H.J. Res. 78 directs that the Fish and Wildlife Service’s rule listing the San Francisco Bay‑Delta distinct population segment (DPS) of the longfin smelt as endangered (89 Fed.
Reg. 61029) "shall have no force or effect." The resolution invokes chapter 8 of title 5 U.S.C. (the Congressional Review Act) to nullify that specific rule by joint resolution of Congress.
This matters because a successful disapproval removes the ESA listing’s regulatory triggers—section 7 consultations, take prohibitions tied to the listing, and critical habitat designations tied to that rule—until and unless the agency issues a legally distinct listing or Congress acts. It also activates CRA consequences that limit the agency’s ability to reissue the same rule without new statutory authorization, creating a lasting barrier to relisting in substantially the same form and producing administrative, legal, and management uncertainty across water operations, habitat restoration, and conservation planning in the Bay‑Delta region.
At a Glance
What It Does
The resolution disapproves a specific FWS final rule that listed the San Francisco Bay‑Delta DPS of the longfin smelt as endangered and declares that rule to have no force or effect under the Congressional Review Act. By nullifying the rule, it removes the rule’s immediate legal consequences and invokes statutory limits on reissuing substantially similar rules.
Who It Affects
Federal and state water managers (including Central Valley Project and State Water Project operators), conservation organizations, commercial and recreational fishing interests, the Fish and Wildlife Service, and any private parties subject to ESA-related restrictions or consultations in the Bay‑Delta ecosystem.
Why It Matters
The resolution substitutes a congressional override for the agency’s scientific listing decision, replacing an administrative record-driven outcome with statutory nullification. That shifts regulatory control over Bay‑Delta management, changes the legal footing for permits and consultations tied to the listing, and makes future agency action more legally fraught.
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What This Bill Actually Does
H.J. Res. 78 is short and single-purpose: it states that Congress disapproves the U.S. Fish and Wildlife Service’s final rule that listed the San Francisco Bay‑Delta distinct population segment of the longfin smelt as endangered and declares that rule to have no force or effect.
The resolution invokes the Congressional Review Act (chapter 8 of title 5, U.S.C.), the statutory mechanism Congress uses to nullify recently issued federal rules by enactment of a joint resolution.
Nullifying the listing removes the legal triggers that flow from an ESA listing decision. With the listing treated as having no force, the take prohibitions, Section 7 consultation obligations for federal agencies, and any protective measures implemented specifically because of that listing would no longer rest on the rule Congress disapproved.
Agencies that had begun or completed consultations under the now‑disapproved rule will face questions about whether those consultations remain operative, must be reopened, or can be treated as advisory depending on subsequent administrative or judicial developments.The resolution’s use of the CRA has consequences beyond immediate nullification. Under the CRA, a disapproved rule may not be reissued in substantially the same form unless Congress later authorizes it.
That statutory bar does not change the underlying eligibility of the population to be listed under the Endangered Species Act, but it raises the bar for the Fish and Wildlife Service: the agency would need to develop a substantially different rulemaking record or seek explicit congressional authorization to restore the same protections. Practically, that produces a period of regulatory limbo for Delta management and conservation planning, with agencies, permittees, and stakeholders uncertain about near‑term regulatory obligations.Finally, the resolution replaces an agency regulatory product grounded in administrative record and expert determinations with a legislative act.
That shift changes the likely forms of subsequent challenge: instead of litigating the administrative record for the listing, parties may litigate implementation consequences, the scope of the CRA bar, or the validity of actions taken in the interim. It also forces the Fish and Wildlife Service to choose whether to pursue new rulemaking on a fresh record, to reframe protections through other mechanisms, or to accept the practical effect of the congressional decision.
The Five Things You Need to Know
The resolution targets a single FWS rule: "Endangered Species Status for the San Francisco Bay‑Delta Distinct Population Segment of the Longfin Smelt," published at 89 Fed. Reg. 61029 (July 30, 2024).
By invoking chapter 8 of title 5 U.S.C. (the Congressional Review Act), the resolution not only nullifies the rule but activates the CRA’s prohibition on issuing a "substantially similar" rule unless Congress authorizes it.
The text of H.J. Res. 78 is narrowly framed: it disapproves the identified rule and states the rule "shall have no force or effect," without amending the Endangered Species Act or declaring alternative regulatory measures.
