Journal of Environmental Law & Litigation : Vol. 38 (2023)

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“Experimental Populations” Outside Historical Range Proposal: Will It Get the Frog Out of Hot Water?
(University of Oregon School of Law, 2023-04-28) Miller, Carol J.; Meyer, John C.; Persons, Bonnie B.
To address the impact of climate change on habitats of endangered and threatened species, the U.S. Fish and Wildlife Service is proposing a 2022 rule change to allow “experimental populations” to be introduced into habitat outside the species’ historical range. For essential experimental populations, habitat could be designated beyond current or historical range where “little to no habitat remains within the historical range of a species or where formerly suitable habitat . . . is undergoing, irreversible decline or change, rendering it unable to support one or more life history stages for the species.” A statutory prerequisite (under Endangered Species Act (ESA) section 10(j)) to designation of critical habitat for an experimental population is that “such population is essential to the continued existence of an endangered species or a threatened species.” The ESA defines “critical habitat” but does not separately define “habitat.” Designation of “critical habitat” has been complicated by the Weyerhaeuser v. FWS decision, in which the Supreme Court concluded that “critical habitat” must first be “habitat.”