Revised November 29, 2021
November 23, 2021
Bridget Fahey
Chief, Division of Conservation and Classification
U.S. Fish and Wildlife Service
5275 Leesburg Pike
Falls Church, VA 22041
Br***********@fw*.gov
Angela Somma
Chief, Office of Protected Resources National Marine Fisheries Service
1315 East-West Highway
Silver Spring, MD 20910
An**********@no**.gov
Re: Comments on Proposed Rescission of Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat (Docket IDs: FWS–HQ–ES– 2020–0047; FWS-HQ-ES-2019-0115)
Dear Ms. Fahey and Ms. Somma:
The Southern Environmental Law Center (“SELC”) submits the following comments in support of the U.S. Fish and Wildlife Service’s (“FWS”) and National Marine Fisheries Service’s (“NMFS”) proposal to remove the definition of “habitat”1Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 86 Fed. Reg. 59,353 (Oct. 27, 2021) (codified at 50 C.F.R. § 424.02). and FWS’s proposal to rescind regulations pertaining to critical habitat exclusions2Regulations for Designating Critical Habitat, 86 Fed. Reg. 59,346 (Oct. 27, 2021) (codified at 50 C.F.R. § 17.90). that were added to the Endangered Species Act’s (“ESA” or “Act”) implementing regulations at the end of the Trump administration. We submit these comments on behalf of 46 organizations working to protect the natural resources of the Southeast.
The Trump administration significantly dismantled key ESA regulations, eviscerating necessary protections at a time when species are facing a mass extinction from unprecedented levels of habitat destruction and threats from climate change. Rescinding the harmful actions taken by the Trump administration that limited habitat protections under the Act is a critical first step to restoring essential protections for imperiled species. We encourage FWS and NMFS
(collectively, “the Services”) to finalize these rescissions as quickly as possible, and we further urge the Services to expeditiously restore other ESA regulations dissolved by the Services under the previous administration—including reviving FWS’s blanket 4(d) rule to protect threatened species3Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. 44,753 (Aug. 27, 2019) (codified at 50 C.F.R. pt. 17). nd returning to Section 7 interagency consultations4Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976 (Aug. 27, 2019) (codified at 50 C.F.R. pt. 402). and Section 4 listing determinations5Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45,020 (Aug. 27, 2019) (codified at 50 C.F.R. pt. 424). that are guided by science and consistent with the Act’s conservation and recovery goals.
SELC previously submitted, on behalf of broad coalitions of Southeastern conservation organizations, comments opposing the July 25, 2018 proposal to overhaul the ESA regulations for implementing Sections 4 and 7 of the Act, as well as comments opposing the August 5, 2020 proposal by the Services to add an unnecessary and harmful definition of “habitat” to the ESA implementing regulations. We attach and incorporate those comments by reference here.6Letter from SELC to FWS and NMFS (Sept. 24, 2018), provided as Attachment 1 and available with all corresponding attachments at https://www.regulations.gov/comment/FWS-HQ-ES-2018-0009-56155 [hereinafter “SELC Comments Opposing ESA Rollbacks”]; Letter from SELC to FWS and NMFS (Sept. 3, 2020), provided as Attachment 2 and available with all corresponding attachments at https://www.regulations.gov/comment/FWS-HQ-ES-2020-0047-45173 [hereinafter “SELC Comments Opposing Habitat Definition”]. As explained below, and as provided in more detail in our prior comments, the Trump-era regulatory changes regarding habitat under the ESA were unnecessary, restrictive, and inconsistent with the clear mandates and underlying purpose of the ESA.
