Designation of Critical Habitat under the Endangered Species Act (ESA)

CRS Report for Congress
Designation of Critical Habitat under the
Endangered Species Act (ESA)
Pamela Baldwin
Legislative Attorney
American Law Division
The agencies that implement the Endangered Species Act (ESA) regard the
designation of critical habitat (CH) as providing only very limited benefits beyond those
achieved through the listing of species and the avoidance of jeopardy to them. Several
courts have now held that the relevant regulation and interpretation that result in this
conclusion are erroneous and do not carry out the intent of Congress. H.R. 1299 in theth
109 Congress would change the definition of CH and move the time at which critical
habitat must be designated for a species from being (basically) concurrent with the
listing of the species to the earlier of either three years after listing or one year after
approval of a recovery plan for that species. This report provides background for
considering agency regulations and current legislative proposals on CH, and may be
updated as circumstances warrant.
The Secretary of the Interior (acting through the Fish and Wildlife Service (FWS)),
and the Secretary of Commerce (acting through the National Marine Fisheries Service
(NMFS)), have duties under the Endangered Species Act (ESA)1 to preserve and conserve
species, including by designating critical habitat (CH). Over several administrations,
these agencies have asserted that CH designation affords few benefits for species beyond
those provided by listing a species as endangered or threatened, and taking actions to
avoid jeopardizing a species’ continued existence.2 Several courts have now held that the
regulation and interpretation underlying this view are erroneous and do not carry out
congressional intent. Proposals are currently before Congress that address CH. This

1 Act of December 28, 1973, P.L. 93-205, 87 Stat. 884, as amended, codified at 16 U.S.C. §§
1531 et seq. Responsibility for terrestrial and freshwater species rests with the Secretary of the
Interior, while responsibility for marine species and anadromous fish rests with the Secretary of
2 See 64 Fed. Reg. 31871 (June 14, 1999) when the FWS discussed this issue and called for
public comment on the current system.
Congressional Research Service ˜ The Library of Congress

report3 is written as background for considering both the current legislative proposals and
the agencies’ position.
The preservation of ecosystems is one of the express purposes of the ESA,4 and all
federal agencies must use their authorities to conserve species and the ecosystems upon
which they depend.5 The ESA protects habitat in many ways, including the definition of
prohibited “take” of listed species; the purchase of lands; cooperative programs with
states; consultation on federal actions or private actions with a federal nexus; and issuance
of incidental take permits based, in part, on habitat protection. The act also requires the
designation of “critical habitat,” which is defined as occupied areas with features that are
essential for the “conservation” of the species in question, and which may require special
management considerations or protection.6 Unoccupied habitat essential for conservation
of a species also may be designated.7 Habitat necessary for conservation means habitat
necessary for the recovery of the species, not merely its survival.8 Designation serves
several important express purposes and also informs other aspects of habitat protection
under the act. Designation of CH may have fewer consequences than many members of
the public seem to believe, but may have more consequences than the FWS asserts.
Currently, CH must be designated at the time a species is listed under the ESA,
unless designation would not be prudent (as when vandals or collectors could harm a
limited habitat or species), or if the CH is not determinable.9
The appropriate Secretary must designate CH on the basis of the best scientific data
available and after taking into consideration the economic, national security, or other
relevant impacts, of designating a particular area as CH. The Secretary may exclude an
area from designation if the Secretary determines that the benefits of exclusion outweigh
the benefits of inclusion, unless the Secretary determines, based on the best scientific and
commercial data available, that the failure to designate the area will result in the
extinction of the species concerned.10 The designation of CH plays several direct and
indirect roles under the ESA.

3 This report does not address the conservation of plant species listed as threatened or
4 16 U.S.C. § 1531(b).
5 16 U.S.C. § 1531(b) and (c).
6 16 U.S.C. § 1532(5). This language might have supported direct regulation of lands within
critical habitat, but has not been so interpreted.
7 16 U.S.C. § 1532(5)(A).
8 Critical habitat is defined at 16 U.S. C. § 1532 (5); and see the definition of conserve at 16
U.S.C. § 1532(3), as meaning assisting species in reaching the point when they no longer need
the protections of the act.
9 16 U.S.C. § 1533(b)(6)(C).
10 16 U.S.C. § 1533(b).

Direct Roles of Critical Habitat
1) Designation forces consideration of both species needs and the
impacts of protection. Designation of CH requires the Secretary to consider what
habitat is essential for conservation of the species, and also the economic and other effects
of including various alternative habitat areas.

2) The designation process provides guidance for landowners.

