FWS Seeks Comments on Proposed Habitat Definition(s) Under Endangered Species Act

Good morning  –

This morning, the U.S. Fish and Wildlife Service (FWS), in coordination with the National Marine Fisheries Service (NMFS), issued a proposed rule which seeks to establish a definition of “habitat” under the Endangered Species Act (ESA). The proposed rule is the first of two expected rulemakings related to the way “habitat” and “critical habitat” are assessed and designated under the ESA. The proposed rule was prompted in part by the Supreme Court’s 2018 decision in Weyerhauser Co. v. U.S. FWS that established that any area designated as critical habitat must actually be habitat for the species. While the ESA already defines “critical habitat”, it does not do so for “habitat”.

Collectively, FWS and NFMS implement the ESA, although the missions for the agencies are sometimes disparate. Accordingly, the proposed rule contains two possible definitions of “habitat”:

  1. 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.

OR

  1. 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.

Although the possible definitions are quite similar, there are a few key areas for which the FWS and NMFS are soliciting comment:

  1. Whether “use” (Definition 1) or “depend upon” (Definition 2) is preferable to describe the relationship between a species and habitat, and

  2. Whether the second sentence of Definition 2 is appropriate for the definition of habitat, since it would include ecosystems that could at some time, under certain conditions support the species in question, and

  3. Whether either definition is too broad, narrow, or lacks key components.

The proposed rule is an opportunity to comment both on the proposed definitions but also the way a definition will be applied during the ESA process. While designating critical habitat is itself a distinct process under the ESA, the assessment of ecosystems that are generally “habitat” should not create another layer of regulatory burden.

Today begins a 30-day comment period, which will elapse on September 4, 2020. Should you have questions or need additional information in the development of your respective comments, please do not hesitate to contact me (kglover@beef.org).

Best,

Kaitlynn

Kaitlynn Glover Executive Director, Public Lands Council & NCBA Natural Resources 

Center for Public Policy The Pennsylvania Building 

1275 Pennsylvania Ave, NW Suite 801  Washington, DC  20004-1701 PH: 202.879.9128 | kglover@beef.org

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