Federal agencies propose changes to how they designate and manage critical habitat

On May 12, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service proposed two rules and a policy to revise how the agencies designate, revise, and consult about potential impacts of federal agency actions on areas of “critical habitat.” Critical habitat is habitat deemed by the Services to be essential for recovery of a species federally listed as threatened or endangered under the Endangered Species Act (ESA).

One proposed rule (79 Federal Register 27066) would revise the procedures and standards for designation of critical habitat, and the second proposed rule (70 FR 27060) would revise the definition of “destruction and adverse modification” of critical habitat.

The draft policy (79 FR 27052) describes how the Services will consider partnerships and conservation plans, conservation plans permitted under Section 10 of the ESA, tribal lands, national security and homeland security impacts, federal lands, and economic impacts when determining what areas should be excluded from designation as critical habitat. More information about the proposed rules and draft policy is available at www.fws.gov/endangered/improving_esa/reg_reform.html.

The Services indicate that the proposals are necessary because a number of factors, including litigation and the Services’ experience over the years in interpreting and applying the statutory definition of critical habitat, have highlighted the need to clarify or revise the current regulations. They also suggest there is a need to ensure that regulations are consistent with the ESA as interpreted by the courts in recent decisions. The agencies state that the three proposals are designed to “increase the predictability and transparency of the Services’ actions related to critical habitat under the ESA.”

The proposals collectively appear to make several important changes in the way that critical habitat is designated and managed. For example, rather than designating critical habitat “where appropriate,” the circumstances where designation would not be “prudent” will be rare. The Services anticipate that, because of climate change, they will increasingly designate critical habitat outside the geographical area occupied by the species at the time of listing.

The Services also plan to designate critical habitat based on potential for suitable habitat conditions to develop in the future, even if they are not suitable at the time of designation. Furthermore, the Services will consider actions that “preclude or significantly delay the development of the physical or biological features” important to listed species to be destruction or adverse modification of critical habitat.

The comment period for the proposals is currently scheduled to close on July 11, 2014, although some interested parties may request an extension. NCASI is evaluating technical aspects of the proposed rules and policy.

  

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