Weiland on Critical Habitat and Proposed ESA Rule

I always find the many complexities and permutations of ESA to be confusing, and I’m always appreciative of Jon helping me out. And various definitions of critical habitat have been the source of controversy for forests in the Pacific Northwest.

I ran across this piece by Paul Weiland in a law firm’s newsletter that seems to be relatively clear.

His argument is generally:

This shift away from an explicit definition of habitat that provides for transparency and consistency in agency decisions is contrary to sound public policy, will erode faith in government decision-making, and is unlikely to lead to improved conservation outcomes for species protected under the Act.


In the absence of a definition of the term habitat prior to December 2020, there was substantial controversy and confusion regarding the scope of the federal government’s authority to designate critical habitat.  This came to a head in a case ultimately decided by the U.S. Supreme Court in 2018 regarding the designation of critical habitat for the dusky gopher frog in the American southeast.  In its decision, the Court clarified that “’critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.” In other words, as a threshold matter, an area must be habitat before the federal government can consider whether to designate it as critical habitat.


That begged the question, what is habitat for species that are protected under the ESA and led the government down the path to the definition promulgated just a year ago.  For the purposes of designating of critical habitat, the federal wildlife agencies then defined habitat as “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.”


The agencies considered adopting a definition drawn from the literature in the field of ecology, but ultimately decided that in that field there was no settled definition of the concept. That may seem nonsensical on its face. One might fairly presume that researchers and practitioners in wildlife and fish biology work from a common definition of the foundational term habitat, but it’s not so. In fact, an article on the subject 25 years ago by Hall and colleagues surveyed the literature on habitat and found that the term is used in a manner that is vague and imprecise in most cases, and where imperiled species are involved references to habitat can be dangerously unclear or incorrect.


Despite this and the routine misuse of the term “habitat” in agency determinations and implementation of conservation actions under the Act, there are certain elements of the definition of habitat on which there is broad agreement in the scientific community.


  • Habitat is a species-specific concept. Each species has its own habitat, which may overlap in space and time with habitats of other species.
  • Habitat is composed of both (i) a combination of abiotic (physical) and biotic (living) components and (ii) ecological processes.
  • Habitat must be capable of supporting a species during one or more of its life stages. It must be habitable, though it need not be occupied at all times and may in fact be unoccupied for extended periods of time.

Each of those three elements of habitat are incorporated into the present definition that ostensibly guides the federal wildlife agencies.


In the proposed rule seeking to rescind but not replace the definition of habitat, the federal wildlife agencies offer the first and principal rationale that the definition could constrain the ability of the federal wildlife agencies to designate landscape areas as critical habitat — specifically, where such landscape areas do not currently or intermittently contain the resources and conditions necessary to support one or more life processes of a species.


The agencies reason that certain geographic areas should be considered habitat because even though they do not currently accommodate the resources and conditions necessary to support one or more life processes of a species, they could do so at some point in the future, either as a consequence of natural processes or human intervention. The problem with that reasoning is that it is directly at odds with the third element identified above — an area must be habitable to be habitat. The concept of habitat loses its meaning if it extends to any area that may at some point be habitat as a consequence of natural processes or human intervention.

Maybe someone can explain.. it doesn’t sound like the new regulation fits with the Supreme Court decision.. what nuance am I missing?
It also seems that with climate change, you could potentially say that everything north or at higher elevation of current habitat, could be future habitat because of climate change,as Weiland points out. He also discusses the utility of defining habitat versus not defining habitat.

The reality is that under the previous administration the federal wildlife agencies saw value in defining habitat for the purpose of designating critical habitat, because it would provide guidance to decision-makers and resource managers, promote the uniform application of the law, and reduce regulatory uncertainties. In contrast, under the current administration the federal wildlife agencies see value in the absence of a definition of habitat for the purpose of designating critical habitat, because it would provide discretion to agency regions, offices, and staff. That would potentially allow extraordinarily broad geographic areas to be characterized as habitat for listed species, thereby expanding regulatory authority. While some may see greater value in the latter set of goals than the former, the new rule undermines sound public policy both because it will reduce transparency in government decision-making and because it will result in inconsistent application of the law. It is not possible to make a credible argument that the current proposal is more in line with science and the scientific literature regarding habitat than the existing rule.

