Further Evisceration of the Endangered Species Act


In a yet to be published document the U.S. Fish and Wildlife Service (FWS), proposes to amend portions of their regulations that implement section 4 of the Endangered Species Act.

The proposed revisions set forth a process for excluding areas of critical habitat under section 4(b)(2) of the Act (as amended), “which mandates our consideration of the impacts of designating critical habitat and permits exclusions of particular areas following a discretionary exclusion analysis.”

Though FWS claims that “the intended effect of this proposed rule is to provide greater transparency and certainty for the public and stakeholders,” it is obvious that this change will further prevent protecting and restoring habitat necessary for endangered species recovery, as the Department of Interior seeks to “identify regulations for repeal, replacement, or modification.”

Under this proposal, prior to finalizing the designation of critical habitat, the Secretary will consider the probable economic, national security, and other relevant impacts of the designation upon proposed or ongoing activities; the Secretary also has discretion as to whether to conduct an exclusion analysis under 16 U.S.C. 1533(b)(2). (page 36)

The rule is scheduled to be published on 09/08/2020. We will update this post at that time with a link for commenting. You may also submit your comment via the Federal eRulemaking Portal. In the Search box, enter FWS–HQ–ES–2019–0115, which is the docket number for this rulemaking. Then, in the search panel on the left side of the screen, (under the document type heading) click on the Proposed Rules link to locate this document. Submit a comment by clicking on “Comment Now!”

Read the unpublished document here.

Update: the publication of this latest document in the Federal Register may be viewed here. To submit a comment click here or here. Comments are due by October 8, 2020 before 11:59 p.m. ET.


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