Habitat Definition No Longer Applies In Critical Habitat Designations

• Published date: 28 June 2022
• Subject Matter: Environment, Environmental Law
• Law Firm: Nossaman LLP
• Author: Ms Sara F. Greenberg

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...