ferret

A new proposal would change the considerations for what constitutes critical habitat. Pictured here, a black-footed ferret, which is currently listed on the endangered species list. Photo by Elisa Dahlberg / USFWS.

A 2018 Supreme Court decision on the critical habitat for the dusky gopher frog prompted the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries to adopt and finalize a new definition of “habitat.”

Under the new regulation, “habitat” is defined as follows: “For the purposes of designating critical habitat only, 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.”

As explained in the preamble to the regulation published in the Federal Register, abiotic means “derived from nonliving sources such as soil, water, temperature, or physical processes,” whereas biotic means “derived from living sources such as a plant community type or prey species.”

Rob Wallace, assistant secretary for Fish and Wildlife and Parks, said in a statement the action would bring “clarity and consistency” to how the USFWS designates critical habitat, stating it will make the Endangered Species Act (ESA) “more effective” at conserving wildlife.

“Given that this will improve implementation of the ESA and how stakeholders engage with it, we are very happy to announce this final definition of habitat,” USFWS Director Aurelia Skipwith said in a statement.

USFWS, in their decision, stated the use of the phrases “resources and conditions,” “necessary to support,” and “currently or periodically contains,” to the definition of “habitat” was intended to include ephemeral habitats.

According to the Federal Register, no current critical habitat designations will be reevaluated as a result of the definition, stating, “any conception of ‘habitat’ in this context be broad enough to include currently unoccupied areas that nonetheless meet the definition of ‘critical habitat.’”

Environmentalists were unhappy with the Trump Administration’s announcement, stating it weakens the ESA and guts wildlife protections before leaving office.

“This administration is leaving office with a scorched earth policy for wildlife,” Addie Haughey, legislative director for lands, wildlife, and oceans at Earthjustice, said in a statement. “The Trump administration finalized this rule just under the wire to make it harder for species to survive and recover—the exact opposite of what we should be doing under the Endangered Species Act.”

The final decision comes after soliciting comments on two alternatives proposed earlier after the 2018 Supreme Court’s decision in Weyerhauser v. USFWS. The court ruled the ESA does not provide a “baseline definition” of habitat after the agency included 1,500 acres in southern Louisiana as habitat for the dusky gopher frog.

Weyerhauser lawyers argued the frog is currently only found in ephemeral ponds in Mississippi. While it was once the frog’s habitat, it would require restoring the land and relocating the frogs.

The new rule will take effect on Jan. 15, 2021. — Charles Wallace, WLJ editor

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