Endangered Species Law & Policy

In two recent actions, President Obama and the Fish and Wildlife Service have signaled what may be an important shift in the Obama Administration’s position on the designation of critical habitat for endangered and threatened species. On February 28, 2012, the President issued a memorandum (pdf) directing the Interior Department to propose modifying the Department’s approach to the evaluation of the economic impacts of critical habitat. The President directed the Interior Department to propose revisions to its regulations to allow the simultaneous consideration of scientific, economic and other considerations in the designation of critical habitat.

The President issued the memorandum in conjunction with the proposed designation of ten million acres in California, Oregon and Washington as critical habitat for the northern spotted owl – nearly double the critical habitat for the spotted owl designated during the administration of President George W. Bush. The President directed the Interior Department to give careful consideration to providing the maximum exclusion of lands from the final spotted owl critical habitat, and adopt the least burdensome means . . . of promoting compliance" with the Endangered Species Act.

The President’s memorandum comes on the heels of a recent critical habitat designation, which we discussed here, for the spikedace and loach minnow -- two endangered fish in Arizona and New Mexico.  The Fish and Wildlife Service exercised its authority under the Endangered Species Act to exclude from the designation of critical habitat several stream segments subject to a management plan adopted by a mining company. This decision is in sharp contrast to other recent critical habitat decisions in which the Fish and Wildlife Service declined to exclude areas in approved habitat conservation plans from the designation of critical habitat.