A coalition representing counties, business and labor has reached an agreement with the U.S. Fish and Wildlife Service that will initiate a public regulatory rulemaking process for reevaluating critical habitat designated for the Northern Spotted Owl (NSO) under the Endangered Species Act (ESA).
The agreement was filed Monday in the U.S. District Court for the District of Columbia and is subject to court approval.
The agreement is related to a unanimous 2018 U.S. Supreme Court decision finding the ESA does not authorize the government to designate lands as critical habitat unless it is in fact habitat for the species. The Supreme Court also ruled that courts can review government evaluations of the impact of designating critical habitat, which the lower courts had refused to allow for over 30 years.
The coalition brought legal action after the Fish and Wildlife Service designated 9.5 million acres of mostly federal lands as NSO critical habitat across Washington, Oregon and Northern California in 2012. This was 38 percent more than was set aside in 1992 following the listing of the NSO. The coalition’s legal action focused on the inclusion of millions of acres of forests not occupied by the species, including over 1.1 million acres of federal lands designated for active forest management activities and where no owls are present.
The ESA requires the federal government to take “into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” The coalition argued the 2012 NSO designation violated the ESA by failing to consider any negative effects from designating areas that aren’t used by the NSO and never will be.
“Our coalition supports balanced federal policies that carefully follow sound science while recognizing and considering the economic and social needs of our rural communities. This agreement will provide a public process that will enable federal agencies to develop a policy that is based in federal law and modern science. It will also enable agencies to better manage public lands to improve forest health, support local economies, while providing outdoor recreation and habitat for other species,” said Travis Joseph, president of the American Forest Resource Council.
This agreement does not invalidate the 2012 NSO designation, nor does it change the Northwest Forest Plan that sets aside 20 million acres in reserve areas. Rather, it secures a commitment by the Fish and Wildlife Service to reevaluate whether designations are appropriate based on conservation benefits, environmental and economic impacts, and other factors. As with conventional federal rulemaking, this regulatory process will offer opportunities for public comment and involvement.
“The listing of the Northern Spotted Owl and the designation of critical habitat has had an enormous negative social and economic impact on our rural communities. This agreement is a positive first step toward developing policies that balance the needs of our communities, while assuring protections for the species,” said Tom Lannen, Skamania County (Wash.) Commissioner.