Resolving Critical Habitat Designation Failures: Reconciling Law, Policy, and Biology

Abstract

The US. Endangered Species Act (ESA) requires designation of critical habitat concurrent with species listing. The US. Fish and Wildlife Service often has not designated critical habitat, based on the legal exceptions in the ESA of "not prudent" or "not determinable." This lack of habitat designation has led to numerous lawsuits and court orders to designate critical habitat for listed species. Court-mediated implementation of critical habitat is costly and delays listing for at-risk species. Legal, policy, judicial, and biological issues all contribute to the current inability of the law as enforced to lead to timely and cost-effective critical habitat designation. Although increased appropriations and delaying critical habitat designation until recovery planning have been proposed as solutions, we find that it will be essential to change the critical-habitat guidelines to a decision-analysis framework to make critical habitat scientifically and legally workable as a conservation