In the wake of the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018), the United States Fish and Wildlife Service (FWS) has issued a series of proposals to refine the scope, meaning, and criteria for designating critical habitat for species listed under the Endangered Species Act (ESA). The most recent proposal will be published in the Federal Register on September 8, 2020, kicking off a 30-day public comment period.

The ESA establishes protections for listed species, and one such protection is the designation of critical habitat – areas essential to the species’ conservation and recovery. The ESA defines critical habitat and criteria for determining critical habitat in areas that are occupied and unoccupied by the species.

The Weyerhaeuser decision involved FWS’ designation of critical habitat for the dusky gopher frog. That designation included a large area of unoccupied habitat. The Supreme Court remanded the designation, noting that critical habitat must first be shown to be habitat before it can be found to be critical habitat. The Court held that although a decision to exclude certain areas from the critical habitat designation was committed to the agency’s discretion, the agency’s decision was reviewable in court under the arbitrary and capricious standard. Questions were also raised in the Weyerhaeuser case regarding whether unoccupied habitat must be presently capable of supporting the species.

The FWS has addressed the Supreme Court’s opinion in several ways. First, in the revisions to the ESA regulations finalized in 2019, the FWS clarified the criteria for designating unoccupied habitat. Then, in August 2020, the FWS proposed a definition of habitat. The comment period on that proposal closed on September 4, 2020. And now, on September 8, 2020, the FWS issued a proposed rule outlining factors that would allow critical habitat to be excluded from designation.

Section 4(b)(2) of the ESA requires that when designating critical habitat, agencies take into account several considerations, including the economic impact, the impact on national security, and any other relevant impacts. This provision also permits the agencies to exclude areas from critical habitat designation if the benefits of exclusion outweigh the benefits of inclusion for that area (as long as excluding it will not result in the extinction of the species).

The proposal adds a non-exhaustive list of “other relevant impacts” the agency may consider when designating a critical habitat. The list includes public health and safety, community interests, and the environment (increased risk of wildfire, pest and invasive species management, etc.). The FWS also provides examples of economic impacts for the agency to consider, including the economy of a particular area, productivity, creation or elimination of jobs, any potential opportunity costs arising from critical habitat designation, or potential designation benefits such as outdoor recreation. There may be other impacts, the FWS explains, based on the specifics of each area.

The agency may decide to undertake an exclusion analysis on its own initiative, or on the basis of “credible information” submitted to the agency. The proposal also describes how the FWS will assign weight to different factors when it undertakes the exclusion analysis. The FWS’s judgment will control in evaluating impacts that fall within the scope of the FWS’s expertise (essentially those related to the biology of the species). For impacts outside of the FWS’s expertise (virtually every other type of impact outside of the biology of the species), greater weight will be placed on expert information. In other words, the FWS will use the values assigned to the impacts by states, local governments, or even permittees supporting exclusion and will weigh such impacts relative to the conservation value of the particular area.

The FWS also makes clear that it will place great weight on whether a Section 10 Incidental Take Permit, habitat conservation plan, or candidate conservation agreement with assurances that includes habitat-related protections is in place for the area at issue. The proposal goes so far as to state that the FWS anticipates “consistently excluding” areas subject to such agreements from designated critical habitat.

All three of the proposals aimed at addressing the Weyerhaeuser decision have been met with controversy. The rule finalized in August 2019 has been challenged, and challenges are certain for these more recent proposals as well.