USFWS Rescinds Endangered Species Act Critical Habitat Exclusion Regulations
To better meet the conservation goals of the Endangered Species Act (ESA), the U.S. Fish and Wildlife Service is repealing 2020 regulations that changed the process for excluding areas from critical habitat designations under the Section 4(b)(2) of the ESA. This action restores the Secretary of the Interior’s discretion to determine how and when to exclude areas from critical habitat designations and the Service’s role as the expert agency responsible for the administration of the ESA.
The Service will resume its previous approach to exclusions and restore alignment between the Service and NOAA Fisheries on procedures for identifying critical habitat. The move follows Executive Order 13990, which directs all federal agencies to review and address agency actions to ensure consistency with Biden-Harris administration goals.
“The Service is the federal government’s lead endangered species agency, responsible for conserving America’s nature for future generations,” said Service Director Martha Williams. “This rule will allow our biologists to ensure that critical habitat designations contribute to the conservation of ESA-listed species. Today’s action helps the Service implement ESA in a way that supports sound science and citizen engagement.
The ESA is extraordinarily effective in preventing species from becoming extinct and has inspired action to conserve species at risk and their habitats before they are listed as threatened or endangered. More than 99% of all species listed by ESA are still with us today since the law was enacted in 1973.
Critical habitat designations identify areas and features of habitat that are essential for the conservation of listed species. The Service may exclude areas from designations after considering economic, national security, and other factors (such as conservation activities). Federal agencies must ensure that the actions they fund, authorize, or take do not destroy or adversely alter designated critical habitats. Critical habitat designations do not affect actions on private land unless the actions involve authorization or funding from a federal agency.
The final rule – click here: https://public-inspection.federalregister.gov/2022-15495.pdf – will allow the Service to resume its previous approach to exclusions. This previous approach, which is currently used by NOAA Fisheries, is described in a 2016 policy on 4(b)(2) exclusions. Under this previous approach, the Service always considers the economic implications of a proposed critical habitat designation and publishes the economic analysis along with the proposed designation. In addition, the Service continues to consider excluding areas covered by an authorized voluntary conservation plan, tribal lands, and areas for which a federal agency has asserted national security concerns.