I. HABITAT CONSERVATION IS ESSENTIAL TO SOUTHEASTERN ECOSYSTEMS
In shaping legislation to address species extinction, Congress started from the finding that destruction and degradation of natural habitats are the primary drivers of extinction and biodiversity loss across the United States.7See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 178-79 (1978) (citing legislative history, including H.R. Rep. No. 93-412); see also, e.g., David S. Wilcove et al., Quantifying threats to imperiled species in the United States: Assessing the relative importance of habitat destruction, alien species, pollution, overexploitation, and disease, BIOSCIENCE (Aug. 1998). Despite significant efforts to prevent extinction, however, biodiversity loss remains a significant and rapidly increasing problem in the Southeast, across the United States, and abroad. Habitat degradation and destruction are still the leading causes of extinction, a problem that will only get worse with climate change.8See, e.g., Stuart L. Pimm et al., The biodiversity of species and their rates of extinction, distribution, and protection, SCI. (May 30, 2014); David S. Wilcove et al., id. If we are to remain committed to the goals of the ESA in the face of these challenges, protecting habitat is of paramount importance in order to provide for the survival and recovery of listed species.
A. Ongoing Habitat Loss Threatens Imperiled Southeastern Species
The climate and geography of the Southeastern United States have enabled the region to harbor high levels of biodiversity for millions of years,9See, e.g., Reed F. Noss et al., How Global Biodiversity Hotspots May Go Unrecognized: Lessons from the North American Coastal Plain, DIVERSITY & DISTRIBUTIONS (2015). and as such, the Southeast was recognized as the 36th Global Biodiversity Hotspot in 2016.10Reed F. Noss, Announcing the World’s 36th Biodiversity Hotspot: The North American Coastal Plain, CRITICAL ECOSYSTEM PARTNERSHIP FUND (Feb. 18, 2016), https://www.cepf.net/stories/announcing-worlds-36th-biodiversity-hotspot-north-american-coastal-plain. Unfortunately, Southeastern ecosystems are as imperiled as they are diverse; much of this landscape has been “highly altered or converted to anthropogenic land cover,”11Id. and as a result, many species in the region have suffered devastating population declines. The Southeast is home to a multitude of species and habitats protected by the ESA, many of which are threatened by severe habitat degradation and loss. Across the Southeast,12“The Southeast” is defined here to include the states of Virginia, North Carolina, South Carolina, Georgia, Alabama, and Tennessee. there are currently 258 species that receive ESA protections by their classification as endangered (177), threatened (78), or experimental populations (32).13For a full list of listed species in the Southeast, see SELC Comments Opposing ESA Rollbacks at Appendix A. Please note that numbers may not necessarily add up because some species are listed differently based on their geographic range. Changes since 2018 have been updated in the text, and an updated table is available upon request. Currently, more than 77 million acres and 24,000 miles of critical habitat14Rivers, shoreline, and other linear habitat features are measured in miles, while non-linear habitat features such as lakes and ocean area are measured in acres. have been designated in the Southeast to protect 85 different species of all taxonomic groups.15See SELC Comments Opposing Habitat Definition at 3-4 (detailing unique biodiversity and habitat of Southeast).
Unfortunately, as explained in our previous comments, the Southeast’s habitats currently face many threats from human activities, and the consequences of human presence are becoming increasingly problematic.16See id. at 4 (detailing threats from habitat loss in the Southeast). Threatened and endangered species across the Southeast depend upon habitat protections to survive and recover—and are harmed by the Services’ unduly restrictive regulatory definition of what areas are currently eligible to be considered “habitat” under the ESA.
B. Climate Change Will Exacerbate Threats to Habitat
To further complicate these issues, climate change is predicted to significantly transform habitats throughout the Southeast in the near future, introducing additional threats to the already imperiled species and habitats in the region.17Jennifer Costanza et al., Assessing climate-sensitive ecosystems in the southeastern United States, U.S. GEOLOGICAL SURVEY (2016), https://pubs.er.usgs.gov/publication/ofr20161073. The Intergovernmental Panel on Climate Change reports that human activities are estimated to have caused approximately 1.0°C (1.8°F) of global warming above pre-industrial levels, and global warming is likely to reach 1.5°C (2.7°F) between 2030 and 2052 if it continues to increase at the current rate.18Intergovernmental Panel on Climate Change, 2018: Summary for Policymakers, in SPECIAL REPORT: GLOBAL WARMING OF 1.5°C (Valérie Masson-Delmotte et al. eds., 2018), https://www.ipcc.ch/sr15/chapter/spm/. Approximately 5 percent of global terrestrial land area may be expected to completely change ecosystem types (e.g., from temperate forest to arid savanna) at this level of warming.19Id. at 10.
