Since its enactment, the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, has evolved into one of the nation’s most demanding environmental laws. The ultimate goal of the protections afforded species under the ESA is their recovery, at which point the protections of the Act are no longer required. Unfortunately, the ESA’s recovery goal often takes a backseat to another goal – land use regulation. This evolution has occurred incrementally over the past 25 years through a combination of judicial decisions redefining key provisions of the ESA and policy changes at the agency level, which have altered the way the ESA applies to land and resource uses while encouraging lawsuits by environmental organizations.

The discussion that follows summarizes important issues and trends in the administration and enforcement of the ESA that impact land and resource uses in the West. In short, these issues and trends include (1) an increase in the number of listed species, including units below the species’ level; (2) an increase in the amount of designated critical habitat, in terms of both the magnitude of the area designated and the number of species with critical habitat; (3) increased reliance on species’ recovery plans and a recovery-based standard to designate critical habitat and to evaluate the effects of actions under Section 7; and (4) the continued marginalization of economic costs in administering the Act.

1. Species’ Listings.

The cornerstone of the ESA is the process by which species are listed as threatened or endangered and is governed by Section 4 of the ESA, 16 U.S.C. § 1533. Listing triggers the ESA’s other requirements, including the designation of critical habitat, the application of Section 7’s substantive and procedural requirements, and the Section 9 “take” prohibition. The trend over the past decade has been a relaxation of the standards for listing species, allowing groups of plants and wildlife below the species level to be listed. The ability to carve species into smaller groups for listing purposes makes listing easier and creates more resource conflicts. In addition, environmental groups have been aggressively filing listing petitions in order to have as many species as possible listed and subject to the ESA’s protections.

  • The listing of “ranges” of fish, animals and plants. A species is not eligible for listing unless it faces possible extinction “throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20). In 2007, the Interior Solicitor issued an opinion concluding that the FWS is authorized list the “range” of a species if it is “significant,” regardless of the status of the species as a whole. Interior Solicitor Opin. M-37013 (March 16, 2007). The following year, the FWS listed the Preble’s meadow jumping mouse along the Front Range in Colorado, despite finding that the subspecies would remain secure and well distributed across Wyoming in the foreseeable future. Final Rule to Amend the Listing for the Preble’s Meadow Jumping Mouse, 73 Fed. Reg. 39790 (July 10, 2008).

Following legal challenges to this new interpretation,1 the 2007 Solicitor’s Opinion was withdrawn in May 2011, and a new policy interpreting the “significant portion of its range” phrase was proposed. Draft Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act’s Definitions of “Endangered Species” and “Threatened Species,” 76 Fed. Reg. 76987 (Dec. 9, 2011). Under this policy, a portion of the range of a species would be “significant” only if “its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction.” 76 Fed. Reg. at 76987.2 Environmental groups are challenging this interpretation.”3

Unfortunately, the proposed policy contains a significant error in mandating that if a species is determined to be threatened or endangered throughout a significant portion of its range, then it must be listed as threatened or endangered throughout its entire range, including areas in which the species is common. This interpretation conflicts with the plain language of ESA Section 4(c)(1), which requires the FWS to “specify … over what portion of [the species’] range it is threatened or endangered,” as well as the legislative history, which indicates that FWS has flexibility in determining the areas in which species are to be protected.

  • Listing distinct population segments of fish and wildlife. The definition of “species” includes species, subspecies and “any distinct population segment of any vertebrate fish or wildlife which interbreed when mature.” 16 U.S.C. § 1532(16). Congress cautioned that it expects the FWS “to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted.” S. Rep. No 96-151, at 6-7 (1979). Nevertheless, the listing of populations as a “distinct population segment” or “DPS” has become increasingly common.

The ESA requires that the listing of species be based “solely on the best scientific and commercial data available.” 16 U.S.C. § 1533(a)(1). The “addition of the word solely [was] intended to remove from the process of listing or delisting of species any factor not related to the biological status of the species.” H. Rep. No. 97-567, at 20 (1982). Under current FWS policy, however, populations are considered discrete and therefore eligible for listing as a DPS if the population is separated by an international border, without regard to biological differences.

