The Biden administration announced on Oct. 26 it will be reversing another pair of regulations set during the Trump administration. This time, the rules relate to the Endangered Species Act (ESA) and the definition of “habitat,” along with critical habitat exclusions.
The Biden administration is proposing to expand the definition of what is considered habitat for listed species to include where species are not currently found, but have previously lived in and could expand into if population numbers increase.
The Trump rule defined “habitat” as: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”
The other rule altered the process for deciding when to exclude an area from a critical habitat designation by weighing the benefits against potential economic impacts.
The proposed rescissions follow Executive Order 13990, which President Joe Biden signed in January, and require all federal agencies to review and address previous agency actions. In June, the administration announced it would rescind or revise five regulations finalized during the Trump administration that were related to endangered species protections. The late October announcement marked the first two of the rescissions.
“If finalized, today’s proposed actions will bring the implementation of the Act back into alignment with its original intent and purpose—protecting and recovering America’s biological heritage for future generations,” said Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz. “In this effort, we look forward to continuing to work closely with our federal, Tribal, state and industry partners on behalf of our shared interests.”
Background
In December 2020, the U.S. Fish and Wildlife Service (USFWS) issued a final rule that revised the process for considering critical habitat exclusions under the ESA. The agency reevaluated the rule and concluded “The conservation purposes of the ESA are better met by resuming its previous approach to exclusions.”
In addition, the USFWS and National Marine Fisheries Service reevaluated their joint regulatory definition of the term “habitat” under the ESA. The services concluded that decisions regarding whether an area qualifies as habitat for a species “should instead be made on a case-by-case basis using the best available science.”
The agencies also thought the final rule could have unintended consequences for the designation of critical habitat under the ESA because it excludes degraded areas that currently do not support species.
At the time, the industry applauded the Trump rules.
“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.
“We welcome this addition to ESA, as it removes an unnecessary burden from livestock producers who are looking to act as responsible stewards and make improvements to rangeland.”
Regarding the rule reversals, USFWS said, “Both of these proposed rescissions will undergo rigorous and transparent rulemaking processes before being finalized.”
A public commenting period will be open until Nov. 26. Those interested in leaving comments can visit www.federalregister.gov and search for the document IDs FWS-HQ-ES-2019-0115 and FWS-HQ-ES-2020-0047.
Comments may also be submitted by mail to: Public Comments Processing, U.S. Fish and Wildlife Service, MS: PRB(3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803. Be sure to include the document IDs if sending comments by mail.
Reactions
Conservation groups celebrated the proposed rules.
“We’re relieved that the Biden administration has taken this important step toward restoring critical protections for imperiled species,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “There’s just no way to save animals and plants from extinction without safeguarding the places they need to live.”
The American Farm Bureau Federation (AFBF) expressed its opposition to the rule reversals. AFBF President Zippy Duvall said the group had been pleased with the “common-sense” reforms to NEPA and ESA implementation over the past few years.
“AFBF is now equally disappointed that in the space of three weeks, the Biden administration has proposed three different changes to these regulations, signaling a return to complicated and burdensome rules that do little to advance conservation goals,” Duvall said in a statement.
“Adding uncertainty to environmental regulations creates another obstacle for farmers as they work to keep America’s pantries stocked.” — Anna Miller, WLJ managing editor
