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Endangered Species Act

Critical Habitat

The ESA requires that at the same time the decision is made to list a species, the secretary of the interior must develop a recovery plan for the species and, with certain exceptions, designate the critical habitat of the species. Critical habitat consists of "the specific areas within the geographical area occupied by the species, at the time it is listed … on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." Critical habitat must be designated on the basis of the best scientific data available and after taking into consideration the economic impact of the designation. An area may be excluded from designation if the benefits of the exclusion outweigh the benefits of the designation, unless the failure to designate will result in the extinction of the species (§ 1533 (b)(2)).

In June 1978 the Supreme Court ruled that provisions of the federal Endangered Species Act prohibited the TENNESSEE VALLEY AUTHORITY from completing the controversial Tellico Dam. The 6–3 decision was a victory for the snail darter, the tiny endangered fish whose spawning area in the Little Tennessee River would be ruined by the IMPOUNDMENT of a lake. Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d. 117, 11 ERC 1705, 8 Envtl. L. Rep. 20,513 (1978)(NO. 76-1701).

The issue of the economic impact of designating critical habitat was addressed in Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995). In Plenert, Oregon ranchers and irrigation districts sued regulators under the ESA over a proposal to change water flow at reservoirs in Oregon and California in order to protect the habitat of two endangered species, the Lost River sucker and the shortnose sucker. They claimed that the proposal did not take economic impact into consideration before designating critical habitat. The district court dismissed the suit. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, holding that because the ranchers and irrigation districts had no interest in preserving the fish under the ESA, they were not within the "zone of interest" protected by the act. As a result, said the court, they lacked standing (a legally protectable interest) to bring a citizen suit.

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