TESTIMONY OF WILLIAM J. SNAPE, III
IN THE SENATE, COMMITTEE ON ENVIRONMENT & PUBLIC WORKS
REGARDING CRITICAL HABITAT UNDER THE ESA
APRIL 10, 2003
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).
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 <http://ens-news.com/ens/feb2003/2003-02-05-10.asp>
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.