[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 [www.gpo.gov]
[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 https://www.regulations.gov in 
Docket No. FWS-HQ-ES-2020-0047.

FOR FURTHER INFORMATION CONTACT: Angela Somma, National Marine 
Fisheries Service, Office of Protected Resources, 1315 East-West 
Highway, Silver Spring, MD 20910, telephone 301-427-8403; or Bridget 
Fahey, U.S. Fish and Wildlife Service, Division of Conservation and 
Classification, 5275 Leesburg Pike, Falls Church, VA 22041-3803, 
telephone 703-358-2171. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
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 www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/). 
Among the agency actions listed on the Fact Sheet was our December 16, 
2020, final rule promulgating a regulatory definition for the term 
``habitat'' (85 FR 81411) under the Endangered Species Act of 1973, as 
amended, 16 U.S.C. 1531 et seq. (hereafter, ``the Act''). Following our 
review of this rule (the ``habitat definition rule''), we determined it 
was unclear and confusing and inconsistent with the conservation 
purposes of the Act, and we subsequently published a proposed rule to 
rescind it (86 FR 59353, October 27, 2021). We solicited public 
comments on the proposed rule through November 26, 2021. In response to 
several requests, we extended the deadline for submission of public 
comments to December 13, 2021 (86 FR 67013, November 24, 2021).
    The December 2020 final rule defined ``habitat'' as follows: For 
the purposes of designating critical habitat only, habitat is the 
abiotic and biotic setting that currently or periodically contains the 
resources and conditions necessary to support one or more life 
processes of a species. The definition itself indicates that it applies 
only in the context of designating ``critical habitat,'' which is 
defined in section 3(5)(A) of the Act as specific areas within the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of this Act, on which are 
found those physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protections; and as specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of this Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.
    The two types of critical habitat described in this statutory 
definition are often referred to as ``occupied'' and ``unoccupied'' 
critical habitat, respectively, and for simplicity, we use those 
shorthand terms within this document. The Secretaries (of Commerce and 
the Interior) designate critical habitat for threatened and endangered 
species on the basis of the best scientific data available and after 
taking into consideration various impacts of the designation (16 U.S.C. 
1533(b)(2)). Once critical habitat is designated, section 7(a)(2) of 
the Act requires Federal agencies to ensure that actions they 
authorize, fund, or carry out are not likely to destroy or adversely 
modify that habitat (16 U.S.C. 1536(a)(2)). Critical habitat 
requirements do not apply to actions on private land that do not 
involve the authorization or funding of a Federal agency.
    On January 14, 2021, one day before the rule took effect, seven 
environmental groups challenged it, filing suit against the Services in 
Federal district court in Hawaii. Shortly thereafter on January 19, 
2021, 19 States similarly filed suit challenging the habitat definition 
rule in the Northern District of California. Parties in both cases have 
agreed to long-term stipulated stays in the litigation as this 
rulemaking proceeds.
    Following consideration of all public comments received in response 
to our proposed rule to rescind the habitat definition, and for reasons 
outlined both

[[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