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<br />W AIS Document Retrieval <br /> <br />002G94 <br /> <br />a species, it must be designated "to the maximum extent prudent' , <br />within 1 additional year. Thus the ultimate test in determining whether <br />or not critical habitat is designated for a species is one of prudence. <br />The basis for the -Court order directing the present designation was the <br />Service's failure to either designate critical habitat or to find that <br />its designation would not be prudent within 1 year of the listing of <br />the southwestern willow flycatcher as an ~ndangered species. <br />The Act's definitions of "critical habitat" and "conservation" <br />are central to any interpretation of critical habitat's attributes and <br />effects. Critical habitat is defined in Section 3(5) (A) of the Act as <br />"(i). the specific areas within the geographical area occupied by a <br />species, at the time it is listed in accordance with the Act, on which <br />are found those physical or biological features (I) essential to the <br />conservation of the species and (II) that may require special <br />management considerations or protection; and (ii) specific areas <br />outside the geographical area occupied by a species at the time it is <br />listed, upon a determination that such areas are essential for the <br />conservation of the species." The term "conservation," as defined in <br />section 3(3) of the Act, means ". . . to use and the use of all <br />methods and procedures which are necessary to bring any endangered <br />species or threatened species to the point at which the measures <br />provided pursuant to this Act are no longer necessary. " A designation <br />of critical habitat thus implies not only specific knowledge of the <br />habitat needs of a species, but also an idea of what would be needed in <br />the way of habitat protection and management to bring about the <br />species' recovery. <br />The Act also requires a consideration of economic and other <br />consequences as part of the designation process, with the option of <br />excluding areas from designation if the benefits of such exclusion <br />outweigh the benefits of designation, and if exclusion would not result <br />in the extinction of the species. A good understanding of the effects <br />of designation, both in general and for particular cases, is required <br />to carry out this analytic requirement and to provide a basis for the <br />consideration of potential exclusions. <br />At the time a species is listed, there is generally no detailed <br />understanding of the management measures that will be required for its <br />recovery, so that designation at this time can only crudely reflect its <br />conservation needs. Meanwhile, the required analysis is necessarily <br />highly speculative in that it must incorporate assumptions regarding <br />future economic activity that may be difficult to characterize, and it <br />is aimed at the increment of effect on these activities attributable to <br />designation over and above those consequent to the species' listing. <br />Finally, the economic balancing that is the object of the analysis is <br />only possible to the extent that these two sets of effects can be <br />differentiated, and the limit on this balancing (i.e., that exclusion <br />may not cause extinction) is not meaningful if the failure to designate <br />critical habitat cannot plausibly have this effect. <br />In determining the extent to which designation of critical habitat <br />is prudent, Congress directed the Service to consider whether the <br />designation would be of benefit to the species concerned. In recent <br />years, the Service has foregone designating critical habitat for most <br />species it has listed on the basis that it would not provide any net <br />benefit to their conservation. <br /> <br />Designation by regulation <br /> <br />Critical habitats are designated in the Code of Federal Regulations <br />and can be altered only through a rulemaking process that commonly <br />requires over a year from start to finish. In fact, revision is a <br />sufficiently complex undertaking that the Service has never revised a <br />critical habitat designation, in spite of it being possible to do so. <br />The range and habitat use of a species do not necessarily remain <br />unchanged over time or change so slowly as to be readily tracked by <br />costly and time-consuming regulatory amendments. <br /> <br />Tuesday, July 22, 1997 <br /> <br />Page S of21 <br /> <br />2:0S PM <br />