• Jennifer Heywood

Comment Period Closes on Services’ Joint Critical Habitat Proposal

The U.S. Fish and Wildlife Service and the National Oceanic Atmospheric Administration’s (NOAA) Fisheries Service (collectively, the “Services”), the two Federal agencies responsible for administering the Endangered Species Act (ESA), are jointly proposing changes to the way in which impact analyses are conducted for designations of critical habitat under the ESA. The comment period closed October 23, 2012. The changes would require draft economic analyses of proposed designations of critical habitat to be made available for public comment concurrent with the publication of the proposed designation of critical habitat. Citing Arizona Cattle Growers Ass’n v. Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010), the Services have also proposed to formalize the so-called “incremental” or “baseline” approach to analyzing the economic impact of critical habitat, which looks only at the additional impact imposed by critical habitat designations over and above the impact of listing a species in the first place. Historically, the incremental approach has led the Services to conclude that there was virtually no real impact from designating critical habitat. See New Mexico Cattle Growers Ass’n v. FWS, 248 F.3d 1277 (10th Cir. 2001) (invalidating the approach). In addition, the Services propose to quantify impacts qualitatively or quantitatively, “without any absolute requirement that impacts of any kind be quantified.” On balance, the proposed rules would appear to render economic analyses associated with critical habitat designations a mere formality. It is likely the incremental impacts method will underestimate and minimize the true economic impacts of a designation. One or more challenges to the rule are likely.

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