2020 Environmental Real Estate IssuesFor over 45 years, the federal government issued rules and took enforcement actions aimed at protecting habitat under the Endangered Species Act (ESA), despite no definition of “habitat” in the ESA or its implementing rules.  Thanks to a three-inch frog’s case before the US Supreme Court, on August 5, 2020 the US Fish & Wildlife Service (F&W) and the National Marine Fisheries Service issued a proposed rule defining “habitat” for use in making critical habitat designations under the ESA.

Dusky Gopher Frog Controversy
The 2018 Supreme Court decision stemmed from a controversy regarding designation of critical habitat for the dusky gopher frog, a species designated as endangered.  A Louisiana landowner sued F&W after F&W designated its property as critical habitat for this frog, drastically diminishing the land’s value.  The landowner complained its land could not be critical habitat, because the frog had not been seen in or near its land for decades.

The case went to the Supreme Court, which held F&W could not designate an area as critical habitat without first determining if the area met the definition of “habitat” and noted “habitat” was not defined in the ESA or its rules.

Proposed Rule in Response
The news release says the proposed rule will address the 2018 Supreme Court ruling regarding the dusky gopher frog.  The news release also states the rule, consistent with the Trump Administration’s broader regulatory reform efforts, is designed to “increase the clarity of the ESA, improve partnerships, stimulate more effective conservation on the ground, and improve consistency and predictability around critical habitat determinations.”

Public comments on the proposed rule are due by September 4, 2020.

To see the news release, with links for reading the rule and commenting on it https://www.fws.gov/news/ShowNews.cfm?_ID=36747