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 thes
