Interior Finalizes Habitat Definition, Further Undermines the Endangered Species Act

The U.S. Fish and Wildlife Service finalized a rule today that defines habitat under the Endangered Species Act and allows the government to deny critical habitat protections for endangered plants and animals—a change that could open lands and waterways to more energy development and other activities.
 
“This is yet another blow to endangered species from an administration that subscribes to a ‘death by a thousand cuts’ approach to bedrock wildlife laws,” said Jamie Rappaport Clark, Former president and CEO of Defenders of Wildlife. “This clearly favors developers and industry, making it easier for the most vulnerable wildlife to slip through the cracks.”
 
Under the Endangered Species Act (ESA), once an imperiled species is listed as threatened or endangered, federal officials are generally required to designate critical habitat—areas essential to the species’ conservation and recovery. However, the new definition of “habitat” limits what areas the government could even designate as critical habitat in the first place. Under the new rule, areas can only be considered habitat if they can currently support the species. That means that critically important areas that could support the species through restoration or natural changes in the environment due to climate change or other processes cannot even be considered for a critical habitat designation—no matter how important they are to prevent extinction.

Clark said, “The new definition contradicts the purpose of the Endangered Species Act and conflicts with the purpose of critical habitat to conserve species into the future. In the midst of a global extinction crisis, we will ask the Biden administration to right this wrong.”

Earlier this year, Defenders of Wildlife published a paper in the Environmental Law Reporter that sets the context and justification for the definition of habitat that draws on both science and policy research: 

“Habitat is the area or type of site where a species naturally occurs or that it depends on directly or indirectly to carry out its life processes, or where a species formerly occurred or has the potential to occur and carry out its life processes in the foreseeable future,” the definition states.
This definition is consistent with the ESA’s conservation purpose because it allows for factors such as restoration and climate change and recognizes that a species’ habitat needs must be considered for the foreseeable future. Both the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration’s Fisheries Service need to adopt a definition that meets these criteria.

The purpose of the Endangered Species Act is to conserve endangered and threatened species and their ecosystems. This change will make it harder to do that by first limiting what could even be considered habitat in the first place, then making it easier to exclude what remains from critical habitat protections.