Midnight Watch: Wildlife

Endangered Species Act: Definition of “Habitat”

In August 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service proposed a new, restrictive definition of the term “habitat” under the Endangered Species Act (ESA). By narrowly defining habitat, the proposal threatens to “arbitrarily limit the Services’ ability to recover imperiled species by reducing —  in some cases potentially severely — the amount and type of critical habitat that can be protected under the Act,” as state attorneys general warned in comments filed in September 2020.

🔴NEW DEVELOPMENT: The White House began its review of the final rule on November 17/18.

Endangered Species Act: Critical Habitat Designation Process

In September 2020, the U.S. Fish and Wildlife Service proposed changes to the process for designating critical habitat for protection under the ESA. The proposed changes would skew the process in favor of development and extractive industries by giving private parties inappropriate influence over whether the Service undertakes analyses of the benefits of excluding areas from critical habitat designations, and over the information used in such analyses. The changes threaten to “reduc[e] — potentially drastically — the amount of critical habitat ultimately designated and protected” under the statute, as state attorneys general warned in comments filed in October 2020.

🔴NEW DEVELOPMENT: The White House began its review of the final rule on November 12.

Migratory Bird Treaty Act: Elimination of Prohibition on Incidental Take

In February 2020, the U.S. Fish and Wildlife Service (FWS) published a proposed rule that would redefine the scope of the Migratory Bird Treaty Act (MBTA) to no longer prohibit the incidental “take” of migratory birds. The proposal would reverse decades of regulatory precedent in order to shield industries and developers that recklessly kill migratory birds from liability under the MBTA. The change directly conflicts with the MBTA’s text, legislative history and fundamental purpose protecting migratory birds, as state attorneys general emphasized in comments filed in March 2020.

🔴NEW DEVELOPMENT: The White House began its review of the final rule on November 9.

Revised Method for Evaluating Impacts of Pesticides on Endangered Species

In May 2019, the EPA proposed changes to its process for evaluating risks posed by pesticides to endangered species. The proposal would limit the scope of the agency’s review of the effects of pesticides on endangered species, including species on the brink of extinction, and “precludes any analysis of the effects of climate change” on the habitats of listed species. State attorneys general filed comments in August 2019 warning that the proposal contravenes the Endangered Species Act’s “policy of institutionalized caution" by unlawfully allowing the EPA to rely on incomplete and unreliable data and unreasonably restricting the potential habitat areas to be analyzed. The EPA could finalize the changes during the transition period.