The U.S. Fish and Wildlife Service (FWS), the component of the United States Department of the Interior that administers the Endangered Species Act, proposes to issue a new regulation to define “habitat” for purposes of determining what “critical habitat” should be maintained for protection of an endangered species.  Comments on the proposed rule must be received by FWS no later than 11:59PM Eastern Time on September 4, 2020, in order to be considered.

Summary of the Proposed New Rule:

The new regulation proposed by FWS would define the “habitat” of a species (as used in the context of making designations of “critical habitat” for endangered species under the Endangered Species Act ) as follows: “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 Notice of Proposed Rulemaking also solicits comments on an “alternative” definition that would read, instead, as follows: “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.”  It is important to note that neither definition would define a species’ “habitat” to include areas that would require some degree of restoration or alteration in order to support a species’ life processes; and that exclusion is the primary source of controversy respecting the proposed new rule.

Background and Other Basics:
  • The Endangered Species Act (ESA or “the Act”) provides no definition of the term “habitat.”
  • The Act does, however, define “critical habitat” of a species as: (i) The specific areas within the geographical area occupied by the species, at the time it is listed [as endangered under the ESA], 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 [as endangered under the ESA], upon a determination by the [Secretary of the Interior or the Secretary’s designee] that such areas are essential for the conservation of the species.
  • When the U.S. Fish and Wildlife Service proposes an animal or plant for listing as endangered or threatened under the ESA, it is required to identify and designate the species’ critical habitat, when doing so is both “prudent and determinable.”
  • A critical habitat designation helps to protect areas — occupied and unoccupied by a species — necessary to conserve the species; but designating areas as critical habitat does not establish a refuge or sanctuary. Rather, it requires federal agencies to consult with the FWS if their actions may “destroy or adversely modify” critical habitat for listed species. Designations affect only federal agency actions or federally funded or permitted activities.
  • Critical habitat designation is designed to protect the essential physical and biological features of a landscape and essential areas in the appropriate quantity and spatial arrangement that a species needs to survive and reproduce and ultimately be conserved.
  • In a 2018 decision involving critical habitat designation for an endangered type of frog, the Supreme Court held that an area designated as “critical habitat” for a species must also be part of the “habitat” of that species, and noted that neither statutory nor regulatory law existing at the time provided a definition of “habitat.”
  • The regulation now proposed by FWS would fill that gap by expressly defining habitat, but in a manner that would seem to narrow the scope of what could be designated as “critical habitat” for a species under current law.
  • The second part of the statutory definition of “critical habitat” — that is, “specific areas outside the geographical area occupied by the species at the time it is listed” as endangered that are determined “essential for the conservation of the species” — could be read to encompass an area that might not be able to support a species’ life processes in its current state, but could do so with a degree of environmental restoration or improvement.
  • Under the proposed new rule, however, the need for restorative measures to enable an area to support an endangered species would eliminate it from the definition of “habitat,” and as a result would also render the area ineligible for designation as a “critical habitat.”
  • Opponents of the proposed new regulatory definition of “habitat” point out that this limitation could severely restrict, or render impossible altogether, affording endangered species the protection of a critical habitat where climate change, environmental disasters, or other factors have destroyed or significantly degraded features of areas where a species has, or might have, lived and thrived. 
Additional Information and Resources:

You may wish to read the full Notice of Proposed Rulemaking, in order to gain a more comprehensive understanding of the FWS proposal. As that Notice explains, the proposal to define “habitat” by regulation is directly responsive to the Supreme Court’s Opinion in the case of Weyerhaeuser Co. v. U.S. Fish and Wildlife ServiceIn that legal challenge to an FWS critical habitat designation, the Court held that an area is eligible for designation as critical habitat only if it is habitat for the species, and remanded the case back to a lower court to consider whether the FWS critical habitat designation at issue had conflicted with this point of logic.  In light of this decision, it would certainly seem that some clarification of the meaning of “habitat” is in order. (On remand of the Weyerhaeuser case by the Supreme Court, the Fifth Circuit Court of Appeals did not clarify the meaning of the term, but dismissed the case.) The controversial question is whether the definitions proposed and suggested by FWS are too narrow to facilitate adequate protection of endangered species.

A good explanation of this controversy and the position of conservation advocates that oppose the new rule has been published in The Hill.  A good and concise explanation of grounds for opposition to the FWS proposal can also be found in comments of the Oceana organization in response to the Agency’s Notice of Proposed Rulemaking.  In formulating your views, you may also find it helpful to read explanations of the FWS proposal that appear on the law firm websites of Troutman Pepper and of Beveridge & Diamond, as well as an article stating opposition to the proposal that appears on the website of The National Wildlife Federation.

If You Are Ready to Comment on the Proposed Regulation:

If you are ready to comment on FWS’ proposed regulation defining “habitat” for purposes of fulfilling the Agency’s responsibilities under the Endangered Species Act, the easiest means of doing so is to go to the Comment Page for this topic on the Government’s eRulemaking website, type your comment into the space provided for that purpose, and submit your comment as instructed on that site.

Alternatively, you can submit your comments in hard-copy, letter form mailed to: Public Comments Processing, Attn: FWS-HQ-ES-2020-0047; U.S. Fish & Wildlife Service, MS: PRB(3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803.

In order to be considered by the FWS, all comments must be received by that Agency no later than 11:59 PM Eastern Time on September 4, 2020.