For example, the FWS recently determined that wolverines in the continental United States constitute a DPS even though most of the wolverine’s range is found in Canada and Alaska, where the species is widespread and faces few threats. 12-Month Finding on a Petition to List the North American Wolverine as Endangered or Threatened, 75 Fed. Reg. 78030 (Dec. 14, 2010). Moreover, wolverines currently found in the Pacific Northwest and northern Rockies are believed to have emigrated from Canada, as evidenced by the fact that there are no significant genetic differences between wolverines in the United States and wolverines in the southern Canadian Rockies. Nevertheless, wolverines in the continental United States are being treated as distinct species unit under the ESA.4

  • The increasing use of genetic data to determine a “species.” The use of genetic studies to split species and subspecies has become increasingly common. Genetic data is difficult to address due to its highly technical nature. Precisely what level of divergence is necessary to split a species or subspecies is often uncertain and subject to scientific debate. See, e.g., 90-Day Finding on Petition to List the Eastern or Southern rocky Mountain Population of the Boreal Toad, 77 Fed. Reg. 21920 (April 12, 2012) (using mtDNA studies to combine populations of boreal toads in Colorado and southeastern Wyoming with populations in Utah, Nevada southeastern Idaho and southwestern Wyoming to create DPS). Yet, FWS also has rejected an independent genetic study performed by the USGS in determining that the Tucson shovel-nosed snake is a separate subspecies. See 12-Month Finding on a Petition to List the Tucson Shovel-Nosed Snake as Threatened or Endangered, 75 Fed. Reg. 16050 (March 31, 2010). Guidance is needed regarding the use of such information to create new listable entities.
  • The failure to use sound, peer-reviewed science. The determination to list a species must be based solely on the best scientific and commercial data available. In Bennett v. Spear, 520 U.S. 152, 176-77 (1997), the Court emphasized that the purpose of this requirement is “to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise” and “to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.”

However, the FWS often relies on “gray” literature and information sources that cannot be readily verified. For example, environmental groups routinely rely on NatureServe Explorer, which is little more than a internet blog, to support petitions to list hundreds of obscure species, many of them plants and insects about which little is known. See, e.g., Partial 90-Day Finding on a Petition to List 475 Species in the Southwestern United States as Threatened or Endangered with Critical Habitat, 74 Fed. Reg. 66866 (Dec. 16, 2009) (describing petition to list all species in the FWS Southwest Region ranked as “G1 or G1G2” by NatureServe). At the same time, rigorous peer review rarely takes place. Consequently, listings are often based on uncertain data and speculation. FWS needs to apply its criteria for listing petitions that fail to provide substantial scientific or commercial information indicating that listing may be warranted, in accordance with 50 C.F.R. § 424.14(b)(1).

2. Critical Habitat Designations.

The FWS must designate a species’ critical habitat at the time a species is listed “to the maximum extent prudent and determinable.” 16 U.S.C. § 1533(a)(3)(A). Critical habitat is defined as areas that contain “physical and biological features” which are “essential to the conservation of the species” and “require special management considerations or protection.” 16 U.S.C. § 1532(5)(A).

Once designated, critical habitat restricts land and resource development through the application of ESA Section 7(b)(2), 16 U.S.C § 1536(a)(2), which prohibits federal actions that would destroy or adversely modify critical habitat. Recent court decisions have altered the regulatory impact of critical habitat by adopting an “impairment-ofrecovery” standard to determine adverse modification. In addition, environmental groups have been filing numerous lawsuits to compel critical habitat designations, affecting millions of acres of land and thousands of miles of watercourses in the West.

  • The designation of vast areas as critical habitat. When it defined critical habitat in the 1978 ESA amendments, Congress intended to impose limits on the designation of critical habitat, as opposed to allowing vast areas to be designated for future population growth. See, e.g., S. Rep. No. 95-874, at 10 (1978) (criticizing the FWS’s proposed designation of nearly 10 million acres as critical habitat for the grizzly bear, including land for future population expansion). One early decision stated, based on the legislative history, that critical habitat “only includes the minimum amount of habitat needed to avoid short-term jeopardy or habitat in need of immediate intervention.” Northern Spotted Owl v. Lujan, 758 F. Supp. 621, 623 (W.D. Wash. 1991).