Designation of CH results in publication of guidance to landowners through consideration
of the need for possible “special management and protection” of areas within the CH.
There appear to be public misperceptions that CH designation results in binding federal
restrictions on private lands. In fact, designation forces federal consideration of all
aspects of the habitat needs of a species and generates guidance to landowners on
avoiding penalties under the act, but has not been interpreted as authorizing direct
regulation. Guidance typically addresses activities not likely to be viewed as prohibited
“takes” and activities regarding which a landowner may wish to seek additional guidance
to avoid takes.
3) Designation requires “consultation” on federal actions. Designation
of CH primarily affects federal actions, but also private actions with a federal nexus, such
as a federal approval, permit, or funding. Section 7 of the ESA (16 U.S.C. § 1536)
requires each federal agency to insure that any action authorized, funded, or carried out
by the agency is not likely to jeopardize the continued existence of a listed species or
“result in the destruction or adverse modification of ...” CH. (Emphasis added.) If an
action is likely to jeopardize a species or result in destruction or adverse modification of
CH, the action agency must consult with the FWS or NMFS. Consultation entails study
of the likely effects of proposed actions, a biological opinion by the Secretary on whether
jeopardy or adverse modification is likely to result if the action is carried out, and
suggestions for reasonable and prudent alternatives to the harmful aspects of the proposed
project in order to avoid jeopardy or destruction or adverse modification of CH. All but
a few projects have been able to proceed following consultation.
4) Designation provides an opportunity for judicial review. In contrast
to other agency studies that may be done, designation of CH is a statutory duty and the
actions and non-actions of the FWS or NOAA Fisheries in this regard can be judicially
reviewed,11 including the adequacy of agency consideration of the habitat needs of the
species, the economic and other impacts of designation, and possible alternatives for CH
Indirect Effects of Critical Habitat Designation
The designation of CH may also play several indirect roles in the conservation of
species. While any habitat studies could serve many of these purposes too, designation
of CH is a required and reviewable federal duty that must include the elements discussed
above. It also is currently required to precede other actions that logically rest on the
information the designation process garners. Some of the indirect effects of designation
of critical habitat are:

11 16 U.S.C. § 1533(g)(1)(C).

1) The designation process provides information for §10 permits and
habitat conservation plans. Section 10(a) of the ESA (16 U.S.C. §1539(a))
authorizes the otherwise prohibited taking of listed species if the taking is an incidental
part of otherwise lawful activities and if the permit applicant submits a conservation plan
(known as a habitat conservation plan or “HCP”) that minimizes and mitigates the
impacts that likely will result from the taking. Adequate knowledge of the habitat needs
of the species in question is crucial to and underlies the process of HCP development and
approval and is critical to achieving adequate HCPs.
2) The designation process provides information for land acquisition
decisions. Similarly, the CH designation process provides information to inform
decisions on possible acquisitions of properties for habitat protection purposes under §

5 of the ESA (16 U.S.C. § 1534).

3) Critical habitat informs the meaning of “harm” in the definition of
“take”. At the heart of the ESA are its § 9 (16 U.S.C. § 1538) prohibitions against
“take” of endangered species. “Take” is defined not only as killing a listed species, but
also as harming species. Harm is defined in regulation as including “significant habitat
modification or degradation where it actually kills or injures wildlife by significantly12
impairing essential behavioral patterns, including breeding, feeding or sheltering.”
Therefore, significant destruction of habitat in general may trigger penalties. As a
practical matter, it seems easier to demonstrate significant habitat modification or
degradation if the habitat in question has already been found to be critical to the
conservation of the species in question.

4) The designation process informs development of recovery plans.

Section 4(f) of the ESA (16 U.S.C. § 1533(f)) requires the preparation of a recovery plan
for each listed species. Recovery plans provide guidance on what actions, including
habitat maintenance and restoration, are necessary to recover a species. Here again, the
CH designation process can provide scientific knowledge of the habitat needs of a species
and analysis of effects and impacts that could be crucial to an effective recovery plan.
Agency Interpretation
The FWS has asserted that designation of CH provides little additional protection
beyond that provided by listing and the prohibition against jeopardy, and that designation
consumes significant amounts of funding, staff time, and other resources.13 As a result,
FWS has given designation such a low priority that the agency had completed CH
designations for only 36% of listed species as of August 9, 2004. However, courts have

12 50 C.F.R. § 17.3. This regulation on harm was upheld against a facial challenge in Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
13 See 64 Fed. Reg. 31872.

