USFWS plans to rescind key critical habitat rules

The U.S. Fish and Wildlife Service plans to rescind rules made during the final days of the Trump administration regarding the process for excluding areas from critical habitat designations for threatened and endangered species under the Endangered Species Act and the definition of habitat.

The previous administration altered the process for excluding areas from critical habitat designations in late 2020. In addition, it added details regarding how the agency would consider the economic and national security impacts of designating a particular area as critical habitat. The rule also provided categories of “other relevant impacts” the USFWS may consider, such as public health and safety, community interests and environment concerns like increased wildfire risk or invasive species management. It also codified that at any time during the process of designating critical habitat, the agency can consider additional exclusions not identified in the proposed rule for that species. The ESA provides the Secretary of the Interior 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, as long as the exclusion will not result in the species’ extinction.

The Wildlife Society commented on that proposal, noting that the change could allow too many exclusions and highlighting 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 previous administration failed to provide an underlying rationale for proposing the changes, which the Society was concerned could provide potentially unlimited reasoning for areas to be excluded from designation as critical habitat.

A second December 2020 rule change established a new regulatory definition of the term “habitat” under the ESA. Until that rule was finalized, neither the ESA nor its implementing regulations included a definition of the term, though it plays a key role in the conservation of threatened and endangered species. The 2020 rule defined habitat within the context of designating critical habitat as “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.”

In October 2020, The Wildlife Society commented on the proposed definition and proposed different definitions for the term to ensure it recognized “habitat” as a species-specific concept and encompassed the full life-cycle needs for species.

The USFWS will accept public comments on both the proposal to change the critical habitat designation policy and the proposal to define habitat until Nov. 26.

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