Federal Agencies Propose New Regulatory Definition for “Habitat” Under the Endangered Species Act

On July 31, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) proposed a revised definition of the term “habitat,” as used in “critical habitat” designations under the Endangered Species Act (ESA). The revision addresses a 2018 Supreme Court ruling and seeks to “improve clarity around description of habitat,” according to FWS’s press release.

In its Weyerhaeuser Co. v U.S. FWS ruling, the Supreme Court noted that though “critical habitat” has a statutory definition, “habitat” does not. The agencies are attempting to remedy that deficiency through the new proposal.

Their suggested definition would consider “habitat” to refer to both a “critical habitat” occupied by an individual of endangered species and “critical habitat” not currently occupied by individuals, according to the draft rule. The proposal follows recent revisions to the regulatory requirements delineating what geographical areas are considered “essential” for the conservation of an endangered species.

According to the FWS’s press release, the proposed definition “is part of the efforts of the Trump Administration to balance effective, science-based conservation with common-sense policy designed to bring the ESA into the 21st century.” Yet environmental groups argue that the definition disserves endangered species who need protection most.

In a July 31 press release the Center for Biological Diversity (CBD), a non-profit environmental interest group, wrote that the proposed definition would limit habitats to those areas which could currently support individuals of a species, failing to recognize that “[m]ost endangered species, however, have lost extensive areas of their historic range to habitat loss and fragmentation and thus need habitat restoration to recover.” The CBD also argued that the definition would fail to protect animals that migrate to different habitats in response to climate change.

According to ocean advocacy group Oceana’s July 31 press release, the proposed rule has a politicized agenda. Like the CBD argued, the proposal would likely “omit areas that are in need of restoration before they could again be suitable for supporting threatened or endangered species,” Oceana’s senior federal policy director, Lara Levison, explained. “The ESA protects threatened and endangered species like sea turtles and the North Atlantic right whale, as well as the habitats they depend on, but the draft rule released today reduces these protections.”

The proposed rule was sent to the Federal Register on July 31. Public comments will be accepted for 30 days once it is published.