Posted May 27, 2014
The U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service proposed two new rules and a policy related to their process of protecting and designating “critical habitat” for species under the Endangered Species Act (ESA), according to an article by JD Supra available here.
Elizabeth Lake and Rafe Petersen of Holland & Knight LLP say the proposed rules “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.”
The first proposed rule would revise the definition of “adverse modification” of critical habitat. The proposed rule responds to two court decisions that set aside the 1986 definition of “adverse modification.”
The second proposed rule would amend the procedures related to designating “critical habitat.” The rule would define the 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 a 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).”
The proposed policy aims to clarify how exclusions from “critical habitat” designation are considered, shifting to a case-by-case analysis and “focusing on conservation benefits both on the land and economics side.”
“Critical habitat” represents “the habitat essentials for a species’ recovery,” according to the agencies’ News Release is available here.
“Our goal in proposing these revisions is to make the process of designating and consulting on critical habitat more predictable, more efficient, and more easily understood,” said Gary Frazer, U.S. Fish and Wildlife Service Assistant Director for Ecological Services. “We think these common-sense changes, reflecting lessons learned over the years, will improve conservation of species that need help and reduce the potential for conflicts and litigation.”
Elizabeth Ingram at Hydroworld said, here, “Hopefully, passage of these changes will, among other effects, shorten the time required for hydro projects to complete the endangered species consultation process during the Federal Energy Regulatory Commission licensing and relicensing process.”
For more information on environmental law, please visit the National Agricultural Law Center’s website here.
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