Hogan Lovells Publications | 12 August 2020

Proposed rule defines "habitat" under the Endangered Species Act

On 5 August 2020, the U.S. Fish and Wildlife Service (FWS) along with the National Marine Fisheries Service (NMFS) published a proposed rule to define "habitat" for purposes of the Endangered Species Act (ESA).

The ESA prohibits federally-authorized or funded activities to destroy or harm the critical habitat of endangered or threatened species. To date, the FWS has not defined the term "habitat" even though the ESA generally requires the identification of "critical habitat" when a species is listed. FWS may exclude land from its characterization of "critical habitat" only when "the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless ... [it is determined] ... that the failure to designate such an area as critical habitat will result in the extinction of the species concerned." 16 U.S.C. § 1533 (b)(2).

Read More: Proposed rule defines "habitat" under the Endangered Species Act

Download PDF Back To Listing