Proposed Critical Habitat Rules Expand Reach of Critical Habitat Protections Under the Endangered Species Act

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service proposed two important new rules (50 CFR Part 402 and 50 CFR Part 424) implementing the critical habitat provisions of the Endangered Species Act (ESA).  The proposed rules expand the regulatory definition of “critical habitat” and “adverse modification” – key ESA terms governing federal agency actions on tens of millions of acres of public and private land throughout the nation.  The federal wildlife agencies also proposed a new policy governing the exclusion of areas from critical habitat based on economic and other impacts.  Collectively, the proposed rules and policy constitute the most significant regulatory interpretations of the ESA in the last two decades.  They will almost certainly trigger significant public controversy.

With limited exceptions, the ESA requires the wildlife agencies to designate critical habitat for every threatened and endangered species.  The ESA prohibits federal agency actions that “adversely modify” critical habitat.  16 U.S.C. § 1536(a)(2).  The ESA also requires the wildlife agencies to weigh and balance the economic and other impacts of designating critical habitat and authorizes the exclusion of areas from critical habitat based on these impacts.  16 U.S.C. § 1533(b)(2).  The critical habitat provisions of the ESA have stimulated a tsunami of litigation by the environmental and regulated communities resulting in the reevaluation of dozens of critical habitat designations.

Important components of the proposed rules include the following:

  1. Elimination of restrictions on the designation of critical habitat in areas that are not occupied by the species;
  2. Broad discretion to designate critical habitat in degraded and sub-optimal habitat areas and in areas that do not presently contain features essential to the conservation of the species;
  3. Interpretation of “adverse modification” to include actions that affect the value of critical habitat for the recovery of the species;
  4. Interpretation of “adverse modification” to include activities that significantly delay habitat features supporting recovery of the species; and
  5. Establishment of an “adverse modification” standard based on impacts to the conservation value of the critical habitat areas as a whole.

The proposed policy describes an approach for excluding areas from critical habitat based on economic and other impacts.  Congress amended the ESA in 1978 to authorize the agencies to exclude areas from critical habitat “if the benefits of . . . exclusion outweigh the benefits of specifying such area as part of the critical habitat.”  16 U.S.C. § 1533(b)(2).  Since 1978, the agencies’ policy governing the use of the exclusion authority has varied widely.  For many years the U.S. Fish and Wildlife Service (Service) routinely excluded tribal lands and areas within approved habitat conservation plans (HCPs), candidate conservation agreements and safe harbor agreements from critical habitat.  In recent years, however, the Service has designated critical habitat on tribal lands and within areas with approved HCPs and other conservation agreements. 

While the proposed new policy reserves significant discretion to the agencies to determine whether to include or exclude tribal lands and HCP areas from the designation of critical habitat, it also states that the agencies will give “great weight” to tribal concerns and will “generally” exclude HCP and other similar conservation agreements that meet identified criteria. 

The public comment period on the proposed rules and policy closes on July 11, 2014.


Butterflies, Plants and Herring - Recent Listing Decisions and Proposed Listings

On August 12, 2013, the National Marine Fisheries Service refused to list the alewife herring (Alosa pseudoharengus) and blueback herring (Alosa aestivalis), concluding that based on the best scientific and commercial data available, neither species warranted protection under the Endangered Species Act.  The determinationn was in response to a petition submitted by the Natural Resources Defense Council.  The news was not all bad for the herring, however, as the National Marine Fisheries Service also stated that it will be working with the Atlantic States Marines Fisheries Commission and other partners "to implement a coordinated coast-wide effort to continue to address data gaps and proactively conserve river herring and their habitat."

On August 13, 2013, the U.S. Fish and Wildlife Service listed the Gierisch mallow (Sphaeralcea gierischii), concluding that based on the best scientific and commercial data available, the plant found primarily on federal lands in Arizona and Utah warranted protection under the Endangered Species Act.  In addition to listing the plant as endangered, the Fish and Wildlife Service also designated 12,822 acres as critical habitat for the herb.

On August 14, 2013, the U.S. Fish and Wildlife Service issued a proposed rule to designate the Florida leafwing (Anaea troglodyta floridalis) and Bartram's scrub-hairstreak (Strymon acis bartrami) butterflies as endangered species under the Endangered Species Act.  The proposed rule states that listing is warranted in light of "a lack of adequate fire management, small population size, isolation from habitat loss and fragmentation, loss of genetic diversity, inadequate regulatory mechanisms, pesticide applications, poaching, hurricanes and storm surge, and sea level rise,"  According to the notice, comments on the proposed listing must be submitted on or before October 15, 2013.  On August 14, 2013, the U.S. Fish and Wildlife Service also issued a proposed rule to designate approximately 8,283 acres in Miami-Dade and Monroe Counties, Florida, as critical habitat for the Florida leafwing butterfly, and approximately 9,261 acres in Miami-Dade and Monroe Counties, Florida, as critical habitat for the Bartram's scrub-hairstreak butterfly.  According to the notice, comments on the proposed critical habitat designation must be submitted on or before October 15, 2013.

