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he designation of critical habitat under the Endangered Species Act (ESA) can result in significant and costly consequences for landowners, industry, government, and other entities—often with little if any evidence of a commensurate benefit to the species involved. In Critical Habitat and the Challenge of Regulating Small Harms, Professor Dave Owen provides a valuable contribution to assessing the role of critical habitat during  consultation on federal agency actions under ESA section 7.1 

Specifically, in reviewing and analyzing over 4,000 biological opinions, Professor Owen devotes substantial time and resources to developing a better understanding of critical habitat in formal consultation between agencies undertaking federal actions, such as issuing permits or rules or providing project funding, and the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the Services). Although his analysis is limited to information contained in the Services’ biological opinions, Professor Owen provides valuable, hard data showing the on-the-ground impacts of critical habitat on the consultation process, which is useful for understanding and weighing policy choices associated with critical habitat designation. Finding that the Services construe the ESA prohibition against adverse modification of critical habitat to exclude “minor alterations” of habitat, Professor Owen concludes that the ESA’s prohibition of “adverse modification” of critical habitat thus has little effect upon the consultation process.

In order to understand the full impacts and costs of critical habitat designation, however, it is necessary to view critical habitat from a wider perspective that considers the effect of critical habitat designation outside of the formal ESA section 7 consultation process.                                                                                                                                                                                   

 

Footnotes: 1. Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms, 64 Fla. L. Rev. 141 (2012). 2. See Memorandum from Marshall Jones, Acting Director, FWS, to Regional Directors, Application of the “Destruction or Adverse Modification” Standard Under Section 7(a)(2) of the ESA (Dec. 9, 2004), available at http:// www.fws.gov/midwest/endangered/permits/hcp/pdf/AdverseModGuidance. pdf (because of recent litigation finding the Service’s regulatory definition of “destruction or adverse modification” was contrary to law, FWS provided guidance for applying the adverse modification standard in section 7 consultations pending adoption of a new regulatory definition). 3. See 76 Fed. Reg. 76987 (Dec. 9, 2011) (draft policy of interpretation of “significant portion of its range” in the ESA’s definitions of “endangered species” and “threatened species”). The Services have not yet issued their final policy.

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