Rule2022-13368
Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat
Primary source
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Published
June 24, 2022
Effective
July 25, 2022
Issuing agencies
Interior DepartmentFish and Wildlife ServiceCommerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 121 (Friday, June 24, 2022)</title>
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[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Rules and Regulations]
[Pages 37757-37771]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13368]
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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.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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-
of-contact 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 <a href="http://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a>).
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
[[Page 37758]]
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 Sec. 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
[[Page 37759]]
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
[[Page 37760]]
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
[[Page 37761]]
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 land-
use-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
adverse-modification 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.
[[Page 37762]]
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
[[Page 37763]]
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
[[Page 37764]]
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 conservation-planning 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
[[Page 37765]]
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-
and-comment 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
[[Page 37766]]
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
[[Page 37767]]
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
[[Page 37768]]
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
[[Page 37769]]
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.
[[Page 37770]]
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
[[Page 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
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
Sec. 424.02 [Amended]
0
2. Amend Sec. 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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</html>Indexed from Federal Register on June 24, 2022.
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