Kansas joins an 18 State lawsuit on FWS Critical Habitat Rule
The Kansas Attorney has joined a Lawsuit challenging changes in how US Fish and Wildlife Services (USFWS) defines Critical Habitat under the Engendered Species Act.
The Critical Habitat Rule changes the way federal managers determine what constitutes critical habitat, with FWS asserting the Rule only applies to areas that have a federal nexus.
The new Rule violates the organic language in the Endangered Species Act because FWS can now extend Critical Habitat protection to those areas where no Threatened or Endangered species currently reside.
ESA allows FWS to only consider a Critical Habitat designation for lands or waters which are not currently host to species if those lands are essential to the recovery process – in other words, if the species cannot recover absent those habitats.
The new rule got rid of that provision. FWS and NMFS can now consider both occupied and unoccupied habitat at the same time, rather than first trying to make a conservation plan work with just occupied habitat. The lawsuit asserts that the Rule illegitimately expands government’s control over state and private resources.
As is usual, FWS states the Rule will “clarify criteria and procedures,” allowing for a more “transparent” process. (Readers might recall similar statements from EPA on the Waters of the US Rule).