The U.S. Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”) (together, the “Services”) recently announced a significant set of proposed regulatory changes and policies relating to critical habitat under the Endangered Species Act (“ESA”). The proposed rules and policies increase the discretion of the Services to designate broad areas of occupied and unoccupied habitat as critical habitat, and increase the likelihood that federal actions will be determined to adversely modify designated critical habitat.
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The Services have established a short, sixty (60) day, comment period on the proposed rules and draft policy, which currently will close on July 11, 2014.
Overview
Section 4 of the ESA directs that the Services, concurrent with a designation of a threatened or endangered species, and where prudent and determinable, also designate “any habitat of such species which is then considered to be critical habitat.” For over three decades, the Services have designated critical habitat based on the presence, within the designated area, of certain physical and biological features referred to as “primary constituent elements.” The Services’ regulations currently provide that unoccupied areas only should be designated as critical habitat where a designation limited to areas within the species’ present, occupied range would be inadequate to ensure the recovery of the species. Further, the Services typically have limited critical habitat designations in areas occupied by endangered or threatened species to those lands in need of “additional” special management measures.
A key element of critical habitat designations is the subsequent application of a requirement that other federal agencies consult with NMFS and FWS regarding whether a proposed federal agency action would destroy or adversely modify such designated critical habitat. This consultation requirement applies to discretionary federal agency actions, including issuance of a permit or authorization, granting of funds and initiation of an agency’s own projects. If an action is determined to result in adverse modification of critical habitat, the federal action agency must adopt changes to the proposed action to avoid such adverse modification. These changes are often quite extensive and can affect the size, scope and even the feasibility of a project moving forward.
Proposed Changes
The Services are proposing three actions: (i) changes to existing regulations and new definitions used in the identification and designation of critical habitat; (ii) adoption of a new definition of “adverse modification” as used in consultations on the effects of federal agency actions under ESA, Section 7; and (iii) a formal policy on when to exclude lands or waters from a critical habitat designation pursuant to ESA, Section 4(b)(2). These proposals cover almost all aspects of the critical habitat process, including proposals that reshape the process for designating critical habitat and how the “adverse modification” inquiry is conducted in the consultation process under Section 7 of the ESA. Among the notable changes are:
- Adopting the use of “physical and biological features” as the basis for designation of critical habitat, and, in turn, defining physical and biological features as those features that support the “life-history needs” essential to recovery of the species.
- Clarifying that intermittent or seasonal presence or use of an area by a species is sufficient for consideration of such area as occupied habitat.
- Removing conditions in the existing regulations that disfavored the designation of unoccupied habitat.
- Clarifying that the mere potential to support physical or biological features, rather than the actual presence of such features, is sufficient for designation of an area as critical habitat.
- Adopting a presumption that, where physical and biological features occur, they may require special management, and that the presence of existing management measures for such habitat does not exclude an area from designation as critical habitat.
- Proposing a new definition of “adverse modification” that prohibits the direct or indirect alteration of habitat that appreciably diminishes the “conservation value” of critical habitat, with the consideration of “conservation value” intended to capture the role that critical habitat should play for the recovery of listed species.
- Proposing that “adverse modification” can include alterations that preclude or significantly delay the establishment or development of biological or physical features that would support the recovery of the species.
- Emphasizing that Section 7 consultation inquiries into whether a federal action would result in (i) jeopardy to the species’ continued existence or (ii) destruction or adverse modification of critical habitat have independent standards. The Services stress that, while the two inquiries are related, the review of “jeopardy” to a species has a primary focus of examining threats to the species population, while the adverse modification rule looks to the longer-term effects of the action on habitat needed to support recovery of the species.
- Establishing policies and conditions for exclusion of land or water from a critical habitat designation under ESA, Section 4(b)(2), with more detailed and restrictive conditions placed on the exclusion of lands or water based on non-ESA conservation plans, as compared to lands or waters for which a habitat conservation plan, safe harbor agreement or candidate conservation agreement has been adopted under the ESA.
- Announcing that the Services will place a priority for recovery of species on federal lands and, consequently, adopting a presumption against exclusion of federal lands from critical habitat designations.
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Van Ness Feldman will be developing further analysis of the proposed rules and tracking developments in the rulemaking docket. If you would like to receive further updates on this matter, please send an email to at: jbn@vnf.com. Van Ness Feldman closely monitors and counsels clients on compliance with the Endangered Species Act as well as other water, air, and other environmental regulatory developments. If you would like more information about the implementation of the Endangered Species Act or other environmental laws, please contact , , , or any member of the firm’s Practice in Washington, D.C. at (202) 298-1800 or in Seattle, WA at (206) 623-9372.