empirical Evaluation of the Endangered Species Act,” 82 Cornell Law Review 356-89 (1997).

4. Martin Taylor and Kieran Suckling, “An empirical assessment of the effect of critical habitat, recovery plans, and economic conflict on the status of endangered species,” Center for Biological Diversity, Tucson, AZ.

5. 50 C.F.R. 402.02 (1986).

6. E. Perry Hicks, “Designation Without Conservation: The Conflict Between the Endangered Species Act and its Implementing Regulations,” Virginia Environmental Law Journal (2000).

7. Sierra Club v. U.S. Fish and Wildlife Service and National Marine Fisheries Service, 245 F.3d at 441-42.

8. Natural Resources Defense Council et al. v. United States Department of Interior et al., CV 99­5246 SWV (CTx).

9. J. R. Pegg, “Conservationists Warn of Bush Budget Tricks,” Environmental News Service, February 5, 2003

10. Letter from Anne Badgley, Regional Director, Pacific Region, U.S. Fish and Wildlife Service, to Mike Peterson, Executive Director, The Lands Council, February 10, 2003.