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.
