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Determining the Conservation Value of Habitat: Modern Challenges Under the Endangered Species Act

April 2015

Citation: ELR 10265

Author: Lawrence R. Liebesman, Angela Somma, Sean Skaggs, and Jason Rylander

More than one decade after two circuit courts struck down the regulatory definition of “adverse modification” of critical habitat, two agencies, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, are now proposing a comprehensive package of changes to the Endangered Species Act (ESA). In May 2014, the Services proposed two rules and one new policy regarding the ESA. The first rule redefines “adverse modification” to place additional emphasis on species recovery after being listed as endangered. The second rule contains numerous clarifications of the scope of critical habitat in terms of the species’ geographical range. The proposed policy deals with exclusions from critical habitat designations, specifying that the government will consider issues such as national security and economic impact when deciding whether to include land in designations; in addition, the policy includes a benefits analysis. On October 7, 2014, the Environmental Law Institute hosted a seminar to address issues raised by these proposed rules and new policy. Here, ELR presents a transcript of the event, which has been edited for style, clarity, and space considerations.

Lawrence R. “Larry” Liebesman (moderator) is Partner at Holland & Knight, Adjunct Professor at George Washington University Law School, and co-author of ELI’s Endangered Species Act Deskbook. Angela Somma is Director of the Endangered Species Division at the National Marine Fisheries Service. Sean Skaggs is Partner at Ebbin Moser + Skaggs, and former Attorney and Policy Advisor with the U.S. Department of the Interior. Jason Rylander is Senior Staff Attorney at Defenders of Wildlife.

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