Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 37757 

that the Commission’s rejection of the 

2015 NPRM warrants reconsideration. 

For the reasons stated above, the 

Commission denies the Petitions filed 

by Sennheiser and Shure requesting 

reconsideration and reversal of the 

Termination Order and declines to 

adopt rules proposed in the 2015 NPRM 

to preserve a vacant channel for use 

wireless microphones use. 

Accordingly, it is ordered that, 

pursuant to sections 1, 4(i), 4(j), 303(r), 

and 405 of the Communications Act of 

1934, as amended, 47 U.S.C. 151, 154(i), 

154(j), 303(r), 405 and § 1.429 of the 

Commission’s rules, 47 CFR 1.429, the 

captioned Petitions for Reconsideration 

are denied, for the reasons discussed 

herein. 

It is further ordered that, should no 

petitions for reconsideration or petitions 

for judicial review be timely filed, MB 

Docket No. 15–146 shall be terminated 

and the docket closed. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2022–13249 Filed 6–23–22; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Docket No. FWS–HQ–ES–2020–0047, 

FF09E23000 FXES1111090FEDR 223; 

Docket No. 220613–0133] 

RIN 1018–BE69; 0648–BJ44 

Endangered and Threatened Wildlife 

and Plants; Regulations for Listing 

Endangered and Threatened Species 

and Designating Critical Habitat 

AGENCY: U.S. Fish and Wildlife Service, 

Interior; National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(hereafter collectively referred to as the 

‘‘Services’’ or ‘‘we’’), rescind the final 

rule titled ‘‘Regulations for Listing 

Endangered and Threatened Species 

and Designating Critical Habitat’’ that 

was published on December 16, 2020, 

and became effective on January 15, 

2021. This rescission removes the 

regulatory definition of ‘‘habitat’’ 

established by that rule. 

DATES: This final rule is effective July 

25, 2022. 

ADDRESSES: Public comments and 

materials received, as well as supporting 

documentation used in the preparation 

of this final regulation, are available 

online at https://www.regulations.gov in 

Docket No. FWS–HQ–ES–2020–0047. 

FOR FURTHER INFORMATION CONTACT: 

Angela Somma, National Marine 

Fisheries Service, Office of Protected 

Resources, 1315 East-West Highway, 

Silver Spring, MD 20910, telephone 

301–427–8403; or Bridget Fahey, U.S. 

Fish and Wildlife Service, Division of 

Conservation and Classification, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803, telephone 703–358–2171. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Background 

On January 20, 2021, the President 

issued Executive Order (E.O.) 13990, 

which, in section 2, required all 

executive departments and agencies to 

review Federal regulations and actions 

taken between January 20, 2017, and 

January 20, 2021. In support of E.O. 

13990, a ‘‘Fact Sheet’’ was issued that 

set forth a non-exhaustive list of specific 

agency actions that agencies are 

required to review to determine 

consistency with the policy 

considerations articulated in section 1 

of the E.O. (See www.whitehouse.gov/ 

briefing-room/statements-releases/2021/ 

01/20/fact-sheet-list-of-agency-actionsfor-review/). Among the agency actions 

listed on the Fact Sheet was our 

December 16, 2020, final rule 

promulgating a regulatory definition for 

the term ‘‘habitat’’ (85 FR 81411) under 

the Endangered Species Act of 1973, as 

amended, 16 U.S.C. 1531 et seq. 

(hereafter, ‘‘the Act’’). Following our 

review of this rule (the ‘‘habitat 

definition rule’’), we determined it was 

unclear and confusing and inconsistent 

with the conservation purposes of the 

Act, and we subsequently published a 

proposed rule to rescind it (86 FR 

59353, October 27, 2021). We solicited 

public comments on the proposed rule 

through November 26, 2021. In response 

to several requests, we extended the 

deadline for submission of public 

comments to December 13, 2021 (86 FR 

67013, November 24, 2021). 

The December 2020 final rule defined 

‘‘habitat’’ as follows: For the purposes of 

designating critical habitat 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. The definition itself indicates 

that it applies only in the context of 

designating ‘‘critical habitat,’’ which is 

defined in section 3(5)(A) of the Act as 

specific areas within the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 4 of this Act, on 

which are found those physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protections; and as 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 4 of this Act, upon 

a determination by the Secretary that 

such areas are essential for the 

conservation of the species. 

The two types of critical habitat 

described in this statutory definition are 

often referred to as ‘‘occupied’’ and 

‘‘unoccupied’’ critical habitat, 

respectively, and for simplicity, we use 

those shorthand terms within this 

document. The Secretaries (of 

Commerce and the Interior) designate 

critical habitat for threatened and 

endangered species on the basis of the 

best scientific data available and after 

taking into consideration various 

impacts of the designation (16 U.S.C. 

1533(b)(2)). Once critical habitat is 

designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

actions they authorize, fund, or carry 

out are not likely to destroy or adversely 

modify that habitat (16 U.S.C. 

1536(a)(2)). Critical habitat requirements 

do not apply to actions on private land 

that do not involve the authorization or 

funding of a Federal agency. 

On January 14, 2021, one day before 

the rule took effect, seven 

environmental groups challenged it, 

filing suit against the Services in 

Federal district court in Hawaii. Shortly 

thereafter on January 19, 2021, 19 States 

similarly filed suit challenging the 

habitat definition rule in the Northern 

District of California. Parties in both 

cases have agreed to long-term 

stipulated stays in the litigation as this 

rulemaking proceeds. 

Following consideration of all public 

comments received in response to our 

proposed rule to rescind the habitat 

definition, and for reasons outlined both 


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in our proposed rule (86 FR 59353, 

October 27, 2021) and this document, 

we have decided to rescind the 

regulatory definition of ‘‘habitat.’’ We 

acknowledge that, in coming to this 

final decision to rescind the regulatory 

definition of ‘‘habitat,’’ we are changing 

our position on some aspects of the 

rationale underpinning the definition’s 

adoption; accordingly, we have 

provided explanations for why 

rescission of the definition is 

appropriate. 

Rationale for Rescission of the Habitat 

Definition Rule 

As indicated in our initial proposed 

rule to define the term ‘‘habitat,’’ the 

impetus for developing the regulatory 

definition was the decision by the U.S. 

Supreme Court in Weyerhaeuser Co. v. 

U.S.F.W.S., 139 S. Ct. 361, 372 (2018) 

(hereafter, ‘‘Weyerhaeuser’’) (85 FR 

47333, August 5, 2020). The relevant 

holding in that case that prompted our 

rulemaking was: ‘‘An area is eligible for 

designation as critical habitat under 

§ 1533(a)(3)(A)(i) only if it is habitat for 

the species.’’ The Court’s decision in 

Weyerhaeuser did not address what 

should or should not qualify as habitat, 

nor did it require the Services to adopt 

a regulatory definition of ‘‘habitat.’’ 

Rather, the Court remanded the case to 

the lower court to consider whether the 

particular record supported a finding 

that the area disputed in the litigation 

was habitat for the particular species at 

issue (the dusky gopher frog). This 

dispute, however, was never resolved by 

any court. The Services subsequently 

adopted a regulatory definition of 

‘‘habitat,’’ stating our intent was to 

provide transparency, clarity, and 

consistency for stakeholders (85 FR 

81411, December 16, 2020). We have 

reconsidered the habitat definition rule 

and considered public comments, and 

we now conclude that codifying a single 

definition in regulation could impede 

the Services’ ability to fulfill their 

obligations to designate critical habitat 

based on the best scientific data 

available. For reasons further outlined 

below, we find that it is instead more 

appropriate, more consistent with the 

purposes of the Act, and more 

transparent to the public to 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. 

First and most problematically, the 

definition and statements made in the 

December 2020 final rule are in tension 

with the conservation purposes of the 

Act because they could inappropriately 

constrain the Services’ ability to 

designate areas that meet the definition 

of ‘‘critical habitat’’ under the Act. As 

indicated by the plain text of the Act 

and as supported by extensive case law, 

critical habitat is defined to include 

areas that are essential to the recovery 

of listed species; critical habitat is not 

limited to areas that merely support the 

survival of the species (Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Serv., 378 F.3d 1059, 1070 (9th Cir. 

2004); Sierra Club v. U.S. Fish and 

Wildlife Serv., 245 F.3d 434, 442 (5th 

Cir. 2001); Center for Biological 

Diversity v. Kelly, 93 F. Supp. 3d 1193, 

1201 (D. Idaho 2015)). In order to fulfill 

the intended objective of critical habitat, 

the Services should be able to designate 

unoccupied areas as critical habitat if 

those areas fit within any reasonable 

biological understanding of ‘‘habitat’’ as 

established by the best available 

scientific data for a particular species, 

and if such areas are essential for the 

recovery of the species. However, the 

‘‘habitat’’ definition rule did not afford 

the Services this ability in all cases. The 

preamble to the final rule stated that the 

‘‘habitat’’ definition excludes areas that 

do not currently or periodically contain 

the requisite resources and conditions, 

even if such areas could meet this 

requirement in the future ‘‘after 

restoration activities or other changes 

occur’’ (85 FR 81411, p. 81413, 

December 16, 2020). Thus, the ‘‘habitat’’ 

definition rule eliminated from possible 

designation as critical habitat any area 

that does not ‘‘currently or periodically’’ 

contain something deemed a necessary 

‘‘resource or condition’’ even though it 

would do so as a result of natural 

transition following a disturbance (e.g. 

fire or flood), in response to climate 

change, or after reasonable restoration. 

Because most species are faced with 

extinction as a result of habitat 

degradation and loss, it is more 

consistent with the purposes of the Act 

to avoid limiting the Services’ ability to 

designate critical habitat to protect the 

habitats of listed species and support 

their recovery. 

While we acknowledge that we can 

revise critical habitat designations after 

resources and conditions change (e.g., 

the area is restored or naturally 

improves), Congress required the 

Services to identify unoccupied areas 

that are ‘‘essential for the conservation’’ 

of the species based on the best 

available scientific data when 

designating critical habitat (16 U.S.C. 

1533(b)(2)). Identifying those areas by 

applying the best available science for 

the given species and its habitat, rather 

than delaying until an arbitrary point in 

time when conditions that are not 

required under the Act’s definition are 

realized, better fulfills the conservation 

purposes of the Act, and ensures that 

important areas of habitat are protected 

from destruction or adverse 

modification. In other words, we find 

that a better reading of the Act, 

consistent with the statutory mandate to 

apply the best available science, is 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. Rather, we find that relying on 

the best available scientific data, 

including species-specific ecological 

information, is the best way to 

determine whether areas constitute 

habitat and may meet the definition of 

‘‘critical habitat’’ for a species. We note 

that this key concern with the ‘‘habitat’’ 

definition regarding its excessive 

constraint on the Services’ ability to 

designate critical habitat under the Act 

cannot be remedied by issuing guidance 

on how to interpret the regulatory 

definition. Because a regulation is 

binding, we cannot remedy a 

problematic regulation through issuance 

of guidance. Further, interpretive 

guidance could not cure the statutory 

tension we have identified between the 

‘‘habitat’’ definition and the 

conservation purposes and mandates of 

the Act. 

Secondly, the habitat definition rule 

is not clear and thus does not achieve 

the ambitious goals of providing 

transparency and reproducibility of 

outcome. Application of the habitat 

definition fundamentally relies on 

subjective interpretations with respect 

to which areas would or would not 

qualify as habitat and, therefore, would 

or would not be eligible for designation 

as critical habitat under the Act. This 

conundrum would not be resolved by 

simply revising the current definition or 

resorting to another available definition. 

