Significant changes proposed to Endangered Species Act criteria


The U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration’s National Marine Fisheries Service are proposing changes intended to improve implementation of the Endangered Species Act.

These proposals include two rules and a policy to improve the process of designating areas of “critical habitat” and consulting on the effects of federal actions on critical habitat. These proposals are designed to increase the predictability of the services’ actions related to critical habitat under the ESA, according to a press release issued by FWS.

Critical habitat represents the habitat essential for a species’ recovery. ESA required, with few exceptions, that critical habitat be designated for species that are protected under the act. Critical habitat designations do not create reserves or protected areas, but federal agencies are required 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.

The first proposed rule revises the definition of “adverse modification,” as the current regulatory definition has been invalidated by the courts. The proposed revision focuses FWS’s review of federal actions on how they would affect the designated critical habitat’s ability to support recovery of the listed species and reflects the approach the services have employed since 2004.

The second proposed rule clarifies the procedures and standards used for designating critical habitat. These changes should enhance the clarity and efficiency of the critical habitat designation process, FWS says.

The third proposal is a policy to provide greater predictability, transparency and consistency regarding how the services consider exclusions from critical habitat designations.

“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, “says Gary Frazer, assistant director for ecological services with FWS.

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 comprehensive information on these proposed rules, visit

For more regulation & policy news, click here.

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