The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS and, together, the Services) issued the final rule revising the regulations for publishing the proposed and final boundaries of an endangered species’ designated critical habitat. With the goal of being more “user-friendly,” efficient and cost effective, the final rule requires the Services to publish maps of proposed and final critical habitat designations, but makes inclusion of any textual description of the boundaries optional. This purported procedural rule, which is effective May 31, 2012, may have a substantive result, potentially facilitating the over-designation of critical habitat and triggering consultation requirements or imposing limits on property owners and project proponents where none are really warranted.
Designating Critical Habitat
Under the Endangered Species Act of 19731 (ESA), to protect a plant or animal species, the Services first add it to the federal lists of threatened and endangered wildlife and plants. After a species is listed, the listing Service is to designate as “critical habitat” —to the maximum extent prudent and determinable — specific areas essential for the conservation of the listed species. Critical habitat must be designated “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.”2 Under Section 7 of the ESA, a federal agency must consult with the Services if a proposed action may “jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of designated critical habitat.3 During consultation, the Services evaluate the best available scientific and commercial data from the applicant to determine whether a proposed action is “likely to jeopardize” the continued existence of the species or result in the destruction or adverse modification of critical habitat.4 If the Services issue a “jeopardy” opinion and no alternatives exist that would avoid jeopardy or destruction or adverse modification of critical habitat, the proposed action may not go forward unless exempted by the Endangered Species Act Committee.
After designating critical habitat, the designating Service is required to publish the official delineation of the designation (i.e., the boundaries of the critical habitat) in the Federal Register for codification in the Code of Federal Regulations. Prior to these revised regulations, NMFS published a textual description of designated critical habitat boundaries along with maps in both their proposed and final rules. FWS published only maps in the proposed critical habitat rule and then published the textual description along with the maps in the final critical habitat rule. Historically, the Services described the boundaries using a variety of methods, including the Public Land Survey system, which specifies township, range, and section, and metes-and-bounds, which describes a parcel of land using physical features of local geography with directional distances to define boundaries. More recently, the Services have also relied upon geographic information system and specific geographic-based data, such as the Universal Transverse Mercator coordinate system, which is a grid-based system that relies on 60 zones to specify locations.
The Services assert that the public generally only relies on the maps, and thus the rule eliminates the requirement to publish textual descriptions of critical habitat boundaries in the Federal Register, making such descriptions “optional.” Therefore, after the effective date, the published maps, as modified by any rule text, will constitute the official boundary of the designation. Additionally, the Services will include more detailed information in the preamble of the rulemaking documents and make the coordinates and/or plot points upon which the map is based available to the public. The Services contend that the final rule does not change the way critical habitat is designated or their analysis of the physical and biological features essential to the conservation of the species, but, as discussed below, the final rule may substantively affect these designations.
Application of the new language is limited only to critical habitat designations published after May 31, 2012. The Services note that they intend to remove textual descriptions from existing final critical habitat boundaries already set forth in the Code of Federal Regulations, but will do so in separate rule makings to ensure that the existing boundaries are not changed.
Rationale for Final Rule
In January 2011, federal agencies were directed5 to review their existing regulations and to modify or streamline them in accordance with what they learned. In response to this directive, the Services issued the draft rule last May, proposing to make the textual descriptions optional. The Services noted that elimination of the textual descriptions could result in significant savings of publication costs and estimated that this savings could be more than $300,000 per year. The Services contend that the final rule will make the process more user-friendly without compromising the public’s understanding of the overall process or of the boundaries themselves. According to the Services, the final rule’s reliance on maps and any necessary textual description to identify areas designated as critical habitat is consistent with the ESA.6 The Services interpret the ESA's requirement7 that the “complete text” be included in the proposed regulation as meaning the published map along with any optional rule text that may clarify the map. The Services also note that the first critical habitat regulations required only that the critical habitat designations be “accompanied by maps and/or geographical descriptions.”8
Potential Implication of the Final Rule
Although procedural in nature, this final rule may have a substantive effect, as reliance on maps for the official boundary of the critical habitat designation without the accompanying textual description of the area may limit the public’s ability to accurately discern what property has been designated critical habitat. Due to technical publishing limitations, maps published in the Federal Register, especially large-scale maps, may not provide the same level of detail for the boundaries of the critical habitat as the textual description. Without this text, which is akin to the legal description in real property instruments, a property owner may not be able to determine whether a specific parcel has been included within a critical habitat area. Moreover, a potential problem arises when there is a conflict between the legally binding delineation shown on the published map and the additional information provided in the administrative record, websites, outreach materials and at field offices (if any). Because they are not part of the codified designation, the additional information, even the clarifying information included in the preamble, would not legally define the critical habitat boundaries.
Similarly, the published maps, without specific coordinates that can be validated on the ground, may depict wide swaths of property that could expand the areas designated as critical habitat, triggering Section 7 consultation or ESA prohibitions. This concern is exemplified by the current maps that are included in the Federal Register, which were only intended to supplement the formal textual designations. Thus, without the more specific textual descriptions, the published maps could designate expansive areas when only a portion of that area actually contained the “primary constituent elements” (PCEs) essential to the conservation of the species. This rule may streamline the process of designating critical habitat and make it easier for the Services to be over-inclusive in their critical habitat designations under the ESA.
Ultimately, the issue comes down to how the Services will implement this rule. This rule makes the inclusion of the textual description in the critical habitat designation optional. The breadth of “textual description” is unclear. Currently, critical habitat descriptions include the legal description of the boundaries of the critical habitat, as well as a list of the known PCEs. Sometimes critical habitat descriptions also specifically exclude areas such as manmade structures that do not contain the PCEs. If the new rule is interpreted to allow all of this text to be deleted, the critical habitat designations are likely to be overbroad and non-critical habitat (e.g., areas lacking PCEs) would likely be included within the bounds of the broadly designated area. The complications related to this interpretation of the new rule would be exacerbated if the published maps were unclear. However, if the Service implemented the rule in this manner, arguably it would be a violation of the requirement that the “complete text” of the proposed regulation be published,9 and a violation of the regulations of the PCEs must be listed in the critical habitat description.10 Regardless, property owners, oil and gas companies, and other interested and/or affected entities should pay close attention to the designation process and submit comments at the proposed rulemaking stage to ensure that proposed maps designating critical habitat are accurate and sufficiently detailed to exclude non-critical habitat areas (e.g., areas lacking PCEs) within the bounds of any broadly designated area.
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1 16 U.S.C. §§ 1531 et seq.
2 ESA § 4(b)(2); 16 U.S.C. § 1533(b).
3 16 U.S.C. § 15321(19).
4 50 C.F.R. §§ 402.14(d), (g).
5 Executive Order 13563 (Jan. 18, 2011).
6 77 Fed. Reg. 25,611, 25,613 (May 1, 2012) (stating that the final rule is consistent with sections 4(b)(3)(A) and 4(b)(5)(A) of the Act).
716 U.S.C. § 1533(b)(5)(A)(i).
8 Id. (citing 43 Fed. Reg. 870, 876 (Jan. 4, 1978))
9 16 U.S.C. § 1533(b)(5)(A)(i).
10 50 C.F.R. §§ 17.94(c), 424.12(b)(5).
This article was originally published by Bingham McCutchen LLP.