nated habitat for the former being larger than any single state except Alaska or Texas and the latter 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.

ened species under its jurisdiction.27See Regulations for Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. 44,753 (Aug. 27, 2019) (revising 50 C.F.R. § 17.31(a)).28 89 Fed. Reg. at 23,939 (to be codified at 50 C.F.R. § 17.31(a)).29Id. 30Compare 16 U.S.C. § 1538(a)(2) with 50 C.F.R. § 17.61 (2019).31 89 Fed. Reg. at 23,940 (to be codified at 50 C.F.R. § 17.71).32 50 C.F.R. § 424.11(b) (2018).33See Regulations for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45,020 (Aug. 27, 2019).34Id. at 45,024.35 Gretchen Frazee, What is an endangered species worth? Trump rule sparks debate (August 22, 2019), https://www.pbs.org/newshour/economy/what-is-an-endangered-species-worth-trump-rule-sparks-debate.36See, e.g., Press Release, Biden-Harris Administration, Conservation Leaders Affirm Commitment to Protecting America’s Endangered Species (Feb. 12, 2024), https://www.doi.gov/pressreleases/biden-harris-administration-conservation-leaders-affirm-commitment-protecting.37 16 U.S.C. § 1532(20).38Id. § 1532(6).39In re Polar Bear Endangered Species Act Listing & 4(d) Rule Litig., 709 F.3d 1, 15 (D.C. Cir. 2013) (quoting the polar bear Listing Rule at 73 Fed. Reg. 28,212, 28,253 (May 15, 2008)).40 84 Fed. Reg. at 45,052 (codified at 50 C.F.R. § 424.11(d)).41 89 Fed. Reg. at 24,335 (emphasis added).42 16 U.S.C. § 1533(a)(1).43Id. § 1533(b)(1)(A).44 50 C.F.R. § 424.11(e) (2019). With respect to the third factor, the ESA states that “[t]he term ‘species’ includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16). Only entities that meet this definition of species can be listed.45 50 C.F.R. § 424.11(e)(2) (2019).46 89 Fed. Reg. at 24,335 (to be codified 50 C.F.R. § 424.11(e)).47Id. at 24,304.48Id. at 24,303.49Id. 50 16 U.S.C. § 1533(a)(1)(3)(A).51 50 C.F.R. § 424.14(a)(1); 84 Fed. Reg. at 45,040-43.52 The Section 4 Rule also removes the last circumstan

ESA Section 3(5)(A) defines critical habitat as "the specific areas within the geographical 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 consideration or protection." 16U.S.C. §1532(5)(A)(i). In addition, the Services may designate "specific areas outside the geographical 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."

In turn a species is “threatened” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. § 1532(6) and (20).Section 4(a)(3) of the ESA requires the Secretary to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. 16 U.S.C. § 1533(a)(3).

To fully appreciate the nature and scope of the ESA, it is important to understand a number of key definitions that are contained in the act or have been approved by FWS and its sister agency in the Department of Commerce. The statute, at 16 U.S.C. § 1538, prohibits “taking,” which is then defined at 16 U.S.C. § 1532(19) to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” In turn, FWS has defined “harm” as used by the ESA to mean an act that actually kills or injures wildlife and that may include significant habitat modification or degradation where such action actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.

[11] 245 F.3d 434, 441-43 (5th Cir. 2001).[12]Id. at 442; see alsoGifford Pinochet Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004), amended on other grounds, 387 F.3d 968 (9th Cir. 2004) (“the purpose of establishing ‘critical habitat’ is for the government to carve out territory that is not only necessary for the species’ survival but also essential for the species’ recovery”); Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 344 F. Supp. 2d 108 (D.D.C. 2004) (finding the definition does not adequately take into consideration the conservation of listed species).[13] U.S. Fish & Wildlife Service, Endangered Species, Improving ESA Implementation, available athttp://www.fws.gov/endangered/improving_esa/AM.html (last visited June 26, 2014).[14] 79 Fed. Reg. 27060, 27066 (May 12, 2014).[15] 79 Fed. Reg. 27066, 27077.[16] 16 U.S.C. § 1532(5)(A).[17] 79 Fed. Reg. 27066, 27069.[18]Id. (citing Otay Mesa Prop. L.P. v. U.S. Dep’t of Interior, 714 F. Supp. 2d 73 (D.D.C 2010), rev’d on other grounds, 646 F.3d 914 (D.C. Cir. 2011) (noting that a post-listing determination may be based on an understanding of a species’ distribution developed post-listing).[19] 16 U.S.C. § 1533(b)(2).[20] 606 F.3d 1160 (9th Cir. 2010).[21]Id.

