USFWS Expanding the Definition of Critical Habitat

December FloridAgriculture E-Newsletter

On October 27, 2021, the U.S. Fish and Wildlife Service (USFWS) published two proposed Rules in the Federal Register to rescind critical habitat regulations.  The agency action removes the definition of “habitat” established by the rule titled “Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat” that was published on December 16, 2020.

Critical habitat is defined as an area essential to the conservation of a species that may require special management or protection.

The rescind will give the agency more preference in determining critical habitat and will likely lead to private property rights infringements that will need to be litigated.

In November 2018, the U.S. Supreme court handed a victory to timber company Weyerhaeuser Co and other landowners seeking to limit the federal government’s power to designate private land as protected habitat for endangered species in a property rights case involving the Dusky Gopher frog.

Pacific Legal Foundation litigated this case for the defendants who claimed that the frog was never recorded on the private lands deemed critical habitat.  The agency argued that landowner activities (tree planting) made the land favorable to habitation for the frog to flourish.

Though the Supreme Court was unanimous, the ruling does have limitations and may not be entirely protective of agency overreach.  Florida Farm Bureau staff daily tracks federal agency action and is in regular contact with Pacific Legal Foundation.