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Laura Bies

U.S. Fish & Wildlife Service defines "habitat" under the ESA

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The U.S. Fish and Wildlife Service has released a proposed definition for “habitat” under the Endangered Species Act. The ESA defines “critical habitat” as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed ... 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; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed ..., upon a determination by the Secretary that such areas are essential for the conservation of the species.” Neither the regulations nor the Act itself define “habitat.”

Until now, USFWS has applied the criteria from the definition of ‘‘critical habitat’’ and assumed that any area satisfying that definition was habitat. A recent Supreme Court decision held that an area must first be considered ‘‘habitat’’ in order for it to then meet the definition of ‘‘critical habitat’’ as defined by the Act. 

The new rule proposes to define “habitat” as “the physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.” 

The proposal also includes an alternative definition: “the physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.”

USFWS is soliciting comments on both proposed definitions. Comments are due by September 4 and can be submitted electronically (click on the blue comment button). 

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USFWS PRESS RELEASE

U.S. Fish and Wildlife Service and NOAA Fisheries Propose Regulatory Definition of Habitat Under Endangered Species Act: Changes would improve clarity around description of habitat, address Supreme Court ruling

July 31, 2020

Contact(s): Brian Hires, 703-358-2191, brian_hires@fws.gov

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have proposed a regulatory definition of the term “habitat” that would be used in the context of critical habitat designations under the Endangered Species Act (ESA). 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.

“Our proposed definition of habit is intended to add more consistency to how the Service designates critical habitat under ESA,” said Rob Wallace, Assistant Secretary for Fish and Wildlife and Parks. “Improving how we apply this important tool will result in better conservation outcomes and provide more transparency for countless stakeholders such as private landowners, industry, and states.”

“The Court’s ruling provides the Trump Administration and Secretary Bernhardt the opportunity to create a new definition that will help ensure that all areas considered for critical habitat first and foremost meet the definition of habitat. We are proposing these changes on behalf of improved conservation and transparency in our processes for designating critical habitat,” said Fish and Wildlife Service Director Aurelia Skipwith. “We value public input, especially on actions that directly impact our many stakeholders which range from industries to private landowners.”

Nearly three years ago, the Department of the Interior and the Department of Commerce began considering improvements to the regulations the federal government uses to implement the ESA to make them more efficient and effective. Last year, the Service finalized regulatory changes to section 4 of the ESA dealing with the listing, delisting and critical habitat, and to section 7 consultation processes. Today’s proposed definition of habitat will continue to improve implementation of the ESA and will address a 2018 Supreme Court ruling in a case regarding dusky gopher frog critical habitat (Weyerhaeuser Co. v U.S. FWS) that any area designated as critical habitat must also be habitat for the species.

The ESA defines critical habitat and establishes separate criteria depending on whether the area is within or outside the geographical area occupied by the species at the time of listing. It does not define the broader term “habitat,” however, and the Services have not previously defined this term in implementing regulations. Combined with last year’s regulatory reform, these actions will increase the clarity of the ESA, improve partnerships, stimulate more effective conservation on the ground, and improve consistency and predictability around critical habitat determinations.

"Protecting, conserving and recovering endangered and threatened marine species and their habitat is a collaborative effort among federal, state, tribal and local officials, as well as non-governmental organizations and private citizens. For more than 45 years, the Endangered Species Act has enabled this collaboration. As such, we encourage our partners and the public to submit comments on this proposed action,” said Chris Oliver, Assistant Administrator, NOAA Fisheries.

As defined in the proposed rule, habitat contains food, water, cover or space that a species depends upon to carry out one or more of its life processes. This broad definition includes both occupied and unoccupied critical habitat.

The proposed rule was sent to the Federal Register on July 31, 2020, and public comments will be accepted for 30 days upon its publication. The Service will post all comments on http://www.regulations.gov. This generally means the agency will post any personal information provided through the process. The Service is not able to accept email or faxes.

 

 

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