On September 4, 2020, NRECA filed comments on the US Fish and Wildlife Service and the National Marine Fisheries Service proposed rule to add a definition of “habitat" for the purposes of designating “critical habitat" under Section 4 of the Endangered Species Act. The proposal addresses the Supreme Court's unanimous holding in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), that an area is eligible for designation as critical habitat only if the area is actually habitat for that species. Critical habitat designations can burden and delay electric co-op infrastructure projects that are necessary to assure the delivery of safe, affordable, and reliable service. Therefore, NRECA supported the Services efforts to define “habitat" to provide clarity and consistency when designating critical habitat. We offered the following recommendations and a revised “habitat" definition to further improve implementation and minimize unintended consequences:
- The definition should only be used to inform critical habitat designations and be designed to determine what is habitat in the first instance;
- Limit “habitat" to areas where necessary attributes presently exist at the time an area is designated as critical habitat; and
- Those necessary attributes should sufficiently support one or more species life processes and sustained survival.