Climate change will lead to habitat degradation and/or loss in the Southeast in myriad ways, including: higher temperatures, extreme precipitation, increased drought, more frequent and intense wildfires, rising sea levels, increased flooding, higher invasive species prevalence, shifting ocean currents, and increased storm frequency and intensity.20See SELC Comments Opposing Habitat Definition at 5-7 (detailing threats from climate change in the Southeast). As a result, it is likely that the Southeast will see large species range shifts in the coming decades, but the pre-existing issues of development and urban sprawl in the Southeast will almost certainly hamper the ability of species to move in response to these threats.21Furthermore, as the Services have now acknowledged, a definition of “habitat” was never required by the Supreme Court’s decision under Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018). See 86 Fed. Reg. at 59,355; see also SELC Comments Opposing Habitat Definition at 9 (explaining the same). As a result, biodiversity loss is inevitable, but should be minimized by climate-smart policies that proactively protect unoccupied habitat and help restore degraded habitat.22Furthermore, as the Services have now acknowledged, a definition of “habitat” was never required by the Supreme Court’s decision under Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018). See 86 Fed. Reg. at 59,355; see also SELC Comments Opposing Habitat Definition at 9 (explaining the same).
A. Habitat Conservation is Vital to the Endangered Species Act
Congress enacted the ESA in 1973 because species of wildlife and plants across the United States were being “rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation.”2316 U.S.C. § 1531. As we laid out in our previous comments, legislative history establishes that Congress regarded the threat of habitat loss as a prime driver of species extinction,24See Tenn. Valley Auth. v. Hill, 437 U.S. at 179-80 (quoting and summarizing legislative history regarding habitat loss and destruction). and enshrined the importance of habitat preservation to species in the statute itself.25See SELC Comments Opposing Habitat Definition at 7-8. The first purpose of the ESA is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”2616 U.S.C. § 1531.
Importantly, conservation under the Act means not only the survival of these species and habitats, but recovery to the point at which the conservation measures provided by the statute are no longer necessary.27Id. § 1532. As acknowledged by the Supreme Court, “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.”28Tenn. Valley Auth, 437 U.S. at 184. To achieve this, the FWS has repeatedly acknowledged that “[i]dentification of the habitat needs of listed species and the conservation of such habitat is the key to recovering endangered and threatened species.”29Notice of Intent to Clarify the Role of Habitat in Endangered Species Conservation, 64 Fed. Reg. 31,871 (June 14, 1999) (emphasis added).
B. The “Habitat” Definition Conflicts with the Statutory Definition of Critical Habitat and Impairs Species Recovery
The definition of “habitat” that the Services adopted in that final rule states that: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”3050 C.F.R. § 424.02. This definition adopted by the Services conflicts with the conservation and recovery purposes of the ESA by narrowing the scope of habitat eligible for critical habitat consideration. When endangered or threatened species are listed under the Act, the Services are required by the statute to designate areas that are essential to the conservation and recovery of the species as critical habitat.31See 16 U.S.C. § 1533. Any rule that prevents them from doing so, such as the current definition of “habitat,” is contrary to this statutory mandate and illegal under the ESA.
As described in detail in our attached September 2020 comment letter, the “habitat” definition limits the Services’ ability to implement the ESA in several ways: (1) the definition prevents consideration of the effects of climate change on habitat, especially range shifts; (2) the definition prevents the designation of degraded habitat that does not currently support the species in question but could be restored; (3) the definition, despite its inclusion of the term “periodically,” may hinder the designation of seasonal and ephemeral habitats that are essential to conservation; and (4) the definition may prevent designation of critical habitats where the precise resources or conditions necessary to support the life processes of a species are not well understood.32SELC Comments Opposing Habitat Definition 9-16.
Altogether, these deficiencies in the “habitat” definition create a blanket exclusion of areas that do not currently or periodically contain the requisite resources or conditions necessary to support the life processes of a species, even if the habitat could easily be restored to fill that purpose, or if it is expected to soon fill that purpose on its own as a result of climate change or other natural processes. Yet designating degraded, suboptimal, or not currently used habitat areas may be essential for the conservation and recovery of some species.3316 U.S.C. § 1532 (defining conservation).
