[House Report 118-95]
[From the U.S. Government Publishing Office]


118th Congress }                                          { REPORT 
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 118-95

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  PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, 
   UNITED STATES CODE, OF THE RULE SUBMITTED BY THE NATIONAL MARINE 
FISHERIES SERVICE RELATING TO ``ENDANGERED AND THREATENED WILDLIFE AND 
 PLANTS; REGULATIONS FOR LISTING ENDANGERED AND THREATENED SPECIES AND 
                     DESIGNATING CRITICAL HABITAT''

                                _______
                                

  June 5, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Westerman, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 46]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the joint resolution (H.J. Res. 46) providing for congressional 
disapproval under chapter 8 of title 5, United States Code, of 
the rule submitted by the National Marine Fisheries Service 
relating to ``Endangered and Threatened Wildlife and Plants; 
Regulations for Listing Endangered and Threatened Species and 
Designating Critical Habitat'', having considered the same, 
reports favorably thereon without amendment and recommends that 
the joint resolution do pass.

                       PURPOSE OF THE LEGISLATION

    The purpose of H.J. Res. 46 is to provide for congressional 
disapproval under chapter 8 of title 5, United States Code, of 
the rule submitted by the National Marine Fisheries Service 
relating to ``Endangered and Threatened Wildlife and Plants; 
Regulations for Listing Endangered and Threatened Species and 
Designating Critical Habitat''.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Endangered Species Act (ESA) directs the Secretaries of 
the Interior and Commerce, upon listing a species as 
endangered, to also designate the ``critical habitat'' of the 
species.\1\ The ESA defines ``critical habitat'' as: ``(i) the 
specific areas within the geographical area occupied by the 
species 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; and (ii) specific areas outside the geographical 
area occupied by the species upon a determination by the 
Secretary that such areas are essential for the conservation of 
the species.''\2\
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    \1\16 U.S.C. 1533(a)(3)(A)(i).
    \2\16 U.S.C. 1532(5)(A).
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    Critical habitat designations can have a devastating impact 
on rural communities. One example is the critical habitat 
designation for the Northern Spotted Owl in the Pacific 
Northwest. Studies have shown that the listing of the Northern 
Spotted Owl and its 9.4 million acres of associated critical 
habitat\3\ have caused the loss of at least 32,000 timber 
jobs.\4\ These designations affect federal actions, funding, 
and permitted activities.\5\ Section 7 of the ESA requires 
consultation with the U.S. Fish and Wildlife Service (USFWS) 
and/or National Marine Fisheries Service (NMFS) when an 
activity, such as forest management, construction of a dam, or 
other infrastructure projects, might impact the critical 
habitat for a listed species.\6\ This process can take years 
and disincentivizes investment into critical infrastructure. 
The USFWS describes the difficulties they are having in 
conducting Section 7 consultations in a timely manner in its 
March 2023 Report to Congress.\7\
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    \3\``USFWS Threatened & Endangered Species Active Critical Habitat 
Report.'' U.S. Fish and Wildlife Service. 4/3/2023 USFWS Threatened & 
Endangered Species Active Critical Habitat Report.
    \4\``Labor market impact of land protection: The Northern Spotted 
Owl.'' Ann E. Ferris and Eyal G. Frank. Journal of Environmental 
Economics and Management,'' Volume 109, September 2021, 102480. Labor 
market impacts of land protection: The Northern Spotted Owl--
ScienceDirect.
    \5\``Critical Habitat.'' What is it? U.S. Fish and Wildlife 
Service. March 2017. Critical Habitat fact sheet (fws.gov).
    \6\``Endangered Species Act (ESA) Section 7 Consultation and 
Infrastructure Projects.'' Erin H. Ward, R. Eliot Crafton, Pervaze A. 
Sheikh. Congressional Research Service. Endangered Species Act (ESA) 
Section 7 Consultation and Infrastructure Projects 
(everycrsreport.com).
    \7\U.S. Fish and Wildlife Service, Report to Congress: Review of 
the ESA Interagency Section 7 Consultation Process and Recommendations 
for Improving the Process. March 29, 2023. https://
naturalresources.house.gov/uploadedfiles/
fws_sect.7_report.3.29.2023.pdf.
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    While the ESA defines the term ``critical habitat'' it does 
not define the term ``habitat.'' In 2018, Weyerhaeuser Co. v. 
U.S. Fish and Wildlife Service created the need for a 
regulatory definition of the term. The Weyerhaeuser case 
stemmed from a species known as the dusky gopher frog, a rare 
species that is confined to a few ephemeral (short lasting) 
ponds in the Mississippi River Delta.\8\ In 2010, in response 
to litigation by the Center for Biological Diversity, the USFWS 
published a proposed critical habitat designation for the dusky 
gopher frog.\9\ The USFWS proposed to designate as occupied 
critical habitat about 4,933 acres in Forrest, Harrison, 
Jackson, and Perry Counties, Mississippi.\10\ The USFWS found 
that those areas possessed the three features that the agency 
