U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   04/10/2003
American Farm Bureau Federation
Critical habitat designations under the Endangered Species Act

The American Farm Bureau Federation (AFBF) appreciates the opportunity to submit this statement for the hearing record.

Farms and ranches comprise much of the privately owned open space in this country. Farmers and ranchers own much of the habitat for endangered or threatened species, and for all wildlife. Approximately 76 percent of all listed species occur to some extent on privately owned lands and more than one-third occur exclusively on privately-owned lands. Agricultural lands are also the buffers between wildlife habitat and development.

Section 4 of the Endangered Species Act requires that “critical habitat” be designated for any listed species unless such designation is not prudent or would not benefit the species. “Critical habitat” is defined as “the specific areas within the geographical area occupied by the species” on which are found “those physical or biological features essential to the conservation of the species and which may require special management considerations or protection.” Critical habitat may also include habitat currently not occupied by the species “upon a determination by the Secretary that such areas are essential for the conservation of the species.” Critical habitat may include privately owned lands as well as federal, state or tribal lands.

Critical habitat was envisioned as only area that is essential for the species, to the point where “special management considerations” might need to be imposed. “Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the species.”

Section 4 of the ESA also requires the Secretary to determine critical habitat only after “taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” This requirement is important because it is one of only two places in the entire Endangered Species Act that Congress specifically allows economic impacts to be considered in making decisions.[1] The Secretary “may exclude any area from critical habitat if he determines the benefits of such exclusion outweigh the benefits of specifying such area,” unless the species will become extinct if critical habitat is not listed.

The effect of designating an area as “critical habitat” may cause serious consequences to the owner or user of the designated land. The section 7 consultation requirements will be applied any time a landowner seeks to undertake any action with a federal nexus that may result “in the destruction or adverse modification of critical habitat,” a circumstance not present on lands not so designated. “Adverse modification” is broad enough to include almost any action taken on critical habitat lands. This can result in the loss of use of lands designated as critical habitat. In addition, critical habitat designation allows land to be restricted by the Endangered Species Act even when there are no listed species on that land.

Since critical habitat lands are defined as areas “which may require special management considerations or protection,” they are always subject to the possibility that their use may be further restricted to fulfill the purpose of the designation. Landowners are hesitant to make full use of critical habitat lands because of this.

At least one study conducted in the habitat area for the black-capped vireo and golden checked warbler near Austin, Texas, found that property values declined significantly for areas designated as critical habitat.

Designation of critical habitat had not been a high priority of the Department of Interior under previous administrations. As a result, despite a rising number of species listings, fewer and fewer “critical habitat” designations were made. That all changed when courts began ordering the Department to designate critical habitat.

Following are some concerns and issues of the American Farm Bureau Federation with regard to critical habitat.

1. The Department Must Give Full Consideration to Economic Impacts as Required by New Mexico Cattle Growers Decision.

The New Mexico Cattle Growers decision marks a milestone in the evolution of critical habitat designations. It required the full economic impacts of critical habitat designation be considered and weighed against the benefits of designation. Prior to that decision, the Department of Interior had only given lip service to the economic impact requirement. The court ruled that the method the Department had employed in analyzing the economic impacts of critical habitat designations was wrong. Every critical habitat designation made up to May 11, 2001, was therefore wrong.

There has been little visible progress in complying with this court decision. No new regulations have been proposed. No new guidance or policy seems to have been enacted. No process for correcting the erroneous pre-2001 designations has been proposed.

Critical habitat designations can cause significant economic impact to farmers and ranchers. Productive farm and ranch lands can lose much of their value if their use is restricted due to critical habitat designation. Critical habitat on farm or ranch lands will also subject farmers and ranchers to section 7 consultations for virtually any action they propose to take within the critical habitat area.

It is extremely important that the full economic impacts of a proposed designation on privately owned farm or ranch lands be considered before a designation is made. If the cost to the landowner is greater than the benefits of designation of critical habitat to the species, then that farm or ranch land should not be included within the critical habitat. This should apply not only to future designations, but also to all of the designations that were done improperly.

Full economic consideration is not only desired, but is required. An unchallenged federal appellate court decision ruled against the old method for conducting economic analyses nearly two years ago. It is past time to implement this decision.

2. Critical Habitat Should Not be Designated in Areas Not Occupied by the Species Unless there is Conclusive Proof that the Area is Essential for Conservation.

Another major issue of concern to farmers and ranchers is the designation of critical habitat that includes areas not currently occupied by the species. The problem is especially acute in cases of river or stream habitat where uses are restricted and buffer zones imposed on areas designated as critical habitat.

For example, the Department of Interior recently designated over 1,100 miles of rivers in Oklahoma, Texas, New Mexico and Kansas as critical habitat for the Arkansas River Shiner. Of the 1,100 miles designated, about half currently contains shiners. The designation also includes buffer zones of 300 feet on each side of waterways designated as critical habitat. Almost 99 percent of the land along the designation is privately owned. This situation creates significant hardship for farmers and ranchers and all landowners in the designated area.

The designation was made with very little explanation why “essential” habitat must include twice as much river area as is now occupied. Arkansas River Shiners do not require exclusive territory within a river. Instead of bearing the burden to justify its decision, the Department has placed the burden on challengers of the decision to prove why the decision was wrong.

