November 29, 2022

ESA: Definition of Destruction or Adverse Modification of Critical Habitat

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SUMMARY: The U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS), collectively referred to as the 
``Services'' or ``we,'' revise a regulatory definition that is
integral to our implementation of the Endangered Species Act of 1973, 
as amended (Act or ESA). The Act requires Federal agencies, in 
consultation with and with the assistance of the Services, to insure 
that their actions are not likely to jeopardize the continued existence 
of endangered or threatened species or result in the destruction or 
adverse modification of critical habitat of such species. On May 12, 
2014, we proposed to revise the definition for ``destruction or adverse 
modification'' in our regulations as this definition had been found to 
be invalid by two circuit courts. In response to public comments 
received on our proposed rule, we have made minor revisions to the 
definition. This rule responds to section 6 of Executive Order 13563 
(January 18, 2011), which directs agencies to analyze their existing 
regulations and, among other things, modify or streamline them in 
accordance with what has been learned.

FINAL RULE: Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat

Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act