Contrary to the legislative history, it has become common for millions of acres of land and thousands of river miles to be designated as critical habitat. See, e.g., Designation of Revised Critical Habitat for the Northern Spotted Owl, 77 Fed. Reg. (Dec. 4, 2012) (designating nearly 9.6 million acres as critical habitat); Revised Designation of Critical Habitat for Bull Trout, 75 Fed. Reg. 63899 (Oct. 18, 2010) (designating 19,729 miles of streams and 488,252 acres of reservoirs as critical habitat); Final Designation of Critical Habitat for the Mexican Spotted Owl, 69 Fed. Reg. 53182 (Aug. 31, 2004) (designating 8.6 acres of land as critical habitat). If there are millions of acres of land and thousands of miles of streams that contain the physical and biological features essential to the species, then it one wonders why these species are listed.

Moreover, in cases where critical habitat has been designated on multiple occasions for the same species (as result of litigation), subsequent designations are often considerably more extensive than the initial designation. For example, in 1997, FWS designated 599 miles of stream and river habitat as critical habitat for the southwestern willow flycatcher. Final Determination of Critical Habitat for the Southwestern Willow Flycatcher, 62 Fed. Reg. 39129 (July 22, 1997). After this designation was set aside by the Tenth Circuit Court of Appeals,5 in 2005, FWS designated 120,824 acres of critical habitat along 737 miles of waterways in California, Arizona, Nevada, Utah, and New Mexico, a 23 percent increase over the 1997 designation. Designation of Critical Habitat for the Southwestern Willow Flycatcher, 70 Fed. Reg. 60886 (Oct. 19, 2005).

Based on a settlement agreement with environmental groups, in 2011, FWS published a proposed rule to revise the designation of critical habitat for the species. Designation of Revised Critical Habitat for Southwestern Willow Flycatcher, 76 Fed. Reg. 50542 (Aug. 15, 2011). The 2011 proposed rule identified 534,809 acres of critical habitat along 2,090 miles of waterways in California, Arizona, Nevada, Colorado, Utah, and New Mexico. This amounts to an increase of approximately 235 percent over the 1997 designation and approximately 172 percent increase over the 2005 designation. Moreover, the proposed area is at least 20 times the amount of habitat needed to support 1,950 flycatcher territories – the numeric goal in the species’ recovery plan.

  • The treatment of critical habitat as “recovery” habitat. Recent court decisions have held that because critical habitat must be “essential to the conservation of the species,” it is linked to the species’ recovery. The most important decision on this relationship is Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir.), modified 387 F.3d 968 (2004), which invalidated the FWS’s regulatory definition of “adverse modification.” These decisions conflict with the ESA’s plain language and its legislative history, including the criticism that Congress leveled at FWS for its overbroad interpretation of critical habitat. See, e.g., S. Rep. No. 95-874, at 10 (1978) (“There seems to be little or no reason to give exactly the same status to lands needed for population expansion as is given to those lands which are critical to a species’ continued survival.”).

As a result of these decisions, the FWS increasingly relies on recovery plans to justify critical habitat designations, even though recovery plans are non-binding guidance documents adopted through informal procedures.6 The proposed rule for the southwestern willow flycatcher, for example, relies heavily on the species’ recovery plan, proposing areas as critical habitat in order to reach numeric goals for individual recovery units. See Designation of Revised Critical Habitat for Southwestern Willow Flycatcher, 76 Fed. Reg. 50542, 50553-55 (Aug. 15, 2011).

  • Occupied vs. unoccupied areas. In defining critical habitat, Congress deliberately distinguished between areas that are occupied by members of a listed species and unoccupied areas, allowing the FWS to designate unoccupied areas as critical habitat only “upon a determination … that such areas are essential to the conservation of the species.” 16 U.S.C. § 1532(5)(A).7 The fact that the locations of a species are uncertain does not allow the FWS to assume that land is occupied and avoid making the additional findings required to designate unoccupied areas. Home Builders Ass’n of N. Cal. v. U.S. Fish and Wildlife Serv., 268 F. Supp. 2d 1197, 1221 (E.D. Cal. 2002).

In a recent challenge to a critical habitat designation, the Ninth Circuit, relying in part on the FWS’s Section 7 Consultation Handbook, held that occupied areas are “areas that [the species] uses with sufficient regularity that it is likely to be present during any reasonable span of time.” Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1165 (9th Cir. 2010). Thus, to be occupied, there must be credible scientific evidence that members of the species regularly use an area. To the author’s knowledge, FWS has not followed this requirement, however, and instead treats most critical habitat as occupied based on questionable or outdated information.

