Background on Endangered Species Act

 

Before a plant or animal species can receive the protection provided by the Endangered Species Act of 1973, as amended, it must first be added to the Federal lists of threatened and endangered wildlife and plants. The List of Endangered and Threatened Wildlife and the List of Endangered and Threatened Plants contain the names of all organisms that have been determined by the Services to qualify as ``endangered species'' or ``threatened species.'' After a species is listed as endangered or threatened under the Act, the Service that listed the species designates as ``critical habitat,'' to the maximum extent prudent and determinable, specific areas essential for the conservation of the species.

Under section 4(b)(5)(A) of the Act, the Services are required, when designating or revising critical habitat for species listed under the Act, to publish the complete text of the regulation in the Regulation Promulgation section of a rulemaking published in the Federal Register. The existing implementing regulations found in 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a) have interpreted this requirement to comprise publication of both maps and textual descriptions of the boundaries of such habitat. We have found over time that textual descriptions of critical habitat boundaries are often difficult to interpret and understand, and do not provide clarity regarding the areas being designated. Publishing these textual descriptions is also inefficient and costly. Below we discuss our current requirements and their limitations, and the regulation changes we are promulgating to address these issues.

NMFS' current practice is to publish maps in the Federal Register along with a textual description of the boundaries of the areas being designated as critical habitat in both their proposed and final rules. FWS publishes only the maps in the proposed critical habitat rule and then publishes the maps along with a textual description of the boundaries in the final critical habitat rule. Historically we described the boundaries following a variety of methods, including Public Land Survey System designations (which specify township, range, and section; sometimes referred to as the ``rectangular survey system'') and metes-and-bounds (a system of describing a parcel of land using the physical features of local geography, along with directions and distances, to define the boundaries). However, as GIS and specific geographic-based data have become more available, we have been using predominantly the Universal Transverse Mercator (UTM) coordinate system (a grid-based system employing a series of 60 zones to specify locations on the surface of the Earth) and latitude-longitude. We adopted these practices because our current regulations at 50 CFR 424.12(c) state, ``Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area.'' Unfortunately, these descriptions are often difficult to interpret and understand, and do not provide clarity regarding which areas are being designated as critical habitat. 

Therefore, in addition to the maps and textual descriptions published in the Federal Register, over the last several years we have provided the public with interactive maps and additional descriptions, on the Services' Internet sites and at the lead field office responsible for the designation. References to these Internet sites are cited throughout the proposed (NMFS only) and final (NMFS and FWS) rules and in our outreach materials for the specific action. In addition, we have provided maps and GIS coverages (data layers) to affected Federal agencies, states, counties, jurisdictions, and interested parties for use in their computer databases and to make available to their constituencies. Our understanding that the public has referred to these latter materials in lieu of the detailed coordinates and other similar textual descriptions published in the Federal Register and codified in the Code of Federal Regulations reinforces our view that these textual descriptions are of limited utility in informing the public as to which areas are designated as critical habitat.

Given that the textual descriptions are of limited utility, we are revising the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat oundaries in the Federal Register and reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a critical habitat. Each critical habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register. The map published in the CFR will be generated from the coordinates and/or plot points corresponding to the location of the boundaries. These coordinates and/or plot points will be included in the administrative record for the designation, and will be available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will make the additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov). The maps and brief textual descriptions that we plan to publish in the Federal Register after we finalize this rule will be sufficient to inform the public of the boundaries of a particular critical habitat designation, and thus constitutes sufficient notice to the public. It is not necessary--or generally even helpful--for the public to have UTM or latitude-longitude coordinates in order to know where critical habitat is located. We believe these changes will be for the public good and make the process more user-friendly, without compromising the public's understanding of the overall process.

In addition to making the process more accessible to the public, eliminating the need to publish detailed textual descriptions in the Federal Register and annually in the CFR will also result in significant financial savings, thereby saving Federal resources. In FWS's final designations, UTM coordinate pairs or other textual descriptions of the boundaries of areas often account for more than half of the rulemaking document; therefore, eliminating the requirement to publish those textual descriptions will result in significant savings of Federal Register publication costs. For example, FWS spent $764,523 in fiscal year 2008, $539,639 in fiscal year 2009, and $662,952 in fiscal year 2010 to publish critical habitat designations in the Federal Register, for a total of $1,967,114 for the three fiscal years combined. If, based on the percentage of critical habitat Federal Register pages that were devoted in 2010 to textual descriptions, we estimate that 50 percent of those total costs were spent on the publication of the textual descriptions of the boundaries, then publishing those descriptions cost the Service $983,557 for the three fiscal years, or $327,852 per fiscal year.

In addition, the regulation portion of the rule, including the maps and textual descriptions of the boundaries, is reprinted annually in the CFR, resulting in a further expenditure of taxpayer resources. FWS spent $80,000 in fiscal year 2008, $92,400 in fiscal year 2009, and $83,160 in fiscal year 2010 to reprint critical habitat designations in the CFR. Based on a review of the current volume (i.e., number of pages) of critical habitat designations represented in the CFR, we estimate that the textual descriptions account for approximately 75 percent of the volume and therefore 75 percent of the printing costs. Using the estimated 75 percent as the cost of reprinting the textual descriptions of the boundaries, publishing those descriptions cost FWS $191,670 for the three fiscal years. Adding this to the Federal Register costs discussed above, we estimate that the annual cost for publishing textual descriptions of boundaries in the Federal Register and then reprinting them in the CFR is nearly $391,742 for FWS alone. 

Thus, eliminating the need to publish latitude-longitude coordinates,UTM coordinate pairs, or other detailed textual descriptions in the Federal Register and CFR would result in a significant cost savings to the Services and the public as a whole.

Finally, relying on maps and brief textual descriptions to identify areas designated as critical habitat is consistent with the Act. Section 4(a)(3)(A) of the Act only requires that critical habitat be designated ``by regulation.'' Moreover, section 4(b)(5)(A) of the Act indicates that the Secretary shall ``not less than 90 days before the effective date of the regulation--(i) publish a general notice and the complete text of the proposed regulation in the Federal Register, and (ii) give actual notice of the proposed regulation (including the complete text of the regulation).'' We interpret the mandate to publish the ``complete text'' of the proposed regulation as requiring that the regulation provide a sufficiently detailed description of the area included within the proposed designation, in the form of maps and any accompanying text, so as to provide all interested persons with an understanding of, and a meaningful opportunity to comment on, the critical habitat boundaries. As is already the current practice with critical habitat designations containing detailed UTM coordinates as required by the existing regulations, the public will be able to refer to any additional supporting information we make available through our outreach efforts, Internet sites, and at the lead field office responsible for the designation to assist the public in understanding the official boundary.

We note that the Services never maintained that requiring detailed textual descriptions was legally necessary. Instead, the first critical habitat regulations required only that critical habitat designations be ``accompanied by maps and/or geographical descriptions.'' 43 FR 870, 876 (Jan. 4, 1978). Although the Services subsequently added the requirement that critical habitat designations include textual descriptions describing the specific boundary limits of the critical habitat, there is nothing in the preamble to that rule indicating that the Services did so because the Act required it. Rather, it was in response to several commenters, who had opined that the proposed rule was not sufficiently clear in setting out the method by which critical habitat boundaries would be described. 45 FR 13009, 13015 (Feb. 27, 1980). With this change, the regulations would continue to be explicit as to the method by which critical habitat boundaries would be described; it would just do so by means that do not require detailed textual descriptions.