June 01, 2019

What Is Habitat?

J.B. Ruhl

The Endangered Species Act (ESA, the Act) establishes several related programs for protecting species that the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) have identified as threatened or endangered. One of the more controversial of these is known as “critical habitat.” Section 4 of the ESA requires FWS and NMFS to designate “critical habitat” for such species, defined to include areas occupied by the species that are “essential to the conservation of the species” and “specific areas outside the geographical area occupied by the species at the time it is listed . . . , upon a determination by the Secretary that such areas are essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A). Section 7 of the Act establishes an “interagency cooperation” program under which federal agencies must ensure, by consulting with FWS and NMFS, that actions they carry out, fund, or authorize do not “result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” 16 U.S.C. § 1536(a)(2).

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