Earlier this morning, the Obama Administration proposed two new rules which would significantly expand the scope of the Endangered Species Act and, therefore, limit development in areas where endangered and threatened species are – or might eventually be – found.  The new rules relate to one of the two main restrictions found in the ESA – that federal actions cannot adversely affect habitat critical to listed species.

Most people familiar with the ESA know that, once a species is listed, there is an absolute prohibition on killing, harming, and harassing individual members of the species.  But less well known is a restriction which applies only to federal agencies, requiring them to consult with the Fish and Wildlife Service or National Marine Fisheries Service and get FWS or NMFS confirmation that the federal action will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat of the species.  This requires consultation for most federal permits and approvals.

This provision is less well-known in large part because designating critical habitat was not mandated in the original ESA and, until more recent years, FWS and NMFS took the position that designating critical habitat was essentially a waste of time – that it didn’t add anything more to the protection of listed species than listing them did.

But the agencies now routinely designate critical habitat, although several significant questions remain, including several at the heart of the proposed regulations.  These include exactly what habitat is “critical” and what constitutes an “adverse modification” of that habitat?  Under the proposed rules, the agencies would both expand the definition of lands that can be identified as critical and make it more difficult to develop those lands without the development being considered “adverse.”

As to what lands are “critical,” the rules for the first time would allow the designation of lands never occupied by species and without the features needed for the species to recover.  Under the proposed rule, the agencies could designate these unoccupied, featureless areas if they believe the critical features will develop over time.  They specifically cite global warming in their rationale, stating that global warming may cause critical features to develop in currently unoccupied, featureless areas.

The agencies also propose to remove existing regulatory language that limits the designation of critical habitat.  Presently, only areas currently occupied by the species can be designated as critical habitat unless the currently occupied areas are insufficient for the recovery of the species.  The agencies propose to remove this limitation, describing it as “unnecessary and unintentionally limiting.”

As to what constitutes “adverse modification,” the agencies currently analyze whether, after the federal action, the critical habitat will remain functional to serve its intended role in the recovery of the species.  Under the proposed rule, the agencies will instead look at whether the action will “appreciably diminish” the conservation value of the critical habitat, examining factors such as whether recovery of the species will be delayed, less likely, or more difficult.  This appears to be a significantly more stringent standard, since almost any impact to a habitat feature necessary for the recovery of a species is likely to delay recovery or make its recovery more difficult.

The agencies have proposed several other significant changes, but almost as important, though, is how the proposed changes will interact with other changes recently proposed by the Administration.  For example, in our recent nine-part blog, we examined the Administration’s efforts to expand the scope of the Clean Water Act.  If successful, that effort will require U.S. Army Corps of Engineers wetland permits for a greater number of development projects.  More Corps involvement in turn means more need for the Corps to consult with FWS and NMFS and more opportunity for these more stringent ESA rules to stop project development.  Each regulatory expansion is therefore compounded, making the sum total even more restrictive than might seem on the surface.