Federal Agencies Finalize Revised Rules to Improve Implementation of the Endangered Species Act
Building on the success of the Obama Administration in improving regulations and in implementing the Endangered Species Act (ESA) in new and innovative ways, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (together, the Services) today finalized a policy and two rules that will provide a clearer, more consistent and predictable process for designating critical habitat.
“The Endangered Species Act is the last safety net between our most at-risk species and extinction, and as such, we want to do everything we can to make sure it functions efficiently and effectively,” said Gary Frazer, the Fish and Wildlife Service’s Assistant Director for Ecological Services. “These commonsense administrative improvements are the product of an open and interactive public process that solicited feedback from diverse stakeholders. Ultimately, they will better equip us to protect our nation’s wildlife.”
“America’s fish, wildlife and plant resources belong to us all, and ensuring the health of imperiled species is a shared responsibility,” said Donna Wieting, Director of NOAA Fisheries’ Office of Protected Resources. “These regulations are meant to clarify expectations and provide for credible and predictable designation and consultation processes which improve our ability to conserve and recover imperiled species.”
Critical habitat represents areas that are essential for recovering a species—the ultimate goal of the ESA. The ESA requires, with few exceptions, that critical habitat be designated for all listed species. Critical habitat designations do not create reserves or protected areas, alter land ownership or authorize federal access to private lands. The general public is not responsible for addressing the loss of critical habitat unless there is a connection with a federal agency, such as a permit or grant. The purpose of critical habitat is to require federal agencies to consult with the Services to ensure that any actions they authorize, fund or carry out are not likely to result in the “destruction or adverse modification” of designated critical habitat.
One rule revises the definition of “destruction or adverse modification.” It retains the current focus of the Services’ review of federal actions on how those actions affect the “physical or biological features essential to the conservation of a listed species,” and the ability of that habitat to support the species throughout its life cycle, and to meet the species’ recovery needs. Incorporating this approach into a revised regulation will improve the predictability and transparency of these determinations for federal agencies and the public.
The previous regulatory definition was invalidated by the courts in 2004. The revised definition, which is consistent with the ESA, its legislative history and circuit court opinions, codifies the approach the Services have employed since 2004. As a result, this rule is not expected to be substantially more or less protective of critical habitat.
The other rule clarifies the procedures and standards used for designating critical habitat, making minor changes to the regulations to better describe the scope and purpose of critical habitat, and clarify the criteria for designating critical habitat. This rule also revises the Services’ regulations to be consistent with statutory amendments made in 2004 that make certain lands managed by the Department of Defense ineligible for designation as critical habitat. The Services believe these changes will enhance the consistency and efficiency of the critical habitat designation process.
The new policy is intended to provide greater predictability, transparency and consistency regarding how the Services consider exclusion of areas from critical habitat designations. Under the ESA, the Services evaluate the economic, national security and other impacts of a designation and may exclude particular areas if the benefits of doing so are greater than the benefits of designation, so long as the exclusion will not result in the extinction of the species. This final policy describes the general position of the Services for considering different situations relative to the exclusion process (e.g., voluntary conservation agreements, national security, economics).
These regulatory improvements are consistent with Executive Order 13563, which calls for a retrospective analysis of existing rules to make the agency’s regulatory program more effective and less burdensome in achieving the regulatory objectives, and was included in the Department of the Interior's Final Plan for Retrospective Regulatory Review.
The Endangered Species Act is an essential tool for conserving the nation’s most at-risk wildlife, as well as the land and water on which they depend for habitat. The ESA has prevented more than 99 percent of the species listed from going extinct, serving as the critical safety net for wildlife that Congress intended when it passed the law 40 years ago. In addition, the ESA has helped move many species from the brink of extinction to the path to recovery, including California condors, Florida panthers and whooping cranes. The Obama Administration has delisted more species due to recovery than any prior administration, including the Oregon chub, Virginia northern flying squirrel and brown pelican.
For more information, including the final notices submitted to the Federal Register, visit www.fws.gov/endangered/improving_esa/reg_reform.html.