USFWS and NMFS Provide ESA Regulatory Certainty

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Washington, July 31, 2020 | Doug Levine (202-225-2315) | comments

Today, members of the Western Caucus released the following statements after the U.S. Fish and Wildlife Service and National Marine Fisheries Service announced their definition of "habitat" to be used for critical habitat designations under the Endangered Species Act.  

“If there is something that I hear most from stakeholder groups about federal government regulations, it is that they lack consistency. Today’s announcement by the Fish and Wildlife Service and National Marine Fisheries Service is all about providing regulatory consistency. For too long enforcement of the ESA has lacked consistency and transparency, which is why members of the Western Caucus have proposed numerous pieces of legislation to reform it. This announcement is a great step taken by the administration and it is line with the Caucus’s priority of bringing the ESA into the 21st century,” said Congressional Western Caucus Chairman Paul Gosar (AZ-04). 

“Today’s action by USFWS and NOAA Fisheries is a welcome dose of transparency and commonsense that will help modernize the Endangered Species Act. For too long, the ESA has been used to block economic growth, job creation, energy production, and effective local wildlife management throughout Wyoming. Clarifying the definition of ‘habitat’, based on science and not partisan politics, will help protect the interests of local communities throughout our state,” said Republican Conference Chair Liz Cheney (WY-AL). 

"As the last remaining Member of the House who voted for the Endangered Species Act (ESA), I know how important it is to protect our vulnerable ecosystems and species. But for too long, the regulatory protections created by the ESA have been loosely-defined and inconsistently applied; reform is long overdue. I applaud the Administration and the Fish and Wildlife Service for proposing a definition of 'habitat' that will provide needed consistency and improved outcomes for endangered animals. Alaska is home to unique ecosystems, and we must defend them. I believe we can do it in a way that protects wildlife while preventing the creation of even more federal red tape. I will continue working to ensure that the ESA is functioning as Congress originally intended, and protecting wildlife well into the future," said Vice Chairman for Indian Affairs and Fisheries Don Young (AK-AL). 

"Critical habitat designations are important to ensure we are doing everything we can to support the preservation of our native plants and animals. For too long, the overreaching definition for these designations led to harmful mismanagement and made clear the critical need to modernize the Endangered Species Act. This new definition will provide certainty for important management efforts and will better enable our government and local conservationists to protect our threatened and endangered species," said Vice Chairman for the Departments of Energy and Interior Dan Newhouse (WA-04). 

“We can’t effectively administer laws if they’re not clearly defined. With proposed rules like these, this administration is continuing its proactive approach to clarifying outdated regulations and bringing laws like the ESA into the 21st century. I’m glad to stand behind their regulatory reform efforts," said Vice Chairman for Infrastructure and Forestry Bruce Westerman (AR-04). 

“Designating Critical Habitat under the ESA routinely infringes upon private property rights and has proven to be completely ineffective at actually recovering species. That is why I introduced legislation to reform this broken process, and I am pleased that the Trump Administration has made Critical Habitat designation reform a top priority. I look forward to continue working on broader ESA reform," said Congressman Mike Johnson (LA-04). 

“It is encouraging to see USFWS and NMFA updating their definition of habitat to reflect the Supreme Court’s limitations. Now land owners and local governments can cooperate with federal agencies to protect threatened and endangered species without fear that sprawling definitions of critical habitat will impede their property rights. This is a good step in the right direction," said Congressman Chris Stewart (UT-02). 

“The action taken today by the Fish and Wildlife Service and National Marine Fisheries Service puts science at the forefront of the decision making process when it comes designating habitat under the Endangered Species Act. With this new definition we can continue to protect endangered species while ending the practice of imposing regulatory restrictions on property that is not suitable habitat for species,” said Congressman Ken Calvert (CA-42). 

“Once again President Trump is demonstrating his commitment to undoing the regulatory overreach of the Obama-Biden Administration. Overzealous Washington bureaucrats use designations like “critical habitat” to take large swaths of land out of production. The economic harm this causes local communities can be devastating. This reform is essential and shows the need for Congress to overhaul the Endangered Species Act (ESA) by passing bills like my EMPOWERS Act which mandates that federal agencies consult with local stakeholders when making ESA listing decisions,” said Congressman Jason Smith (MO-08). 


Earlier this year, the Western Caucus hosted an ESA policy roundtable and unveiled a package of legislation designed to modernize the ESA. Included in that package was H.R. 5591 sponsored by Congressman Mike Johnson (LA-04) that aims at reforming critical habitat designations under ESA. More information on the roundtable and  legislative package can be seen HERE

Background Courtesy of U.S. Fish and Wildlife Service

Nearly three years ago, the Department of the Interior and the Department of Commerce began considering improvements to the regulations the federal government uses to implement the ESA to make them more efficient and effective. Last year, the Service finalized regulatory changes to section 4 of the ESA dealing with the listing, delisting and critical habitat, and to section 7 consultation processes. Today’s proposed definition of habitat will continue to improve implementation of the ESA and will address a 2018 Supreme Court ruling in a case regarding dusky gopher frog critical habitat (Weyerhaeuser Co. v U.S. FWS) that any area designated as critical habitat must also be habitat for the species.

The ESA defines critical habitat and establishes separate criteria depending on whether the area is within or outside the geographical area occupied by the species at the time of listing. It does not define the broader term “habitat,” however, and the Services have not previously defined this term in implementing regulations. Combined with last year’s regulatory reform, these actions will increase the clarity of the ESA, improve partnerships, stimulate more effective conservation on the ground, and improve consistency and predictability around critical habitat determinations.

A Press Release from USFWS can be seen HERE

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