Academic journal article UCLA Journal of Environmental Law & Policy

Critical Habitat's Limited Role under the Endangered Species Act and Its Improper Transformation into "Recovery" Habitat

Academic journal article UCLA Journal of Environmental Law & Policy

Critical Habitat's Limited Role under the Endangered Species Act and Its Improper Transformation into "Recovery" Habitat

Article excerpt

I. INTRODUCTION II. THE LEGISLATIVE HISTORY       A. The Endangered Species Act of 1973 and the          Services' 1978 Rule Defining Critical Habitat       B. The 1978 ESA Amendments          1. Overview          2. House Bill 14104          3. Senate Bill 2899          4. The Final Law       C. Subsequent ESA Amendments          1. 1979 ESA Amendments          2. 1982 ESA Amendments III. THE LANGUAGE AND STRUCTURE OF THE ESA SHOWS      THAT CRITICAL HABITAT CONSISTS OF AREAS      ESSENTIAL FOR THE SPECIES' SURVIVAL      A. The Definition of Critical Habitat Distinguishes         Between Occupied and Unoccupied Areas,         Reflecting Congress' Intent that Critical Habitat         Focus on Occupied Areas      B. The Timing of Critical Habitat Designation Is         Consistent With Its Limited Role Under the ESA      C. The Services' Authority to Exclude Areas from         Critical Habitat Is Consistent With Critical         Habitat's Limited Role Under the ESA IV. THE SIERRA CLUB AND GIFFORD PINCHOT DECISIONS      A. The Services' Post-Amendment Rulemakings      B. The Fifth Circuit's Decision in Sierra Club      C. The Ninth Circuit's Decision in Gifford Pinchot      D. The Meaning of the Term "Conservation" V. CONCLUSION 

I. INTRODUCTION

Congress enacted the Endangered Species Act (ESA) (1) in 1973 to provide a program for the conservation of endangered species and to comply with certain treaties and conventions concerning species of wildlife, fish, and plants. (2) Since its enactment, the ESA has evolved into one of the nation's most demanding environmental laws. In Tennessee Valley Authority v. Hill, the Supreme Court, in affirming an injunction preventing the completion of the Tellico Dam to protect a species of minnow called the snail darter, stated that the "plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the cost," and that the ESA "reveals a conscious decision to give endangered species priority over the 'primary missions' of Federal agencies." (3) one of the most confounding aspects of the ESA has been the requirement that critical habitat be designated for species that have been listed as endangered or threatened. (4) The agencies that administer the ESA, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (jointly called the "Services" below), must designate a species' critical habitat at the time a species is listed "to the maximum extent prudent and determinable." (5) Critical habitat normally should be occupied by members of the species, and consists of specific areas that contain "physical and biological features" which are "essential to the conservation of the species" and "require special management considerations or protection." (6) Specific areas that are not occupied may be designated as critical habitat "upon a determination by the Secretary that such areas are essential to the conservation of the species." (7)

Critical habitat has significant legal and economic consequences for landowners and resource users. Section 7(a)(2) of the ESA requires federal agencies to ensure that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." (8) Thus, federal actions may not proceed if they would destroy or adversely modify a listed species' critical habitat, unless a cabinet-level committee called the Endangered Species Committee grants an exception. (9) Moreover, federal agencies must "consult" with the relevant Service prior to proceeding with a proposed action to ensure that "jeopardy" and "adverse modification" standards imposed by Section 7(a)(2) are not violated. (10)

The term "action" is broadly defined in the Services' Section 7 consultation regulations and includes "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. …

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