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Critical habitat's limited role under the Endangered Species Act and its improper transformation into "recovery" habitat.

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." (11) The term includes "the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid." (12) Consequently, the issuance of various federal permits and authorizations in connection with private land uses may trigger the application of Section 7(a)(2).

As federal regulatory programs have expanded, an increasing number of non-federal activities require some sort of federal permit or approval, or have some other federal nexus that triggers Section 7(a)(2) and the duty to avoid the adverse modification of critical habitat. (13) Consequently, private landowners are often required to consult with the Services when they need federal permits and authorizations to utilize their property. (14) And beginning in the 1990s, the Services became increasingly aggressive in exploiting the Section 7 consultation process to control how land and water resources are used. (15) Therefore, the designation of an area as critical habitat is likely to result in restrictions on land and water uses that go beyond those caused by a species' listing and application of the jeopardy standard. Critical habitat is particularly problematic when it includes land unoccupied by members of the species, because in the absence of critical habitat, Section 7(a)(2) would not be triggered. (16)

At the same time, critical habitat designations by the Services have expanded dramatically, often including vast expanses of land. (17) Given that habitat loss is frequently the principal justification for listing a species, common sense suggests that if there are millions of acres of land that contain the physical and biological features essential to the species, the species should not be listed. In many cases, however, areas designated as critical habitat are unoccupied and lack habitat essential for the species' survival. Instead, they are set aside for future population expansion--a practice Congress strongly criticized in 1978 when it amended the ESA to restrict critical habitat. (18)

Finally, in 2014, the Services proposed dramatic changes to their rules governing the designation of critical habitat and to the regulatory definition of "destruction or adverse modification." (19) These proposed rule changes would effectively convert critical habitat into "recovery habitat" by authorizing areas that lack the physical and biological features necessary to support the species to be designated as critical habitat and preserved in the hope that these features may develop later, and defining "destruction or adverse modification" as impairment of the species' recovery. (20)

The legal underpinning of the Services' proposed rules are two circuit court decisions, Gifford Pinchot Task Force v U.S. Fish and Wildlife Service, (21) and Sierra Club v. U.S. Fish and Wildlife Service, (22) which held that the Services' 1986 regulatory definition of "destruction or adverse modification" was invalid because the definition emphasized impacts to the species' survival. (23) In both cases, the court equated the term "conservation" (24) with recovery and concluded that "destruction or adverse modification" should be a recovery-based standard. (25) As discussed below, the courts read the term "conservation" far too narrowly. As used in the ESA, "conservation" has its ordinary meaning--to manage and protect wildlife--and includes actions that support a species' survival. It is not limited to actions that recover listed species.

More critically, however, each court relied on the ESA's legislative history to support its holding. (26) In Gifford Pinchot, the Ninth Circuit strongly criticized the Services for ignoring the intent of Congress, describing the regulatory definition of "destruction or adverse modification" as "blatantly contradictory to Congress' express command" and a "failure ... to implement Congressional will." (27) Yet, as explained below, Congress has clearly indicated that critical habitat should be limited to specific areas that are essential to the species' survival and should not include areas for future population expansion.

Notwithstanding these errors and the conflict between their holdings and the legislative history, Sierra Club and Gifford Pinchot have been cited as authoritative, allowing critical habitat to be transformed into "recovery" habitat. (28) Moreover, in their proposed rule redefining the term "destruction and modification," the Services cited and discussed Sierra Club and Gifford Pinchot to justify this rule change, (29) and further explained:
   [T]he courts have concluded that Congress intended that
   "conservation and survival be two different (though complementary)
   goals of the (Act)." Gifford Pinchot at 1070. In light of
   congressional intent that critical habitat be established for
   conservation purposes, the courts concluded, and we agree, that the
   purpose of establishing "critical habitat" is for the government to
   designate habitat "that is not only necessary for the species'
   survival but also essential for the species' recovery." Id. From
   these cases, it is clear that any definition of "destruction or
   adverse modification" must reflect the purpose for which the
   critical habitat was designated--the recovery of the species. (30)


Like the Gifford Pinchot and Sierra Club courts, the Services failed to carefully review the legislative history to ascertain Congress' intent, repeating the mistake made by those courts.

