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1 1 (April 11, 2005)

handle is hein.crs/crsaheh0001 and id is 1 raw text is: Order Code RS20263 Updated April 11, 2005 CRS Report for Congress Received through the CRS Web Designation of Critical Habitat under the Endangered Species Act (ESA) Pamela Baldwin Legislative Attorney American Law Division Summary The agencies that implement the Endangered Species Act (ESA) regard the designation of critical habitat (CH) as providing only very limited benefits beyond those achieved through the listing of species and the avoidance of jeopardy to them. Several courts have now held that the relevant regulation and interpretation that result in this conclusion are erroneous and do not carry out the intent of Congress. H.R. 1299 in the 109' Congress would change the definition of CH and move the time at which critical habitat must be designated for a species from being (basically) concurrent with the listing of the species to the earlier of either three years after listing or one year after approval of a recovery plan for that species. This report provides background for considering agency regulations and current legislative proposals on CH, and may be updated as circumstances warrant. Introduction The Secretary of the Interior (acting through the Fish and Wildlife Service (FWS)), and the Secretary of Commerce (acting through the National Marine Fisheries Service (NMFS)), have duties under the Endangered Species Act (ESA)l to preserve and conserve species, including by designating critical habitat (CH). Over several administrations, these agencies have asserted that CH designation affords few benefits for species beyond those provided by listing a species as endangered or threatened, and taking actions to avoid jeopardizing a species' continued existence.2 Several courts have now held that the regulation and interpretation underlying this view are erroneous and do not carry out congressional intent. Proposals are currently before Congress that address CH. This 1 Act of December 28, 1973, P.L. 93-205, 87 Stat. 884, as amended, codified at 16 U.S.C. §§ 1531 et seq. Responsibility for terrestrial and freshwater species rests with the Secretary of the Interior, while responsibility for marine species and anadromous fish rests with the Secretary of Commerce. 2 See 64 Fed. Reg. 31871 (June 14, 1999) when the FWS discussed this issue and called for public comment on the current system. Congressional Research Service + The Library of Congress

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