ISSUE BRIEF: Endangered Species Act Reform: Critical Habitat
ESA reform should focus on critical habitat designations!
The Issue:
Critical habitat designations are among the most contentious requirements under the Endangered Species Act (ESA). After years of litigation, regulation and attempts by Congress to address the issue, there is momentum to substantially change how, when and why species' critical habitat are designated.
The ESA mandates that almost all species listed as endangered or threatened under the Act have designated critical habitat. Notwithstanding that mandate, the U.S. Fish and Wildlife Service (USFWS) rarely actually designates critical habitat when it lists a species. Current and past USFWS officials have downplayed the significance of critical habitat designations because, in their view, the ESA regulations generally provide such a high level of protection that critical habitat designations per se add little or no additional protection for species. This attitude is evidenced by the number of critical habitat designations in the U.S. (478) as compared to the number of U.S. species of plants and animals listed as threatened or endangered (987).
Impacts on the West:
By failing, in many instances, to designate critical habitat in accordance with the Act, the USFWS has exposed itself to legal challenges by environmental groups under the Administrative Procedure Act and/or ESA’s citizen suit provision. Conversely, when the USFWS actually designates critical habitat, impacted industries often bring legal action. Recently, the courts have moved from looking at specific facts regarding an endangered species and designation of critical habitat to forcing USFWS to review and create new regulations regarding how the designation process and the subsequent management of critical habitat is handled.
Solutions:
- Congress should pass legislation to reform the ESA's critical habitat provisions. Write a letter to your Congressperson telling them you want ESA’s critical habitat provisions reformed and changed.
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