BOZEMAN, MT DENVER, CO HONOLULU, HI JUNEAU, AK OAKLAND, CA SEATTLE, WA TALLAHASSEE, FL WASHINGTON, D.C. CRITICAL HABITAT AND HAWAIIAN PLANTS I. INTRODUCTION Of the nearly 400 Hawaiian plants and animals listed as endangered or threatened under the federal Endangered Species Act (“ESA”), critical habitat has been designated for only five. Under court order, the U.S. Fish and Wildlife Service (“FWS”) is considering the designation of critical habitat for 245 listed Hawaiian plants. FWS is currently requesting public comments on proposed rules to designate critical habitat on Kaua`i and Ni`ihau. Proposed rules to designate critical habitat on Maui and Kaho`olawe, Läna`i, Moloka`i, Hawai`i, and O`ahu are next.1 Because critical habitat has been designated for only a handful of Hawaiian species, the concept of critical habitat is not well understood, and its potential for promoting species recovery and ecosystem preservation not fully appreciated. This fact sheet seeks to promote a greater understanding of critical habitat and the significant role it can play in the recovery of Hawai`i’s imperiled species, including the endangered and threatened plants that are the subject of FWS’ request. Among other benefits, critical habitat would: ◊ prohibit federal agency actions that adversely modify habitat identified as essential to the recovery of listed plants ◊ promote funding for large-scale, ecosystem-level management programs ◊ put in place a uniform and comprehensive habitat protection plan so that conflicts with potentially harmful federal and non-federal projects can be avoided ◊ identify areas in which section 7 consultations should be triggered, thereby ensuring that consultations are conducted where required and necessary ◊ educate the public, as well as state and local governments, about areas essential to the survival and recovery of Hawai`i’s imperiled plants ◊ protect plants and animals that rely on similar habitat values, thereby promoting native ecosystem conservation To provide context for FWS’ public comment request, we initially describe the litigation that prompted FWS’ re-evaluation of whether designating critical habitat would be prudent for the 245 listed Hawaiian plant taxa (Part II). We then explain what “critical habitat” is and how it is designated (Part III). In Part IV, we describe the vital role that critical habitat plays in ensuring that federal agency actions not only avoid pushing species to extinction, but also do not destroy habitat on which endangered and threatened species depend for their ultimate recovery. We then focus on the 245 Hawaiian plants at issue, detailing how designating critical habitat would promote their recovery, enhance conservation efforts, provide uniform habitat protection, and facilitate more environmentally appropriate land use planning and project development decisions (Part 1 For more information on the proposed rules, contact Christa Russell, Coordinator for Listing and Recovery of Plants and Invertebrates, U.S. Fish and Wildlife Service, Pacific Islands Office, P.O. Box 50088, Honolulu, Hawai`i 96850-0001. 223 S. KING STREET, SUITE 400, HONOLULU, HI 96813-4501 T:808.599.2436 F:808.521.6841 E:[email protected] Website:www.earthjustice.org V). We also describe how designating critical habitat for these plants would promote ecosystem protection and benefit species listed in the future (Part VI). Finally, we dispel myths about designating critical habitat for these plants, explaining why it would not increase, and may well decrease, human threats (Part VII) and that it should not disrupt FWS’ other listing and recovery efforts (Part VIII). II. BACKGROUND On January 29, 1997, Earthjustice Legal Defense Fund (then known as Sierra Club Legal Defense Fund) filed a lawsuit on behalf of the Conservation Council for Hawai`i, Sierra Club, and Hawaiian Botanical Society, against the U.S. Fish and Wildlife Service for failing to designate critical habitat for hundreds of threatened and endangered Hawaiian plant taxa, in violation of the federal Endangered Species Act. FWS had refused to designate critical habitat for any of these plants on the ground that designation would not be “prudent.” To defend its decisions, FWS claimed that: (1) critical habitat designation would increase the likelihood of illegal taking and vandalism of the plants; (2) there would be little benefit to plants on private, county and state land because critical habitat affects only federal agency actions; and (3) there would be little benefit to plants on federal land because critical habitat designation would not increase the protection from harmful government actions that these plants already enjoy by virtue of being listed. On March 9, 