On October 27, 2021, the US Fish & Wildlife Service and the National Marine Fisheries Service (the Services) announced their intention to rescind the rule defining “habitat,” which had become effective earlier this year.

If rescinded, the federal government will again be issuing rules and taking enforcement actions aimed at protecting habitat under the Endangered Species Act (ESA), despite no definition of “habitat” in the ESA or its implementing rules.

US Supreme Court and the Dusky Gopher Frog
In a 2018 decision regarding critical habitat of the dusky gopher frog, the US Supreme Court held the Services could not designate an area as “critical habitat” without first determining if the area met the definition of “habitat.”  The Court noted that in the approximately 45 years since its passage, neither the ESA nor its rules defined “habitat.”

Return to the Era of No Definition
In response to that decision, the Services (during the Trump administration) issued a rule defining “habitat.”  The Services now (during the Biden administration) propose to rescind that rule.

In the Federal Register notice announcing the proposal, the Services acknowledged the Court’s 2018 decision.  However, the Services now deny that the Court required the Services to define “habitat.”  Rather, the Services claim they can “adequately address, on a case-by-case basis and on the basis of the best scientific data available, any concerns that may arise in future designations as to whether unoccupied areas are habitat for a particular species.”

The proposal is subject to public comment until November 26, 2021.  For information on how to comment and a link to the announcement in the Federal Register https://www.fisheries.noaa.gov/action/proposed-rule-rescind-regulatory-definition-habitat