Examining The Scope Of Expanded 'Critical Habitat' Rules
Two new rules and one new policy from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service relating to the process of designating and protecting "critical habitat" under the Endangered Species Act became effective on March 14, 2016. The new rules revise the criteria for designating critical habitat (see 81 Fed. Reg. 7414, Feb. 11, 2016) and amend the definition of "destruction or adverse modification" of critical habitat (see 81 Fed. Reg. 7214, Feb. 11, 2016). The new policy explains the services' decision-making criteria in determining whether to exclude areas from critical habitat (see 81 Fed. Reg. 7226, Feb. 11, 2016).
Together, the new rules and policy expand the ability of the services to designate critical habitat, expand the definition of activities that result in "adverse modification" to habitat, and will likely expand the reach of the ESA on private lands across the U.S.