30 thoughts on “Weiland on Critical Habitat and Proposed ESA Rule”

  1. Some people want to place an importance on spotted owl ‘roosting habitat’, implying that the birds need it, as ‘critical habitat’. At the same time, people often lump foraging habitats into the same protections as nesting habitat. Of course, nesting habitat is a prime reason why the birds are in danger, but I’m not seeing a need to ‘preserve foraging habitats’. Owls use a wide variety of ‘foraging habitats’, including the WUI and managed forests.

    • In regards to fire and spotted owl, please consider the findings of two recent papers together.

      Kramer et al. (2021) here’s a bit from the abstract:
      “These results suggested that lower-severity fire benefitted spotted owls and that these benefits declined over time. Thus, our findings are consistent with the hypothesis that California spotted owls are adapted to historical frequent-fire regimes of overall lower-severity with small high-severity patches. We hypothesize that fire management, coupled with medium- and large-tree retention, likely maintains high quality spotted owl habitat and may contribute to the
      observed owl population stability in Sequoia and Kings Canyon National Parks, compared to declining populations on three national forests. Finally, our results indicated that fire management, as practiced in these national parks, could benefit owl conservation elsewhere if challenges to the reintroduction of frequent-fire regimes can be overcome.”

      Lesmeister et al. (2021):
      “Averaged over all fires, the interior nesting forest burned at lower severity than edge or non-nesting forest. These relationships were consistent within the low severity, very frequent and mixed severity, frequent fire regime areas. All forest types burned at similar severity within the high severity, infrequent fire regime. During two of the most active wildfire years that also had the largest wildfires occurring in rare and extreme weather conditions, we found a bimodal distribution of fire severity in all forest types. In those years, a higher amount—and proportion—of all forest types burned at high severity. Over the duration of the study, we found a strong positive trend in the proportion of wildfires that burned at high severity in the non-nesting forests, but not in the two nesting forest types.” and “Under most wildfire conditions, the microclimate of interior patches of nesting forests likely mitigated fire severity and thus functioned as fire refugia. With changing climates, the future of interior forest as fire refugia is unknown, but trends suggest these older forests can dampen the effect of increased wildfire
      activity and thus an important component of landscape plans focused on fire resiliency.”

      • Ben, as to Lesmeister, I don’t know if California is similar to Colorado, but our unburned forests tend to be wetter in drainages. So I wonder how you would tease out the wetness of the site compared to the existence of interior forests in terms of becoming fire refugia.

        • Lesmeister is range-wide on NSO. I don’t think there’s anything to tease out. Spotted owls select more fire resilient forest patches for nesting and roosting due to those areas often being in cooler/wetter areas that have better growth rates and therefore higher densities of taller trees. But it does go against the argument that spotted owl nesting habitat is less resilient to fire. We could also do a lot by focusing treatments outside of nesting and roosting, here’s more from the paper: “Our results support guidelines in the 2011 spotted owl recovery plan that describe targeting restoration projects outside of current spotted owl habitat (USFWS 2011). Projects that occur in non-nesting forest may accomplish many forest restoration goals aimed at improving the resiliency of late-successional forests to wildfires and climate change without the negative impact on nesting forests while maintaining fire refugia on the landscape.”

          • I think forests do focus treatments outside of “nesting habitat” (for one thing, I think it’s required)…do you have evidence to the contrary?

            • CSO nesting/roosting habitat is routinely commercially thinned outside of PACs. PACs are are limited to 300 acres. Territories are 2-3 times that large. There is often nesting habitat that occurs outside of PACs and within the territories that is routinely thinned to levels that it is no longer is likely to support nesting and roosting.

              • Field surveys, with multiple visits, are required in proposed thinning units. We had to drop one of our units, due to a new goshawk nest discovery. Since it was recently an occupied nest, it was hard to miss. Feathers and bird crap all over the place.

