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Endangered Species Act Proposed Changes & Impacts

By: William Coleman

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) jointly proposed new language related to critical habitat designation under the Endangered Species Act (ESA). The new approach is intended to increase the predictability and transparency of critical habitat decision making and set the stage for addressing current and future habitat conservation needs. This is especially significant because the agencies appear to be connecting climate change adaptation with ecological risk management for the first time.

Under the ESA, the FWS and NMFS ensure that federal agency actions don’t result in the “destruction or adverse modification” of designated critical habitat. Among other changes, the proposed language:

  • Revises the definition of adverse modification to read, “…alteration that appreciably diminishes the conservation value of critical habitat for listed species.” This change emphasizes the role critical habitat plays in species recovery since habitat loss is a leading cause of species’ decline. The definition is especially significant because it can apply to both current habitat and to habitat that alters over time, including as a result of climate change.
  • Describes the scope and purpose of critical habitat and clarifies the method by which critical habitat is designated. Numerous minor modifications are proposed, including a definition of features used to determine critical habitat under “dynamic habitat conditions”. Such conditions describe challenges species will likely face as a result of changing rainfall patterns, temperatures, storm intensity and sea level rise that are associated with climate change The agencies’ broader focus introduces an element of “adaptability” into the framework of the critical habitat designation process itself.

What does this mean?

For land holders and developers, these changes would remove existing limitations on the designation of unoccupied habitat even if these land areas currently have no physical or biological features supporting listed species. As a result land only needs to have the “potential” to contribute to species recovery to qualify for critical habitat designation.

The proposed changes expand the agencies scope, increasing their ability to make broad-scale designations of critical habitat. Furthermore, the number of “adverse modification” determinations will likely increase (because potential habitat is being so broadly defined), impacting project costs associated with changes due to the location of critical habitat.

Every state in the U.S. has at least one species, if not significantly more, included in these review categories. Further, of the 1,527 species listed by both FWS and NMFS within the U.S., only 688 species presently have critical habitat designations. The potential number of new critical habitat designations within the next three to four years could exceed 150 species made under the newly proposed rules and draft policy.

However, the presence of rare species or critical habitat on private property does not necessarily lead to restriction as to how the property may be developed or utilized. In fact, incentive programs have been established to reward property owners for conserving properties with the potential to support rare species. This includes market-based programs supported by FWS and NMFS-supported conservation banks and easements. Landowners will want to pay careful attention to developments in their states that could represent opportunities for generating significant long term revenues from these incentive based programs. Great Ecology works with large industrial and commercial land holders as well as private landowners to realize market-based conservation value from underutilized properties supporting rare species and habitats.

For more information about these market-based incentive programs and how the proposed language may impact your projects contact us today.

The proposed language is currently in the public comment period but ends July 11, 2014.

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