Tweets: this is a forward that I thought some might be interested in; my
concern was with their comment that they were "streamlining the processes."
You can imagine what that might mean.
Diann MacRae

>Date: Tue, 15 Jun 1999 17:07:42 -0500
>Reply-To: "ORNITH-L: the scientific discussion of Ornithology"
<ORNITH-
>
>Please note the following important announcement from the USFWS of its
>intent to develop policy or guidance regarding identification of
>critical habitat designations under the Endangered Species Act. The
>Ornithological Council would be interested in hearing your views and
>also urges you to comment directly to the USFWS (full address given in
>comments). THE DEADLINE FOR COMMENTS IS 13 AUGUST 1999.
>--
>Ellen Paul
>Executive Director
>The Ornithological Council
>Mailto:epaul at dclink.com
>Ornithological Council Website: http://www.nmnh.si.edu/BIRDNET
>"Providing Scientific Information about Birds"
>
>DEPARTMENT OF THE INTERIOR
>
>Fish and Wildlife Service
>
>Endangered and Threatened Wildlife and Plants; Notice of Intent
>To Clarify the Role of Habitat in Endangered Species Conservation
>
>AGENCY: Fish and Wildlife Service, Interior.
>
>ACTION: Notice.
>
>-----------------------------------------------------------------------
>
>SUMMARY: We (the U.S. Fish and Wildlife Service) announce our intent to
>develop policy or guidance and/or to revise regulations, if necessary,
>to clarify the role of habitat in endangered species conservation.
>Identification of the habitat needs of listed species and the
>conservation of such habitat is the key to recovering endangered and
>threatened species. We will examine all the tools available to identify
>and conserve the habitat of listed and threatened species including
>critical habitat determinations (prudency and determinability) and
>designations under section 4 of the Endangered Species Act of 1973, as
>amended (Act). We intend to streamline the processes involved in
>completing critical habitat determinations and designations. Our goal
>is to achieve the greatest conservation benefit in the most cost
>effective manner for imperilled species. We solicit public comments,
>and we will incorporate comments into the new proposed guidance as
>appropriate.
>
>DATES: We will accept comments on this guidance until August 13, 1999.
>
>ADDRESSES: Address comments regarding this guidance to the Chief,
>Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C
>Street, N.W., Mailstop ARLSQ-420, Washington, D.C. 20240.
>
>FOR FURTHER INFORMATION CONTACT: Chief, Division of Endangered Species,
>U.S. Fish and Wildlife Service, 703-358-2171 (see ADDRESSES section).
>
>SUPPLEMENTARY INFORMATION:
>
>Background
>
>Importance of Habitat for Species Conservation
>
> The process of habitat protection through the designation of
>critical habitat is properly examined in the broad context of the
>importance of habitat in endangered and threatened species
>conservation. Virtually every study of the conservation of imperilled
>species considers habitat as a major component in a species'
>conservation and eventual recovery. The very purpose of the Act is ``to
>provide a means whereby the ecosystems upon which endangered species
>depend may be conserved.'' The National Research Council recognized the
>importance of habitat in its 1995 book, Science and the Endangered
>Species Act: ``habitat protection is a prerequisite for conservation of
>biological diversity and protection of endangered and threatened
>species.'' The National Research Council further noted: ``the
>Endangered Species Act, in emphasizing habitat, reflects the current
>scientific understanding of the crucial role that habitat plays for
>species' (National Research Council 1995).
> Habitat considerations are a key part of virtually every process
>called for in the Act. We describe the habitat needs of species, and
>threats to habitat, in detail in all listing rules. In fact, Factor A
>of the ``Summary of Factors Affecting the Species'' section of all
>proposed and final listing rules discusses ``The Present or Threatened
>Destruction, Modification, or Curtailment of the Habitat or Range'' of
>the species. For most species, the threats to habitat are the most
>important consideration when determining if a species qualifies for
>protection under the Act. Habitat considerations are prominent in all
>recovery plans, and recovery plans include maps and descriptions of the
>
>[[Page 31872]]
>
>habitat needed to recover the species. The section 7 consultation
>process addresses the dynamic and seasonal characteristics of the
>habitat needs of listed species. New information concerning species'
>habitat use becomes available throughout the listing, consultation,
>habitat conservation planning, and recovery processes. It is essential
>that we consider current and complete habitat information in these
>processes. The analysis of habitat alteration and/or destruction is the
>cornerstone of the Act's section 7 consultation process and the section
>10 habitat conservation planning process; this is true for species that
>have designated critical habitat, as well as for those species that do
>not. Habitat is identified, communicated to affected parties,
>protected, and conserved through all phases of applying the Act's
>protections. The conservation and recovery of imperilled species is
>dependent upon habitat protection and restoration. When species are
>listed as threatened or endangered, the habitats or ecosystems upon
>which they depend are recognized. Conservation and recovery actions are
>directed not only to the imperilled species, but to the species'
>habitat, as well.
