Shortly after the new regulatory definition of \u201chabitat\u201d went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.<\/p>\n
The Endangered Species Act (ESA) has been described as \u201cthe most comprehensive legislation for the preservation of endangered species ever enacted by any nation.\u201d\u00a0 Tennessee Valley Authority v. Hill<\/em>, 437 U.S. 153, 180 (1978).\u00a0 One of the ways it purports to do so is through the designation and protection of \u201ccritical habitat.\u201d\u00a0 The Secretaries of the Interior (FWS) and Commerce (NMFS) designate \u201ccritical habitat\u201d for threatened and endangered species.\u00a0 16 U.S.C. \u00a7 1533(a)(3)(A)(i).\u00a0 Once \u201ccritical habitat\u201d is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will \u201cresult in the destruction or adverse modification\u201d of the \u201ccritical habitat.\u201d \u00a016 U.S.C. \u00a7\u00a01536(a)(2).<\/p>\n The term \u201ccritical habitat\u201d is defined by the ESA itself, 16 U.S.C. \u00a7\u00a01532(5)(A), but the broader term \u201chabitat,\u201d is not.\u00a0 This may seem insignificant, but the difference between \u201ccritical habitat\u201d and \u201chabitat\u201d became\u2014one might say, critical\u2014in the Supreme Court\u2019s 2018 opinion Weyerhaeuser Co. v. U.S. FWS<\/em>, 139 S. Ct. 361 (2018).\u00a0 There, the Supreme Court held that an area cannot be designated a \u201ccritical habitat\u201d unless it is also a \u201chabitat,\u201d which does not have a statutory definition.\u00a0 Id. <\/em>at 368-369. \u00a0The Supreme Court commented that \u201cthe statutory definition of \u2018critical habitat\u2019 tells us what makes habitat \u2018critical,\u2019 not what makes it \u2018habitat.\u2019\u201d\u00a0 Id.<\/em> at 368.\u00a0 The case, however, did not address what is or should qualify as \u201chabitat.\u201d<\/p>\n In response to this decision, FWS and NMFS promulgated the following regulatory definition of \u201chabitat\u201d: \u201cFor the purposes of designating critical habitat only, habitat is 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.\u201d\u00a0 50 C.F.R. \u00a7 424.02.\u00a0 The \u201chabitat definition rule\u201d was published on December 16, 2020 became effective on January 15, 2021.<\/p>\n Then came a change in administration and an about-face on the \u201chabitat definition rule.\u201d\u00a0 On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration\u2019s policy considerations.<\/p>\n Following that review, the agencies (FWS and NMFS) decided to rescind their own \u201chabitat definition rule.\u201d \u00a087 FR 37757.\u00a0 They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA.\u00a0 Id.<\/em>\u00a0 The agencies\u2019 main criticism of their own previous rule is that it prevented the designation of areas that did not currently<\/em> <\/strong>meet a species\u2019 needs, even if the area could<\/em><\/strong> in the future do so due to natural processes or reasonable restoration. \u00a0Id.<\/em> at 37758. \u00a0Rather than replace it with a different definition of \u201chabitat,\u201d however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis.\u00a0 Id.<\/em> at 37759.<\/p>\n The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser <\/em>case that set off this regulatory whiplash:\u00a0 \u201c[W]e recognize the importance of the Supreme Court\u2019s ruling in Weyerhaeuser<\/em> and intend to designate as critical habitat only areas that are habitat for the given listed species.\u201d \u00a0Id.<\/em>\u00a0 In other words, while the agencies now claim that it is impossible for them to define \u201chabitat,\u201d they apparently know it when they see it.<\/p>\n Seem clear as mud?\u00a0 We would not be surprised if there is future litigation regarding what constitutes \u201chabitat,\u201d now that the Supreme Court has made it clear that falling within the statutory definition of \u201ccritical habitat\u201d is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”<\/p>\n","protected":false},"excerpt":{"rendered":" Shortly after the new regulatory definition of \u201chabitat\u201d 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 \u201cthe most comprehensive legislation for the preservation of endangered species ever enacted by any nation.\u201d\u00a0 … <\/p>\n