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Feds reconsidering critical habitat rule
Parties agree on dismissal of court case challenging February 2016 change to Endangered Species Act regulations by federal agencies
Alan Bailey Petroleum News
The federal government is reconsidering its rules for designating critical habitat under the Endangered Species Act, the Alaska Department of Law has announced. The reconsideration follows a November 2016 lawsuit in the U.S. District Court for the Southern District of Alabama, in which Alaska and 19 other states had challenged changes to the regulations, under which the National Marine Fisheries Service and the U.S. Fish and Wildlife Service identify a species’ critical habitat, following a listing under the Endangered Species Act.
A critical habitat designation is important in determining what activities a federal or state agency will permit within a region associated with a listed species.
New rule Contention arose over a rule, issued in February 2016, in which the federal agencies expanded the definition of what could be considered to be critical habitat. The lawsuit challenged that rule, saying that the rule was inconsistent with the terms of the Endangered Species Act and that the rule would expand critical habitat designations into areas not important to a species’ survival.
In February 2017, following the change of federal administration in late 2016, NMFS and Fish & Wildlife filed an unopposed request for a stay of the court case, to allow new federal officials to become familiar with the case. On March 15, following a request by all parties, Judge Callie Granada dismissed the case. Apparently the federal agencies have agreed to reconsider the 2016 critical habitat rule.
“We are encouraged that the agencies have agreed to revisit these rules which threaten the use of any land and waters that the federal government arbitrarily decides an endangered species might ever inhabit,” said Alaska Attorney General Jahna Lindemuth. “These rules were over broad and contrary to both the spirit and the letter of the Endangered Species Act. The act recognizes the rights of states to be involved in such regulations.”
Critical habitat definition According to the plaintiffs’ initial court filing, the Endangered Species Act defines critical habitat as specific areas within the geographical area occupied by a species, within which are found physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. Other areas unoccupied by the species may trigger an additional conservation requirement, if the government agency can determine that such areas are essential for the conservation of the species.
The filing claims that the new February 2016 rule illegally enables the federal government, without limitation, to designate areas that a listed species does not currently occupy as critical habitat. The rule also enables a government agency to determine that a proposed activity would destroy or adversely impact critical habitat, on the basis that the activity might prevent the eventual development of habitat features that would support a listed species, the filing says.
Because state governments must comply with the Endangered Species Act when overseeing activities carried out within states, an expansion to the manner in which the Endangered Species Act is applied impacts the states’ sovereign rights, the filing says.
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