United States: New ESA Regulations Expand Impact Of "Critical Habitat" Designations

Elizabeth "Betsy" Lake and Bradley B. Brownlow are Partners and Genna Yarkin is an Associate in our San Francisco office.


  • The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have significantly revised their critical habitat regulatory program under the Endangered Species Act (ESA).
  • The changes, two new rules and one new policy, increase agency discretion to designate habitat currently unoccupied or infrequently used by the listed species, increase the likelihood that activities will result in an adverse destruction finding and generally will expand the impact of the ESA on private lands.

Two new rules and one new policy from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services) relating to the process of designating and protecting "critical habitat" under the Endangered Species Act (ESA) became effective on March 14, 2016. The new rules revise the criteria for designating critical habitat (see 81 Fed. Reg. 7414, Feb. 11, 2016) and amend the definition of "destruction or adverse modification" of critical habitat (see 81 Fed. Reg. 7214, Feb. 11, 2016). The new policy explains the Services' decision-making criteria in determining whether to exclude areas from critical habitat (see 81 Fed. Reg. 7226, Feb. 11, 2016). Together, the new rules and policy expand the ability of the Services to designate critical habitat, expand the definition of activities that result in "adverse modification" to habitat, and will likely expand the reach of the ESA on private lands across the United States.

Expanded Ability to Designate Unoccupied and Marginally Occupied Areas

In terms of designating critical habitat, the Services' new rules amend 50 CFR 424, which governs what habitat characteristics should be considered when designating lands as critical habitat (see 81 Fed. Reg. 7414). Generally, the new rule emphasizes the importance of designating critical habitat at or near the time species are listed for ESA protection, and broadens the regulatory interpretation of the ESA term "critical habitat." In explaining its revised regulations, the Services repudiated as "an unnecessary and redundant limitation" the prior regulatory approach, which stated that unoccupied habitat can be considered for designation only if a determination is made that the relevant species cannot recover within the area presently occupied by that species. Under the new rule, the Services explicitly revised the approach to consider the designation of unoccupied areas as critical habitat at the outset.

The most significant changes in the rule are as follows:

  • Removing the Services' discretion whether to adopt critical habitat for each species "only where appropriate." The new rule makes it clear that the Services are required to designate critical habitat in a timely manner, providing that critical habitat "shall be proposed and finalized to the maximum extent prudent and determinable at the time a species is proposed for listing." 50 CFR 424.12(a); 81 Fed. Reg. 7432.
  • Defining the previously undefined term "geographical area occupied by the species" to include areas used throughout all or a part of the species' life cycle, "even if not used on a regular basis" and to exclude the statutory modifier "at the time it is listed." 50 CFR 424.02; 81 Fed. Reg. 7429. In response to comments, the Services emphasized the agencies would need to distinguish between areas evidencing periodic use during a species life cycle versus use by a vagrant individual. Additionally, notwithstanding the new emphasis on designating critical habitat at the time of listing, the Services explained that including the requirement to look at occupied habitat at the time listed was too limiting.
  • Defining the term "physical and biological features" to remove the concept of "primary constituent elements" from the prior regulation and instead clarify that such features are those "supporting the life-history needs" of the species and "may include habitat characteristics that support ephemeral or dynamic habitat conditions." 50 CFR 424.02; 81 Fed. Reg. 7430. Thus, under this definition, when considering occupied lands for designation as critical habitat, the Services explained that they are authorized to designate as critical habitat land that does not now contain, but may have once contained, essential features if they believe there is a "reasonable expectation of that habitat occurring again."

Under this new rule, to determine when or what lands to designate as critical habitat, the Services clarify that their discretion is not unbounded – the agencies must rely on the "best available scientific data" (81 Fed. Reg. 7420, 7421, 7426, 7427, 7435). However, given the scarcity of the affected species, the quality of scientific data is not always clear, and there is concern that such "science" may consist solely of circumstantial evidence, and may be vague and merely informed by "any generalized conservation strategy" for a species (50 CFR 424.12(b)(2); 81 Fed. Reg. 7434).

Expanded Definition of "Adverse Modification"

In terms of protecting critical habitat, the new rule amends 50 CFR 502, which governs Section 7 consultation under the ESA, to revise the definition of "destruction or adverse modification" of critical habitat (see 81 Fed. Reg. 7216). This revision was made in response to the Fifth and Ninth Circuits' invalidation of the prior 1986 regulatory definition because it failed to properly require consideration of the impact of adverse modification on recovery of the species in favor of focusing on mere survival. Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001); Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004).

Under this new rule, the ESA term "destruction or adverse modification" at 50 CFR 402.02 is now defined as follows:

[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.

Although the Services in response to comment indicate that this definition is merely a reflection of current practice, the definition itself is more expansive – arguably all development would "alter" the land, so the question becomes whether the land altered is essential to conservation. Like the new rule above, the Services rely heavily on the need to use "best available science" as the only restriction on their discretion. As a result, this new rule undoubtedly expands the scope of land disturbance activity that qualifies as destruction or adverse modification in ways not previously anticipated by private landowners.

Consideration of Exclusions to Critical Habitat Designations

While the new rules clarifies what habitat lands to include in critical habitat and how to determine whether activities would result in adverse destruction of that habitat, the nonbinding policy informs the Services' determination of which areas should be excluded from critical habitat designations under section 4(b)(2) of the ESA (81 Fed. Reg. 7226). Specifically, the Services clarify that while there is a mandatory requirement to consider economic and national security issues, there is only a discretionary process to consider conservation plans/partnerships and Tribal lands or military lands. The discretionary analysis involves weighing the benefits of excluding a particular area against the benefits of including that area in the critical habitat designation. Only if the benefits of exclusion outweigh the benefits of inclusion will the Services exclude the particular area from a critical habitat designation. In no circumstances will an area be excluded if its exclusion will result in species extinction.

In undertaking the balancing test, the Services clarified that they will give "great weight" to Tribal or military concerns and will continue to exclude areas covered by a permitted candidate conservation agreement with assurances, a safe harbor agreement or habitat conservation plan if the agreement or plan meets all of the following conditions:

  • the permittee is properly implementing the agreement or plan and is expected to continue doing so
  • the species for which critical habitat is being designated is covered under the plan or agreement, or is similar in its conservation needs to one of the covered species
  • the plan or agreement specifically addresses habitat and meets the conservation needs of the species in the planning area

The Bottom Line

The final rules give the Services broad ability to designate critical habitat and protect it through its Section 7 consultation process. Together, the two new rules and policy appear to significantly 1) expand the ability to designate more lands as critical habitat and 2) once designated, find that more activities result in adverse destruction of that habitat. This revised regulatory regime provides an immense amount of discretion and flexibility for the Services, while creating a great deal of uncertainty for landowners.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions