The Biden administration has rescinded another Trump administration rule regarding the Endangered Species Act (ESA), this time repealing a regulation that made it easier to reduce critical habitat designations.
The decision, published July 21, came as a result of President Joe Biden’s January 2021 executive order to require all agencies to review rules and actions made under the Trump administration. This ruling is the second of five planned rulings to review regulations relating to the ESA.
The ag industry broadly supported the Trump-era critical habitat exclusion rule, as it helped decrease “long, drawn-out, speculative analyses that delay important conservation work for imperiled species,” as Kaitlynn Glover, executive director of the Public Lands Council and National Cattlemen’s Beef Association Natural Resources, previously said.
Under the ESA, critical habitat is considered essential for the conservation of a species. The law allows the exclusion of areas if “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat,” unless it “will result in the extinction of the species concerned.”
The Trump administration’s 2020 rule made it so “other relevant impacts” could be considered, including economic factors, public health and safety, risk of wildfires, or pest and invasive species management. The rule also narrowed down the definition of “foreseeable future,” which limited how climate change could be included in determining how a species could be protected.
Former U.S. Fish and Wildlife Service (USFWS) Director Aurelia Skipwith said at the time that the regulations would improve consistency and predictability for stakeholders and “stimulate more effective conservation on the ground.”
An example of the Trump-era rule in effect was the administration reducing the critical habitat for the northern spotted owl from 9.6 million acres to 6.1 million acres.
In the July final rule listed in the Federal Register, USFWS said it determined the Trump-era rule was problematic for three main reasons:
• It limited or undermined USFWS’ role as the expert agency.
• It decreased the agency’s ability to further the conservation of endangered and threatened species through designation of their critical habitats.
• It did not further the goal of providing clarity and transparency and instead created confusion.
“This rule will allow our biologists to ensure critical habitat designations contribute to the conservation of ESA-listed species,” said USFWS Director Martha Williams in a statement. “Today’s action helps the Service implement the ESA in ways that support sound science and citizen participation.”
The agency noted that the rescission is not intended to require any previously finalized critical habitat designations or exclusions to be reevaluated.
Conservation groups celebrated the rule’s reversal.
“Under Trump’s rule, a landowner could have ludicrously claimed they planned to build the next Taj Mahal or Disneyland on their property to avoid it being protected as critical habitat,” said Noah Greenwald, endangered species director at the Center for Biological Diversity.
“I’m grateful this rule was repealed and that some semblance of common sense has been restored to protecting essential habitat for our endangered plants and animals.”
The Center for Biological Diversity filed a petition in early March to urge the Biden administration to not only undo the Trump administration’s rollbacks to the ESA, but to enforce stronger regulations.
USFWS proposed to rescind the Trump-era rule in October 2021 and solicited public comments through December. The final rule goes into effect Aug. 22. — Anna Miller, WLJ managing editor
