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.

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Photo of Andrea Wortzel Andrea Wortzel

Andrea focuses her practice on water quantity and water quality issues, including water rights, water supply planning, and water withdrawal permitting, as well as discharge permitting and TMDL development and implementation. She coordinates a growing and influential stakeholder group focused on water supply…

Andrea focuses her practice on water quantity and water quality issues, including water rights, water supply planning, and water withdrawal permitting, as well as discharge permitting and TMDL development and implementation. She coordinates a growing and influential stakeholder group focused on water supply issues in the Commonwealth of Virginia. Beyond her water practice, Andrea advises clients on endangered species issues, landfill permitting and compliance, waste permitting, environmental compliance and audit programs and environmental enforcement defense. Andrea also regularly counsels clients on legislative and regulatory strategies to promote her clients’ objectives.

Photo of Morgan Gerard Morgan Gerard

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and…

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and modernizing the energy system. Morgan has counseled clients ranging from those engaging in the hydropower licensing and relicensing process to electric utilities, wholesale generators, and distributed energy manufacturers, including electric vehicle manufacturers, solar installers and energy storage providers. She also counsels clients on matters arising under the National Environmental Policy Act, the Federal Power Act, the Clean Air Act, the Clean Water Act, the Coastal Zone Management Act, the Endangered Species Act, and similar state and local regulatory schemes.

Photo of Viktoriia De Las Casas Viktoriia De Las Casas

Viktoriia is an environmental and natural resources attorney with experience in regulatory compliance, permitting, due diligence, enforcement, and litigation matters. She focuses her practice on advising clients on all aspects of compliance with the Endangered Species Act (ESA), the Bald and Golden Eagle…

Viktoriia is an environmental and natural resources attorney with experience in regulatory compliance, permitting, due diligence, enforcement, and litigation matters. She focuses her practice on advising clients on all aspects of compliance with the Endangered Species Act (ESA), the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA). Viktoriia works with real estate developers, wind, solar, and transmission line operators, and other businesses on wildlife issues that come up during federal and state permitting. In addition, Viktoriia is a member of the firm’s State Energy Regulation practice where she represents clients before the Virginia State Corporation Commission and Maryland Public Service Commission. Over the years Viktoriia has also developed proficiency in advising clients how to address environmental justice requirements that arise in permitting, litigation, and other contexts. She has also been assisting clients in developing company-wide strategies for compliance with various reporting obligations, for example, EPA’s TSCA PFAS reporting rule.