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. " species, the action would still be subject to Section 7 consultation; conversely, if a federal action within CH does not affect a listed species, no consultation is re- quired and the action would not conflict with the ESA. Activities that are conducted by state agencies or the private sector without federal involvement are not subject to the Section 7 consultation process, even if such activities result in the destruction or adverse modification of CH. The federal government does not own the land or water in a CHD, unless the CHD includes federal lands. For example, a portion of the CHD for the whooping crane includes the Quivira National Wildlife Refuge (NWR), Kansas. Another CH segment for the whooping crane is a 53-mile stretch of the Platte River in Nebraska. Most of the CH land along the river is privately owned and is not affected by the CHD un- less, as stated above, federal funds, permits, activities, and so on, are involved. Legal Definitions of Critical Habitat In developing the ESA, Congress faced the task of adhering to the best scientific data on vanishing species. The biological reality of human-caused extinc- tion and imperiled species validates the ESA's recogni- tion and definitions of endangered and threatened species. Similarly, there is ecological validity to CH as currently defined by the ESA. Sheppard's (1980) re- view of the biological legitimacy of CH concluded that there are certain areas within a species' habitat that are critical and must be protected to preserve the species. Important here is whether the biological principle of CH has been transformed into an adequate legal defi- nition and operational tool for species protection. The ESA of 1973 briefly refers to CH under Sec- tion 7. Section 7 instructed federal departments and agencies to utilize their authorities to protect listed species by conservation programs and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued exis- tence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary (Corrunerce or Interior), after consulta- tion as appropriate with the affected States, to be critical. Congress did not define CH in the ESA or indicate when it should be designated. Indeed, CH was con- ceptual and probably to be identified at the. time of any Section 7 interagency consultation. Nevertheless, confusion developed and agencies did not know whether their current or forthcoming actions in the habitat of a listed species would require Section 7 con- Critical Habitat Designation 431 sultation, because they did not know whether such habitat was critical. In 1975, the FWS and NMFS de- cided to formally designate CH for listed species via a regulatory process and published their concept of hab- itat and CH (40 Federal Register 17764-17765): The term habitat could be considered to consist of a spatial environ- ment in which a species lives and all elements of that environment including, but not limited to, land and water areas, physical structure and topography, flora, fauna, climate, human activity, and the quality and chemical content of soil, water, and air. "Critical habitat" for any Endangered and Threatened species could be the entire habitat or any portion thereof, if, and only if, any constituent element is neces- sary to the normal needs or survival of that species. The foUowing vital needs are relevant in determining "critical habitat" for a given species: (I) Space for normal growth, movements, or territorial behavior; (2) Nutritional requirements, such as food, water, minerals; (3) Sites for breeding, reproduction, or rearing of offspring; (4) Cover or shelter; (5) Other biological, physical, or behavioral requirements. This liberal CH definition allowed for large CHDs such as the 2,604,250 ha for the gray wolf (Canis luPUS) in Michigan and northern Minnesota, and numerous rivers and extensive coastal areas in Florida for the Florida manatee (Trichechus manatus) and the Amer- ican crocodile (Crocodylus acutus). In 1976, the FWS designated the first CHs for the snail darter, yellow-shouldered blackbird (Agelaius xanthomus), American crocodile, California condor (Gymnogyps californianus), Indiana bat (Myotis sodalis), and Florida manatee. The CHDs usually described areas of land, water, and airspace by legal description, river miles, or other discernible means. For example, the Little Manatee River downstream from the US Highway 301 bridge in Hillsborough County, Florida, is one CH segment for the Florida manatee. Some of the CHDs were for species that had been listed in the I960s under the Endangered Species Protection Act of 1966 and the Endangered Species Conservation Act of 1969. In 1978, the FWS and NMFS rendered another ad- ministrative definition of CH to settle the growing confusion over the term (43 Federal Register 870-876): "Critical habitat" means any air, land, or water area (exclusive of those existing man-made structures or settlements which are not nec- essary to the survival and recovery of a listed species) and constituent elements thereof, the loss of which would appreciably decrease the likelihood of the survival and recovery of a listed species or a distinct segment of its population. The constituent elements of critical habitat include, but are not limited to: physical structures and topography, biota, climate, human activity, and the quality and chemical content of land, water, and air. Critical habitat may represent any portion of the present habitat of a listed species and may include additional areas for reasonable population expansion.