May 22, 2014 — 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.
Regulatory Change: The Proposed Definition of "Adverse Modification"
The first proposed regulation would revise the definition of "adverse modification" of critical habitat. (See the U.S. Fish & Wildlife Service and National Marine Fisheries Service proposed rule, 50 CFR Part 402.) This regulation responds to two separate court decisions (in 2001 and 2004) that set aside the 1986 definition of "adverse modification." The 1986 regulations defined "destruction or adverse modification" as "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical." (50 C.F.R. §402.02). The courts invalidated the definition for failure to properly require consideration of the impact of adverse modification on recovery of the species in favor of focusing on survival. Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001); Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004).
Under the proposed regulation, "destruction or adverse modification" is defined as "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 requirement to focus on the conservation value of the species is likely to be controversial in that it appears to push recovery efforts onto private landowners. In determining whether the action will "appreciably diminish" the conservation value of the critical habitat, the proposed rule calls for the Services to look at whether the effects are "noticeable" rather than "significant" and requires the Services to examine factors such as whether recovery of the species will be delayed, less likely, or more difficult.
Focusing on "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" is a significant departure from current practice in that it would allow the Services to seek protection for habitat features that are not there presently or are of poor quality. Further, under the proposed standard, any impact could be argued to be likely to delay recovery or make it more difficult.
Regulatory Change: The Proposed Changes to the Critical Habitat Designation Process
The second proposed regulation would amend the procedures related to designating critical habitat. (See the U.S. Fish & Wildlife Service and National Marine Fisheries Service proposed rule, 50 CFR Part 424.) The regulatory changes proposed are described by the Services as "minor changes to the regulations to: better describe the scope and purpose of critical habitat, add and remove some definitions, and clarify the criteria for designating critical habitat." Some of the changes are minor as the Services state. However, others are not. Specifically, the Services propose to define the previously undefined term "geographical area occupied by the species" as "the geographical area which may generally be delineated around the species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals)." While couched as an attempt to "clarify the critical-habitat-designation process," the reality is that this new definition would expand the area that could be designated to include land that is not occupied by the species and land occupied only marginally.
The Services also propose a definition for the term "physical or biological features," which is used in the statutory definition of "critical habitat" to assist in identifying the specific areas within the entire geographical area occupied by the species that can be designated. The proposed definition allows inclusion of "habitat characteristics that support ephemeral or dynamic habitat conditions." This would allow the Services to designate land where they believe that there may have been the required features if they believe there is a "reasonable expectation of that habitat occurring again." As with the proposed definition of "adverse modification" discussed above, this change would allow the Services to prospectively designate habitat that does not currently have the features that would make it "critical" to the species.