The following section of this article provides a detailed discussion of the legislative history pertaining to critical habitat, focusing on the amendments enacted in 1978, which added the definition of critical habitat and the procedures for its designation and required that economic and other impacts be considered. This article will then discuss how the language and structure of the ESA supports critical habitat's narrow scope and limited role. Finally, this article discusses Gifford Pinchot and Sierra Club in greater detail. As explained below, the Sierra Club court badly misread the legislative history, while the Gifford Pinchot court relied on Sierra Clubs erroneous analysis to support its holding. The term "conservation" is also discussed, including this term's use in various statutory provisions and in the Services' regulatory documents in the ordinary sense of managing and protecting a resource.

II. THE LEGISLATIVE HISTORY

A. The Endangered Species Act of1973 and the Services' 1978 Rule Defining Critical Habitat

As originally enacted in 1973, the ESA contained no definition of critical habitat and no procedures or requirements for determining what areas should be specified as critical habitat. (31) The only reference to critical habitat appeared in the original, one-paragraph version of Section 7, which stated:
   The Secretary shall review other programs administered by him and
   utilize such programs in furtherance of the purposes of this Act.
   All other Federal departments and agencies shall, in consultation
   with and with the assistance of the Secretary, utilize their
   authorities in furtherance of the purpose of this Act by carrying
   out programs for the conservation of endangered species and
   threatened species listed pursuant to Section 4 of this Act and by
   taking such action as necessary to insure that actions authorized,
   funded, or carried out by them do not jeopardize the continued
   existence of such endangered species and threatened species or
   result in the destruction or modification of habitat of such
   species which is determined by the Secretary, after consultation,
   as appropriate with the affected States, to be critical. (32)


The 1973 Act's legislative history does not discuss critical habitat in any detail, which is not surprising given that the Act only mentions critical habitat once. The legislative history indicates that Congress believed critical habitat should be acquired pursuant to ESA Section 5 (33) and set aside, rather than regulated through the adverse modification standard. (34) In fact, the House Committee Report estimated that by 1976, about 35 percent of the annual cost of the entire ESA program would be for "habitat acquisition." (35) The Senate Committee Report also stated that "an accelerated land acquisition program is essential" to protect habitat for endangered wildlife. (36) Finally, the conference committee report, in describing Section 5, stated:
   Any effective program for the conservation of endangered species
   demands that there be adequate authority vested in the program
   managers to acquire habitat which is critical to the survival of
   those species. (37)


In short, while the 1973 legislative history is limited, it suggests Congress intended critical habitat to be habitat essential to the species' survival and that land containing such habitat should be acquired and protected, rather than regulated, through Section 7.

As explained, the 1973 Act contained only one mention of critical habitat and no guidance on how Section 7 was intended to work. To address this uncertainty, the Services jointly issued guidelines to other federal agencies in 1976 and, after noticeand-comment rulemaking, regulations in 1978. (38) The regulations defined "critical habitat" as:
   [A]ny air, land, or water (exclusive of those man-made structures
   or settlements which are not necessary to the survival and recovery
   of a listed species) and constituent elements thereof, the loss of
   which would appreciably decrease the likelihood of the survival and
   recovery of a listed species or a distinct segment of its
   population. The constituent elements of critical habitat include,
   but are not limited to: physical structures and topography, biota,
   climate, human activity, and the quality and chemical content of
   land, water, and air. Critical habitat may represent any portion of
   the present habitat of a listed species and may include additional
   areas for reasonable population expansion. (39)


As discussed below, Congress believed this definition was too broad and amended the ESA to narrow the scope of critical habitat to focus on species' survival and reduce its regulatory impact on land uses.

