WSP03664

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 8/1/1993
• Author: American Bar Associa
• Title: Natural Resources and Environment - Number 8-Volume 1 - Summer 1993 - Endangered Species Protection
• Water Supply Pro - Doc Type: Publication

002HO

ture throughout all or a significant portion of
its range." Id. S; 1532(20). Only insects de-
termined to be pests are denied these designa-
tions. Id. The regulations import these
definitions without material change. 50 C.F.R.
S;S; 424.02(e), (k), and (m) (1992).
The statute defines critical habitat as "spe-
cific areas within the geographical area occu.
pied by the species" which are "essential to the
conservation of the species and . . . which may
require special management considerations or-
protection." 16 U.S.c. S; 1532(5)(A)(i)
(1988). Critical habitat may not include the
entire geographical area which the species can
occupy, Id. S; l532(5)(C); however, it may in-
clude areas outside the occupied geographic
area if such areas are determined to be essen.
tial for conservation of the species. Id.
S; I 532(5)(A)(ii). The FWS/NMFS regulations
adopt this approach as well. 50 C.F.R. S; 424.02
(d) (I 992)
The ESA and the FWS/NMFS implementing
regulations supply scveral criteria for applying
these broad, amorphous statutory definitions.
For example, the assessment of the endangered
or threatened status of a species is measured
under the statute using five factor.;:
1. thr present or threatened destruction.
modification, or cunailment of the species'
habitat or range
2. ovennilization for commercial, recrea.
tional, scientific, or educational purposes
3. disease or predation
4. the inadequacy of existing regulatory
mechanisms
5. mher natural or man-made (acmcs af.
fecting the species' continued existence

16 U.S.c. S;S; 1533(a)(I)(A)-(E) (1988). The
species' status assessment must also take into
account the efforts of state and foreign govern-
ments to protect the species, in so far as they
may avoid the need for federal ESA listing. Id.
S; 1533(b)(I)(A). The agency must weigh all
of these faclOr.; based' 'solely on the basis of the
best scientific and commercial data available."
Id. This limitation reflects Congress' desire that
"economic considerations have no relevance to
dcterminations regarding the status of species."
H.R. CONF. REp. No. 835, 97th Cong., 2d Sess.
20, reprinted In 1982 U.S.C.C.A.N. 2807, 2861.
Although the FWS/NMFS regulations incor-
porate the statutory criteria for listing a species
as endangered or threatened without material
change, 50 C.F.R. S; 424.ll(c) (1992), only
thc regulations provide the criteria for "delist-
ing" or removing a listed species from the list.
A species may be delisted if the best scientific
and commercial data available substantiate that
the species is either extinct or has recovered,
or that the original data used for the listing were

in error. Id. S; 424.11 (d). A species is extinct
if it is extirpated from its previous range. Id.
S; 424.II(d)(I). A species is recovered if the
best available scientific and commercial evi-
dence shows it is no longer endangered or
threatened. Id. S; 424.11 (d)(2).
The statutory criteria for designation of
critical habitat differ significamly from those
for the species listing determination in one im.
portant respect: Even areas fitting the basic def-
inition of critical habitat may be denied
designation if the designation is not necessary
to prevent extinction and "the benefits of such
exclusion ourweigh rhe benefits of specifying
such area as pan of the critical habitat." 16
U.s.e. S; I 533(b)(2) (1988). Among the ben-
efits to be considered in that calculus are eco-
nomic impacts. which, as noted above, are
expressly precluded from consideration in con-
nection with the species listing decision. Tak-
ing into account that benefits analysis, the
agencies must designate critical habitat "to the
maximum extent prudent and determinable."
Id. S; I 533(a)(3).
In conrrast to the species listing criteria,
the FWSINMFS regulations provide much more
of the body of the critical habitat designation
criteria. For example, in addition to incorpo-
rating the statutory requirement of cost/bene-
fits analysis, 50 C.F.R. S;S; 424.12(a), 424.19
(1992), the regulations detail the physical and
biological features that are essential to the con-
servation ofa given species and that may require
special management considerations or protec.
tion, including:
. space for individual and population
growth and for normal behavior
. food, water, air, light, minerals, or other
nutritional or physiological requirements
. cover or shelter
. sites for breeding, reproduction, rearing
of offspring, germination, or seed dispersal
. habitats that are protected from distur.
bance or are representative of the historic geo-
graphical and ecological distributions of a
species.
Id. S; 424.12(b). Such fealUres are funher de-
fined by their "principal biological and physi-
cal constituent elements. . . includ[ing] . . . the
following: roost sites, nesting grounds, spawn.
ing sites, feeding sites, seasonal wetland or dry.
land, water quality or quantity, host species or
plant pollinator, geologic formarion, vegetation
rype, tide, and specific soil rypes." Id.

The Basic Implementing Procedures

Section 4 of the ESA creates five basic pro-
grams implementing the definitions and criteria
relevant to the species listing process: (I) pe-

NR&E/SUMMER 1993

Even areas fitting
the basic definition
of critlca' habitat
may be denied
designation if the
designation is not
necessary to prevent
extbzction.

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