Comments Sought on Proposed Rule Changes to the Endangered Species Act Affecting the Regulation of Critical Habitats

The Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service (NMFS) published three proposed rules in the Federal Register (FR) on May 12, 2014.  The comment period for both rules is 60 days, ending on July 11, 2014.  The proposed rules would modify the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (ESA), in three ways:  (1) by amending the regulations to change the definition of “destruction or adverse modification” of the critical habitats of endangered or threatened species, 79 F.R. 27060; (2) by amending the procedures for designating and revising critical habitats, 79 F.R. 27066; and (3) by announcing a draft policy on exclusions from critical habitat for certain lands, 79 F.R. 27051.

The ESA requires federal agencies to ensure their actions “are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species.”  Section 3(5)(A) of the ESA defines ‘‘critical habitat” as:

(i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.

This first proposed rule, which would revise 50 C.F.R. Part 402, proposes alterations to the definition of “destruction or adverse modification” of a critical habitat are proposed in response to decisions of two Courts of Appeals that held the regulatory definition was overly restrictive, as it “ignor[ed] the role critical habitat plays in the recovery of species.”  To respond to these court rulings, the agencies propose the following definition:

“Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species.  Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.

The second proposed rule consists of amendments to the procedures for adding species to the Lists of Endangered and Threatened Wildlife and Plans, and designating and revising critical habitat.  The proposed regulations “are intended to add clarity for the public, clarify expectations regarding critical habitat and provide for a credible, predictable, and simplified critical habitat-designation process.”  The proposed changes would affect 50 C.F.R. 424.01. 424.02, and 424.12.

The third proposed rule would revise 50 C.F.R. Part 424 by changing the policy employed by the FWS and NMFS with respect to Section 4(b)(2) of the ESA, which permits an agency to “exclude any area from critical habitat if [s]he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”  The draft policy, if adopted, would be used to analyze the exclusion process with respect to “partnerships and conservation plans, conservation plans permitted under section 10 of the Act, tribal lands, national security and homeland security impacts and military lands, Federal lands, and economic impacts in the exclusion process.”  The proposed policy retains the agencies’ discretion to designate critical habitat, and permits the agencies to weigh the costs and benefits of excluding an area as critical habitat.

If you would like any additional information on these proposed rules changes, the process for filing comments with the relevant agencies, or the ESA generally, please contact Maria O’Brien at or Sarah Stevenson at