Nov 23, 2015 Opinion: Proposed critical habitat regulation poses threat to state economy (Casper Star-Tribune)
“IPAA supports the designation of critical habitat when it is done in a manner that is consistent with the Endangered Species Act and balances conservation and economic development.”
Proposed critical habitat regulation poses threat to state economy
By Dan Naatz, IPAA Senior Vice President of Government Relations and Political Affairs
November 23, 2015
The ability to designate critical habitat — areas that are necessary to the survival or recovery of a species — is an essential tool of the Endangered Species Act (ESA).
When used appropriately, it helps ensure that important areas where endangered or threatened species reside are not destroyed or adversely modified. Unfortunately, the U.S. Fish and Wildlife Service has recently proposed new regulations that would dramatically expand the areas that could be designated as critical habitat. This expansion in authority has no basis in law and could threaten economic development activities and job creation across the country.
Under the new rule, FWS would be able to designate areas as critical habitat that are not presently (and perhaps never will be) necessary to the survival of a species. The new rule would essentially turn the FWS into a National Zoning Commission, with the authority to set aside tracts of land for species conservation based solely on its projections about the effects that climate change may have on current habitat.
This is a sharp departure from current regulation, which generally limits critical habitat designations to areas that are currently occupied by species. Only under special circumstances does the law allow critical habitat designations of unoccupied areas and it requires that two conditions be met: 1) the occupied habitat must presently be inadequate to ensure the conservation of the species; and 2) the unoccupied habitat must presently have physical or biological features that are essential to the survival of the species.
Under the proposed rule, FWS would no longer need to meet either of these two conditions. To make a designation, FWS would simply need to find that “it is reasonable to infer from the record that [the unoccupied areas] will eventually become necessary to support the species’ recovery.”
For example, if the FWS believes that a low-lying area currently occupied by a species may eventually become too hot, it may designate as critical habitat an upland area nearby on the theory that this area could potentially serve as a future location to which the species could migrate.
The FWS has also proposed two other regulatory changes that would impact critical habitat designations. The first includes a change to the definition of “destruction and adverse modification,” which would authorize FWS to protect not only habitat features that are currently present, but features that could someday develop and become essential to the conservation of the species. The other proposed regulation would change how FWS grants exclusions from critical habitat designations and would essentially adopt, as policy, a defacto moratorium on considering federal lands for exclusion.
Taken together, these proposals would change the way critical habitat is designated across Wyoming and the country, drastically expanding the areas of land that could be eligible for designation. All federally permitted activity in areas that are designated – from oil and natural gas production, to homebuilding, to transportation and infrastructure projects – would face increased regulatory hurdles and uncertainty. This could result in project delays, increased costs and job losses as unoccupied lands are suddenly placed off-limits or are made the subject of new restrictions on development. For a state like Wyoming, where significant economy activity is supported by energy development and homebuilding, the effects could be greatly felt. In 2013, residential construction employed 6,390 workers in Wyoming and over 8.5 percent of all jobs in the state are tied to energy production. FWS’ new regulation could put many of these jobs and the economic development they support at risk.
The FWS’ re-interpretation of critical habitat and proposed expansion of authority is not supported by the ESA and is at odds with the intent of Congress that critical habitat be limited in scope and focus on the immediate survival needs of species. Species conservation and environmental protection is critical to all stakeholders, including the people who work and live in Wyoming. But this protection must include a reasonable regulatory structure that is based in current law and allows responsible economic activity to continue.
We support the designation of critical habitat when it is done in a manner that is consistent with the ESA and balances conservation and economic development. However, these proposals grant unprecedented new authority to the FWS and could significantly expand both the size of future critical habitat designations and the magnitude of their impact on job creators and private landowners. This is the wrong choice for our economy and our environment.
Naatz is the senior vice president of government relations and political affairs for the Independent Petroleum Association of America, the leading, national upstream trade association representing oil and natural gas producers that drill 95 percent of the nation’s oil and natural gas wells. Naatz previously served as chief of staff to former U.S. Senator Craig Thomas (R-WY).