Agencies propose changes to regulations for designating critical habitat

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service routinely designate critical habitat for species federally listed as threatened or endangered. Critical habitat is considered by the agencies to be necessary for the species’ recovery, and its designation requires the agencies to identify geographic areas where they will implement conservation programs and use their authorities. When designating critical habitat, the Services conduct an economic impact analysis to inform the Secretary of Interior’s decision about whether and/or how to consider excluding any particular area from designation of critical habitat.

Recently, the Services proposed revisions to agency regulations to clarify that the economic analysis must be completed and made available for public comment at the time a proposed rule to designate critical habitat is published. The revisions also would require the Services to describe and evaluate in the Federal Register notice any significant activities that are known to have the potential to affect an area considered for designation as critical habitat or to be likely to be affected by the designation. The proposed rule appears in the August 24, 2012 issue of the Federal Register (77 FR 51503).

The law firm Stoel Rives, LLP has posted a synopsis of the proposed rule on its website ( The rule would allow the Services to consider only the incremental economic effects of critical habitat designation (as opposed to the total economic effects of designation regardless of whether those effects have multiple causes). The rule would also give the Services “wide discretion” when determining whether to exclude areas from designated critical habitat on the basis of economic impacts.