The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have proposed a new regulation that will redefine “habitat” and weaken protections for imperiled species listed under the Endangered Species Act (ESA).
The proposed rule 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 new definition is consistent with industry recommendations but is inadequate for species conservation. In the age of climate change, additional habitat areas may need to be protected to allow for species adaptation and migration.
Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, issued the following statement:
“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. Restricting habitat to areas with existing attributes a species needs would exclude areas that would be suitable with minimal restoration or those areas that may be needed to recover species in the age of climate change.”
- Recognizing that endangered species depend on needed and available habitat for survival and recovery, the ESA protects their “critical habitat” from destruction or adverse modification. In November 2018, the U.S. Supreme Court held that an area may be designated as critical habitat only if the area is habitat for the relevant threatened or endangered species. The FWS’ proposed rule would define the term “habitat.”
- In July 2020, Environmental Law Reporter published a paper by Defenders of Wildlife entitled, “Defining habitat to promote conservation under the ESA.” This paper provided scientific, policy and legal analyses and proposed a definition of “habitat” that is consistent with the intent of the ESA, reflects the best available science, is operationally workable, and also broad enough to account for species’ needs.
- On August 12, 2019, the Trump administration finalized new Endangered Species Act regulations that undermined the conservation of threatened and endangered species. These regulations eliminated key protections for threatened species, weakened bedrock consultation requirements, opened the door to burdensome and inappropriate cost-benefit analyses that risk politicizing the ESA’s science-based listing process, and much more. More than 800,000 public comments opposed its proposal to weaken implementation of the ESA.
- The new proposed rule defines “habitat” in a manner that may limit the ability of FWS and NOAA to protect areas that species will require in the foreseeable future to survive and recover.