considered ``essential to the conservation'' of the frog and 
that required special protection: ephemeral ponds for breeding, 
open-canopy forest with holes and burrows for dwelling, and 
open-canopy forest connecting breeding and dwelling areas.\11\
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    \8\``Final Rules Amending ESA Critical Habitat Regulations.'' Erin 
H. Ward and Pervaze A. Sheikh. Congressional Research Service. IF11740 
(congress.gov).
    \9\Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed. 
Reg. 35129-35131 (2012).
    \10\Id.
    \11\Id.
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    At the same time, USFWS also determined that there was not 
enough occupied land to sustain the species and proposed to 
designate as unoccupied critical habitat 1,544 acres of private 
lands in St. Tammany Parish, Louisiana.\12\ This area only 
contained one characteristic suitable for the frog, the 
presence of ephemeral ponds.\13\ The landowner, the 
Weyerhaeuser Company, sued the USFWS.\14\ Weyerhaeuser 
contended that the proposed land was not suitable habitat for 
the frog and that USFWS inadequately weighed the benefit to the 
species against the economic impacts.\15\
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    \12\Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 
U.S.___ (2018).
    \13\Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed. 
Reg. 35129-35131 (2012).
    \14\``Final Rules Amending ESA Critical Habitat Regulations.'' Erin 
H. Ward and Pervaze A. Sheikh. Congressional Research Service. IF11740 
(congress.gov).
    \15\Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 
U.S.___ (2018).
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    In 2018, the case reached the Supreme Court of the United 
States (Supreme Court).\16\ In a unanimous opinion, the Supreme 
Court held that to be designated a ``critical habitat'' under 
the ESA, the land must also be habitat for the species.\17\ In 
light of this opinion the USFWS agreed to remove the areas in 
question from critical habitat designations.\18\
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    \16\U.S. Supreme Court, Granted and Noted List, October Term 2018. 
https://www.supremecourt.gov/qp/17-00071qp.pdf.
    \17\Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 
U.S.___ (2018).
    \18\``Settlement Eliminates 1.500 Acres of Designated Dusky Gopher 
Frog Critical Habitat.'' David Miller. Nossaman LLP. 7/18/2019. 
Settlement Eliminates 1,500 Acres of Designated Dusky Gopher Frog 
Critical Habitat (endangeredspecieslawandpolicy.com).
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    On December 16, 2020, in response to the Weyerhaeuser 
decision the USFWS and NMFS published a final rule that defined 
``habitat,'' for the purposes of designating critical habitat 
under the ESA. The rule defined ``habitat'' as the abiotic and 
biotic setting that currently or periodically (emphasis added) 
contains the resources and conditions necessary to support one 
or more life processes of species.\19\ In effect, this rule 
narrowed the scope by which USFWS and NMFS could designate 
critical habitat to areas that meet each characteristic needed 
to sustain the species. A definition of habitat that excludes 
areas not currently suitable for the species provides greater 
certainty to stakeholders operating projects with a federal 
nexus. Over 900 listed species have designated critical habitat 
associated with them, which accounts for over 107 million acres 
of land area.\20\
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    \19\``Endangered and Threatened Wildlife and Plants; Regulations 
for Listing Endangered and Threatened Species and Designating Critical 
Habitat.'' 87 FR 37757. Federal Register: Endangered and Threatened 
Wildlife and Plants; Regulations for Listing Endangered and Threatened 
Species and Designating Critical Habitat.
    \20\``USFWS Threatened & Endangered Species Active Critical Habitat 
Report.'' U.S. Fish and Wildlife Service. 4/3/2023. USFWS Threatened & 
Endangered Species Active Critical Habitat Report.
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    On June 24, 2022, the USFWS and the NMFS announced they 
were rescinding the Trump administration`s rule defining 
``habitat'' as it relates to designating critical habitat.\21\ 
This action would revert to previous policies that allow the 
two agencies to designate critical habitat in areas that are 
not currently occupied by the species in question and in some 
cases, have not been occupied in decades and may never be 
occupied.
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    \21\``U.S. Fish and Wildlife Service and NOAA Fisheries Rescind 
Regulatory Definition of ``Habitat'' Under the Endangered Species 
Act.'' Marilyn Kitchell and Lauren Gaches. U.S. Fish and Wildlife 
Service. 6/23/2022. Rescind Regulatory Definition of ``Habitat'' Under 
the Endangered Species Act|U.S. Fish & Wildlife Service (fws.gov).
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Congressional Review Act

    The Congressional Review Act (CRA) was enacted in 1996 and 
provides Congress with a tool to overturn administrative 
regulations. If a CRA joint resolution is approved by both the 
House and Senate and signed by the President, the rule at issue 
cannot go into effect or continue in effect.
    H.J. Res. 46 would repeal the Biden administration's 
rescission, reinstating the Trump administration's definition 
of ``habitat'' as it relates to designating critical habitat.

