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Updated July 11, 2022
Final Rules Amending ESA Critical Habitat Regulations
In December 2020, 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 defined
habitat, and the second clarifies when the U.S. Fish and
Wildlife Service (FWS) may exclude certain areas from
designation as critical habitat. The final rules were to be
effective as of specified dates in January 2021 and apply
only to critical habitat designations proposed after the rules
take effect. On June 24, 2022, the first rule defining habitat
was rescinded (87 Federal Register [FR] 37757). The
Biden Administration has indicated it is reviewing the
second rule 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 National Marine 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 habitat to include areas that are
occupied and unoccupied by 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 essential to the species' conservation and
may require special management. Unoccupied areas must
be essential for the conservation of the species. The act
does not define habitat. Section 4 of the ESA also allows
the Secretary to exclude areas from being 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 critical habitat 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 federal
funding or approval (e.g., federal permits).
This In Focus summarizes the two final rules along with
some of the Services' explanations for the changes. Both
rules were issued, in part, in response to the Supreme
Court's decision in Weyerhaeuser Co. v. U.S. Fish &
Wildlife Service (139 S. Ct. 361, 2018).
We.erhaeuser 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
FWS's critical habitat designation for the dusky gopher
frog, Rana sevosa. First, the Court held that an area must be
habitat in order to be critical habitat. Second, it concluded
that courts can review agency decisions not to 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, FWS identified three features of the occupied areas
essential to 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 area was insufficient to conserve the
species, and it therefore considered designating unoccupied
areas as critical habitat. The unoccupied area at issue in the
case had only one of the essential 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, FWS found the
area essential and designated it as critical habitat.
Private landowners challenged the designation, arguing that
the unoccupied area could not be the frog's critical habitat
because it lacked two of the three essential features. They
also argued that FWS inadequately weighed the benefits of
designating the area against the economic impact.
The Supreme Court held that in order to be critical habitat,
an area must first be habitat for the species. The Court
reasoned that the ordinary understanding of adjectives as
modifying nouns requires that critical habitat be a subset of
habitat. It also examined the statutory context and observed
that Section 4 of the ESA (16 U.S.C. § 1533) requires the
Secretary to designate any habitat of [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 defined habitat, 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 from a
critical habitat designation. The ESA provides that FWS
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 FWS's decision not to exclude
an area from critical habitat was committed to the agency's
discretion and not reviewable. The Supreme Court
disagreed, concluding that the ESA provided sufficient
guidance for a court to review such decisions for abuse of
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.](ViewImageLocal?handle=hein.crs/goveigx0001&div=1&collection=&method=preview&ext=.png&size=3)