The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have finalized two joint rule modifications and one joint policy change regarding the Services' interpretations of "critical habitat" under the Endangered Species Act.
The first rule defines "destruction or adverse modification" in the Services' regulations implementing Section 7(a)(2) of the ESA, which requires federal agencies to ensure their actions are not likely to jeopardize an endangered or threatened species or result in "destruction or adverse modification of habit of such species." The revisions are in light of invalidation of a previous definition by both the Fifth and Ninth Federal Circuit Courts. The new definition defines the phrase to mean "a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species." The Services removed previously proposed terms such as "conservation value" and "life-history needs" from the final definition, more closely aligning it with the definition of "critical habitat" in the ESA. According to the Services, the change in the definition will not alter the ESA Section 7(a)(2) consultation process, nor will it necessitate any changes to completed biological opinions. By focusing on "appreciable" diminishment, the definition is likely to allow some alterations to designated critical habitat so long as the larger conservation value of the area remains intact.
The Services also finalized a rule to clarify the criteria for designating critical habitat, which is "intended to clarify expectations regarding critical habitat and provide for a more predictable and transparent critical habitat designation process." Among the revisions is a requirement that an analysis of the economic impacts of designating critical habitat be completed and made available for public comment at the time that the habitat is proposed for protection. The Services also clarify that the economic analysis should be focused on incremental effects from the designation of critical habitat rather than total economic impacts.
Finally, the Services updated their non-binding critical habitat exclusions policy addressing how the Services consider partnerships and conservation plans, conservation plans permitted under section 10 of the ESA, Tribal lands, national-security and homeland-security impacts and military lands, Federal lands, and economic impacts in the exclusion process. Under the revised policy, the Services will consider excluding areas from critical habitat protections if there are existing voluntary conservation agreements with landowners or strong national security arguments or economic reasons for doing so. Although some stakeholders wanted it to go even further, the policy provides helpful guidance for private landowners and project proponents that develop voluntary conservation plans to avoid the possibility of additional impacts associated with having their property later designated as critical habitat.
The Adverse Modification rule is available here.
The Clarifying Criteria for Designating Critical Habitat rule is available here.
The revised Policy on Critical Habitat Exclusions is available here.
The new rules and policy will go into effect 30 days after publication in the Federal Register, which is expected soon.
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