Critical habitat proposals may do serious harm, business groups say

Two federal agencies’ proposals to change the Endangered Species Act’s critical habitat designation procedures potentially could cause serious damage to the general economy, warned nearly a dozen US business groups, including two oil and gas entities.

The Gas Processors Association and Markwest Energy Partners LP joined the US Chamber of Commerce, National Association of Manufacturers, American Chemistry Council, American Iron & Steel Institute, Brick Industry Association, Corn Refiners Association, National Oilseed Processors Association, and National Stone, Sand & Gravel Association in comments submitted Oct. 9 about the proposals.

“One of our goals was to gather representatives from every economic sector to show that while we may not agree on everything, we recognize that these proposals not only would exceed the services’ statutory authorities, but would create extreme effects if the proposals are implemented as drafted,” Parker Moore, a partner in Beveridge & Diamond PC’s Washington office who helped prepare the comments, said on Oct. 21.

The groups said in their comments that the US Fish & Wildlife Service and National Marine Fisheries Services’ proposed changes “would significantly broaden both the geographic reach of critical habitat designations and the range of activities that constitute ‘destruction or adverse modification,’ and would provide the services with undue discretion to implement these expanded regulations.”

Increasing the number and scope of critical habitat areas would make it more likely that a proposed activity would occur in or near a designated site, they said. The broader definition of “destruction or adverse modification” would increase the likelihood that the two services would subject a proposed activity to Section 7 consultation under the ESA, the groups said.

“All stakeholders share the concern that these proposals mark the first time the agencies have contemplated designating areas as critical habitat when the species have never lived there,” Moore told OGJ. “It’s something Congress never considered, and it doesn’t appear in any form within the statute itself.”

Second expansion phase

Moore said the proposed changes would be the second phase of regulatory expansion that began with mega-settlements FWS and NMFS reached with the Center for Biological Diversity and WildEarth Guardians in 2011. Under those settlements, FWS agreed to make ESA listing decision for more than 750 new species over the next few years.

FWS submitted a multiyear work plan to US District Court for the District of Columbia on July 12 that it said would enable the US Department of the Interior agency to systematically review and address needs of more than 250 plants and wildlife over 6 years and determine if they should be added to federal lists of threatened and endangered species.

“We think the services will err on the side of caution for up to 750 new listed species and list critical habitat for each one,” Moore said. “Because most of the species are on private lands, it would create very difficult situations for land owners and users.”

The proposals’ potential consequences are real, and very serious, the groups said in their comments. “Ninety percent of all listed species have some or all habitat on private land, and for 73%…private land accounts for more than 60% of their habitats,” they said. “Each critical habitat designation carries with it massive economic implications for every industry operating nearby, and each finding of destruction or adverse modification stifles growth.”

Designation and regulation of critical habitat work together to create significant constraints on land owners and users, the comments continued. “Those constraints raise the costs of otherwise more productive economic activities, and reduce the value that can be generated from the land and from activities and operations on it,” they said. “In short, critical habitat devalues land for private enterprise.”

‘Feel their way along’

“These proposals certainly would allow the services to designate critical habitat much more easily, and do so in a way which would be difficult for industry to challenge,” Moore said. “It would empower [them] with a lot of discretion and flexibility regarding the standards for making designations. There really are too few criteria they would look to. They could feel their way along, case-by-case, and designate as they see fit irrespective of what the science and data actually show.”

He said one of the most disturbing proposed provisions involves habitat candidate species do not currently occupy. ESA’s existing critical habitat requirements bar the services from designating unoccupied areas within a species’ historic range as critical habitat unless they first determine that those areas are essential to the species’ survival.

Current rules also bar designating critical habitat in areas a species has never previously occupied, irrespective of possible future effects to the species from climate change or any other factor, the comments pointed out. The two agencies’ proposed definition of “geographical area occupied by the species” impermissibly conflates unoccupied habitat with occupied habitat, they indicated.

“In anticipation of the far-reaching implications that designation and regulation of critical habitat could have on the nation’s economy, Congress designed the ESA so that the services will limit designations to only those areas that truly are essential to a species’ survival or recovery, and so that they will be circumspect in their administration of the ESA’s critical habitat provisions,” the comments’ summary concluded. “With these proposals, the services do neither.”

Similar concerns were expressed in comments submitted by the American Petroleum Institute and five other oil and gas industry associations (OGJ Online, Oct. 16, 2014) and by the Western Energy Alliance (OGJ Online, Oct. 9, 2014).

Contact Nick Snow at [email protected].