The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NOAA Fisheries) are proposing to rescind two habitat regulations finalized in December 2020. The proposed actions would rescind the Services’ joint regulatory definition of “habitat” and FWS regulations that govern critical habitat exclusions.
In December 2020, FWS issued a final rule that revised the process for considering critical habitat exclusions under the ESA. According to the FWS, the two groups re-evaluated the rule and conclude that decisions regarding 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 final rule could also have unintended consequences for the designation of critical habitat under the ESA because it excludes from consideration degraded areas that do not currently support species. However, the ESA is clear that such areas, some of which may be essential for the conservation of a species, could be considered “habitat.”
The American Farm Bureau Federation was disappointed in the reversal announcement. President Zippy Duvall said, “America’s farmers and ranchers care for the natural resources they’ve been entrusted with and support common-sense reforms to National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) implementation. We were pleased to see reforms to these regulations during the past few years.
“AFBF is now equally disappointed that in the space of three weeks, the Biden administration has proposed three different changes to these regulations, signaling a return to complicated and burdensome rules that do little to advance conservation goals. Farmers and ranchers are facing continued challenges from the pandemic, supply chain issues, labor shortages, drought in the West and significant cost increases in operating their farms. Adding uncertainty to environmental regulations creates another obstacle for farmers as they work to keep America’s pantries stocked.
“AFBF and state Farm Bureaus will remain engaged on ESA issues, and we encourage farmers and ranchers to share their stories during the proposed rule change comment period to let the administration know we should continue moving forward toward conservation goals, not backward.”
