June 01, 2015

Critical Habitat in Critical Condition: Can Controversial New Rules Revive It?

Steven Quarles, Brooke Wahlberg, and Sarah Wells

Over its four-decade life span, the Endangered Species Act (ESA or Act), has been accompanied by a nearly universal recognition that, as noble as the law’s mission is, it was misdirected, focusing on species with scant attention to their habitats. See 16 U.S.C. §§ 1531–1544. Said another way, the best method of preventing extinction and promoting recovery of most species is not to pinpoint resources and regulatory constraints on the individual species, as the ESA does, but rather to address those species’ habitat needs. Although the ESA pays lip service to habitat protection in its hortative statement of statutory purpose (“provide a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved”), the Act only treats habitat explicitly in three places: (1) the section 4 authority of the secretaries of the Interior and Commerce to designate particular habitats of endangered and threatened species (listed species) as critical habitat; (2) the section 7 prohibition on federal agency actions that would likely cause destruction or adverse modification of the species’ designated critical habitat, applied in consultations between the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (together, Services) and the action agencies; and (3) the section 5 provision of new, and cataloguing of existing, authorities of the secretaries of the Interior and Agriculture to acquire lands or water to conserve the species.

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