On Friday June 24, 2022, the Service published a final rule in the Federal Register (Fed. Reg. Vol. 87, No. 121, pp. 37757 – 37771). That rule removed the definition of “habitat’ from the regulations pertaining to the designation of critical habitat (50 CFR 424.02). [Note: This definition should not be confused with the Act’s definition of “critical habitat” which is found in the statute, and is referenced in the definitions for the inter-agency cooperation (section 7) regulations at 50 CFR 402.02]. The final rule published on Friday addressed a new definition put in place December 16, 2020 (effective January 15, 2021). No definition of the word habitat had been in the 424.02 regs before and the new definition used wording that limited its use to the critical habitat designation process. This definition was generated from a perceived need after a decision by the U.S. Supreme Court in Weyerhaeuser Co. v. U.S.F.W.S., 139 S. Ct. 361, 372 in 2018. That case centered around critical habitat designated for the dusky gopher frog.

Regarding the revision’s impact to existing critical habitat, the final rule states “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” (p. 37760).

So, in my view, the bottom line for section 7 practitioners is that this recission of the definition does not, in any way, impact the understanding or analysis under 7(a)(2) for whether an action is likely to result in the destruction or adverse modification of designated critical habitat. That analytical responsibility and process remains the same. Likewise, an action agency does not need to change its analysis of the effects of its action in biological documents supporting 7(a)(2) consultation (biological assessments, evaluations, etc.).

As always, go to the source document and review it yourself (it is only 12 pages) and work closely with your consultation partners if any issue surrounding this definition comes up.