Last week, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) proposed a number of changes in the agencies’ Endangered Species Act critical habitat rules and policy. While some of the changes are fairly minor, others have the potential to change how FWS and NMFS both consult on and designate critical habitat.

Comments on the two sets of proposed rules and the draft policy are due on 11 July 2014.

Potential changes to the Section 7 consultation process

Under Endangered Species Act Section 7(a)(2), any federal agency taking, authorizing, or funding of an action that may affect a listed species must consult with FWS or NMFS to insure that the action is not likely to result in the destruction or adverse modification of designated critical habitat.

The meaning of the term “adverse modification of designated critical habitat” has been unclear since the Fifth and Ninth Circuits rejected the agency definition of the term in 2001 and 2004 as unduly narrow. Prior to those decisions, FWS and NMFS defined adverse modification as an act that “appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species” — similar to the definition of jeopardy. Since the Circuit decisions, courts and the agencies have sometimes treated adverse modification as any action that appreciably diminishes the value of critical habitat for survival or recovery. However, the agencies did not formally adopt this approach, only issuing broad guidance in 2004 regarding critical habitat consultations.

Now, FWS and NMFS propose a new formal definition that treads a middle path between the two definitions. The agencies introduce a new concept, “conservation value,” and define adverse modification as “a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species.” The agencies intend “conservation value” as a qualitative measurement that depends on a multitude of factors, including the features of the habitat and its role in the life-history of the species. The proposed rules do not fully indicate how the agencies plan to conduct this qualitative measurement.

At the same time, the agencies have perhaps relaxed their use of the term “appreciably diminishes.” In the proposed rule’s preamble, the agencies reject as too strict their historic definition as a considerable reduction in an area’s capacity. The agencies do not offer a new definition, but state that the agencies will evaluate the term functionally — “is the reduction one we can recognize or grasp the quality, significance, magnitude, or worth of in a way that makes a difference to the likely survival and recovery of the listed species?”

Potential changes to the designation of new critical habitat

The agencies also put forward a new draft policy designed to clarify their decision to exclude certain lands from new critical habitat designations. Upon adoption, the new policy will formalize the agencies’ current practice for excluding private lands subject to voluntary conservation plans from critical habitat designation, including those subject to candidate conservation agreements with assurances, safe harbor agreements, and habitat conservation plans. Under the policy, however, the agencies reserve the discretion to evaluate the effectiveness of existing protections and to include in critical habitat designations those areas the agencies consider insufficiently protected.

Finally, FWS and NMFS propose a number of small changes to definitions important to the critical habitat designation process, including but not limited to the following:

  • FWS and NMFS 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).”   
  • FWS and NMFS propose a definition for the term “physical or biological features.” The statutory definition of “critical habitat” includes this phrase and the definition assists in the identification of those specific areas within the entire geographical area occupied by the species that may be appropriate for designation as critical habitat. The new definition “would clarify that features can be dynamic or ephemeral habitat characteristics.”