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Friday, June 14, 2024 | Back issues
Courthouse News Service Courthouse News Service

Greens Say New Habitat Rules Favor Developers

WASHINGTON (CN) - Environmentalists say new federal critical habitat rules favor developers and save "only the last few acres" for endangered species.

The changes come in the form of two rules and a policy revision cast by the federal agencies in charge of listing endangered and threatened species for protection.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service announced the changes as an improvement to the implementation of the Endangered Species Act (ESA), claiming the revisions "will provide a clearer, more consistent and predictable process for designating critical habitat."

"The Endangered Species Act is the last safety net between our most at-risk species and extinction, and as such, we want to do everything we can to make sure it functions efficiently and effectively," Gary Frazer, the Fish and Wildlife Service's Assistant Director for Ecological Services, said. "These commonsense administrative improvements are the product of an open and interactive public process that solicited feedback from diverse stakeholders. Ultimately, they will better equip us to protect our nation's wildlife."

Both the Center for Biological Diversity (CBD) and the Defenders of Wildlife (DoW), frequent litigants on behalf of imperiled species, warned that the two rules and the policy change would further jeopardize species that rely on habitat protection for their survival.

"This is beyond disappointing. This ruling creates an enormous loophole for development and gives the U.S. Fish and Wildlife Service and the National Marine Fisheries Service room to drive a truck through and over endangered species protection under the Endangered Species Act. This is a huge blow to protecting critical habitat for listed species since it will now be a death by a thousand cuts by developers and federal agencies," Jamie Rappaport Clark, DoW President and CEO, said.

The ESA mandates that critical habitat, areas essential to a species for its recovery, be designated for all listed species, with few exceptions. One of the new rules revises the definition of the term "destruction or adverse modification" of critical habitat. The agencies maintain that the rule simply codifies practices that have been in place since 2004, when the previous definition was invalidated by the courts.

The DoW strongly disagreed, saying, "The new rule makes it virtually impossible to protect critical habitat for endangered species, allowing the continual loss of habitat until only the last few acres remain. The result will be the continued spiraling decline in critical habitat, accelerating the decline of endangered species by a thousand little cuts."

The second new rule and the policy change also revise critical habitat definitions and regulations to clarify the criteria used for making the designation, and include changes in determining areas excluded from the designation for economic or national security reasons, or due to voluntary conservation agreements.

The CBD said that the changes would allow the agencies "to exclude areas from critical habitat based on, in many cases, vague promises from landowners to conserve habitat." However, while the agencies acknowledged that they would evaluate conservation plans that were approved or close to being approved for exclusion, they said in the action, "we will generally give little weight to promises of future conservation actions in draft CCAAs (candidate conservation agreements), SHAs (safe harbor agreements with assurances), and HCPs (habitat conservation plans)."

A critical habitat designation requires consultation with the listing agency regarding any planned federally authorized or funded activities or projects to ensure that the habitat is not destroyed or significantly changed.

Noting that it is rare for the agencies to stop projects that destroy critical habitat, the CBD cited a DoW study published in the Proceedings of the National Academy of Sciences. "In the past eight years, only 0.0023 percent of federal projects were stopped to protect endangered species, compared to the 1970s through the 1990s when approximately 1 percent of projects were stopped. This new rule will make it even less likely that the Service protects habitat for species," the CBD said.

The DoW noted that none of the 88,000 projects the FWS was consulted on over the past seven years was stopped due to concerns over habitat destruction.

"The Obama administration has weakened the Endangered Species Act more than any administration since the landmark law was passed in 1973," Bret Hartl, CBD's endangered species policy director, said.

Yet the agencies maintain that the Obama Administration has "delisted more species due to recovery than any prior administration, including the Oregon chub, Virginia northern flying squirrel and brown pelican."

Both rules and the policy change are effective March 14.

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