U.S. Endangered Species Act “Habitat” Definition Rescinded

In brief

The U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS) have rescinded a previous Trump-administration regulation defining “habitat”, an Endangered Species Act term, and will instead determine what areas qualify as habitat for a given species on a case-by-case basis using the best scientific data available for the particular species.  

In detail

In 2020 USFWS and NMFS, intending to provide clarity and consistency for stakeholders, created a singular regulatory definition of “habitat”. The resulting definition, however, caused confusion and effectively kept “critical habitat” designations from including land or waters not currently occupied by a protected species.

Citing these and other problems, the agencies have rescinded and are not replacing the definition of “habitat.” Instead, the agencies will determine what areas qualify as habitat (and that may as a separate matter be potentially “critical habitat”) by considering the best available science for the particular species, the statutory definition of “critical habitat,” implementing regulations, and existing case law.

The agencies intend to designate as “critical habitat” only areas that are habitat for the given listed species, and will ensure that the administrative records for particular designations include an explanation for why any unoccupied areas are habitat for the species.

The agencies’ decision can be viewed here.