USFWS officially rescinds critical habitat rule

The U.S. Fish and Wildlife Service has formally rescinded an Endangered Species Act rule promulgated by the Trump administration that changed the process for excluding areas from critical habitat designations.

The rule, under section 4(b)(2) of the ESA that went into effect in late 2020, allowed the agency more leeway in considering the economic and national security impacts of designating a particular area as critical habitat. It also allowed the agency to consider new categories of “other relevant impacts” to areas, including public health and safety, community interests and environment concerns, such as increased wildfire risk or invasive species management. Further, it codified that at any time during the process of designating critical habitat, the USFWS could consider additional exclusions not identified in the proposed rule for that species, based upon input from stakeholders.

When the proposal to update the process for excluding areas from critical habitat designations for threatened and endangered species was first released in fall 2020, The Wildlife Society expressed concerns that the change could allow too many exclusions.

The Wildlife Society’s comments highlighted its concerns about the proposal’s “potential negative impact on wildlife professionals’ ability to advance the conservation of species listed under the ESA through science-based management and conservation.” The agency failed to provide underlying rationale for proposing the changes, which the Society was concerned would provide potentially unlimited reasoning for areas to be excluded from designation as critical habitat.

In addition, the new rule allowed the USFWS to consider new critical habitat exclusions after the public comment period. “Removing the ability of stakeholders and the public to comment on this third-party information does not improve the transparency, consistency or defensibility of the process—and does not ensure that the process uses the best available information,” the letter read.

Early in the Biden Administration, the agency announced it would rescind the rule. In late 2021, the USFWS accepted public comments on their draft proposal to rescind the rule; approximately 29,000 were submitted. The final rescission will go into effect on Aug. 22.

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