New Rules and Draft Policy on Critical Habitat Designations

On February 5, 2016, The U.S. Fish and Wildlife Service ("FWS") and the National Oceanic and Atmospheric Administration's National Marine Fisheries Service ("NOAA") finalized two rules and a draft policy that renovate how the agencies implement critical habitat designation requirements under the Endangered Species Act, 16 U.S.C. § 1531 et seq ("ESA").  The rules address implementing Section 4—which establishes critical habitat requirements—and Section 7—which requires federal agencies to consult with the FWS and NOAA before carrying out an action that could adversely affect an endangered species—of the ESA.  The FWS articulated that "[t]he objective of this effort is to ensure that key operational aspects of the ESA are up-to-date, clear, efficient and effective. We are not seeking any changes to the ESA statute because we believe that implementation can be significantly improved through rulemaking and policy formulation."1

One rule changes the definition of "destruction or adverse modifications" in 50 CFR 402 to mean "a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such feature."  81 Fed. Reg, 28, 7226.2

The other rule, which makes amendments to 50 CFR 424, seeks to clarify, interpret and implement portions of the ESA concerning the procedures and criteria used for adding species to the Endangered and Threatened Wildlife and Plants lists and designating and revising critical habitat.  Specifically, the rule states that it is intended to make "minor edits to the scope and purpose, add and remove some definitions, and clarify the criteria and procedures for designating critical habitat."3  The agencies' goals are to clarify expectations regarding critical habitat and to provide for a more predictable and transparent critical habitat designation process. The rule also responds to Executive Order 13563 (January 18, 2011), which directed agencies to review, modify and streamline their existing regulations.

The draft policy provides the agencies' positions on how they consider partnerships and conservation plans.  It also addresses Tribal lands, military lands, Federal lands, and economic and national security and homeland impacts in the exclusion process.  The policy is meant to compliment the agencies' implementing regulations on critical habitat designations and clarify expectations regarding critical habitat.4

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