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November 23, 2012
Comment period extended on ESA proposal

Under pressure from Congress, the federal agencies in charge of implementing the Endangered Species Act (ESA) have extended the comment period on an August 24, 2012, proposal to require the release of the government’s draft economic statement simultaneously with any proposed rule to designate critical habitat for an ESA-listed species.   According to the agencies, the proposed change will make for a more certain and efficient rulemaking process without imposing additional burdens on the American people or costs on the government.  As requested by Rep. Doc Hastings (R-WA), chair of the House Committee on Natural Resources, the comment period for the proposal has been extended by 90 days to February 6, 2013.  

The ESA is jointly implemented by the Department of Interior’s Fish and Wildlife Service (FWS) and the Department of Commerce’s National Marine Fisheries Service (NMFS).  Generally, the FWS manages land and freshwater species, and the NMFS manages marine and anadromous species. (“Anadromous” refers to a fish that lives in the sea and breeds in freshwater.)  The proposal was written by the FWS in consultation with the NMFS.  In the ESA context, the two agencies are collectively called the Services.

Presidential memo

The proposed revision responded to a February 28, 2012, presidential memorandum, which directed the Services to take prompt steps to revise regulations with regard to the timing of economic impact analyses for critical habitat designations.

According to the FWS, the revision will provide the public a complete view of the rulemaking process as it relates to designation of critical habitat.  Current practice allows for a second public comment period on a proposed designation of critical habitat when the draft economic analysis is made available after the designation of critical habitat is published. When finalized, the new process would not provide for a second comment period, as the draft economic analysis would be available when the proposed rule is published.  The change would reduce the public comment period on the proposed rule from a current total of 90 days to 60 days. The Services will still be required under the ESA to finalize a designation of critical habitat within 1 year of proposal.  Both agencies would be required to follow the same process.

Significant action

Hastings has been critical of the Services for basing the 14-million-acre critical habitat designation for the northern spotted owl on an “inadequate economic analysis.”  In a letter to the Services, Hastings expressed dismay that there would be only 60 days to comment on a critical habitat rule change of “this significance.” 

“More time is needed to review and provide proper comments to this major policy change,” wrote Hastings, “which, with the stroke of a pen, could impact literally all areas of the country affected by the hundreds of species for which FWS has agreed via court settlement to make listing and critical habitat designations.”

Incremental analysis

The proposal also clarifies the authority of the Secretary of the Interior to designate protected areas based on an incremental analysis (i.e., comparing the impact on a species with and without the designation of critical habitat) and not totally on an economic analysis.  The proposal points out that the ESA authorizes the secretary to consider “probable economic, national security, and other relevant impacts” when making designations or exclusions from designations.  “[ESA] does not specify when in the rulemaking process [this consideration] must occur,” state the Services.  “That being said, we stress that the Act’s legislative history is clear that Congress intended consideration of economic impacts to neither affect nor delay the listing of species.”

The Services extension of the comment period for the proposed revision to the ESA impact analysis regulations was published in the November 8, 2012, FR

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