A cursory reading of the Endangered Species Act [hereinafter ESA] demonstrates that it establishes a process consisting of numerous steps, each of which serve different functions. For example, the listing process has as its essential goal the identification of species that require protection. The recovery plan and critical habitat process begins where the listing process ends, having as its essential goal, removal of the species from the list through execution of a plan that ensures the species' survival.
a. Establishing the Species as Endangered - the Listing Process
The first step taken under the ESA is the listing process - a process whereby species are identified and nominated for listing because of their precarious position in the current world environment. After consideration of only the best scientific data available, correctly identified species are "listed". This listing process does not allow any consideration of economic or other evidence because it is simply a determination of the current precarious circumstance of the species. A finding is made that a species is in so dangerous a circumstance that without further protective action it will become extinct. No functional decision is made in this process as to how the species will be protected, therefore, no economic analysis is required since no specific action is being proposed. The specific actions occur only after the listing process.
b. The Recovery Plan and the Critical Habitat Designation - the Operational Tools of the ESA
Once the species is listed, the United States Fish and Wildlife Service [hereinafter USFWS] is obligated to embark upon a series of steps to ensure the species' survival. These implementation steps often involve modification of the environment where the species resides, and therefore, impact the future development in the region. These protective steps include consultation with all relevant federal agencies under Section 7 of the ESA to determine whether the actions of the federal agencies are placing the species in jeopardy. If it is determined that the agencies' actions are placing the species in jeopardy, then the ESA requires that the actions be altered or ceased or that reasonable and prudent alternatives be developed to the actions of the federal agencies that will allow the agencies to continue their activities without causing damage to the species.
A second, and surely the most important part of the species protection process, is the development of a recovery plan. It is of no value under the ESA to simply list a species to watch it continue to fail. Rather, the obligation under the ESA is to develop a plan for its recovery and carry out that process. Conversely, if it cannot be recovered, then the species must be de-listed. In the case of aquatic species, generally the most significant piece of information in the recovery plan is a finding as to the flow regime necessary to ensure the survival of the species. This essential flow regime in various parts of the stream system, forms the basis for designation of critical habitat. Unfortunately, the designation of a critical habitat flow regime has been uncoupled from the recovery plan. This is undoubtedly a function of the language of the ESA as currently operative, whereby short timelines are given that require critical habitat designations often before a "plan for recovery" is either understood or finalized. Thus, a decision is made that the for x miles of river y quantity of water is required even though there is no biological data to support the conclusion that these quantities are needed to recover the species.
Simply put, how can one know a habitat is critical to the recovery of the species before one understands how to recover the species? The answer is one cannot know this, but as currently structured, the Secretary of Interior is mandated to decide irrespective of his absence of knowledge. Were these decisions made in a vacuum, then guessing at the necessary flow regime would perhaps be appropriate. However, in the Western United States, where all streams are fully appropriated, virtually all changes in flow regimes visit significant costs on other water users in the stream system. Moreover, once the designation has been made, the individual water users face serious civil and criminal penalties should they alter the critical habitat, even though there has been no demonstrable case that their alteration would in fact cause the species harm.
Not only does the critical habitat designation place individual water users at risk for civil and criminal penalties if they alter critical habitat, it has become one of the most fundamental levers in the arsenal of the USFWS because it governs all future operations of all federal agencies operating within the region. As stated eloquently by the 10th Circuit Court of Appeals in Catron County Board of Commissioners, New Mexico v. United States Fish and Wildlife Service, et al., 75 F.3d 1429, 1437 (10th Cir. 1996):
"The designation of critical habitat effectively prohibits all subsequent federal or federally funded or directed actions likely to affect the habitat" See 16 U.S.C. 1536(a)(2)." Again, major federal choices are controlled by a designation that may not be in any way logically connected to the methods for recovering the species because the recovery plan has not been completed.
