Is the Proposed Definition of “Habitat” Critical for Endangered Species?

Weyerhaeuser Co. v. U.S. Fish & Wildlife Service

The impetus for the proposed rule was a 2018 U.S. Supreme Court ruling involving the dusky gopher frog—a species listed by the FWS as an endangered species under the ESA in 2001. After the dusky gopher frog was listed, the FWS was required to designate its “critical habitat,” and the FWS proposed to include a site in St. Tammany Parish, Louisiana that was a commercial timber plantation.  No frogs had been observed there for decades; however, the FWS contended that the combination of the site’s rare breeding ponds and proximity to existing frog populations made the site particularly crucial for conservation of the species.

The economic impact assessment for the critical habitat designation revealed that the owners of the site could be deprived of up to $34 million due to potential bars on future development of the site. The landowner argued that because the site is a closed-canopy timber plantation, it could not be a critical habitat for the dusky gopher frog because the frog lives in and depends upon open-canopy forests. In other words, the landowner argued that an area is not a “habitat” for a species if it must be modified, i.e., converted to an open canopy forest, to support that species.

The Supreme Court held that an “area is eligible for designation as critical habitat under [16 U.S.C. § 1533(a)(3)(A)(i)] only if it is a habitat for the species,” reasoning that “critical” habitat is a subset of the broader, currently undefined term, “habitat.”  The Court remanded the case to the Fifth Circuit to interpret the meaning of the term. Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 363 (2018) (emphasis added).

Proposed Definitions of “Habitat”

After the Supreme Court noted the lack of a “habitat” definition in the ESA, and the necessity of an area qualifying as such for it to be designated as critical habitat, the FWS and NMFS proposed two potential definitions in its rulemaking to be added to the ESA’s regulations implementing their joint listing and critical habitat designation authority at 50 C.F.R., section 424.02.

The primary proposal defines “habitat” as “physical places that individuals of a species depend upon” to carry out life processes. (85 Fed. Reg. 47,333-47,337 (Aug. 5, 2020)). This definition adds that “habitat” includes areas with existing attributes that have the capacity to support the species.

Alternatively, the agencies propose to define “habitat” as the physical places that species use to carry out life processes. This alternative includes areas where a species does not currently exist, but which have “the capacity to support such individuals, only where the necessary attributes to support the species presently exist”. (emphasis added).

In effect, the alternative definition echoes the Weyerhaeuser landowner’s arguments to the Supreme Court, which acknowledged that the disputed, unoccupied area currently possessed some features necessary to support the dusky gopher frog but would require modifications adding other critical features to make the area a viable habitat.

Due to the Supreme Court’s ruling that a “critical habitat” under the ESA must first be a “habitat,” the proposed definitions will effectively limit the scope of what may be considered a “critical habitat.” “Critical habitat” under the Act is defined as (1) areas occupied by an endangered or threatened species that contain “physical or biological features . . . essential to the conservation of the species and . . . which may require special management considerations or protection,” and (2) areas not occupied by the species at the time it is listed but determined by the FWS to be “essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A). The proposed definition of “habitat” would limit the second category of “critical habitat”, i.e., unoccupied habitat, to include only those areas with presently existing attributes essential for the species’ conservation.  In other words, under either of the proposed definitions of habitat, an area, even if not currently being used, would have to be useful to the species in order to be designated as critical habitat.

Tension Between Environmental Advocates and the Regulated Community

The ESA—enacted during the Nixon administration—has garnered bipartisan support for over four decades and has resulted in the recovery as a result of the reversal and mitigation of threats to some important species, including the bald eagle, California condor, American crocodile, whooping crane, and black-footed ferret. However, the regulatory burden the ESA imposes on private landowners has also been controversial.  Stakeholders in industry and agriculture have expressed concern that the ESA is often applied too aggressively, unreasonably limits their ability to develop and manage property, and can block or delay important projects in situations that are not properly regulated under the ESA.  Meanwhile, environmental advocacy organizations continue court challenges to the current administration’s previous revisions to ESA regulations—such as establishing “take” protections for threatened species on a case-by-case basis.

Measures to streamline and narrow the ESA are generally seen as protective of industry and private landowners. Environmental advocacy groups argue that efforts to narrowly define the term “habitat” to encompass only places with “present” or “existing” attributes to support endangered species detract from the original conservation goals of the Act. The proposed definition will likely fuel stakeholders’ fears, cited in comments on the Services’ 2019 critical habitat rule, that the agencies’ ability to protect species that must relocate because of climate change related habitat loss is being eroded. (See Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat, Final Rule, 84 Fed. Reg. 45,020, 45,043-45 (Aug. 27, 2019). Critics characterize the changes as rollbacks of the ESA that are occurring during a biodiversity crisis and climate change impacts, the concern being that certain endangered species are threatened by sea level rise or loss of biodiversity, which will naturally result in the forced migration of these species and increase the need to restore or preserve places that may not currently be a species’ habitat but could be crucial to that species’ survival in the future.  Supporters of the proposed rule may argue that such changes are consistent with, and required by, the Supreme Court’s Weyerhaeuser decision.  Further, as applied in the regulatory contex, e.g., FWS and NMFS consultations on issuance of federal permits issued to private landowners under ESA Section 7, supporters may argue that the proposed definitions are more in line with the regulatory burdens that government may properly impose on private landowners in relation to the ESA’s goals of recovering listed species.

The FWS described the Supreme Court’s 2018 dusky gopher frog ruling as an “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.” In addition to requesting comment on the definitions as applied for this purpose, the Services invited comment on any implications for the application of the proposed definitions of “habitat” as it is used in other provisions of the ESA. That invitation will no doubt be accepted by many commenters.

The federal government’s proposal to implement the Weyerhaeuser decision in this fashion raises the questions whether it will also place greater emphasis on non-regulatory conservation efforts and whether the states will respond by fortifying their wildlife management programs to make them more protective and developing additional mechanisms to collaborate with landowners and offer incentives to engage in conservation efforts.

The comment period on the proposed definitions closes on September 4, 2020.