Developers' lawsuits force government to revise critical-habitat designations
Ever since Congress added the critical-habitat provision to the Endangered Species Act in 1978, it has been a political lightning rod. Designed to ensure that federal actions won't endanger a threatened or endangered species by destroying its habitat, the regulation has raised the ire of developers, caused untold frustration for the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, the agencies charged with enforcing the ESA, and rallied environmentalists to its defense.
Now a series of lawsuits and settlements has shaken critical habitat down to its definitions and forced the federal government to re-examine a 20-year-old policy.
The first shock wave hit in May 2001, when a federal appeals court agreed with the New Mexico Cattle Growers Association that the Fish and Wildlife Service failed to fully consider economic impacts when designating critical habitat for the southwestern willow flycatcher. The decision lifted habitat protection for the songbird along hundreds of miles of southwestern streams and rivers.
More important, it set a precedent. In recent months, federal judges have withdrawn more than 733,000 acres of designated habitat for the cactus ferruginous pygmy owl near Tucson, Ariz., and sent nearly 520,000 acres of coastal habitat for the California gnatcatcher and San Diego fairy shrimp back to the FWS for further economic studies.
Last month, the National Marine Fisheries Service and a coalition led by the National Association of Home Builders reached a settlement that would invalidate critical-habitat protection for salmon across huge swaths of Washington, Oregon, California and Idaho. The NMFS didn't try to defend its regulation.
"I'll be the first to admit we did a very broad brush (economic) analysis the first time around," says Craig Wingert, a senior biologist with the agency. "For us to pursue this lawsuit was fruitless because we were going to lose."
For the builders, the lawsuit wasn't necessarily about the on-the-ground impact of the designation. In California, the habitat set aside for salmon is largely in sparsely populated areas without a lot of development, says Nick Cammarota, general council for the California Building Industry Association, one of the plaintiffs. The lawsuit was "part of a strategy of many lawsuits we're involved in," he says, which are intended to press the FWS and NMFS into considering economic impacts and ultimately reducing the amount of land they designate as critical habitat.
The cascading effect from the recent string of court decisions will only increase: Lawsuits are in the works challenging habitat designations for more than 80 species, according to Defenders of Wildlife's Mike Senatore.
Environmentalists, who often bring lawsuits to force the federal government to designate critical habitat in the first place, are dismayed. Andrew Wetzler, a Natural Resources Defense Council attorney, says that these rollbacks add up to "a backdoor attack on the ESA."
Minimal economic impactUnder the ESA, decisions to list species as endangered or threatened must be made without regard to economic impact. But when the NMFS or FWS decides which lands or waters are critical to the conservation of a listed species, the agency must consider all economic impacts of the designation. If the costs are deemed to outweigh the benefits to the species, an area can be excluded from the designation.
For years, these agencies have paid little attention to the economic impacts, chiefly because they say the entire critical-habitat designation process is redundant.
In theory, critical habitat adds a layer of protection on top of a listing. Federal agencies, or private parties needing federal permits or funding, must consult with the FWS or the NMFS to make sure their actions won't destroy or "adversely modify" the designated habitat. But listing alone prohibits any activity - federal or not - that would "jeopardize" the survival of the species, which is why the agencies maintain that a critical-habitat designation causes few, if any, additional economic impacts.
An exception is when a designated area doesn't have any species present but is earmarked for future population expansions. But outside of this, says Chris Nolin of the FWS's Endangered Species Program, "the (economic) impact of critical habitat itself is not all that great."
Developers and landowners say nothing could be further from the truth.
"Critical habitat does have a regulatory burden," says Karen Smith, an environmental-policy analyst with National Association of Home Builders. Consultations with federal agencies can delay, restrict or even outright deny development projects. Property stigmatized by a critical-habitat designation can be less desirable to develop and more difficult to sell, she says.
What is habitat worth?Ironically, environmentalists agree with the developers that critical habitat has an impact. "It's absolutely essential," says Kieran Suckling, executive director of the Center for Biological Diversity, which has brought dozens of lawsuits to force the federal government to designate habitat for species. "If critical habitat weren't doing anything, why would the industry be spending its money to strike it down?"
Bill Arthur of the Sierra Club's Northwest office sees the current settlements as part of a Bush administration strategy to undermine popular environmental laws. This administration waits for industry to file a lawsuit and then settles the case rather than defend the regulations, Arthur says. "It's easier to cut a quiet deal in the courtroom."
But the deals will only lift critical habitat temporarily, because the NMFS and the FWS are legally required to re-designate critical habitat after they complete the new studies. The question is whether the federal government can conduct the economic analysis in a balanced and fair way.
Pat Ford, executive director of the Save Our Wild Salmon coalition, doubts it in the case of salmon. The government tends to look at how salmon recovery will cost farming and ranching jobs rather than how revitalized runs will boost the economies of salmon-dependent communities, he says. Administration officials "seem to think that fishing jobs aren't jobs." Environmentalists note that federal agencies also fail to look at what traditional industries cost taxpayers in subsidies.
The FWS is rethinking its approach to the economic studies, says Ted Maillett, an economist with the agency, and is now considering effects from both habitat designations and listing decisions in the habitat analyses.
But it's hard to gauge future impacts on potential projects when it's not clear what those projects will look like, he says. Take, for example, a 2,000-acre farm: Could it be developed into 2,000 homes? A thousand homes with a park in the middle? "It's all very hypothetical," says Maillett.
Then there is the difficult, if not impossible, task of trying to compare the value of habitat with monetary costs to the economy.
While the federal agencies work on new designations, some environmentalists worry that potential critical habitat may be destroyed. After the pygmy owl lost its habitat in September 2001, the Army Corps of Engineers, which grants permits under the Clean Water Act, dropped all habitat consultations and freely granted permits, says Kieran Suckling. If a judge in California decides to lift critical habitat for the gnatcatcher and fairy shrimp while the new studies are being finished, a 14,000-home development could go into the area. Says Suckling, "We expect to see a rush to trash these former critical habitat areas."
But David Hogan, who works alongside Suckling at the Center for Biological Diversity, says there could be a silver lining: Critical-habitat designations with proper economic analyses will be stronger than their predecessors.
Craig Wingert agrees. "We just have to get over this hump and make (the analysis) more bulletproof."
Julie Elliott is a High Country News intern.YOU CAN CONTACT ...
- Center for Biological Diversity,
- National Marine
Fisheries Service, 562/980-4000;
U.S. Fish and Wildlife Endangered Species Division,
- National Association of Home Builders, 1-800-368-5242.