Final Rules Amending ESA Critical Habitat Regulations

Final Rules Amending ESA Critical Habitat Regulations

Updated July 11, 2022
Final Rules Amending ESA Critical Habitat Regulations
In December 2020, the Trump Administration published
FWS’s critical habitat designation for the dusky gopher frog
two final rules amending certain regulations that implement
included areas occupied and unoccupied by the species. In
the Endangered Species Act (ESA; 16 U.S.C. §§1531 et
the rule, FWS identified three features of the occupied areas
seq.) as it relates to critical habitat. The first rule defined
essential to the frog’s conservation: (1) ephemeral ponds for
habitat, and the second clarifies when the U.S. Fish and
breeding, (2) open-canopy forest with holes and burrows
Wildlife Service (FWS) may exclude certain areas from
for dwelling, and (3) open-canopy forest connecting
designation as critical habitat. The final rules were to be
breeding and dwelling areas. FWS determined, however,
effective as of specified dates in January 2021 and apply
that the occupied area was insufficient to conserve the
only to critical habitat designations proposed after the rules
species, and it therefore considered designating unoccupied
take effect. On June 24, 2022, the first rule defining habitat
areas as critical habitat. The unoccupied area at issue in the
was rescinded (87 Federal Register [FR] 37757). The
case had only one of the essential features—ephemeral
Biden Administration has indicated it is reviewing the
ponds—because much of the site was a closed-canopy
second rule pursuant to Executive Order 13990.
timber plantation. But FWS concluded that the high-quality
ephemeral ponds in the area were a unique resource, and
The ESA is implemented by the Secretary of the Interior,
that the other features necessary for occupation could be
through the FWS, and the Secretary of Commerce, through
restored “with reasonable effort.” As such, FWS found the
the National Marine Fisheries Service (NMFS) in the
area “essential” and designated it as critical habitat.
National Oceanic and Atmospheric Administration. As
defined in the ESA, the Secretary refers to either Secretary
Private landowners challenged the designation, arguing that
as appropriate. FWS and NMFS are jointly referred to as
the unoccupied area could not be the frog’s critical habitat
the Services.
because it lacked two of the three “essential” features. They
also argued that FWS inadequately weighed the benefits of
The ESA defines critical habitat to include areas that are
designating the area against the economic impact.
occupied and unoccupied by the species at the time of
listing (16 U.S.C. §1532(5)). To be designated as critical
The Supreme Court held that in order to be critical habitat,
habitat, occupied areas must contain physical or biological
an area must first be habitat for the species. The Court
features that are essential to the species’ conservation and
reasoned that the ordinary understanding of adjectives as
may require special management. Unoccupied areas must
modifying nouns requires that critical habitat be a subset of
be “essential for the conservation of the species.” The act
habitat. It also examined the statutory context and observed
does not define habitat. Section 4 of the ESA also allows
that Section 4 of the ESA (16 U.S.C. §1533) requires the
the Secretary to exclude areas from being designated as
Secretary to “designate any habitat of [a listed] species
critical habitat if “the benefits of such exclusion outweigh
which is then considered to be critical habitat.”
the benefits of specifying such area” unless such exclusion
Accordingly, the Court reasoned, only areas first
will result in extinction of the species concerned.
determined to be habitat for a species could be designated
as critical habitat. Because neither the statute nor the
Areas designated as critical habitat are subject to certain
Services’ regulations defined habitat, and FWS had not
statutory restrictions. Federal agencies must ensure that
defined habitat for the dusky gopher frog for purposes of
their actions will not adversely affect designated critical
the rule, the Court remanded the case to the Fifth Circuit to
habitat (16 U.S.C. §1536). Critical habitat designations
determine what “habitat” means in the ESA context.
affect private parties only when their actions require federal
funding or approval (e.g., federal permits).
The Supreme Court also addressed excluding areas from a
critical habitat designation. The ESA provides that FWS
This In Focus summarizes the two final rules along with
may exclude an area from critical habitat based on
some of the Services’ explanations for the changes. Both
economic impacts (16 U.S.C. §1533(b)(2)). In designating
rules were issued, in part, in response to the Supreme
Court’s decision in
critical habitat for the dusky gopher frog, FWS declined to
Weyerhaeuser Co. v. U.S. Fish &
exclude the petitioners’ private property on that basis. The
Wildlife Service (139 S. Ct. 361, 2018).
Fifth Circuit determined that FWS’s decision not to exclude
Weyerhaeuser Co. v. U.S. FWS
an area from critical habitat was committed to the agency’s
discretion and not reviewable. The Supreme Court
In Weyerhaeuser, the Supreme Court reviewed a decision
disagreed, concluding that the ESA provided sufficient
by the U.S. Court of Appeals for the Fifth Circuit upholding
FWS’s critical habitat designation for the dusky gopher
guidance for a court to review such decisions for abuse of
discretion. Accordingly, the Court also remanded the case
frog, Rana sevosa. First, the Court held that an area must be
for the Fifth Circuit to examine whether FWS abused its
habitat in order to be critical habitat. Second, it concluded
discretion in declining to exclude the petitioners’ land.
that courts can review agency decisions not to exclude areas
from critical habitat on economic grounds.
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Final Rules Amending ESA Critical Habitat Regulations
On remand, FWS ultimately agreed in a settlement to
Services may exclude areas from critical habitat
remove the area from the critical habitat designation. The
designations if, based on an exclusion analysis, the
two final rules respond, in part, to Weyerhauser by defining