B. The 1978 ESA Amendments

1. Overview

In 1978, Congress enacted major amendments to the ESA. (40) The amendments were considered and passed in the wake of the Supreme Court's decision in Tennessee Valley Authority v. Hill,41 following extensive oversight hearings conducted by the Senate Subcommittee on Resource Protection in July 1977, and by the House Merchant Marine and Fisheries Committee in May and June 1978. (42) As one Congressman stated, the goal of the 1978 Amendments was to "mak[e] the agency in charge of enforcing the provisions of the [ESA] conform to its original intent." (43)

At that time, there was widespread recognition in Congress that the ESA was flawed and administered improperly. Senator Garn's comments summarized the views of a number of members of Congress:
   I think it was very important that the [ESA] was passed in 1973,
   but I think what we have seen happen is what often happens in
   Congress. There obviously was a problem. We were building without
   regard to various species. We were not as concerned about the
   environment as we should have been. But then we passed an act that
   goes to the other extreme. It goes too far, and beyond correcting a
   problem that needed to be corrected, we create new side effects
   that were not foreseen at the time.

   ... The [ESA] passed the Senate extremely easily, with no
   dissenting votes. But, talking to many of my colleagues, I learn
   that they certainly would not have voted for it if they had known
   the implications and the extremes to which the act would be
   carried. (44)


In particular, the breadth of the Service's definition of critical habitat and how critical habitat was being designated and used to stop federal projects disturbed Congress. (45) As a result, the standards and requirements for critical habitat, including the term's statutory definition, were enacted in the 1978 Amendments with the purpose of limiting the scope and regulatory impact of critical habitat.

2. House Bill 14104

House Bill 14104, as reported out of the House Merchant Marine and Fisheries Committee, contained a definition of critical habitat largely modeled after the definition in the Services' 1978 regulations. This definition provided:
   The term critical habitat for an endangered species or threatened
   species means any air, land, or water area (exclusive of those
   manmade structures or settlements which are not necessary to the
   survival and recovery of a listed species) and constituent elements
   thereof, the loss of which would significantly decrease the
   likelihood of conserving such species. (46)


The committee report accompanying House Bill 14104 emphasized that this definition was intended to restrict the scope of critical habitat:
   The term "critical habitat" is defined for the first time. The
   definition is modeled after that found in present Department of
   Interior regulations. Under the present regulations, critical
   habitat includes air, land or water areas--the loss of which would
   appreciably decrease the likelihood of conserving a listed species.
   Under the present regulations, the Secretary could designate as
   critical habitat all areas, the loss of which would cause any
   decrease in the likelihood of conserving the species so long as
   that decrease would be capable of being perceived or measured.

   In the Committee's view, the existing regulatory definition could
   conceivably lead to the designation of virtually all of the habitat
   of a listed species as its critical habitat.

   Under the definition of critical habitat included in H.R. 14104,
   air, land or water areas would be designated critical habitat only
   if their loss would significantly decrease the likelihood of
   conserving the species in question. The committee believes that
   this definition narrows the scope of the term as defined in th e
   existing regula tions. (47)


The committee also directed the Services to "be exceedingly circumspect in the designation of critical habitat outside the presently occupied area of the species." (48)

As explained above, the Services' then-existing regulations defined critical habitat as "any air, land, or water (exclusive of those man-made structures or settlements which are not necessary to the survival and recovery of a listed species) and constituent elements thereof, the loss of which would appreciably decrease the likelihood of the survival and recovery of a listed species or a distinct segment of its population." (49) In House Bill 14104, the word "significantly" was substituted for "appreciably" and the word "conserving" was substituted for "survival and recovery," eliminating the reference to recovery. In addition, the definition eliminated the regulatory definition's authorization to include as critical habitat "additional areas for reasonable population expansion."