                The owls and goshawks are notoriously lazy about building nests. They usually just re-use an old one, in their territory. Certainly, those territories have become more fragmented, through man’s activities. They also seem to have some capacity to adapt to habitat of less quality, mainly because the birds are territorial.

                Wildfires are causing more nesting habitat loss than logging, especially in Sierra Nevada National Forests. I doubt that “roosting habitat” is really an issue for owls, these days. If snags were “Critical Habitat”, those birds would have gone extinct 30 years ago. There is no shortage of snags on National Forests, where CASPO lives.

      • My guess is that the 2021 fires in California burned a great many Owl PACs, as well as nesting habitats within Sequoia and Kings Canyon National Parks. The Dixie and Caldor Fires also burned through many ‘protected’ areas, over a very wide area. We also saw 80,000 acres, filled with old growth forests, that burned in the Rim Fire, inside Yosemite National Park.

        In California, the burned owl habitats (on Forest Service lands) will be replaced with similar parcels that best meet their habitat requirements. The problem with that is the quality of the habitat continues to decrease, as more fires incinerate nesting habitats. There is no better option to that practice, under current rules, laws and policies.

        • The fire effects very much changed when Rim hit the park (see Lydersen et al. 2014 and 2017). A good chunk of Yosemite that burned in Rim also burned prior to Rim, moderating the effects.

          Again, CSO are fine with mixed severity fire dominated by low. Having large contiguous treated areas scattered across the landscape is the only way to deal with extreme fire weather. This can be accomplished using many tools, but the only one that fills in all the gaps in the end is fire managed for resource benefits. Yes, mechanical is a part of this. Build large boxes and use fire managed for benefits to fill in the gaps (this is what Malcom North and Scott Stevens have been saying for years). This strategy is also compatible with CSO.

          Under the SNFPA (p. 37 ROD), PACs can be (and are often are) retired following fire if there is no occupancy detected and there is insufficient habitat to designate a PAC. The areas that burn at moderate and high severity outside of PACs often no longer meet the definition of habitat, so the fuels there can be managed there.

          Less than 10% of the Sierra forests are tied up in species protections (North et al. 2015). Also from this paper: “Our analysis suggests that the current heavy reliance on mechanical fuels reduction is unlikely to effectively contain or suppress wildfire in many areas of the Sierra Nevada. Too much NF area is unavailable for mechanical treatment and what is available is often too small and scattered to effectively alter landscape-level fire spread and intensity.”

          Under the SNFPA, PACs can also be Rx burned and treated with hand cut and pile. The Trestle project next to Grizzly Flats included Rx fire across 18 PACs in the NEPA. I have said it before, if that area had been burned with Rx fire as planned we might be looking at a very different outcome for Caldor. Not to mention, the Rx fire for that area would have been much less expensive than the suppression. CSO management is compatible with landscape resilience.

          • There are many spots in the Yosemite portion of the Rim Fire, where there was 100% mortality. There was probably 40,000 acres of old growth heavily-impacted by the Rim Fire.


            Most of those burned areas can be expected to burn again, in the next 20-30 years. We’ve already seen the Foresta area burn three times since 1990. With today’s fires burning from the foothills to timberline, in the Sierra Nevada, we can expect very little of our historic forests to survive. It WILL happen, especially with so many humans starting wildfires, like the Caldor Fire (yes, two arrests have been made). We cannot accurately model anything without including human-caused wildfires. Stubbornly clinging to the idea of “Natural Succession” is a recipe for the disastrous fires we are now seeing. It’s fine to consider it within National Parks, but not in National Forests, for the most part.

  2. Thanks for the invitation, Sharon. I think you may be confusing what the Supreme Court said with what Weiland said, which is, “It must be habitable, though it need not be occupied at all times and may in fact be unoccupied for extended periods of time.” “Lynx habitat” is still considered habitat even when it is temporarily not suitable due to current vegetation conditions. Same for logged over spotted owl habitat (at least by biologists). Why should we exclude that from critical habitat (especially because critical habitat would then become a transitory thing following vegetation succession)?

