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March 20, 2018  |  Written by Jared S. Mueller

Federal Agencies Will Reconsider Allegedly Overreaching Endangered Species Critical Habitat Rules

With the regulations already under review by the United States Supreme Court, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) recently agreed to reconsider regulations that a coalition of state attorneys general argued, in a separate proceeding, overreached the federal agencies’ authority under the Endangered Species Act (ESA).

When the Services determine that a species is endangered or threatened, Section 4 of the ESA (16 U.S.C. §1533(a)(3)(A)(i)) requires a designation of “any habitat of such species which is then considered to be critical habitat.”  The specific criteria used by the Services, and the scope of their discretion in making such findings, has long been a contentious issue.  In February 2016, the Services unveiled new rules revising the criteria for designating critical habitat with the stated intention of addressing concerns raised by industry and environmental stakeholders alike.  However, the rules drew immediate fire from industry representatives who were against too much discretion on behalf of the Services, while environmental groups claimed that the rules did not go far enough.

Critical habitat designations can be onerous for activities with a federal nexus, wherein the federal government is involved by way of permitting authority or federal funds or other discretionary approvals.  Under such circumstances, the federal authorizing or “action” agencies are under ESA mandate to impose restrictions on any activity that could destroy or adversely modify critical habitat.  The Services’ rules are under review by both the United States Supreme Court and the federal agencies only two years after they were promulgated.

On January 22, 2018, the United States Supreme Court granted private landowners’ petition for certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, et al.  There, the U.S. Fish and Wildlife Service declared approximately 1,500 acres owned by a timber company to be “critical habitat” for the endangered dusky gopher frog – despite the fact that the species does not actually occupy the subject land and the land is not capable of serving as habitat.  Petitioners claim that the federal agencies lack authority to designate as “critical habitat” land that is not “habitat of such species” as stated in Section 1533(a)(3)(A)(i).  The petitioners’ opening brief is scheduled to be filed by April 23, 2018, with the matter scheduled for argument during the October 2018 term.

On March 15, 2018, a federal district court judge in State of Alabama, et al. v. National Marine Fisheries Service, et al. dismissed a case brought by 18 state attorneys general after the Services agreed to reconsider the critical habitat designation rules.  Similar to the Weyerhaeuser Co. matter, the states argued that the new rules would allow the federal agencies to designate areas as “occupied” critical habitat that contain physical and biological features “essential to conservation” even when the areas are not occupied or do not contain those features.  The Notice of Dismissal of the case states that “Plaintiffs and Federal Defendants have negotiated a settlement to resolve the disputes set forth in Plaintiffs’ Complaint.”  Presumably, the settlement involves the Services’ commitment to reconsider the 2016 regulations.

For additional information, please contact Jared Mueller at

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