Weiland on Critical Habitat and Proposed ESA Rule

Weiland on Critical Habitat and Proposed ESA Rule


I always find the many complexities and permutations of ESA to be confusing, and I’m always appreciative of Jon helping me out. And various definitions of critical habitat have been the source of controversy for forests in the Pacific Northwest.

I ran across this piece by Paul Weiland in a law firm’s newsletter that seems to be relatively clear.

His argument is generally:

This shift away from an explicit definition of habitat that provides for transparency and consistency in agency decisions is contrary to sound public policy, will erode faith in government decision-making, and is unlikely to lead to improved conservation outcomes for species protected under the Act.


In the absence of a definition of the term habitat prior to December 2020, there was substantial controversy and confusion regarding the scope of the federal government’s authority to designate critical habitat.  This came to a head in a case ultimately decided by the U.S. Supreme Court in 2018 regarding the designation of critical habitat for the dusky gopher frog in the American southeast.  In its decision, the Court clarified that “’critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.” In other words, as a threshold matter, an area must be habitat before the federal government can consider whether to designate it as critical habitat.


That begged the question, what is habitat for species that are protected under the ESA and led the government down the path to the definition promulgated just a year ago.  For the purposes of designating of critical habitat, the federal wildlife agencies then defined habitat as “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 agencies considered adopting a definition drawn from the literature in the field of ecology, but ultimately decided that in that field there was no settled definition of the concept. That may seem nonsensical on its face. One might fairly presume that researchers and practitioners in wildlife and fish biology work from a common definition of the foundational term habitat, but it’s not so. In fact, an article on the subject 25 years ago by Hall and colleagues surveyed the literature on habitat and found that the term is used in a manner that is vague and imprecise in most cases, and where imperiled species are involved references to habitat can be dangerously unclear or incorrect.


Despite this and the routine misuse of the term “habitat” in agency determinations and implementation of conservation actions under the Act, there are certain elements of the definition of habitat on which there is broad agreement in the scientific community.


  • Habitat is a species-specific concept. Each species has its own habitat, which may overlap in space and time with habitats of other species.
  • Habitat is composed of both (i) a combination of abiotic (physical) and biotic (living) components and (ii) ecological processes.
  • Habitat must be capable of supporting a species during one or more of its life stages. It must be habitable, though it need not be occupied at all times and may in fact be unoccupied for extended periods of time.

Each of those three elements of habitat are incorporated into the present definition that ostensibly guides the federal wildlife agencies.


In the proposed rule seeking to rescind but not replace the definition of habitat, the federal wildlife agencies offer the first and principal rationale that the definition could constrain the ability of the federal wildlife agencies to designate landscape areas as critical habitat — specifically, where such landscape areas do not currently or intermittently contain the resources and conditions necessary to support one or more life processes of a species.


The agencies reason that certain geographic areas should be considered habitat because even though they do not currently accommodate the resources and conditions necessary to support one or more life processes of a species, they could do so at some point in the future, either as a consequence of natural processes or human intervention. The problem with that reasoning is that it is directly at odds with the third element identified above — an area must be habitable to be habitat. The concept of habitat loses its meaning if it extends to any area that may at some point be habitat as a consequence of natural processes or human intervention.

Maybe someone can explain.. it doesn’t sound like the new regulation fits with the Supreme Court decision.. what nuance am I missing?
It also seems that with climate change, you could potentially say that everything north or at higher elevation of current habitat, could be future habitat because of climate change,as Weiland points out. He also discusses the utility of defining habitat versus not defining habitat.

The reality is that under the previous administration the federal wildlife agencies saw value in defining habitat for the purpose of designating critical habitat, because it would provide guidance to decision-makers and resource managers, promote the uniform application of the law, and reduce regulatory uncertainties. In contrast, under the current administration the federal wildlife agencies see value in the absence of a definition of habitat for the purpose of designating critical habitat, because it would provide discretion to agency regions, offices, and staff. That would potentially allow extraordinarily broad geographic areas to be characterized as habitat for listed species, thereby expanding regulatory authority. While some may see greater value in the latter set of goals than the former, the new rule undermines sound public policy both because it will reduce transparency in government decision-making and because it will result in inconsistent application of the law. It is not possible to make a credible argument that the current proposal is more in line with science and the scientific literature regarding habitat than the existing rule.


via The Smokey Wire : National Forest News and Views https://ift.tt/2IwCxTZ

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