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Critical Changes to ESA Regulations May Dramatically Increase Section 7 Consultations

July 2014

On May 12, 2014, the U.S. Fish and Wildlife Service (FWS) proposed two new rules and a draft guidance document to address the regulation of “critical habitat” under the Endangered Species Act (ESA).  Stakeholders may submit comments on the proposals to FWS through October 9, 2014.

Although, the FWS Preamble of these proposals suggests that the Service's proposal is a simple remedy to past regulatory efforts that were found by Courts of Appeals to be “facially invalid,” if adopted the new requirements could significantly expand critical habitat designations and result in far more restrictions on activities planned in those critical habitat areas.  As a result, some commentators have suggested that the proposals represent one of the most significant regulatory developments under the ESA in decades.

Critical changes include the following:

The FWS proposed to add two new definitions for terms found within the definition of “critical habitat.”  ESA defines “critical habitat” to mean “the specific areas within the geographical area occupied by the species, at the time it is listed . . ., on which are found those physical and biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection.”  16 U.S.C. § 1532(5)(A).  Now, the FWS has proposed to revise its reading of “geographical area occupied by the species” and “physical or biological features” that contribute to critical habitat.

By rewriting its guidance in determining features that are deemed eligible to be designated as critical habitat, the FWS is expanding its role in private actions.  Under the FWS's proposals, “destruction or adverse modification” could soon include activities that affect areas that currently do not provide habitat taking in areas where a species no longer lives; including areas that a species rarely uses; enveloping areas without habitat features essential to a species' conservation; and, sweeping up areas that might provide habitat for a species if climate change or other factors affect the species' present range or migration patterns.  As a result, if adopted the new rules could authorize the FWS to designate many more kinds and types of areas as critical habitat and including a revised and expanded set of features in those designations than it may presently consider.

If the FWS increases the number and scope of critical habitat areas designated, it would make it more likely that private actions will occur in or near designated critical habitat.  Broadening the definition of “destruction or adverse modification” of critical habitat makes it more likely that FWS will find that a private action may affect critical habitat and increase the chances that many more activities will be subject to Section 7 consultation under the ESA.  So, if the new rules are approved there would be more Federal command and control over private activities; there will be more time and money spent obtaining Federal permits and authorizations; and; there may be greater restrictions placed on project development and operation to minimize adverse impacts on newly broadened critical habitat areas.

After considering relevant case law and [FWS's] collective experience in applying the “destruction or adverse modification” standard over the last three decades, the [s]ervices propose to amend the definition of “destruction or adverse modification” to[:]  (1) more explicitly tie the definition to the stated purpose of the Act; and, (2) more clearly contrast the definitions of “destruction or adverse modification” and “jeopardize the continued existence of.”  To achieve these purposes, the [s]ervices 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.

According to the FWS news release, the proposed definition “reflects the definition the [s]ervices have employed since 2004 . . . and we do not expect it to be substantially more or less protective of critical habitat . . .”.  This may sound better than it is.

In fact, the new language's emphasis on recovery (apparently in an effort to clarify that recovery—and not merely survival—must be the ultimate goal of the FWS's work) raises a new set of questions.  For example, what is the “conservation value” of habitat that critically links survival and recovery as the FWS claims?  What evidence will the FWS use in determining whether direct or indirect private actions appreciably diminish the conservation value of critical habitat and enhance the likelihood of recovery for listed species?  Taken as a whole, do these new rules mean that any Federal permit may affect the recovery of a listed species?  Do these new rules signal dramatic increase in Section 7 consultations?  In all, these proposed rules are less clear than the Service claims.