Today, the Property and Environment Research Center (PERC) submitted a public comment to the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration regarding their proposal to add a definition of “habitat” to the regulations that implement the Endangered Species Act. Defining “habitat” will help clarify the proper limits of designating “critical habitat,” reducing conflicts over private land that benefit neither imperiled species nor landowners. As the Services note, defining habitat will also bring the regulations in line with the Supreme Court’s recent ruling in Weyerhaeuser v. Fish and Wildlife Service. The court ruled that an area must first be “habitat” before it can be considered as the narrower category of “critical habitat” as defined in the act.
As Weyerhaeuser demonstrates, critical habitat designations on private lands can penalize landowners, discouraging them from participating in conservation or recovery of listed species. The punitive regulatory approach benefits neither landowners nor imperiled species, many of which depend on private lands for habitat and rely on human intervention for conservation and recovery. Defining habitat can help avoid future conflicts with landowners and make imperiled species and their habitat less of a liability for private citizens.