As we stated in the proposed rule to 

rescind the definition, prior to adopting 

the definition, we reviewed and 

considered many definitions, both from 

the ecological literature (e.g., Odum 

1971, Kearney 2006) and from 

numerous public comments. The 

resulting definition was one that neither 

stemmed from the scientific literature 

nor had a clear relationship to the 

statutory definition of ‘‘critical habitat.’’ 

Instead, in order to codify a sufficiently 

generalized definition that would cover 

a wide array of species’ habitat 

requirements and simultaneously satisfy 

the underlying need to encompass 

unoccupied critical habitat as defined 

under the Act, the definition relied on 


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overly vague terminology. Its terms were 

neither clear nor sufficiently 

informative to allow for any conclusions 

to be reached about whether a particular 

area would be considered habitat for a 

particular species. This outcome would 

also inescapably be the case for any 

regulatory definition of the term 

‘‘habitat,’’ which would need to be 

rather generic in order to encompass the 

wide range of species the Services must 

manage. Such a definition would have 

little to no practical value within the 

context of designating critical habitat, 

which is a specific subset of a species’ 

habitat. 

Although unintended at the time the 

definition was finalized, we used 

terminology that is unclear, has no 

established meaning in the statute or 

our prior regulations or practices (e.g., 

‘‘abiotic and biotic setting’’ and 

‘‘resources and conditions necessary to 

support’’), and unavoidably competes 

with elements of the statutory definition 

of critical habitat (e.g., ‘‘physical or 

biological features essential to the 

conservation’’). It is unclear, for 

example, how ‘‘resources and 

conditions’’ would be distinguished 

from the ‘‘physical and biological 

features’’ referenced in the statutory 

definition of ‘‘critical habitat.’’ Unlike 

terminology within the statutory 

definition of ‘‘critical habitat’’ (e.g., 

‘‘geographical area occupied by the 

species’’ and ‘‘physical and biological 

features essential to the conservation of 

the species’’) for which interpretations 

have been established through extensive 

practical application and implementing 

regulations (see 50 CFR 424.02), 

terminology in the ‘‘habitat’’ definition 

has no clearly established meanings or 

interpretations. 

Because the terms have no clearly 

established meanings in either the 

scientific or legal contexts, they would 

be subject to various interpretations that 

could not be resolved simply by 

referring to the explanations that were 

included in the preamble of the final 

rule for the definition. For instance, it 

remains unclear how an area would be 

judged as containing or not containing 

all of the ‘‘resources and conditions’’ 

that are ‘‘necessary to support’’ a life 

process of the species, and how 

application of that terminology would 

be affected by how much is known 

about a given species. Knowing that a 

species occurs in a particular type of 

habitat does not necessarily equate to 

there being a scientific understanding of 

what resources and conditions in that 

area support a particular life process of 

that species. Given these ambiguities, 

we conclude that, despite our efforts to 

promulgate a definition that was both 

sufficiently broad and clear, the 

resulting definition is inadequate to 

achieve clarity or any practical value in 

assisting the Services or the public in 

better understanding what specific areas 

constitute habitat for a given species. 

This lack of clarity is also reflected in 

the public comments received that 

raised similar concerns, or suggested 

revisions or alternative definitions, as 

well as those that expressed opposing 

assertions that the definition was either 

too vague or too narrow. Furthermore, 

as stated above, interpretive guidance to 

address the lack of clarity would not 

remedy our primary concern with the 

‘‘habitat’’ definition as outlined earlier 

(i.e., that it inappropriately constrains 

the Services’ ability to designate critical 

habitat under the Act), 

In addition, the lack of clarity and 

potential for confusion extend to how 

the Services would use, or be required 

to use, the ‘‘habitat’’ definition. As we 

indicated when we adopted the 

‘‘habitat’’ definition, by adding this 

definition to the Code of Federal 

Regulations, we did not intend to create 

an additional step in the process of 

designating critical habitat for all 

species (85 FR 81411, December 16, 

2020). Rather, our intent was that this 

definition would act as a regulatory 

standard that primarily would be 

relevant in a limited set of cases where 

questions arose as to whether any of the 

unoccupied areas that we are 

considering designating as critical 

habitat qualify as habitat (85 FR 81411, 

p. 81414, December 16, 2020). (Such 

questions do not arise for the large 

majority of critical habitat designations, 

because most designations involve only 

‘‘occupied’’ critical habitats, which are 

inherently ‘‘habitat’’ for that species.) 

However, based on comments 

received in response to the proposal to 

rescind the habitat rule, it appears that 

this intention was either misinterpreted 

or considered incorrect. Some 

commenters appear to expect that, with 

the habitat rule in place, the Services 

would need to apply and document 

consideration of the regulatory 

definition in all instances when 

undertaking critical habitat 

designations, whether the areas were 

occupied by the listed species or not. 

Thus, and as we stated in our proposed 

rule to rescind the definition, we find 

that the approach of codifying a 

regulatory definition of ‘‘habitat’’ that 

was not intended to have a practical 

effect in the majority of designations in 

the course of designating critical habitat 

is inherently confusing (86 FR 59353, 

October 27, 2021). Rescinding the rule 

will eliminate this confusion and 

prevent the potential evolution of an 

additional, unnecessary procedural step 

that would likely only impede and 

complicate the Services’ ability to fulfill 

their responsibilities under the Act to 

designate critical habitat. 

Having reconsidered the definition as 

prompted by E.O. 13990 and in light of 

the considerations discussed herein, we 

conclude that the definition is 

unhelpful, unnecessary, and improperly 

and excessively constrains the Services’ 

authority under the statute, and it is 

more appropriate to evaluate and 

determine what areas qualify as habitat 

(and that may as a separate matter be 

potentially also critical habitat) by 

considering the best available science 

for the particular species, the statutory 

definition of ‘‘critical habitat,’’ our 

implementing regulations, and existing 

case law. Therefore, we are removing 

and not replacing the definition of 

‘‘habitat’’ from 50 CFR 424.02. 

Nevertheless, we recognize the 

importance of the Supreme Court’s 

ruling in Weyerhaeuser and intend to 

designate as critical habitat only areas 

that are habitat for the given listed 

species. We will ensure that the 

administrative records for particular 

designations include an explanation for 

why any unoccupied areas are habitat 

for the species. 

Public Comments 

By the close of the public comment 

period on December 13, 2021, we 

received just under 13,000 public 

comments on our proposed rule to 

rescind the regulatory definition of 

‘‘habitat.’’ Comments were received 

from a range of sources including 

individual members of the public, 

States, Tribes, industry organizations, 

legal foundations and firms, and 

environmental organizations. The vast 

majority of the comments received 

(∼12,400) were nearly identical 

statements from individuals indicating 

their general support for rescission of 

the rule but not containing substantive 

content. During the public comment 

period, we received a request for public 

hearings. However, public hearings are 

not required for regulations of this type 

and we elected not to hold public 

hearings. 

All public comments were reviewed 

and considered prior to developing this 

final rule. Summaries of substantive 

comments and our responses are 

provided below. Similar comments are 

combined where appropriate. We did 

not, however, consider or respond to 

comments that are not relevant to and 

are beyond the scope of this particular 

rulemaking. For example, we did not 

discuss and respond to comments 

regarding the FWS’ proposed rule to 


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rescind regulations regarding section 

4(b)(2) of the Act (see 86 FR 59346, 

October 27, 2021), previous versions of 

the Services’ regulations in 50 CFR part 

424, consistency of potential future land 

use actions by the FWS with State 

management plans, consultations 

between FWS and State management 

agencies, or general concerns regarding 

State versus Federal control as it relates 

to implementation of the Act (e.g., 

listing species and designating critical 

habitat). 

Comment 1: Numerous commenters 

stated they supported the proposal to 

rescind the habitat definition rule. 

Commenters stated the habitat 

definition rule should be rescinded 

because it is unnecessary, creates 

confusion, and could lead to absurd 

outcomes by excluding degraded 

habitats or habitats not yet occupied by 

the species from designation as critical 

habitat. Some commenters also stated 

that the habitat definition rule could 

hinder the Services from designating 

ephemeral habitats or areas where the 

precise resources and conditions are not 

well understood. Other commenters 

stated that the habitat definition rule 

violates the conservation purposes of 

the Act, was arbitrary and capricious 

under the Administrative Procedure 

Act, and its issuance violated the 

National Environmental Policy Act. 

Response: As discussed more fully 

above, we share many of these concerns; 

as a result, we are rescinding the habitat 

definition rule. 

Comment 2: Some commenters 

asserted that rescinding the habitat 

regulation will result in longer timelines 

and more litigation on critical habitat 

designations. Such delays would in turn 

lead to delays in Federal permitting and 

increased costs for infrastructure and 

other projects. 

Response: The Services disagree that 

rescinding the habitat regulation will 

increase litigation, extend timelines for 

designating critical habitat, delay 

Federal permitting, or increase costs for 

projects. The Services note there is 

already ongoing litigation on the 

existing regulation’s definition of 

‘‘habitat’’ and, because the definition is 

highly controversial, its application in 

any future critical habitat designations 

would likely generate additional 

litigation and potential delays. Basing 

critical habitat designations on the best 

available scientific data as determined 

on a case-by-case basis will likely result 

in less litigation than designating 

critical habitat by applying a regulatory 

definition that is in tension with the 

Act’s definition of ‘‘conservation’’ and 

inappropriately constrains the Services’ 

ability to designate critical habitat. 

Comment 3: Several commenters 

asserted that rescinding this regulation 

will affect the reliance interests of those 

who rely on this regulation now, and 

the rescission will be disruptive and 

result in added costs. One commenter, 

however, stated that rescission of the 

habitat rule would not impose any 

undue hardship because they were 

unaware of any reliance interests on the 

current definition and because previous 

interpretations of critical habitat were 

well understood. 

Response: This regulation became 

effective on January 15, 2021. On 

January 20, 2021, the President issued 

E.O. 13990 and an associated Fact Sheet 

with a non-exhaustive list of agency 

actions, directing the Services to review 

the habitat rule and other regulations. 

The Services publicly announced on 

June 4, 2021, that they would propose 

to rescind the habitat definition rule. In 

the proposal to rescind the rule, the 

Services did not identify any affected 

reliance interests (i.e., instances of a 

third party making a decision in 

reliance on application of the definition) 

because they were unaware that any 

existed, especially due to the rule’s 

limited practical applicability and the 

limited time it has been in effect. 

Although several commenters expressed 

the possibility that there may have been 

reliance on the definition of ‘‘habitat,’’ 

none provided any specific examples of 

actual reliance, nor did any articulate 

why such reliance would have been 

reasonable given the limited time that 

elapsed between the rule’s effective date 

and when it was identified for 

reconsideration. The regulatory 

definition has been in place for a 

relatively short time and has a potential 

bearing only on unoccupied areas. (As 

we explained in the final rule 

establishing the habitat definition, if an 

area is occupied by the species and 

meets the statutory definition for 

‘‘occupied’’ critical habitat (which 

includes, notably, a requirement that 

physical or biological features essential 

to the conservation of the species be 

present), then as a matter of logic and 

rational inference, the area must also be 

habitat for the species (85 FR 81411, 

December 16, 2020).) Most of the 

Services’ designations do not involve 

‘‘unoccupied’’ critical habitat. As a 

result, the regulatory habitat definition 

has been relevant to only a small 

number of designations and was not 

determinative in the areas identified as 

critical habitat in those designations. 

Therefore, we have no basis to conclude 

that rescinding this definition and 

relying on the best available scientific 

data on a case-by-case basis will affect 

any reliance interests. 

Comment 4: Some commenters stated 

the lack of a definition for ‘‘habitat’’ will 

place an increased burden on Service 

employees who will have to make 

independent assessments about habitat 

for each critical habitat designation. 

