Re: Comments on Proposed Rule; Regulatory Definition of “Habitat” Pursuant to Endangered Species Act, 86 Fed. Reg. 59,353 (Oct. 27, 2021) – Docket No.: FWS-HQ-ES-2020-0047

Dear Ms. Fahey and Ms. Somma:

The Resource Development Council for Alaska, Inc. (RDC) is writing to comment on the efforts of the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) to clarify one of the Nation’s most impactful environmental laws—the Endangered Species Act (ESA). 

RDC is a statewide trade association comprised of individuals and companies from Alaska’s fishing, forestry, mining, oil and gas, and tourism industries. RDC’s membership includes Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

Precisely defining the concept of “habitat” is essential to ensuring that the ESA achieves protection of fish, wildlife, and plant populations without unduly burdening economic growth, job creation, and private property rights. RDC is concerned that these prior efforts by the Services to improve the ESA and its implementation are being rescinded without adequate explanation or consideration. RDC requests that the Services retain the existing definition or act to replace the definition with a new one that will ensure further clarity for the regulated community and place appropriate limits on the question of whether particular areas are “habitat” when they do not presently contain the necessary attributes to support the species, as recognized in Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., 139 S. Ct. 361 (2018).

RDC would like to emphasize the following comments in response to the Proposed Rule rescinding the regulatory “habitat” definition. The Proposed Rule fails to provide a substantive, reasoned analysis for the agency’s change in position and ignores reliance interests affected by the Proposed Rule. Removing the regulatory definition of “habitat” significantly alters the Services’ view on unoccupied habitat, creating unnecessary regulatory uncertainty and the potential for inconsistent application. To the extent the Services are concerned with vague terminology in the current rule, the Services should clarify the definition rather than rescinding it entirely; retaining the regulatory definition of “habitat” will assist the regulated community and the public in understanding when the Services will consider an area to be habitat and, possibly, critical habitat, particularly when an area is unoccupied.

Alaska’s economy is supported largely by development, and Alaska is disproportionately impacted by ESA listings and associated designations of critical habitat which hinder or potentially stop critical development projects. RDC believes that an approach to critical habitat that increases the cost, complexity, and uncertainty is disfavored and disproportionately burdens Alaska stakeholders, many whom are Alaska Natives. The Services should pursue policy objectives that balance the needs of resource protection and development and do so in a manner that increases certainty and predictability, and which minimizes costs and delay. RDC believes that rather than clarifying the meaning of “habitat,” and therefore what areas are eligible to be designated critical habitat, the Services’ Proposed Rule will lead to regulatory confusion and uncertainty.

Regulatory certainty is of the utmost importance for the regulated community, especially where Congress has not provided explicit direction regarding an important term such as “habitat” under the Endangered Species Act. In fact, whether an area constitutes “habitat” may have significant consequences for RDC members both in the form of public lands management decisions by federal agencies and for industry actions on private lands and waters throughout the United States.

An ESA habitat determination has implications on Section 7 consultations for public land management decisions, federal permitting decisions, and federal loans; as well as for potential critical habitat designations; and enforcement of the ESA’s Section 9 “take” prohibition. While these determinations may positively impact species if made appropriately, they also can carry huge restrictions and costs for industry and private landowners and may lead to perverse incentives contrary to the purposes of the ESA if they are not approached thoughtfully, while ultimately providing no benefit to the species of concern. As such, there must be a clear and meaningful distinction between habitat and non-habitat.