Federal agencies have proposed to designate millions of acres in California as “critical habitat” of two species—the green sturgeon and California red-legged frog. The designations could lead to restrictions on activities in the affected areas that are carried out, funded, or approved by federal agencies. Types of activities likely to be affected include development of land and shoreline facilities, construction of roads, bridges, utilities, and dams, dredging, filling, diking, timber harvesting, mining, commercial shipping, and bank stabilization and other alterations of streams, lakes, and other waters.

Congress enacted the Endangered Species Act (“ESA”) to protect fish, wildlife, and plant species that are threatened with extinction and called upon the U.S. Fish and Wildlife Service and National Marine Fisheries Service to list species they determine to be “threatened” or “endangered” and to administer the Act to protect listed species and their habitat in two basic ways. First, the Act prohibits any person from “taking” an endangered or threatened species without a permit. Second, the act calls on federal agencies to ensure that any actions they authorize, fund, or carry out are not likely to “jeopardize” the continued existence of any listed species or result in the “destruction or adverse modification” of the designated “critical habitat” of any such species. While the Act speaks of “species,” it defines that term to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16).

When listing a species, the Services also must concurrently or shortly thereafter designate the critical habitat of the species “to the maximum extent prudent and determinable.” 16 U.S.C. §§ 1532(6) & (20), 1533(a) & (b). “Critical habitat” generally refers to “specific areas . . . on which are found those features . . . essential to the conservation of the species.” 16 U.S.C. § 1532(5)(A). Directing the Services to designate critical habitat “on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat,” Congress authorized the Services to “exclude any area from critical habitat if [they] determine[] that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [they] determine[], based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” 16 U.S.C. § 1533(b)(2). In past years, the Services commonly found designating critical habitat not to be “prudent,” but, prompted by suits challenging this practice, they have in recent years stepped up their efforts to designate critical habitat.

On September 8, 2008, the National Marine Fisheries Service proposed critical habitat for the Southern distinct population segment of North American green sturgeon, which the Service listed as “threatened” under the Endangered Species Act in 2006. The proposed areas include marine waters along the coasts of Washington, Oregon, and California (north of Monterey Bay) and San Francisco, San Pablo, and Suisun bays, the Sacramento-San Joaquin Delta, the Sacramento River, lower Feather River, and lower Yuba River, as well as the lower Columbia River estuary. These areas comprise approximately 325 miles of freshwater river habitat, 1,058 square miles of estuarine habitat, 11,927 square miles of marine habitat, and 136 square miles of habitat within the Yolo and Sutter bypasses of the Sacramento River. Exercising its authority under the Act, the Service excluded from its proposal marine waters along the California coast from Monterey Bay to the Mexico border and the Alaska coast from the Canada border northwest to the Bering Strait, as well as specified coastal bays and estuaries in California (Tomales Bay, Elkhorn Slough, Noyo Harbor, and the estuaries of the Eel and Klamath/Trinity rivers), Oregon (Tillamook Bay and the estuaries of the Rogue, Siuslaw, and Alsea rivers), and Washington (Puget Sound).

On September 16, 2008, the U.S. Fish and Wildlife Service proposed a four-fold increase in the amount of land designated as critical habitat for the California red-legged frog, targeting about 1,804,865 acres in 28 California counties. The proposed areas encompass huge swaths of Marin, Solano, Contra Costa, Alameda, San Mateo, Santa Clara, Santa Cruz, and Monterey Counties and other scattered spots across California. The Service excluded certain areas that are already governed by habitat conservation plans approved by the Service, including areas within the Western Riverside County Multiple Species HCP and East Contra Costa County HCP.

Activities most directly affected in designated critical habitat areas are those that are carried out, funded, or approved by federal agencies. Whenever a federal agency’s “action,” such as issuance of a permit, “may affect” listed species or designated critical habitat, the agency must “consult” with the pertinent Service about that action. At the conclusion of the consultation, the Service renders a “biological opinion” on whether the continued existence of a listed species is likely to be jeopardized or whether critical habitat is likely to be adversely modified by the proposed federal agency action. The bite of critical habitat has grown in recent years, following decisions by several federal courts that the Services should consider whether an alteration appreciably diminishes the value of critical habitat for not only the survival, but also the recovery, of a listed species. If the Service concludes that an action would jeopardize a listed species or destroy or modify its critical habitat, the Service must prescribe “reasonable and prudent alternatives” that would avoid that result if possible. While consulting federal agencies are not bound by Service opinions, they rarely take action, e.g., issue a permit, contrary to those opinions.

The Services invite comments on the green sturgeon proposal by November 7 and the California red-legged frog by November 17.

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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