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.

HIGHLIGHTS:

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...