Timing of Economic Analysis for Critical Habitat Designations
The U.S. Fish and Wildlife Service and National Oceanic Atmospheric Administration's National Marine Fisheries Service (the Services) published a joint rule that simplifies and clarifies the process governing critical habitat designations for endangered and threatened species under the Endangered Species Act (ESA).
This revised regulation requires that the draft economic analysis for proposed designations of critical habitat be made available for public review and comment concurrent with the publication of the proposed critical habitat designation. The revised regulation also codified the Services' standard practice, in most cases, of using an "incremental approach" for assessing the probable impacts of proposed critical habitat designations and the weighing the benefits of including or excluding particular areas from the designations. By this method, the impacts of adding or excluding areas of critical habitat are analyzed separate from all other protections for that species under the ESA.
This regulatory change was first outlined in a Presidential Memorandum seeking to improve transparency and public comment by providing the public access to both the scientific analysis and the draft economic analysis of a proposed critical habitat designation at the same time. It is also consistent with Executive Order 13563, which calls for a retrospective analysis of existing rules to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.