ESA section 4 directs the Services to designate critical habitat for listed species. 16 U.S.C. § 1533(a)(3)(A). Section 3 defines critical habitat as the “areas within the geographical area occupied by the species, at the time it is listed” that are “essential to the conservation of the species” and “which may require special management considerations or protection,” as well as areas outside this occupied area that are “essential for the conservation of the species.” Id. § 1532(5)(A)(i).
ESA section 7 directs federal agencies to consult with the Services regarding actions that may affect listed species and prohibits federal agencies from engaging in activities that are likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat. Id. § 1536(a)(2).
In the Rules, the Services made a number of changes for identifying critical habitat and determining when the effects of a federal action are deemed to destroy or adversely modify critical habitat. In part, the Rules:
- Change the framework for designating unoccupied areas. The Rules provide for designating areas unoccupied by the species if they are “essential” to the species’ conservation. Under earlier regulations, the Services considered designating “areas outside this occupied area” only if a designation of occupied habitat would be inadequate for the species’ conservation. 50 C.F.R. § 424.12(e) (2015). The Services now abandon this requirement as “unnecessary and unintentionally limiting.”
- Define “geographical area occupied by the species.” The Services define the statutory phrase “geographical area occupied by the species” as “the geographical area which may generally be delineated around the species’ occurrences, as determined by the Secretary (i.e., range).” This definition includes areas where a species is not continuously found, if there is “evidence of regular periodic use.”
- Include already-degraded habitat. The Rules recognize that critical habitat may include already-degraded habitat that has the potential to support recovery of listed species if developed and improved and that such habitat will generally be considered destroyed or adversely modified if an action “alters it to prevent it from improving over time relative to its pre-action condition.”
- Redefine “destruction or adverse modification.” Under previous regulations, “destruction or adverse modification” of critical habitat arose only if a federal action affected both the recovery and survival of a species. 50 C.F.R. § 402.02 (2015). In response to decisions setting aside this interpretation, seeGifford Pinchot Task Force v. FWS, 378 F.3d 1059 (9th Cir. 2004); Sierra Club v. FWS, 245 F.3d 434 (5th Cir. 2001), the Rules redefine the term to mean a “direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.” The Services use “conservation” to capture both the “survival” and “recovery” concepts, consequently an appreciable diminishment to either may now lead to a destruction or adverse modification determination.
Implementing the Designation Rule
Between March 14, 2106, when the Rules went into effect, and November 2016, the Services issued three proposed and 150 final designations in 12 rulemaking actions. Among these designations were the New Mexico jumping mouse and the Black Warrior waterdog. Both the final designation for the jumping mouse (81 Fed. Reg. 14,264 (Mar. 16, 2016)) and the proposed designation for the waterdog (81 Fed. Reg. 69,475 (Oct. 6, 2016)) included areas unoccupied by the species.
Since November 2016, the Services have designated critical habitat for just two species—the Atlantic sturgeon and the Guadalupe fescue. 82 Fed. Reg. 39,160 (Aug. 1, 2017); 82 Fed. Reg. 42,245 (Sep. 7, 2017). While the National Marine Fisheries Service included unoccupied habitat in the sturgeon proposal, it ultimately determined that the benefits of excluding unoccupied areas outweighed the benefits of designation. The Fish and Wildlife Service did not designate unoccupied habitat for the fescue.
Challenges to the Rules and designations
On November 29, 2016, 18 (now 20) states sued the Services, claiming that the Rules are an unlawful attempt to expand the Services’ authority and control over state lands. Alabama v. NMFS, No. 1:16-cv-00593 (S.D. Ala.). The states argue that the Rules allow the designation of critical habitat regardless of whether a species occupies the area and whether an area is actually essential to a species’ conservation. To give the Trump administration additional time to respond, the court granted the Services’ request for a stay until November 10, 2017.
Pending before the U.S. Supreme Court is a certiorari petition in Markle Interests, L.L.C. v. FWS, No. 17-74, seeking review of a Fifth Circuit decision upholding the critical habitat designation for the dusky gopher frog. That designation included currently unoccupied habitat in one Louisiana parish, habitat that had been unoccupied for decades but that the Fish and Wildlife Service determined included historic breeding areas and other habitat elements for the species. While the challenged designation was made under the Services’ former regulations, the case presents the overarching question of whether the Fish and Wildlife Service appropriately included unoccupied habitat and properly determined that the unoccupied areas were “essential for the conservation of the species.” The Fish and Wildlife Service is scheduled to file its response to the certiorari petition on October 13, 2017.
The future of critical habitat
The Services’ approach to critical habitat designation has come in three waves. During the first wave, the Services were largely disinterested in critical habitat, declaring that, “in most circumstances,” designating critical habitat is of “little additional value for most listed species, yet it consumes large amounts of conservation resources.” 64 Fed. Reg. 31,871, 31,872 (June 14, 1999).
The second wave followed a series of lawsuits that enforced the Services’ duty to designate critical habitat and overturned their interpretation of the jeopardy and adverse modification standards. The Services then started designating critical habitat regularly and more expansively. These broad designations reached their zenith for the final polar bear and proposed ringed seal designations; the designated habitat for the former being larger than any single state except Alaska or Texas and the latter larger than Texas, Idaho, and Massachusetts combined.
The Rules are the third wave and continue to allow for potentially broad designations. The ultimate scope of future designations is uncertain, and the two final designations under the current administration give little guidance. It will be up to Congress, the courts, or possible executive action to decide the ebb or flow of this third wave. The courts may have the opportunity to do so in the Alabama litigation and perhaps the dusky gopher frog case, both of which generally challenge the designation of unoccupied habitat.
Educators who agree that critical thinking and intellectual development are appropriate aims of higher education do not always agree on what constitutes good thinking. This study examined the relationship between two constructs that attempt to describe that aim: critical thinking as defined by the Watson Glaser Critical Thinking Appraisal and a stage model of adolescent and adult intellectual development described as reflective judgment. In a 2 × 4 design, 119 women students at four educational levels were matched on high and low extremes of critical thinking scores and were compared on the basis of their scores on the Reflective Judgment Interview.
The results indicate: (a) a significant main effect for educational level: students at higher educational levels achieved higher scores on the reflective judgment measure; (b) a main effect for critical thinking: high critical thinking subjects out-performed low critical thinking subjects on the Reflective Judgment Interview; and (c) while low critical thinking subjects were homogeneously low in reflective judgment levels, high critical thinking subjects had significantly greater variability of Reflective Judgment Interview scores.