May 01, 2016

Final critical habitat rules and policy may result in substantial impacts to land use without commensurate wildlife benefits

Karma B. Brown and Kerry L. McGrath

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) have promulgated significant changes to the designation of critical habitat under the Endangered Species Act (ESA). In February, the Services issued revised criteria for designation of critical habitat, 81 Fed. Reg. 7414 (Feb. 11, 2016) (Designation Rule). At the same time, the Services issued a revised definition of “destruction or adverse modification” of critical habitat, 81 Fed. Reg. 7214 (Feb. 11, 2016) (Adverse Modification Rule) and adopted a final policy regarding the exclusion of areas from critical habitat designation, 81 Fed. Reg. 7226 (Feb. 11, 2016) (Exclusion Policy). These changes, which became effective on March 14, 2016, could result in significant burdens to land use for property owners.

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