Secretary determines that the benefits of excluding the area
habitat and clarifying FWS’s process for analyzing whether
outweigh the benefits of specifying the area, unless failing
to exclude areas from critical habitat designations.
to designate such area will result in the species’ extinction.
The previously existing regulations, which are to continue
Regulations for Listing Endangered and
to apply to NMFS, required the Services to publish a draft
Threatened Species and Designating
economic analysis of the designation for public comment
Critical Habitat
and to consider economic, national security, and other
The Services published a final rule, Regulations for Listing
relevant impacts of the designation, at a scale the Services
Endangered and Threatened Species and Designating
consider appropriate, before finalizing the designation. In
Critical Habitat (85 FR 81411), on December 16, 2020,
deciding whether to exclude any area from a critical habitat
effective on January 15, 2021. The rule added a definition
designation, the regulations allowed the Services to assign
of habitat to the ESA’s implementing regulations at 50
the weight given to any benefits of excluding or including
C.F.R. Part 424.
the area. NMFS is to continue to use the previously existing
regulations at 50 C.F.R. §424.19.
The definition of habitat added to 50 C.F.R. §424.02 is
The new final rule applies to critical habitat designations
Habitat. For the purposes of designating critical
proposed by FWS. Those new regulations, codified at 50
habitat only, habitat is the abiotic and biotic setting
C.F.R. §17.90, generally carry over the provisions of 50
that currently or periodically contains the resources
C.F.R. §424.19 but provide examples of factors FWS is to
and conditions necessary to support one or more life
consider relevant for “economic impacts” and “other
processes of a species.
relevant impacts” and specify when FWS is to conduct an
exclusion analysis. The final rule notes that under the ESA,
In the rule, the Services identify the Supreme Court’s
FWS generally has discretion whether to conduct an
holding in Weyerhaeuser that critical habitat must be a
exclusion analysis of an area. But the final rule limits that
subset of habitat as an impetus to define habitat. The
discretion by requiring FWS to conduct an exclusion
Services stated in the proposed rule that defining habitat
analysis when a proponent for excluding a particular area
would “help ensure that unoccupied areas that [they]
provides credible and meaningful information about the
designate as critical habitat are ‘habitat’ for the species and
economic or other impacts of designating the area.
are defensible as such.” The Services also clarified that this
definition of “habitat” applies only “for the purposes of
FWS’s new regulations also outline principles for the
designating critical habitat”; that setting is “to have its
Secretary to consider when weighing the benefits of
common meaning, such as the time, place, and
including or excluding particular areas as critical habitat.
circumstances in which something occurs or develops”; and
For example, for areas outside of FWS’s expertise, such as
that life processes has its “common biological meaning, that
nonbiological or national security impacts, the regulations
is, to include a series of functions … that are essential to
direct the Secretary to give weight to information from
sustain a living being.”
experts and firsthand sources. The regulations also establish
conditions for considering the exclusion of areas that have
The Services rescinded this rule on June 24, 2022 (87 FR
conservation plans, agreements, or partnerships authorized
37757). The Services concluded that limiting habitat to
under Section 10 of the ESA (16 U.S.C. §1539) for the
areas that currently or periodically support the species’ life
species in question. Information provided by outside
processes was inconsistent with the ESA’s conservation
proponents is to be evaluated on a “case-by-case basis,” and
purpose. The Services also concluded that the definition
in order for information to be credible, it must be “factual
was not clear and therefore not likely to achieve their goals
information” documenting “a meaningful impact” that
of transparency and reproducible outcomes.
supports excluding an area from critical habitat designation.
Regulations for Designating
The new regulations require FWS to exclude an area from
Critical Habitat
critical habitat designation when it concludes that the
benefits of exclusion outweigh the benefits of designating
FWS published a second final rule, Regulations for
the area as critical habitat, unless failure to designate that
Designating Critical Habitat (85 FR 82376), on December
area will result in the species’ extinction. Some commenters
18, 2020, effective on January 19, 2021. The rule, which
noted that requiring the Secretary to exclude areas from
the Biden Administration is currently reviewing, modifies
critical habitat upon a favorable exclusion analysis
FWS’s process for determining when to exclude areas from
contradicts the purpose of the act. FWS responded by
critical habitat. According to FWS, the intention of these
stating that “the regulation constitutes the Secretary’s
regulations is “to provide greater transparency and certainty
decision on how to exercise his discretion.” The existing
for the public and stakeholders.”
regulations, which still apply to NMFS, allowed the
Prior to the final rule’s effective date, 50 C.F.R. §424.19
Services “discretion to exclude any particular area from the
provided the process for determining exclusions from
critical habitat upon” such a determination.
critical habitat for both Services. Section 4 of the ESA
directs the Secretary to designate critical habitat for listed
Erin H. Ward, Legislative Attorney
species based on the best scientific data available and after
Pervaze A. Sheikh, Specialist in Natural Resources Policy
taking into consideration economic, national security, and
other relevant impacts of such a designation. As noted, the
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Final Rules Amending ESA Critical Habitat Regulations

IF11740

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