Nullification removes the direct statutory basis for ESA section 7 consultations and section 9 take prohibitions tied specifically to that listing for the San Francisco Bay‑Delta DPS, altering the legal basis for permits and federal project approvals that were relying on the listing.
The resolution does not itself prescribe new management or recovery actions for the species; it leaves the Fish and Wildlife Service with options that include new rulemaking on a different administrative record, litigation, or other administrative measures.
Section-by-Section Breakdown
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Congressional disapproval and nullification of the specified FWS rule
The operative text declares congressional disapproval of the FWS final rule and states that the rule "shall have no force or effect." Practically, that language operates as a straightforward nullification of the identified Federal Register action rather than as a modification of substantive ESA provisions; it removes the rule’s legal status as if it had not been validly issued.
Identifies the exact Federal Register citation covered by the resolution
The resolution cites the exact Federal Register entry for the listing, which limits the scope of disapproval to that final rule. Because the disapproval targets a single rule by citation, it does not automatically affect other listings, opinions, guidance documents, or agency actions that are separately promulgated.
CRA framework governs post‑disapproval consequences
Although the resolution itself contains only a nullification clause, its invocation of chapter 8 means statutory CRA consequences attach: the agency must report the rule’s nullification to Congress and the Government Accountability Office, and the agency is constrained from issuing a substantially similar rule absent explicit congressional authorization. Those collateral effects shape the agency’s realistic path forward after disapproval.
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Explore Environment in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Delta water users and exporters (e.g., Central Valley Project and State Water Project contractors): removing the listing reduces the immediate risk that ESA‑based operational restrictions or additional flow conditions would be required for federal water project operations tied to this DPS.
- Agricultural water contractors and some municipal water agencies in the Central Valley and Bay Area: they face lower near‑term regulatory uncertainty over water supply operations that had been implicated by the species listing.
- Commercial and recreational fishery interests that argued the listing would impose management constraints: they gain at least a temporary reprieve from listing‑driven restrictions tied to the Bay‑Delta DPS designation.
Who Bears the Cost
- The longfin smelt San Francisco Bay‑Delta population and associated ecosystem restoration efforts: removing the listing eliminates an enforcement and funding lever under the ESA that often motivates recovery planning, critical habitat designation, and conservation funding.
- Conservation organizations and scientists advocating for protections: they lose a statutory tool and may need to pursue litigation or new administrative proceedings to restore protections.
- The Fish and Wildlife Service and federal resource agencies: they inherit legal and administrative costs—reworking records, defending litigation, and designing alternatives—while navigating the CRA bar against substantially similar future rules.
Key Issues
The Core Tension
The central dilemma is whether to prioritize immediate regulatory relief for water and resource users by overturning an agency’s scientific listing decision, or to prioritize the procedural and substantive protections of an agency‑driven, science‑based process that can impose enforceable conservation measures; the resolution favors the former but leaves the biological problem unresolved and the administrative path forward legally constrained.
The resolution solves one legal problem—nullifying the specific FWS rule—but creates several practical and legal puzzles. First, the CRA bar on "substantially similar" rules is fact‑specific and litigable.
Determining whether a future FWS listing is "substantially similar" to the disapproved rule will turn on the content of any new administrative record, the agency’s changed or expanded rationale, and judicial interpretation, producing litigation risk and regulatory uncertainty.
Second, the resolution does not say what happens to agency actions already taken under the now‑disapproved rule. Federal agencies that completed Section 7 consultations, issued permits conditioned on the listing, or altered operations in reliance on the rule will confront questions about whether those acts remain valid, whether they must be revisited, and whether parties whose interests changed in reliance on the listing will have remedies.
That legal limbo complicates project planning and could produce a new wave of lawsuits aimed at clarifying the effect of the disapproval on past and ongoing administrative decisions.
Third, the resolution replaces an agency technical determination with a political override. That raises a governance trade‑off: Congress can respond to local economic and political pressures more directly than an agency rulemaking process, but it also displaces a science‑based administrative record with a statute‑level decision that does not itself build an alternative recovery plan or monitoring regime.
The result is a durable change in the regulatory landscape that leaves ecological management contingent on either new agency work, judicial rulings, or further congressional action—none of which resolves the underlying biological questions about the species' status.
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