Public Comment on the Proposed Recession of the Exclusion Rule

Gray Wolf. ©USFWS

A public comment submitted to the Fish and Wildlife Service regarding the proposed rescission of its recently finalized rule governing designation of critical habitat. 

Main Point:
  • Critical habitat designations can make habitat features a liability for private landowners, thereby discouraging conservation.
  • Ultimately, the decision to include or exclude areas in critical habitat designations should be guided by the effect a designation would have on landowners’ incentives to conserve and restore habitat.
  • Neither the current rule nor its predecessor is fully consistent with this principle and, therefore, the Fish and Wildlife Service should modify its approach to account for private-landowner incentives.

PERC’s research has found that critical habitat designations can make habitat features a significant liability for private landowners, which can discourage them from conserving, maintaining, or restoring such features. The Endangered Species Act directs the Service to account for these perverse incentives by requiring it to consider the economic and other impacts of designations and allowing areas to be excluded unless an exclusion would cause the species extinction. Ultimately, a decision to designate private land as critical habitat should be guided by the effects a designation will have on a landowner’s incentive to conserve and restore habitat. Neither the current rule nor the prior policy, which the Service proposes to restore, are fully consistent with this principle. Therefore, to promote conservation and reduce conflict, the Service should reform its process for designating critical habitat to ensure that designations create the right incentives for private landowners.

Read PERC's full comment

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