What is the Endangered Species Act?
The federal Endangered Species Act ("ESA") is the basic federal law that protects endangered and threatened species. Among other things, it prohibits federal agencies from authorizing, funding or carrying out any action that destroys or adversely modifies the "critical habitat" of any threatened or endangered species. This prohibition is necessary to achieve one of the central goals of the ESA: the preservation of the ecosystems upon which endangered and threatened species depend for their continued survival and recovery.
What is critical habitat?
The ESA defines "critical habitat" as those geographical areas: (1) that are essential for bringing an endangered or threatened species to the point where it no longer needs the legal protections of the ESA; and (2) which may require special management considerations or protection. In other words, the critical habitat consists of those areas that must be managed to permit an endangered or threatened species to recover to a level where it is safe, for the foreseeable future, from the danger of extinction.
How is critical habitat determined?
Under the ESA, the Secretary of the Interior ("Secretary") has the responsibility for identifying those areas that are critical habitat for endangered and threatened plants and animals. Generally speaking, the Secretary must designate this critical habitat at the same time that the species is listed as endangered or threatened. The Secretary has delegated this task to the U.S. Fish and Wildlife Service ("Service").
In determining the critical habitat for a species, the Service is required to use the best scientific data available. In addition, before designating any particular area as critical habitat, the Service must consider the economic impact, and any other relevant impact, associated with this designation. If the costs associated with designating an area as critical habitat outweigh the benefits, the Service may exclude that area from critical habitat, unless excluding the area would result in the extinction of the species in question.
How does critical habitat designation affect private landowners?
Critical habitat designation has little impact on private landowners since it is directed solely at federal agency action. Critical habitat designation affects an activity on private land only if the participation, funding or approval of a federal agency is needed to carry out the activity. In those cases, the private landowner can carry out the proposed activity as long as it would not adversely modify or destroy the critical habitat of species.
Can the public participate in the process for designating critical habitat?
Yes. At least 90 days before making a final decision on the designation of critical habitat for a species, the Secretary must publicize the proposed regulation in the Federal Register and in a newspaper of general circulation in each area where the species is believed to occur. The public is then free to request a public hearing on the proposed critical habitat designation. This hearing must take place within 45 days after the Federal Register notice is published.
Additional information: Endangered Species Coalition
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