FLA Opposes ESA Regulation Revisions

On June 21, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services) published several proposed revisions to Endangered Species Act regulations. The two of most importance to our members are highlighted below. Both of these regulations will change the way that the Services approach species listings and critical habitat designations.

• Services Proposed Amendments to Listing, Delisting and Critical Habitat Designation 88 FR 40764 (June 21, 2023)
  This proposal would, among other things;
  • Restore the regulatory condition that species listing determinations will be made “without reference to possible economic or other impacts of such determination.”
  • Remove the “inadequacy” finding for designating unoccupied areas as critical habitat for a species, which states that the Services can designate critical habitat in unoccupied areas only if the occupied areas are inadequate to conserve the species.
  • Delete the sentence added in 2019 in response to the Supreme Court’s decision in Weyerhaeuser v. USFWS requiring that, at a minimum, an unoccupied area must currently contain one or more of the physical or biological features essential to the conservation of the species to be considered for critical habitat designation.
• USFWS Proposal to Reinstate the “Blanket” Section 4(d) Rule 88 FR 40742 (June 21, 2023); This proposal would restore the 1978 “blanket” application of ESA Section 9(a)(1) prohibitions under section 4(d) so that threatened species receive the same level of protection as endangered species unless the Service creates a species-specific 4(d) rule stating otherwise. Presently threatened species do not receive any protections unless the Service creates tailored 4(d) rules for threatened species.

Private working forest owners rely on regulatory stability to keep their lands well-managed and in forest use for the next generation. Predictable, flexible species rules are vital for landowners to able to conserve wildlife while keeping their working forests working. Because private landowners provide habitat for over 60% of at-risk and listed species, collaboration with private landowners is critical for species conservation and recovery. However, these Proposed Rules do not prioritize collaboration and will have the unintended consequence of causing regulatory uncertainty and disincentivizing species conservation on private lands.

Read our comments to the Proposed Rules here.