Endangered Species Law & Policy

On March 30, 2016, the U.S. Fish and Wildlife Service ("Service") issued a final rule designating critical habitat for 125 species listed as endangered or threatened under the Endangered Species Act ("ESA") on the Hawaiian islands of Molokai, Maui, and Kahoolawe.  The rule designated critical habitat for 50 plant and animal species, and revised critical habitat for 85 plant species, totaling approximately 157,002 acres of critical habitat on Molokai, Maui, and Kahoolawe.  An additional 25,413 acres of critical habitat that had been proposed on Lanai, along with 59,479 acres on Maui and Molokai, were excluded from the final designation under section 4(b)(2) of the ESA due to economic and other impacts.  As a result, 10 species included in the proposed rule received no designation of critical habitat in the final rule.

The Service applied an ecosystem-based approach to determining primary constituent elements of critical habitat, explaining:

[T]he conservation of each [species] depends, at least in part, on the successful functioning of the physical or biological features of their commonly shared ecosystem.  Each critical habitat unit identified in this final rule contains the physical or biological features essential to the conservation of those individual species that occupy that particular unit, or areas essential for the conservation of those species identified that do not presently occupy that particular unit.  Where the unit is not occupied by a particular species, we conclude it is still essential for the conservation of that species because the designation allows for the expansion of its range and reintroduction of individuals into areas where it occurred historically, and provides area for recovery in the case of stochastic events that otherwise hold the potential to eliminate the species from the one or more locations where it may presently be found.

The designations include both occupied and unoccupied habitat, the latter of which is intended to support species' recovery strategies, including habitat protection and establishment of additional populations.

Though the recent critical habitat rules were not yet finalized when this critical habitat designation was proposed, this final rule demonstrates the willingness of the Service to designate unoccupied habitat where that habitat is determined to be essential to species conservation, even though the habitat may not have the physical and biological features essential to the conservation of the species.