In recent critical habitat designations, FWS has determined occupancy on the basis of whether an area was occupied at the time of the species listing, which in some cases may have been more than 20 years ago. This approach is based on the definition of critical habitat in Section 3(5)(A), which refers to “the specific areas within [outside] the geographic area occupied by the species at the time it is listed.” 16 U.S.C. § 1532(5)(A)(i) & (ii). For example, in designating critical habitat for the spikedace and the loach minnow in Arizona and New Mexico earlier this year, FWS evaluated whether areas were occupied when the species’ listings occurred in 1986. See Endangered Status and Designations of Critical Habitat for Spikedace and Loach Minnow, 77 Fed. Reg. 108810 (Feb. 23, 2012). This represents a significant and unexplained departure from the regulations governing critical habitat and prior critical habitat designations. See 50 C.F.R. § 424.12(e) (“The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species”(emphasis supplied)); Designation of Critical Habitat for the Spikedace and the Loach Minnow, 72 Fed. Reg. 13356, 13383 (March 21, 2007) (areas considered occupied only “if we have records to support occupancy within the last 10 years”).

  • Use of a “Single PCE” Approach to Determine Critical Habitat. As Congress indicated when it defined critical habitat in the 1978 ESA amendments, critical habitat must contain features that are essential (i.e., critical) to the conservation of the species. These essential features, called “primary constituent elements” or “PCEs,” must be identified and listed in conjunction with the critical habitat designation. 50 C.F.R. § 424.12(b). Courts have indicated that the PCEs must be present before an area is eligible to be designated as critical habitat. See Cape Hatteras Access Pres. All. v. Dep’t of Interior, 344 F. Supp. 2d 108, 122-23 (D.D.C. 2004),

In recent critical habitat designations, however, FWS has taken the position that fewer than all PCEs need be present for an area to be eligible for designation. In fact, the presence of a single PCE is apparently sufficient. See, e.g. Endangered Status and Designations of Critical Habitat for Spikedace and Loach Minnow, 77 Fed. Reg. 108810, 10839 (Feb. 23, 2012) (describing the criteria for identifying critical habitat). By contrast, in recent biological opinions involving spikedace and loach minnows, FWS has stated that the PCEs that comprise critical habitat “are not independent of each other and must be assessed holistically, as a functioning system, rather than individually.” Biological Opinion on the San Francisco Rive Natural Gas Line Replacement Project, No. 22410-2009-F-0191 (July 30, 2010).8

  • The designation of land and watercourses that are adequately managed. Under the ESA’s definition of critical habitat, occupied areas that are managed in a way that maintains the physical and biological features essential to the species do not meet the statutory definition of critical habitat and are not eligible to be designated. See 16 U.S.C. § 1532(5)(A)(i) (critical habitat means “specific areas within the geographical area occupied by the species ... which may require special management considerations or protection”). However, the FWS rarely evaluates whether an area actually requires special management, and instead simply assumes that special management is needed if physical and biological features essential to the species are present. This results in overbroad critical habitat designations by including areas that do not require additional protection.
  • The failure to consider the economic costs imposed by critical habitat. When it defined critical habitat in the 1978 ESA amendments, Congress also enacted ESA Section 4(b)(2), 16 U.S.C. § 1533(b)(1), to provide greater flexibility and reduce conflicts between critical habitat and other resource uses by allowing non-biological factors to be considered in designating critical habitat, including the economic impact of designating particular areas as critical habitat. See, e.g., H.R. Rep. No. 95-1625, at 17, reprinted in 1978 U.S.C.C.A.N. at 9467 (“The committee expects that in some situations, the resultant critical habitat will be different from that which would have been established using solely biological criteria. In some situations, no critical habitat would be specified.”). However, the analysis of economic impacts continues to be a largely meaningless exercise. Land and watercourses are almost never excluded based on the economic costs critical habitat imposes on private resources users.

