US senators introduce resolution to retain habitat definition in Endangered Species Act, overturning a Biden administration rule; lawmakers says reinstating 2020 rule would provide clarity for landowners and businesses and still support conservation

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WASHINGTON , April 13, 2023 (press release) –

Boozman, Lummis Lead Colleagues in Introducing Congressional Review Act Resolution to Overturn Biden Rule on the Endangered Species Act

Word Count: 771

WASHINGTON - U.S. Senators John Boozman (R-AR) and Senate Western Caucus Chair Cynthia Lummis (R-WY) led 17 of their colleagues in introducing a Congressional Review Act (CRA) resolution to retain the regulatory definition of habitat within the Endangered Species Act (ESA). By defining habitat, this CRA will provide clarity and transparency to landowners and businesses.

"We can all agree that safeguarding our environment and ensuring wildlife habitat is protected for future generations is important. There are commonsense measures we can take to support conservation without trampling on the rights of landowners. I'm pleased to support this effort to block this overreaching regulation," said Boozman.

"There is an important distinction between 'habitat' and 'critical habitat' for an endangered species," said Lummis. "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 recover, not the enemy. This CRA will ensure that Wyoming landowners are not unfairly targeted by the administration and that habitat designations are based on science, not on politics."

Sens. John Barrasso (R-WY), Shelley Moore Capito (R-WV), Markwayne Mullin (R-OK), Dan Sullivan (R-AK), Pete Ricketts (R-NE), Katie Britt (R-AL), Ted Budd (R-NC), James Lankford (R-OK), Roger Marshall, M.D. (R-KS), Jim Risch (R-ID), Kevin Cramer (R-ND), John Hoeven (R-ND), Steve Daines (R-MT), Joni Ernst (R-IA), Mike Crapo (R-ID) and Ted Cruz (R-TX) cosponsored the CRA.

Rep. Cliff Bentz (R-OR) introduced a companion CRA in the U.S. House of Representatives.

The CRA is supported by the American Farm Bureau, the National Cattleman's Beef Association, the Public Lands Council, the National Mining Association, the Western Energy Alliance, the Independent Petroleum Association of America, Property and Environmental Policy Research Center (PERC) and the Dallas Safari Club.

"Western Energy Alliance urges Congress to pass the CRA resolution to overturn the Biden administration's Critical Habitat Rule. The Supreme Court very clearly ruled that in order to be designated as critical habitat, lands must be just that, habitat. The Trump rule defined critical habitat accordingly. Now the Biden administration would have us go back to a time before that unanimous Supreme Court decision and designate lands as critical habitat where not only is the species not even present, but doesn't even contain the conditions for the species to survive. Such a policy is about controlling land and stopping useful human activities, not about protecting species," said Kathleen Sgamma, President of the Western Energy Alliance.

"Each time an area is designated as critical habitat, ranchers and landowners bear the brunt of the regulatory burden. These decisions have real impacts on rural communities and landscape management - it is imperative that they be rooted in scientific reality, not hypotheticals. Restoring the 2020 definition of habitat is a commonsense step to reduce the delays and drawn-out, speculative analyses that are so often standing in the way of important wildlife conservation work on the ground," said Public Lands Council Director Sigrid Johannes.

"Conserving and restoring habitat is essential to recovering species. Yet the Biden administration has opted to have no definition of habitat to guide its decisions. It would be appropriate to have a definition that reflects current science and the need for better incentives for private landowners to conserve and restore habitat," said Jonathan Wood, PERC Vice President of Law and Policy.

A critical habitat designation has major impacts on landowners, 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.

In December 2020, citing 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."

On June 24, 2022, the Biden administration finalized a rule that rescinded the 2020 rule, eliminating the habitat distinction, leaving regulated parties in the dark and undermining the ESA's purpose of protecting endangered or threatened species.

The Endangered Species Act directs the Secretary of Interior through the U.S. Fish and Wildlife Service and/or the Secretary of Commerce through the National Marine Fisheries Services to designate critical habitat for listed species.

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