While fishing for ways to interfere with your property, FWS catches a boot

August 08, 2014 | By PLF

After listing a species as threatened or endangered, the Fish and Wildlife Service (FWS) often designates certain areas as “critical habitat” under the Endangered Species Act. Once it does so, federal agencies must consult with FWS before they perform any actions that might adversely affect that critical habitat. This can be very expensive for landowners whose property is located within the designated area. For example, the consultation process delays development and significantly increases the costs of obtaining the requisite permits.

FWS recently proposed a rule that interprets its authority to designate critical habitat. It is deficient in a number of ways.

First, the Endangered Species Act grants FWS the authority to designate two kinds of critical habitat: occupied and unoccupied. Many courts have held that the standards for designating unoccupied critical habitat are more stringent than the standards for designating occupied critical habitat. But FWS has proposed a definition of “occupied critical habitat” that is so broad that it would enable FWS to designate any area as occupied critical habitat, thus subverting the more stringent standards applicable to unoccupied critical habitat. It would make no sense for Congress to require FWS to comply with the higher standard and then give it the power to ignore it completely through a trick of paperwork.

The proposed definition would also have devastating effects on landowners and society at large. Because any area could count as occupied critical habitat, people would have no way to predict whether or not FWS would designate their land as critical habitat. This could lead to their being blindsided by the costs resulting from an unexpected designation—or, they might choose not to develop their land at all, to avoid the risk that the government might designate it later. And that imposes severe—though often invisible—costs on society at large: costs that take the form of homes never built, businesses never started, and jobs never created.

Second, the reason courts make it harder for FWS to designate unoccupied critical habitat is partly because this designation has to be “essential for the conservation of the species.” Before the proposed rule, FWS interpreted this—correctly—to mean that it could not designate unoccupied areas as critical habitat unless designating all occupied areas would be insufficient to conserve the species. But now FWS says it can designate unoccupied areas as critical habitat even when only designating the occupied areas would suffice. In other words, FWS’s proposal is that “essential” should mean “not essential.”

Finally, FWS sometimes designates areas that not only aren’t occupied by the species, but are even unsuitable for the species. This is bad enough, yet the law doesn’t allow FWS to force landowners to make the area suitable. So, according to FWS, some areas are “essential for the conservation of the species” even though the animals don’t live there, can’t live there, and never will live there. These designations would do nothing to help the species, but could subject landowners to exorbitant costs. That’s why the law only allows FWS to designate areas as critical habitat when doing so would be “reasonable and prudent.” Designating unoccupied, unsuitable areas as critical habitat is pretty much never reasonable or prudent.

PLF has submitted a comment letter to FWS that makes all of these arguments. FWS should recognize that its proposed rule misinterprets the Endangered Species Act, would be unhelpful for endangered species, and could have terrible consequences for humans.