>
>Role of Critical Habitat in the Act
>
> Critical habitat is defined in the Act as--(i) the specific areas
>within the geographical area currently occupied by a species, at the
>time it is listed in accordance with section 4 of the 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 a species at the time it is
>listed upon a determination by the Secretary that such areas are
>essential for the conservation of the species. Critical habitat, if
>prudent and determinable, must be proposed and designated by regulation
>and thus codified in the Code of Federal Regulations (CFR).
> A designation of critical habitat is not prudent under the current
>regulations when one or both of the following situations exist: (i) the
>species is threatened by taking or other human activity, and
>identification of critical habitat can be expected to increase the
>degree of such threat to the species, or (ii) such designation of
>critical habitat would not be beneficial to the species (50 CFR
>424.12(a)(1)). Critical habitat is not determinable when one or both of
>the following situations exist: (i) information sufficient to perform
>required analyses of the impacts of the designation is lacking, or (ii)
>the biological needs of the species are not sufficiently well known to
>permit identification of an area as critical habitat (50 CFR
>424.12(a)(2)).
> Once designated, critical habitat has only one regulatory impact:
>under section 7(a)(2), Federal agencies must, in consultation with the
>Service, insure that any action they authorize, fund, or carry out is
>not likely to result in the destruction or adverse modification of
>critical habitat. As discussed below, section 7(a)(2) likewise
>prohibits agency actions that are likely to jeopardize the continued
>existence of any listed species. Section 7(b)-(d) of the Act and 50 CFR
>part 402 describe in detail the process by which agencies consult with
>us regarding possible jeopardy to listed species and destruction or
>adverse modification of critical habitat. According to our
>interpretation of the regulations, by definition, the adverse
>modification of critical habitat consultation standard is nearly
>identical to the jeopardy consultation standard.
>
>Role of Critical Habitat in Actual Practice of Administering and
>Implementing the Act
>
> While attention to and protection of habitat is paramount to
>successful conservation actions, we have long believed that, in most
>circumstances, the designation of ``official'' critical habitat is of
>little additional value for most listed species, yet it consumes large
>amounts of conservation resources. Sidle (1987) discussed the practical
>role of critical habitat designation and posed the question, ``can the
>jeopardy standard alone adequately protect species?'' Several examples
>were provided and the conclusion was very clearly stated, ``it is
>likely that, for listed species endemic to a small area, critical
>habitat is not often necessary.'' Because there are so many varying
>opinions, the Service is seeking input on various aspects of critical
>habitat.
> Currently, critical habitat is linked only to the section 7 process
>and is only enforceable when a Federal nexus (such as Clean Water Act
>permits, Federal Housing Authority clearances and funding,
>Environmental Protection Agency authorities, etc.) sufficient to
>trigger a section 7 consultation exists. Many activities carried out on
>private, Tribal, State, and Federal lands have Federal involvement, and
>would be subject to section 7. However, on private land, where no
>Federal involvement exists, a critical habitat designation has no
>regulatory impact.
> Moreover, we have long believed that separate protection of
>critical habitat is duplicative for most species. Section 7 prohibits
>Federal agencies from taking actions that jeopardize the continued
>existence of a listed species or actions that adversely modify critical
>habitat. To jeopardize the continued existence of a species is to
>engage in an action that reasonably would be expected, directly or
>indirectly, to reduce appreciably the likelihood of both the survival
>and recovery of a listed species in the wild by reducing the
>reproduction, numbers, or distribution of species. Destruction or
>adverse modification is a direct or indirect alteration that
>appreciably diminishes the value of critical habitat for both the
>survival and recovery of a listed species. For almost all species, the
>adverse modification and jeopardy standards are the same., resulting in
>critical habitat being an expensive regulatory process that duplicates
>the protection already provided by the jeopardy standard. Sidle (1987)
>stated, ``Because the ESA can protect species with and without critical
>habitat designation, critical habitat designation may be redundant to
>the other consultation requirements of section 7.'' Currently, only 113
>species or 9% of the 1179 listed species in the U.S. under the
>jurisdiction of the Service have designated critical habitat. We
>address the habitat needs of all 1179 listed species through the
>conservation mechanisms discussed above, such as listing, section 7
>consultation, and the recovery planning process. For most species, the
>duplication between the jeopardy standard and the adverse modification
>standard exists because unoccupied habitat is not involved. When
>unoccupied habitat is designated as critical habitat, the duplication
>ceases because consultation under section 7 of the Act must then be
>completed on an area not previously included in the analysis. The
>Service is interested in your opinion; do the unoccupied habitat
>aspects of critical habitat designation provide significant
>conservation benefit for imperilled species?
