Senate Passes Resolutions to Provide Clarity for Western Landowners and Businesses

May 11, 2023

WASHINGTON, D.C. – Today, the Senate passed Congressional Review Act resolutions to provide clarity and transparency for landowners and businesses throughout the west. The first resolution, led by Senate Western Caucus Chair Cynthia Lummis (R-WY), would retain the regulatory definition of habitat within the Endangered Species Act (ESA). The second, introduced by Sen. Markwayne Mullin (R-OK), would overturn the northern long-eared bat’s listing as an endangered species under the ESA. 

“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 landowners in the west 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.” 

“The decision to arbitrarily classify the northern long-eared bat as ‘endangered’ will have serious consequences for landowners, businesses, and infrastructure projects across the state,”said Senator Mullin. “There is no reason to disproportionately increase regulatory burden and hinder economic development when this rule will not affect the primary cause of decline for the northern long-eared bat. I am strongly against one-size-fits-all regulation from Washington bureaucrats, and this is no different. We must stop this reclassification and ensure our state and other impacted states can continue efforts to protect the northern long-eared bat without the heavy hand of the federal government getting in their way. I am proud to have led this resolution of disapproval in the Senate and grateful for my colleagues who joined me in this effort.”  

Before the vote, Lummis spoke on the Senate floor to urge her colleagues to pass the CRAs. 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. 

On November 30, 2022, the US Fish and Wildlife Service (FWS) published its final rule listing the northern long-eared bat as endangered under the Endangered Species Act.   

After Sens. Lummis and Mullin, alongside their colleagues expressed opposition, FWS announced it would delay the effective date for the final rule to March 31, 2023.   

On March 6, 2023, FWS announced interim guidance to assist stakeholders in the transition to the reclassification.