July 22, 2022
Back in the Nation & World section of our local newspaper was an AP story about the reversal of an endangered species rule by a federal judge in California. The rule was put in place in 2019 by the last administration to gut the landmark Endangered Species Act of 1973. The reversal vacated that administration’s changes and restored protections for hundreds of species. One of the overturned measures required regulators to not designate areas of critical habitat if there would be greater economic benefit from developing them. The measure had forced the US Fish and Wildlife Service (FWS) to disprove speculative claims by mining, logging, and oil and gas industries who sought to extract resources from public lands. The 48-page ruling stated this gave outside parties a major role in determining which areas were needed to be preserved for endangered species while undermining the authority of FWS.
When I looked online, I found critical habitat is a habitat area essential to the conservation of a listed endangered species, although the area need not actually be occupied by the species at the time it is designated. This is a specific term and designation within the US Endangered Species Act (ESA). Contrary to common belief, designating an area as critical habitat does not prevent that area from being developed, but only affects federal agency actions. Such actions include federally funded activities or activities requiring a federal permit. When a species is proposed for listing as endangered or threatened under the ESA, efforts are taken to identify specific areas that are essential to its conservation. These are the species’ critical habitat. Unless deemed necessary for the species’ continued existence, critical habitat do not include the entire geographical area occupied by a species. Department of Defense (DOD) lands are also exempt from being designated as critical habitat. Both public and private land can be specified as critical habitat.
Before designating critical habitat, careful consideration must be given to the economic impacts, impacts on national security, and other relevant impacts of specifying any area as critical habitat. An area may be excluded from critical habitat if the benefits of exclusion outweigh the benefits of designation, unless excluding the area will result in the extinction of the species concerned. Identifying critical habitat informs landowners and the public which specific areas are important to a species’ conservation and recovery. It also raises awareness of the habitat needs of imperiled species and focuses the efforts of conservation partners. Critical habitat designations for threatened or endangered species can result in limitations on energy development (mining or oil drilling) that could disturb a vulnerable species, while the consultation rule and a separate rule on the scope of proposed federal actions help determine how far the government may go to protect the species.
Thoughts: The administration’s actions in 2019 rolled back protections for the northern spotted owl, gray wolves, and other endangered species. The current administration vowed to review these rules, and to reverse the decision to weaken enforcement of the century-old Migratory Bird Treaty Act, which made it harder to prosecute bird deaths caused by the energy industry. The bird law reversal was among more than 150 business-friendly actions on the environment that are being reconsidered, including withdrawal last month of a 2020 rule that limited which lands and waters could be designated as places of critical habitat where imperiled animals and plants could receive federal protection. Identifying endangered species and protecting critical habitat is not anti-business, it is pro-Earth. Act for all. Change is coming and it starts with you.