Proposed Endangered Species Act Regulations Would Revise Rules And Protections Related To 'Critical Habitat'

Rafe Petersen is a Partner in our Washington D.C. office and Elizabeth "Betsy" Lake is a Partner in our San Francisco office.

HIGHLIGHTS:

The proposed regulations would considerably change the regulatory definitions related to "critical habitat" and "adverse modification," increasing agency discretion to designate and protect areas that do not presently contain features essential to the conservation of the species. The result of the proposed changes would cause extensive expansion of the impact of the Endangered Species Act (ESA) on private lands across the United States. The United States Fish and Wildlife Service and the National Marine Fisheries Service (together "Services") proposed two new rules and a policy related to the Services' process of protecting and designating "critical habitat" for species protected pursuant to the Endangered Species Act (ESA). (See the U.S. Fish & Wildlife Service news release: Federal Agencies Propose Revised Rules to Improve Implementation of the Endangered Species Act, May 9, 2014.) The proposal was made on May 12, 2014. Collectively, the proposed rules and draft policy guidance would radically change the regulatory definition and significance of "critical habitat," resulting in a considerable expansion of the impact of the ESA on private land.

Background: ESA Provisions Related to Critical Habitat

Concurrently with listing a species as threatened or endangered, Section 4 of the ESA requires the Services to designate critical habitat "to the maximum extent prudent and determinable" utilizing "the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. §§1533(a)(3); (b)(2). ESA Section 3(5)(A) defines critical habitat as "the specific areas within the geographical area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management consideration or protection." 16 U.S.C. §1532(5)(A)(i). In addition, the Services may designate "specific areas outside the geographical area occupied by the species at the time it is listed ... upon a determination by the Secretary that such areas are essential for the conservation of the species." 16 U.S.C. §1532(5)(A)(ii). "Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species." 16 U.S.C. §1532(5)(C).

Once critical habitat is designated, the ESA prohibits other federal agencies from engaging in actions that adversely modify critical habitat. 16 U.S.C....