On July 31, 2020, the Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) released an advance copy of a proposed rule defining “habitat” under the Endangered Species Act (ESA). The proposed rule is expected to be published in the Federal Register this week, kicking off a 30-day public comment period.

This proposal is a direct result of the U.S. Supreme Court’s 2018 decision in Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361. In that case, the Fish and Wildlife Service’s designation of 1500 acres of land as critical habitat for the dusky gopher frog was challenged because the land was not occupied by the dusky gopher frog, and improvements to the land would be needed in order for it to become occupied. Critical habitat designations are required to be made within 12 months of a decision to list a species. Such designations are important because the ESA prohibits the adverse modification of critical habitat.

In Weyerhaeuser, the Supreme Court remanded the case to the Fifth Circuit (where it was later dismissed), noting that it must first be shown that the land is “habitat” before it can be designated as “critical habitat.” Notably, while “critical habitat” is defined by the ESA, “habitat” is not. Thus, according to Rob Wallace, Assistant Secretary for Fish and Wildlife and Parks with FWS, “Our proposed definition of habitat is intended to add more consistency to how the Service designates critical habitat under ESA.”

The proposed rule includes a definition of “habitat” that reads:

The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.

The Services have explicitly asked for comment on the italicized text. The proposed rule includes an alternative definition as well. Consistent with the ESA, under either definition, habitat can include land unoccupied by the species. However, both definitions the Services make clear that the land must be suitable for the species in its current condition, without any improvements needed.

The Services ask for comment as to whether the proposed and alternative definitions are sufficiently broad or narrow in scope, and whether there are other formulations of a definition that might be preferable to these two options. The Services also request comment on their determination that this proposal qualifies for a categorical exclusion from the National Environmental Policy Act.