The Act defines ‘‘endangered species’’ as “any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). The Act defines ‘‘threatened species’’ as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

[1] Richard Grey & Roger Dobson, Extinct Ibex is Resurrected by Cloning, The Telegraph (Jan. 31, 2009), http://www.telegraph.co.uk/science/science-news/4409958/Extinct-ibex-is-resurrected-by-cloning.html.[2] Id.[3] Carl Zimmer, Bringing Extinct Species Back to Life, National Geographic (Apr., 2013), http://ngm.nationalgeographic.com/2013/04/125-species-revival/zimmer-text.[4]Id.[5] 16 U.S.C. § 1532(6) (2006).[6] Draft Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act, 76 Fed. Reg.

45,020 (August 27, 2019). Referred to as the 2019 rule, the revised regulations went into effect in late September 2019. Following the transition to the Biden Administration in January 2021, the 2019 rule was among a host of federal regulations considered for review and rescinding. A federal court later remanded the 2019 rule and the Service published draft replacement rule. Earlier this month, the Service finalized the rules with a couple of notable revisions.On June 22, 2023, the Service solicited public opinions on its revised version of the 50 CFR part 424. See 84 Fed. Reg. 440764 (June 22, 2023). Based on comments received on the proposed rule, the Service clarified 50 CFR 424.11(d) and its use of “foreseeable future,” as well as its use of factors to consider when delisting species.Changes from the Proposed RuleForeseeable FutureThe Endangered Species Act (ESA) defines a threatened species as “any species that is likely to become an endangered species in the foreseeable future.” 16 U.S.C. § 1532(2). In conjunction with the 2019 rule, the Service issued a regulation clarifying how the foreseeable future language should be applied. See 50 CFR 424.11(d). The proposed rule, the Service sought to revise the rule to read as follows: “The term foreseeable future extends as far into the future as the Services can reasonably rely on information about the threats to the species and the species’ responses to those threats.” 88 Fed. Reg. 440764.The Service received comments that the revised meaning of foreseeable future was vague, potentially leading to limitless timeframes or lower standards to list species. Based on these comments, the Service revised this sentence to state, “The foreseeable future extends as far into the future as the Services can make reasonably reliable predictions about the threats to the species and the species’ responses to those threats.” 50 CFR 424.11(d).The revised language clarifies that foreseeable future is not an independent substantive standard, but instead

ter Act (CWA) within the state.This Holland & Knight alert reviews the court case and decision, as well as its potential impacts on the state.The U.S. District Court for the District of Columbia on Feb. 15, 2024, issued an order vacating the U.S. Environmental Protection Agency's (EPA) approval of the state of Florida's application to assume permitting authority from the U.S. Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (CWA) within the state.The plaintiffs alleged that the federal defendants violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., in the transfer of permitting authority to Florida in the final days of the last administration.BackgroundThe ESA prohibits unpermitted "take" of endangered species. 16 U.S.C. § 1538(a)(1)(B). "Take" is broadly defined to include any action that may "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a species. 16 U.S.C. § 1532(19). It also includes habitat modification that kills or injures wildlife. 50 C.F.R. § 17.3. Under the ESA's implementing regulations, an "action agency" is required to "review" its actions "at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). If the action agency determines that an "action may affect a listed species or critical habitat," the agency must consult with the U.S. Fish and Wildlife Service (FWS) to ensure that its contemplated action "is not likely to jeopardize the continued existence of any endangered or threatened species." 16 U.S.C. § 1536(a)(2). That process – referred to as "Section 7 consultation" – results in the preparation of a Biological Opinion (BiOp), which is used to determine "how the agency action [at issue] affects the species or its critical habitat" and to determine whether the proposed action is likely to jeopardize the continued existence of any listed species. Id. If the agen