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January 25, 2021
Final Rules Amending ESA Critical Habitat Regulations
In December2020, the Trump Administration published
two final rules amending certain regulations that implement
the Endangered Species Act (ESA; 16 U.S.C. § § 1531 et
seq.) as it relates to critical habitat. The first rule defines
habitat, and the second clarifies when the U.S. Fish and
Wildlife Service (FWS) may exclude certain areas from
designation as critical habitat. The fmalrules are effective
as of specified dates in January 2021 and apply only to
critical habitat designations proposed after the rules take
effect. The Biden Administrationhas indicated it will be
reviewing these rules pursuant to Executive Order 13990.
The ESA is implemented by the Secretary of the Interior,
through the FWS, and the Secretary of Commerce, through
the NationalMarine Fisheries Service (NMFS) in the
National Oceanic and Atmospheric Administration. As
defined in the ESA, the Secretary refers to either Secretary
as appropriate. FWS and NMFS are jointly referred to as
the Services.
The ESA defines critical habitatto include areas that are
occupied and unoccupiedby the species at the time of
listing (16 U.S.C. § 1532(5)). To be designated as critical
habitat, occupied areas must contain physical or biological
features that are essentialto the species' conservation and
may require special management. Unoccupied areas must
be essentialforthe conservation ofthe species. The act
does not define habitat. Section 4ofthe ESA also allows
the Secretary to exclude areas frombeing designated as
critical habitat if the benefits of such exclusion outweigh
the benefits of specifying such area unless such exclusion
will result in extinction of the species concerned.
Areas designated as criticalhabitat are subject to certain
statutory restrictions. Federal agencies must ensure that
their actions will not adversely affect designated critical
habitat (16 U.S.C. § 1536). Critical habitat designations
affect private parties only when their actions require
funding or approvalby a federal agency (e.g., federal
permits).
This In Focus summarizes the two fmalrules along with
some of the Services' explanations for the changes. Both
rules were is sued, in part, in response to the Supreme
Court's decision in Weyerhaeuser Co. v. U.S. Fish &
Wildlife Service (139 S. Ct. 361, 2018).
Weyerhaeuser Co. v. U.S. FWS
In Weyerhaeuser, the Supreme Court reviewed a decision
by the U.S. Court of Appeals for the Fifth Circuit upholding
FW S's critical habitat designation for the dusky gopher
frog, Rana sevosa. First, the Courtheld that an area must be
habitat in order to be critical habitat. Second, it concluded
that courts canreview agency decisions notto exclude areas
from critical habitat on economic grounds.
FWS's critical habitat designation for the dusky gopher frog
included areas occupied and unoccupied by the species. In
the rule, FW S identified three features of the occupied areas
es s entialto the frog's conservation: (1) ephemeral ponds for
breeding, (2) open-canopy forest with holes and burrows
for dwelling, and (3) open-canopy forest connecting
breeding and dwelling areas. FWS determined, however,
that the occupied areawas insufficient to conserve the
species, and it therefore considered designating unoccupied
areas as criticalhabitat. The unoccupied area at is sue in the
cas e had only one of the es sential features-ephemeral
ponds-because much of the site was a closed-canopy
timber plantation. But FWS concluded that the high-quality
ephemeral ponds in the area were a unique resource, and
that the other features necessary for occupation could be
restored with reasonable effort. As such, FW S found the
area es s ential and designated it as critical habitat.
Private landowners challenged the designation, arguing that
the unoccupied area could not be the frog's criticalhabitat
because it lacked two of the three essential features. They
also argued that FW S inadequately weighed the benefits of
designating the area against the economic impact.
The Supreme Court held that in order to be criticalhabitat,
an area must firs t be h abitat for the species. The Court
reasoned that the ordinary understanding of adjectives as
modifying nouns requires thatcriticalhabitatbe a subsetof
habitat. It also examined the statutory context and observed
that Section4 of the ESA (16 U.S.C. § 1533) requires the
Secretary to designate any habitatof [a listed] species
which is then considered to be critical habitat.
Accordingly, the Court reasoned, only areas first
determined to be habitat for a species could be designated
as critical habitat. Because neither the statute nor the
Services' regulations defmedhabitat, and FWS had not
defined habitat for the dusky gopher frog for purposes of
the rule, the Court remanded the case to the Fifth Circuit to
determine what habitat' means in the ESA context.
The Supreme Court also addressed excluding areas froma
critical habitat designation. TheESA provides thatFWS
may exclude an area from critical habitat based on
economic impacts (16 U.S.C. §1533(b)(2)). In designating
critical habitat for the dusky gopher frog, FWS declined to
exclude the petitioners' private property on that basis. The
Fifth Circuit determined that FW S's decision notto exclude
an area from critical habitat was committed to the agency's
discretion and not reviewable. The Supreme Court
dis agreed, concluding that the ESA provided sufficient
guidance for a court to review s uch decisions for abuse o f
discretion. Accordingly, the Court also remanded the case
for the Fifth Circuit to examine whether FWS abused its
discretion in declining to exclude the petitioners' land.
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