These commenters stated that those 

drafting critical habitat designations 

will now be required to demonstrate not 

only that the proposed designation of 

critical habitat meets the statutory 

definition of critical habitat, but also 

that the rule ensures that independent 

meaning is given to the term ‘‘habitat,’’ 

and that such meaning is consistent 

with the Act. The commenters asserted 

that this consideration is a heavy and 

inappropriate burden to place on an 

employee. 

Response: Removing the regulatory 

definition of ‘‘habitat’’ will not place an 

increased burden on employees when 

designating critical habitat. The Services 

must make an independent assessment 

of areas occupied by the species as well 

as unoccupied areas that are essential 

for that species’ conservation when we 

designate critical habitat regardless of 

whether ‘‘habitat’’ is defined in 

regulation. In addition, as noted in the 

final rule promulgating the definition, 

areas are inherently considered habitat 

for the species if they are occupied by 

the species and also meet the 

definitional elements of ‘‘critical 

habitat’’ provided in the statute. 

Although the Services agree that all 

critical habitat must be habitat, in 

practice, the regulatory definition would 

be relevant only in determining whether 

unoccupied areas that are essential for 

the conservation of the species 

constitute habitat for the species. 

Comment 5: Several commenters 

expressed concerns about regulatory 

takings should the habitat definition 

rule be rescinded. These comments 

asserted that determinations that private 

lands are habitat, and more 

consequentially critical habitat, place 

onerous restrictions on those lands or 

result in the Services withholding 

permits to develop the land, and that 

rescinding the habitat definition rule 

would increase those uncompensated, 

unlawful regulatory takings 

exponentially. In particular, these 

commenters were concerned that 

rescinding the definition would allow 

the Services to designate critical habitat 

where the species could not currently 

survive and place the burden of 

restoring the area on the private 

landowner. Commenters stated that, 

consistent with case law addressing the 

Fifth Amendment’s Takings Clause (e.g., 

Nollan v. California Coastal 


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Commission, 483 U.S. 825 (1987); Dolan 

v. City of Tigard, 512 U.S. 374 (1994); 

and Koontz v. St. Johns River Water 

Management District, 570 U.S. 595 

(2013)), the Federal Government cannot 

impose conditions on land use permits 

that require the private landowner to 

mitigate adverse effects on the habitat 

where the necessary habitat features are 

lacking, and that retaining the habitat 

definition would help ensure avoidance 

of such Takings Clause violations. 

Response: The rescission of the 

regulatory definition of ‘‘habitat’’ will 

not allow for unlawful takings by the 

Services as described by the 

commenters. In making future critical 

habitat designations, the Services will 

adhere to the Supreme Court’s ruling in 

Weyerhaeuser that an area may be 

designated as critical habitat only if it is 

habitat for that species. The requirement 

to avoid the destruction or adverse 

modification of critical habitat applies 

to actions on private land only when 

they involve Federal authorization or 

Federal funding. Where an action does 

implicate authorization or funding by a 

Federal agency, any resulting section 7 

consultation under the Act on the 

designated critical habitat would then 

consider the effects of the particular 

proposed action (e.g., issuance of a landuse-related permit) to ensure the critical 

habitat is not likely to be destroyed or 

adversely modified by the action. Even 

a finding that the action was likely to 

destroy or adversely modify the critical 

habitat would not result in an unlawful 

taking, because that finding would not 

require the Federal action agency or the 

landowner to restore the critical habitat 

or recover the species, but rather to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

Rather than imposing an affirmative 

requirement that Federal actions 

improve critical habitat, section 7(a)(2) 

prohibits Federal actions from reducing 

the critical habitat’s existing capacity to 

conserve the species (Final Rule 

Establishing Definition of ‘‘Destruction 

or Adverse Modification’’ of Critical 

Habitat, 81 FR 7214, p. 7224, February 

11, 2016; extending to the adversemodification analysis the conclusion in 

Nat’l Wildlife Fed’n v. National Marine 

Fisheries Service, 524 F.3d 917, 930 (9th 

Cir. 2007), that agency action can only 

violate section 7(a)(2) of the Act ‘‘if that 

agency action causes some deterioration 

in the species’ pre-action condition’’). In 

other words, the requirement for Federal 

agencies to ensure their actions are not 

likely to result in destruction or adverse 

modification of critical habitat is a 

prohibitory standard only; it does not 

mandate affirmative restoration of 

habitat. 

Comment 6: Multiple commenters 

stated that rescinding the regulatory 

definition of ‘‘habitat’’ will undermine 

conservation, particularly in areas that 

currently lack the necessary resources 

and conditions to support the particular 

listed species. These commenters were 

concerned that rescission of the habitat 

definition will discourage habitat 

restoration or even create a perverse 

incentive for private landowners to 

make their land less hospitable for listed 

species in an effort to avoid the 

economic impacts due to the stigma 

effect associated with critical habitat 

designation. Commenters also stated 

that rescinding the habitat definition 

will increase the fears of private 

landowners that their land could be 

deemed habitat and designated as 

critical habitat, and as a result these 

landowners would be less likely to 

cooperate in conservation efforts or 

allow access for surveys and studies that 

could benefit recovery planning. 

Commenters noted that critical habitat 

is not a good tool for encouraging 

landowners to create habitat features 

and that non-regulatory approaches to 

habitat conservation would provide a 

greater benefit to listed species. 

Response: Commenters have provided 

no basis upon which the Services could 

conclude that the act of rescinding the 

regulatory definition of ‘‘habitat’’ will 

discourage conservation or create a new, 

‘‘perverse’’ incentive for landowners to 

modify their land in order to make it 

less hospitable for listed species. In the 

absence of the regulatory habitat 

definition, we will still be required to 

designate critical habitat based on the 

best scientific data available and after 

taking into consideration the economic, 

national security, and other relevant 

impacts of designating any particular 

area as critical habitat. Pursuant to the 

joint Policy Regarding Implementation 

of Section 4(b)(2) of the ESA (‘‘Section 

4(b)(2) Policy,’’ 81 FR 7226, February 

11, 2016), we will consider areas 

covered by conservation agreements or 

plans when assessing the benefits of 

including and excluding particular areas 

from a designation. In particular, the 

Services consider whether such 

conservation plans are already 

providing on-the-ground conservation 

that would reduce the benefit of 

designating the same area as critical 

habitat. Our approach of excluding from 

designations of critical habitat areas that 

are subject to voluntary conservation 

agreements and plans will continue to 

provide a substantial incentive to 

private landowners. Rescinding the 

habitat definition will in no way alter 

this process or how conservation plans 

and agreements affecting private lands 

are weighed when assessing the benefits 

of designating an area as critical habitat. 

To the extent that any ‘‘perverse 

incentives’’ may exist with regard to 

modifying habitat conditions on private 

lands, it has been the Services’ 

experience that these attitudes persist 

regardless of any specific regulation. 

Discussion in the final habitat definition 

rule implied that an area would qualify 

as habitat only if the area, without any 

restoration, currently has all of the 

requisite resources and conditions 

necessary to support the species (85 FR 

81411, p. 81413, December 16, 2020). 

Thus, the Services find that with the 

habitat rule in place, it is equally, and 

likely more, plausible that the actions 

suggested in the comments would occur 

to prevent the particular area from 

becoming suitable habitat for a 

particular listed species and thereby 

eligible for designation as critical 

habitat. We also note that some of the 

cases cited by the commenters 

demonstrate that deliberate 

modification of areas to make private 

property less hospitable to listed species 

has sometimes occurred previously in 

response to species’ listings under the 

Act—and not directly in response to, or 

in potential avoidance of, a critical 

habitat designation. Rescinding the 

regulatory definition of ‘‘habitat’’ has no 

effect on whether species are listed 

under the Act and therefore unlikely to 

have an effect on any such behaviors 

and attitudes. 

Lastly, we emphasize that, in 

undertaking critical habitat 

designations, the Services will proceed 

in light of the Supreme Court’s ruling in 

Weyerhaeuser that ‘‘[s]ection 

4(a)(3)(A)(i) does not authorize the 

Secretary to designate [an] area as 

critical habitat unless it is also habitat 

for the species’’ (139 S. Ct. at 368). 

Rescinding the regulatory definition of 

‘‘habitat’’ does not undermine this 

holding or the requirement that the 

Services adhere to it. 

Comment 7: A commenter asserted 

that continuing to rely on the concept of 

habitat as reflected in the regulatory 

definition would improve 

communication with scientists and 

nonscientists, thereby benefiting 

conservation efforts. The commenter 

suggested that rescinding the definition 

would allow for other interpretations of 

‘‘habitat’’ and that those other 

interpretations could allow for 

increased miscommunication, 

misinterpretation of scientific findings, 

limited comparability among studies, 

and inefficient use of conservation 

resources. 


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Response: The regulatory definition of 

‘‘habitat,’’ which only applied to the 

designation of critical habitat, had no 

bearing on the comparability of studies 

or communication of scientific findings, 

nor did it prohibit the use or 

development of other definitions of the 

term ‘‘habitat.’’ Rescinding this rule will 

therefore not alter or exacerbate those 

issues where they may exist. Rescinding 

this rule may also allow the Services to 

better prioritize their limited 

conservation resources by removing an 

inappropriate limitation on their ability 

to designate as critical habitat, and 

therefore bring attention to, areas that 

are essential for the conservation and 

recovery of threatened and endangered 

species. 

Comment 8: Several commenters said 

the rescission of the definition of 

‘‘habitat’’ will increase regulatory 

uncertainty for landowners, 

stakeholders, and the public and would 

undermine the transparency, clarity, 

and consistency the definition provides. 

Some commenters noted that their 

industries need clarity and consistency 

in the application of the Act to be able 

to forecast the costs and timing of 

projects and expressed concern that, 

without a definition, the Services will 

return to designating critical habitat in 

an arbitrary or inconsistent way. One 

commenter asserted that a definition of 

‘‘habitat’’ is necessary to inform the 

designation of critical habitat. Other 

commenters supported the rescission 

because doing so would eliminate 

confusion and uncertainty regarding 

critical habitat designations, as the 

definition is not consistent with the 

Services’ past practice. 

Response: Rescission of the definition 

of ‘‘habitat’’ will not increase regulatory 

uncertainty or undermine the 

transparency, clarity, and consistency of 

the critical habitat designation process. 

As discussed previously, the definition 

is in tension with the statutory 

definition of ‘‘critical habitat,’’ and is 

vague and confusing, such that 

interested landowners would not be 

able under the definition to confidently 

conclude whether any particular area 

would be considered ‘‘habitat.’’ 

Furthermore, applying the 2020 

definition would leave future critical 

habitat designations open to continual 

challenge because that definition is in 

tension with the statute and 

inappropriately constrains our ability to 

designate as ‘‘critical habitat’’—thus 

creating greater regulatory uncertainty. 

In addition, as discussed previously, the 

habitat definition rule is not clear and 

thus does not achieve the intended goals 

of providing transparency and 

reproducibility of outcome. Application 

of the habitat definition would 

fundamentally rely on subjective 

interpretations with respect to which 

areas would or would not qualify as 

habitat and, therefore, would or would 

not be eligible for designation as critical 

habitat under the Act. Given the 

complexity and variety of factual 

information pertaining to each 

individual species that the Services 

must consider, it is not possible for 

perfect predictability in determining 

what areas constitute habitat. We do not 

agree that implementing a case-by-case 

approach will result in inconsistent 

application of the statutory definition of 

critical habitat. Our critical habitat 

designations are governed by the 

requirements of the Act, our regulations, 

the best scientific data available, and 

applicable court decisions, which 

results in substantial consistency in 

approach and application. 