The concept of critical habitat was designed to specially protect those areas essential for the species. As such, Congress allowed critical habitat lands to be burdened with greater restrictions than non-designated lands. As a result, there must be greater justification given by the Department for placing those restrictions on private lands.

This is especially true in the case of unoccupied lands being included within a designation. The ESA does not permit restrictions to be placed on such lands if they are not part of a critical habitat designation and extreme care must be exercised to ensure unwarranted or unnecessary restrictions in the name of critical habitat are not placed on lands not otherwise subject to federal restriction.

The need for proceeding cautiously in designating unoccupied habitat as “critical” is even greater when considering the intended purpose of critical habitat. As lands “essential for the conservation of the species,” it is more difficult to justify including lands not occupied by that species.

It is therefore imperative that “critical habitat” be limited to currently occupied habitat, unless there is conclusive proof demonstrated by the designating agency that such unoccupied habitat will become inhabited in the near future if protected and unless the agency also conclusively proves the unoccupied habitat is essential for the conservation of the species.

3. Congress Must Reinforce the Original Intent of the Critical Habitat Concept and its Relationship to Non-Designated Species Habitat.

There are some who see little value to critical habitat. They argue that the concept adds nothing to the protection of species or habitat. A major reason for this perception is the administration of the ESA has encroached on land use restriction to a far greater degree than Congress intended. The Department itself questioned the usefulness of critical habitat in a guidance proposed in 1999 (but never enacted).

Congress seemed to intend that “critical habitat” should mean the specific areas within the geographical range of the species that is essential for survival. It is to be subject to “special management considerations or protections,” which is beyond what Congress had in mind for other habitat. Critical habitat is thus an important part of the statutory scheme. It is supposed to be the habitat of a species where the agency is to focus its management activities in order to conserve the species. The definition specifically provides that “Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.”

Federal agencies that loosely and wrongly interpret the “critical habitat” area too broadly, apply the same restrictions to a species’ entire habitat as are supposed to be applied to truely critical habitat. Such an interpretation ignores the special nature of critical habitat, the special management considerations it envisions and is directly contrary to the above-cited provision that it shall not include the entire habitat.

In Sweet Home Chapter of Oregon v. Babbitt, the U.S. Supreme Court specifically rejected the notion that all habitat was subject to the regulatory reach of the Fish & Wildlife Service under the ESA. The Court interpreted the “harm” definition within section 9 of the Act to reach habitat modifications that actually resulted in physical impacts to the species. Under the reach of that case, any adverse impacts to habitat that is not critical and that does not physically impact a member of the species in not actionable.

The interpretation of Sweet Home would also explain the distinction between the standards of “jeopardize the continued existence of the species” and the “adverse modification of habitat determined to be critical.” The former is applied to actions that might apply to the species directly, while the latter is applied to actions affecting habitat. Since critical habitat is defined as habitat “essential to the conservation of a species,” the two standards can be interpreted almost the same, but only in the context of a viable critical habitat provision. For a species without designated critical habitat, the section 7 consultation provision can only apply to actions directly affecting the species.

In order for “critical habitat” to have meaning, Congress must reinforce its original intent as habitat that is essential for the conservation of the species, and which may require special management considerations.

4. Private Landowners Should Not Be Penalized for Critical Habitat on their Property.

As indicated above, private landowners may suffer significant economic impacts as a result of having part, or all, of their lands designated as “critical habitat” for a listed species. The value of their land may decline as a result of the designation, they may be restricted in how they might use their land, or they may be burdened with additional section 7 consultation costs and obligations.

Privately owned lands when correctly designated as “critical habitat,” provide a significant public benefit. They are deemed “essential” for the conservation of a listed species and possibly might prevent that species from becoming extinct. Private landowners should not be expected to bear this cost alone.

It is incumbent upon the government to share in the cost of maintaining this habitat that is essential for a listed species. There is a real opportunity for the government to provide an innovative program to maintain essential habitat, enhance the species and not penalize the owner of the land on which essential habitat is found.

Purchasing ownership or conservation easements in critical habitat is one answer, but should not be viewed as the first or only option. We firmly believe providing incentives to private landowners to maintain critical habitat offers the best opportunity to recover the affected species. Active management through landowner participation reaps greater benefits than passive management or negative enforcement. If critical habitat is to have any meaning, or any role in species conservation, landowners must participate in its maintenance and management.

We strongly urge Congress to enact a program that recognizes the contributions of private landowners with critical habitat on their property and also recognizes the public responsibility to assist them in maintaining habitat that is critical for a listed species.

5. Military Exemption from Critical Habitat Requirements Will Likely Increase the Burdens on Private Landowners.

We strongly support the adequate training and military preparedness and readiness of our military. Restrictions placed by environmental statutes should not hamper the readiness or diminish the training of our armed forces.

Lost in the debates on the requested waivers for the military, however, is the fact that private landowners adjacent to or near affected military bases are likely to shoulder the increased burdens of additional habitat requirements for listed species. Critical habitat that would not be placed on military training grounds will likely instead be placed on privately owned lands.

We ask Congress and federal agencies to consider how these private landowners will be compensated for assuming these additional restrictions.

[1] The rarely used Endangered Species Committee is the other.