USFWS delays northern spotted owl critical habitat rule

The U.S. Fish and Wildlife Service will delay implementation of the final rule reducing northern spotted owl (Strix occidentalis caurina) critical habitat in Washington, Oregon and California, they announced earlier this week. 

In January, the USFWS announced its final critical habitat designation for the northern spotted owl, a threatened species under the Endangered Species Act, which would exclude 3,472,064 acres that had previously been included as part of the owl’s critical habitat. In August, the agency released a proposal to reduce the critical habitat designated for the northern spotted owl in Oregon by about 2% or 205,000 acres. The final designation, however, excluded drastically more acres than the initial proposal, reducing the northern spotted owl’s critical habitat across Oregon, Washington and California from the 9.6 million acres designated in 2012 to about 6.1 million acres.

Geographic areas are eligible for designation as critical habitat if they contain features essential to the conservation of an endangered or threatened species. Once designated, they receive special management and protection. Under the ESA, the Secretary of the Interior has the authority to exclude any particular area from a critical habitat designation if the benefits of excluding the area outweigh the benefits of its inclusion — so long as the exclusion will not result in the species’ extinction.

The spotted owl habitat rule was set to go into effect on March 16; that date will now be delayed until April 30. Upon taking office, the Biden administration called on federal agencies to review recent regulatory decisions to ensure that they are based on science. In a White House Fact Sheet accompanying that Executive Order, the northern spotted owl critical habitat decision is specifically identified as one warranting review. 

In the Federal Register notice published on Monday, the USFWS notes that this review is “particularly warranted because of the considerable change between the proposed rule and the final rule.” The agency also notes that all previous final designations of northern spotted owl critical habitat have been the subject of litigation and that they have already received two notices of intent to sue regarding this final designation. In light of this and other factors, the USFWS is reviewing “whether the rulemaking was procedurally adequate.”

The agency also reopened a 30-day comment period on the rule, to allow the public to comment on issues of fact, law and policy raised by the rule and on whether further delay of the effective date is necessary. Comments are due March 31. 

Last month, eight U.S. Senators asked the Inspector General at the Department of the Interior to review the decision reducing the critical habitat. 

In December 2020, the USFWS declined to reclassify the owl from threatened to endangered, noting that higher priority listing actions under the ESA precluded the uplisting. 

Read TWS’ Standing Position on Threatened and Endangered Species in the U.S. and Position Statement on the U.S. Endangered Species Act