Getting Exclusions Right – How Critical Habitat Could be an Even More Effective Incentive for Wildlife Conservation

The U.S. Fish and Wildlife Service and National Marine Fisheries Service just published an important set of draft policies to better clarify the operation of ‘critical habitat’ under the Endangered Species Act (ESA) and that are covered by a quick review here.   One of those policies focuses on how the agency will go about using the discretion provided to it by the ESA in choosing to exclude areas from a formal designation. 

Why are exclusions important?
Between 1978 and 1982, Congress gave the Secretaries of Interior and Commerce broad authority to exclude areas from critical habitat, so it makes sense to use this authority if there are ways to get a positive outcome for wildlife through exclusions.  Wait...how could the outcome not be positive?

 Both private landowners and federal ones fear critical habitat and the perceived risk they believe it may create on future uses of their land.  Almost more than any other part of the ESA, critical habitat designations provoke this fear which in turn sometimes creates responses by landowners that are harmful to species.  For example, many species depend on active habitat management to survive and the ESA lacks any tools to compel or require active management.  If landowners fearful of having their land designated as critical habitat refuse to allow habitat management, endangered species may disappear from their land.  Other landowners may 'shoot, shovel and shut up' to prevent similar potential conflicts on their land.  Still others simply refuse any access by scientists. Wildlife loses in all these very real scenarios.

In general, the Services' proposed policy goes in the right direction ... policy will create some incentive for private and federal landowners to assist in the conservation and recovery of endangered species.  However, the policy misses key opportunities to do more, typically because the agencies appear to be trying to maintain their discretion to make decisions on a case-by-case basis.  Such discretion must appear to be a favorable thing from within the walls of an agency building, but I believe typically does more long-term harm than good for wildlife.  Wide agency latitude in wildlife decisions make them more prone to political interference.  Perhaps worse, businesses and communities cannot predict what agencies will do and thus trust them less.   

The following are a few initial areas where additional changes in policy could create clearer standards for excluded areas from critical habitat.

Non-federal Lands

The policy proposes that, except in a few circumstances described, the Services will focus exclusions on non-federal lands.  This is a positive statement of intent.  However, it could have gone further.  A standing Secretarial Order relating to Tribal lands and critical habitat says, "the Services shall ....document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands."  This is a statement that could be extended to all private lands.  It would be a positive step if the Services established a definitive preference for designating public lands over private ones when conservation and recovery needs of the species could be met entirely or largely on public ones.  In other words, where there are choices in how habitat is designated, the agencies should choose to designate federal ownership lands over those in private, state or local ownership.

Section 10 Agreements and CCAAs
With regard to HCPs, SHAs, and CCAAs, the proposed policy indicates that they will "generally exclude such areas from a designation."  This statement gives participants in these agreements some evidence of agency intent.  However, the draft policy commits the agencies to consider potential exclusion only if an agreement or plan 1) is being implemented well, 2) covers the species subject to the critical habitat review, and 3) “specifically addresses that species' habitat and meets the conservation needs of the species in the planning area." 

These conditions, particularly the last one, would seem to give no predictability to an agreement participant.  Is the Service saying that it sometimes negotiates agreements that don't meet habitat and conservation needs of the species?  How is the landowner supposed to know whether that is the case when they develop their agreement? Why would the standard for approval of a CCAA or SHA (respectively, sufficient to preclude the need to list’ and ‘provide a net conservation benefit’) not be sufficient?

A preferable approach would be to change the opening statement to "will exclude such areas from a designation unless" and then incorporate the first two criteria and some modified version of the third to provide more predictability to agreement participants.  For example, the third condition would be clearer if it simply provided that the agreement or plan must provide a ‘net conservation benefit’ to the species.  That is a simpler test already in place for Safe Harbor Agreements.  Similarly, integrated natural resource plans used by DoD allow military bases to be excluded from critical habitat if the Secretary of Interior concludes that the plan provides a benefit to the species.

An alternative that the Services could adopt is to make a determination or finding upon issuing an HCP, SHA or CCAA of whether, based on the best available information at that time, the agreement or plan "addresses the species' habitat and meets the conservation needs of the species."  A statement like that is not an iron-clad assurance but it would at least offer some predictability of how agencies would subsequently interpret this standard a subsequent critical habitat designation process. 

Specifically on Habitat Conservation Plans…
I found language associated with HCP exclusions to be particularly problematic.  The narrative states that:

"HCPs often are written with the understanding that some of the covered area will be developed, and the associated permit provides authorization of incidental take caused by that development (although a properly designed HCP will tend to steer development toward the least biologically important habitat). Thus, designation of the areas specified for development that meet the definition of “critical habitat” may still conceivably provide a conservation benefit to the species." 

Given that participants in HCPs are generally seeking ‘no surprise’ assurances that they can develop these very areas, this statement suggests the Services are considering adding additional requirements to those already in place through the HCP, if Critical Habitat is designated.  This raises a host of uncertainty about HCPs and the incentives for participants to join or initiate them.   Imagine this approach in practice with a map showing critical habitat only applying to the areas planned for development in a county-wide HCP.  How would a county react to such an approach to critical habitat designation?  HCPs have already been weakened by the Services' approach to Section 7 consultation which too often is a quicker way, with lower standards, to get approval for essentially private actions.  HCPs are a package, just as DoD resource management plans are.  The Services should not take such a piecemeal approach as doing so will further undermine HCPs. 

Conservation Banks
The policy is silent on whether and when conservation banks would be excluded from designated critical habitat.

Adding Exclusions after Designation
As a practical matter, the policy leaves a big gap.  Since the agency is now generally issuing critical habitat within a year of species' listing, relatively few SHAs and HCPs are going to be in place before critical habitat is designated.  Thus, the policy would benefit from additional discussion about how the Services will change their approach to negotiate HCPs and SHAs that meet exclusion criteria.  The policy could also describe the Services approach to revision of already published critical habitat.  For example, could a potential exclusion to critical habitat be announced, receive public comment and then that area removed from designated critical habitat during the Federal Register notice and comment period on an HCP or SHA during its issuance?

Federal Lands
They indicate a preference for designating over not designating federal lands, with specific language addressing the more specific question of national and homeland security exclusions (considerations of which the Services give "great weight").  Why not consider a similar standard for federal land exclusions as exists for DoD installations.  Under an amendment made to the ESA in the last decade, if a resource management plan would “profit a benefit” to affected species, the military base will not be designated as critical habitat.  Applying this same standard to all federal lands, would create a stronger incentive for all agencies to live up to the requirements of section 7(a)(1) of the ESA to use their programs to conserve threatened and endangered species.

These are a few ideas that might help the Services take a more consistent and predictable approach to policy with regard to critical habitat exclusions.