On June 24, the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (together, the Services) issued a final rule that removes the definition of “habitat” from the Code of Federal Regulations, 50 C.F.R. § 424.02. The final rule follows the FWS’ proposal issued on October 27, 2021; the definition the agencies are now removing was adopted during the last months of the Trump administration.
The agencies discussed and responded to submitted comments and provide the same explanation for the rescission as provided in the FWS’ proposal — that codifying a single definition via a regulation could impede the agencies’ ability to fulfill their obligations to designate critical habitat based on the best scientific data available. It would be more appropriate and consistent with the conservation purpose of the Endangered Species Act, the agencies explain, to determine what areas qualify as habitat for a given species on a case-by-case basis using the best scientific data available. The final rule provides that an area should not be precluded from qualifying as habitat because some reasonable restoration or alteration, whether through reasonable human intervention or natural processes, is necessary for it to support a species’ recovery. The agencies asserted that such assessments were precluded by the definition of habitat adopted by the Trump administration. The final rule emphasized the importance of administrative records for designations and committed to include explanations as to why any unoccupied areas are habitat for the species in future designations. The final rule became effective on July 25.
On July 21, FWS issued a final rule that rescinds the December 2020 Critical Habitat Exclusion Rule, which provided that every proposal for designating critical habitat be accompanied by a draft economic analysis in which FWS would identify areas that may be excluded from the designation. The rule provided a non-exhaustive list of impacts that can be considered economic, including the economy of a particular area, productivity, jobs, opportunity costs arising from critical habitat designation, or possible benefits and transfers, such as outdoor recreation and ecosystem services. The rule also provided a list of “other relevant impacts” that FWS could consider when designating critical habitat, including impacts to national security, tribes, states, local governments, public health and safety, community interests, and federal plans, agreements, or partnerships. In October 2021, the Biden administration proposed to rescind the 2020 rule because it unduly constrains FWS’ discretion in administering the Endangered Species Act (ESA) and could potentially limit or undermine FWS’ role as an expert agency.
In the final rule, FWS responded to comments filed on the proposed rule and provided the same explanation for the recission as provided in the proposed rule — that it unduly constrains FWS’ discretion in administering the ESA, potentially limiting or undermining its role as the expert agency and its ability to further the conservation of endangered and threatened species through designation of their critical habitat. It also explained that the 2020 rule gave parties other than FWS — including proponents of particular exclusions — an outsized role in determining whether and how FWS will conduct an exclusion analysis, and it limited the flexibility of FWS to consider case-specific information to support an exclusion analysis. Finally, FWS explained that the 2020 rule’s requirement to assign weight to nonbiological impacts constrains the secretary’s discretion to use their expert judgment in an exclusion analysis.
The final rule will be effective on August 22.