Comment 9: One commenter noted 

they agreed that the habitat needs for a 

specific species should be determined 

on a case-by-case basis but disagreed 

that a regulatory definition of ‘‘habitat’’ 

constrains the Services from making 

such determinations. They also said the 

Services should codify a straightforward 

and consistent process for defining the 

habitat needs for individual species. 

Response: As a result of our review of 

the habitat definition rule, we 

determined there are significant 

shortcomings with its definition of 

‘‘habitat,’’ as well as, more broadly, fatal 

flaws inherent in the approach of 

attempting to devise any single 

regulatory definition that would apply 

to all species. As we outlined in detail 

in the preceding ‘‘Rationale for 

Rescission of the Habitat Definition 

Rule’’ section of this document, we 

conclude that the definition is 

unhelpful, unnecessary, and improperly 

constrains the Services’ authority under 

the statute, and it is more appropriate to 

evaluate and determine what areas 

qualify as habitat and potentially also as 

critical habitat by considering the best 

available science for the particular 

species, the statutory definition of 

‘‘critical habitat,’’ our implementing 

regulations, and existing case law. In 

addition, any definition that would 

satisfy the underlying requirement that 

it encompass unoccupied critical habitat 

as defined under the Act, would need to 

be overly general and non-specific such 

that it would provide no added clarity, 

transparency, or regulatory certainty as 

to how particular areas would be 

understood in relation to particular 

species. Determinations of whether a 

particular area is habitat for a particular 

species must be tailored to 

consideration of the particular species’ 

needs and how they interact with their 

environments, issues which vary 

tremendously across species and are not 

subject to meaningful generalization. As 

a result of the series of issues we have 

identified, we have concluded it is 

appropriate to rescind and not replace 

the definition. With regard to codifying 

a process for defining the habitat needs 

of species, our regulations at 50 CFR 

424.12(b) specify a straightforward and 

consistent process by which we identify 

specific areas to be designated as critical 

habitat, including identification of those 

features of the habitat that are essential 

to the conservation of the species. 

Comment 10: Multiple commenters 

expressed concern that, without the 

‘‘habitat’’ definition, the Services will 

have carte blanche to decide what 

qualifies as habitat and is thus eligible 

for designation as critical habitat. 

Commenters also expressed concern 

that rescission of the ‘‘habitat’’ 

definition will lead to increased 

designation of unoccupied critical 

habitat. Some commenters asserted that 

the Services would return to previous 

practices that, in the commenters’ view, 

‘‘over-designated’’ areas and applied the 

Act’s definition of ‘‘critical habitat’’ 

under the premise that any area that 

meets that definition must also be 

habitat. 

Response: Rescinding the ‘‘habitat’’ 

definition does not grant the Services 

carte blanche to designate any area as 

critical habitat, nor does it alter our 

authorities for designating critical 

habitat. We will continue to adhere to 

the Supreme Court’s ruling in 

Weyerhaeuser that any area that is 

designated as critical habitat must also 

be habitat. All designations must 

conform to the requirements and 

standards of the Act, our regulations, 

and applicable case law, and are 

reviewable by courts if challenged. We 

will continue to comply with the Act, 

which states in section 3(5)(C) that, 

except in circumstances determined by 

the Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species. We 

will also continue to comply with the 

other applicable statutory and 

regulatory requirements that govern 

how the Services may designate 

occupied and unoccupied critical 

habitat, including the requirements of 

section 4(b)(2) of the Act to base 

designations on the best scientific data 

available and after taking into account 

the impacts of designating any 

particular area (16 U.S.C. 1533(b)(2)). 

Comment 11: Several commenters 

asserted that to be consistent with the 

Supreme Court’s decision in 


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Weyerhaeuser it is necessary to have a 

definition of ‘‘habitat’’ that establishes 

that an area cannot be considered 

habitat if the species cannot survive 

there. Commenters asserted that 

returning to ‘‘case-by-case’’ 

determinations disregards this 

requirement. 

Response: Rescinding this regulatory 

definition is not inconsistent with the 

Supreme Court’s decision in 

Weyerhaeuser. As we noted previously 

in both the 2020 final rule (85 FR 81411, 

December 16, 2020) as well as in the 

proposed rule to rescind the ‘‘habitat’’ 

definition rule (86 FR 59353, October 

27, 2021), the Court’s decision did not 

require that the Services adopt a 

regulatory definition for ‘‘habitat.’’ 

Rather, the Court remanded the case to 

the lower court to consider whether the 

particular record supported a finding 

that the unoccupied area disputed in the 

litigation was habitat for the particular 

species at issue (the dusky gopher frog). 

The Court did not address what 

conditions may be necessary for an area 

to be considered habitat, nor did it state 

that an area can be considered habitat 

only if the species can survive there. 

Although the Services initially, if 

somewhat reflexively, concluded that 

the best response to the Supreme Court 

decision was to craft a new layer of 

regulation, we now conclude that that 

extra layer of regulation was not in fact 

a helpful response. The Services have 

concluded that we 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 administrative 

record for each designation will 

carefully document how the designated 

areas are in fact habitat for the particular 

species at issue, using the best available 

scientific information and explaining 

the needs of that species. 

Comment 12: Multiple commenters 

stated their views that, to qualify as 

habitat, areas must be habitable or 

capable of sustaining the species in its 

present condition. Commenters asserted 

that this interpretation is consistent 

with the present tense language used by 

Congress to describe critical habitat in 

sections 3 and 4 of the Act and with the 

Supreme Court’s use of the present 

tense in its ruling in the Weyerhaeuser 

case. Commenters also asserted that 

areas in need of restoration in order to 

support the species or be occupied by 

the species cannot be considered habitat 

for that species, and some asserted that 

the Act, as supported by Weyerhaeuser, 

prohibits designation of areas that 

cannot presently support the species. 

The commenters stated that rescission 

of the habitat definition rule indicates 

an intention by the Services to consider 

such areas as habitat and an intention to 

designate them as critical habitat or 

return to the previous practice of 

designating critical habitat where 

habitat did not exist. 

Response: The Act defines two types 

of critical habitat—areas ‘‘within the 

geographical area occupied by the 

species’’ and areas ‘‘outside the 

geographical area occupied by the 

species (16 U.S.C. 1532(5)(A)). Areas 

that are ‘‘within the geographical area 

occupied’’ at the time the species is 

listed under the Act are assessed under 

the first prong of the statutory definition 

of critical habitat, provided in section 

3(5)(A)(i)—that is, the areas must be 

ones ‘‘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’’ (16 U.S.C. 1532(5)(A)(i)). 

Implicit within this text is that the 

appropriate timeframe for assessing 

whether physical or biological features 

‘‘are found’’ is, in fact, the time of 

designation. This approach is consistent 

with the Services’ longstanding 

interpretation and application of this 

statutory definition of ‘‘occupied’’ 

critical habitat and is also reflected in 

the Services’ joint implementing 

regulations in 50 CFR 424.12(b)(1)(iii). 

Areas that are ‘‘outside the 

geographical area occupied’’ by the 

species when it is listed under the Act 

are assessed under the prong of the 

statutory definition provided in section 

3(5)(A)(ii)—that is, only areas that ‘‘are 

essential for the conservation of the 

species’’ qualify for designation (16 

U.S.C. 1532(A)(ii)). Again, implicit 

within this text is the concept that the 

appropriate timeframe for assessing 

whether an area is essential for 

conservation is the time of designation. 

(We note, however, that the Act does 

not compel the Services to know 

specifically when a species will be 

‘‘conserved’’ as a result of the 

designation of unoccupied critical 

habitat.) This approach, too, is 

consistent with the Services’ 

longstanding interpretation and 

application of this statutory definition 

of ‘‘unoccupied’’ critical habitat. That a 

specific unoccupied area may remain 

inaccessible to the listed species, or may 

require some form of natural recovery or 

reasonable restoration in order to 

support the listed species over the long 

term, does not preclude a finding that 

the area is presently habitat or that the 

area is ‘‘essential for the conservation’’ 

of that species if the record of evidence 

regarding that species’ needs and the 

resources available to it, such as limited 

availability of other habitat, supports 

such a conclusion at the time of 

designation. 

As explained previously in our 

response to Comment 11, in contrast to 

assertions made in some of the 

comments, the Supreme Court in 

Weyerhaeuser did not reach any holding 

on the matter of whether an area must 

be capable of supporting the species in 

its present condition in order to qualify 

as habitat. Instead, it remanded the case 

to the Court of Appeals to consider 

whether the particular record supported 

a finding that the area disputed in the 

litigation was habitat for the particular 

species at issue (the dusky gopher frog). 

The Weyerhaeuser ruling also did not 

establish any prohibition on designating 

areas as critical habitat if those areas 

may require some reasonable restoration 

in order to become accessible, habitable, 

or capable of supporting the species. 

As indicated previously, we recognize 

the Supreme Court’s holding in 

Weyerhaeuser that any area that is 

designated as critical habitat must also 

be habitat. Rescinding the regulatory 

definition of ‘‘habitat’’ does not alter the 

need for the Services to undertake 

future critical habitat designations in 

light of that ruling. 

Comment 13: A commenter stated 

that, without a regulatory definition of 

‘‘habitat,’’ there would not be any 

meaningful standards for judicial review 

of the Services’ exercise of discretion in 

a particular critical habitat designation 

decision, undermining the Supreme 

Court’s holding in Weyerhaeuser that 

the Services’ decisions not to exclude 

areas from critical habitat designations 

are reviewable under the Administrative 

Procedure Act. 

Response: Although not stated 

explicitly or elaborated upon further in 

the comment, we interpret this 

comment to refer to the discretion the 

Secretary has under section 4(b)(2) of 

the Act to exclude particular areas from 

a designation provided the benefits of 

the exclusion outweigh the benefits of 

designation and provided that failure to 

designate the area will not result in the 

extinction of the species concerned (16 

U.S.C. 1533(b)(2)). In Weyerhaeuser, the 

Supreme Court determined the 

Secretary’s decision not to exclude an 

area from critical habitat under section 

4(b)(2) of the Act is subject to judicial 

review. Under section 4(b)(2) of the Act, 

the Secretary is required to take into 

consideration economic and other 

impacts before designating any 

particular areas as critical habitat. The 

Secretary may exclude any area from 

critical habitat if she determines the 


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benefits of such exclusion outweigh the 

benefits of designation. A regulatory 

definition of ‘‘habitat’’ is irrelevant to 

the process of weighing these benefits 

and would not facilitate judicial review 

of the exercise of the Services’ 

discretion in determining whether to 

exclude a particular area from 

designation under section 4(b)(2) of the 

Act. 

Comment 14: Several commenters 

noted that the Supreme Court did not 

limit its holding in Weyerhaeuser to 

unoccupied areas, and that the 

prerequisite for an area to be habitat 

before it is designated as critical habitat 

applies irrespective of whether the area 

is occupied or unoccupied. Thus, any 

area must be habitat for the species in 

order for it to be eligible for designation 

as critical habitat regardless of whether 

it is occupied or unoccupied. 

Response: We recognize that the 

Supreme Court’s holding in 

Weyerhaeuser that any area designated 

as critical habitat must also be habitat 

was not limited to areas that are 

unoccupied by the species. As we 

explained in our final rule defining 

‘‘habitat,’’ if an area is occupied by the 

species and meets the statutory 

definition of ‘‘critical habitat,’’ then as 

a matter of logic and rational inference, 

the area must also be habitat for the 

species (85 FR 81411, December 16, 

2020). Thus, the definition of ‘‘habitat’’ 

would have a practical bearing only in 

cases where an area was unoccupied, 

and even among unoccupied areas only 

in the subset of cases where ‘‘genuine 

questions’’ might exist as to whether 

areas are habitat for a species (85 FR 

81411, p. 81414, December 16, 2020). In 

all instances, however, the area must be 

habitat before it can be designated as 

critical habitat. Rescinding the 

regulatory definition does not affect that 

requirement. 

