The U.S. Fish and Wildlife Service and the National Marine Fisheries Service are proposing to add a definition of “habitat” to the regulations that implement section 4 of the Endangered Species Act (ESA). The proposed definition – which would be used in the context of making critical habitat designations – comes following a recent U.S. Supreme Court decision that concluded “critical habitat” must first be habitat (Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018)) (see AGC article). The Act prohibits adverse modification to “critical habitat” of listed species but it currently does not define “habitat.” A definition of habitat may help developers and contractors identify and avoid those areas, which would better inform ESA consultations during the planning and permitting process for projects.
The Services request comment on a proposed definition of habitat and an alternative (emphasis added):
- Proposed: 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.
- Alternative: 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.
The August 5 proposal is online at https://www.govinfo.gov/content/pkg/FR-2020-08-05/pdf/2020-17002.pdf. Public comment may be submitted until September 4, 2020, at www.regulations.gov under Docket No. FWS-HQ-ES-2020-0047.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.