The Biden administration has officially withdrawn the Trump administration’s regulatory definition of “habitat” under the Endangered Species Act (ESA). The rule narrowed down the definition of what could be considered habitat for an endangered species.
By rescinding the definition, the U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) will be able to protect “critical habitat” even if it is no longer suitable for a species but could be restored in the future.
“Today’s action will bring implementation of the Act back into alignment with its original purpose and intent and ensures that species recovery is guided by transparent science-based policies and conservation actions that preserve America’s biological heritage for future generations,” said Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz in a statement.
The definition withdrawal comes after President Joe Biden’s Jan. 20, 2021, executive order, which directed federal agencies to review regulations and actions made during the Trump administration.
USFWS and NMFS found that a single definition of habitat could impede their ability to “fulfill their obligations to designate critical habitat based upon the best available science.” The agencies said eliminating the rule will provide clarity and transparency for the public to better understand what constitutes habitat for certain species. The final rule also notes critical habitat requirements do not apply to actions on private land as long as they do not involve the authorization of funding by a federal agency.
“Where an action does implicate authorization or funding by a Federal agency, any resulting section 7 consultation under the Act on the designated critical habitat would then consider the effects of the particular proposed action (e.g., issuance of a land-use-related permit) to ensure the critical habitat is not likely to be destroyed or adversely modified by the action,” the rule read.
The rule continued, even if there is a finding that an action was likely to destroy or adversely modify critical habitat, it would not result in an unlawful taking because the finding would not require an agency or landowner to restore the critical habitat or species, but rather to implement alternatives to avoid destruction or adverse modification of critical habitat.
“In other words, the requirement for Federal agencies to ensure their actions are not likely to result in destruction or adverse modification of critical habitat is a prohibitory standard only; it does not mandate affirmative restoration of habitat.”
USFWS and NMFS said the final rule will improve and strengthen implementation of the ESA because the Trump administration’s definition was “unclear, confusing, and inconsistent with the conservation purposes of the ESA.” They said the definition prevented the agencies from designating areas as critical habitat even if the area could support species in the future due to natural processes or reasonable restoration.
“Because most species face extinction because of habitat degradation and loss, it is more consistent with the purposes of the ESA to enable the Services to designate critical habitat in a manner that protects listed species’ habitats and supports their recovery,” the agencies said.
Environmental groups celebrated the ruling. “We’re relieved that the Biden administration has taken this important step toward restoring habitat protections slashed by Trump officials,” said Stephanie Kurose, a senior policy specialist at the Center for Biological Diversity.
However, the group noted it was disappointed the administration hasn’t “moved more quickly” to restore the power of the ESA and reform USFWS and other regulatory agencies.
“With the extinction crisis accelerating, we have to take bold, transformative action before it’s too late.”
Background
In December 2020, shortly before the end of then-President Donald Trump’s term, USFWS and NMFS revised their definition of habitat, concluding that an area’s qualification as habitat for a species should be considered on a case-by-case basis “using the best available science.” USFWS also issued a final rule that revised the process for considering critical habitat exclusions.
Industry groups applauded the revisions. “By clarifying the definition of habitat, species conservation will improve, and we will avoid long, drawn-out, speculative analyses that delay important conservation work for imperiled species,” said National Cattlemen’s Beef Association Executive Director of Natural Resources and Public Lands Council Executive Director Kaitlynn Glover at the time.
The Biden administration announced in October 2021 it would reverse the Trump administration’s definition. The final rule comes after a rule-making process that included a public comment period. Prior to the October announcement, the administration announced it would rescind or revise five regulations made under the Trump administration relating to the ESA. This ruling marks the first of the five revisions. — Anna Miller, WLJ managing editor
