FWS Seeks to Reinstate ESA Critical Habitat Protections

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NOAA Fisheries) recently announced their intention to rescind two critical habitat regulations finalized near the tail end of the Trump presidency.

The proposed actions, taken in response to an executive order issued by President Biden, would rescind the FWS and NOAA Fisheries joint regulatory definition of “habitat” and FWS regulations that govern critical habitat exclusions of the Endangered Species Act (ESA).

The December 2020 final rule revised the process for considering habitat exclusions under the law. Those changes would have led to more limited protected areas for struggling species, according to some critics. This week’s press release states that the FWS has reevaluated the rule and concluded that the previous approach to exclusions better achieves the conservation purposes of the ESA.

In addition, the FWS and NOAA Fisheries proposed to reverse another December 2020 change made to the regulatory definition of habitat under the ESA. Similarly, revaluation of that rule led the agencies to conclude that “whether a certain area qualifies as habitat for a species should instead be made on a case-by-case basis using the best available science.”

The agencies noted that the Trump-era rule could have unintended consequences for designation of critical habitat under the ESA because that definition excludes from consideration degraded areas that do not presently support species. However, the agencies note, the law is clear that such areas, some of which may be crucial to a species’ survival, could be considered “habitat.”

Before any changes become final, the proposed recissions will be subject to “rigorous and transparent rulemaking processes.” The comment periods for these actions will close on November 26.