During the House floor debate on House Bill 14104, a number of Congressmen stated that the committee bill did not go far enough in limiting critical habitat and the Services' discretion when critical habitat is designated. Representative Bowen, for example, explained:
   The present law provides no definition of what critical habitat is,
   and [House Bill 14104] makes some steps in that direction. It
   points out that critical habitat must include the range the loss of
   which would significantly decrease the likelihood of preserving
   such species. So we have given some fairly rigid guidelines.

   ... I believe the majority of the House is in agreement on that,
   that the Office of the Endangered Species has gone too far in just
   designating territory as far as the eyes can see and the mind can
   conceive. What we want that office to do is make a very careful
   analysis of what is actually needed for survival of this species.
   (50)


In response to the concerns expressed by Representative Bowen and other Congressmen, (51) Representative Duncan explained that he was offering an amendment to the bill "to define critical habitat to be that area essential to the preservation and conservation of the species." He added, "if we are concerned with critical habitat, that word critical' implies essential to its survival." (52) His floor amendment struck the existing definition of critical habitat in the bill and substituted the following:

(6) The term "critical habitat" for a threatened or endangered species means-

(A) the specific areas within the geographic area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (i) which are essential to the conservation of the species and (ii) which require special management consideration or protection; and

(B) specific areas periodically inhabited by the species which are outside the geographic area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act (other than any marginal habitat the species may be inhabiting because of pioneering efforts or population stress), upon a determination by the Secretary at the time it is listed that such areas are essential for the conservation of the species. (53)

As discussed below, this definition is similar to the amended definition adopted by the Senate and ultimately included in the final version of the 1978 Amendments.

Representative Duncan explained that his amendment to the bill was intended to further narrow the scope of critical habitat, noting that the committee had relied on the Services' definition of critical habitat and "changed only the word 'appreciably' to the word 'significantly'." (54) In Representative Duncan's opinion, the committee had tried to address the lack of a critical habitat definition, "but failed miserably in doing so." (55) He went on to explain:
   I think that in order to be consistent with the purposes of this
   bill to preserve critical habitat that there ought to be a showing
   that it is essential to the conservation of the species and not
   simply one that would appreciably or significantly decrease the
   likelihood of conserving it.

   I think this goes to the heart of the problem which every Member
   has felt in his district. It is entirely consistent with good
   biological practices and furthermore it maintains intact the
   purpose of this bill, which is to prevent the extinction of species
   who require this critical habitat. (56)


Representative Duncan's amendment was approved by voice vote with no opposition, and was included in the final version of House Bill 14104. (57)

3. Senate Bill 2899

Senate Bill 2899, as reported out of the Committee on Environment and Public Works, focused on the creation of a process to exempt federal projects from Section 7 in the event of unavoidable conflicts. (58) Nevertheless, the committee expressed concern about the scope of critical habitat. Like the House, the committee emphasized that the purpose of critical habitat is to ensure the species' survival rather than serving as habitat for future recovery:
   It has come to our attention that under the present regulations,
   the Fish and Wildlife Service is now using the same criteria for
   designating and protecting areas to extend the range of an
   endangered species as are being used in designation and protection
   of those areas which are truly critical to the continued existence
   of a species. ... There seems to be little or no reason to give
   exactly the same status to lands needed for population expansion as
   is given to those lands which are critical to a species' continued
   survival. (59)


The committee discussed the critical habitat proposed for the grizzly bear as an example of this regulatory overreaching, stating:
   [A]s much as 10 million acres of Forest Service land is involved in
   the critical habitat being proposed for the grizzly bear in three
   Western States. Much of the land involved in this proposed
   designation is not habitat that is necessary for the continued
   survival of the bear. It instead is being designated so that the
   present population within the true critical habitat can expand. (60)


Senator Wallop, one of the Senate bill's sponsors and floor managers, repeated these concerns during the floor debate on Senate Bill 2899, stating: "[T]he committee has been concerned over the Fish and Wildlife Service's policy to treat areas used to extend the range of an endangered species the same as areas critical for the species' survival." (61) The Senator also discussed the proposed critical habitat for the grizzly bear, explaining that "[m]uch of this area is not critical to the continued existence of the [species], but is instead proposed so that populations within truly critical habitat can expand." (62)

