Monday, February 8, 2016

What the New Adverse Modification Rule Doesn't Do

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out activities likely to result in adverse modification of critical habitat.  That sounds like a powerful prohibition, but for years, figuring out what counts as adverse modification has been a challenge.  One of the most vexing questions has been whether small increments of habitat degradation qualify as adverse modifications—and, if they do not, how to draw a principled distinction between those incremental changes that qualify as adverse modification and those that do not. 

Last week, the United States and Fish and Wildlife Service and the National Marine Fisheries Service took what could have been a significant step toward resolving this question; they released a long-awaited regulation that defines adverse modification.  But in two key ways, the new regulation falls short of answering critical habitat’s crucial questions.

The new regulatory text is as follows:

Destruction of adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.  Such alterations include, but are not limited to, those that alter the physical or biological features essential to the conservation of the species or significantly delay the development of such features.

The first big issue with that language is that it doesn’t clarify much about what counts as adverse modification.  The key word here, of course, is “appreciably.”  It’s a classic lawyer’s wiggle word: flexible enough to mean anything between “not very much at all” and “kind of a lot.”  In the preamble, the agencies add a little more specificity.  Appreciably, in their view, means something similar to considerable, which means something akin to noticeable, which sounds more like a pretty low standard.  But the agencies go on to explain that not just any discernable adverse change in habitat quality will qualify as adverse modification, and they also explain that what counts as appreciable will be judged while looking at the critical habitat area as a whole, not just the specific action area.  That’s likely to make a difference; things generally look smaller when one views them from farther away.

In addition to leaving the adverse modification standard fairly fuzzy, the new regulations also retain a curious paradox in the agencies’ treatment of cumulative impacts.  Many species are imperiled by the incremental whittling away of their habitats, and that raises a question: if a small change is part of a larger trend, and that larger trend of habitat modification clearly poses problems for the species, does each contributing increment count as adverse modification (or jeopardy, which is the other major prohibition in section 7 of the ESA)?  Does that cumulative trend even affect the calculus?  As other commentators have noted, the services have struggled with these questions as well, often adopting approaches that left species with little protection from cumulative habitat loss.

The new regulations don’t fix that problem.  Instead, the preamble clearly states that while the services will look at all of a species habitat when judging whether habitat modifications count as appreciable, they will only look within the action area when assessing cumulative impacts.  That means a biological opinion could quite plausibly decline to find adverse modification because a species has a relatively wide range, even if similar actions are degrading species habitat across that range.  If the basic goal is to protect species, that doesn’t make much sense.  The approach, if followed carefully, would mean assuming that range-wide trends will make up for local increments of degradation, while avoiding the analyses that would often prove that assumption false.

This isn’t just a hypothetical concern.  The old regulatory language used similar words and allowed similar flexibility, and standard practices therefore aren’t likely to change.  In a 2012 study, I took a close look at those practices, and I found that the services were routinely declining to find adverse modification even for projects that would (a) make habitat worse in the action area; and (b) contribute to a range-wide trend of habitat degradation.  Their reasoning, usually, was that the project-specific change, when viewed at a landscape scale, was too small to count. 

So what could the services have done differently?  These are tricky issues, and it’s much easier to take pot shots than to come up with a better alternative.  Any critic also ought to acknowledge that the services do strive, in almost every consultation process, to change projects in ways that protect species, and that they do so in the face of often-intense political opposition.  But even with these challenges, I do think there are possibilities. 

The problems with cumulative impact analyses ought to be the easier fix.  It would take a little more work, but the services could take into account range-wide trends when they perform such analyses.  The thresholds problem is harder.  But one intriguing possibility (which the services, for now, have declined to pursue) would be to use recovery plans to set default thresholds for what counts as an appreciable adverse modification.  Those thresholds could be set at a level sufficiently protective to ensure against cumulative degradation of species habitat, and thus could link decisions on individual projects into larger plans for the conservation of species.  That, in turn, would mean turning recovery plans from documents of aspiration into documents of regulation, which the services are hesitant to do.  But if the services are going to come up with a principled distinction between modifications that really are adverse and those that are too small to count, establishing a link to conservation planning seems like a sensible way to start.

- Dave Owen

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