    And the dusky gopher frog habitat addressed by the Supreme Court which had been converted to non-native plantations that made it not “habitable.” Private lands made this a more difficult question because it may have required affirmative restoration actions rather than natural succession to make it habitable again (at least any time soon), and there was no way to require the private owner to do that. It was also a case where there there were no other locations available. But the Supreme Court didn’t decide that this couldn’t be considered habitat – it left that to the agency.

    I’m inclined to agree that it would be helpful to have a definition, but maybe just rescinding it is more of an easy way out rather than a nefarious plan to wreak havoc in the future. I think a definition would have to allow for natural succession, artificial restoration of former habitats and perhaps even artificial habitat (such as water developments that some species now depend on). It’s not necessarily an easy job. (And I don’t think that who owns the land could be a factor to consider in whether it is “habitat.”)

  3. Yes, it’s dumbfounding the term “habitat” is so difficult to define. A basic exercise in wildlife ecology text books is to mull over the vast definitions of habitat, discuss/analyze how the definitions have changed and evolved over time, and the arguments for and against one definition vs. the others. Habitat is not a stable term and that is a good thing. The same is true for “species”.

    Habitat includes biotic and abiotic attributes. It cannot and should not be boiled down to a piece of land. Biotic attributes are subject to change. As long as there is science rationale for doing so, CH designations should be allowed to include areas the species depends on for long-term survival and reproduction. Not allowing critical habitat designations to include areas likely to become habitat in the future would not be consistent with the purpose of the Act (i.e., to conserve the ecosystems on which T and E species depend).

    That said, the only time I have witnessed or heard of designated critical habitat having a regulatory effect via section 7 or 10 is when the CH was unoccupied. In all other cases, critical habitat, in my experience, simply creates a ton of paper work for USFWS and lawsuits over lines on a map due to the perception that those lines have an effect on private property rights (which they do not). I am not aware of the USFWS ever making an adverse modification determination without also making a jeopardy determination, so what’s regulatory point of CH (John?)? The issues I see with CH implementation may be an issue of USFWS not implementing this aspect of the Act as intended, but it certainly isn’t doing anyone or any species any favors as it has been implemented over the decades. I see CH as a symbolic paperwork exercise, and that’s about it.

    • Ben, I don’t know anyone could know “areas the species depends on for long-term survival and reproduction.” Here thinking about widespread species that currently exist. If an area is currently unoccupied and the species exists, then species existence must not depend on that habitat, right? That’s the logic problem I’ve always had.

      • “If an area is currently unoccupied and the species exists, then species existence must not depend on that habitat, right? That’s the logic problem I’ve always had.”

        This is precisely the “logic problem” the Forest Service had in regard to the northern spotted owl. The FS’s original owl plan failed to consider the basic population dynamics of this territorial habitat specialist. When forced by lawsuits to do so, the Forest Service realized that the owl’s population is dynamic with vacated owl sites being recolonized by dispersing juveniles. Thus there will always be habitat that is unoccupied at any given point in time.

        The seminal article is Lande’s 1988 “Demographic Models of the Northern Spotted Owl.”

        • Andy, I totally get that sites that owls like may be vacant and that that is still habitat (biotic and abiotic factors)

          To me there is a difference between that and what Ben says “For lynx, one could model areas likely to be suitable to subalpine forest under climate change in 50 years and one could argue that these areas will be necessary for the long-term survival and reproduction of lynx.”

          If we were really honest, we would say “we have no clue about where subalpine forests will or will not be in 50 years”

          So I agree with you about 1) where conditions used to be, but for succession (trees getting bigger) will be again; but I can’t make the leap to 2) where conditions have never been and only models tell us they might be.

          Perhaps that’s my problem with ESA the fact that models exist does not necessarily make them the “best available science.”

      • We don’t need to know for sure. The ESA does not require perfect data to make decisions. It is all about the best available science and doing what we can to ensure long-term survival and reproduction. For lynx, one could model areas likely to be suitable to subalpine forest under climate change in 50 years and one could argue that these areas will be necessary for the long-term survival and reproduction of lynx. We could do this for many species threatened by climate change.

