ESA Resolution Defining Habitat Introduced in House and Senate

In a move supported by NAHB, the House and Senate have introduced an identical Congressional Review Act (CRA) resolution that would retain the regulatory definition of habitat within the Endangered Species act (ESA). The ESA protects listed (i.e., endangered and threatened) species and their designated critical habitat from either manmade or naturally occurring threats. Surprisingly, since the ESA was established 50 years ago, the term “habitat” has never been defined.

Meanwhile the designation of critical habitat under the ESA by the U.S. Fish and Wildlife Service (FWS), or the National Marine Fisheries Service (NMFS), directly impacts NAHB members when their property is located within areas designated as critical habitat, and their activities require obtaining either a federal permit (e.g., federal wetland permit) or to receive any federal funding.

In December 2020, citing the U.S. Supreme Court’s ruling under Weyerhaeuser Co. v. U.S. FWS, the Trump administration finalized a rule that defined the term “habitat” as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”

The Trump administration’s rule was in response to a FWS critical habitat designation in the state of Louisiana declaring more than 1,500 acres of private land as critical habitat for a species of frog that had not been found within the state for  50 years.

In overturning FWS’s critical habitat designation, the U.S. Supreme Court noted the lack of any regulatory definition for the term habitat under the ESA made it difficult for the court to assess the merits of FWS’s unoccupied critical habitat designation. By defining habitat, the 2020 rule provided some clarity and transparency to landowners as to when their property could be regulated under the ESA.

On June 24, 2022, the Biden administration rescinded the 2020 rule, eliminating the habitat definition, leaving regulated parties in the dark as to how federal regulators might conduct future critical habitat designations.

The action by Republicans in the House and Senate to use the CRA to introduce a resolution of disapproval over the Biden administration’s rescission of the habitat rule is intended to restore regulatory clarity for affected landowners.

“There is an important distinction between ‘habitat’ and ‘critical habitat’ for an endangered species,” said Sen. Cynthia Lummis (R-Wyo.), the lead Senate sponsor of the resolution. “By scrapping the definition of habitat within the ESA, the Biden administration is causing chaos and confusion among private property owners throughout Wyoming and the west. Two-thirds of all endangered species are located on private lands, so private property owners need to be partners in species recovery, not the enemy.”

A critical habitat designation has major impacts on landowners and developers, as it reduces the value of any private property within a designation because prospective landowners recognize the burdens that accompany a designation. It also greatly impacts any land with a federal nexus through permits or funding, as a critical habitat triggers significant scrutiny, resulting in burdensome limitations on land use and costly mitigation requirements that can delay housing projects and increase construction costs.

Other senators who cosponsored the CRA include John Barrasso (R-Wyo.), Shelley Moore Capito (R-W.Va.), Markwayne Mullin (R-Okla.), Dan Sullivan (R-Alaska), Pete Ricketts (R-Neb.), Katie Britt (R-Ala.), Ted Budd (R-N.C.), James Lankford (R-Okla.), Roger Marshall (R-Kan.), Jim Risch (R-Idaho), Kevin Cramer (R-N.D.), John Boozman (R-Ark.), John Hoeven (R-N.D.), Steve Daines (R-Mont.), Joni Ernst (R-Iowa), Mike Crapo (R-Idaho) and Ted Cruz (R-Texas) cosponsored the CRA.

Rep. Cliff Bentz (R-Ore.) introduced a companion CRA in the House alongside Reps. Rob Wittman (R-Va.), Matt Rosendale (R-Mont.), Dan Newhouse (R-Wash.), Tom Tiffany (R-Wis.), Doug Lamborn (R-Colo.), David Valadao (R-Calif.) and Ryan Zinke (R-Mont.).