1998, federal district court Judge Alan Kay ruled against FWS on all three claims, finding that FWS “failed to articulate a rational basis for invoking the imprudence exception and not designating critical habitat for the 245 plant species at issue.” Emphasizing that the ESA “requires the designation of critical habitats in all but rare cases,” Judge Kay ordered FWS to reconsider its decisions not to designate critical habitat for these plants and to make new decisions consistent with the court’s findings. On August 10, 1998, Judge Kay issued an order establishing a timetable for FWS to publish new proposed critical habitat decisions. This timetable requires FWS to publish new proposed decisions for at least 100 of the plant taxa by November 30, 2000, and for the remaining 145 taxa by April 30, 2002. FWS is now soliciting public comment on and information regarding, among other things, whether the designation of critical habitat for these Hawaiian plants would be “prudent.” The deadline to submit comments to FWS is March 1, 1999. III. CONGRESS INTENDED THAT THE DESIGNATION OF CRITICAL HABITAT FOR HAWAI`I’S LISTED PLANTS WOULD BE THE RULE, NOT THE RARE EXCEPTION The ESA requires that, to the maximum extent prudent and determinable, the Secretary of the Interior designate critical habitat for plants and animals at the time they are listed as threatened or endangered.2 The Secretary has delegated this task to FWS. The designation of critical habitat is necessary to help achieve one of the ESA’s central goals: the preservation of the ecosystems upon which threatened and endangered species depend for their continued survival and recovery. 2 Critical habitat designation may be postponed for one year if the critical habitat is not yet determinable at the time a given species is added to the list of endangered and threatened species. 2 The ESA defines critical habitat as those geographic areas occupied by a species at the time it is listed on which are found those physical or biological features: (1) essential to the conservation3 of the species; and (2) that may require special management conditions or protection. Unoccupied areas may also be designated as critical habitat, but only if they are deemed essential to the recovery of the species. In addition, areas may be excluded from critical habitat (unless such exclusion would result in extinction of the species) if the benefits of such exclusion (including economic considerations) outweigh the benefits of designating that area. In rare instances, FWS may decide not to designate critical habitat at all, but only if it finds that designation would not be “prudent.” Designation is not prudent if: (1) the species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) designation of critical habitat would not be beneficial to the species. In finding that FWS violated the ESA when it refused to designate critical habitat for the 245 endangered and threatened Hawaiian plants in question, the district court affirmed that Congress intended the designation of critical habitat to be the rule, and the failure to designate the rare exception. Unfortunately, FWS’ implementation of the ESA has turned Congress’ intent on its head, making the designation of critical habitat the rare exception, especially in Hawai`i. Of the nearly 400 Hawaiian plants and animals on the list of endangered and threatened species, critical habitat has been designated for only five: the Hawaiian monk seal (Monachus schauinslandii), the palila (Loxioides bailleui), and three plants (Gouania hillebrandii, Kokia drynarioides, and Panicum fauriei var. carteri). Consequently, nearly all of Hawai`i's listed species and their associated ecosystems have been deprived of the full range of protection Congress intended them to have, and habitat essential to species recovery continues to be degraded and destroyed by federal actions. IV. CRITICAL HABITAT AND SECTION 7 CONSULTATION PROCESS ESA section 7 provides two separate, legally enforceable limitations on federal agency actions to protect endangered and threatened species. The first -- which comes into force automatically whenever a species is listed -- prohibits federal actions that “jeopardize” the species’ continued existence, i.e., actions that would push the species to extinction. The second -- which protects only species with designated critical habitat -- bars federal agencies from authorizing, funding, or carrying out any action likely to adversely modify or destroy critical habitat, i.e., actions that will interfere with the recovery of listed species. Thus, listed species benefit from both section 7 protections only when critical habitat has been designated. To avoid both jeopardy and adverse modification