On Aug. 23, the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), the two federal agencies responsible for the Endangered Species Act (ESA) issued a final rule that requires draft economic impact analyses to be issued along with proposed critical habitat designations for endangered species. The rule will take effect on Oct. 30 and is expected to make it easier for developers, natural resource companies, farmers and other interested parties to evaluate the merits or potential problems of proposed designations. Critical habitat designations can have substantial impacts on developers, farmers and other industries.
The controversial part of the rule is how to calculate the economic impacts -- as incremental additions to existing, overlapping critical habitat designations or as impacts calculated on the basis of a designation's own potential separate from the potential of other designations. The agencies decided upon the incremental approach which can result in a much smaller estimated impact than a stand-alone impact calculation might produce.
The agencies said their choice of the incremental approach was the only logical way to implement the ESA. They claim that other critical habitat designations were part of the baseline conditions that must be used in comparison to the estimated impacts of a new proposed habitat designation.
The agencies also argue that the Secretaries of the Interior and Commerce Depts. are the final arbiters of the decisions of FWS and NMFS. They have the discretion to decide whether to exclude some areas from critical habitat for economic reasons. However, if economic benefits of excluding an area from a critical benefit are greater than the costs, the secretary is not mandated to make a decision on the basis of those considerations, but rather on the survival of the endangered species.
The final rule on draft impact analyses for critical habitat designations, as prepared for publication, is available at http://1.usa.gov/18gfUHB.
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