Lummis Resolution to Overturn Biden Rule on the Endangered Species Act Passes Senate

May 11, 2023

WASHINGTON, D.C. – Today, a Congressional Review Act resolution introduced by Senate Western Caucus Chair Cynthia Lummis’ (R-WY) that would have retained the regulatory definition of habitat within the Endangered Species Act (ESA) passed the Senate by a vote of 51-49. By defining habitat, this CRA provides clarity and transparency for landowners and businesses in Wyoming and throughout the west.  

“There’s an important distinction between ‘habitat’ and ‘critical habitat’ for an endangered species and this Congressional Review Act resolution provides much-needed clarity for private property owners in Wyoming,” said Senator Lummis. “Private property owners need to be partners in species recovery, not the enemy.  This CRA ensures Wyoming landowners are not unfairly targeted by the administration and that habitat designations are based on science, not on politics. I’m proud this resolution garnered bipartisan support.” 

Before the vote, Lummis spoke on the Senate floor to urge her colleagues to pass the CRA. For video of her speech, click here.  

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On June 24, 2022, the Biden administration finalized a rule that rescinded the 2020 rule, eliminating the habitat distinction, leaving regulated parties in the dark and undermining the ESA’s purpose of protecting endangered or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

The following species found in Wyoming are currently listed as endangered: the grizzly bear, whooping crane, black-footed ferret, gray wolf, yellow-billed cuckoo, Wyoming toad, northern long-eared bat, Kendall warm springs dace, Preble’s meadow jumping mouse, Canada lynx, blowout penstemon, Colorado butterfly plant, desert yellowhead and Ute ladies’-tresses. 

The CRA was cosponsored by 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 (R-KS), Jim Risch (R-ID), Kevin Cramer (R-ND), Steve Daines (R-MT), John Boozman (R-AR), Mike Crapo (R-ID), John Hoeven (R-ND), Ted Cruz (R-TX), Joni Ernst (R-IA), Bill Cassidy (R-LA), Deb Fischer (R-NE) and Roger Wicker (R-MS). Rep. Cliff Bentz (R-OR) introduced a companion CRA in the U.S. House of Representatives. 

It is supported by the National Water Resources Association, Northwest Public Power Association, Coalition of Arizona/New Mexico Counties, National Endangered Species Act Reform Coalition, National Association of Counties, National Association of Home BuildersGas and Oil Association of West Virginia, Montana Stockgrowers Association, Montana Public Lands Council, Montana Association of State Grazing Districts, American Chamber of Commerce, National Rural Electric Co-op Association (NRECA), American Petroleum Institute, American Farm Bureau, Western Energy Alliance, National Mining Association, Independent Petroleum Association of America, Property and Environment Research Center, Public Lands Council, National Cattlemen’s Beef Association and the U.S. Oil and Gas Association.