May 9, 2014 — The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (together, the Services) – the two federal agencies responsible for administering the Endangered Species Act (ESA) – today proposed two rules and a policy to improve the process of designating areas of “critical habitat” and consulting on the effects of federal actions on critical habitat. These proposals are designed to increase the predictability and transparency of the Services’actions related to critical habitat under the ESA.
Critical habitat represents the habitat essential for a species’ recovery.
The ESA requires, with few exceptions, that critical habitat be designated for species that are protected under the act. Critical habitat designations do not create reserves or protected areas, but federal agencies are required to consult with the Services to ensure that any actions they authorize, fund or carry out are not likely to result in the “destruction or adverse modification” of designated critical habitat.
The first proposed rule revises the definition of “adverse modification.”
The current regulatory definition has been invalidated by the courts, and the Services are now proposing to replace the invalidated definition with one that is consistent with the ESA, its legislative history and circuit court opinions.
The proposed revised definition of “adverse modification” focuses our review of federal actions on how they would affect the designated critical habitat’s ability to support recovery of the listed species. In this review, we will look at how the action may affect the quantity and quality of habitat features, the ability of that habitat to support the species throughout its life cycle, and the ability of the habitat to meet the species’ recovery needs; in other words, how the “conservation value” of the critical habitat is being affected.
The proposed definition reflects the approach the Services have employed since 2004, when the current definition was invalidated, and we do not expect it to be substantially more or less protective of critical habitat than the guidance used in recent years. Incorporating this approach into a revised regulation, however, will improve the predictability and transparency of these determinations for affected agencies and the public.
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