White House begins key ESA ‘critical habitat’ review

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This week, the Fish and Wildlife Service moved closer to erasing a Trump administration rule that violated the Endangered Species Act’s definition of “critical habitat.”

On Tuesday, records show, the federal agency, along with NOAA Fisheries, submitted a long-awaited ESA rule for final review at the White House. Once the Office of Information and Regulatory Affairs has done its job, it’s time to move on to one of the top priorities of the environmental community.

“The Endangered Species Act saved hundreds of irreplaceable plants and animals from extinction, but it could do so much more good,” said Stephanie Kurose, senior policy specialist at the Center for Biological Diversity. , in a press release.

Kurose added that “despite the law’s remarkable success, the services have been reluctant to fully implement it, succumbing to years of political and industry pressure to weaken what is the only hope for species at risk.”

On Tuesday, the same day federal agencies handed the ball over to White House reviewers, the Center for Biological Diversity filed a broad petition urging FWS and NOAA Fisheries to take various actions.

The petition, according to the environmental group, “calls on the services to comprehensively address the threat of climate change, reduce unlawful political interference that compromises scientific integrity, strengthen law enforcement and add new measures to ensure accountability of extractive industries that harm the habitats of endangered species.”

The federal rule now proposed in the White House, while important, is considerably more focused than this broad call to action.

Instead, it would override the Trump administration’s December 2020 final rule by adding a definition of “habitat” to existing ESA regulations.

This new rule, for the first time, stated that “for the purpose of identifying critical habitat, habitat is 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”.

Under the ESA, critical habitat is considered “essential for the conservation of the species”.

Any federal agency seeking to authorize, fund, or conduct an action on designated land must first consult with the FWS to ensure that the action is not likely to destroy or damage critical habitat. But, as noted by the Supreme Court, the term “habitat” had not itself been defined, resulting in regulatory ambiguity.

In 2012, FWS included over 1,500 acres of private land in Louisiana in its critical habitat designation for the dark gopher frog. The frog once lived on the coasts of Alabama, Louisiana, and Mississippi, but most individuals now inhabit a single pond in Mississippi.

Louisiana landowners argued that their 1,544 acres should not be considered critical habitat because the land would need restoration to be useful. In a 2018 ruling, Chief Justice John Roberts noted that the SEA does not provide a “basic definition” of habitat.

“It only identifies certain areas that are essential for the conservation of endangered species,” Roberts wrote. “The definition allows [Interior] Secretary to identify the subset of habitats that is critical, but leaves the broader category of habitats undefined.

The federal government and the landowners in the case later reached a settlement and left unresolved questions about how “habitat” should be defined in law (green wireNovember 27, 2018).

The FWS said last year that it had determined that the subsequent Trump-era definition “would inappropriately limit the Services’ ability to designate areas that meet the definition of ‘critical habitat’ under the law.

“This [Trump administration] The definition of ‘habitat’ excludes areas that do not currently or periodically contain the required resources and conditions, even though those areas may meet this requirement in the future after restoration activities or other changes.” the agency explained last year.

FWS added that “the attempt to codify a single, unique definition of ‘habitat’…was not derived from the scientific literature nor had a clear relationship to the statutory definition of ‘critical habitat’. »

FWS then received nearly 13,000 public comments on the issue of defining critical habit, many of which are identical.

“The [Trump rule] Narrowly limiting the definition of ‘habitat’ to only areas that may currently support individuals of a species at risk represents a 180-degree reversal of past agency practice,” Earthjustice wrote.

The environmental group, writing on its own and on behalf of other organizations, added that “for decades the Services have designated critical habitat in unoccupied areas that were not, at the time, habitable for species listed, but which were nonetheless deemed essential for conservation.”

Others urged keeping the Trump administration’s definition.

“Given the significant scientific uncertainty with many listed species and the ecosystems in which they reside and the failure of ESA regulators to examine the many and varied stressors that affect them, agencies need to step back and rethink the consequences of their actions,” the Family Farm Alliance wrote.

On a related front, the ESA further states that critical habitat should be designated “based on the best available science and after considering economic impact, national security impact, and any other impact relevant”.

The law allows areas to be excluded if “the benefits of such exclusion outweigh the benefits of specifying such area as critical habitat”, unless the exclusion “does not leads to the extinction of the species concerned”.

A Trump-era rule allowed “other relevant impacts” to be considered, including public health and safety and wildfire risk or pest and invasive species management (green wireDecember 17, 2020).

FWS is also working to reverse this rule.

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