18 States Sue Feds Over Expanding ‘Critical Habitat’ to Areas With No Protected Species

Barbara Hollingsworth | December 9, 2016 | 5:48pm EST
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A threatened piping plover with chick. (US Fish & Wildlife Service)

(CNSNews.com) – Eighteen states have filed a lawsuit against the federal government over Final Rules that expand the definition of “critical habitat” to include areas that are currently unoccupied by any threatened or endangered species.

The Final Rules, Listing Endangered and Threatened Species and Designating Critical Habitat, which were published in the Federal Register on February 11 and went into effect March 14, expand the definition of “critical habitat” to include areas in which “species presence or habitats are ephemeral in nature, [or] species presence is difficult to establish through surveys (e.g. when a plant’s ‘presence’ is sometimes limited to a seed bank).”

“The Final Rules are an unlawful attempt to expand regulatory authority and control over State land and waters,” argues the multi-state lawsuit, which was filed November 29th in U.S. District Court for the Southern District of Alabama against Interior Secretary Sally Jewell, Commerce Secretary Penny Pritzker, and the National Marine Fisheries and U.S. Fish and Wildlife Services by Alabama Attorney General Luther Strange.

The Final Rules allow the Services to declare areas occupied critical habitat that are not occupied by the species and that could not support the species were it moved there, on the supposition that one day the essential physical and biological features might develop and the species might return,” according to the lawsuit.

“The ESA [1973 Endangered Species Act] cannot support this interpretation," it added, noting that the Final Rules make it “easier for the Services to designate unoccupied areas critical habitat than it is to designate occupied areas.”

The ESA defines critical habitat as “specific areas within the geographical area occupied by the species at the time it is listed…on which are found those physical or biological features essential to the conservation of the species.”

But the Final Rules would allow the federal government “to designate areas as occupied critical habitat… even when those areas are neither occupied nor contain those features,” thus extending federal authority over areas where there may be only “indirect or circumstantial evidence of occupation ‘during some portion of the listed species’ life history’,” the lawsuit pointed out.

 “Under this interpretation, [the federal government] could designate entire States or even multiple States as habitat for certain species” in contravention of congressional intent, the lawsuit maintains.

It would also allow federal agencies “to declare that almost any activity destroys or adversely modifies critical habitat under the theory that such activity might prevent the eventual development of the physical or biological characteristics necessary to support an endangered or threatened species,” the lawsuit argued.


The state attorneys general further argued that the Final Rules will “impede” conservation efforts in their states.

“Statutory and constitutional limitations on the authority of federal agencies protect citizens from the intrusion of the federal government into areas where local knowledge is critical to designing effective rules and policies. The preservation of habitat critical to threatened and endangered species is one of those areas,” they argued.

“By displacing local regulatory authority, the Final Rules impede, rather than advance, efforts to protect endangered and threatened species around the country.”

The Final Rules on critical habitat were made in response to President Obama’s Executive Order 13563, in which he directed federal agencies to update their existing regulations.

"Washington bureaucrats have gone beyond common sense by seeking to expand their control to private property adjoining the habitat of an endangered species solely on the basis that these areas might one day be home to a threatened species," Strange said in a Nov. 29 statement announcing the lawsuit.

“The Obama administration is hiding behind bogus rules to perpetrate land grabs, kill energy projects and block economic development,” Texas Attorney General Ken Paxton, a party to the lawsuit, said.

“This is nothing more than yet another end run around Congress by a president who is desperate to establish his environmental legacy by any means necessary before his time in office ends.”

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