Determining the Conservation Value of Habitat: Modern Challenges Under the Endangered Species Act

• Date: 01 April 2015

4-2015 NEWS & ANALYSIS 45 ELR 10265

D I A L O G U E

Determining the Conservation Value

of Habitat: Modern Challenges

Under the Endangered Species Act

Summary

More than one decade after two circuit courts struck

down the regulatory denition of “adverse modica-

tion” of critical habitat, two agencies, the U.S. Fish

and Wildlife Service and the National Marine Fisher-

ies Service, are now proposing a comprehensive pack-

age of changes to the Endangered Species Act (ESA).

In May 2014, the Services proposed two rules and one

new policy regarding the ESA. e rst rule redenes

“adverse modication” to place additional emphasis

on species recovery after being listed as endangered.

e second rule contains numerous clarications of

the scope of critical habitat in terms of the species’

geographical range. e proposed policy deals with

exclusions from critical habitat designations, specify-

ing that the government will consider issues such as

national security and economic impact when deciding

whether to include la nd in designations; in addition,

the policy includes a benets analysis. On October 7,

2014, the Environmental Law Institute hosted a semi-

nar to address issues raised by these proposed rules

and new policy. Below, we present a transcript of the

event, which has been edited for style, clarity, and

space considerations.

Lawrence R . “Larry” Liebesman (moderator) is Partner

at Holland & Knight, Adjunct Professor at George Wash-

ington University Law School, and co-author of ELI’s

.

Angela Somma is Director of the Endangered Species

Division at the National Marine Fisheries Service.

Sean Skag gs is Partner at Ebbin Moser + Skaggs, a nd for-

mer Attorney and Policy Advisor with t he U.S. Depart-

ment of the Interior.

Jason Rylander is Senior Sta Attorney at Defenders

of Wild life.

Larr y Liebesma n: e issue of critical habitat designa-

tion has probably been one of t he most contentious issues

of the Endangered Species Act (E SA).1 After two federal

circuits struck down the regulatory denition of adverse

modication,2 which has been highly contentious over the

past 10-15 years, the U.S. Fish and Wildlife Service (FWS)

and the National Marine Fisheries Service (NMFS) have

now come up with a comprehensive package to propose

changes dealing with critical habitat de signation under

the ESA.

In May 2014, the Serv ices proposed two rules and one

new policy regarding the ESA .3 e rst proposed rule

redenes the term “adverse modication” under ESA §7

to place additional emphasis on species recovery.4 e sec-

ond proposed rule contains numerous clarications of the

scope of critical habitat in terms of geographic range of the

species. e proposed policy deals with exclusions under

the ESA from critical habitat designations, specifying

that the government will consider issues such a s national

security and economic impact when deciding whether to

include certain lands in designations. In addition, the pol-

icy addresses benets and has a benets analysis for analyz-

ing whether an exclusion should be issued.

ese proposed chan ges raise many new questions. For

instanc e, how would t hese three varied regu latory pieces

t together in practice? How can one a ssign a conser-

vation value to critical habitat? How will the denit ion

of adverse modi cation actually work on a case-specic

basis? What will the goal of species re covery look like

under the ne w approach?

We’ll have Angela Somma from NMFS begin the Dia-

logue by gi ving us the pe rspective from the federal agen-

cies that de veloped the se proposa ls. en, Sean Skaggs

will provide a perspective from the regulated commu-

nity, and Jason Rylander will oer a perspective from

the environmental conservation commun ity. At the end

1. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

2. Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 31 ELR 20500 (5th

Cir. 2001); Giord Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378

F.3d 1059 (9th Cir. 2004).

3. Interagency Cooperation—Endangered Species Act of 1973, as Amended;

Denition of Destruction or Adverse Modication of Critical Habitat, 79

Fed. Reg. 27060 (proposed May 12, 2014); Listing Endangered and reat-

ened Species and Designating Critical Habitat; Implementing Changes to

the Regulations for Designating Critical Habitat, 79 Fed. Reg. 27066 (pro-

posed May 12, 2014); Policy Regarding Implementation of Section 4(b)(2)

of the Endangered Species Act, 79 Fed. Reg. 27051 (May 12, 2014).

4. ESA §7, 16 U.S.C. §1536.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.