Federal agencies finalize changes to critical habitat regulations

Recently, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service finalized revisions to regulations related to implementation of the Endangered Species Act (ESA), and issued a new policy.

The revisions and the new policy address “critical habitat,” which the ESA defines as specific areas that contain “physical or biological features essential to the conservation” of species listed under the ESA and that “may require special management consideration or protection.” Two final rules and the new policy appear in the February 11, 2016 issue of the Federal Register.

In one of the final rules (81 FR 7214–7226), the Services announce a revised definition of the term “destruction or adverse modification” of critical habitat. The new definition states that “destruction or adverse modification means 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 features.” Under the new definition, “some physical or biological features may not be present or may be present in suboptimal quantity or quality at the time of [critical habitat] designation.” (81 FR 7216).

A second final rule (81 FR 7414–7440) clarifies the procedures and standards the Services use for designating critical habitat, describes the scope and purpose of critical habitat, and clarifies the criteria for designating critical habitat. The rule also revises the Services’ regulations to make certain lands managed by the Department of Defense ineligible for designation as critical habitat.

Finally, the new policy (81 FR 7226–7248) describes the general position of the Services for considering economic, national security, and other impacts when considering whether to designate an area as “critical habitat,” and explains that the Services may exclude particular areas if the benefits of doing so are greater than the benefits of designation as critical habitat, so long as the exclusion will not result in the extinction of the species.