Legal Alerts Sep 10, 2020

Critical Habitat Designation Regulation Change Proposed

U.S. Fish and Wildlife Services Proposes New Rule Regarding Exclusion of Lands from Critical Habitat for Federally Listed Species

Critical Habitat Designation Regulation Change Proposed

A proposed new rule under the Federal Endangered Species Act will significantly change the way the U.S. Fish and Wildlife Service applies its authority in determining critical habitat designations. The FWS published the proposed new rule on Tuesday. The agency is accepting public comments on it through Oct. 8.
If adopted, the new rule would change how FWS determines whether particular areas are excluded from critical habitat based upon economic and other relevant impacts of a proposed designation. Among other changes, the proposed rule provides a more expansive definition of the types of probable economic impacts that will be reviewed by FWS during the critical habitat designation process, and requires a more robust consideration of local government, public health and safety, and community interests during the review. The rule also establishes as a principle that FWS “will exclude areas whenever it determines that the benefits of exclusion outweigh the benefits of inclusion, as long as exclusion will not result in the extinction of the species.”
Two federal departments primarily administer FESA: the Secretary of the Interior acting through FWS, and the Secretary of Commerce acting through the National Marine Fisheries Service. The NMFS regulates marine and anadromous (e.g., salmon) species that are listed as endangered or threatened, and FWS regulates other listed species including terrestrial species. The proposed rule relates exclusively to FWS and the species it regulates.
In broad terms, FESA prohibits public or private entities or individuals from “taking” a listed species without authorization. The take prohibition is not limited to killing a listed species, but also includes injuring, collecting and a host of other prohibited actions. In addition, “Section 7” of FESA requires federal agencies taking a discretionary federal action — whether considering building a hotel in a national park, providing federal funding to a regional highway project or issuing a federal permit to a public or private developer — to consult with FWS about whether the proposed federal action is likely to jeopardize the continued existence of a listed species, or destroy or adversely modify designated critical habitat.
Designating Critical Habitat
At the time a species is listed as endangered or threatened, FWS is also directed under FESA to designate such species’ critical habitat. Under the statutory language of FESA (Section 4(b)(2)):
“The Secretary [of the Interior] shall designate critical habitat, and make revisions thereto, . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”
In turn, FESA defines “critical habitat” as
(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . , 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
(ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . , upon a determination by the Secretary that such areas are essential for the conservation of the species.
Proposed Rule
The proposed rule is intended to clarify how the critical habitat “exclusion analysis” described in FESA section 4(b)(2) will be applied by adding a new rule to the FWS FESA regulations. In brief, under the proposed new rule (50 CFR section 17.90):

  • FWS proposals to designate critical habitat for particular listed species will expressly identify areas that FWS has reason to consider for exclusion. Today, FWS does not always propose in advance areas for exclusion. Including potential exclusion areas will provide the public an opportunity to comment on those areas.
  • While FWS will retain discretion not to undertake exclusion analyses in some circumstances, any final rule designating critical habitat for such species will need to explain how and why that determination was made.
  • The term “economic impacts” is broadened to specifically include the economy of a particular area, productivity, jobs and opportunity costs of the proposal.
  • Impacts to local governments, tribes, states, public health and safety, communities, and the environment (such as increased risk of wildfire) are also specifically included in the term “other relevant impact.” As an example, the proposed rule explains that impacts to public works projects, such as schools and hospitals in the planning stages in areas proposed for critical habitat, should be specifically considered.
  • FWS will affirmatively conduct an exclusion analysis when the proponent of excluding a particular area from critical habitat has presented “credible information” regarding the existence of a meaningful economic or other relevant impact. 
  • When preparing an exclusion analysis, and then determining whether particular areas should be excluded from finally designated critical habitat, the Secretary is to defer to those with expertise or first-hand knowledge of specific impacts, unless FWS has knowledge or material information to rebut such expert or first-hand information. In addition, weight will be assigned to each impact when an exclusion analysis is undertaken to determine whether the benefits of exclusion outweigh the benefits of inclusion of particular areas in finally designated critical habitat.
  • “Nonbiological impacts” identified by local government, states or tribes, as well as impacts to national defense, are to be duly considered and weighed in relation to the conservation value of the lands proposed to be excluded. In fact, the explanatory section of the rule states that deference should be given to impact information received from local and state government, unless FWS has evidence to the contrary. 
  • Designating critical habitat in areas already covered by approved habitat conservation plans, conservation agreements or other species protective partnerships appears to be discouraged, so long as the applicable plan is in good standing and other criteria are met.
  • FWS’ policy of generally not designating critical habitat on federal lands is reversed. 
  • Impacts to public and private entities holding permits to conduct activities on federal lands will also be duly considered as part of exclusion analyses

The new proposed rule follows on the heels of a separate FESA rule proposed in early August to establish a regulatory definition of the term “habitat” as used when designating critical habitat.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

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