Endangered Species Law & Policy

On July 13, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the pearl darter (Percina aurora) under the federal Endangered Species Act (ESA).  Listed as a threatened species under the ESA in September 2017, the pearl darter is a small, snub-nosed fish whose historical range includes Mississippi and Louisiana.  The proposed critical habitat designation for the pearl darter includes a total of approximately 517 river miles along the Pascagoula River and Pearl River basins, which run across multiple counties in Mississippi.  The Service’s notice also announces the availability of a draft economic analysis of the proposed critical habitat designation.

Under section 4(b)(2) of the ESA, the Service is required to designate any area deemed essential to the conservation of a listed species as critical habitat for the species, based on a review of “the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.”  In its Federal Register notice for the proposed rule, the Service states that the anticipated costs of the critical habitat designation will be administrative in nature and are not expected to exceed $710,000 in any given year.  Additionally, the Service determined that because the proposed critical habitat lands are not owned, managed, or used by the Department of Defense or the Department of Homeland Security, the designation will have no impact on national security.  Further, in making its decision to designate critical habitat, the Service determined that no habitat conservation or management plans for the pearl darter exist, and that the proposed designation does not include any Tribal lands or trust resources.  Therefore, the Service did not choose to exclude any particular areas from the critical habitat designation on the basis of impacts to national security, economic impacts, or other relevant considerations.

The agency’s proposed rule and supporting documents are available at regulations.gov, under Docket Number FWS-R4-ES-2020-0062.  The 60-day period for public comment on the proposed rule and draft economic analysis is currently set to end on September 13, 2021.