Critical Habitat and the Endangered Species Act: Newly Enacted Regulations Threaten to Expand the Government’s Role and Discretion in the Permitting Process

In the summer of 2014, we reported on the U.S. Fish and Wildlife Service’s and the National Marine Fisheries Service’s (collectively, the “Services”) proposed changes to regulations implementing the Endangered Species Act (“ESA”).  As we indicated then, the proposals had the potential to expand the need to consult with the Services under the ESA, thereby making it possibly more difficult, time-consuming, and expensive to obtain permits from federal agencies such as the U.S. Army Corps of Engineers.  Among the proposed changes was an amendment to the definition of “destruction or adverse modification” of critical habit.

Not quite two years later, on February 11, 2016, the Services issued a final rule adopting a new definition of “destruction or adverse modification” under the ESA.  The new rule takes effect on March 14, 2016.  According to the Services, it should not alter the ESA consultation process and does not require the reevaluation of “previously completed biological opinions.”  As we foreshadowed in summer 2014, however, the new rule could impact the amount and substantive results of future consultations with the Services.

Read the full alert on K&L Gates HUB


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