Once a species is listed under the Endangered Species Act, NOAA Fisheries evaluates and identifies whether any areas meet the definition of critical habitat. Those areas may be designated as critical habitat through a rulemaking process.
Critical habitat is habitat needed to support recovery of listed species. When a species is listed under the Endangered Species Act, NOAA Fisheries is required to determine whether there are areas that meet the definition of critical habitat. Once critical habitat is designated, other federal agencies consult with NOAA Fisheries to ensure actions they fund, authorize, or undertake are not likely to destroy or adversely modify the critical habitat.
Definition of Critical Habitat
Critical habitat is defined as:
Specific areas within the geographical area occupied by the species at the time of listing that contain physical or biological features essential to conservation of the species and that may require special management considerations or protection; and
Specific areas outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation.
Critical Habitat Designation Process
We are required to designate critical habitat based on the best available scientific data. We must also consider the economic, national security, and other relevant impacts of specifying a particular area as critical habitat. Areas owned or controlled by the U.S. Department of Defense are exempt from a critical habitat designation if we determine that a signed Integrated Natural Resources Management Plan provides a benefit to the species—these plans are required under the Sikes Act. Critical habitat cannot be designated within foreign countries or in other areas outside of U.S. jurisdiction.
Under the Endangered Species Act, critical habitat designations are to be finalized at the same time that we issue the final listing rule for a species, unless a critical habitat designation is not prudent for the species, or it is not yet determinable. In cases where critical habitat is not determinable at the time the species is listed, we may extend the deadline for designating critical habitat by one additional year.
As with listing rules, the public is asked to comment on proposed critical habitat designations and provide relevant information. We also seek comments from other concerned government agencies, the scientific community, and industries. The analyses supporting critical habitat designations are based on the best scientific data available and undergo independent peer review. We consider both public and peer-reviewer comments before publishing final critical habitat designations.
Critical Habitat Requirements
Once critical habitat is designated, federal agencies must consult with us to ensure that any activities they authorize, fund, or carry out are not likely to destroy or adversely modify the critical habitat.
Critical habitat requirements do not apply to citizens engaged in activities on private land that do not involve a federal agency (for example, a private landowner undertaking a project that involves no federal funding or permitting). The designation of critical habitat does not affect land ownership or establish a refuge, wilderness reserve, preserve, or other special conservation area. Critical habitat designations also do not mandate government or public access to private lands.
Critical Habitat Revision Process
Over time, critical habitat for a species may need to be revised based on new information that has become available since the publication of the critical habitat designation. This revision process can occur in one of two ways under the ESA:
1. We receive a petition from a person or organization requesting that we revise a species’ critical habitat (View current petitions for critical habitat revisions). Please see Public Advisory: Information to Consider When Submitting a Petition Under the Endangered Species Act (PDF, 7 pages) for more information about submitting a petition, corresponding to the recent ESA petition regulations revision.
2. We voluntarily choose to examine whether it is warranted to revise the critical habitat for a species.
This diagram shows the general steps we take to evaluate a petition to revise critical habitat for an ESA-listed species.
After receiving a petition to revise critical habitat, we must publish a finding within 90 days (to the maximum extent practicable) that states our decision about whether to accept the petition.
- If we find that the petition does not present substantial information that the petitioned action may be warranted, we publish a “negative" 90-day finding denying the petition in a Federal Register notice.
- If we find that the petition does present substantial information indicating that the petitioned action may be warranted, we publish a "positive" 90-day finding in the Federal Register. This is also an opportunity for the public to submit relevant scientific and commercial information.
Within 1 year of the petition date, if—after reviewing the best scientific data available—we determine that a revision to the species’ critical habitat is:
Not warranted, we publish a negative 12-month finding in the Federal Register, explaining that a critical habitat revision is not warranted.
- If warranted, we publish a postitive 12-month finding in the Federal Register and announce how we intend to proceed with the requested critical habitat revision. The positive 12-month finding can be combined with a proposed rule; however, if more time is needed to determine the proposed critical habitat, we publish a subsequent proposed rule in the Federal Register. We solicit comments from the public and hold public hearings if requested.
After publishing a proposed rule to revise a species’ critical habitat, we consider the public comments received and any new data that may have become available to make a final decision. We may also withdraw the proposed rule if we find there is insufficient evidence to justify the proposed action.
The final rule is published in the Federal Register generally within one year of the date of the proposed rule (this period may be extended under certain circumstances).
When we voluntarily choose to examine whether a revision to a species’ critical habitat is warranted, many of the steps are similar to the petition process described above; however, we are not bound by the statutory deadlines associated with the petition process (specifically the 90-day finding and 12-month finding steps). The following diagram shows the general steps we take for a self-initiated action.
Code of Federal Regulations: Title 50 - Wildlife and Fisheries
- Part 226 - Designated Critical Habitat
- Part 424 - Listing Endangered and Threatened Species and Designating Critical Habitat
Additional Rules and Policies
- Procedures and Criteria for Designating Critical Habitat (FR notice)
- Definition of "Destruction or Adverse Modification" of Critical Habitat (FR notice)
- Critical Habitat Exclusions Under Section 4(b)(2) of the Endangered Species Act (FR notice)
- 2008 Final Regulatory Flexibility Analysis
- 2005 Final Regulatory Flexibility Analysis