Hugh Vickery 202-501-4633

Megan Durham, FWS 202-208-5634

ENDANGERED SPECIES ACT "BROKEN" -- FLOOD OF LITIGATION
OVER CRITICAL HABITAT HINDERS SPECIES CONSERVATION

Faced with mounting numbers of court orders from six years of litigation, the Interior Department's U.S. Fish and Wildlife Service will soon run out of funds to designate critical habitat for threatened and endangered species, Assistant Secretary of the Interior for Fish and Wildlife and Parks Craig Manson said today.
More important, the flood of court orders requiring critical habitat designations is undermining endangered species conservation by compromising the Service's ability to protect new species and to work with states, tribes, landowners and others to recover those already listed under the Act, Manson said.

In July, the U.S. Fish and Wildlife Service will exhaust the funds required to meet its obligations to designate critical habitat under court orders and settlements for FY 2003. The administration has requested authority from Congress to shift money from other endangered species programs to cover the shortfall. These include programs to work with landowners on conservation projects to keep imperiled species from needing listing under the Act, consultation with other federal agencies to protect species, and recovery work for species already threatened or endangered.

The Service will also approach plaintiffs and courts to seek extensions to deadlines affecting 32 species. These extensions will be sought solely in order of the due dates of the court orders.

"The Endangered Species Act is broken. This flood of litigation over critical habitat designation is preventing the Fish and Wildlife Service from protecting new species and reducing its ability to recover plants and animals already listed as threatened or endangered," Manson said. "Imagine an emergency room where lawsuits force the doctors to treat sprained ankles while patients with heart attacks expire in the waiting room and you've got a good picture of our endangered species program right now."

The President's FY 2004 budget request for listing totals nearly $12.3 million, an amount that, if approved by Congress, is almost double the $6.2 million appropriated in FY 2000 and a 35 percent increase over FY 2003.

But Manson emphasized that additional funding alone will not solve the long-term problem.

"Conserving habitat is essential for endangered species, but critical habitat as mandated by the ESA frustrates that goal," he said. "This is a classic example of good intentions failing the test of reality."

Manson noted that two-thirds of the endangered species listing budget is being consumed by court orders and settlement agreements requiring designation of critical habitat for species already on the endangered species list. In most instances, designation of critical habitat provides little additional protection for endangered species.

"This is not a new problem," he said. "The previous administration also testified before Congress that this situation is detrimental to species conservation and needs to be resolved. The ever-increasing number of lawsuits has now brought this problem to a crisis where we are simply out of funds for this year."

Designating an area as critical habitat means that federal agencies are required to consult with the Fish and Wildlife Service on the impacts of actions they authorize, fund, or carry out, on designated critical habitat.
However, these requirements provide little additional protection for most species. This is because, as soon as a species is listed, federal agencies are already required to consult on the impacts of their activities on the species, whether or not critical habitat is officially designated.

In almost all cases, recovery of listed species will come through voluntary cooperative partnerships, not regulatory measures such as critical habitat. Habitat is also protected through cooperative measures under the ESA including Habitat Conservation Plans, Safe Harbor Agreements, Candidate Conservation Agreements, and state grant programs. In addition, voluntary partnership programs such as the Service's Private Stewardship Grants and Partners for Fish and Wildlife program also restore habitat. Many national wildlife refuges, managed by the Fish and Wildlife Service, provide habitat for endangered species, and states also provide for endangered species on their wildlife management areas.

The ESA requires that critical habitat be designated at the time of listing to the maximum extent prudent and determinable. Facing many species in need of protection, a limited budget, and incomplete knowledge about the distribution and needs of species, the previous administration made designation of critical habitat a lower priority than other listing actions. Moreover, that administration found that designation was "not prudent" for the vast majority of species as critical habitat would not provide a benefit to the species.

Lawsuits have greatly increased since 1997, when an appeals court ruled that this "not prudent" standard did not comply with the ESA. Another appeals court shortly thereafter held that courts must order the Service to designate critical habitat, even if it is lower in priority than other actions required by the ESA. Since that time, the Service has been sued over failure to designate critical habitat for species at the time they were listed, and when resources were diverted to address that issue, for missing other statutory deadlines. In addition, there have been challenges to the merits of the critical habitat designations made pursuant to these court orders.

Critical habitat designations impact species listings because both activities are funded from the same part of the Fish and Wildlife Service's budget. Critical habitat designations are far more time consuming and costly than listings.

