Public Comment on Regulations for Designating Critical Habitat

PERC weighs in on the U.S. Fish and Wildlife Service’s proposed rule change regarding critical habitat under the Endangered Species Act.

Black-footed ferrets. Photo courtesy of USFWS.

The U.S. Fish and Wildlife Service has proposed a rule change to clarify its process for excluding land from critical habitat under the Endangered Species Act. PERC has submitted a public comment in support of this proposed rule change.

Summary
  • Critical habitat designations on private land can discourage property owners from maintaining or restoring habitat for listed species.
  • Clarifying when areas will be designated as “critical habitat” under the Endangered Species Act can reduce conflict and build landowner goodwill for conserving and recovering many listed species. 
  • Ultimately, the decision to include or exclude areas in critical habitat designations should be guided by one factor above all others: the effect of the designation on landowners’ incentives to conserve and restore habitat. 
Introduction

The Property and Environment Research Center (PERC) respectfully submits this comment supporting the U.S. Fish and Wildlife Service’s proposed rule to clarify its process for excluding land from critical habitat under the Endangered Species Act. PERC is a nonprofit research institute located in Bozeman, Montana that explores market-based solutions to environmental problems. Founded in 1980, PERC’s mission is to improve environmental quality through markets, entrepreneurship, and property rights. PERC conducts original research that applies free market principles to resolve environmental disputes in a cooperative manner. 

The Service is right to clarify how critical habitat areas will be excluded under section 4(b)(2) of the Endangered Species Act. Identifying the criteria for critical habitat exclusions can help reduce conflicts over critical habitat designations on private lands. 

As the recent Supreme Court case Weyerhaeuser v. Fish and Wildlife Service demonstrates, critical habitat designations on private lands can penalize landowners for the presence of habitat features on their property, in effect discouraging landowners from conserving or restoring habitat for species listed under the Endangered Species Act or those that may be listed in the future. This approach gets the incentives wrong for conservation, benefiting neither landowners nor the imperiled species who depend on private lands for habitat and rely on human intervention for conservation and recovery. 

To address critical habitat’s “private-land problem,” the Service’s final rule should make clear that, in weighing the benefits of inclusion against the benefit of exclusion, the Service must carefully consider the effect of its decision on landowners’ incentives to conserve and restore habitat.  Designations that make habitat features a significant liability for private landowners may, perversely, incentivize preemptive habitat destruction rather than protection. In such cases, the Service should exclude the land from critical habitat and look to other regulatory and market-based tools that provide better incentives.

Read PERC’s full public comment on regulations for designated critical habitat.


Virtual Policy Briefing

In this virtual policy briefing, experts from the Pacific Legal Foundation and the Center for Growth and Opportunity explain the impact of the proposed critical habitat reforms and share their insights on where the rules will succeed or need improvement.

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