U.S. Fish and Wildlife Service Moves to Rescind Rule Defining “Habitat”

News for Immediate Release
October 26, 2021
Contact: Kat Dwyer, 406-587-9591, kdwyer@perc.org

Bozeman, MT—The Fish and Wildlife Service proposed today to rescind a regulation, issued in 2020, defining the term “habitat” for purposes of designating critical habitat under the Endangered Species Act. FWS proposes to interpret “habitat” on a case-by-case basis going forward, rather than follow any consistent interpretation. Additionally, FWS has proposed to rescind another 2020 regulation discouraging critical habitat designations where the costs significantly exceed any benefit.

The proposed repeals are likely to exacerbate conflict and alienate private landowners on whom species recovery depends. Research by PERC scholars has shown that critical habitat designations can have perverse effects when applied to private land. Such designations make important and rare habitat features a significant liability for landowners, with a recent study confirming that they can reduce land values by 50% or more. 

“Finding ways to incentivize conservation and restoration of habitat is critical to the recovery of countless endangered and threatened species,” says Jonathan Wood, PERC’s Vice President of Law and Policy. “Unfortunately, these proposed repeals distract from that goal rather than advancing it. While the 2020 rules were not perfect, axing them without consideration of their benefits or how they could be improved serves only to generate conflict and litigation. It does nothing to solve the fundamental problem of making rare species and their habitats a liability for landowners to avoid rather than an asset to conserve.”


For more information on PERC’s Endangered Species Act research, explore our report “The Road to Recovery: How restoring the Endangered Species Act’s two-step process can prevent extinction and promote recovery.

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