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.