GM 14-038

Fish and Wildlife Service Publishes Two Proposed Rules and a Draft Policy Statement regarding Critical Habitat under the Endangered Species Act

On May 12, 2014, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the “Services”) published in the FEDERAL REGISTER three interrelated notices regarding critical habitat under the Endangered Species Act (ESA) – two proposed rules and a draft policy statement. One proposed rule would revise the regulatory definition of “destruction or adverse modification” of critical habitat, which is codified at 50 C.F.R. § 402.02. The other proposed rule would make several changes in the procedures for designating and revising critical habitat, codified in 50 C.F.R. part 424. The draft policy explains how the Services will exercise discretion in deciding whether to exclude certain kinds of lands – such as tribal lands – from critical habitat designations. The draft policy cites Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (1997). The deadline for filing comments on either of the proposed rules or the draft policy is July 11, 2014. Tribes might want to treat the publication of these notices as an opportunity to raise other issues relating to the ESA.

Under the ESA, each of the Services is responsible for carrying out various aspect of the law, including listing endangered and threatened species, designating critical habitat, and, pursuant to section 7(a)(2), consulting with federal agencies to ensure that “any action authorized, funded, or carried out by … an ‘action agency’ … is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of” critical habitat. 16 U.S.C. § 1536(a)(2). FWS has lead responsibility for terrestrial species, and NMFS has lead responsibility for marine and anadromous species. Relevant statutory provisions are discussed in the “Background” section of each of the FEDERAL REGISTER notices.

As explained in the “Background” section of the proposed revision to the definition of “destruction or adverse modification” of critical habitat, this change is being proposed in response to decisions by two federal appeals courts, the Fifth Circuit in Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001), and the Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). Both courts held that the regulatory definition was invalid on its face and inconsistent with the ESA in that it was too narrow by focusing on “survival” of the species and ignoring the legislative intent of the ESA to enable listed species to recover from their listed status, not merely to survive. The proposed revised definition is broader by including alterations that would “preclude or significantly delay the development” of environmental features that support needs for recovery of the species. The notice may be found at 79 Fed. Reg. 27060,

The second proposed rule would revise three sections in the regulations for designating critical habitat, addressing several issues that have frequently arisen in litigation. The changes clarify that the term “geographical area occupied by the species” is not limited to areas in which a species may be found more or less continuously but may also include areas that are used periodically, such as breeding areas, foraging areas, and migratory corridors. Another change describes the factors the Services will consider in determining whether an area not currently occupied by a species should be included. The notice may be found at 79 Fed. Reg. 27066,

The draft policy on discretionary exclusions from critical habitat designation acknowledges Secretarial Order 3206, from which it quotes: “In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.” Under the draft policy, the Services will “always consider exclusion of Tribal lands” and will “give great weight to Tribal concerns,” but Tribal lands will not be categorically excluded. Rather, the exclusion analysis will apply the same factors as for other kinds of lands. The draft policy may be found at 79 Fed. Reg. 27052,

In conjunction with these recent FEDERAL REGISTER documents, we note that, the Services have published other rulemaking documents on various aspects of the ESA in recent years. One such document is a final rule revising the regulations for textual descriptions of critical habitat boundaries. 77 Fed. Reg. 25611 (May 1, 2012). Another is a final rule on the release of economic analyses to accompany proposed critical habitat designations. 78 Fed. Reg. 53058 (Aug. 28, 2013). In addition, on May 4, 2009, the Services published a rule withdrawing certain changes in the regulations that had been adopted during the previous Administration. 74 Fed. Reg. 20422. In that rule, the Services requested input from the public on “potential ways to improve the section 7 regulations while retaining the purposes and policies of the ESA,” including “methods to streamline both formal and informal consultation.” In our experience, section 7 consultation in Indian Country sometimes takes longer than it should because of the diminished presence of the Bureau of Indian Affairs (BIA), which is due to tribes having assumed responsibility for BIA programs through self-determination contracts and self-governance compacts. One option for streamlining consultation would be for the Services to revise the regulations to provide a more prominent role for tribal governments that administer BIA programs.

Please let us know if we may provide additional information regarding the proposed rules, the draft policy statement, or other matters relating to the Endangered Species Act.