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New Proposed Rule and Pending Supreme Court Case Have Potential to Limit Designation of Unoccupied Areas as Critical Habitat under Federal Endangered Species Act

The U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) and, together with FWS, the Services) have proposed revisions to one of the federal Endangered Species Act’s key implementing regulations regarding the designation of unoccupied critical habitat. If formally adopted, the proposed revisions would limit the Services’ ability to designate areas unoccupied by a listed species as part of their critical habitat. But the new proposed rule, like the currently operative rule, may not require that unoccupied areas actually be habitable at the time they are designated as critical habitat. The issue of whether an area must be habitable at the time of designations is currently pending before the U.S. Supreme Court in Weyerhauser Co. v. United States Fish & Wildlife Service, which could potentially limit the Services’ ability to designate critical habitat even further.


The Existing Regulation and the Services’ Proposed Revisions

The Endangered Species Act (ESA) permits the Services to designate geographic areas as critical habitat for an endangered or threatened species even if those areas are not actually occupied by the species at the time of the designation. 16 U.S.C. 1532(5)(A)(ii). Currently, the Services have broad discretion to designate areas unoccupied by a listed species as part of its critical habitat. Specifically, 50 C.F.R. § 424.12(b)(2) allows the Services to designate as critical habitat:


  • . . .specific areas outside the geographical area occupied by the species that are essential for its conservation, considering the life history, status, and conservation needs of the species based on the best available scientific data.

In a proposed revision to that rule published on July 25, 2018, the Services recognized “continued perceptions that . . . the Services intend[] to designate as critical habitat expansive areas of unoccupied habitat.” 83 Fed.Reg. 35197-98.

To address these perceptions, the Services’ proposed rule emphasizes that unoccupied geographic areas may “only” be designated as critical habitat if such areas are essential to the conservation of the species, and requires the Services to evaluate occupied areas for designation as critical habitat before considering unoccupied areas for designation. 35201. More importantly, the proposed rule limits the Services’ discretion to determine that unoccupied areas are essential to a species’ conservation to situations in which:


  • . . .a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species or would result in less efficient conservation for the species. Id.

In doing so, the Services must determine that “there is a reasonable likelihood that the area will contribute to the conservation of the species.” Id. In determining that failure to designate an unoccupied area would result in less efficient conservation for a species, the Services must ensure that “societal conflicts” associated with the designation are minimized and perform a cost benefit analysis that compares the economic costs of the designation to the benefits gained from making it. Id. The Services have stated that the new proposed rule will result in greater predictability to the process of making critical habitat designations, and that it will permit them to be more thoughtful and focused in using agency resources to both designate critical habitat and consult on proposed actions that may affect such habitat.


Weyerhauser Co. v. U.S. Fish & Wildlife Service

A pending U.S. Supreme Court case may further limit the Services’ ability to designate areas unoccupied by a listed species as critical habitat. See, Weyerhauser Co. v. U.S. Fish & Wildlife Service (Weyerhauser), 138 S.Ct. 924 (mem.) (Jan. 22, 2018) (granting petition for certiorari). In that case, FWS designated land as critical habitat for the endangered dusky gopher frog that included land owned by the petitioner in Weyerhauserin Louisiana—even though the species only occupied land in Mississippi, and even though the petitioner’s land was not currently habitable for the species. See, Markle Interests, LLC v. U.S. Fish & Wildlife Service, 877 F.3d 452, 467 (5th Cir. 2016). In Weyerhauser, the petitioners have asked the Supreme Court to hold that habitat designated as critical must be an area in which the species in question can survive at the time of listing. See,Brief for Petitioner at 19. The outcome of the Supreme Court’s decision on this issue could require that areas be habitable at the time of designation, a requirement that is not in the existing rule or the proposed changes.


Conclusion and Implications

Although it would constrain the Services’ discretion to designate areas unoccupied by a listed species as part of its critical habitat, the proposed revisions to 50 C.F.R. § 424.12(b)(2) may not require that designated critical habitat actually be habitable at the time of listing, at least in some circumstances. The comment period on the proposed rule closed on September 24, and the Services are currently considering whether to adopt it as a final rule. Although many business and agricultural groups support the proposed rule, environmental interests have submitted thousands of comments asserting that it will place political and cost considerations above the best available science.

If the Services adopt the proposed rule, a Supreme Court decision in the Weyerhauserpetitioners’ favor could further limit the Services’ discretion to require habitability at the time of designation. The regulated community thus faces the prospect of not one, but two significant developments when it comes to the Services’ ability to designate areas unoccupied by a listed species as part of their critical habitat. Even if Weyerhauserdoes not impose a habitability requirement, however, the proposed rule would arguably still make it more difficult for the Services to designate unoccupied areas as critical habitat.

(Sam Bivins, Meredith Nikkel)