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."
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%.
Effective 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).
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.