While it seems somewhat tenuous to subject individuals to criminal and civil penalties for alteration of habitat that may not have been connected to a recovery of the species, any doubt as to the potential liability of individual water users was put to rest by the United States Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687,115 S.Ct. 2407 (1995). In that case, a group of individuals sought to invalidate a regulation of the USFWS that would make them liable for a "taking" of the species under Section 9 of the ESA even if they took no direct action directed at harming the species. They argued that they were not directly trying to injure the species, there, the red-cockaded woodpecker. Rather, they were simply engaging in what they had always done - cutting timber. In their view, simply because their actions might modify the critical habitat in some way, this should not be considered a "take" of the species. The Supreme Court squarely rejected their argument and found that a modification of critical habitat was a "take" of the species that could result in civil and criminal penalties. The Court stated:
"First, we assume respondents have no desire to harm either the red-cockaded woodpecker or the spotted owl; they merely wish to continue logging activities that would be entirely proper if not prohibited by the ESA. On the other hand, we must assume, arguendo, that those activities will have the effect, even though unintended of detrimentally changing the natural habitat, of both the listed species and that as a consequence, members of those species will be killed or injured." Id. at 2412.
The Court specifically held that the USFWS had the legal authority to promulgate a regulation which provided that modification of a species habitat, even though unintended, and even though not aimed at a particular member of the species, would subject the individuals to civil and criminal penalties if any injury to a species proximately resulted.
Justice O'Connor went further and concluded that even a habitat modification that affected breeding would be a "take". Justice Scalia pointed out in dissent that a large number of routine private activities, for example, ". . . farming are subjected to strict-liability penalties. . . . " Id. at 2424. He provides another example: ". . . a farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby impairs the breeding of protected fish has "taken" or attempted to "take" the fish." Id. at 2423.
Thus, under Sweet Home, supra, once a critical habitat flow regime designation is made, federal agencies must alter their activities to protect the critical habitat under Section 7, and private entities face severe civil and criminal sanctions should they cause an alteration of that flow regime.
The USFWS has specifically and consistently acknowledged that the designation has far reaching effects, even if not connected to any plan of recovery:
"The requirement to consider adverse modification of critical habitat is an incremental Section 7 consideration above and beyond Section 7 review necessary to evaluate jeopardy and incidental take." Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1796 at 1823.
That critical habitat designation even though not demonstrably aimed at recovery of the species affects all entities that might alter that habitat is summarized well by a scholar in the field:
"At bottom, what the case law illustrates beyond question is that the ESA's prohibition on modification of critical habitat is interpreted by the courts as strong and unyielding without critical habitat, federal agency actions are largely shielded from judicial review."
Houck, Oliver A., "The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce," 64 U. Colo. L. Rev. 277 (1993).
A concrete example can be found in numerous lawsuits filed by environmental groups to force designation, even when the USFWS concedes it does not have adequate data to complete the designation. The Forest Guardians and Defenders of Wildlife, seeking an order compelling critical habitat designation in federal court in Albuquerque, New Mexico, make it clear beyond peradventure that their goal is to designate the entire Rio Grande river as critical habitat and use this designation to prevent any person from reducing the flow of the river below some unspecified minimum amount. If they are successful, then any farmer or other person using the waters of the Rio Grande may be subject to civil and criminal penalties because they unlawfully "modified" the critical habitat by reducing the flow even though there is no minimum flow amount specified in any recovery plan. They state unequivocally:
"Without designation of critical habitat, this crucial area for the silvery minnow could be adversely modified to the point where it no longer supports the elements needed for the minnows survival. Designation is especially needed before the summer season, when water demands on the Rio Grande increase and frequently result in little or no flow downstream from major diversion facilities."
Forest Guardians and Defenders of Wildlife's Brief in Chief in Support of Motion for Review of Agency Decision at 14.
Unfortunately, if these groups are successful, any person altering the habitat is at great risk of criminal and civil penalties even though the responsible federal agency is conceding it has no data to prove the designation is either correct or needed.