The “habitat” definition also conflicts with President Biden’s January 20, 2021 Executive Order 13990, which establishes a policy of science-based decision-making and improving resilience in the face of climate change.34Executive Order 13,990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Jan. 20, 2021). To effectuate this policy, the order instructs agencies to take action towards protecting our environment and to “immediately commence work to confront the climate crisis.”35d. at Sec. 1. Similarly, President Biden’s January 27, 2021 Executive Order 14008 calls for “bold, progressive action” to “combat the climate crisis” by, among other things, “increas[ing] resilience to the impacts of climate change.”36c These Executive Orders serve as yet another reason to rescind the Services’ “habitat” definition, as it is inconsistent with that policy of science-based decision-making and ignores the impacts of climate change on imperiled species.
III. THE FWS CRITICAL HABITAT EXCLUSION RULE SHOULD SIMILARLY BE RESCINDED BECAUSE IT IS INCONSISTENT WITH THE ESA
For many of the same reasons identified above, we also support the FWS’s proposal to rescind the critical habitat exclusion regulations that became effective in early 2021.3786 Fed. Reg. 59,346; see also Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat, 85 Fed. Reg. 82,376 (Dec. 18, 2020) (final rule amending critical habitat exclusion regulations at 50 C.F.R. pt. 17). Like the “habitat” definition, these changes fundamentally curtail the ability of the agency to extend much-needed habitat protections, undermining the conservation purposes of the ESA.
As FWS recognizes in its instant proposal, the changes to FWS’s critical habitat exclusion analysis regulations created an unnecessary and counterproductive process that would increase how often the agency would exclude otherwise-eligible habitat from a critical habitat designation. The exclusion rule impairs FWS’s ability to exercise discretion in critical habitat exclusion decisions by mandating when FWS will conduct an exclusion analysis, how the agency must weigh impacts, and even when certain areas must be excluded—even if the best available science would require otherwise.38See 50 C.F.R. § 17.90.
The exclusion rule forces the Service to conduct an exclusion analysis whenever a proponent of excluding a particular area presents “credible” information regarding the existence of a meaningful economic impact that weighs in favor of exclusion.39Id. § 17.90(c)(2)(i). Similarly, the rule gives disproportionate weight to non-biological information identified by interested permittees or contractors, as well as any state, local, or tribal governments.40Id. § 17.90(d).
The exclusion rule’s treatment of federal lands could seriously undermine species conservation and recovery in the Southeast. Our region is home to a variety of federal lands that play key roles in supporting imperiled species in the face of increasing development pressures and habitat loss. The Southeast boasts lands protected as National Forests, National Wildlife Refuges, National Seashores, and National Parks, which in turn serve as habitat for a wide variety of wildlife. As the Service recognizes in the current proposed rescission, federal lands are important to species recovery objectives and in fact come with unique statutory obligations to conserve ESA-listed species and habitats, including under Section 7(a)(1) of the ESA.4186 Fed. Reg. at 59,349-50. Despite this, the exclusion rule reverses the Service’s prior policy of generally not excluding federal lands from designation and imposes the same exclusion requirements on federal lands as non- federal lands.
Simply put, the exclusion rule further deprioritizes the conservation needs of imperiled species by giving industrial interests the power to virtually dictate where FWS must exclude critical habitat from protection, even on federal lands. Tipping the scales against protecting habitat in this way is contrary to the conservation purposes of the ESA.
