ESA Law Update: U.S. Fish and Wildlife Service and NMFS Extend Comment Period on Critical Habitat Regulations

On June 20, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“Services”), the two federal agencies responsible for administering the Endangered Species Act (“ESA”), have announced that they will extend the comment period on two proposed rules (50 CFR Part 402 and 50 CFR Part 424) and a proposed policy related to designating critical habitat and consulting on the effects of federal actions on critical habitat. The Services will extend the current July 11th deadline to October 9, 2014.

The Services propose a new rule for the definition of “adverse modification” and propose to amend several existing regulations governing critical habitat designations that would substantially expand the Services’ discretion to designate critical habitat. The draft policy issued concurrently with the two proposed regulations addresses the Services’ policy with respect to exclusions from critical habitat under Section 4(b)(2) of the ESA (see our May 15, 2014 legal update).

The Services extended the 60-day comment period in response to numerous extension requests, including a letter from over 40 members of Congress and a letter from four Senators who serve as the Ranking Members of the Senate Committees and Subcommittees with jurisdiction over the ESA. Congressional Members wrote: “As written, these rules could dramatically increase the amount of private and public lands designated for habitat, which in turn could result in blocking or slowing down an array of agricultural, grazing, energy transmission and production, transportation, and other activities on the more than 680 current habitat designations and hundreds more slated to be finalized in the next few years.”

Senators echoed these concerns writing that: “the three proposals issued in May are extremely complex. * * *[t]hese three proposal will have far-reaching consequences that will affect a variety of land users because they have the potential to fundamentally shift the requirements for designating critical habitat.” The Senators further explain that [t]he substantial impact is particularly assured given the decision by the FWS to enter into settlement agreements that require listing determinations on more than 250 species nationwide.”

Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on critical habitat issues. We encourage you to review the Services’ proposals and if you have any questions about the issues raised in this alert, please contact a key contributor.