Critical Habitat: What It Means to You

Recently, the U.S. Fish & Wildlife Service and the National Marine Fisheries Service proposed amendments to fundamental regulatory concepts that could affect Seattle area businesses, including project developers and companies in the maritime industry. The agencies propose to change the way they designate and evaluate critical habitat under the Endangered Species Act (ESA).

The proposals broaden the scope of critical habitat, which could potentially increase the time and cost of obtaining permits from federal agencies.

For the past 30 years, these agencies have designated critical habitat by looking primarily to areas presently occupied by the species. Section 7 of the ESA requires federal agencies overseeing permitting of a project to consult with the relevant agency if their actions might affect listed species or critical habitat. The consultation process determines if an action will jeopardize the continued existence of any endangered species or threatened species or whether it could destroy or adversely modify critical habitat.

For example, if the U.S. Army Corps of Engineers plans to issue a Clean Water Act permit that may affect a listed species or its critical habitat, the corps will consult with the relevant agency to assess whether the project will jeopardize the existence of any endangered or threatened species, or result in the destruction or adverse modification of critical habitat. Such a process can cause significant project delays and potential modifications to a project to avoid impacts to a listed species or its habitat. Developing projects to avoid or mitigate impacts to listed species or critical habitat can be critical to achieving project objectives in a timely manner.

The Agencies Proposals
The agencies propose changes to the procedures for designating critical habitat, including revisions that emphasize species recovery; revisions to the criteria for designating critical habitat; and revised definitions for geographical area occupied by the species, physical or biological features and special management considerations or protection. These changes could enable the agencies to designate as critical habitat areas not occupied or used only infrequently by a species as well as areas outside of a species geographic range.

The agencies also propose to broaden the definition of destruction or adverse modification of critical habitat. Such action could expand the list of activities that result in the destruction or modification critical habitat.
Finally, the agencies propose a new draft policy under which they would exclude an area from critical habitat if the benefits of exclusion outweigh the benefits of critical habitat designation..

Potential Impacts
A short list of the proposals potential impacts includes:
A species intermittent or seasonal use of an area now may be adequate to consider the area occupied and, thus, critical habitat.

The agencies may designate critical habitat based on the potential for physical or biological features to exist in an area.

The agencies may designate critical habitat based on potential impacts from climate change, thus expanding areas not previously considered to be necessary for species recovery.

Physical or biological features necessary to justify critical habitat designation could be fluid or short term in duration, thus expanding areas potentially qualifying as critical habitat.

The proposals give the agencies greater flexibility in designating critical habitat with the potential to expand their oversight role for federal projects. The emphasis and flexibility described in the proposals also suggests that the agencies may focus greater attention on designating habitat needed to support a species recovery.

If finalized, the proposals could have significant economic impacts on Seattle area businesses by expanding the geographic areas designated as critical habitat and lengthening the Section 7 consultation processes to assess the impacts of proposed actions on new critical habitat. These economic impacts will become clearer as the agencies start making critical habitat designations under the rules, if enacted, on a case-by-case basis.

Potentially affected Seattle area businesses include project developers, shipbuilders that own and operate dry docks (including those that have dry docks with rails extending into bodies of water), fishermen, shippers and other businesses conducting port and maritime activities.

The authors are attorneys with the Seattle law firm K&L Gates.