What is Critical Habitat?
The term “critical habitat” for a threatened or endangered species means: (1) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Endangered Species Act (ESA), on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.
The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. It does not allow government or public access to private lands. The ESA’s implementing regulations provide information on designating critical habitat.
Are species located outside of the designated critical habitat areas still protected?
Yes. An endangered or threatened species is protected regardless of whether it is inside or outside of an area designated as critical habitat. When a species is listed, it is protected from “take” throughout its range and federal agencies must consult with the Service on activities they permit, fund, or carry out that may affect a listed species. “Take” is defined to include harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any of these. When critical habitat is designated, federal agencies are also required to ensure that their activities or ones they permit or authorize will not destroy or adversely modify critical habitat.
What is destruction or adverse modification of critical habitat?
Destruction or adverse modification of designated critical habitat” is defined in our regulations as a “direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of a listed species” (50 CFR 402.02). Such alterations include, but are not limited to, adverse changes to the physical or biological features that were the basis for determining the habitat to be critical. Two federal courts in two separate critical habitat cases have ruled that this definition is invalid. In response to these rulings, the Service is currently reviewing the definition, but has not yet proposed any revision to the regulations. Until new regulations are adopted, we must rely upon the ESA statute itself and the court decisions to determine if an action would alter or affect the proposed critical habitat in the action area to the extent that it would appreciably diminish the habitat’s capability to provide the intended conservation role for these mussels in the wild.
What methods does the Service use to determine which areas to designate as critical habitat?
Service biologists identify the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical and biological features essential to the conservation of the species and which may require special management considerations or protection. We also look at specific areas outside the geographical area occupied by the species at the time it is listed if such areas are determined to be essential for the conservation of the species. These features include, but are not limited to:
- space for individual and population growth and for normal behavior; cover or shelter;
- food, water, air, light, minerals, or other nutritional or physiological requirements;
- sites for nesting and rearing offspring; and
- habitats that are protected from disturbances or are representative of the historic geographical and ecological distributions of a species.
By law, we are required to identify sufficient areas containing these characteristics to ensure the conservation of the species.
Can areas be excluded from critical habitat designation?
Yes. The Endangered Species Act allows for some exclusions, provided that the benefits of the exclusion outweigh the benefits of inclusion, and that the exclusion will not result in the extinction of the species. Exclusions are possible for public and private lands that have secure, long-term conservation plans in place that benefit the species, and for economic (an economic analysis is required for each critical habitat designation) and other relevant reasons.