This situation has resulted, in large part, from the FWS’s use of a “baseline” approach, under which the economic costs imposed by critical habitat are attributed to the species’ listing. Thus, only incremental costs above those caused by the listing are considered. This method of assessing economic impacts was squarely rejected in New Mexico Cattle Growers Ass’n v. U.S. Fish and Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001), as contrary to the language and intent of the ESA. Since that decision, however, the Ninth Circuit has held that the “baseline” approach is more logical, creating a conflict between the circuits. Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1172-74 (9th Cir. 2010). More recently, FWS and NMFS have issued a proposed regulation that would codify the use of the baseline approach, effectively overruling the Tenth Circuit. Revisions to the Regulations for Impact Analyses of Critical Habitat, 77 Fed. Reg. 51503 (Aug. 24, 2012).

The baseline approach is flawed in several important respects. For example, FWS is required to designate critical habitat at the same time a species is listed as threatened or endangered “to the maximum extent prudent and determinable.” 16 U.S.C. § 1533(a)(3)(A); 50 C.F.R. § 424.12(a). If the agency complies with the law, there is no regulatory baseline against which the economic impacts of designating critical habitat can be compared. In that case, the economic analysis is situated precisely where Congress intended: concurrent with listing and serving as a counter-point to listing based solely on biology. Consequently, the baseline approach – which assumes that there is a pre-existing regulatory baseline – conflicts with the statutory scheme established by Congress.

In addition, the baseline approach erroneously assumes that areas designated as critical habitat will remain occupied forever. As discussed below, federally authorized or funded activities taking place in areas that are not occupied by members of a listed species normally will not be subject to Section 7 unless critical habitat is present. Thus, under Section 7, any regulatory impacts in unoccupied areas result solely from the critical habitat designation. The baseline approach ignores these impacts and instead assumes that areas occupied when critical habitat is designated will always be occupied.

Nevertheless, it appears that the baseline approach will be codified in the regulations governing the designation of critical habitat, which will assure that the economic impact of designating particular areas as critical habitat will continue to be ignored, which is contrary to the ESA’s legislative history.

3. Section 7 Consultations.

Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), requires each federal agency, “in consultation with and with the assistance of” the FWS, to ensure that “any action authorized, funded or carried out” by that agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat” designated as critical. Thus, federal actions may not proceed if they would either jeopardize the existence of a listed species or destroy or adversely modify a listed species’ critical habitat.

The prohibition imposed by Section 7 is limited to actions “in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03; Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). As other federal regulatory programs have expanded, however, an increasing number of non-federal activities require some sort of federal permit or approval, or have some other federal nexus that triggers Section 7. At the same time, the agencies responsible for administering the ESA have become increasingly aggressive in exploiting the Section 7 consultation process to restrict and control how land and water resources are used.

Many of the difficulties currently encountered in the Section 7 consultation process arise from confusion about the causal relationship required for an impact to be considered an “effect” of a federal action and from the failure to clearly delineate the scope of federal regulatory authority, particularly where the federal action consists of a permit, license or similar approval related to a private resource use, such as permits issued under the Clean Water Act. In addition, recent court decisions have indicated that the standard used in determining when a proposed action violates Section 7 should be based on impairment of a species’ recovery rather than the species’ survival.

  • Redefining the “jeopardy” standard to emphasize impacts on recovery. The FWS’s regulatory definition of the statutory phrase “jeopardize the continued existence of” requires an appreciable impact to both the survival and recovery of a listed species. In its rulemaking, the agency considered and rejected comments that injury to recovery should be the standard for jeopardy, explaining that the phrase “continued existence of the species” found in Section 7(a)(2) “is the key to the jeopardy standard, placing an emphasis on a species’ ‘survival.’” Interagency Cooperation; Final Rule, 51 Fed. Reg. 19934 (June 3, 1986). However, recent court decisions have suggested that an impairment-of-recovery standard should be used instead, which would make jeopardy determinations more likely.

For example, in Center for Biological Diversity v. Salazar, 804 F. Supp. 2d 987, (D. Ariz. 2011), a Ninth Circuit judge, sitting by designation, held that the FWS’s biological opinion on the Army’s operation of Fort Huachuca in southern Arizona was “baseless and insufficient” because the opinion failed to adequately address whether the Fort’s groundwater pumping would impair the recovery of the southwestern willow flycatcher and an aquatic plant called the Huachuca water umbel. While this holding conflicts with the plain language of the ESA and the FWS’s regulations (which are entitled to deference), environmental groups are likely to pursue challenges to other biological opinions in order to extend this precedent. Moreover, it is possible that the FWS will begin using this standard.9

