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Bullet policy · Sep 14, 2020

USFWS Proposes Revisions to Critical Habitat Designations

The U.S. Fish and Wildlife Service (USFWS) has issued a new proposed rule that would modify the process of designating critical habitats under the Endangered Species Act (ESA). If finalized, the new regulation could potentially shrink critical habitats, which are areas essential for recovery of a species.

Under ESA, critical habitats are to be designated “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact.” The law allows exclusion of certain areas if “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless the exclusion “will result in the extinction of the species concerned.”

With the proposed regulation, USFWS intends to clearly lay out when and how it will undertake an analysis of whether to exclude certain lands from critical habitat. This includes identifying a “non-exhaustive list of categories of potential impacts” for USFWS to consider. Among the categories of “other relevant impacts” that may be considered, the proposed rule includes public health and safety; community interests; and the environment, such as increased risk of wildfire or pest and invasive species management. According to USFWS, the “benefits of exclusion may include avoidance of additional permitting requirements, time delays, or additional cost requirements to the community development project…due to the designation of critical habitat.”

The new proposal could also make it easier to keep federal lands out of future critical habitat designations: “We will now consider whether to exclude … Federal lands on which non-Federal entities have a permit, lease, contract or other authorization for use where the benefits of exclusion outweigh the benefits of inclusion, so long as the exclusion of a particular area does not cause extinction of a species.”

USFWS Director Aurelia Skipwith explained that the the proposed rule “would provide greater transparency for the public, improve consistency and predictability for stakeholders affected by ESA determinations and stimulate more effective conservation on the ground.”

The proposed rule has received swift criticism from conservation groups. According to E&E News, Jamie Rappaport Clark, President and CEO of Defenders of Wildlife, said that the new proposal “puts a heavy thumb on the scale in favor of developers and industry, making it even easier to exclude areas from designation as critical habitat.” Ya-Wei Li, Director for Biodiversity at the Environmental Policy Innovation Center, stated that the proposal “does increase the likelihood that FWS will exclude an area from critical habitat.”

USFWS is inviting public comments on the proposed rule until October 8, 2020.

This is the latest effort by the Trump Administration to reconfigure how the ESA is enforced. In August 2019, the Administration finalized significant changes to the regulations that implement the ESA by making it easier for regulators to delist species from the endangered species list and remove automatic protections for threatened species.