A Critical Discussion of Critical Habitat Designations: Is Compliance with the National Environmental Policy Act Required?
Coleman, Mele N., Environmental Law
I. INTRODUCTION II. BACKGROUND A. The National Environmental Policy Act of 1969 1. Overview of NEPA 2. The Council on Environmental Quality's Implementing Regulations 3. Clarifying the Boundaries of NEPA: Judicially Created Exemptions to NEPA B. The Endangered Species Act of 1973 1. Overview of the ESA 2. Section 4 of the ESA and Its Implementing Regulations C. Summary of the Circuit Split on NEPA's Application to Critical Habitat Designations 1. The Ninth Circuit's Approach 2. The Tenth Circuit's Approach III. HOW THE CIRCUIT SPLIT AFFECTS AGENCY PRACTICE IV. A CRITICAL ANALYSIS OF THE CURRENT JUDICIAL APPROACHES A. The Ninth Circuit Should Not Rely on Douglas County's "Displacement" Exemption B. The Tenth Circuit Should Re-Examine the Catron County Rationale V. A FRESH PERSPECTIVE ON HOW TO RESOLVE THE CIRCUIT SPLIT A. The Functional Equivalence Exemption Should Apply to Critical Habitat Designations B. Federal Actions That Do Not Alter the Physical Environment Do Not Trigger NEPA VI. CONCLUSION
The following discussion of critical habitat designations stems from a story about two little fish and an owl that began over twenty years ago. The Endangered Species Act of 1973 (1) (ESA) plays a key role in the story.
The ESA aims to conserve endangered and threatened species and protect the ecosystems on which such species depend. (2) To carry out this purpose, section 4 of the ESA requires that the Secretaries of the United States Department of the Interior and the United States Department of Commerce (Secretaries) list species that they determine are in need of the ESA's protections as "endangered" or "threatened," (3) and, "to the maximum extent prudent and determinable," (4) concurrently designate habitat that they find is "essential to the conservation" (5) of such species as "critical habitat." (6) The Secretary of the Department of the Interior implements the ESA through the United States Fish and Wildlife Service (FWS) and the Secretary of the Department of Commerce implements the ESA through the National Marine Fisheries Service (NMFS), (7) a sub-agency of the National Oceanic & Atmospheric Administration (NOAA). (8) Once a species is listed under section 4, it can receive the safeguards afforded by the most protective provisions of the ESA--section 7 and section 9. (9)
Section 9 of the ESA applies broadly to "any person" (10) and prohibits various actions that affect listed species, (11) including the significant modification or degradation of habitat. (12) Unlike section 9, "Section 7 applies only to federal agencies." (13) Among other things, section 7 requires that each federal agency consult with the agencies that implement the ESA to "insure that any action authorized, funded, or carried out by such agency ... is not likely to ... result in the destruction or adverse modification of [a species' critical habitat]." (14)
Because compliance with section 7 limits the use of federal lands that are designated as critical habitat, plaintiffs whose livelihoods are intertwined with the use of such federal lands have litigated over the validity of critical habitat designations. (15) Such litigation has been most controversial when focused on the issue of whether critical habitat designations require compliance with the National Environmental Policy Act of 1969 (16) (NEPA). (17) This controversial issue is the focus of the sixteen-year-old circuit split that truly began over twenty years ago because of two little fish and an owl. (18)
At first, the two little fish (19) and the owl share similar stories. In 1986, FWS listed the spikedace (Meda fulgida) and the loach minnow (Tiaroga cobitis) as threatened pursuant to the ESA, (20) in part because human activities significantly decreased and degraded the habitat available to the two fish. …