New criteria and policy was announced on February 11 by the U.S. Fish & Wildlife Service (“F&WS”) for designating “critical habitat” under the Endangered Species Act. The agency announced two changes in its regulations (81 Fed. Reg. 7214-7226; 81 Fed, Reg. 7414-7440) and adopted one new policy (81 Fed. Reg. 7226-7248). Collectively, these changes will provide the agency considerably greater discretion in deciding what constitutes critical habitat, while restricting its discretion to decline make a designation.
The reasons for the rulemakings are threefold. First, no significant changes to the definitions dealing with how the elements of critical habitat are defined (50 CFR §424.02) or how critical habitat is designated (50 CFR §424.12) have been made in 30 years. In that time the F&WS has been subject to numerous federal court decisions, some of which have criticized the agency for self-imposed restrictions on how habitat is evaluated and selected. Second, in 2011 the Obama Administration issued an executive order requiring federal agencies to review their existing regulations and modify “them in accordance with what has been learned.” 81 Fed. Reg. at 7414. This was an open invitation to enlarge agency authority so long as new congressional authorization was not required. Third, the rulemakings are a natural outcome of agency’s attempt to cement policies in place in anticipation of the potential change which may arise in an election year.
This background is important because generally the 60 pages of discussion seem unobjectionable, logical and boring. The F&WS has re-defined “destruction or modification” of critical habitat (50 CFR §424.02), the criteria by which habitat is selected (50 CFR §424.12), and the policy it will follow to make habitat determinations (81 Fed. Reg. at 7226-7248). Only when one begins to understand how critical habitat will be designated do the details of the rulemakings come into focus, and the implications are disturbing.
For example, if private land is contained within an area defined as critical habitat for a species, the F&WS has no direct authority over the activities which take place on the land. If, however, an activity is proposed which requires a federally authorized permit, then the agency that issues the permit will not do so until the F&WS concurs in the action. Obtaining the concurrence normally will come at a price, measured in both time and money.
Similarly, the discretion which the F&WS may exercise in selecting habitat is virtually unfettered. For example, in designating habitat, the area selected need not be occupied by the protected species. It is sufficient that the species might use the area episodically or occasionally. Although the agency says it would not designate an area for critical habitat if a species member found occupying it was merely a “vagrant”, one can only guess how that distinction would be made.
Finally, if one succeeds in slogging through all three Federal Register notices, one conclusion does stand out: the F&WS wants private landowners to enter voluntary agreements to manage habitat for the benefit of species and relieve the agency of performing the analysis to include or exclude any specific tract. A variety of legal agreements exist to accomplish this result. The best known is a “habitat conservation plan (HCP)” which is required when a federal permit is sought but the permitted action (e.g., a FERC license for a wind project) is determined to adversely affect an endangered species (e.g., windmills will kill endangered bats).
Other management arrangements include “candidate conservation agreements with assurances” (CCAA) and “safe harbor agreements” (SHA). Both are voluntary agreements entered between landowners and the F&WS for candidate and listed species, respectively, under §10(a)(1)(A) of the ESA. Under each of these agreements, the landowner receives an “incidental take permit” which will preclude prosecution for harming an endangered species in return for managing the property to promote the protected species’ habitat. Under the new regulations, an added benefit of placing land within a CCAA or SHA is that lands so designated will preclude its inclusion within any future critical habitat analysis should one be required. This means that the F&WS will forego additional authority it may be able to assert over the private land if it is designated as comprising critical habitat.
As a practical matter, these arrangements may be advantageous to landowners to limit federal intrusion into private land management activities. Viewed in more neutral terms, however, the F&WS has embarked upon a sophisticated “protection” racket. As in all such arrangements, a person may be forgiven for accepting an offer which cannot be refused.
This article was prepared by Blair M. Gardner, Jackson Kelly, PLLC.