Gavel to Gavel: Habitat Definition Critical to Threatened, Endangered Species

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A new rule defining habitat could narrow the scope of land eligible for designation as critical habitat under the Endangered Species Act.

A key provision of the ESA is the designation of critical habitat. Listing a species as threatened or endangered requires the Secretary of the Interior to designate areas as that species’ critical habitat. Property designated as critical habitat is protected through ESA’s Section 7, which requires federal agencies to consult with the Secretary to “[e]nsure that any action authorized, funded, or carried out” by the agency is not likely to adversely affect critical habitat. This includes agencies issuing permits required for land development.

If the agency action would harm critical habitat, the agency must terminate the action, implement an alternative, or seek an exemption. Critical habitat is defined by the ESA as 1. Geographical areas that meet certain physical and biological criteria and are occupied by the species; and 2. Unoccupied areas that are determined to be essential for the conservation of the species by the Secretary.

Since its passage in 1973, ESA critical habitat determinations were made without a formal definition for “habitat.” However, in December 2020 the Department of the Interior and Department of Commerce finalized a rule defining habitat as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”(emphasis added).

Several challenges to this definition are already filed. Opponents claim this definition excludes lands that once were suitable for species but no longer are due to human impacts, even if those lands could be restored to meet the critical habitat criteria.

The agencies contend they are responding to a Supreme Court ruling, Weyerhaueser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018), which states that for land to be critical habitat it must be habitat.

The rule’s applicability was limited to purposes of critical habitat designation and to new designations or revisions of existing designations. The agencies also declined to adopt a formulaic test requiring an area be assessed as habitat before evaluating whether it is critical habitat.

This article first appeared in The Journal Record on April 14, 2021, and is reproduced with permission from the publisher.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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