This excerpt is from the Designation of Critical Habitat for the Klamath River and Columbia River Populations of Bull Trout, 69 FR 59996-01, 2004 WL 2232024 (F.R.). It apparently expresses the opinion of the U.S. Fish & Wildlife Service that the current process for designating critical habitat does little for the conservation of listed species.
The text below is excerpted from the Designation of Critical Habitat for the Klamath River and Columbia River Populations of Bull Trout, 69 FR 59996-01, 2004 WL 2232024 (F.R.). It more or less states that the current system of critical habitat designation, which is often spurred by federal court litigation, is a waste of time and resources. The opinions expressed below are solely those of the U.S. Fish and Wildlife Service and are presented to illuminate the current controversy surrounding the designation of critical habitat for endangered or threatened species.
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection to Species
In 30 years of implementing the Act (16 U.S.C. 1531 et seq.), we have found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. Our present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. We believe that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
While attention to, and protection of, habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. 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."
We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. We believe that it is these measures that may make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion, Gifford Pinchot Task Force v. United State Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to Section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected us to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves us with little ability to prioritize our activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, our own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left us with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This, in turn, fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis, provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects, and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act of 1969 (NEPA) None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
Designation of Critical Habitat for the Klamath River and Columbia River Populations of Bull Trout , 69 FR 59996-01 , 2004 WL 2232024 (F.R.); See also , Designation of Critical Habitat for Five Endangered Mussels in the Tennessee and Cumberland River Basins , 69 FR 53136 (2004).