Landowners harboring threatened or endangered species on their property will soon be facing stricter scrutiny and the possibility of tougher land-use restrictions under new Endangered Species Act (ESA) regulations released by the Biden administration April 5.
Biden’s political appointees at the U.S. Fish and Wildlife Service (USFWS) rewrote Trump-era rules finalized in 2019, which emphasized species recovery over federal micromanagement of private property. The new rules will take effect on May 6.
A key element of the Trump-era policy was its handling of areas unoccupied by a species at risk. Under the Trump rule, for an unoccupied area to be considered essential to a specie’s recovery, USFWS had to “determine that there was a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.”
“In other words,” the Public Lands Council points out, “USFWS could not designate critical habitat in an unoccupied area that could not in the future actually support the life of a species. Now, the agency may designate critical habitat in any occupied area that it believes is ‘essential for the conservation of the species.’”
This change greatly expands the amount of land that can be brought under USFWS control, enabling “critical habitat” to be designated anywhere USFWS determines a species is at risk, including from such purely hypothetical factors as climate change.
Consideration of Economic Impact
Another radical change coming to ESA enforcement concerns the economic impact of a listing. Previously, regulations under the ESA did not explicitly prohibit federal officials from considering the economic impact of listing or habitat decisions. Such determinations were to be based on “the best available scientific and commercial information.” No more. The Biden regulations now explicitly state that determination on listing status and habitat designations must be made “without reference to economic or other impacts.”
In other words, USFWS officials are now free to make such designations without any consideration of how they will affect the livelihoods of rural communities located near a “critical habitat.”
Blurring the Difference Between Threatened and Endangered Species
When it was enacted in 1973, the ESA specified that species designated as threatened were to be treated differently than those at higher risk or endangered. Over the decades, however, the difference gradually disappeared, meaning the land-use restrictions imposed on property owners harboring a named species – whether threatened or endangered — were about the same. The 2019 Trump reforms that section of the statute to its original intent. This is crucial when it comes to an incidental take of a species because the blurring of distinctions raises landowners’ potential liability.
While the Biden revisions do not preclude USFWS from issuing species-specific rules to exempt certain practices from the prohibition of take, the new language will enable federal officials to largely ignore the statutory difference between threatened and endangered. In effect, the Biden administration has reimposed the “blanket” approach to species protection, putting the same prohibitions in place whether the plant or animal is threatened or endangered. This blurring of an important distinction constitutes a major gain for an administrative state eager to throw its weight around whenever the opportunity presents itself.
The new rules will provide a boost to the White House’s “30×30” plan, under which “at least” 30 percent of the nation’s land and water are to be “protected” by 2030. Increasing the amount of land set aside indefinitely for the recovery of a species is one of the ways the administration can achieve its 30-percent goal by the end of the decade.
Court Challenges
In a similar vein, the Biden Environmental Protection Agency (EPA) has announced how it intends to comply – or not comply – with the Supreme Court’s May 2023 Sackett v. EPA ruling, which limited EPA’s power to regulate certain bodies of water, including wetlands, under the Clean Water Act. EPA’s effort to circumvent the Sackett decision is being challenged in court, and the administration’s new ESA rules may soon be facing a similar fate.