Two new rules severely limit critical habitat designations for threatened and endangered species
Steller’s Eider (Polysticta stelleri) photo by USFWS
Designation: Threatened
Steller’s eiders are the smallest of four eider species, weighing about two pounds. They nest in the Arctic tundra in the spring/early summer, laying up to eight eggs in a nest that is lined with a thick bed of down. Young hatch in late June. After breeding, they move to near shore marine waters to molt and winter. They dive underwater to feed on invertebrates such as amphipods, aquatic insects, and clams.
Critical Habitat
Five units of critical habitat have been designated: breeding habitat on the Yukon Kuskokwim Delta and four units in marine waters of southwest Alaska that are important for molting, resting, feeding, and wintering. Approximately 2,800 square miles and 850 miles of coastline are included in critical habitat.
1) US Fish and wildlife Service & National Marine Fisheries Service publish a final rule defining “habitat” under the Endangered species act
The purposes of the Endangered Species Act (ESA) are to provide a means to conserve the ecosystems upon which listed threatened and endangered species depend, to develop a program for the conservation of listed species, and to achieve the purposes of certain treaties and conventions. Moreover, the ESA states that it is the policy of Congress that the Federal Government will seek to conserve threatened and endangered species and use its authorities to further the purposes of the ESA. One of the tools under the ESA to conserve species is the designation of critical habitat. The purpose of critical habitat is to identify the areas that are essential to the species' recovery. In section 3(5)(A) of the ESA, Congress defined “critical habitat” as:
(i) The specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species.
Although the ESA defines “critical habitat”, and establishes separate criteria depending on whether the relevant area is within or outside of the geographical area occupied by the species at the time of listing, it does not define the broader term “habitat.” Additionally, neither USFWS nor NMFS have developed a regulatory or policy definition of the term “habitat”. Instead, the agencies traditionally applied the criteria from the definition of “critical habitat” based on the implicit premise that any specific area satisfying that definition was habitat.
However, the Supreme Court recently held that an area must logically be “habitat” in order for that area to meet the narrower category of “critical habitat” as defined in the ESA, regardless of whether that area is occupied or unoccupied.
A final rule was published 12/16/2020 providing a regulatory definition of “habitat”, however, it appears it will only be applicable for “critical habitat” determinations. The new regulatory definition of habitat is: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” A concern with this regulatory definition is that it seems to prevent the agencies from designating areas which may become suitable or preferable habitat in the future (e.g., due to factors such as climate change or restoration activities) as critical habitat. This rule applies to both USFWS and NMFS.
Summary from Final Rule: We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”), add a definition of “habitat” to our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). This rulemaking responds to Supreme Court case law regarding the designation of critical habitat and provides transparency, clarity, and consistency for stakeholders.
2) US Fish and Wildlife Service publishes a final rule to allow more discretion when excluding areas from critical habitat designations
Wood bison (Bison bison athabascae) photo by Laura Whitehouse USFWS
Designation: Threatened
Wood bison appear very similar to plains bison but are slightly bigger, with mature males weighing up to 2,000 pounds. They predominantly use open meadows interspersed among woodlands and feed on grasses and sedges.
Critical Habitat: None designated
DistributionHistorically found throughout Alaska and Canada. Today, seven free-ranging herds with approximately 4,000 animals are now only found in Alberta, British Columbia, the Northwest Territories, and the Yukon Territory, Canada.
One of the tools that the Endangered Species Act (ESA) provides to conserve species is the designation of critical habitat. The purpose of critical habitat is to identify the areas that are essential to the species' conservation and recovery. When FWS or NMFS lists a species, the ESA requires that, to the maximum extent prudent and determinable, 16 U.S.C. 1533(a), critical habitat be designated after taking into consideration the economic impact, the impact on national security, and any other relevant impact, 16 U.S.C. 1533(b)(2).
In section 3(5)(A) of the ESA, Congress defined “critical habitat” as:
(i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the ESA, upon a determination by the Secretary that such areas are essential for the conservation of the species.
Section 4(b)(2) of the ESA then provides the Secretary the authority to exclude any particular area from a critical habitat designation if the benefits of exclusion outweigh the benefits of inclusion for that area, so long as excluding it will not result in the extinction of the species: “The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” 16 U.S.C. 1533(b)(2).
On February 11, 2016, the USFWS and NMFS issued a joint policy describing how they implement their authority to exclude areas from critical habitat designations (Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act; 2016 Policy).
A final rule was published 12/18/2020, which will only be implemented by USFWS because NMFS did not agree with the changed language. Although NMFS will continue to implement the 2016 Policy, this new rule gives the USFWS more discretion to exclude areas from critical habitat designations under the ESA, and supersedes the 2016 Policy on the topic.
Summary from Final Rule: We, the U.S. Fish and Wildlife Service (FWS or Service), amend portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). The revisions set forth a process for excluding areas of critical habitat under section 4(b)(2) of the Act, which mandates our consideration of the impacts of designating critical habitat and permits exclusions of particular areas following a discretionary exclusion analysis. These regulations outline when and how the Service will undertake an exclusion analysis, including identifying a non-exhaustive list of categories of potential impacts that we will consider. This rule, reflects agency experience, codifies some current agency practices, makes some modifications to current agency practice, and responds to applicable Supreme Court case law. The intended effect of this rule is to provide greater transparency and certainty for the public and stakeholders.
Link to Final Rule: https://www.federalregister.gov/documents/2020/12/18/2020-28033/endangered-and-threatened-wildlife-and-plants-regulations-for-designating-critical-habitat
Link to Proposed Rule: https://www.federalregister.gov/documents/2020/09/08/2020-19577/endangered-and-threatened-wildlife-and-plants-regulations-for-designating-critical-habitat
“This proposed rule carries out Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” and is part of a larger effort by DOI to identify regulations for repeal, replacement, or modification.”
Link to 2016 Joint Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act: https://www.federalregister.gov/documents/2016/02/11/2016-02677/policy-regarding-implementation-of-section-4b2-of-the-endangered-species-act
Alaska Wildlife Alliance will be following the impacts of these rules on Alaska’s most vulnerable wildlife, and seeking regulatory solutions to ensure these species get the protections they need to recover. Follow our newsletter for monthly updates. If you would like to support our work, consider becoming a member. Thank you!
