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Critical Habitat Designation and the Prohibition of Destruction and Adverse Modification of Critical Habitat

Donald Baur, Norman D. James, Endangered Species Act: Current and Emerging Issues Affecting Resource Development

One of the most controversial aspects of the Endangered Species Act (“ESA”)1 is the designation of critical habitat for species that have been listed as endangered or threatened. The agencies that administer the ESA, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (jointly called the “Services” below), must designate a species' critical habitat at the time a species is listed “to the maximum extent prudent and determinable.”2 Critical habitat normally should be occupied by members of the species, and consist of specific areas that contain “physical and biological features” which are “essential to the conservation of the species” and “require special management considerations or protection.”3 Specific areas that are not occupied may be designated as critical habitat “upon a determination by the Secretary that such areas are essential to the conservation of the species.”4

Once designated, critical habitat may have significant impacts on land and resource uses as a result of the Section 7 consultation process. Section 7(a)(2) of the ESA requires federal agencies to ensure that “any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such speci