Comment 15: Several commenters 

noted that the Supreme Court also 

found in Weyerhaeuser that even if an 

area otherwise meets the statutory 

definition of unoccupied critical habitat 

because the Secretary finds the area 

essential for the conservation of the 

species, section 4(a)(3)(A)(i) of the Act 

does not authorize the Secretary to 

designate the area as critical habitat 

unless it is also habitat for the species. 

Response: As noted in prior 

responses, we acknowledge the 

Supreme Court’s holding in 

Weyerhaeuser that any area must be 

habitat in order to be designated as 

critical habitat—whether the area is 

occupied by the species or not. We do 

not intend to designate any unoccupied 

area as critical habitat unless it is 

habitat for the species, nor have we 

indicated any such intention. We 

recognize that a finding that an area is 

‘‘essential for the conservation of the 

species’’ is not a substitute for evidence 

that a particular area qualifies as habitat. 

Comment 16: Some commenters 

asserted that the Services have 

incorrectly interpreted critical habitat as 

habitat necessary for the recovery of the 

species. These commenters stated that 

the broad definition of ‘‘conservation’’ 

in the Act does not allow for a broad 

interpretation of ‘‘critical habitat’’ or 

justify any action the Services want to 

take. Instead, the commenters asserted, 

Congress intended for critical habitat to 

have a limited role under the Act, and 

designations of critical habitat should be 

limited to what is needed to ensure the 

survival of the species. 

Response: It is clear from the plain 

text of the Act that the purpose of 

critical habitat is to identify the areas 

that are essential to the recovery of 

listed species. The Act defines ‘‘critical 

habitat’’ in terms of its relationship to 

the species’ ‘‘conservation:’’ Stated 

generally, ‘‘critical habitat,’’ as defined 

in section 3, includes areas and habitat 

features that are essential for the 

conservation of the listed species (16 

U.S.C. 1532(5)(A), emphasis added). 

Section 3 of the Act in turn defines 

‘‘conservation’’ as: ‘‘To use and the use 

of all methods and procedures which 

are necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to this Act are no longer 

necessary; such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation’’ (16 U.S.C. 1532(3), 

defining ‘‘conserve,’’ ‘‘conserving,’’ and 

‘‘conservation’’). The point at which 

measures provided pursuant to the Act 

are no longer necessary is the point at 

which a listed species has been 

recovered and should be removed from 

the lists of threatened and endangered 

species (see also 50 CFR 424.02). 

Therefore, the plain text of the critical 

habitat definition in the Act indicates 

that critical habitat includes not just 

areas essential to support the continued 

survival of the species, but also areas 

that are essential to the recovery of 

threatened and endangered species. 

Courts have also interpreted the Act’s 

definition of ‘‘critical habitat’’ broadly 

to include areas that provide for the 

recovery of listed species. See Gifford 

Pinchot Task Force v. U.S. Fish and 

Wildlife Serv., 378 F.3d 1059, 1070 (9th 

Cir. 2004) (‘‘Clearly, then, the purpose 

of establishing ‘critical habitat’ is for the 

government to carve out territory that is 

not only necessary for the species’ 

survival but also essential for the 

species’ recovery.’’); Sierra Club v. U.S. 

Fish and Wildlife Serv., 245 F.3d 434, 

442 (5th Cir. 2001) (noting that the Act’s 

definition of ‘‘critical habitat’’ ‘‘is 

grounded in the concept of 

conservation’ ’’); Center for Biological 

Diversity v. Kelly, 93 F. Supp. 3d 1193, 

1201 (D. Idaho 2015) (noting that critical 

habitat is ‘‘defined and designated ‘in 

relation to areas necessary for the 

conservation of the species, not merely 

to ensure its survival’ ’’) (quoting 

Arizona Cattle Growers’ Ass’n v. 

Salazar, 606 F.3d 1160, 1166 (9th Cir. 

2010)). The Ninth Circuit also has 

recognized that ‘‘it is logical and 

inevitable that a species requires more 

critical habitat for recovery than is 

necessary for the species’ survival,’’ 

which necessarily must include 

potentially suitable habitat areas that 

the species formerly occupied or may 

potentially occupy in the future. Gifford 

Pinchot Task Force, 378 F.3d at 1069. 

The commenters have pointed to no 

legislative history specifically 

addressing the intended meaning or 

scope of ‘‘habitat,’’ as used in section 

4(a)(3)(A)(i) of the Act, that is distinct 

from the term ‘‘critical habitat.’’ 

Legislative history on the meaning of 

‘‘critical habitat’’ is not directly relevant 

here and does not help us discern any 

intended meaning of ‘‘habitat’’; 

therefore, we do not address that history 

here. 

We acknowledge, however, that 

critical habitat designation alone is not 

necessarily sufficient to ensure the 

recovery of listed species. Critical 

habitat has a specific, limited regulatory 

role under the Act: It creates a 

requirement for Federal agencies to 

ensure that any actions they authorize, 

fund, or carry out are not likely to 

destroy or adversely modify designated 

critical habitat. Beyond this direct 

regulatory role, critical habitat can also 

contribute to the conservation of listed 

species in other ways. Critical habitat 

can facilitate implementation of section 

7(a)(1) of the Act by identifying areas 

where Federal agencies can focus their 

conservation programs and use their 

authorities to further the conservation 

purposes of the Act. In the absence of 

a recovery plan, critical habitat can 

provide a form of early conservationplanning guidance for the Services (e.g., 

by identifying some of the areas that are 

needed for recovery, the physical and 

biological features needed for the 

species’ life history, and special 

management considerations or 

protections), and it can also help focus 


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the conservation efforts of other 

conservation partners. 

The Services do not rely on an 

assertion of an overly broad meaning for 

‘‘conservation’’ to justify actions that are 

not otherwise authorized under the Act. 

In fulfilling their responsibilities under 

the Act, the Services undertake 

conservation actions that align with the 

statute’s definition of ‘‘conservation’’ 

and also adhere to the many 

requirements outlined in the Act, 

implementing regulations in 50 CFR 

part 424, and formal policies. 

Comment 17: Several commenters 

stated that the regulatory definition of 

‘‘habitat’’ has not been in place long 

enough for the Services to determine its 

benefits, nor have the Services put 

sufficient effort into implementing the 

regulation. They argued that the 

Services could consider whether 

revisions to the definition may be 

necessary after a reasonable amount of 

time. 

Response: Following a review of the 

regulatory definition of ‘‘habitat,’’ the 

Services have found the definition and 

the preamble of that final rule 

inappropriately constrain the Services’ 

ability to designate areas that meet the 

definition of ‘‘critical habitat’’ under the 

Act and thus undermine the 

conservation purposes of the Act. In 

light of this shortcoming, as well as our 

finding that the definition cannot 

achieve its intended goals of providing 

transparency, clarity, and consistency, 

we have determined it is appropriate to 

rescind this definition. Because these 

shortcomings cannot be addressed by 

putting further effort into implementing 

the definition (including through 

issuing interpretive guidance), we have 

determined that it is in the best interests 

of stakeholders and for the conservation 

purposes of the Act to minimize the 

time that this definition is in effect by 

swiftly rescinding it. Interpretive 

guidance cannot overcome the statutory 

tension the Services have identified. 

Furthermore, waiting and then 

considering possible revisions to the 

definition is not likely to alter our 

current conclusion that any regulatory 

definition for this term would 

necessarily be too generic to provide 

any meaningful guidance to the Services 

or the public in terms of delineating 

what areas qualify as habitat for a given 

species. As we stated previously, the 

best approach for determining what 

areas are habitat for a listed species is 

to rely on the best available scientific 

data for that species, provide a thorough 

accounting of the information used, and 

subject that determination to peer and 

public comment during the course of a 

critical habitat rulemaking. 

Comment 18: Multiple commenters 

requested that the Services revise the 

definition of ‘‘habitat’’ rather than 

rescind it. Commenters stated that, if the 

Services consider the definition to be 

vague or unclear, they are required to 

consider alternatives to complete 

revocation, and the definition should be 

revised to address those problems, 

rather than rescinded. Many 

commenters gave suggestions on how to 

revise the definition, suggested 

alternative definitions, or requested that 

we reconsider the definitions they had 

submitted previously in response to the 

initial proposed rule to define the term 

‘‘habitat.’’ For example, some 

commenters stated the definition should 

be revised in a manner supported by 

regulated entities and to clearly exclude 

areas that are currently unsuitable for 

species conservation. One commenter 

suggested the Services establish a 

process to seek stakeholder input on a 

definition. Other commenters stated the 

definition was too narrow and should be 

broadened, or should be more holistic, 

or that the definition should be revised 

to avoid precluding areas that will have 

the necessary attributes for a species 

due to natural processes or proactive 

conservation efforts. 

Response: As we outlined previously 

(see ‘‘Rationale for Rescission of the 

Habitat Definition Rule’’) we decline to 

revise the regulatory definition of 

‘‘habitat.’’ The Supreme Court did not 

require us to promulgate a definition in 

the Weyerhaeuser decision, and upon 

reconsideration, we have recognized 

that the regulatory definition ultimately 

adopted in 2020 was inconsistent with 

the conservation purposes of the Act 

and did not meet the stated policy goals 

of providing clarity, transparency and 

certainty. Furthermore, which particular 

areas constitute habitat for any given 

species depends on that species’ biology 

and ecology, and what in turn qualifies 

as critical habitat under the Act is 

guided by the statutory definition of 

‘‘critical habitat,’’ regulations in 50 CFR 

part 424, and existing case law. When 

we engage in designation of critical 

habitat, we conduct an exhaustive 

review of the relevant scientific data 

and information and provide a detailed 

and specific as possible explanation in 

each proposal and final critical habitat 

rule of the particular listed species’ 

habitats and distribution. A generic, 

definition of the general term ‘‘habitat’’ 

would not facilitate or provide any 

meaningful value to this process. Thus, 

and as stated previously, we find that 

application of the best available data 

regarding a listed species’ habitats and 

adhering to the statutory and regulatory 

requirements, as well as being guided by 

case law, is the best path to fulfilling 

our statutory responsibilities to 

designate critical habitat under the Act. 

Moreover, we have concluded that 

our 2020 reaction to Weyerhaeuser—i.e., 

promulgating a regulatory definition to 

attempt to address the Supreme Court’s 

interpretation of section 4(a)(3)(A)(i) of 

the ESA—did not take into account the 

value that the existing notice-andcomment rulemaking process applicable 

to specific critical habitat designations 

provides to meet the objectives of giving 

stakeholders transparency, clarity, and 

consistency. Rather, at that time, we 

made an unwarranted assumption that 

these qualities were lacking. (See 85 FR 

47334, August 5, 2020, (‘‘Given this 

holding in the Supreme Court’s opinion 

in Weyerhaeuser, we are proposing to 

add a regulatory definition of 

‘habitat.’ ’’); also 85 FR 81418, 81419, 

December 16, 2020, (‘‘As we made clear 

in the proposed rule, the objective of 

this rulemaking is to ‘provide 

transparency, clarity and consistency for 

stakeholders’ because the Weyerhaeuser 

decision may raise questions in some 

instances as to whether areas of 

unoccupied critical habitat are 

‘habitat.’ ’’)). The rulemaking process for 

specific critical habitat designations 

gives all stakeholders an opportunity to 

evaluate and provide input on the 

Services’ review of relevant scientific 

data and information and explanation of 

a specific species’ habitat, necessitates 

that the Services provide a clear 

rationale for why a particular critical 

habitat designation meets the applicable 

statutory and regulatory standards, and 

offers substantial consistency in its 

application to the designation of areas 

as critical habitat. Because we now 

conclude that a regulatory definition of 

‘‘habitat’’ is not an appropriate policy 

response to the holding in 

Weyerhaeuser, rescinding the definition 

is preferable to revising the definition. 

