Proposed Endangered Species Act Regulations Would Change Critical Habitat Rules

by Perkins Coie

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published two proposed regulations and a draft policy concerning critical habitat designations under the Endangered Species Act. 

Destruction or adverse modification.  The first proposed regulation would revise the definition of “destruction or adverse modification” of critical habitat.  79 Fed. Reg. 27,060 (May 12, 2014).  Under the ESA, federal agencies must ensure that their actions and the projects they fund or approve are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species.  In 1986, the Services adopted a regulation defining “destruction or adverse modification” to mean “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.”  50 C.F.R. § 402.02.

But two federal appellate courts found that the definition violated the ESA and did not afford sufficient protection to critical habitat.  See Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434 (5th Cir. 2001), and Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004).  The courts found that the definition provided for an adverse modification only if the survival of the species is diminished, instead of also encompassing the situation where the species’ recovery is impaired but its survival is not threatened.  In striking down the regulatory definition, the courts emphasized that the ESA was intended to promote both the survival and recovery of listed species. 

As a result of these court decisions, the proposed rule would amend the definition of “destruction or adverse modification” to “a 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.”

Procedures and criteria for designating critical habitat.  The second proposed regulation would amend the procedures and criteria specified in 50 C.F.R. part 424 for designating critical habitat.  79 Fed. Reg. 27,066 (May 12, 2014).  To make a critical habitat designation, it is important first to know what area the species occupies.  Under the proposed regulation, this area would be defined to include “those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis.”  The proposed regulation also would add or modify other regulatory definitions and would clarify the process to be followed when designating critical habitat.

Exclusions from critical habitat.  The draft policy issued concurrently with the two proposed regulations addresses exclusions from critical habitat and how the Services consider a variety of issues as part of the exclusion process, including partnerships and conservation plans, habitat conservation plans permitted under section 10 of the ESA, tribal lands, national security and homeland security impacts, federal lands and economic impacts.  79 Fed. Reg. 27,052 (May 12, 2014).  This policy is meant to complement the proposed revisions to 50 C.F.R. part 424 and to provide for a simplified exclusion process.

The proposed rules have long been anticipated as needed clarification of court decisions from over a decade ago.  The proposals are significant because they will create a clear distinction between prohibited federal actions that create jeopardy to a species on the one hand, and adverse modification of critical habitat on the other.  Under the rules that these court decisions struck down, jeopardy and adverse modification have similar definitions.  Under the proposed rules, the prohibited act of adverse modification would be more stringent in some cases, applying to federal actions that adversely affect only the potential recovery of the species, even if the species’ survival is not diminished.  Jeopardy, on the other hand, would continue to apply to actions that present a likelihood of extinction of the species. This regulatory change, if adopted, would raise the bar for ESA compliance for certain activities occurring within designated critical habitat.

The proposed policy guidance on exclusions from critical habitat is also significant.  For many years, the Services have excluded from critical habitat those lands and waters that are subject to habitat conservation plans approved under the ESA, as well as government agency and tribal plans that have comparable conservation benefits.  The basis for this action has been that such plans sufficiently protect the species and their habitat such that a critical habitat designation is not required.  Under the new draft policy, the Services would only exclude areas subject to such plans based on a case-by-case analysis of the conservation benefits.  In doing so, the Services appear to be moving away from a principle that has been uniformly applied for many years to all such plans.

The proposed policy retains significant discretion for the Services to decide whether to exclude an area from critical habitat. In general, an area subject to an HCP will be excluded if the plan is being properly implemented and specifically addresses the habitat needs of the species subject to the critical habitat proposal. Thus, the proposed policy would apply more detailed review of the plan that would be used as the basis for the exclusion than has been the case previously.

The comment period for all three potential revisions is July 11, 2014.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.