The Endangered Species Act will go under the congressional spotlight next week as a House committee plans to examine new regulations handed down earlier this year that Republicans say go beyond the law.
The House Natural Resources Committee on Tuesday will examine critical habitat regulations released by the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration's Fisheries Service earlier this year.
Earlier this year, the Fish and Wildlife Service and NOAA's Fisheries Service came up with new rules designating which areas of the country, both on land and at sea, are considered protected habitat for endangered species. Republicans believe the new designations are overly broad.
Michael Freeman, legislative counsel for the Republicans on the committee, wrote in a memo that the new rules will block off from energy production large areas that have not been used by protected species in decades, or ever.
"These regulatory changes by executive branch agencies usurp Congress' legislative and constitutional authority and providing sweeping new authority not intended by Congress," Freeman wrote.
As a part of the Endangered Species Act, each federal agency must work with the secretary of Interior to make sure it is not hurting any protected species or habitat. That designation can make areas off limits to energy production and other economic activity.
The February regulation redefined "geographical area occupied by the species" and "physical or biological features," which House Republicans see as problematic.
Freeman wrote that the Fish and Wildlife Service and NOAA can declare expansive areas around the habitat of an endangered species off limits to energy production and other economic activity, even if the species is not known to ever venture into that area.
He wrote that Republicans are concerned about the potential for new lawsuits that the new definition brings.
"By granting themselves new authorities, the services are incentivizing lawsuits by frequent [Endangered Species Act] litigant groups which hope to force the services to use those new authorities to the maximum extent possible," he wrote.
The Endangered Species Act has been a particular bugaboo in the West.
Western governors trekked to Capitol Hill late last year to testify to the committee about the challenges they face in dealing with the federal government. The Endangered Species Act was one of the most discussed pieces of legislation.
Gov. Matt Mead, of Wyoming, said the act covers many species that could be removed from the list. Part of the problem with having those animals still on the list is that their habitat is then protected from any energy production.
Freeman wrote the Obama administration's use of the act in recent years has caused economic uncertainty in many areas of the country.
"In recent years, the administration has proposed or finalized hundreds of new critical habitat designations, impacting millions of acres and thousands of river miles as critical habitat," Freeman wrote.
"Critical habitat designations have created uncertainty for a host of activities on federal, state, local and privately owned property and waters across the nation. Any private action that requires a federal permit or other federal action is therefore contingent on this statutory provision."
Among the witnesses slated to testify are Dan Ashe, director of the Fisheries and Wildlife Service, Wyoming lawyer Karen Budd-Falen, David Bernhardt, the former solicitor for the Department of Interior, Robbie LeValley, a county administrator in Colorado, and Loyal Mehroff, the endangered species recovery director for the Center for Biological Diversity.