Under the Endangered Species Act (ESA), there are a number of key terms that shape the scope of species protection. These key terms, usually defined in the Act itself or through agency regulation, include terms such as “take,” “critical habitat,” and “harm or harass.” However, one fundamental term—“habitat”—has remained undefined. In response to the 2018 U.S. Supreme Court’s Weyerhaeuser decision, which highlighted this gap, it now appears that might change. On August 5, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (together, the Services) proposed a new regulation to shed light on the meaning of the term. Comments on the proposal are due September 4, 2020.

In Weyerhaeuser, the Supreme Court considered the propriety of the critical habitat designation for the dusky gopher frog and held that it is necessary to consider the meaning of “habitat” under the ESA before determining whether the designation of an area as “critical habitat” is appropriate. The rationale was simple: the Services must first have a clear understanding of a species’ habitat before designating any portion of it as critical to the species’ conservation. But the Court lamented that there is no definition of “habitat” in the ESA or its implementing regulations to guide that analysis. The Services’ proposed new rule aims to fix that.

Noting that species’ habitats include the food, water, cover, or space that individuals of a species depend upon to carry out one or more of their life processes, the Services explain that the definition ultimately must be broad enough to account for all such habitat attributes for the diverse array of species that the ESA covers. To combat the uncertainty surrounding the term, the Services are proposing two potential definitions for public consideration. The primary proposal would define “habitat” as “physical places that individuals of a species depend upon to carry out one or more life processes” and further clarify that habitat “includes areas with existing attributes that have the capacity to support individuals of the species” (emphasis added). The alternative proposal would define “habitat” as “the physical places that individuals of a species use to carry out one or more life processes” (emphasis added) and recognize that 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.”

Both proposed definitions contemplate that “habitat” for a species can include not only areas that are currently occupied by the species but also certain areas that are not occupied. The alternate definition is narrower in that it would exclude areas lacking the present capacity to support the species. The proposed rule also clarifies that it would be prospective only and would not trigger revisions to prior designated critical habitat.

The Services explained that the competing proposals aim to stimulate conversation and promote transparency in the process. Mission accomplished. As with every issue under the ESA, there has been no shortage of stakeholder opinions. Environmental groups, for example, immediately labeled both proposals insufficient, arguing that they do not account for climate change impacts on species habitats. Several industry groups naturally disagree and have already endorsed the narrower alternative definition. The Services are sure to have plenty of feedback from the conversation it started and will likely face litigation regardless of where it lands on a final rule.

Beveridge & Diamond’s Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project and product proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. For more information or to discuss strategies for efficiently navigating your project or product through the complex and overlapping federal resources regulatory programs, please contact the authors.