On September 8, 2020, the U.S. Fish and Wildlife Service (FWS) issued a proposal under the Endangered Species Act (ESA) addressing how FWS will conduct discretionary analyses to determine whether to exclude land that otherwise would be constrained from use due to a critical habitat designation. Under the proposal, FWS will consider whether there is “credible information” to support an exclusion, including from firsthand observers or state and local governments, and the agency can consider whether it can rebut this information. It will also consider excluding areas based on the avoided costs of additional permitting (including on federal lands), incremental economic impacts, and areas already covered by ESA section 10 permits. The proposal is open for comment until October 8, 2020, suggesting an agency interest in progressing the rulemaking quickly. If the rule is finalized in similar form to the proposal, it is likely to be challenged in court.
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