IV. CONCLUSION
As FWS recognizes in the proposed rescission of the habitat exclusion rule, the Supreme Court has characterized the ESA as enshrining “a policy [of] institutionalized caution.”42Id. at 59,350 (citing Tenn. Valley Auth., 437 U.S. at 194) (internal quotations omitted). That policy counsels toward ensuring that the Services maintain the ability to protect habitat and ecosystems necessary for the recovery of species. The definition of “habitat” and the FWS critical habitat exclusion regulations are unnecessary and antithetical to the conservation purposes and requirements of the ESA. We support the Services’ proposals to undo these regulatory changes and encourage the Services to finalize these rescissions as quickly as possible. Finally, we further urge the Services to promptly rescind or revise the other harmful changes made to the ESA implementing regulations in August of 20194384 Fed. Reg. 44,753 (Aug. 27 2019) (final rule revoking blanket 4(d) rule for FWS managed species); 84 Fed. Reg. 44,976 (Aug. 27 2019) (final rule revising Section 7 regulations); 84 Fed. Reg. 45,020 (Aug. 27 2019) (final rule revising Section 4 regulations).
as the agency recommits to science-based decision-making and combatting climate change in compliance with Executive Orders 13990 and 14008. We look forward to working with the Biden Administration to enhance protections for our ecosystems in the face of the climate change and extinction crises.
Thank you for your consideration of these comments.
Sincerely,
On behalf of:
Alabama Rivers Alliance
Cindy Lowry, Executive Director
American Rivers
Ted Illston, Senior Director, Policy & Government Relations
Animal Welfare Institute
Johanna Hamburger, Terrestrial Wildlife Program Director and Senior Staff Attorney
Audubon Society, Cape Henry Chapter
Pat Quinn, President
Audubon Society, New Hope Chapter
Barbara Driscoll, President
Audubon Society, Northern Virginia Chapter
Tom Blackburn, President
Audubon Society, Ogeechee Chapter
Leslie Weichsel, President
Audubon Society, Warioto Chapter
Dr. Steven W. Hamilton, President
Cahaba River Society
Ben Wegleitner, River Sustainability Director
Cape Fear River Watch
Kemp Burdette, Riverkeeper
Center for a Sustainable Coast
David Kyler, Executive Director
Chattooga Conservancy
Nicole Hayler, Director
Coalition to Protect America’s National Parks
Philip A. Francis, Jr., Chair
Coastal Plain Conservation Group
Andy Wood, Director
Congaree Riverkeeper
Bill Stangler, Riverkeeper
Coosa Riverkeeper
Chad Hoffman, Program Director
Endangered Species Coalition
Tara Thornton, Deputy Director
Florida Wildlife Federation
Preston T. Robertson, President & CEO
Friends of Buckingham
Chad Oba, President & Co-Founder
Friends of Nelson
Doug Wellman, President
Georgia ForestWatch
J.D. McCrary, Executive Director
Highlanders for Responsible Development
Rick Lambert, President
Initiative to Protect Jekyll Island
Mindy Egan, Co-Director
International Crane Foundation
Anne Lacy, Senior Manager, North America Programs
Marine Conservation Institute
Dr. Lance Morgan, President & CEO
MountainTrue
Josh Kelly, Public Lands Biologist
North Carolina Conservation Network
Grady McCallie, Policy Director
North Carolina League of Conservation Voters
Carrie Clark, Executive Director
North Carolina Wildlife Federation
Manley Fuller, Vice President of Conservation Policy
Ocean Conservation Research
Michael Stocker, Director
Potomac Riverkeeper Network
Phillip Musegaas, Vice President of Programs & Litigation
Save Our Saluda
Melanie Ruhlman, President
Shoals Environmental Alliance
Charles L. Rose, President
Sierra Club, Tennessee Chapter
Axel C. Ringe, Conservation Chair
Sound Rivers
Jill Howell, Pamlico-Tar Riverkeeper
South Carolina Coastal Conservation League
Laura Cantral, Executive Director
South Carolina Wildlife Federation
Sara Green, Executive Director
St. Marys EarthKeepers
Alex Kearns, Chair
The Clinch Coalition
Sharon Fisher, President
The Dolphin Project
M. Peach Hubbard, President
Virginia Conservation Network
Pat Calvert, Senior Policy & Campaigns Manager
Waterkeeper Alliance
Kelly Hunter Foster, Senior Attorney
Waterkeepers Chesapeake
Betsy Nicholas, Executive Director
Whale and Dolphin Conservation
Regina Asmutis-Silvia, Executive Director
Wild Virginia
David Sligh, Conservation Director
Wildlands Network
Dr. Ron Sutherland, Chief Scientist