Congress provided a total of $6 million in the FY 2003 to designate critical habitat for already listed species, nearly two-thirds of the $9.077 million budget for the Service's endangered species listing program. The Service estimates the total cost of complying with all court orders and court-approved settlement agreements requiring the Service to work on critical habitat for already listed species in FY 2003 to be approximately $8 million, leaving a shortfall of $2 million.

"Spending more than two-thirds of our listing budget on critical habitat for already listed species flies in the face of logic and the intent of the Endangered Species Act. We need to make decisions about how to use our limited resources based on the most urgent needs of species, not on who can get into a courtroom first," Manson said.
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Questions and Answers - Critical Habitat Issue
May 2003

1. Is the question of critical habitat designation and the litigation surrounding it a new issue?

The Fish and Wildlife Service throughout the existence of the ESA has often not met the requirement to make critical habitat designations at the time of listing. This has been the result of several factors, including lack of information, lack of resources, and lack of apparent benefit to species. In the prior administration, the Service usually found most critical habitat designations to be "not prudent", one of the situations in which the Act allows critical habitat not to be designated. As a result, numerous species were listed without critical habitat being designated. By 1997, the Service had designated critical habitat for only a handful of the more than 1,200 species on the threatened and endangered list.

In 1997, a court ruled that this "not prudent" standard violated the ESA. There has been a flood of lawsuits since that time.

The court-ordered deadlines currently at issue --dealing with 32 species -- result primarily from lawsuits over the failure of the Service to designate critical habitat as required during previous administrations, or subsequent challenges to the adequacy of designations.

2. Why does the Interior Department view critical habitat as a low priority?

Designating critical habitat for species already on the endangered species list provides little conservation benefit to species.

Federal agencies are required to consult with the Fish and Wildlife Service (or for some marine species, the National Marine Fisheries Service) to ensure that agency actions do not "adversely modify" this designated habitat. However, Federal agencies are already required under the ESA to consult with the Service to ensure that these same types of actions do not jeopardize the existence of the species. In most cases, the species protection benefits from a critical habitat designation largely duplicate those already in place as a result of the species being listed.

Moreover, after 30 years of experience in administering the ESA, it is clear that active conservation measures are far more important, and even essential, to recovery of listed species than the mere prohibition on adverse modification of that habitat by Federal agency action, particularly when this protection is generally provided through consultations required due to the listing of the species.

The ESA can compel agencies and landowners or managers not to harm listed species or not to adversely impact their designated critical habitat. It cannot compel them to take the positive steps needed to recover most species. Those must be done voluntarily. Inasmuch as most listed species are found in whole or part on State and private lands, and we have found both to be generally strongly opposed to having their property designated as critical habitat, "critical habitat" has become a significant obstacle to obtaining landowner cooperation in species conservation. As such, it is an obstacle to recovery for many species. This is a classic example of good intentions failing the test of reality.

3. Why is it so difficult and time consuming to designate critical habitat?

The Service must prepare detailed maps of species habitats, provide time for public comment, and complete economic analyses of the critical habitat designation before it can be finalized. These requirements make critical habitat designations costly and time consuming.

In addition, the ESA requires critical habitat determinations to be based on those physical or biological features essential to the conservation of the species. However, for many species, particularly plants, no one currently knows what those features are. Because both the statutory deadlines in the ESA and the court orders generally do not allow time to research these matters, the Service must often make decisions on incomplete information, or base decisions on where to designate critical habitat on inferences from the needs of similar species, or from the occurrences of types of vegetation often associated with a species, rather than actual knowledge of the needs of a species.

This in turn leads to sometimes successful lawsuits challenging the designations on the grounds that they were not properly done. The result is a never-ending cycle of litigation in which one lawsuit orders the Service to designate critical habitat despite the lack of adequate information and of time or resources to acquire it; a second lawsuit orders the designation to be redone due to (often predictable) defects in the initial designation; and on and on into the foreseeable future.

4. Don't delays in designating critical habitat imperil threatened and endangered species?

No. As both Bush and Clinton administration officials have testified before Congress, conserving habitat is essential for endangered species, but critical habitat as mandated by the ESA is not an effective way to undertake this conservation. The designation of critical habitat adds little, if any, value to the conservation of threatened and endangered species. The reason: in the vast majority of cases, the designation of critical habitat duplicates habitat protection found elsewhere in the Act.

