13 August 2020

U.S. Fish and Wildlife Service and National Marine Fisheries Service Propose Definition for “Habitat”

On August 5, 2020, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively the Services) published a proposed rule to define “habitat” as that term is used in the context of critical habitat designations under the Endangered Species Act (ESA) of 1973. One of the tools under the ESA to conserve listed species is the designation of critical habitat to identify areas that are essential to a species’ recovery. While the Act defines “critical habitat,” the Services did not previously define the broader term “habitat.” The Services note that the proposed definition is unlikely to create a new procedural step prior to designating a critical habitat. Furthermore, the definition would not result in reevaluation of existing critical habitat designations. The Services propose two possible definitions for “habitat” and solicit public comments on the definitions until September 4, 2020. While the definitions are broad, both restrict a species’ habitat to those areas that have existing attributes to support individuals of the species. If finalized, either definition would prevent a critical habitat designation from expanding beyond the area a species actually depends on for survival. In public statements in response, environmental nongovernmental organizations have raised objections to the proposal arguing that by relying on existing attributes of an area, the proposed definitions do not account for fluctuations from climate change.