Endangered Species Law & Policy

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.