Friday, May 9, 2014

A First Take on the New Critical Habitat Proposed Rules

Pagosa skyrocketToday, the Department of the Interior and the Department of Commerce released two proposed rules and one proposed policy, all pertaining to the Endangered Species Act’s treatment of critical habitat.  One rule would make some subtle changes to the standards used in designating critical habitat, and the other would update the regulatory definition of “adverse modification” of critical habitat.  The proposed policy would provide guidance on the standards used to exclude areas of habitat from critical habitat designations.

This post provides a quick first take on the rules, with a primary focus on the redefinition of adverse modification.”  That redefinition could be a big deal.  Section 7 of the ESA prohibits federal agencies from taking actions likely to adversely modify critical habitat, and that might seem, at first blush, like the most stringent provision in a law that is already legendary for its stringency (whether it deserves that fearsome reputation is another question).  Implementing the ESA’s critical habitat provisions has also been difficult—years ago, Oliver Houck aptly referred to critical habitat as “an agony of the ESA”—and these rulemaking processes offer the Fish and Wildlife Service and the National Marine Fisheries Service the opportunity to relieve some of that difficulty.

The Need

Why promulgate these new rules?  The short answer is litigation.  Until 2004, the services operated under 1986 regulations that defined “adverse modification.”  But multiple courts rejected that definition, finding that it illegally excluded actions that would compromise species’ recovery but not their survival.  The last of those decisions, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) sounded the death knell for the old regulations.  Both services sent memos to their biologists instructing them to cease relying upon the regulatory definition.  The process of replacing the defunct regulations hasn’t exactly proceeded quickly, but those court decisions made it all but inevitable.

In addition to court cases, the adverse modification standard has been beset by a few other problems.  One is its uncertain relationship to ESA section 7’s prohibition on federal agency actions likely to “jeopardize” the continued existence of listed species.  In the 1990s, the Department of the Interior often asserted (partly in reliance on the now-defunct regulations), that the two standards were functionally identical, and that the adverse modification prohibition had no independent function.  Even after the Gifford Pinchot decision, practice continued to reflect those earlier claims.  In a study of over 4,000 biological opinions issues between 2005 and 2009, I found none that reached an adverse modification finding without also finding jeopardy (the prohibition wasn’t completely inconsequential; biologists told me that it affected their negotiations over project changes).  As a basic matter of statutory interpretation, that seems problematic.  Lawyers generally presume that Congress doesn’t put redundant words in statutes, yet the services’ implementing approaches turned the adverse modification prohibition into something close to surplusage.

The third problem involves de minimis harms.  The ESA itself contains no de minimis exception to the adverse modification prohibition, but the services have never wanted to apply that prohibition to every federal action that modifies critical habitat for the worse.  So they wrote a rather fuzzy de minimis standard into their old regulations and guidance, which applied the adverse modification only to actions that “appreciably diminished” the value of critical habitat.  “Appreciably diminish,” in turn, meant “considerably reduce” that habitat’s value.  In that same study, I found that in practice, the services often applied these definitions in ways that tolerated fairly substantial alterations of critical habitat, and that the services lacked a coherent and principled basis for distinguishing harms that counted as adverse modification from those that were truly de minimis.  That seems rather problematic, and a new rulemaking would afford the services an opportunity to address the de minimis problem in a more rigorous and transparent way.

The Proposed Rule

So does the proposed rule address these issues?  The answers, in sequence, are yes, partly, and not really at all.

First, the proposed rule does fix the heart of the services’ Gifford Pinchot problem.  It makes very clear that impacts to recovery must be considered in an adverse modification inquiry.  Here’s the proposed definition:

“Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.

Second, the proposed rules clarify the relationship between jeopardy and adverse modification.  The claims that the adverse modification standard is redundant are conspicuously absent, and instead the services provide this clear statement (from the designation rule preamble rather than the adverse modification rule):

In addition to serving as a notification tool, the designation of critical habitat also provides a significant regulatory protection—the requirement that Federal agencies consult with the Services under section 7(a)(2) of the Act to ensure that their actions are not likely to destroy or adversely modify critical habitat.

