Interior Department to propose a definition of “habitat”

A proposed definition for the term “habitat” under the Endangered Species Act, which until now has been undefined in law or regulation, is currently under internal interagency review, the White House’s Office of Information and Regulatory Affairs announced last week.

Neither the Endangered Species Act nor its implementing regulations currently include a definition for the term, although it plays a key role in conservation of threatened and endangered species.

During regulatory changes to ESA implementation finalized last year, Department of the Interior officials indicated that a definition for habitat was forthcoming. In addition, a recent lawsuit highlighted the need for this key term to be defined.

In 2018, the U.S. Supreme Court considered a case in which the administration and private property owners disagreed over the designation of “habitat” for an endangered frog. Private landowners, who owned land designated by the U.S. Fish and Wildlife Service as critical habitat — or habitat essential to the conservation of the species — sued in 2013, arguing that their land should not have been designated as “critical habitat” for the dusky gopher frog (Lithobates sevosus) since it did not support any gopher frogs at the time and did not currently present conditions that would define “habitat” for the species.

The federal district court upheld the government’s action, as did the appeals court, declining to overturn the Service’s designation. In Oct. 2018, the U.S. Supreme Court heard the case but did not issue a decision on the definition of “habitat.” Instead, they sent the case back to the lower court for reconsideration of the definition of “habitat” under the ESA. While this review was pending, however, the parties signed a consent decree, resolving the dispute and ending the litigation — and leaving the definition of habitat unresolved by the courts.

In the final rule codifying the administration’s changes to ESA rules in late 2019, the agencies issuing the rule referenced the ongoing debate. “The final rule has been modified in response to the [court] decision to make clear that unoccupied habitat must be ‘habitat,’ by requiring reasonable certainty that at least one physical or biological feature essential to the conservation of the species is present,” said the rule. “While the [agencies] are considering further clarification of the meaning of habitat through separate rulemaking, we find that the [agencies’] and public’s interests are served by clarifying the existing regulatory framework in this final rule without delay.”

A symposium at The Wildlife Society and American Fisheries Society 2019 Joint Annual Conference in Reno, Nevada examined the concept and use of the term “habitat” in scientific literature, exploring both the challenges and opportunities it presents to wildlifers.

Once the proposed rule is released, it will be open for public comment.

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