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

DEPARTMENT OF THE INTERIOR

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.

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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

appropriate.

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).

SUPPLEMENTARY INFORMATION:

Background

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

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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

424.12(a)(2)).

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

habitat.

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

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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

species.

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

1995).

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

Benefit

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

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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]

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