teria for Designation of Unoccupied Critical HabitatThe ESA’s definition of critical habitat distinguishes between “occupied” and “un-occupied” areas.57 Occupied critical habitat is defined as “the specific areas within the geographic area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.”58 Unoccupied critical habitat is defined as “specific areas outside the geographic area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.”59 The new Section 4 Rule changes the order in which occupied and unoccupied critical habitat is considered and the standard to determine whether unoccupied areas qualify as critical habitat.The regulation governing the designation of unoccupied areas as critical habitat, 50 C.F.R. § 424.12(b)(2), has been changed multiple times in recent years. Prior to 2016, the regulation contained a “two-step” approach that “prioritized the designation of occupied areas over unoccupied areas by allowing the Services to designate unoccupied areas as critical habitat only if a critical habitat designation limited to occupied areas would be inadequate to ensure the conservation of the species.”60 The 2016 changes to the regulations removed the two-step analysis and allowed for simultaneous consideration of occupied and unoccupied areas.61 In 2019, the Services changed the regulation again to “reinstate[] the two-step ‘sequencing’ or ‘exhaustion’ prioritization process,” to respond to concerns that the lack of the two-step process would allow the Services to “inappropriately designate overly expansive areas of unoccupied critical habitat.”62The Services characterize the most recent change as a softening of the “rigid” two-step process in the 2019 regulations.63 The Services claim they will con

Download PDFThe United States District Court for the District of Columbia (“Court”) in an August 11th Memorandum Opinion (“Opinion”) addressed an issue arising under the Endangered Species Act (“ESA”). See Natural Resources Defense Council, Inc., et al., v. U.S. Fish and Wildlife Service, et al., Civil Action No. 21-0770 (ABJ).The question considered was whether the United States Fish and Wildlife Service (“Service”) should have designated critical habitat for the Rusty Patched Bumble Bee (“Bee”).The ESA requires that when a species is placed on the “List of Endangered and Threatened Wildlife” that the Service designate any habitat of such species which is then considered to be critical habitat to the maximum extent prudent and determinable. See 16 U.S.C. § 1533(a)(3)(A).The Service promulgated regulations outlining the criteria for designating critical habitat. See 50 C.F.R. § 424.12(a). The regulations also specify that a critical habitat designation would not be prudent when:The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species; [or]Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service[] may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”See 50 C.F.R. § 424.12(a)(1).The Service issued a final rule adding the Bee to the List of Endangered and Threatened Wildlife on January 11, 2017. It found that the Bee was presently in danger of extinction throughout its range. See 82 Fed. Reg. 3186.The Service did not concurrently designate critical habitat for the Be

er larger than Texas and New York combined.The Ninth Circuit’s jaguar critical habitat decision falls within the third wave paradigm. Like the Weyerhaeuser Supreme Court decision, the Ninth Circuit restrained agency overreach in designating unoccupied critical habitat. While the Services may continue to attempt broad critical habitat designations, the gradual accretion of third-wave cases like Weyerhaeuser and CBD v. FWS serves as a powerful check to ensure that such agency decisions are properly documented and supported. These decisions also fulfill the ESA’s purpose—as stated by Justice Scalia 26 years ago—that the statute “not be implemented haphazardly, on the basis of speculation or surmise.”30 The Ninth Circuit’s recent CBD v. FWS decision reinforces this “obvious purpose” of the ESA.311 2023 U.S. App. LEXIS 12086 (9th Cir. May 17, 2023).2Id., *31-32, 53-55.3Id., *58.4Id., *10-11.5 16 U.S.C. § 1532(5)(A)(i).6 2023 U.S. App. LEXIS 12086, *28.7Id., *44; 16 U.S.C. § 1532(5)(A)(ii); 50 C.F.R. § 424.12(b)(2) (2021).8See 2023 U.S. App. LEXIS 12086, *22. The critical habitat designation regulations have been amended twice—once each by the two prior administrations in 2016 and 2019. The result is that the present critical habitat designation rules largely mirror those at issue in CBD v. FWS. See id., *32-33; 50 C.F.R. § 424.12(b)(2) (2021) (current regulation).9Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368-69 (2018).10 2023 U.S. App. LEXIS 12086, *21.11Id. at *24-25 (citing 16 U.S.C. § 1532(3)).12 16 U.S.C. § 1533(b)(2); 50 C.F.R. § 424.19(c) (2021).13 2023 U.S. App. LEXIS 12086, *28-30.14Id. at *41-43.15Id. at *27-28.16Id. at *28-32.17Id. at *48-54.18Id. at *55-58.19 Staff of S. Comm. on Environment and Public Works, 97th Cong., A Legislative History of the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, and 1980 (Comm. Print 1982), at 817; see also 16 U.S.C. § 1532 (5)(C) (except in those circumstances determined by FWS, “critical habitat shall not inc