The Senate debated Senate Bill 2899 over three days and a number of amendments were proposed and discussed. (63) Senator McClure proposed an amendment to the bill that included a new definition of critical habitat, which provided:

(6) the term "critical habitat" for a threatened or endangered species means:

(A) the specific areas within the geographic area occupied by the species, at the time it is listed in accordance with the provisions of Section 4 of this Act, on which are found those physical and biological features (l) essential to the conservation of the species and (2) which require special management considerations or protection;

(B) "critical habitat" for a threatened or endangered species may include specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this act, into which the species can be expected to expand naturally upon a determination by the Secretary at the time it is listed, that such areas are essential for the conservation of the species!;]

(C) critical habitat may be established for those species now listed as threatened or endangered for which no critical habitat has heretofore been established as set forth in subsection (A) and (B) of this section;

(D) except in those circumstances determined by the Secretary, critical habitat will not include the entire geographical area which can be occupied by the threatened or endangered species. (64)

Senator McClure explained that his amendment was intended to deal with "the establishment of a critical habitat, the manner in which that is to be done, and primarily and most importantly, the extension of the critical habitat once established." (65) He also explained that while the Secretary of Interior may include an unoccupied area, the population must be expected to "naturally expand" into the area, and that "the designation must be made at the time [species] are placed on the list." (66) He emphasized: "Mr. President, this is in response to the difficulty of how large an area should there be established and if that species then expands beyond that area must humans then be displaced in that area." (67) Senator Wallop added: "One of the things that the [Senate oversight] hearings brought out was that the [FWS] was having a difficult time [on] its own distinguishing between critical habitat and range." (68) Senator McClure's amendment was ultimately adopted without a vote.

Senator McClure's amendment was intended to require critical habitat designations to be made at the time of listing, based on currently occupied areas. While the amendment's critical habitat definition contained the phrase "at the time of listing," the definition did not clearly establish the timing of designation. A subsequent amendment, offered by Senator Garn, addressed that problem.

Initially, Senator Garn offered an amendment defining critical habitat that was very similar to Senator McClure's amendment, but would have also amended Section 4 to require designation "concurrently with determination of th[e] species' status," except where an emergency exists or the species was listed prior to the ESA's enactment in 1973. (69) He explained:
   It may well be the case, Mr. President, that the designation of
   critical habitat is more important than the determination of an
   endangered species itself. In many cases, it will not be until
   habitat is declared to be critical to the continued existence of an
   endangered species that it will have impacts in the real world. ...

   When a Federal land manager begins consideration of a project, or
   an application for a permit, it is essential that he know, not only
   of the existence of an endangered species, but also of the extent
   and nature of the habitat that is critical to the continued
   existence of that species. Unless he knows the location of the
   specific sites on which the endangered species depends, he may
   irrevocably commit Federal resources, or permit the commitment of
   private resources to the detriment of the species in question. (70)


However, because of the similarities between Senator McClure's amendment, which already had been adopted, and his amendment, Senator Garn modified his amendment to address only the timing of critical habitat designation.71 In responding to questions about the purpose of the amendment, Senator Garn explained:
   [W]e sincerely want to protect the endangered species. Placing it
   on the list does not necessarily do that. If you do not have the
   area designated for its critical habitat necessary for its
   continued existence, then you may have infringements upon that area
   that could endanger the species.

