The US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service proposed Tuesday to rescind two rules enacted during the Trump administration concerning designation of critical habitats. The proposal is part of a concerted effort by the Biden administration to rewrite rules that undermine environmental protection in favor of industry interests.
The first rule sought to be repealed establishes the process under the Endangered Species Act for designating certain areas as “critical habitats” and for conducting a discretionary exclusion analysis before certain areas can be excluded from such designation. The analysis has to be carried out whenever a proponent of exclusion presents “credible evidence” regarding the existence of a meaningful economic or national security impact. The services may exclude areas from such designation if the benefits of exclusion outweigh the benefits of inclusion, and exclusion would not result in extinction of the species.
These limitations were written into the rules following the decision in Weyerhaeuser Co. v. US FWS, where the Supreme Court criticised the designation of land owned by the plaintiff as a “critical habitat” for the endangered dusky gopher frog. The services now find the rule problematic because it unduly constrains their discretion in administering the statute. The services stated that the “credible evidence” standard is vague and ignores the fact the services would base the decision not to exclude on existing best-scientific-data-available standards. Such decisions would be explained by the services irrespective of the rule, which only hampers transparency. The rule curbs the role of the services as the expert agencies in facilitating the conservation of the habitats of endangered species.
The second rule sought to be repealed codifies the definition of the term “habitat.” The definition in its present form only refers to areas that can support the life processes of species. It excludes locations which do not currently contain the requisite resources and conditions to support life, even if this requirement could be met in the future after restoration activities.
The statute also defines “conservation” as the use of all methods available to bring species back from the point of endangerment. The restoration of currently unsuitable habitats should ideally fall within the meaning of “conservation.” Any alternate interpretation would lead to a logical absurdity whereby the more a species’ habitat has been degraded, the less ability there is to attempt to recover the species. The services have proposed to return to implementing the statute without a codified definition of “habitat.” Allowing unoccupied areas that are essential for the conservation of species to be classified as critical may guide future habitat restoration efforts.
Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz stated that the proposals would bring the endangered species law “back into alignment with its original intent and purpose—protecting and recovering America’s biological heritage for future generations.”