Section 3(5)(A) of the ESA defines “critical habitat” to include:the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; andspecific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.16 U.S.C. § 1532(5)(A); see also, 50 CFR 424.12). Once designated as critical habitat, an area is protected from Federal actions that would result in the “destruction” or “adverse modification” of the critical habitat.

See id.[15] Id. at 45,021.[16] See 50 C.F.R. § 424.12(a)(1):(i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species; or(ii) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”

The new rule makes it clear that the Services are required to designate critical habitat in a timely manner, providing that critical habitat "shall be proposed and finalized to the maximum extent prudent and determinable at the time a species is proposed for listing." 50 CFR 424.12(a); 81 Fed. Reg. 7432.

[3] Note that because the Services propose to define the term “physical or biological features” and because the term “primary constituent elements” does not appear in the ESA, the Services propose to remove the term “primary constituent elements” from the regulations. 79 Fed. Reg. 27066, 27070 (May 12, 2014).[4] 50 C.F.R. § 424.12(b).[5]Id. § 424.12(e).

rticipants who voluntarily enroll acreage in the TCP’s permit area and pay an annual fee based on the amount of acreage enrolled. However, after six years of implementation, the Comptroller sought to revise the TCP to address issues preventing the plan from achieving its conservation and protection goals. In 2018, the Comptroller submitted those proposed revisions to the Service in the form of a new CCAA and subsequently ended its administration of the permit. The Service did not approve the proposed new CCAA, and instead revised and transferred the permit for the TCP to a new permit holder. Notably, of the 29 participants enrolled in the 2012 TCP, only 8 expressed interest in maintaining enrollment under the revised 2020 TCP. Although operators are not required to enroll in the CCAA, according to the Service 40 oil and gas companies and 37 ranchers have enrolled approximately 85 percent of the DSL’s range in New Mexico. 88 Fed. Reg. 42661 at 42672. 50 CFR 17.22(d)(5) and 17.33(d)(5). 50 C.F.R. 424.12(a)(1). 88 Fed. Reg. 42661 at 42667. 16 U.S.C. § 1533(b)(6)(C)(ii). The ESA allows the Service to extend this deadline by six months if there is substantial disagreement about the sufficiency or accuracy of available data relevant to the proposed listing rule.

Section 3(5)(A) of the ESA defines “critical habitat” to include:the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; andspecific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.16 U.S.C. § 1532(5)(A); see also, 50 CFR 424.12. Once designated as critical habitat, an area is protected from Federal actions that would result in the “destruction” or “adverse modification” of the critical habitat. 16 U.S.C. § 1536The ESA does not define the broader term “habitat” and until late 2020 the Service had never adopted a specific definition through regulation.

Section 3(5)(A) of the ESA defines “critical habitat” to include:the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; andspecific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.16 U.S.C. § 1532(5)(A); see also, 50 CFR 424.12).When listing a species as endangered, the Service must also designate critical habitat “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact” of designating an area as habitat. 16 U.S.C. § 1533(b)(2).