  • The use of federal permits to “federalize” private land uses. The requirements of Section 7 apply only to proposed federal actions, and not to the activities of private resource users. Consultation is therefore triggered when a private resource use requires a federal permit or other authorization, such as a Clean Water Act permit. Although the federal action is the issuance of the permit and the activities the permit authorizes, the federal action is often described in terms of the larger project, even though there is no federal jurisdiction over the balance of the project. See, e.g., Final ESA Section 7 Consultation Handbook at 4-18, available at http://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf (explaining that the effect of issuing a Clean Water Act permit for an off-site access road includes a private real estate development). This mistake effectively “federalizes” the entire project for the purposes of Section 7, resulting in the improper regulation of private resource uses.
  • Analyzing the impacts to suitable or potential habitat for listed species. Federal agencies frequently evaluate the impacts of a project on “habitat” that has not been designated as critical habitat. The requirements of Section 7 apply only to habitat that is formally designated as critical under ESA Section 4, and does not protect “suitable” or “potential” habitat. See, e.g., Defenders of Wildlife v. Flowers, 414 F.3d 1066, 1069-70 (9th Cir. 2005) (the Corps of Engineers had no obligation to consult when no listed species occupied the project area and no critical habitat was present); Arizona Cattle Growers Ass’n v. U.S. Fish and Wildlife Service, 273 F.3d 1229, 1244 (9th Cir. 2001). Nevertheless, impacts to areas with “suitable” or “potential” habitat are often treated as an effect the action and evaluated under the under the jeopardy standard. This error can dramatically expand the scope of the consultation and result in significant land use restrictions.
  • The evaluation of remote or speculative effects of the action. Under the regulatory definition of “effects of the action,” “direct effects” are the direct or immediate effects on listed species or critical habitat caused by the federal action. “Indirect effects are those that are caused by the proposed action and are later in time, but are still reasonably certain to occur.” 50 C.F.R. § 402.02. Similarly, “cumulative effects” are defined as the “effects of future state or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action.” Id. Thus, the standard that should be used to determine whether an effect should be considered is whether the effect is reasonably certain to occur, not whether an effect is merely possible. Despite the plain language of the FWS’s regulation, speculative effects are frequently analyzed by the agency, triggering formal consultation with the FWS and resulting in increased project costs, significant delay and, ultimately, unnecessary restrictions on land and resource uses.
  • The use of a dramatically expanded “action area” during consultation. Under the FWS’s consultation regulations, the term “action area” is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02. Thus, areas in which the direct and indirect effects of the action will occur are included in the action area. Consequently, the action area may be quite large, depending on the indirect effects that will be caused by the action. For example, in Riverside Irrigation District v. Andrews, 758 F.2d 508 (10th Cir. 1985), the court held that the Corps of Engineers properly considered the indirect effects of the impoundment and diversion of water on downstream critical habitat along the Platte River more than 100 miles downstream and in another state. When remote or speculative effects are considered, the scope of the consultation may expand dramatically, making a jeopardy or adverse modification determination more likely.
  • Consideration of global climate change. As result of lawsuits filed by environmental groups, global climate change is becoming an increasingly significant issue in the ESA’s administration. In Center for Biological Diversity v. Salazar, 804 F. Supp. 2d 987, (D. Ariz. 2011), the court also held that FWS must consider the effect of climate, “even if it is uncertain.” For support, the court cited recent district court decisions from California holding that the impact of climate change must be considered in preparing a biological opinion under Section 7.

Given the uncertainty inherent in predicting the effects of climate change at the project level, this holding is arguably contrary to the requirement that the effects of the proposed action be “reasonably certain to occur.” 50 C.F.R. § 402.02; see also Interior Solicitor Opin. No. M-37117 (Oct. 3, 2008) (Guidance on the Applicability of the Endangered Species Act’s Consultation Requirements to proposed Actions Involving the Emission of Greenhouse Gases). It is also contrary to the Supreme Court’s statement in Bennett v. Spear, 520 U.S. 152, 176-77 (1997), that the “obvious purpose of the requirement that each agency ‘use the best scientific and commercial data available’ is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise.” Nevertheless, climate change is becoming an important factor in applying Section 7, as well as in determining whether a species should be listed under Section 4 of the Act.