In making this final decision, we have 

also reviewed and considered the 

suggested alternatives to rescinding the 

rule, including the various alternative 

versions of a definition of ‘‘habitat’’ that 

were newly submitted and resubmitted. 

The same challenges that we have 

identified for the definition codified in 

2020 (e.g., ambiguity, confusion, tension 

with the statutory definition of ‘‘critical 

habitat’’) would arise in attempting to 

revise the definition or adopt a new 

definition in response to these 

comments, as no definition would be 

sufficiently broad to accommodate the 

habitats of diverse taxa and both 

occupied and unoccupied critical 

habitat, yet simultaneously provide 

clarity, transparency, and consistency in 


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terms of indicating which specific areas 

qualify as habitat for a given species. 

For example, most suggested definitions 

used terminology, such as ‘‘essential 

attributes,’’ ‘‘ecological attributes,’’ and 

‘‘necessary attributes,’’ that would have 

a similarly unclear meaning and 

relationship to the terminology in the 

statutory definition of ‘‘critical habitat.’’ 

Some other suggested definitions and 

approaches, in an attempt to be simple 

and straightforward or more holistic, 

would be overly vague and too 

ambiguous to serve any practical 

purpose in identifying which areas may 

or may not qualify as habitat, especially 

where the area is unoccupied by the 

species (e.g., ‘‘Habitat is defined as the 

cumulative influences that act upon, 

and/or are acted upon by, a living 

organism’’; and ‘‘The place or the 

location where an organism (or a 

biological population) lives, resides, or 

exists’’). 

In reconsidering the December 2020 

rulemaking and reviewing alternative 

definitions submitted in response to the 

proposed rule for this action, we 

thoroughly considered alternatives to 

rescinding the habitat definition. 

Establishing an additional stakeholder 

process, beyond the public comment 

processes already undertaken for this 

rule and the prior rulemaking, will not 

help resolve the deficiencies we have 

identified with codifying a single 

regulatory definition for ‘‘habitat.’’ 

Despite its recency and the limited 

circumstances in which it would be 

brought to bear in a designation, the 

existing regulatory definition of 

‘‘habitat’’ has generated extensive 

controversy and is the subject of 

ongoing litigation. Eliminating the 

regulatory definition of ‘‘habitat’’ will 

eliminate the extensive controversy it 

has engendered and the potential 

implementation problems it or any such 

definition would create. As previously 

stated, we find that elimination of this 

definition, and relying instead on the 

statute, the implementing regulations, 

existing case law (including 

Weyerhaeuser), and the best scientific 

data available, is the most transparent 

and reasonable action. 

We also note that the commenters’ 

examples of regulatory rescissions that 

were subject to legal challenges 

involved agencies that had rescinded 

full regulatory programs with multiple 

discrete components (e.g., the 

Department of Homeland Security’s 

Deferred Action for Childhood Arrivals 

program). In these examples, the 

particular agencies could have 

considered alternatives, such as 

rescinding only various parts of the 

regulatory program, but they did not. 

That is not the situation here. Rescission 

of the habitat definition rule has no 

effect on the existing statutory and 

regulatory framework establishing the 

process for the designation of critical 

habitat. The definition itself did not 

create any new or different procedural 

steps in the designation of critical 

habitat or implementation of the Act (85 

FR 81414, December 16, 2020). 

Accordingly, there is not an array of 

alternatives that are implicated in the 

Services’ consideration of whether the 

existence of any regulatory definition of 

‘‘habitat’’ is appropriate or not. We are 

also aware of a recent ruling in response 

to a challenge regarding another 

agency’s withdrawal of a rule clarifying 

a statutory definition (Coalition for 

Workforce Innovation v. Walsh, 1:21– 

cv–130, Dkt. 32 (E.D. Tex. Mar. 14, 

2022)). In Coalition, the district court 

judge determined that the Department of 

Labor had prohibited public comments 

on its withdrawal rule and accordingly 

provided no discussion of any 

alternatives to withdrawal. Here, the 

Services sought, and have fully 

considered public comments on the 

proposed rescission rule. In responding 

to these comments, we discuss how 

alternatives, whether in terms of 

alternative definitions or the alternative 

of issuing interpretive guidance, would 

not sufficiently address the issues 

identified with the regulatory definition. 

Comment 19: Several commenters 

stated the Services have not provided a 

reasoned basis for rescinding the 

regulatory definition of ‘‘habitat.’’ They 

also stated that the rule inappropriately 

relied on E.O. 13990 as its legal basis for 

rescinding the regulation and simply 

restated points that were adequately 

addressed in the 2020 regulation. 

Response: E.O. 13990 required all 

agencies to review agency actions issued 

between January 20, 2017, and January 

20, 2021, that may be inconsistent with 

the policies it set forward. Following the 

issuance of that E.O., we undertook a 

review of the habitat definition 

regulation. E.O. 13990 provided the 

impetus for the review, but the E.O. is 

not the legal basis of the rescission. We 

are rescinding the rule on the basis of 

our legal authority under the Act (16 

U.S.C. 1531 et seq.). As described in the 

proposed rule to rescind this definition, 

after reviewing the regulation and its 

intended effect of eliminating as 

‘‘habitat’’ areas in need of restoration, 

we concluded the final rule 

inappropriately constrains our ability to 

designate areas that meet the definition 

of ‘‘critical habitat’’ under the Act 

because it is in significant tension with 

the Act’s broad definition of 

‘‘conservation.’’ The statute’s definition 

of ‘‘conservation’’ expressly 

contemplates a wide range of tools for 

furthering the ultimate goal of 

recovering listed species including 

management of habitat (see 16 U.S.C. 

1532(3)), and the statute’s definition of 

‘‘critical habitat’’ is in turn expressly 

tied to the conservation of the listed 

species (see 16 U.S.C. 1532(5)(A)). The 

definition of ‘‘habitat,’’ however, 

required that areas already contain the 

resources and conditions necessary to 

support one or more life processes of a 

species, and eliminated areas that do 

not currently or periodically contain the 

requisite resources and conditions, even 

if they could after restoration activities 

or other changes occur and were 

otherwise considered essential to the 

conservation of the species. 

We also reviewed the available 

ecological definitions for use as our 

regulatory definition but found they 

were either too broad or too narrow to 

guide designation of areas that could 

qualify under the statute as unoccupied 

critical habitat. The qualities that make 

certain areas habitat for a species vary 

based on the biology and ecology of the 

species; the scientific literature also 

evolves over time; and there is currently 

some ambiguity in the use of the term 

‘‘habitat.’’ Therefore, codifying an 

inflexible single definition in the Act’s 

regulations would constrain our ability 

to incorporate the best available 

ecological science in the future. For 

those reasons, we have decided to 

rescind the definition. 

The Services disagree with the 

commenters who asserted our rationale 

for rescinding the ‘‘habitat’’ definition 

was insufficient. The specific reasons 

the commenters cite for that assertion 

(which we address in other responses to 

comments, e.g., responses to Comments 

18, 20, 21, and 24) do not undermine 

the legal bases or factual findings for the 

Services’ action. 

Comment 20: Some commenters said 

the rescission ignores a central reason 

why the ‘‘habitat’’ definition rule was 

promulgated: to modernize 

implementation of the Act and provide 

additional certainty to the regulated 

community and the public about 

‘‘habitat.’’ 

Response: The policy reasons 

articulated for the proposed adoption of 

the definition are not the same as the 

policy reasons that guided the Services’ 

reconsideration. As a result, these same 

goals are not discussed at length in our 

proposal to rescind the definition. 

However, following our review of the 

habitat definition regulation, we 

determined that, because that rule is in 

significant tension with the 

conservation mandate of the Act, it did 


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not in fact modernize implementation of 

the Act. As discussed in our response to 

Comment 8, we also determined that it 

would not provide additional certainty 

to the regulated community. Because of 

the significant shortcomings inherent in 

the definition, we conclude that 

continued application of the definition 

would not provide additional certainty 

to the regulatory community or the 

public and would likely lead to 

additional litigation. 

Comment 21: Several commenters 

asserted the Services did not adequately 

justify the statements in the preamble of 

the proposed rule to rescind the habitat 

regulation that the definition is in 

tension with the Act’s definition of 

‘‘conservation.’’ 

Response: The Act authorizes the 

Services to designate as critical habitat 

unoccupied areas that are ‘‘essential for 

the conservation’’ of the species (16 

U.S.C. 1532(5)(A)(ii)). Section 3 of the 

Act defines ‘‘conservation’’ as including 

a wide range of tools to specifically 

further the recovery of listed species. 

Therefore, and as discussed previously 

in our response to Comment 16, critical 

habitat includes areas needed to support 

the recovery of the species. In order to 

meet the regulatory definition of 

‘‘habitat’’ codified in 2020 (and thus be 

eligible for designation as critical 

habitat), areas must already contain all 

the resources and conditions necessary 

to support one or more life processes of 

the species. That definition, as 

discussed in the preamble to that rule, 

excluded areas that do not currently or 

periodically contain the requisite 

resources and conditions even if those 

areas could meet this requirement after 

minor restoration or natural changes 

occur and are clearly (on the basis of the 

best available science) habitat from a 

biological perspective for a particular 

species. Because of that exclusion, we 

find the definition and the preamble of 

the 2020 final rule inappropriately 

constrain the Services’ ability to 

designate areas that meet the definition 

of ‘‘critical habitat’’ under the Act and 

are therefore in tension with the Act’s 

definition of ‘‘conservation.’’ Identifying 

and protecting those areas when we 

determine they are essential, rather than 

delaying until a future point in time 

when conditions that are not required 

under the Act’s definition are realized, 

better fulfills the conservation purposes 

of the Act. 

Comment 22: A commenter asserted 

that, in the preamble of the proposed 

rule to rescind the ‘‘habitat’’ definition, 

we said it is illogical to require that an 

area be habitable before designating it as 

critical habitat and that such an 

assertion is not consistent with the Act. 

The commenter further stated that the 

Services have tools other than the 

designation of critical habitat under the 

Act to conserve species in areas that 

should not be considered habitat. 

Response: This comment 

misinterprets our statements. In the 

preamble to this final rule, we said the 

broad definition of ‘‘conservation,’’ 

along with the statute’s recognition of 

destruction or loss of habitat as a key 

factor in the decline of listed species (in 

section 4(a)(1) of the Act), indicates that 

areas not currently in an optimal state 

to support a species could nonetheless 

be considered ‘‘habitat’’ and ‘‘critical 

habitat’’ (86 FR 59353, p. 59354, 

October 27, 2021). Including those areas 

in critical habitat designations, where 

appropriate, may be essential for the 

conservation of some species and is 

consistent both with the purposes of the 

Act and with the Services’ practice prior 

to the habitat definition final rule 

becoming effective in January 2021. To 

find otherwise would lead to the 

illogical result that the more a species’ 

habitat has been degraded, the less 

ability there is to attempt to recover the 

species. Our reference regarding 

illogical results was about our ability to 

attempt to recover species in 

furtherance of the purposes of the Act 

as a species’ habitat becomes more 

degraded. 

