NOAA Fisheries, FWS To Change “Habitat” Definition

NOAA Fisheries and the U.S. Fish and Wildlife Service are proposing to rescind the joint regulatory definition of “habitat” finalized in December 2020. The U.S. FWS is also proposing to rescind their regulations governing critical habitat exclusions under section 4(b)(2) of the ESA, also finalized in December 2020.

The proposed actions follow Executive Order 13990, which directed all federal agencies to review and address agency actions to ensure consistency with Biden administration objectives.

“NOAA Fisheries is committed to conserving and recovering threatened and endangered species as part of our foundational mandates under the Endangered Species Act,” said Assistant Administrator for NOAA Fisheries Janet Coit. “If finalized, today’s proposed action of rescinding the regulatory definition of habitat will improve our ability to use the tool of critical habitat designation appropriately and effectively to conserve listed species as envisioned in the statute.”

“The Endangered Species Act is one of the most important conservation tools in America and provides a safety net for species that are at risk of going extinct,” said Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz. “If finalized, today’s proposed actions will bring the implementation of the Act back into alignment with its original intent and purpose—protecting and recovering America’s biological heritage for future generations. In this effort, we look forward to continuing to work closely with our federal, Tribal, state and industry partners on behalf of our shared interests.”

The Services are proposing to rescind the joint regulatory definition of the term habitat under the ESA. The agencies have re-evaluated this rule and concluded that decisions regarding whether a certain area qualifies as habitat for a species should instead be made on a case-by-case basis using the best available science. The 2020 rule could also have unintended consequences for the designation of critical habitat under the ESA because it excludes from consideration degraded areas that do not currently support species. However, the ESA is clear that such areas, some of which may be essential for the conservation of a species, could be considered “habitat.”

In December 2020, FWS also issued a final rule that revised the process for considering critical habitat exclusions under the ESA. FWS has re-evaluated this rule and concludes that the conservation purposes of the ESA are better met by resuming its previous approach to exclusions. That previous approach, which is currently used by NOAA Fisheries, is outlined in regulations and a 2016 policy on 4(b)(2) exclusions.

Both of these proposed rescissions will undergo a rigorous and transparent rulemaking processes before being finalized, including:

• Publication in the Federal Register
• A 30-day public comment period
• Coordination with federally recognized Tribes

The public comment period will close on November 26, 2021.