   On the other hand, it also would allow people who are looking at
   projects, and so on, to look into the future and decide whether or
   not they would be able to go ahead with their projects. (72)


Following this discussion, Senator Garn's amendment was also agreed to without a vote. (73)

4. The Final Law

House Bill 14104 differed in certain respects from Senate Bill 2899. These differences include the makeup of the Endangered Species Committee, the procedures to list species and designate critical habitat, and exemptions from the Act for certain federal projects. (74) By means of a conference committee, the two houses of Congress resolved these differences, and on October 14, 1978, enacted Public Law 95-632, which was signed into law on November 10, 1978. (75)

During the hearing on the conference report in the House, Representative Murphy explained that "the Senate and House bills were not really all that far apart," and that "the guts of the House bill [had] been retained. ..." (76) One of the key provisions was "[a]n extremely narrow definition of critical habitat, virtually identical to the definition passed by the House." (77) That definition, which was virtually identical to Senator McClure's amendment to Senate Bill 2899 and similar to Representative Duncan's amendment to House Bill 14104, provided:

(5)(A) The term "critical habitat" for a threatened or endangered species means--

(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this 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 the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are determined to be essential for the conservation of the species. (78)

This two-part definition, which has not changed since 1978, evidenced Congress' intent that critical habitat focus on areas that are currently occupied by members of the species, but allows unoccupied areas to be designated when they are essential to the species' continued existence.

ESA Section 3 was also amended to include the balance of Senator McClure's amendment:

(B) Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph.

(C) 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. [79]

Again, these provisions have not been changed since 1978. Of particular importance here is the meaning of subparagraph (C), which is intended to ensure that critical habitat is limited to specific areas rather than including areas for population expansion.

The law also required that critical habitat be specified by regulation at the time a species is listed "to the maximum extent prudent," based on Senator Garn's amendment to the Senate bill. And it adopted notice-and-comment rulemaking requirements for the designation of critical habitat, including the publication of notice in local newspapers and, if requested, public hearings. (80) These amendments addressed Congress' concerns about the Services' designation process, including notice to the public, and its timing.

In addition, Congress added the requirement that economic costs and other non-biological factors be considered before areas are designated as critical habitat. (81) This amendment originated in House Bill 14104. (82) The House committee report explained that Section 4(b)(2) is intended to provide greater flexibility and reduce conflicts between critical habitat and other land use activities:
   The result of the committee's proposed amendment would be increased
   flexibility on the part of the secretary in determining critical
   habitat. ... Factors of recognized or potential importance to human
   activities in an area will be considered by the Secretary in
   deciding whether or not all or part of that area should be included
   in the critical habitat. ... The committee expects that in some
   situations, the resultant critical habitat will be different from
   that which would have been established using solely biological
   criteria. In some situations, no critical habitat would be
   specified. (83)


Representative Murphy stated that this provision, which was retained from the House bill, "is the most significant provision in the entire bill." (84) The requirement that economic costs and other land use impacts be considered was another repudiation of the Services' 1978 regulation defining critical habitat, under which the socioeconomic impacts of designating areas as critical habitat were not considered. (85)

In summary, Congress intended that critical habitat consist of specific areas that are essential to the species' continued existence. Given the purpose of critical habitat, the adverse modification standard parallels the jeopardy standard, which is also based on ensuring the continued existence of the species. (86) Furthermore, Congress intended that critical habitat focus on specific areas that are occupied at the time of listing, which is logical given the purpose of critical habitat. As the Senate Committee on Environment and Public Works emphasized, critical habitat should not include vast amounts of land for future population growth, as was the case of the then-proposed critical habitat for the grizzly bear. If unoccupied areas are designated, the legislative history, as well as the plain language of the definition, require that these areas must be essential to the species' conservation, which, as the legislative history shows, means essential to the species' continued existence. Finally, Congress intended that critical habitat be designated when the species is listed and that economic and other impacts be considered and, whenever appropriate, areas excluded from critical habitat to minimize resource conflicts, provided that exclusion does not result in the species' extinction.
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Title Annotation:I. Introduction through II. The Legislative History B. The 1978 ESA Amendments, p. 1-26
Author:James, Norman D.; Ward, Thomas J.
Publication:UCLA Journal of Environmental Law & Policy
Article Type:Author abstract
Date:Jun 22, 2016
Words:5569
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