"Habitat" Flip Flop ' Fish And Wildlife And National Marine Fisheries Services Rescind Trump Administration Definition Of "Habitat"

• Published date: 28 June 2022
• Subject Matter: Environment, Environmental Law
• Law Firm: Duane Morris LLP
• Author: Ms Rebecca E. Bazan

Shortly after the new regulatory definition of "habitat" went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). One of the ways it purports to do so is through the designation and protection of "critical habitat." The Secretaries of the Interior (FWS) and Commerce (NMFS) designate "critical habitat" for threatened and endangered species. 16 U.S.C. ' 1533(a)(3)(A)(i). Once "critical habitat" is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will "result in the destruction or adverse modification" of the "critical habitat." 16 U.S.C. ' 1536(a)(2).

The term "critical habitat" is...