                            COMMITTEE ACTION

    H.J. Res. 46 was introduced on March 30, 2023, by Rep. 
Cliff Bentz (R-OR). The resolution was referred to the 
Committee on Natural Resources, and within the Committee to the 
Subcommittee on Water, Wildlife and Fisheries. On April 18, 
2023, the Subcommittee on Water, Wildlife and Fisheries held a 
hearing on the resolution. On April 27-28, 2023, the Full 
Natural Resources Committee met to consider the resolution. The 
Subcommittee on Water, Wildlife and Fisheries was discharged by 
unanimous consent. Rep. Jared Huffman (D-CA) offered an 
amendment designated Huffman #1. The amendment offered by Rep. 
Huffman was withdrawn by unanimous consent. The resolution was 
then ordered favorably reported to the House of Representatives 
by a roll call vote of 17 yeas to 12 nays, as follows:


                                HEARINGS

    For the purposes of clause 3(c)(6) of House rule XIII, the 
following hearing was used to develop or consider this measure: 
hearing by the Subcommittee on Water, Wildlife, and Fisheries 
held on April 18, 2023.

                      SECTION-BY-SECTION ANALYSIS

    Congress disapproves the rule submitted by the United 
States Fish and Wildlife Service relating to ``Endangered and 
Threatened Wildlife and Plants; Endangered Species Status for 
Northern Long-Eared Bat'' (87 Fed. Reg. 73488; published 
November 30, 2022), and such rule shall have no force or 
effect.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

           COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL 
                               BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
resolution from the Director of the Congressional Budget 
Office:




    H.J. Res. 46 would disapprove a rule published in the 
Federal Register on July 24, 2022, by the National Marine 
Fisheries Service related to ``Endangered and Threatened 
Wildlife and Plants; Regulations for Listing Endangered and 
Threatened Species and Designating Critical Habitat.'' As a 
result, the legislation would reinstate a previous rule, 
``Regulations for Listing Endangered and Threatened Species and 
Designating Critical Habitat,'' which was submitted by U.S. 
Fish and Wildlife Service (USFWS) and National Oceanic and 
Atmospheric Administration (NOAA) and published in the Federal 
Register on December 16, 2020. That rule defined the term 
``habitat'' for regulations concerning critical habitat under 
the Endangered Species Act (ESA). The ESA requires agencies to 
consult with USFWS and NOAA on activities that could adversely 
affect critical habitats.
    Using information from USFWS and NOAA, CBO estimates that 
reinstating the definition of ``habitat'' would not affect 
permitting fees or civil and criminal penalties under the ESA. 
There would be some administrative costs to void the 
regulation, which CBO estimates would be insignificant; any 
spending would be subject to the availability of appropriated 
funds.
    The CBO staff contact for this estimate is Lilia Ledezma. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Director of Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this resolution is to provide for congressional 
disapproval under chapter 8 of title 5, United States Code, of 
the rule submitted by the National Marine Fisheries Service 
relating to ``Endangered and Threatened Wildlife and Plants; 
Regulations for Listing Endangered and Threatened Species and 
Designating Critical Habitat''.

                           EARMARK STATEMENT

    This resolution does not contain any Congressional 
earmarks, limited tax benefits, or limited tariff benefits as 
defined under clause 9(e), 9(f), and 9(g) of rule XXI of the 
Rules of the House of Representatives.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    According to the Congressional Budget Office, this 
resolution contains no unfunded mandates as defined by the 
Unfunded Mandates Reform Act.

                           EXISTING PROGRAMS

    Directed Rule Making. This resolution does not contain any 
directed rule makings.
    Duplication of Existing Programs. This resolution does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    Any preemptive effect of this resolution over state, local, 
or tribal law is intended to be consistent with the 
resolution's purposes and text and the Supremacy Clause of 
Article VI of the U.S. Constitution.

                        CHANGES IN EXISTING LAW

    As reported by the Committee, H.J. Res. 46 makes no changes 
in existing law.

