Agencies Propose Rules on Critical Habitat Designation

[Chris Merkord]

An endangered Kirtland’s warbler (Stetophaga kirtlandii) sings in its nesting habitat of young Jack pines in Michigan. The U.S. Fish and Wildlife Service and National Marine Fisheries Service recently proposed two new rules related to better protecting critical habitat of listed species. (Credit: Joel Trick, USFWS)

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) jointly proposed two rules and a policy to increase the predictability and transparency of their actions related to critical habitat designation and consultation under the Endangered Species Act (ESA).

The ESA requires federal agencies to consult with FWS or NMFS to ensure their actions don’t result in the “destruction or adverse modification” of designated critical habitat. The first proposed rule revises the definition of “adverse modification to read, “The 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 new definition is intended to emphasize the important role critical habitat plays in species recovery, as habitat loss and modification is often a leading cause of species’ decline.

A second proposed rule aims to better describe the scope and purpose of critical habitat and to clarify the procedures and criteria utilized when critical habitat is designated. Numerous minor modifications to the existing regulations are proposed, including the ineligibility of Department of Defense lands for designation, and a definition of “physical and biological features” used in the definition of critical habitat, which should clarify that these features can be used to support the occurrence of ephemeral or dynamic habitat conditions.

The proposed policy intends to make the process of excluding certain areas from consideration as critical habitat more predictable and simplified. The new policy would state that FWS and NMFS should consider the impacts on partnerships and conservation plans, the economy, national security, and tribal lands, among others, when determining what areas should be excluded from critical habitat.

Public Comments on all three proposals can be submitted through July 11, 2014. Comments must be submitted separately for each proposed rule or policy.

Go to the Federal eRulemaking Portal and enter the appropriate Docket Number in the search box:
• FWS-HQ-ES-2012-0096 for regulation changes for designating critical habitat
• FWS-R9-ES-2011-0072 for regulation changes relating to definition of destruction or adverse modification
• FWS-R9-ES-2011-0104 for the proposed policy

Sources: Federal Register 1 (May 12, 2014), Federal Register 2 (May 12, 2014), Federal Register 3 (May 12, 2014), Greenwire (May 9, 2014)

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