ESA releases final habitat definition

The U.S. Fish and Wildlife Service and National Marine Fisheries Service have released the final definition of the term “habitat” under the Endangered Species Act.

Until now, neither the ESA nor its implementing regulations included a definition of the term, though it plays a key role in the conservation of threatened and endangered species.

According to the final rule, “for the purposes of designating critical habitat only, habitat is 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.”

The Wildlife Society submitted comments on the proposed definition, which was released in August. That definition was “the physical places that individuals of a species depend upon to carry out one or more life processes,” and included a second sentences indicating that “habitat includes areas with existing attributes that have the capacity to support individuals of the species.”

The ESA already included a definition for “critical habitat,” and, until recently, the USFWS assumed that any area satisfying that definition was regarded as “habitat.” However, a 2019 Supreme Court decision held that an area must first be identified as “habitat” in order for it to then meet the definition of “critical habitat” as defined by the act.

In its comments on the proposal, The Wildlife Society called the proposed definition “too narrow and lacking appropriate consideration of the diverse ecological and broader legal considerations that must be examined when defining habitat.”

In this week’s announcement, the Services note that the final definition of “habitat” is “broad enough to include both occupied areas and unoccupied areas, because the statute defines ‘critical habitat’ to include both occupied and unoccupied areas.” The definition was streamlined from the two-sentence proposed definition in an attempt to increase clarity. In addition, some words and phrases were replaced to eliminate ambiguity.

The new definition is effective as of Jan. 15. It will only apply to rule-making regarding critical habitat when a proposed rule is published after that date.

Read TWS’ Standing Position on Threatened and Endangered Species in the U.S. and Position Statement on the U.S. Endangered Species Act