Designation of critical habitat is one 

important tool among the many tools 

the Act provides to conserve species. 

Congress recognized the importance of 

critical habitat for the conservation of 

listed species by mandating that the 

Services designate critical habitat at the 

time the species is listed except in very 

limited circumstances. 

Comment 23: One commenter stated 

that, under the Supreme Court’s holding 

in Weyerhaeuser, the Act’s definition of 

‘‘conservation’’ has no relevance to the 

meaning of habitat. 

Response: The Services recognize the 

Supreme Court’s holding in 

Weyerhaeuser that, for an area to be 

designated as critical habitat, it must 

also be habitat. However, the Supreme 

Court did not reach any holdings with 

regard to how the Services can or 

should interpret the term ‘‘habitat’’ as it 

is used in section 4(a)(3)(A)(i) of the 

Act, which generally compels the 

Services to designate for a species ‘‘any 

habitat’’ that is then considered to be 

critical habitat. Because the purpose of 

designating critical habitat, and the Act 

itself, is to conserve listed species, and 

because ‘‘critical habitat’’ is expressly 

defined with reference to 

‘‘conservation,’’ the term ‘‘conservation’’ 

is inherently relevant to the 

determination of areas that are 

considered habitat for listed species. 

Further, habitat is a key concept in 

conservation biology and is integral to 

the conservation of the species. 

Comment 24: Many commenters 

stated that the habitat definition will not 

limit what the Services can designate as 

critical habitat and that there is no 

evidence or indication that the 

definition has constrained the Services’ 

ability to designate critical habitat. 

Some commenters asserted that the 

definition does not preclude designation 

of suboptimal areas or areas that are in 

need of restoration and that the 

definition precludes only designation of 

wholly uninhabitable areas. 

Commenters also stated that the 

Services can always revise critical 

habitat designations if and when an area 

becomes habitat, either through natural 

processes or through human efforts. 

Other commenters stated that the 

habitat definition was too narrow and 

could lead to the absurd outcome of 

excluding from critical habitat 

designations degraded areas or lost 

habitat, future habitat areas, areas that 

indirectly support the species, or areas 

where resources and conditions are not 

precisely known. 

Response: We acknowledge that 

during the short time that the habitat 

definition rule has been in effect, the 

definition has not resulted in reduced 

designations over what we might have 

designated in the absence of the 

definition. Nevertheless, the definition 

and associated discussion in the 

preamble to the 2020 rule regarding 

restoration inappropriately constrain 

our ability to designate critical habitat. 

Although there has been limited 

opportunity for the Services to provide 

tangible examples of how this definition 

has affected a designation, we do not 

need to wait until that situation occurs 

in order to rescind the habitat definition 

rule. 

The habitat definition rule limits our 

ability to designate as critical habitat 

areas that are degraded or considered 

suboptimal for all species if those areas 

are in need of management actions or 

restoration to support the species even 

though those areas may easily qualify, 

as a matter of biological science, as 

habitat for a particular species. The 

purpose of designating critical habitat is 

to conserve species that depend on 

those areas, and the statutory definition 

of ‘‘conservation’’ broadly includes 

actions that relate to management of 

habitat (16 U.S.C. 1532(3)). Therefore, it 

furthers the statutory purpose to 

designate areas that do not at the time 

of designation contain all of the 

resources and conditions that the 

species needs but could contain them 


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with some limited additional 

management or restoration. The 

limitations on what areas may qualify as 

habitat arise from the statements in the 

preamble to the December 2020 final 

rule that the habitat definition excludes 

areas that do not currently contain the 

requisite resources and conditions to 

support one or more life processes of the 

species even if these areas could do so 

after restoration activities or other 

changes occurred (85 FR 81411, p. 

81413, December 16, 2020). Implicit in 

these statements is a requirement that 

no amount of restoration, however 

reasonable, can be needed for an area to 

qualify as habitat for a given species. 

These statements similarly imply that 

no changes to the habitat, however 

predictable or foreseeable, can be 

assumed, or even planned, in order for 

an area to qualify as habitat for a given 

species. The habitat definition rule, in 

effect, excludes areas from qualifying as 

habitat if they require any amount of 

restoration or lack any of what might be 

deemed a ‘‘necessary resource or 

condition’’ and in turn precludes such 

areas from designation as critical 

habitat. 

Because most species are faced with 

extinction as a result of habitat 

degradation and loss, it is more 

consistent with the purposes of the ESA 

to avoid limiting the Services’ ability to 

designate critical habitat to protect the 

habitats of listed species and support 

their recovery. Avoiding such a 

limitation is a primary reason we are 

rescinding the habitat rule. By 

rescinding the habitat definition rule 

and essentially retracting statements 

made in the preamble to the 2020 final 

rule, we reiterate that we do not intend 

to designate areas that are wholly 

unsuitable for the given listed species or 

that require extreme intervention or 

modification in order to support the 

species. We instead intend to proceed in 

light of the Supreme Court’s ruling in 

Weyerhaeuser that an area must be 

habitat for the species in order for it to 

be designated as critical habitat. See 

also our response to Comment 10. 

Although the Services have the 

authority under the Act to revise critical 

habitat when appropriate, removing 

these potential limitations on the 

Services’ ability to designate critical 

habitat in the first place is more 

consistent with the purposes of the Act 

and is also a more effective and efficient 

way to implement the Act. 

Comment 25: Many commenters 

stated that the regulatory definition of 

‘‘habitat’’ is not unclear and will not 

generate confusion or conflict with 

other programs or statutes, especially 

because its application is explicitly 

limited to critical habitat designation. 

Some commenters stated that the 

regulatory definition of ‘‘habitat’’ is 

similar to others and is consistent with 

definitions in the scientific literature, 

the plain language meaning of the term, 

and the Services’ own interpretations of 

this term. The commenters asserted that, 

in proposing to rescind the definition, 

the Services had failed to provide a 

sufficient explanation or demonstration 

of how the definition was unclear or 

would generate confusion. In contrast, 

other comments expressed support for 

the rescission of the ‘‘habitat’’ definition 

in part because the definition is 

confusing or uses ambiguous terms that 

were inadequately explained. 

Response: In the proposed rule to 

rescind the regulatory definition of 

‘‘habitat,’’ we stated that we were 

proposing to rescind the definition, in 

part, because it was confusing and 

insufficiently clear (86 FR 59353, p. 

59354, October 27, 2021). We briefly 

explained that, in our attempt to ensure 

that the final definition was sufficiently 

broad to capture the term ‘‘critical 

habitat,’’ we had deliberately avoided 

using the same terminology as in the 

statutory definition for ‘‘critical habitat’’ 

and instead resorted to using different 

terms, such as ‘‘biotic and abiotic 

setting’’ and ‘‘resources and 

conditions,’’ that have no established 

meaning in the Act, our regulations, or 

our prior practices. Although the 

preamble of the habitat definition rule 

explained the wording changes made in 

finalizing the definition and why those 

changes were made, the rule did not 

articulate interpretations for each of the 

terms used. The habitat definition rule 

did not articulate, for example, what 

will satisfy the ‘‘necessary to support’’ 

phrase or what the full scope of the 

necessary ‘‘resources and conditions’’ 

should include in a given ‘‘setting.’’ 

Thus, during the course of designating 

critical habitat, differing and potentially 

conflicting interpretations could arise 

regarding, for example, whether the 

existing resources and conditions are 

sufficient to meet the ‘‘necessary to 

support’’ standard and over what time 

period this should even be assessed; or 

how many members of a species must 

be able to use a particular ‘‘setting’’ in 

order for the setting to qualify as 

supporting ‘‘one or more life processes 

of the species.’’ 

Just because the regulatory definition 

we developed may be in some respects 

similar to, or generally consistent with, 

certain other dictionary and scientific 

definitions for this term does not 

alleviate these concerns or invalidate 

this reason for rescinding the definition. 

We instead conclude that a more 

reasonable and supportable approach is 

to apply species-specific ecological data 

when determining whether particular 

areas constitute habitat for that species. 

The fact that, in response to our 

proposed rule to rescind the existing 

definition, we received multiple 

proposed alternative definitions and 

various suggestions regarding how to 

potentially revise the definition serves 

as further indication that debate and 

disagreement over wording and 

interpretations of the definition are 

likely to continue, and that what 

qualifies as habitat is better determined 

on a fact-specific, case-by-case basis (see 

also response to Comment 18). 

The language limiting the definition’s 

applicability to critical habitat 

designations does not alleviate the 

potential for confusion or the potential 

for conflict with other programs or 

statutes. Although not a significant 

aspect of our rationale for rescinding the 

definition, we pointed out in the 

proposed rule that having multiple 

definitions and interpretations of what 

constitutes habitat that vary based on 

the particular Federal program or 

statutory authority may be confusing (86 

FR 59353, p. 59355, October 27, 2021). 

It is also inherently confusing, likely for 

both the Services and the public, to 

limit the regulatory definition to only 

the designation of critical habitat when 

other provisions of the Act directly or 

indirectly address the habitats of listed 

species. This limitation on applicability 

implies that the term ‘‘habitat’’ will be 

interpreted differently when the 

Services are implementing other 

provisions or programs under the Act. 

For example, it implies that the Services 

will use a different definition of the 

term ‘‘habitat’’ when evaluating habitat 

conservation plans developed under 

section 10 of the Act; when identifying 

habitat conservation actions in a 

recovery plan prepared under section 

4(f) of the Act; or when evaluating 

whether a species is threatened by the 

destruction, modification, or 

curtailment of habitat under section 

4(a)(1)(A) of the Act. Therefore, in 

contrast to the comments that suggest 

this limited applicability eliminates the 

concern regarding varying 

interpretations of the term ‘‘habitat’’ and 

any resulting confusion, we find this 

limitation served only to substitute one 

source of potential confusion for 

another. 

Comment 26: Several commenters 

stated the habitat definition rule does 

not prevent the use of, or reliance on, 

the best available scientific data. 

Further, they argued, the preamble to 

the proposed rule to rescind the 

definition provided no support for 


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statements that the definition could 

prevent the Services from relying on the 

best available scientific data when 

designating critical habitat; they also 

maintained that those statements 

conflict with statements we made in the 

2020 final rule. Several other 

commenters stated that the best 

available scientific data is used to 

determine whether areas meet the 

definition of ‘‘habitat,’’ not to define the 

term ‘‘habitat.’’ The term ‘‘habitat’’ 

should have a fixed meaning and is a 

question of statutory interpretation, not 

the best available scientific information. 

Response: As noted above, we have 

reassessed the habitat definition rule in 

light of E.O. 13990 and have concluded 

that statements in the preamble to the 

2020 final rule inappropriately 

constrain the Services’ ability to 

designate areas that meet the definition 

of ‘‘critical habitat’’ under the Act (85 

FR 81411, p. 81413, December 16, 

2020). As noted by the commenters, the 

Supreme Court determined in 

Weyerhaeuser that an area must be 

habitat in order to be designated as 

critical habitat. The Act requires us to 

identify areas for designation as critical 

habitat on the basis of the best available 

scientific data for a particular species. 

Although at the time of promulgating 

the definition we glossed over the 

difficulties, we see now that any 

definition that categorically precludes 

certain types of areas from being 

considered habitat for any species even 

though some areas would, on the basis 

of the best available science, easily be 

demonstrated to be habitat for that 

species is inappropriate. Such a narrow 

rule inappropriately limits our ability to 

rely on the best available scientific data 

to determine what is habitat for that 

species. In addition, because the 

scientific literature evolves over time, 

and our understanding of ‘‘habitat’’ 

could also evolve, codifying a single 

definition in regulation could constrain 

the Services’ ability to incorporate the 

best available ecological science in the 

future. 

