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What is Critical Habitat and Why Does it Matter?
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The Endangered Species Act (ESA) is a far-reaching wildlife protection statute.  It is administered by the U.S. Fish and Wildlife Service in the Department of the Interior and NOAA’s Fisheries Service in the Department of Commerce (collectively, the Service).1  Many people are aware of with the provisions of Section 9 of the ESA, which prohibit the unauthorized "take” (harming, killing, or harassing) of species that are listed as threatened or endangered under the statute. This take prohibition applies irrespective of land ownership and regardless of whether there is federal involvement with the proposed action.  However, fewer people may be aware of the process for and impact of the Service’s designation of an area as "critical habitat” for a listed species. 

Designation of Critical Habitat.  When a species is listed under the ESA, the Service generally must also designate critical habitat for the species.3  Critical habitat includes specific areas within the geographic area occupied by the species at the time it is listed, which are essential to the conservation of the listed species and that require special management or protection.4  Critical habitat may also include "specific areas outside the geographical area occupied by the species at the time it is listed” only "upon determination by the Secretary that such areas are essential for the conservation of the species.”5  Critical habitat designations must be based on "the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.”6  For a variety of reasons, critical habitat is often designated well after a species is listed, and critical habitat has not been designated for many species. 

Impact of Critical Habitat Designation.  Unlike the Section 9 take prohibition, the designation of critical habitat does not directly affect actions that are wholly non-federal.  In other words, there is no general prohibition on the disturbance or alteration of critical habitat that is akin to the Section 9 take prohibition.  However, the fact that an area is designated as critical habitat should be considered when analyzing whether a proposed action could potentially result in take of a listed species.  

Instead, the regulatory implications of the designation of critical habitat are felt in the Section 7 consultation process for proposed federal agency action, which may include permitting or funding of non-federal actions.  Under ESA Section 7, every federal agency must consult with the Service to ensure that any action it authorizes, funds, or carries out will not "jeopardize” the continued existence of a listed species or "adversely modify or destroy” designated critical habitat.7  This consultation may be formal or informal, depending on the level of impacts to listed species and critical habitat.  If, during informal consultation, the Service determines or concurs with the action agency that the proposed action either has no effect or is "not likely to adversely affect” listed species or critical habitat, the consultation process is terminated, and no further action is necessary.8  If the agency determines that its action may affect listed species or critical habitat, it must undertake formal consultation with the Service.9

The product of the formal consultation process is generally a biological opinion issued by the Service indicating whether the action (1) is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat or (2) is not likely to result in such effects.10   The Service has defined "destruction or adverse modification” as "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.  Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.”11  While courts have rejected the "survival and recovery” portion of this definition, they have confirmed that an "area of a species’ critical habitat can be destroyed without appreciably diminishing the value of critical habitat for the species’ survival or recovery.”12  A biological opinion that concludes there likely will be jeopardy to the species or destruction or adverse modification of critical habitat must include reasonable and prudent alternatives, if any, that would alter the action to avoid such impacts.13

Thus, while critical habitat has little impact on non-federal activities, it may affect the Section 7 consultation process for proposed actions with a federal nexus.  Understanding how a proposed action may affect critical habitat and exploring options for reducing adverse impacts on such habitat prior to initiating Section 7 consultation can help streamline the consultation process and potentially avoid costly and time-consuming changes to the project later in the permitting process.
 
1In general, the U.S. Fish and Wildlife Service is responsible for terrestrial and freshwater species.  NOAA Fisheries is responsible for marine species, including anadromous fish such as salmon and steelhead that hatch in freshwater, spend most of their adult life in the ocean, and then return to freshwater to spawn.  See 50 C.F.R. §§ 17.2(b), 402.01(b).
216 U.S.C. § 1538(a)(1).  
3Id. § 1533(b)(2).  The Service may decline to designate critical habitat if doing so would not be prudent (i.e., where publicizing the location of a species is likely to lead to illegal collection) or where critical habitat is not determinable.  Id. § 1533(a)(3)(A); see also 50 C.F.R. § 424.12(a).
416 U.S.C. § 1532(5)(A)(i).  
5Id. § 1532(5)(A)(ii).
6Id. § 1533(b)(2).
7Id. § 1536(a)(2); 50 C.F.R. § 402.01(a).
850 C.F.R. § 402.13(a)
9Id. § 402.14(a).
10See id. § 402.14(h)(3).
1150 C.F.R. § 402.02.
12Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F. 3d 936, 948 (9th Cir. 2010).
1350 C.F.R. §§ 402.14(h)(3), 402.02.

This regulatory summary is provided by IMA-NA Associate Member Holland & Hart LLC. Contact Sandi Snodgrass if you have any questions. 

 
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