It is precisely because the critical habitat designation can potentially subject individuals to far reaching penalties. See Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997) that individuals affected have been granted broad standing to sue. See also, Catron County, supra. And it is for this same reason that prior to the designation the USFWS is obligated to consider, in addition to the scientific efficacy of the designation, the "economic impact and any other relevant impact" of designating the habitat and weigh the benefits of exclusion against those of inclusion of particular areas within the designated habitat" 16 U.S.C. 1533(b)(2). It is also for this reason that public comment is required and notice must be given and judicial review is available from an erroneous decision. Id. at 1533 (b)(4)(6).
Finally, because the critical habitat decision so dramatically affects the behavior of all persons and all agencies - federal and non-federal within the stream system, within the area of the Tenth Circuit Court of Appeals, an Environmental Impact Statement is required prior to the critical habitat designation. The 10th Circuit Court of Appeals made it clear that government action in designation of critical habitat is precisely the kind of federal action significantly affecting the human environment that requires detailed scrutiny prior to taking final action.
"The short and long-term effects of the proposed governmental action (and even the governmental action prohibited under the ESA designation) are often unknown or, more importantly, initially thought to be beneficial, but after closer analysis determined to be environmentally harmful. Furthermore, the fact that a Secretary believes the effects of a particular designation to be beneficial is equally immaterial to his responsibility to comply with NEPA."
Catron County Board of Commissioners, New Mexico v. United States Fish and Wildlife Service, et al., 75 F.3d 1429, 1443 (10th Cir. 1996):
Thus, the critical habitat designation is so significant a federal action that it requires an Environmental Impact Statement, yet, under current law, it can be made without any demonstration that it is tied to any plan for recovery of the species. This can hardly be the intent of the framers of the ESA.
The situation in which the USFWS finds itself when forced to make a designation of critical habitat without ensuring that the designation is tied to the actual needs of the species was summed up well in a recent statement under oath made by Jamie Rappaport Clark, Director of USFWS: "It will be to no one's advantage if the Service spends its limited resources designating critical habitat for the minnow if that designation is invalidated in subsequent litigation for failure to allow public comment or other legal deficiency. If this happens, the designation will provide no protection to the minnow and it will delay protections for other species. Giving the Service adequate time now will minimize the likelihood of such an unfortunate result." Declaration of Jamie Rappaport Clark at pg. 12 (March 3, 1999).
It must be remembered that it is not a victory in the battle of species protection to simply enjoin others from continuing their use of water under the threat of criminal prosecution. Rather, victory, if it can be had, only comes when affirmative steps are taken based upon the best scientific, economic and social data available. None of us should be fooled by the illusion that a species is rescued from extinction simply because others have been forced to forego their use of water at great cost. Species are only on the road to being recovered when the USFWS has developed and finalized a recovery plan for their survival. Thus, contrary to current practice wherein critical habitat designation is distinct from the recovery process, steps must be taken to bring these two processes together, so that the end result of the drafting of the recovery plan is the determination as to where that recovery is to take place. Only when we understand how we are to recover the species can we accurately decide the precise nature of the habitat that is critical for the species' survival.
The ESA Amendment introduced May 20, 1999 [Senate Bill 1100] refocuses the mission of the USFWS on its ultimate goal of recovering species and away from altering behavior for alterations sake. This refocus is accomplished by ensuring that the USFWS makes the decision as to the scope of habitat critical to the survival of the species as an integral part of the recovery plan itself.
Without this Amendment, in the water short West, the designation of critical habitat will continue to be nothing more than an abstract federal mandate. The designations will continue to cause great economic and social dislocation without any evidence that these designations actually result in recovery of the species. Water users cannot bear the costs associated with these social and economic dislocations and the species cannot bear the consequences of hasty habitat designations that may be under inclusive in scope while expending needed resources that could have been used for species' recovery. For these reasons, the ESA should be amended as proposed by Senate Bill 1100.