Species recovery is often dependent upon active conservation measures, not regulatory prohibitions such as those that accompany critical habitat designations. Most listed species are found in whole or significant part on State and private lands, and these landowners are generally strongly opposed to critical designation on their land. The absence of critical habitat is far more likely to secure the sort of voluntary cooperation needed to recover species than to imperil them.

5. Why do all these lawsuits actually hurt endangered species conservation?
Because staff time and appropriated funds that should be going to on-the-ground conservation efforts, such as working with landowners on conservation projects to keep imperiled species from needing listing under the Act, consultation with other federal agencies to protect listed species, and working to recover species already listed, go elsewhere. They can't get to this work because litigation is forcing biologists to do the lower-priority work of designating critical habitat.

6. Isn't it true that the Fish and Wildlife Service only lists species or designates critical habitat when forced by a lawsuit?

This is completely false. Because of all the court ordered deadlines, Fish and Wildlife no longer has the funding to act outside of those deadlines. However, prior to this situation arising late in 2000 the Service was regularly listing species on its own initiative. As noted above, there was some but less designation of critical habitat. At current budget levels for the listing program, all of its funds will be required to be used for court-ordered actions through 2008.

It is ironic that the very groups whose lawsuits have caused this problem now criticize the Service for failure to act outside the court orders.

7. Why did the Service ask for a cap on funding for critical habitat when it was apparent that there were not going to be enough funds to complete all of the law suits?

The previous Administration asked for the cap on critical habitat spending -- which this Administration has continued -- to keep courts from ordering the Service to spend funds from other important program areas (such as recovery of already listed species and conservation efforts for species in decline, so they do not have to be listed) on critical habitat designations.

8. Why hasn't the Interior Department asked for enough funds from Congress to do all the designations?

The President's FY 2004 budget request for listing totals nearly $12.3 million, an amount that, if approved by Congress, is almost double the $6.2 million appropriated in FY 2000 and a 35 percent increase over FY 2003. However, no matter how much funding was provided, it would take many years to complete this process. The real question is whether the benefits of critical habitat warrant the large expenditures that would be required were it to be designated for all listed species.

9. What is critical habitat?

Critical habitat is a term within the Endangered Species Act. It is defined as an area occupied by a species listed as threatened or endangered within which are found physical or geographical features essential to the conservation of the species, or an area not currently occupied by the species which is itself essential to the conservation of the species. As defined in the ESA, "conservation" means any and all methods and procedures, and the use of those, needed to bring a species to recovery - the point at which the protections of the ESA are no longer needed.

10. What benefits does critical habitat provide a species?

Federal agencies are required to consult with the Fish and Wildlife Service about the effect of actions they authorize, fund or carry out, on designated critical habitat. As noted below, however, this is not an additional benefit of critical habitat since federal agencies are required to consult if their actions may affect listed species even without critical habitat.

11. Does that mean that without critical habitat, Federal agencies do not need to consult with the Service if they are going to authorize or conduct an activity that could impact a threatened or endangered species?

No, the Endangered Species Act prohibits unauthorized take of listed species and requires consultation for federal agency activities that may affect them, including habitat alterations, regardless of whether critical habitat has been designated.

12. How much does it cost to designate critical habitat?

The average cost of designating critical habitat for a species is approximately $400,000. The Service could list approximately 2 species for the same amount of funds.

13. When does critical habitat really help a species?

Critical habitat may have some marginal value when it covers "unoccupied" habitat which is Federally-owned or which might be impacted by a Federal activity. In those instances, Federal agencies may not already be consulting with the Service, unless other listed species are present. "Unoccupied" habitat constitutes a relatively small amount of habitat designated as critical habitat.

14. Would the Service rather not designate critical habitat for any species?

The present statutory scheme for critical habitat designations is broken. The Service believes that critical habitat would be much more valuable if the statute allowed identification without the strict deadlines and at a point at which there is better science on the needs of the species than is generally available at the time of listing.

15. How many species are not being listed because of all of the critical habitat law suits?

There are 259 species in the pipeline to be considered for listing under the Endangered Species Act. The Service needs "listing" funds to develop proposals, seek and analyze public and scientific comment, and make final listing decisions for these species. The more funds that are devoted to critical habitat, the less are available for listing. However, because none of these species has been fully evaluated or gone through the listing process, there is no basis for concluding that any particular number of these would actually be listed even if unlimited funds were available.