        Another scenario would be areas where the species was extirpated due to hunting 50-100 years ago (e.g., fisher). Just because it is not there now, doesn’t mean that it’s not habitat. Is Yosemite wolverine habitat; it’s been a while since one’s been confirmed? Are all the areas where NSO have been extirpated due to barred owl no longer habitat? There is also the metapopulation issue with deciding it’s not habitat unless routinely occupied, as this would go against the very nature of how some species persist on a landscape scale.

        Species ranges expand and contract for many reasons and on timescales we are not used to managing. Not allowing the USFWS to incorporate science-based projected range expansion/contraction into decision making would be shortsighted. As the saying goes, all models are wrong, but some are useful. We need to be very clear why the model is useful.

      • The goal of the ESA is to recover listed species. See 16 U.S.C. Sec. 1531(b) and (c). “Critical habitat” is “essential for the conservation of the species,” as determined by FWS or NMFS. Id. Sec. 1532(5). “Conservation,” in turn, “mean[s] to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Id. Sec. 1532(3). Critical habitat is not designated merely so a species will continue to exist, but to recover so that it no longer needs ESA protection.

      • It’s not uncommon for species to be listed because they no longer occupy historic habitat. The species still exist, but they meet the definition of threatened or endangered in part because of declining habitat. Recovery of the species could require that they reoccupy it (as the grizzly bear recovery plan did for the unoccupied Bitterroot and North Cascades ecosystems).

        • OK, but does that mean that we want to recover bison to all of its historic habitat? Or grizzly bears to the San Joaquin Valley? Or are there human judgments involved in which species need to go back to historic habitat?

        • I guess my question would be “how do biologists know that grizzlies “need” certain historic habitat to recover?” Is it a genetics thing, or a habitat might decline thing, or ???

          • Yes, depending on the species’ needs and threats. Here are the statutory factors for listing a species, which are the same as for recovery and delisting:
            (1) The present or threatened destruction, modification, or curtailment of its habitat or range;
            (2) Overutilization for commercial, recreational, scientific, or educational purposes;
            (3) Disease or predation;
            (4) The inadequacy of existing regulatory mechanisms; or
            (5) Other natural or manmade factors affecting its continued existence.

            Genetics have been pretty important for grizzly bears due to the isolation of the few remaining populations.

    • Here’s what the Fish and Wildlife Service has said about unoccupied critical habitat on federal lands: “Although regardless of a critical habitat determination, Federal agencies will still be required to complete section 7 consultation for the northern spotted owl where the species is present, we acknowledge that there could be adverse impacts to the habitat if the species is not present at the time of the consultation.” (Quoted in my comment here -https://forestpolicypub.com/2021/04/20/afrcs-take-on-spotted-owls-and-critical-habitat/) I think the same would be true for federal actions on private lands that would be subject to ESA.

      In my discussions with the FWS it was apparent that, with their overworked staff, they didn’t think critical habitat should be a priority (especially in relation to lawsuits requiring them to do it). I think the FWS has tried to define the “adverse modification” outcome to be not different than “jeopardy;” however, they also conceded that the criteria for evaluating critical habitat are different and could theoretically produce different results than a jeopardy analysis. In common usage, the phrase “adverse modification” seems like it should be a lower bar than “jeopardize,” and it would make sense that “critical” habitat should get greater protection than other places, so I have thought maybe the FWS was not giving it its due. (In practice there are few jeopardy determinations, and even fewer adverse modifications, and I would be surprised if the latter has ever occurred without the former.)

      I agree with the symbolism point, but unfortunately that seems to have benefitted opponents more as they make wildly inaccurate claims about property rights.

  4. If it helps to flesh out the legal part of this discussion a little, here’s the regulatory language at issue from the Trump administration’s rule:

    § 424.02 Definitions. * * * * * Habitat. For the purposes of designating critical habitat only, habitat is 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.

    https://www.govinfo.gov/content/pkg/FR-2020-12-16/pdf/2020-27693.pdf at pdf p.11.