>
>Procedural and Resource Difficulties in Designating Critical Habitat
>
> We have been inundated with citizen lawsuits for our failure to
>complete the process described above, and we have been challenged on
>numerous ``not prudent'' critical habitat determinations (meaning that
>the designation of critical habitat was determined to be not prudent
>for that species).
> We believe that the present system for determining and designating
>critical habitat is not working. Many conservation organizations,
>affected landowners, and industry groups also recognize that the
>present system is not working. Perception of the value and
>
>[[Page 31873]]
>
>purpose of critical habitat varies widely. Many environmental groups
>view critical habitat as providing additional regulatory protection,
>hence the large number of lawsuits to prompt critical habitat
>designations. Some industry groups view critical habitat as the only
>way economic impacts are addressed in the conservation of imperilled
>species.
> The consequence of the critical habitat litigation activity is that
>we are utilizing much of our very limited listing program resources in
>litigation support defending active lawsuits and Notices of Intent
>(NOIs) to sue relative to critical habitat, and complying with the
>growing number of adverse court orders. In the meantime, our efforts to
>respond to listing petitions, to propose listing of critically
>imperilled species, and to make final listing determinations on
>existing proposals are being significantly delayed. There are species
>not yet listed in Regions or geographic locations where litigation
>support has and will continue to consume much of our funding resources.
>For example in Hawaii, a single court order remanded 245 ``not
>prudent'' critical habitat determinations. There are other species in
>Hawaii that are literally facing extinction while precious resources
>are being depleted on critical habitat litigation support and the
>reexaminations of critical habitat prudency determinations for species
>already listed. Litigation over critical habitat issues for species
>already listed and receiving the Act's full protection has precluded or
>delayed many listing actions nationwide.
> Economic analysis done for critical habitat designation can be
>expensive, in the past, total costs for such analyses for critical
>habitat designations have cost as much as $500,000, against a total
>listing budget of a few million dollars. The National Research
>Council's research committee ``recognizes that because of public
>concern over economic consequences, the designation of critical habitat
>is often controversial and arduous, delaying or preventing the
>protection it was intended to afford'' (National Research Council
>1995).
> An additional costly consequence (both in terms of staff time and
>funding) of designating critical habitat is where designation triggers
>compliance with the National Environmental Policy Act (NEPA). The
>circuit courts are split on the issue of whether critical habitat
>designation triggers NEPA. Within the jurisdiction of the Court of
>Appeals for the Tenth Circuit (the states of NM, CO, NE, UT, WY, OK,
>and KS) NEPA is required ( see Catron County Board of Commissioners v.
>USFWS, 75 F.3d 1429 (10th Cir. 1996)). The Ninth Circuit does not view
>the designation of critical habitat as a major Federal action under
>NEPA (Douglas County v. Babbitt, 48 F 3d 1495, 1507-08, (9th Cir.
>1995), cert. denied).
>
>Our Current Policy on Setting Priorities to Maximize Conservation
>Benefit
>
> Because we do not have unlimited resources, we believe we must set
>priorities in order to use our funds in the manner most beneficial to
>imperilled species. In the past we have established priorities for the
>use of funds through our Listing Priority Guidance (LPG). The FY 1998-
>1999 Listing Priority Guidance consists of three tiers or categories of
>listing activities. Emergency listing actions are the highest priority
>(Tier 1); followed by Tier 2, which comprises final rules, proposed
>rules, and petition findings; and critical habitat actions constitute
>Tier 3. This system and its predecessor LPGs have allowed us to manage
>our listing program for maximum conservation benefit following the FY
>1995-1996 moratorium and funding rescission that created large
>backlogs. When the moratorium was lifted on April 26, 1996, 243
>proposed species awaited final determinations. Currently, there are
>only two proposed species that were included in that very large
>backlog. Our own system for prioritizing listing actions has enabled us
>to provide the full protection of the Act to more than 250 species
>since April 26, 1996. This was possible by foregoing low priority
>listing actions such as critical habitat designations. Now however, we
>are being faced with numerous court orders that require us to complete
>critical habitat designations and reconsider not prudent findings for
>listed species.
> Because of our reducing the listing backlogs, the LPG is evolving.
