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Biden administration leaves ESA 'habitat' undefined

The Biden administration moved Oct. 27 to undo Donald Trump’s Endangered Species Act reforms, proposing to give federal officials a free hand in designating habitat deemed critical for recovery of a species.

Opening a comment period, the U.S. Fish and Wildlife Service said it plans to repeal a definition that limited “habitat” to land that could support the species.

The agency said it will leave habitat undefined and decide case-by-case the area a species needs based on the best available science.

The agency also said it planned to repeal a rule that requires the benefits of designating land as critical habitat to outweigh the economic costs.

If finalized, the actions will restore the ESA’s “original intent and purpose,” Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz said in a statement.

By repealing the Trump ESA reforms, President Biden will fulfill a campaign pledge. It also sides with blue states such as Washington, Oregon and California that sued to overturn the rules.

The ESA proposals follow by a few weeks the Biden administration’s announcement it will repeal Trump reforms to the National Environmental Policy Act.

The Biden administration is returning to complicated and burdensome rules that do little to advance conservation, American Farm Bureau President Zippy Duvall said in a statement.

“Adding uncertainty to environmental regulations creates another obstacle for farmers as they work to keep America’s pantries stocked,” he said.

The Trump ESA reforms went into effect on Donald Trump’s last full day in office. The next day, President Biden signed an executive order directing agencies to review Trump policies.

“This is unfortunate, where we have an administration just throw out what the predecessor did,” said Jonathan Wood, vice president of law and policy for the conservative Property and Environmental Research Center in Bozeman, Mont.

“We go through this endless cycle where we go back-and-forth,” he said.

Wood said he was surprised that the Biden administration chose to repeal the Trump reforms and revert to previous rules, rather than proposing its own reforms.

The Trump ESA reforms responded to a unanimous U.S. Supreme Court ruling in 2018. The court chided the Fish and Wildlife Service for designating a Weyerhaeuser Co. tree farm in Louisiana as critical habitat for dusky gopher frogs.

The frog couldn’t survive in the tree farm, unless there were fewer trees. Chief Justice John Roberts wrote that “critical habitat” implied the land was indeed habitat.

The court, however, didn’t order the agency to define “habitat.” The agency says that it has reconsidered the court’s decision and concluded it can address on a case-by-case basis when unoccupied areas are “habitat” for a particular species.

“I suspect the court will think that sounds pretty arbitrary,” Wood said. “I think the court has sent a strong signal that habitat has to have a meaning.”

The Fish and Wildlife Service criticized a Trump rule for requiring a cost-benefit analysis when the agency was presented “credible information” about the potential economic costs of designating habitat.

The rule was too rigid and gave too much influence to “directly affected parties,” according to the agency.



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