Endangered Species Law & Policy

On October 5, 2016, the U.S. Fish and Wildlife Service (Service) listed a beetle species as endangered, a fish species as threatened, and designated critical habitat for the fish species pursuant to the Endangered Species Act (ESA).

The Service listed the Miami tiger beetle (Cicindelidia floridana), which occurs in Miami-Dade County, Florida, as endangered under the ESA.  According to the Service, the decline in the species is due to the impact of habitat loss, degradation, and fragmentation, the inadequacy of existing regulatory protections, and the beetle’s relatively isolated population with limited genetic exchange and restricted dispersal potential, which makes it vulnerable to the impacts of climate change and sea level rise. 81 Fed. Reg. 68,985 (Oct. 5, 2016) (pdf).  The Miami tiger beetle occurs only in Miami-Dade County, and was thought to be extinct until 2007, when a population was discovered at the Richmond Heights area of South Miami, known as the Richmond Pine Rocklands.  It is considered to be one of two tiger beetles in the United States that is most in danger of extinction.  The Service declined to designate critical habitat at this time, but anticipates designating critical habitat before the end of the 2017 fiscal year.

The Service also listed the Kentucky arrow darter (Etheostoma spilotum), a small fish from the upper Kentucky River Basin, as threatened and adopted an ESA section 4(d) rule for the species. 81 Fed. Reg. 68,963 (Oct. 5, 2016) (pdf).  The Service’s decision to list the darter is based in part on destruction, loss, and modification of its habitat, the inadequacy of existing regulatory mechanisms, and other man-made influences.  ESA section 4(d) allows the Service to exempt certain activities affecting a listed species that would otherwise be prohibited under the ESA.  Here, the Service chose to exempt several habitat restoration and bank stabilization projects that are currently planned or under construction because, although the projects may cause some incidental take, the habitat restoration associated with these projects is important for the recovery of the species.  The Service notes that, if carried out in accordance with existing regulations and permit requirements, the following activities are not expected to result in take of the darter: agricultural and silvicultural practices, and surface coal mining and reclamation activities.

Concurrently with the rule listing the Kentucky arrow darter, the Service published a rule designating critical habitat for the species. 81 Fed. Reg. 69,312 (Oct. 5, 2016) (pdf).  Included in the darter’s designated critical habitat are 398 stream kilometers in Breathitt, Clay, Harlan, Jackson, Knott, Lee, Leslie, Owsley, Perry, and Wolfe Counties, Kentucky.  The Service noted in its critical habitat designation that the darter’s range has been reduced from the historically occupied 74 streams to only 47 currently occupied streams.  The 398 designated stream kilometers were split into 38 units, all of which are considered occupied, and which comprise the entire known range of the darter.