The US Fish & Wildlife Service and National Marine Fisheries Service (the “Services”) have promulgated major changes to their critical habitat regulations. The result will be more designation of state, local and private land as critical habitat, and increased regulatory burdens and costs on land activities. Effects will be felt by a wide range of public and private sector entities across government and industry sectors, including energy, land and mineral development, real estate, banking, commercial transactions and agriculture. The changes take effect on March 14, 2016.
The Endangered Species Act directs the Services, at the time they list a threatened or endangered species, to designate “any habitat of such species which is then considered to be critical habitat” where prudent and determinable, and based on the best scientific data available.
The Services issued two rules and a policy that significantly reshape decades-old regulations governing the designation of critical habitat. First, the Services issued a rule to revise the criteria for designation of critical habitat. Second, the Services promulgated a revised definition of “destruction or adverse modification” of critical habitat. Finally, the Services adopted a final policy regarding the implementation of ESA Section 4(b)(2) for exclusion of areas from critical habitat designation.
Taken together, the rules increase the likelihood that the Services will make adverse modification findings and could make it more likely that the Services will designate critical habitat and do so across larger areas of land than in the past, impacting landowners and project proponents alike. These changes will lead to increased costs for project proponents who require federal permit authorizations or licenses, and significant restrictions on land use and activities.