                            DISSENTING VIEWS

    H.J. Res. 46 is a resolution of congressional disapproval 
for a National Marine Fisheries Service (NMFS) rule that 
revoked the December 2020 definition of ``habitat'' under the 
Endangered Species Act of 1973 (ESA). The regulation, jointly 
issued by NMFS and the U.S. Fish and Wildlife Service (FWS) on 
June 24, 2022, would be nullified if H.J. Res. 46 is enacted. 
This resolution will undermine federal agencies' authority to 
make informed management decisions based on the best available 
scientific evidence, as required by the ESA. It also runs 
counter to the language and intent of the ESA and could impede 
the agencies' ability to identify, designate, and restore 
critical habitats for endangered and threatened species, 
putting these species at risk of extinction.
    Under the ESA, agencies designate ``critical habitat'' for 
species recovery. This designation is a crucial component of 
ESA implementation. The ESA defines critical habitat as areas 
both occupied and unoccupied by the species at the time of 
listing. Occupied areas must possess physical or biological 
features essential to the species conservation and may require 
unique management. Unoccupied areas need only be ``essential 
for the conservation of the species'' to qualify as critical 
habitat.
    A unanimous U.S. Supreme Court decision in 2018 established 
that an area must meet the requirements to be considered a 
``habitat'' for an endangered species before it can be deemed a 
``critical habitat.''\1\ Building upon this decision, the Trump 
administration, through FWS and NMFS, issued a final rule on 
December 16, 2020, defining ``habitat'' as follows: ``For the 
purposes of designating critical habitat only, habitat is 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.''\2\
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    \1\Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S.___ 
(2018), https://www.supremecourt.gov/opinions/18pdf/17-71_omjp.pdf.
    \2\Regulations for Listing Endangered and Threatened Species and 
Designating Critical Habitat (85 Fed. Reg. 81411). December 16, 2020.
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    This 2020 critical habitat rule directly contradicts the 
ESA's definition of critical habitat, which includes occupied 
and unoccupied areas. Unoccupied areas can and should be 
designated as critical habitat if they are essential for 
species conservation. During the April 18, 2023, hearing on 
H.J. Res. 46, Robert L. Fishman, Professor of Law at Indiana 
University, explained that Congress acknowledged the 
conservation necessity of creating new habitats for species 
recovery, recognizing that most species cannot rebound from the 
brink of extinction without additional habitat to disperse or 
be relocated to. Therefore, any regulatory definition of 
habitat that excludes unoccupied areas essential to recovery, 
as was the case with the 2020 rule, goes against the clear 
intent of the ESA.
    The 2020 definition limited the ability of FWS and NMFS to 
conserve and restore critical habitat based on the best 
available science for ESA-listed species recovery. By 
restricting habitat to areas that currently or periodically 
support the life processes of a species, the 2020 definition 
excluded areas requiring restoration or modification to support 
species. This limitation disregarded the longstanding practice 
of designating degraded habitats as critical habitat under the 
ESA and subsequently working toward their restoration to serve 
as strongholds for species recovery, particularly in ecosystems 
with depleted habitat and reduced species ranges.
    Moreover, the definition failed to account for the 
flexibility needed by FWS and NMFS in addressing the impact of 
climate change on species' habitat. As species' ranges shift in 
response to changing temperatures and rising sea levels or to 
follow their preferred prey, FWS and NMFS often need to 
designate areas as critical habitat that species will inhabit 
in the foreseeable future to ensure their survival. Despite the 
availability of the best scientific knowledge on wildlife 
migrations and climate forecasting, the 2020 definition would 
have limited this opportunity in some areas.
    Recognizing these deficiencies, the Biden administration 
finalized a rule on June 24, 2022, revoking the 2020 definition 
of ``habitat.''\3\ The administration concluded that 
restricting habitat to areas currently or periodically 
supporting species' life processes was inconsistent with the 
conservation purpose of the ESA. FWS and NMFS also determined 
that the 2020 definition was unclear and would not provide 
transparency or reproducible outcomes.\4\
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    \3\Endangered and Threatened Wildlife and Plants; Regulations for 
Listing Endangered and Threatened Species and Designating Critical 
Habitat (87 Fed. Reg. 37757). June 24, 2022. https://
www.federalregister.gov/documents/2022/06/24/2022-13368/endangered-and-
threatened-wildlife-and-plants-regulations-for-listing-endangered-and-
threatened.
    \4\See also Erin H. Ward & Pervaze A. Sheikh, Congressional 
Research Service, IF11740, CRS in Focus: Final Rules Amending Critical 
Habitat Regulations (version two, updated July 11, 2022).
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    H.J. Res. 46 disapproves the June 24, 2022, rule and 
restores the 2020 Trump-era definition of ``habitat.'' This 
resolution undermines the Endangered Species Act by impeding 
the agencies' flexibility to make well-informed management and 
recovery decisions based on the best available science and in 
alignment with the ESA's requirements. Additionally, it forces 
the agencies to rely on an outdated rule, as using the 
Congressional Review Act prohibits them from implementing any 
substantially similar rulemaking in the future. Given the 
dynamic nature of species' status and range shifts due to 
climate change and other factors, this limitation on assessing 
and designating critical habitat would significantly hinder 
species recovery efforts, which rely on identifying and 
preserving essential habitats.
                                          Raul M. Grijalva,
              Ranking Member, House Committee on Natural Resources.

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