Comment Period Extended on Expansion of Critical Habitat Rules


The Fish and Wildlife Service and National Oceanic and Atmospheric Administration announced last week that they are extending the deadline for comments on new critical habitat rules from July 11 to October 9, 2014. The proposed rules were announced in May. 79 FR 27060 (May 12, 2014). The agencies propose a revision of the term “destruction or adverse modification,” extending it to both occupied and unoccupied habitat areas necessary for “conservation” of the species. The agencies observed that “conservation” includes both survival and recovery, and that inclusion of unoccupied habitat was consistent with federal court ruling in several cases. However, for purposes of listing a species, the agencies have just published notice of a final binding policy statement on the interpretation of the term “significant portion of its range” – a key element of the Endangered Species Act – limiting “range” to areas actually occupied by the species. at Docket Number FWS-R9-ES-2001-0031.

The agencies also published a draft policy outlining their criteria for exclusion of areas from a critical habitat designation. While the criteria emphasize exclusion on the basis that the area is already included within an existing Habitat Conservation Plan, the agencies take great care to emphasize that any exclusion is wholly discretionary by the agency.

It can be expected that the new critical habitat regulations, if finalized, will result in an expansion of areas included within critical habitat. The agency will likely use its discretion to exclude areas from critical habitat designations as leverage in negotiating provisions of habitat conservation plans.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:


Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.