On Friday, June 24, the U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a final rule rescinding the agencies’ regulatory definition of “habitat” previously promulgated by the Trump administration on December 16, 2020, for use in determining a “critical habitat” under the Endangered Species Act (Act). Under this prior definition, “habitat” included “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.” This definition served to exclude areas that could not be declared a habitat at present even if the area could meet the requirements in the future. As such, the definition was criticized as ignoring efforts to support habitat recovery by not considering how geographic regions could change over time and how species migrate over time.
In Friday’s action, the agencies determined that this prior definition was unclear and confusing and inconsistent with the conservation purposes of the Act. The agencies further determined that the 2018 Supreme Court case Weyerhaeuser v. FWS, which served as the basis for the prior definition, did not require the agencies to adopt a definition of “habitat” so long as the administrative records for particular designations include an explanation for why any unoccupied areas are considered habitat for the species. Therefore, in rescinding the prior definition, the agencies are not promulgating a new one. The agencies instead stated that a single definition of “habitat” could impede the their ability to fulfill their obligations to designate critical habitat based on the best scientific data available.
The agencies further cited their need for more flexibility in habitat designations made on case-by-case bases, especially as geographic regions and species range continue to change due to various causes, including climate change, and concluded that a regulatory definition of “habitat” would improperly restrict their duties as mandated by the Act.
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