On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published two proposed regulations and a draft policy concerning critical habitat designations under the Endangered Species Act.
Destruction or adverse modification. The first proposed regulation would revise the definition of “destruction or adverse modification” of critical habitat. 79 Fed. Reg. 27,060 (May 12, 2014). Under the ESA, federal agencies must ensure that their actions and the projects they fund or approve are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. In 1986, the Services adopted a regulation defining “destruction or adverse modification” to mean “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” 50 C.F.R. § 402.02.
But two federal appellate courts found that the definition violated the ESA and did not afford sufficient protection to critical habitat. See Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434 (5th Cir. 2001), and Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004). The courts found that the definition provided for an adverse modification only if the survival of the species is diminished, instead of also encompassing the situation where the species’ recovery is impaired but its survival is not threatened. In striking down the regulatory definition, the courts emphasized that the ESA was intended to promote both the survival and recovery of listed species.
As a result of these court decisions, the proposed rule would amend the definition of “destruction or adverse modification” to “a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.”
Procedures and criteria for designating critical habitat. The second proposed regulation would amend the procedures and criteria specified in 50 C.F.R. part 424 for designating critical habitat. 79 Fed. Reg. 27,066 (May 12, 2014). To make a critical habitat designation, it is important first to know what area the species occupies. Under the proposed regulation, this area would be defined to include “those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis.” The proposed regulation also would add or modify other regulatory definitions and would clarify the process to be followed when designating critical habitat.
Exclusions from critical habitat. The draft policy issued concurrently with the two proposed regulations addresses exclusions from critical habitat and how the Services consider a variety of issues as part of the exclusion process, including partnerships and conservation plans, habitat conservation plans permitted under section 10 of the ESA, tribal lands, national security and homeland security impacts, federal lands and economic impacts. 79 Fed. Reg. 27,052 (May 12, 2014). This policy is meant to complement the proposed revisions to 50 C.F.R. part 424 and to provide for a simplified exclusion process.
The proposed rules have long been anticipated as needed clarification of court decisions from over a decade ago. The proposals are significant because they will create a clear distinction between prohibited federal actions that create jeopardy to a species on the one hand, and adverse modification of critical habitat on the other. Under the rules that these court decisions struck down, jeopardy and adverse modification have similar definitions. Under the proposed rules, the prohibited act of adverse modification would be more stringent in some cases, applying to federal actions that adversely affect only the potential recovery of the species, even if the species’ survival is not diminished. Jeopardy, on the other hand, would continue to apply to actions that present a likelihood of extinction of the species. This regulatory change, if adopted, would raise the bar for ESA compliance for certain activities occurring within designated critical habitat.
The proposed policy guidance on exclusions from critical habitat is also significant. For many years, the Services have excluded from critical habitat those lands and waters that are subject to habitat conservation plans approved under the ESA, as well as government agency and tribal plans that have comparable conservation benefits. The basis for this action has been that such plans sufficiently protect the species and their habitat such that a critical habitat designation is not required. Under the new draft policy, the Services would only exclude areas subject to such plans based on a case-by-case analysis of the conservation benefits. In doing so, the Services appear to be moving away from a principle that has been uniformly applied for many years to all such plans.
The proposed policy retains significant discretion for the Services to decide whether to exclude an area from critical habitat. In general, an area subject to an HCP will be excluded if the plan is being properly implemented and specifically addresses the habitat needs of the species subject to the critical habitat proposal. Thus, the proposed policy would apply more detailed review of the plan that would be used as the basis for the exclusion than has been the case previously.
The comment period for all three potential revisions is July 11, 2014.