>The proposed FY 1999/2000 LPG was published in the Federal Register on
>May 20, 1999. That guidance no longer prioritizes critical habitat
>actions with other section 4 actions. Critical habitat actions are
>funded separately (funding still is allocated through the listing
>subactivity), and critical habitat actions will be prioritized on an
>annual basis. For example, in FY 1999, 17% of the listing subactivity
>funds were allocated for critical habitat actions. Court ordered
>critical habitat actions and Regional priorities received funding for
>FY 1999 activity. The LPG will continue to evolve as we continue to
>balance our national listing program.
>
>Proposals for Public Comment
>
> The Service intends to reexamine our existing approach to
>designation of critical habitat. The legal debate over critical habitat
>prudency determinations involves two key areas of the ``no net
>benefit'' argument to attain a not prudent critical habitat
>determination--(a) the contention that the adverse modification
>standard for the same species with designated critical habitat is
>equivalent to the jeopardy standard for species without designated
>critical habitat; and (b) the treatment of unoccupied habitat in
>prudency determinations. We particularly solicit comments relative to
>when the designation of critical habitat will provide additional
>benefit (beyond that of listing) and what considerations should be
>included in our prudency determinations.
> In order to reduce the costs of accomplishing critical habitat
>actions, we are considering developing a new streamlined and cost-
>effective process for critical habitat determinations and designation.
>As mentioned previously in this notice, the current designation process
>is inefficient, and should be redesigned to be more cost-effective and
>in line with the amount of conservation benefit provided to the
>species. Under the current process designating critical habitat for
>multiple species could devastate the listing program, and result in
>scarce funds being spent on activities that have a lower benefit to
>species relative to other activities .
> We believe that describing the areas proposed for designation as
>critical habitat needs to be a much less labor intensive process. We
>suggest that suitable habitat is best described in broader terms. We
>encourage views on whether pinpointing small areas of species
>occurrence and drawing precise small circles around habitat on maps is
>the methodology we should be employing to identify and describe
>critical habitat, or whether instead more general habitat location
>delineations and broad descriptions of habitat types are the most
>efficient descriptors to be used in the designation of critical
>habitat. Very specific lines drawn on a map may not be the most
>efficient way to identify areas that may be important in the recovery
>of rare species. We would encourage commentators to discuss better ways
>to describe habitat and species occurrence. We would suggest that
>commentators consider how a more descriptive approach might be
>employed, rather than a map-based approach. Descriptions might be
>linked to habitat types, elevation, and riparian areas, for example. We
>would also be interested in comments relating to how the Service could,
>at the stage of developing a recovery plan, when much more may be known
>about the needs of
>
>[[Page 31874]]
>
>the species than at the time of critical habitat designation, be more
>specific about the extent of habitat protection necessary for recovery.
> We also intend to redesign other aspects of the process for
>designating critical habitat. We encourage comments on how economic
>analyses can evolve into a streamlined and cost-effective process. We
>also solicit comments on how NEPA compliance, when required, may be
>conducted in a simple and efficient manner. Completing programmatic
>assessments and analyses, for example, may be an efficiency mechanism.
>Perhaps multispecies/geographic species groupings to reduce and
>eliminate administrative redundancy should be more common. We request
>comments and suggestions relative to how we can effectively streamline
>the process and specifically whether and how our existing regulations
>might or should be changed to accomplish this. We also request comments
>and suggestions on possible legislative corrections that might improve
>the effectiveness and efficiency of the critical habitat process.
>
>Public Comments Solicited
>
> We intend that any actions resulting from this notice and
>subsequent proposed guidance be as accurate and as effective as
>possible. Therefore, we solicit any suggestions from the public,
>concerned governmental agencies, the scientific community,
>environmental groups, industry, commercial trade entities, or any other
>interested party concerning any aspect of this notice. We will take
>into consideration any comments and additional information received and
>will announce proposed guidance after the close of the public comment
>period and as promptly as possible after all comments have been
>reviewed and analyzed. We will make available for your review and
>comment any critical habitat guidance, policy, or regulatory changes
>that are developed.
> Executive Order 12866 requires each agency to write regulations/
>notices that are easy to understand. We invite your comments on how to
>make this notice easier to understand including answers to questions
>such as the following: (1) Are the requirements in the notice clearly
>stated? (2) Does the notice contain technical language or jargon that
>interferes with the clarity? (3) Does the format of the notice
>(grouping and order of sections, use of headings, paragraphing, etc.)
>aid or reduce its clarity? (4) Is the description of the notice in the
>``Supplementary Information'' section of the preamble helpful in
>understanding the notice? What else could we do to make the notice
>easier to understand?
>
>References Cited
>
>National Research Council. 1995. Science and the Endangered Species
>Act. National Academy Press, Washington, D.C. 271 pp.
>Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent?
>Environmental Management 11(4):429-437.
>