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. http://www.regulations.gov 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.