In One Week, the Government Finalized Three Rules Rolling Back the Endangered Species Act's Habitat Protections. The Last Two Published Today.

The Endangered Species Act protects two things: the species on its lists, and the habitat those species need to survive. This week, in three separate final rules, the Fish and Wildlife Service went after the second one - and the last two of the three landed in Tuesday's Federal Register [1][2].

The first of Tuesday's rules removes what is called the 'blanket rule' [1]. For decades, any species newly listed as threatened - the tier below endangered - automatically received the Act's full protections against being killed, harmed, or captured. The new rule ends that default: 'We are removing the "blanket rule" option for protecting newly listed threatened species pursuant to section 4(d) of the Act' [1]. From August 20 forward, each newly listed threatened species gets those protections only if the Service writes a rule specifically for it - and until it does, or if it never does, the species has none by default [1].

The second rewrites how the agency draws the boundaries of critical habitat [2]. Under section 4(b)(2), the Service must weigh the 'economic impact, the impact on national security, and any other relevant impact' of designating an area, and may exclude land where the benefits of exclusion outweigh the benefits of protection [2]. The new rule 'articulate[s] when and how' the agency makes that call - the exclusion analysis that industry uses to argue land out of protected status [2]. The Service says the intended effect is 'greater transparency and certainty for the public and stakeholders' [2].

These do not stand alone. On July 14, the same agency rescinded the regulatory definition of 'harm' that had treated destroying a species' habitat as a prohibited 'take' [3]. Three rules in one week, each aimed at the habitat rather than the lists: one erasing the rule that made habitat destruction a violation, one ending automatic protection for newly threatened species, one easing the exclusion of land from critical habitat [1][2][3].

Habitat loss is the single largest driver of extinction, which is why the three rules matter more together than apart. All three take effect - the two new ones on August 20 - and all three face legal challenges [1][2][3]. What they change, by their own text, is the default setting of American wildlife protection: from automatic to argued-for, species by species, acre by acre [1][2].