Habitat Definition No Longer Applies in Critical Habitat Designations
Habitat Definition No Longer Applies in Critical Habitat Designations

On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” (2020 Rule) under the Endangered Species Act (ESA). In rescinding the definition of “habitat,” the Services explained they were removing an “excessive constraint” on the agencies’ ability to designate critical habitat under the ESA. Specifically, the Services explained that there may be circumstances where unoccupied areas that do not currently or periodically contain the resources and conditions necessary to support one or more life processes of a species could nevertheless meet the definition of “habitat” and be essential for the conservation of the species. The rescission reflects the agencies’ intent to take a broader view of what constitutes “habitat” in the context of designating critical habitat.

The Services initially adopted the 2020 Rule in response to the U.S. Supreme Court’s holding in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, 139 S. Ct. 361, 372 (2018) (Weyerhaeuser), in which the Court held only those areas that are “habitat” for listed species are “eligible for designation.” In rescinding the 2020 Rule, the Services noted that Weyerhaeuser did not set forth what should or should not qualify as “habitat,” did not require the agencies to adopt a regulatory definition of the same, and, in the agencies’ view, did not extend beyond the particular record at issue in the case (i.e., designation of critical habitat for the dusky gopher frog). Given the Services’ current interpretation of Weyerhaeuser, the agencies now view it as “more appropriate” to determine what areas constitute “habitat” for a species on a “case-by-case basis using the best scientific data available for the particular species.” For more information on the 2020 Rule, see Nossaman’s previous blog post.

  • Sara F. Greenberg

    Sara Greenberg assists in advising clients on environmental and land use matters involving the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Endangered Species Act, the ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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