On February 5, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) announced the availability of two final rules and one policy addressing critical habitat under the Endangered Species Act (ESA). One of the final rules revises the definition of “destruction or adverse modification,” an issue that has been controversial among both critics and proponents of the proposed revisions. The other final rule is intended to clarify the criteria for designating critical habitat. The final policy updates existing policy on critical habitat exclusions under ESA section 4(b)(2). Nossaman attorneys have been closely following these critical habitat rules and policy since the Services announced the proposed rules and policy on May 12, 2014. The Summer 2015 edition of the American Bar Association’s Natural Resources and Environment publication features two Nossaman articles analyzing the proposed regulations and policy and their potentially significant impacts on the regulated community. The Federal Register will provide the official publication of the final rules and policy in the coming days.