Habitat is an ecological term that 

should be defined or identified based on 

the best available scientific data. The 

Act clearly requires that critical habitat 

should be determined on the basis of the 

best available science. The unique 

regulatory definition of ‘‘habitat’’ 

promulgated in 2020 could conflict with 

this mandate by requiring and shaping 

or limiting how the Services can 

consider which areas meet the 

definition of ‘‘critical habitat.’’ We find 

that relying on the best available 

scientific data as specified in the Act, 

including species-specific ecological 

information, is the best way to 

determine whether areas constitute 

habitat and meet the definition of 

critical habitat for a species. 

Comment 27: A commenter disagreed 

with our statement in the preamble to 

the proposed rule to this final rule that 

the scientific literature evolves over 

time with regard to habitat. The 

commenter also stated there is no 

evidence that Congress, upon adopting 

the Act’s provisions that deal with 

critical habitat designations in 1978, 

intended to adopt an evolving scientific 

definition of ‘‘habitat’’ or rely on 

concepts in the scientific literature. The 

commenter further asserted that it 

should be understood that Congress 

intended the term to have its ordinary 

meaning. 

Response: Habitat is a key ecological 

concept in conservation biology and is 

linked to a scientific understanding of a 

particular species and its environment. 

What constitutes habitat for a particular 

species depends on complex 

considerations that must be informed by 

the best available scientific data 

regarding that species’ life-history 

needs. Further, the scientific literature 

on species conservation continues to 

evolve, and the variety of definitions for 

‘‘habitat’’ found in the conservation 

biology literature are reflective of that 

evolution (e.g., Odum 1971, Whittaker 

et al. 1973, Hall et al. 1997, Kearney 

2006). Because Congress did not define 

the term ‘‘habitat’’ but mandated that we 

designate critical habitat on the basis of 

the best available scientific data for a 

particular species, it is logical that our 

understanding of what areas serve as 

habitat for the species, and can therefore 

be potentially designated as critical 

habitat, must both itself be based on the 

best available scientific data and allow 

for application in the context of 

particular designations that will be 

consistent with the best available 

science for each particular species. 

Because Congress defined ‘‘critical 

habitat,’’ the term ‘‘habitat’’ must also be 

compatible with both prongs of the 

definition of ‘‘critical habitat,’’ 

including unoccupied areas, which 

generic dictionary definitions of 

‘‘habitat’’ generally do not include. 

Required Determinations 

Regulatory Planning and Review (E.O.s 

12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, reduce uncertainty, and 

encourage use of the best, most 

innovative, and least burdensome tools 

for achieving regulatory ends. We have 

developed this final rule in a manner 

consistent with the requirements of E.O. 

13563, and in particular with the 

requirement that regulations must be 

based on the best available science and 

that the rulemaking process must allow 

for public participation and an open 

exchange of ideas. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency, or their designee, certifies that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA 

amended the Regulatory Flexibility Act 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that a rule will not have a 

significant economic impact on a 

substantial number of small entities. 

NMFS and FWS are the only entities 

that are directly affected by this rule 

because we are the only entities that 

designate critical habitat under the Act. 

This rule does not directly apply to any 

other entities. Thus, no other entities, 

including any small businesses, small 

organizations, or small governments, 

will experience any direct economic 

impacts from this rule. Entities other 

than NMFS and FWS, including small 

businesses, small organizations, and 

small governments, may, however, be 

affected by critical habitat designations, 

and any such impacts would be 

assessed and taken into consideration 

by the Services as part of those specific 

rulemakings. At the proposed rule stage, 

we certified that this rule would not 

have a significant economic effect on a 

substantial number of small entities. 

Nothing in this final rule changes that 

conclusion. 


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37770 Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.): 

(a) On the basis of information 

contained in the Regulatory Flexibility 

Act section, this rule does not 

‘‘significantly or uniquely’’ affect small 

governments. We have determined and 

certify pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502, 

that this rule does not impose a cost of 

$100 million or more in any given year 

on local or State governments or private 

entities. A Small Government Agency 

Plan is not required. As explained 

above, small governments are not 

affected because the rule does not place 

additional requirements on any city, 

county, or other local municipalities. 

(b) This rule would not produce a 

Federal mandate on State, local, or 

Tribal governments or the private sector 

of $100 million or greater in any year; 

therefore, this rule is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. This rule would 

impose no obligations on State, local, or 

Tribal governments. 

Takings (E.O. 12630) 

In accordance with E.O. 12630, this 

rule does not have significant takings 

implications. This rule does not directly 

affect private property, nor does it cause 

a physical or regulatory taking. It does 

not result in a physical taking because 

it does not effectively compel a property 

owner to suffer a physical invasion of 

property. Further, the rule does not 

result in a regulatory taking because it 

does not deny all economically 

beneficial or productive uses of the land 

or aquatic resources, it does 

substantially advance a legitimate 

government interest (conservation and 

recovery of endangered species and 

threatened species), and it does not 

present a barrier to all reasonable and 

expected beneficial uses of private 

property. 

Federalism (E.O. 13132) 

This rule does not have significant 

federalism effects, and a federalism 

summary impact statement is not 

required under E.O. 13132. This rule 

pertains only to designation of critical 

habitat under the Act and would not 

have substantial direct effects on the 

States, on the relationship between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

Civil Justice Reform (E.O. 12988) 

This rule does not unduly burden the 

judicial system and meets the applicable 

standards provided in sections 3(a) and 

3(b)(2) of E.O. 12988. This rule pertains 

only to designation of critical habitat 

under the Act. 

Government-to-Government 

Relationship With Tribes 

In accordance with E.O. 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ the 

Department of the Interior’s manual at 

512 DM 2, the Department of Commerce 

Tribal Consultation and Coordination 

Policy (May 21, 2013), the Department 

of Commerce Departmental 

Administrative Order (DAO) 218–8 

(April 2012), and the National Oceanic 

and Atmospheric Administration 

(NOAA) Administrative Order (NAO) 

218–8 (April 2012), we considered the 

possible effects of this rule on federally 

recognized Tribes. This rule is general 

in nature and does not directly affect 

any specific Tribal lands, treaty rights, 

or Tribal trust resources. This 

regulation, which removes the 

definition of ‘‘habitat’’ from 50 CFR 

424.02, has a direct effect on the 

Services only. With or without the 

regulatory definition of ‘‘habitat,’’ the 

Services would be obligated to continue 

to designate critical habitat based on the 

best available data and would continue 

to coordinate and consult as appropriate 

with Tribes and Alaska Native 

corporations on critical habitat 

designations, consistent with our 

longstanding practice. 

During July 2021, we held three 

separate webinars for Tribes and Tribal 

organizations to provide an overview of, 

and information on how to provide 

input on, a series of rulemakings related 

to implementation of the Act that the 

Services were developing, including the 

proposed rule to rescind the habitat 

definition rule. We received written 

comments from Tribal organizations; 

however, we did not receive any 

requests for consultation regarding this 

action. Although this rule does not have 

‘‘tribal implications’’ under section 1(a) 

of E.O. 13175, we will continue to 

collaborate with Tribes on issues related 

to federally listed species and their 

habitats and work with the Tribes as we 

implement the provisions of the Act. 

See Joint Secretarial Order 3206 

(‘‘American Indian Tribal Rights, 

Federal–Tribal Trust Responsibilities, 

and the Endangered Species Act’’, June 

5, 1997). 

Paperwork Reduction Act 

This rule does not contain any new 

collections of information that require 

approval by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995 (PRA) (45 U.S.C. 

3501 et seq.). 

National Environmental Policy Act 

We have analyzed this rule in 

accordance with the criteria of the 

National Environmental Policy Act 

(NEPA), the Department of the Interior 

regulations on Implementation of the 

National Environmental Policy Act (43 

CFR 46.10–46.450), the Department of 

the Interior Manual (516 DM 8), the 

NOAA Administrative Order 216–6A, 

and the NOAA Companion Manual 

(CM), ‘‘Policy and Procedures for 

Compliance with the National 

Environmental Policy Act and Related 

Authorities’’ (effective January 13, 

2017). We have determined that a 

detailed statement under NEPA is not 

required because the rule is covered by 

a categorical exclusion. The Department 

of the Interior has found that the 

following categories of actions would 

not individually or cumulatively have a 

significant effect on the human 

environment and are, therefore, 

categorically excluded from the 

requirement for completion of an 

environmental assessment or 

environmental impact statement: 

‘‘Policies, directives, regulations, and 

guidelines: that are of an administrative, 

financial, legal, technical, or procedural 

nature.’’ 43 CFR 46.210(i). We have also 

determined that the rule does not 

involve any of the extraordinary 

circumstances listed in 43 CFR 46.215 

that would require further analysis 

under NEPA. 

NOAA’s NEPA procedures include a 

similar categorical exclusion for 

‘‘preparation of policy directives, rules, 

regulations, and guidelines of an 

administrative, financial, legal, 

technical, or procedural nature’’ 

(Categorical Exclusion G7, at CM 

Appendix E). This rule does not involve 

any of the extraordinary circumstances 

provided in NOAA’s NEPA procedures, 

and therefore does not require further 

analysis to determine whether the 

action may have significant effects (CM 

at 4.A). 

As a result, we find that the 

categorical exclusion found at 43 CFR 

46.210(i) and in the NOAA CM applies 

to this regulation rescission, and neither 

Service has identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. We did not 

receive any public comments regarding 

our stated intention of invoking a 


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Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 37771 

categorical exclusion, with the 

exception of comments asserting that 

the initial use of a categorical exclusion 

when the habitat definition rule was 

codified (i.e., the rule we are now 

rescinding) was incorrect. These 

comments do not conflict with or 

undermine our analysis here or 

compliance with applicable NEPA 

regulations for this rule. 

Energy Supply, Distribution or Use (E.O. 

13211) 

Executive Order 13211 requires 

agencies to prepare statements of energy 

effects when undertaking certain 

actions. The rescission of the regulatory 

definition of ‘‘habitat’’ is not expected to 

affect energy supplies, distribution, and 

use. Therefore, this action is not a 

significant energy action, and no 

statement of energy effects is required. 

Signing Authority for the Department of 

the Interior 

Shannon Estenoz, Assistant Secretary 

for Fish and Wildlife and Parks, 

approved this action on February 28, 

2022, for publication. On June 16, 2022, 

Shannon Estenoz authorized the 

undersigned to sign and submit the 

document to the Office of the Federal 

Register for publication electronically as 

an official document of the Department 

of the Interior. 

Authority 

We issue this rule under the authority 

of the Endangered Species Act, as 

amended (16 U.S.C. 1531 et seq). 

List of Subjects in 50 CFR Part 424 

Administrative practice and 

procedure, Endangered and threatened 

species. 

Maureen D. Foster, 

Chief of Staff, Office of the Assistant Secretary 

for Fish and Wildlife and Parks. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration. 

Regulation Promulgation 

For the reasons set out in the 

preamble, we hereby amend part 424, 

subchapter A of chapter IV, title 50 of 

the Code of Federal Regulations, as set 

forth below: 

PART 424—LISTING ENDANGERED 

AND THREATENED SPECIES AND 

DESIGNATING CRITICAL HABITAT 

■ 1. The authority citation for part 424 

continues to read as follows: 

Authority: 16 U.S.C. 1531 et seq. 

§ 424.02 [Amended] 

■ 2. Amend § 424.02 by removing the 

definition for ‘‘Habitat’’. 

[FR Doc. 2022–13368 Filed 6–23–22; 8:45 am] 

BILLING CODE 4333–15–P 


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