Shortly after making rollbacks to the Endangered Species Act (ESA), the Trump administration has proposed another change to the law. The U.S. Fish and Wildlife Service (USFWS) has posted in the Federal Register a proposed rule to amend the ESA to allow the agency to exclude certain areas when designating critical habitat.
“The proposed rulemaking would respond to applicable Supreme Court case law, reflect agency experience, codify some current agency practices, and make some modifications to current agency practice,” USFWS wrote in the Federal Register. “The intended effect of this proposed rule is to provide greater transparency and certainty for the public and stakeholders.”
The change comes after a recent proposed rule to the definition of “habitat” under the ESA.
“Improving how we apply this important tool will result in better conservation outcomes and provide more transparency for countless stakeholders such as private landowners, industry, and states,” USFWS Assistant Secretary Rob Wallace had said.
USFWS said the purpose of critical habitat is to identify the areas that are essential to a species’ conservation and recovery. After listing a species, the agency must designate critical habitat after taking into consideration the economic impact, impact on national security, and any other relevant impact.
Amending Section 4(b)(2) of the ESA will give the Secretary of the Interior the authority to exclude any area from a critical habitat designation if the “benefits of exclusion outweigh the benefits of inclusion for that area, so long as excluding it will not result in the extinction of the species.”
According to USFWS, nothing in the proposed regulations is intended to require any proposed rules published prior to the effective date of any final regulation or any previously finalized critical habitat designations be reevaluated on the basis of final regulations.
Industry reactions
Public Lands Council (PLC), National Cattlemen’s Beef Association and American Sheep Industry Association recently submitted comments regarding the rule to change the definition of “habitat.” The organizations stressed the importance of relying on “scientific guidance to describe ecosystem attributes that do not result in additional regulatory burden under the Act.”
This includes creating clear parameters for the implications of “habitat” and “critical habitat.”
The organizations also said habitat needs to be a current persistent state, and not assessed as what it was or what it could be.
“These ongoing management activities [such as fuels management treatments or controlling invasive species] must be recognized as part of the current conditions that allow ‘habitat’ to exist, and any activity or regulatory conclusions following from a ‘habitat’ identification should not rescind, discourage, or disincentivize the ability of good land managers to persist in their management activities,” the groups concluded.
In response to the most recent proposal, PLC noted the proposal applies a new framework for when exclusionary analysis will occur; and creates a process for exclusions to be applied on federal land.
The process for federal land is a reversal of a 2016 policy in which the agency did not typically exclude federal lands from designations of critical habitats. The new rule recognizes critical habitat designations have requirements for agencies to carry out that are separate and distinct from underlying land management requirements, as well as the fact land managers and land users have costs that should be factored into consideration.
Environmental groups have voiced their opposition to the proposed rule.
“Today’s proposed change would make habitat exclusions much more likely by requiring the Service to ‘assign weight’ to industry claims of economic impacts, which can be highly speculative,” the Center for Biological Diversity said in a released statement.
“Wildlife simply can’t survive or recover if they have no place to live, but that’s exactly what will happen if the Trump administration succeeds in turning over the critical habitat designation process to industry,” said Noah Greenwald, CBD endangered species program director.
Comments for the proposed rule are being accepted until Oct. 8 and can be submitted at regulations.gov by searching for Docket ID FWS-HQ-ES-2019-0115, or by mail to Public Comments Processing, Attn: FWS-HQ-ES-2019-0115; U.S. Fish and Wildlife Service, MS:JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
All comments will be posted digitally, including any personal information included. — Anna Miller, WLJ editor
