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ESA habitat definition rescinded


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This news and analysis are provided by the Ornithological Council, a consortium supported by ornithological societies. Join or renew your membership in your ornithological society if you value the services these societies provide to you, including OrnithologyExchange and the Ornithological Council.

The Biden administration has rescinded a rule finalized during the previous administration, which stated that, “for the purposes of designating critical habitat [under the Endangered Species Act] 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.” That rule was the first definition of habitat under either the Endangered Species Act or its implementing regulations.

The ESA does define “critical habitat,” as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed ..., upon a determination by the Secretary that such areas are essential for the conservation of the species.” Previously, USFWS applied the criteria from the definition of ‘‘critical habitat’’ and assumed that any area satisfying that definition was habitat. However, a 2019 Supreme Court decision held that an area must first be considered ‘‘habitat’’ in order for it to then meet the definition of ‘‘critical habitat’’ as defined by the Act. That ruling prompted the rule issued by the Trump administration, which went into effect on January 15, 2021.

The rescission of that rule, announced on June 23, will go into effect on July 25, 2022. Read more about that recision in the press release from USFWS below or in the Federal Register announcement here.

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Press release from USFWS

U.S. Fish and Wildlife Service and NOAA Fisheries Rescind Regulatory Definition of “Habitat” Under the Endangered Species Act

Jun 23, 2022

Media Contacts: Marilyn Kitchell, Lauren Gaches

To better fulfill the conservation purposes of the Endangered Species Act (ESA), the U.S Fish and Wildlife Service and the National Marine Fisheries Service (together the “Services”) will rescind a final rule, published in December 2020, which established a regulatory definition of “habitat” specific to designation of critical habitat under the ESA.  

The decision follows Executive Order 13990, which directed all federal agencies to review and address agency actions to ensure consistency with Biden-Harris administration objectives. The Services conclude that codifying a single definition of “habitat” could impede the Services’ ability to fulfill their obligations to designate critical habitat based upon the best available science. Eliminating the rule will provide clarity and transparency for the public in better understanding what constitutes habitat for given species. 

“The growing extinction crisis highlights the importance of the Endangered Species Act and efforts to conserve species before declines become irreversible,” said Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz. “Today’s action will bring implementation of the Act back into alignment with its original purpose and intent and ensures that species recovery is guided by transparent science-based policies and conservation actions that preserve America’s biological heritage for future generations.” 

“Today’s action strengthens our ability to implement the Endangered Species Act consistent with its purposes of conserving and recovering threatened and endangered marine species,” said Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator Rick Spinrad, Ph.D.  “We will continue to use the best available science to inform critical habitat designations and fulfill our foundational mandates that are at the core of NOAA’s mission.”

Critical habitat designations identify those areas and habitat features that are essential for recovery of listed species.  Federal agencies must ensure that actions funded, permitted or conducted by those agencies do not destroy or adversely modify designated critical habitats. Critical habitat requirements do not apply to actions on private lands unless those actions involve the authorization or funding of a Federal agency. The ESA recognizes that areas that are either occupied or unoccupied by the species may be needed for recovery and authorizes their designation as critical habitat.

Today’s final rule will improve and strengthen implementation of the ESA by rescinding a definition of “habitat” that was unclear, confusing, and inconsistent with the conservation purposes of the ESA. The “habitat” definition rule prevented the Services from designating areas that did not currently meet a species' needs, even if the area could in the future due to natural processes or reasonable restoration.  Because most species face extinction because of habitat degradation and loss, it is more consistent with the purposes of the ESA to enable the Services to designate critical habitat in a manner that protects listed species’ habitats and supports their recovery. The action followed a transparent rulemaking process, including a public comment period and consideration of all comments received. 

The ESA is extraordinarily effective at preventing species from going extinct and has inspired action to conserve at-risk species and their habitat before they need to be listed as threatened or endangered. Since it was signed into law in 1973, more than 99 percent of all species listed under the law are still with us today. 

The ESA not only inspires diverse partnerships to prevent species extinctions and recover listed species, it also supports proactive collaborations with states, private landowners, conservation groups and industry to conserve species before they require federal protections.

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