Legislative Corner

from Summer 2012 County Lines Magazine

Calorie Cru$her$ cruise to victory

Legislative tangents Critical habitat could handcuff counties, industry, private lands

Critical habitat designation could have a negative impact on counties, industry and private land ownership.

Under the Endangered Species Act any member of the public may nominate a species they believe is threatened or endangered for listing. Nomination entails two steps: 1. Putting together a petition outlining your reasoning as to why that species should be listed as either threatened or endangered and; 2. Presenting it to the Fish and Wildlife Service for consideration. Although the ability to nominate a species rests with any individual citizen, the petitions are typically presented to the service by environmental groups. One such group, The Center for Biological Diversity, has presented a petition requesting listing of 404 species, 35 of which have habitat in Arkansas.

In addition to requesting that the service classify these species as either threatened or endangered, the center has also asked that a simultaneous finding of “critical habitat” be made. In essence, the critical habitat determination is the process of protecting the habitat of threatened or endangered species. Critical habitat is an area of land that the service determines needs to be appropriated for the survival of the species. That land may still be available for use; however, most likely not in the same capacity as it was prior to the critical habitat designation.

This means that when the federal government, or any other governmental unit or non-governmental organization that receives federal funds, wants to do anything on land that is deemed to be “critical habitat,” there must first be an in-depth analysis to determine how that action will affect the species that uses that land. Under certain conditions, this requirement may also apply to private land. Additionally, this means that if a private landowner receives federal funds, such as WHIP or EQIP funds from the National Resource Conservation Service (NRCS), or if they need a federal permit, they will no longer qualify for the funds or permit without a full environmental consultation with the service to determine the effects of their action on the species.

The service will argue that the consultation will be at no cost to the landowner, as it is between the service and the agency issuing the permit or the funds. However, considering the potential consequences of the consultation, it is not likely that prudent, reasonable landowners would allow this process to move forward without private counsel to represent their own interests vigorously. Then, depending on the outcome of the consultation, the action can either be allowed or denied. An example of actions that may be regulated by a critical habitat determination is cutting timber on federal lands; road or bridge work, if the road department receives any federal funding or grants; any building project by an agency receiving federal funding for the project; or a private person cutting timber on private land if they receive federal funds or permits.

Effects to private land also occur regardless of a critical habitat determination and are solely a result of the species being classified as either threatened or endangered. If a private landowner, as a recipient of federal funds or a federal permit, wants to use their own land, which has any of the threatened or endangered species located on it, they must be certain not to “take” any of those species. Take is a very broad term that basically means to harm, harass or interfere with that species in any way. If the action will “take” a threatened species, the private citizen must go through the rigorous process of applying for an incidental take permit.

Only after obtaining this permit may they proceed with the action. If the species is endangered instead of just threatened, then an incidental take permit is not available and the action is strictly and specifically denied.

However, regardless of federal funding or federal permits, a private citizen still must contend with their greatest threat: third party litigation. The service will argue that they are not concerned with private action unless there is a “take”; however, due to citizen enforcement provisions in the Endangered Species Act, any citizen or environmental group may take the private landowner to court to prevent action on their land that may harm a threatened or endangered species.

As of now, the service has determined that 374 of the initial 404 species in the petition warrant additional research into whether or not they should be listed as either threatened or endangered at this time. This additional research period is known as status review. The service has until Sept. 15 to make this listing determination. Once their findings are completed on Sept. 15, they will begin the determination of whether or not critical habitat should be set out for any of the listed species.

There are two ways the service can proceed with critical habitat determination; they can undertake an environmental assessment (EA), which is a concise, small-scale review of the issues and which only takes into account immediate economic effects involved with the listing, or they can undertake an environmental impact statement (EIS), which is an in-depth analysis that includes the cumulative economic impact the critical habitat determination will have.

Arkansas has a very strong interest in having the service choose to do a complete EIS. In addition to the more in-depth economic and environmental impacts analysis that are taken into consideration under this study, the EIS process also allows the state, state agencies, or subdivisions of the state (counties, school districts, etc.) to apply for cooperating agency status. With a designation of cooperating agency status, those agency representatives are at the table for all discussions of critical habitat. It gives them a voice in the process and allows them to present information regarding the practical effects the listing will have across the state. Because of the vast effects a critical habitat determination will have throughout the state of Arkansas, the state as well as the counties have a major interest in being present at the table during critical habitat discussions.