New Obama Administration Habitat Rules Grant Limitless Discretion to Federal Agencies

Washington, D.C. – Today, the House Committee on Natural Resources held an oversight hearing on the Obama Administration’s expansive new definitions and revised criteria for designating critical habitat under the Endangered Species Act.

Chairman Rob Bishop (R-UT) argued the new rules allow the

U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration’s (NOAA) Fisheries Service nearly limitless discretion in restricting private and federal land use. He pointed out the negative impact they will have on the American people.

“These rules will now make it even easier for the federal government to absorb larger and larger swaths of land and water […] from local, state governments and private citizens. […] It’s going to hurt people, and unfortunately those people who are going to be hurt have almost no recourse towards this particular situation,” Bishop said.

The rules usurp Congress’ legislative and constitutional prerogatives, and create sweeping new authorities to designate critical habitat at the agencies’ sole discretion.  

“The Services have essentially granted to themselves authority to designate any area that may, someday in the future, become suitable for a species—even in places where there is absolutely no evidence currently that the species have existed there. […] In the future, I expect the agencies to ask Appropriations for tarot cards and ouija boards so they can do the work under this expanded rule," Bishop stated.

Vice Chairman Cynthia Lummis (R-WY) highlighted the expected litigious challenges that will result from the new rules and called for an updated conservation strategy.

“Court battles slow down the ability to recover species and steal money from recovery. We need a new 21^st century conservation effort that is consistent with the movement that the American people have made in their understanding of sound science. […] We can and should do better for our wildlife,”  Lummis stated.  

Wyoming witness Karen Budd-Falen, Senior Partner of Budd-Falen Law Offices, LLC, grew up a fifth-generation rancher and commented on the impact the rules will have on the local agriculture community.

“While the agriculture community raised a huge alarm over the ‘waters of the U.S.,’ the Fish and Wildlife Service was quietly implementing these new rules, in a piecemeal manner, without a lot of fanfare. Honestly, I believe these new habitat rules will have as great or greater impact on the private lands and federal land permits […]. I would hope that the outcry from the agriculture community, private property advocates, and our Congressional delegations would be as great,” Budd-Falen said.

Colorado witness Robbie LeValley, County Administrator of Delta County, argued the new rules will not benefit habitat species and will have a negative economic impact on ranchers and rural communities.

“Imposing regulatory change on grazing without any scientific basis is unwarranted and makes it clear that this Administration’s intent is to manage away from productive uses, rather than actually protecting species and their habitat,” LeValley stated.

Highlighting the FWS’s inconsistent track record on ESA implementation, Rep. Dan Newhouse (R-WA) asked Dan Ashe, Director of FWS, why—despite growing numbers of wolves—the Service has not finalized its 2013 proposed wolf delisting.

“The wolf is probably one of the most frustrating issues during my tenure as Director. […] We’re kind of like that truck that’s in the mud up to the running board, so you know we can’t go forward and we can’t go backward,” Ashe responded.