Recovery of an Endangered Provision : Untangling and Reviving Critical Habitat under the Endangered Species Act

There has been long-term confusion among courts, agencies, developers, and environmental organizations regarding the legal, environmental, and economic impacts of designating critical habitat for species listed as threatened or endangered under the ESA. At the heart of this difficulty has been a need to understand the degree to which the protections for critical habitat can be distinguished from those for listed species generally. Critical habitat is primarily protected via section 7’s requirement that federal agencies consult with the Fish & Wildlife Service and the National Marine Fisheries Service to determine whether a proposed federal action either jeopardizes a listed species or adversely modifies its designated critical habitat. For many years these agencies have deemed the jeopardy standard and the adverse modification standard to be identical (the “functional equivalence policy”), which as a result made it unnecessary to designate critical habitat (as well as to inadequate protection once designated). This interpretation renders express provisions of the ESA meaningless, which is not appropriate in statutory interpretation. This article sorts through the mass confusion and interprets these legal standards by looking at the ESA as a whole and getting to Congress’ overall vision in a more holistic manner. Ultimately, critical habitat is the place for recovery, and there is no doubt that this is what Congress intended. I propose the regulatory changes needed and further steps necessary to get back on track with complete and proper implementation of the ESA as a whole