In the 1990s, and even in the 2000s, the services weren’t saying things like that.

The services also provide some clarification about when the adverse modification standard will add something to the protections provided by the jeopardy standard.  Specifically, they anticipate the adverse modification provision becoming significant when habitat destruction is unlikely to affect a species’ present-day population dynamics—perhaps because the habitat is unoccupied—but is likely to affect a species’ recovery prospects.  The most concise explanation comes from the preamble to the designation rule:

This benefit should be especially valuable when, for example, species presence or habitats are ephemeral in nature, species presence is difficult to establish through surveys (e.g., when a species such as a plant’s “presence” may be limited to a seed bank), or protection of unoccupied habitat is essential for the conservation of the species.

The preamble to the adverse modification rule fleshes out that concept in more depth.

While that helps clarify the relationship between jeopardy and adverse modification, other important questions remain unresolved.  One particularly important question is whether adverse modification should have a lighter threshold than jeopardy even where the habitat in question is occupied.  I’ve argued elsewhere that it should, and some others—both within and outside the services—agree.  But that issue isn’t really addressed here.

That reflects a broader problem.  On the de minimis question, the services have provided a little bit of clarification, but I see only a hint at the principles that might define the difference between regulated adverse modifications and non-regulated de minimis changes.  The services have excised the phrase “considerably reduce” from their definition of adverse modification, and have tried to provide more clarification of what “appreciably diminish” means.  That's a step forward, but only a step, and what comes next isn't clear.  Rather than try to paraphrase a discussion that I’m not sure I understand, I’ll just paste the key passage below:

To determine the appropriate meaning of the term “appreciably,” we ultimately found it helpful to look at the definition of “appreciate,” which means to “recognize the quality, significance, or magnitude” or “grasp the nature, worth, quality or significance.” This usage makes more sense to us in the actual application of the phrase “appreciably diminish.” The relevant question, then, becomes whether we can recognize the quality, significance, or magnitude of the diminishment. In other words, is there a diminishment to the value of the critical habitat that has some relevance because we can recognize or grasp the quality, significance, magnitude, or worth of the diminishment in a way that affects the conservation value of the critical habitat.

It is important to understand that the determination of “appreciably diminish” will be based upon the effect to the conservation value of the designated critical habitat. That is, the question is whether the “effects of the action” will appreciably diminish the conservation value of the critical habitat as a whole, not just in the area where the action takes place. For example, an action may have an adverse effect to a portion of critical habitat. The question would be, then, whether the adverse effect in that one part of the critical habitat will diminish the conservation value of the critical habitat overall in such a manner that we can appreciate the difference it will have to the recovery of the listed species. Specifically, some factors to be considered will be: will recovery be delayed, will recovery be more difficult, and will recovery be less likely. At the appropriate time after rulemaking, the Services plan to update guidance or handbook material to reflect any identified changes to the “appreciably diminish” definition in the March 1998 Consultation Handbook. These considerations should be applied cautiously so the Services do not apply a standard that is either too sensitive in light of the particular circumstances, or not sensitive enough.

Translated, I think that means something like, “observable diminishment in the value of critical habitat will count as adverse modification, unless that standard is too sensitive, in which case… well, we’ll get back to you.”

To be fair, I think that the services face a really difficult problem.  Finding a de minimis threshold that (a) fits with the statutory language; (b) will not become administratively overwhelming; and (c) will fulfill the statutory goals of protecting species is going to be very challenging.  I think the services’ best options for finding such a standard, and making it work, would have to be linked to regulatory efforts under other parts of the ESA.  A recovery plan, for example, would be a useful document for thinking through thresholds for adverse modification and jeopardy.  That hasn’t been past practice but, to the services’ credit, an “integration” group is already trying to think of ways to draw these kinds of regulatory linkages (I don’t know whether this specific one is on the table).  So this rulemaking effort may just represent a step in a process toward articulating a more transparent, functional, and protective adverse modification standard.

- Dave Owen

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