Habitat in the Endangered Species Act

Response to Jake Li's response to FWS revised definition of "habitat".

A couple of points about critical habitat.  First, it is often not stated by those who understand the ESA, and often misunderstood by those who do not, that critical habitat designations only have regulatory force on federal lands or for projects that involve a federal nexus (such that a federal agency would consult with FWS). While this may seem like nitpicking, it is crucial to understand the regulatory impact of the change in definition, as many federal agencies do not rely exclusively on critical habitat designations but instead consult with FWS based on the SME of their biologists whenever a project may impact a listed species.  

For private land, where many people are most worried about critical habitat, any changes in the areas designated would have little to no impact due to the fact that critical habitat has little to no impact on private land.

Second, it is interesting to consider how this change in the definition of habitat would affect monarchs. I think it would not affect monarch habitat due to the inclusion of "ephemeral and seasonal habitat" in the definition.  Even if monarchs only inhabit an area for a few months of the year, that area could still be designated critical habitat. 

You write that the 7a habitat protection is redundant if an area is occupied (and therefore protected by the jeopardy prohibition).  But monarchs (and many other species) only seasonally occupy parts of their critical habitat, so the 7a protection will continue to be relevant in those cases. 

---

Thoughts about possible monarch listing:

Planting milkweed habitat

Some people are afraid of creating milkweed habitat because apparently they think they would never be able to destroy or modify this habitat.  I find this unlikely.  More likely is that they would be restricted from destroying or modifying the habitat while monarch caterpillars are present.  During winter months, they could destroy this habitat without adversely affecting individual monarchs.  Habitat protection in the ESA is often misunderstood on this point.

CCAA

I assume that monarchs will be listed.  Even so, there are many reasons for not joining CCAA, but I will focus on reasons that FWS enforcement will not be detrimental to business operations at companies with well-developed IVM programs.

A mature IVM program already has the goal to move away from mowing/mastication toward spot treatment of incompatibles with herbicide.  Although there will need to be mowing in some areas, the reason for mowing is that the areas are overgrown with woody vegetation. Therefore these areas would not support monarch milkweed habitat.

There may be incidental work in monarch milkweed habitat, but most of this work would not impact monarch breeding. For example tree cutting. I consider it unlikely the FWS would broadly restrict all activities in monarch milkweed habitats, due to the vast and unenforceable impact this would have on ordinary activities across the country.

I believe FWS will restrict some activities that would impact monarch milkweed habitat, during the monarch breeding season, especially ground-disturbing activities.  Biological opinions for species impacted by ground disturbing work implement mitigation measures that include timing restrictions and crew trainings.  FWS has provided incidental take statements based on these mitigation measures and reporting requirements.  I expect a similar scenario when monarch are listed.