As discussion rages about updates to the Endangered Species Act, one of the proposed reforms includes defining habitat as it pertains to species recovery, and what and how much of proposed and protected critical habitat should be included in recovery plans.
The US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) have proposed a definition of habitat that would be used to determine critical habitat designations under the Endangered Species Act (ESA). The proposal will more specifically and consistently define critical habitat under the ESA and establish a formal definition of habitat for the first time. This follows a pattern from the Trump Administration to effectively align science and conservation to most appropriately manage threatened wildlife and their actual habitats.
In 2018, the Supreme Court ruled that for an area to be designated critical habitat, it must also be habitat for the specified species (Weyerhaeuser Co. v U.S. FWS), cementing the need for a definition of habitat. This case was brought in response to the FWS designating 1,500 acres of land in Louisiana as critical habitat for the dusky gopher frog, even though the frog did not inhabit that area and modifications to the land would be necessary before the frog could move into and inhabit the land. Prior to the court’s ruling, the potential habitat designation for the dusky gopher frog was negatively impacting property owners and developers, and set a dangerous precedent for the management of habitats and the species that occupy them.
Currently, 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 service has not previously defined this term when implementing regulations. The definition will increase the clarity of the ESA, and make the relationship between state agencies and the FWS more effective in conservation and management of threatened species. The proposed definition prevents the FWS from designating unoccupied and unsuitable land as critical habitat by allowing only land that is suitable for the species at the time of listing to be included as “habitat.”
The new definition may impact access to public lands and the listing/delisting process for endangered species. The grizzly bear may benefit from this definition by narrowing the land considered habitat. For example, if land that is unoccupied by the grizzly is being used for ranching or other agricultural purposes, it may be deemed as unsuitable and therefore left out of any habitat designations. This would preserve ranchers’ access to land while also allowing for grizzly conservation on other lands currently available to the species.
“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.”
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