United States: Review, Revise, Repeat: Biden Set To Restore Pre-Trump Regulations On Critical Habitat Designation

On June 4, 2021, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the "Services") released its plans to revise or rescind five Endangered Species Act (ESA) regulations promulgated under the prior administration.¹ The proposed actions are in response to Executive Order 13990, which requires all federal agencies to review and revise agency actions adopted during the last four years that may conflict with the Biden Administration's objectives, such as addressing climate change.² Three of the five regulations to be addressed concern the designation of critical habitat. Under the prior administration, the Services narrowed the criteria for critical habitat designation and expanded the circumstances for excluding areas as critical habitat. The Services now plan to undo these changes, with a Notice of Proposed Rulemaking (NPRM) set to be published as early as this month.

On August 27, 2019, the Services narrowed the criteria for designating unoccupied areas as critical habitat to require a finding that: (1) the occupied habitat of the species is inadequate to ensure the species' conservation; and (2) the unoccupied area contains one or more physical or biological features essential to the conservation of the species.³ In this rulemaking, the Services also expanded the list of circumstances under which the Services might find it prudent to not designate critical habitat.⁴

On December 16, 2020, the Services defined "habitat" for purposes of critical habitat designations to require that habitat "currently or periodically" contain the resources and conditions necessary to support the listed species.⁵ This action was in response to the U.S. Supreme Court's decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018), in which the Court held that an area must logically be considered "habitat" before that area may meet the narrower definition of "critical habitat." A concern with this definition is that it seemingly precludes the Services from designating areas which may become suitable habitat in the future as critical habitat. The Services now take the position that the regulatory definition of "habitat" is not required for critical habitat designations to comply with Weyerhaeuser and will propose to rescind this definition. The NPRM to revise both this rule and the August 2019 rule is slated for September 2021.⁶

The FWS also revised the critical habitat designation exclusion process. Under the ESA, any particular area may be excluded from critical habitat designation if the benefits of exclusion outweigh the benefits of inclusion, so long as failure to designate would not result in the extinction of the species.⁷ On December 18, 2020, the FWS issued a policy allowing for greater agency discretion in the exclusion analysis and identified a non-exhaustive list of categories of potential impacts to consider when designating critical habitat. ⁸ The FWS has now announced it will propose to rescind this rule in its entirety and revert to the 2016 policy on critical habitat designation exclusions which the FWS had shared with the NMFS.⁹ The NPRM to rescind this rule is slated for July 2021.¹⁰

With the criteria for critical habitat designations to be relaxed, we can expect the Services to designate more areas as critical habitat than the prior administration. Environmental groups are hopeful that further and more frequent critical habitat designations will provide relief to declining suitable habitat due to the effects of climate change. While regulated entities, such as land developers, are concerned that the anticipated increase in designations will result in delayed, or even halted, infrastructure and development projects.

Footnotes

1. U.S. Fish and Wildlife Service, Press Release U.S. Fish and Wildlife Service and NOAA Fisheries to Propose Regulatory Revisions to Endangered Species Act, available at: https://www.fws.gov/news/ShowNews.cfm?ref=u.s.-fish-and-wildlife-service-and-noaa-fisheries-to-propose-regulatory-&_ID=36925 (June 4, 2021).

2. 86 Fed. Reg. 7037 (Jan. 25, 2021).

3. 84 Fed. Reg. 45,020 (Aug. 27, 2019); 50 C.F.R. § 424.12(b)(2).

4.Id.; 50 C.F.R. § 424.12(a)(1).

5. 85 Fed. Reg. 81,411 (Dec. 16, 2020); 50 C.F.R. § 424.02.

6. Office of Information and Regulatory Affairs, Agency Rule List – Spring 2021, available at: https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1000&csrf_token=
A1A74A5EE60053AC47267BCB25326909343D0474751E5A14F3782157613B1DD639164495F0353F89480A6B5F2DE90FF2A143 (last visited July 13, 2021).

7. 16 U.S.C. § 1533(b)(2).

8. 85 Fed. Reg. 82,376 (Dec. 18, 2020).

9. 81 Fed. Reg. 7,226 (Feb. 11, 2016).

10. Office of Information and Regulatory Affairs, Agency Rule List – Spring 2021, available at: https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1000&csrf_token=
A1A74A5EE60053AC47267BCB25326909343D0474751E5A14F3782157613B1DD639164495F0353F89480A6B5F2DE90FF2A143, (last visited July 13, 2021).

Originally published July 14th, 2021

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