The Fish and Wildlife Service and National Marine Fisheries Service are proposing to define “habitat” in the Endangered Species Act for the first time, in response to a 2018 Supreme Court decision.
As it is now written, the ESA includes a definition of “critical habitat,” which area areas designated by the wildlife agencies to aid in threatened or endangered species conservation. But it contains no definition of habitat.
In its 2018 decision involving the dusky gopher frog in Mississippi, the Supreme Court said “an area is eligible for designation as critical habitat … only if it is habitat for the species.”
The 34-word FWS/NMFS proposed definition reads 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.”
Environmental groups were critical. Defenders of Wildlife said the proposal defines habitat “in a way that may exclude important areas needed by a species for reproduction, survival and recovery. In particular, the proposed rule largely precludes protection for degraded or emerging areas that species may require in the future.”
“The proposed definition is inadequate to meet the intent of the Endangered Species Act, which recognizes that areas beyond those that are currently occupied may need to be protected to recover species,” Defenders President Jamie Rappaport Clark said.
The proposal says the suggested definition “is written so as to include unoccupied habitat, whereas many of the definitions in the ecological literature that we reviewed did not appear to consider unoccupied areas.”
“The definition of ‘habitat’ we propose is broad enough to include both occupied critical habitat and unoccupied critical habitat, because the statute defines ‘critical habitat’ to include both occupied and unoccupied areas,” the agencies said.
The National Cattlemen’s Beef Association praised the proposal, with Kaitlynn Glover, NCBA executive director of natural resources and Public Lands Council executive director, saying, "By clarifying the definition of habitat, species conservation will improve and we will avoid long, drawn-out, speculative analyses that delay important conservation work for imperiled species. We welcome this addition to ESA as it removes an unnecessary burden from livestock producers who are looking to act as responsible stewards and make improvements to rangeland."
Wyoming Sen. John Barrasso also applauded the proposal, which builds on a rule issued in September that tightening the standard for designation of unoccupied habitat, thus “preventing the services from designating unoccupied habitat as critical habitat unless the occupied habitat was inadequate to conserve the species,” his press release said.
In the proposal, the services also floated 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.”
In particular, they asked for comment on the second sentence of the alternative definition.
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“Though it is similar to the second sentence of the proposed definition, it expressly limits unoccupied habitat for a species to areas 'where the necessary attributes to support the species presently exist,' and explicitly excludes areas that have no present capacity to support individuals of the species," FWS and NMFS said.
"We invite comment on whether either definition is too broad or too narrow or is otherwise proper or improper, and on whether other formulations of a definition of 'habitat' would be preferable to either of the two definitions, including formulations that incorporate various aspects of these two definitions.”
The proposal has been sent to the Federal Register for publication. It includes a 30-day comment period.
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