    And here’s some of the Biden administration’s rationale for proposing the repeal of this definition:

    We find that the broad definition of ‘‘conservation,’’ along with the statute’s recognition of destruction or loss of habitat as a key factor in the decline of listed species (in section 4(a)(1) of the Act), indicates that areas not currently in an optimal state to support the species could nonetheless be considered ‘‘habitat’’ and ‘‘critical habitat.’’ The quality of habitat varies along a continuum, and species, and individuals within a species, often use habitats with variable quality over the course of their life histories. Some individuals of a listed species may use degraded or suboptimal areas, whereas other individuals may not. Including those areas in critical habitat designations, where appropriate, may be essential for the conservation of some species and is consistent with the Services’ practice prior to the final rule becoming effective in January 2021. To hold otherwise would lead to the illogical result that the more a species’ habitat has been degraded, the less ability there is to attempt to recover the species.

    https://www.govinfo.gov/content/pkg/FR-2021-10-27/pdf/2021-23214.pdf at pdf p.5.

    The Supreme Court opinion in Weyerhaeuser specifically mandates neither result, stating only that “[h]abitat can, of course, include areas where the species does not currently *live,* given that the statute defines critical habitat to include unoccupied areas.”

    https://www.supremecourt.gov/opinions/18pdf/17-71_omjp.pdf at pdf p. 13 (emphasis in original).

  5. Birds fly and fish swim for a reason. And they are adaptable to changing conditions. That’s how they exist. Eric Forsman kept a spotted owl in his garage for 20 years and fed it by hand — not sure if longevity is a good measure of “habitat,” but this record would be hard to beat. Whether the bird would have preferred flying free and looking for a mate or a mouse while avoiding its brown-eyed cousins is highly speculative. We “save” these varietals because of our own egos and political perspectives, not because of any critical need on their — or our –parts.

    Again, it has been very difficult to get straight answers as to how critical these artificial designations have been to fueling forest wildfires in the Douglas Fir Region the past 30 years. At some point this failed experiment needs to be revisited and abandoned in favor of safer, more attractive, and more productive environments: http://nwmapsco.com/ZybachB/Articles/Magazines/Oregon_Fish_&_Wildlife_Journal/20200620_Spotted_Owls/Zybach_20200620.pdf

    • Hmmm, that’s an interesting perspective. “… this failed experiment needs to be revisited and abandoned in favor of safer, more attractive, and more productive environments:”
      More attractive? To whom? The person who loves large, old trees or the forester who likes to look at plantations and think, “Ah, 2×4’s almost ready for harvest.”
      More productive? That immediately begs the questiion, “what are we trying to produce?” Lumber? Clean water? Salmon habitat?
      Safer environments – Again, safer for whom and from which risks? If you’re a juvenile Coho salmon a river full of large, woody debris is safer because there’s lots of hiding cover when a Kingfisher or Great Blue Heron fly over.
      It would be interesting to hear your thoughts on how 100+ years of aggressive fire suppression have contributed to “fueling forest wildfires in the Douglas fir region” and other parts of the western US. 1973 was my first summer on a fire crew (Klamath NF) when I drove a USFS engine and came to love a sharp Pulaski as my fave fire tool.
      That’s before land managers were thinking about “Critical Habitat” and well before the 30 year time period you mention.
      Climate change is dramatically altering our planet, western forests and every other habitat! Perhaps we’ll soon need to designate “Critical Habitat” for humans? We may not get to choose which areas will be safer or more attractive!

      • Hello OldWoodsman: I usually don’t respond to public Comments being made by a pseudonym, but you sound like someone with legitimate experience and insight. More complete answers to your open-ended questions might be: 1) safer for people and wildlife; 2) more attractive to most people, and 3) more productive towards achieving common stated goals and objectives. Clean air, good water, abundant wildlife, recreational opportunities, useful products, etc., would be included in the mix.

        Not sure about your perceptions regarding woody debris, coho, and Pulaskis, but disagree with your concerns regarding “climate change.” Discussion for another time between real people. At his point in time, we still get to choose our “areas” and it is becoming ever more apparent we have been making bad choices in regards to management of our public forests the past few decades. In my opinion.


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