Late last year, the U.S. Supreme Court issued a unanimous decision that was favorable to NAHB members in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, better known as the Dusky Gopher Frog case.
The Court found that an area of land is eligible for designation as “critical habitat” under the Endangered Species Act only if it is a habitat for listed species. And any decision not to exclude an area from critical habitat is subject to judicial review.
The Court remanded the case to the Fifth Circuit to define the word “habitat.” The Fifth Circuit then punted to the Fish and Wildlife Service (FWS) and tasked the very agency that lost the case with creating a new definition for “habitat.”