Providing for Congressional Disapproval Under Chapter 8 of Title United States Code, of 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

Floor Speech

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Ms. LUMMIS. Mr. President, later today, we will be voting on legislation I introduced with 20 of our colleagues, S.J. Res. 23. This resolution rescinds the Biden administration's 2022 rule that rolled back a commonsense and necessary definition of ``habitat'' under the Endangered Species Act from the previous administration.

When Congress passed the Endangered Species Act, it granted the Secretaries of the Interior and Commerce, through the Fish and Wildlife Service and the National Marine Fisheries Service, respectively, the authority to designate areas as ``critical habitat.'' Section 7 of the Act prohibits the ``destruction or adverse modification'' of these critical habitat designations.

There is no doubt that habitat loss is a contributing factor to species' declines, so protecting habitat that is necessary to the survival of species is appropriate. The problem that has arisen, however, is that these designations have, on occasion, been weaponized to the detriment of landowners, the American public, and the very species we are trying to protect.

Two-thirds of all endangered species are located on private lands. For these species to be recovered, private landowners must be part of the solution and not treated as the enemy. Unfortunately, through aggressive critical habitat designations, as well-intentioned as they might be, private landowners are penalized and harmed instead of incentivized to help with species recovery.

A recent study that examined more than 13,000 real estate transactions for land within or near critical habitat for two listed species in California found that a designation ``resulted in a large and statistically significant decrease in land value,'' specifically 48 percent for the red-legged frog and at least 78 percent for the Bay checkerspot butterfly.

This is true across the country. Let me tell you a story from Louisiana.

In 2001, the Fish and Wildlife Service listed the dusky gopher frog as an endangered species. After litigation by the Center for Biological Diversity, in 2010, the Service proposed to designate critical habitat for the species and included 1,544 acres on a Louisiana site owned by Weyerhaeuser Company and a group of family landowners. The Service included the site even though the frog was last seen there in 1965.

Additionally, the site would require substantial modification to support a sustainable population. According to the Service's own report, designation of the site could cost the landowners nearly $34 million in lost development value. Weyerhaeuser sued the Fish and Wildlife Service over the designation, arguing, among other things, that the site could not be critical habitat because the frog, which did not exist at the site, could not survive there without the site's being transformed from a closed canopy timber plantation to an open canopy, longleaf pine forest. In other words, their land could not be critical habitat for the frog because it was not habitat at all.

In a unanimous 8 to 0 decision in 2018, the Supreme Court agreed. It said the ESA ``does not authorize the Secretary to designate an area as critical habitat unless it is also habitat for the species.''

Now, the problem is that the term ``habitat'' itself is not defined within the Endangered Species Act. Prompted by that unanimous Weyerhaeuser Supreme Court case, the U.S. Fish and Wildlife Service finalized a rule in 2020 that defined the word ``habitat'' for the purposes of designating ``critical habitat'' under the ESA.

The definition is simple: Habitat is an area that ``currently or periodically contains the resources and conditions necessary to support one or more life process of a species.''

It seems pretty reasonable.

In 2022, the Biden administration caved to radical groups that wanted to return to free-for-all designations and finalized a rule to rescind this very reasonable, commonsense definition.

So we are now operating under an ad hoc system that creates decreased property values and predatory legal challenges for American families and businesses. In fact, it incentivizes landowners to make sure that their land could never be habitat for threatened or endangered species.

With the Trump-era rule rescinded, there is no regulation to bind Federal Agencies in determining the habitat of an endangered species from which critical habitat can be designated. Without the certainty of what ``habitat'' actually means, the development of any type can be blocked, including necessary infrastructure projects that the majority of this body recently spent hundreds of billions of taxpayer dollars to support.

It is for this reason that a huge group of outside groups endorsed this resolution, including the American Road & Transportation Builders Association, the American Farm Bureau, the National Water Resources Association, the National Association of Counties, the Public Lands Council, the National Association of Home Builders, and many others.

In closing, the only way to recover endangered species is to enlist the help of private landowners in our efforts. Overly broad critical habitat designations do just the opposite. My friends across the aisle have argued these designations are necessary for species recovery. The facts simply don't back this up. Among the 60 species still listed from the ESA because of recovery as of July 2020, 51 of them never even had critical habitat designations.

By lowering private landowner opposition to conservation efforts, which will happen if we pass this rule, our Nation can help recover threatened and endangered species while simultaneously supporting our private landowners and public land users in their worthy goals of providing food, energy, jobs, and homes necessary for the survival of our own species.

I urge my colleagues to vote yes in support of this resolution.

Vote on S.J. Res. 23

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