Critical Habitat Proposed for Rockfish

Yesterday, the National Marine Fisheries Service issued a notice of proposed rule to designate approximately 1,184 square miles of marine habitat in the Puget Sound as critical habitat for the threatened distinct population segment of yelloweye rockfish (Sebastes ruberriums), the threatened distinct population segment of canary rockfish (Sebastes pinniger), and the endangered distinct population segment of bocaccio (Sebastes paucispinus).  The notice states that comments on the proposed rule are due on November 4, 2013, and requests for public hearing must be made in writing by September 20, 2013.

Court Vacates Critical Habitat Designation for Polar Bear

On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act.  Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical habitat, and the Service failed to provide an adequate response to comments submitted by the State of Alaska.  With respect to one of the areas designated by the Service, the district court explained that "the Service cannot designate a large swath of land in northern Alaska as 'critical habitat' based entirely on one essential feature that is located in approximately one percent of the entire area set aside." 

Designated Critical Habitat for Southwestern Willow Flycatcher Almost Doubled

On January 2, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule increasing the critical habitat designated for the southwestern willow flycatcher (pdf) (Empidonax traillii extimus).  The flycatcher is a small migratory bird (approximately 6 inches long) that nests in dense riparian habitats along streams, lakesides, and other wetlands.  The Service listed the flycatcher as endangered in 1995, and in 1997 issued an initial critical habitat designation.  Shortly thereafter, however, the New Mexico Cattle Growers' Association filed a lawsuit challenging the 1997 designation.  As a result of this litigation, the Service issued a revised critical habitat designation for portions of Arizona, California, New Mexico, Nevada, and Utah.  The revised critical habitat included approximately 120,824 acres.  In 2005, the Center for Biological Diversity filed a lawsuit challenging the revised designation.  In order to settle this second round of litigation, the Service agreed to again revise the critical habitat designation for the flycatcher.  The final rule recently issued by the Service designates approximately 208,973 acres as critical habitat, which increases the total acreage by more than 70%.

Chupadera Springsnail Listed as Endangered After 28-Years on the Candidate List

Spring Creek in New MexicoEffective August 13, 2012, the Chupadera springsnail's 28-year candidacy for listing will be over.  In a final rule (pdf) issued July 12, 2012, the U.S. Fish and Wildlife Service listed the Chupadera springsnail (Pyrgulopsis chupaderae)  as endangered, and designated critical habitat for the species in the only two units where it is known to occur in Socorro County, New Mexico.

The Chupadera springsnail is a tiny freshwater snail endemic ot Willow Spring and an unnamed spring nearby located on private land near the southeast end of the Chupadera Mountains.  Because the species relies on a limited range of conditions in the immediate vicinity of spring vents, and its only means of dispersal is by becoming attached to the feathers and feet of migratory birds, its extremely limited range increases the risk of extinction from other stressors such as ranching, housing development, and associated groundwater depletion.  In addition, the Service anticipates that climate change may exacerbate the depletion of groundwater, which could reduce the flow of water to the springheads.

The Chupadera springsnail was first identified as a candidate for listing in 1984.  But, until recently, the Service repeatedly determined that its listing was precluded by other higher priority listings.

According to the Service, one of the two known populations was extirpated due to the effects of grazing on the unnamed spring as of 1999, the last time the springs were visited.  In addition, the ranch where the springs are located is being subdivided, and developement depends on local well water.  Thus, the Service has determined that the Chupadera springsnail is in danger of extinction throughout all or a significant portion of its limited range from cattle grazing, spring modification, and the threat of groundwater depletion due to development.

The Service also designated two small units of critical habitat: Willow Spring, along with approximately 38 meters of springbrook and associated wet meadow (1.4 acres) and the unnamed spring, including the springhead, springbrook, small seeps and ponds, and associated seasonally wetted meadow (0.5 acres).

187,157 Square Miles of Critical Habitat Designated for Polar Bear

On November 24, 2010, the U.S. Fish and Wildlife Service announced a final rule (PDF) designating 187,157 square miles of on- and off-shore habitat in northern Alaska as critical habitat for two populations of polar bear listed as threatened under the Endangered Species Act. 

The Service originally proposed to designate 200,541 square miles of critical habitat.  However, the final designation removed land that turned out to lie beyond the U.S. territorial waters, five U.S. Air Force (USAF) radar sites, the Native communities of Barrow and Kaktovik, and all existing man-made structures.  According to the Service, the radar sites are already subject to Integrated Natural Resource Management Plans, and the Native communities have a history of coordinating with the Service regarding polar bear management and conservation.

Because approximately 95% of the designated habitat consists of sea ice in the Beaufort and Chukchi Seas where oil and gas development occurs, there has been significant concern about the new rule's economic impact on industry, landowners, Alaska Native Regional Corporations, and other stakeholders.  According to the Service's economic analysis (PDF 10MB), the designation of critical habitat will not result in any significant incremental economic impact because the polar bear is already protected under the Endangered Species Act as a threatened species, under the Marine Mammal Protection Act of 1972 (MMPA), and under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) signed in 1973.  Thus, activities such as oil and gas exploration and production that require federal permits or other approvals are already subject to incidental take regulations.  As a result, the Service has determined that designation of critical habitat will not result in additional polar bear conservation measures, and thus economic impacts are forecast to be limited to additional administrative costs.

Nevertheless, stakeholders are concerned that the designation of critical habitat will spur litigation, which creates regulatory uncertainty and discourages investment.

The final rule will become effective 30 days after it appears in the Federal Register.