found that the agency has a duty to designate CH,14 and that the regulation15 and
interpretation on which the FWS conclusions rest are erroneous and unlawful.
Under § 7 of the ESA, federal agencies must avoid jeopardizing a species or causing
destruction or adverse modification of CH. However, the FWS has conflated jeopardy
and destruction or adverse modification of CH by defining the latter phrase as meaning
essentially actions that diminish the value of critical habitat for the survival of the species,
thereby eliminating designation of habitat for recovery, and equating habitat modification
with jeopardy. The Fifth Circuit noted that critical habitat is defined in the ESA as habitat
which is essential for the “conservation” of the species — i.e. recovery — and held that
the regulation is facially erroneous and does not comport with the language and legislative
history of the ESA.16 The Ninth Circuit also has held the regulation to be erroneous and
contrary to Congressional will: “As the Fifth and Tenth Circuits have already recognized,
the regulatory definition reads the ‘recovery’ goal out of the adverse modification inquiry;
a proposed action ‘adversely modifies’ critical habitat if, and only if, the value of the
critical habitat for survival is appreciably diminished.”17 If CH must include habitat
necessary for the recovery of a species, CH designation and consultations under § 7 of the
act would be more meaningful.
More recently, the agencies have excluded areas from designation on the grounds
that the areas do not need “special management or protection” because other habitat
management plans or agreements are in effect. As a result, the agencies assert, the areas
do not meet the definition of CH, or designation is not “prudent” in light of the non-
federal efforts, or that the benefits of exclusion outweigh the benefits of designation
because excluding CH would encourage the non-federal efforts.18 Critics have asserted
that often the alternative non-federal management relied upon in reaching these
conclusions, in some instances is not a firm program, is too uncertain as to timetables and
effects, and is unenforceable. Therefore, they also assert, failure to designate CH in these
circumstances does not comport with the law.19

14 See, e.g., Conservation Council for Hawaii v. Babbitt, 24 F. Supp. 2d 1074, 1078 (D. Hi. 1998),
in which the court set deadlines for the FWS to designate critical habitat for a number of species,
even if funds were short (a situation plaintiffs alleged FWS was partially responsible for), and
that the agency’s remedy for its listing duties and funds was Congress.
15 50 C.F.R. § 402.02. The regulations apply to actions of both FWS and NMFS, but most of the
court cases have involved the FWS.
16 Sierra Club v. U.S. Fish and Wildlife Service, 245 F. 3d 434 (5th Cir. 2001); cited with
approval in New Mexico Cattle Growers Ass’n v. FWS, 248 F. 3d 1277, 1283 (10th Cir. 2001).
17 Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059, 1069 - 1070 (9th
Cir. 2004), amended 387 F. 3d 968 (2004).
18 See, e.g. the final rule for the Colorado Butterfly Plant, 70 Fed. Reg. 1940 (January 11, 2005),
and the proposed rule for Seven Evolutionarily Significant Units of Pacific Salmon
(Oncorhynchus tshawytscha) and Steelhead (O. mykiss) in California, 69 Fed. Reg. 71880
(December 10, 2004).
19 See comments of various environmental organizations and citizens regarding proposed CH
designations for salmon and steelhead, available from those organizations, including American
Rivers, Center for Biological Diversity, Natural Resources Defense Council, National Wildlife

Changes in the 108th Congress
Concerns over national security after September 11, 2001 resulted in amendments
to the ESA regarding designation of CH. One change requires the consideration of
impacts on national security during the designation process. Another precludes
designating CH on any lands or other geographical areas owned or controlled by the
Department of Defense or designated for its use that are subject to an Integrated Natural
Resources Management Plan prepared under 16 U.S.C. § 670a, if the Secretary
determines in writing that such plan provides a benefit to the species20 — arguably a low
threshold to meet.
Legislation in the 109th Congress
In the 109th Congress, H.R. 1299 would change the definition of CH to be areas
determined by field studies to be occupied and used for essential behaviors, plus
additional habitat necessary for the survival, as opposed to recovery, of the species. The
bill would move the time for designation of CH to the earlier of either three years after
listing, or one year after approval of a recovery plan, and would preclude CH designation
for any “action” authorized by a §10 incidental take permit, a § 7 incidental take statement
(the equivalent of a § 10 permit), or under a state or federal land conservation or species
management program that the Secretary determines provides substantially equivalent
protection. This last provision appears likely to eliminate CH designations on federal
lands such as national forests and the lands managed by BLM, (which have
comprehensive land management plans and programs), thereby eliminating the current
focus on designating CH on federal lands in order to minimize CH on private lands, and
eliminating consultation with the wildlife agencies on proposed agency actions. The bill
also would expand consideration of economic costs and benefits to governments and
landowners, and require the Secretary to designate CH to the maximum extent
“practicable,” in addition to the current standard of “prudent, and determinable.” This
change could result in fewer CH designations.

19 (...continued)
Federation, Trout Unlimited, and Pacific Federation of Fishermen’s Associations.
20 P.L. 108-136, Div. A, Title III, § 318, 117 Stat. 1433. (Emphasis added.)