The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have proposed a regulatory definition of the term “habitat” that would be used in the context of critical habitat designations under the Endangered Species Act (ESA). The proposed definition is part of the efforts of the Trump Administration to balance effective, science-based conservation with common-sense policy designed to bring the ESA into the 21st century.

“Our proposed definition of habit is intended to add more consistency to how the Service designates critical habitat under ESA,” said Rob Wallace, Assistant Secretary for Fish and Wildlife and Parks. “Improving how we apply this important tool will result in better conservation outcomes and provide more transparency for countless stakeholders such as private landowners, industry, and states.”

“The Court’s ruling provides the Trump Administration and Secretary Bernhardt the opportunity to create a new definition that will help ensure that all areas considered for critical habitat first and foremost meet the definition of habitat. We are proposing these changes on behalf of improved conservation and transparency in our processes for designating critical habitat,” said Fish and Wildlife Service Director Aurelia Skipwith. “We value public input, especially on actions that directly impact our many stakeholders which range from industries to private landowners.”

Nearly three years ago, the Department of the Interior and the Department of Commerce began considering improvements to the regulations the federal government uses to implement the ESA to make them more efficient and effective. Last year, the Service finalized regulatory changes to section 4 of the ESA dealing with the listing, delisting and critical habitat, and to section 7 consultation processes. Today’s proposed definition of habitat will continue to improve implementation of the ESA and will address a 2018 Supreme Court ruling in a case regarding dusky gopher frog critical habitat (Weyerhaeuser Co. v U.S. FWS) that any area designated as critical habitat must also be habitat for the species.

The ESA defines critical habitat and establishes separate criteria depending on whether the area is within or outside the geographical area occupied by the species at the time of listing. It does not define the broader term “habitat,” however, and the Services have not previously defined this term in implementing regulations. Combined with last year’s regulatory reform, these actions will increase the clarity of the ESA, improve partnerships, stimulate more effective conservation on the ground, and improve consistency and predictability around critical habitat determinations.

“Protecting, conserving and recovering endangered and threatened marine species and their habitat is a collaborative effort among federal, state, tribal and local officials, as well as non-governmental organizations and private citizens. For more than 45 years, the Endangered Species Act has enabled this collaboration. As such, we encourage our partners and the public to submit comments on this proposed action,” said Chris Oliver, Assistant Administrator, NOAA Fisheries. 

As defined in the proposed rule, habitat contains food, water, cover or space that a species depends upon to carry out one or more of its life processes. This broad definition includes both occupied and unoccupied critical habitat. 

The proposed rule was sent to the Federal Register on July 31, 2020, and public comments will be accepted for 30 days upon its publication. The Service will post all comments on http://www.regulations.gov. This generally means the agency will post any personal information provided through the process. The Service is not able to accept email or faxes.