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F&W publishes final polar bear rule Critical habitat designation wins praise from environmentalists but causes concern for oil industry, NS Borough and the state Alan Bailey Petroleum News
On Nov. 24 the U.S. Fish and Wildlife Service published a final rule designating more than 187,000 square miles of the Alaska Arctic offshore, Arctic barrier islands and Alaska’s northern coast as critical habitat for the polar bear. Consequently, government agencies will now need to ensure that any proposed activity involving the federal government and occurring within the designated area does not adversely impact the habitat — federal involvement could, for example, consist of the permitting of the activity.
Following the May 2008 listing of the polar bear as threatened under the Endangered Species Act, Fish and Wildlife in October 2009 proposed designation of 200,541 square miles of territory as critical habitat, with the critical habitat designation being a legal requirement under the ESA.
In its final rule Fish and Wildlife has reduced the critical habitat area slightly, having more accurately accounted for the U.S. boundary of the offshore territory and having removed some U.S. Air Force radar sites, all existing manmade structures and the communities of Barrow and Kaktovik from the designated area.
“This critical habitat designation enables us to work with federal partners to ensure their actions within its boundaries do not harm polar bear populations,” Tom Strickland, assistant secretary for Fish and Wildlife and Parks, said in announcing the final rule. “Nevertheless, the greatest threat to the polar bear is the melting of its sea ice habitat caused by human-induced climate change. We will continue to work toward comprehensive strategies for the long-term survival of this iconic species.”
Habitat features Under the ESA, a critical habitat designation must include not only a defined area of territory but also the specific features within that territory that constitute the habitat. And in evaluating the likely impact of a proposed activity on a listed species, government officials assess, among other things, any possible damage that the activity might cause to those habitat features.
In the case of the polar bear Fish and Wildlife has made a clear distinction between offshore habitat and habitat onshore, or on barrier islands close to the coast. And whereas the habitat designation clearly spells out on-land habitat features such as steep, stable slopes where bears might den, the offshore habitat consists essentially of sea ice. So presumably an adverse impact on the offshore habitat would only occur in a situation where an activity damages the sea ice in some significant manner.
Fish and Wildlife spokesman Bruce Woods has confirmed to Petroleum News that a polar bear offshore critical habitat consultation would likely focus on mitigating sea-ice damage.
Climate change In fact, the original listing of the polar bear signaled the emerging use of the ESA as a tool to address the conservation of a species whose possible demise would result from global climate change, rather than resulting from some specific action, such as overhunting or the industrial destruction of habitat. And people generally agree that the gradual recession of the sea ice on which the animals mostly live is the factor that puts the animals’ future under question.
But the global warming that is causing the sea ice to recede is a global issue, rather than a phenomenon attributable to any single activity.
Recognizing this problem, in 2008 the U.S. Department of the Interior modified its regulations for the ESA, specifying that an activity that generates a greenhouse gas cannot be linked to impacts on listed species. DOI also introduced a special ESA rule for polar bears, saying that protection of polar bears under the terms of the Marine Mammals Protection Act and the Convention on International Trade in Endangered Species would suffice to meet the protection requirements of the ESA.
And supporters of the polar bear listing say that protection under the ESA will prevent or limit stress factors that might exacerbate the impact of the loss of sea ice habitat.
Economic impact Fish and Wildlife has downplayed the likely economic impact of the critical habitat designation, saying that the designation would have little effect beyond wildlife protections already in place under the Marine Mammals Protection Act. The main economic impact would be the cost of additional government consultations, with an estimated cost of $669,000 over a 29-year period, Fish and Wildlife has said.
But the State of Alaska has challenged this position, saying an independent review commissioned by the state and by Arctic Slope Regional Corp., the Native regional corporation for the North Slope, estimated that disruption to the oil and gas industry resulting from the designation could cost hundreds of millions or even billions of dollars in the next 15 years.
And, in a response to the final critical habitat rule, Gov. Sean Parnell reiterated the state’s position, saying that the rule would subject a vast area of territory to federal consultations over potential human activities within its boundaries.
“Such consultations are increasingly being misused to challenge responsible resource development,” Parnell said. “This additional layer of regulatory burden will not only slow job creation and economic growth here and for our nation, but will also slow oil and gas exploration efforts.”
Legal action? Parnell said that the state is considering legal action over the designation and is disappointed at the lack of consultation with the state over recommendations and comments that Fish and Wildlife had received. The state does not view the designation as being supported by sound science or good economic analysis, Parnell said.
ASRC also expressed its concern.
“The designation will do nothing to increase the species population, while the burden of the impacts will be felt by the people of the Arctic Slope. This is a quality of life issue for our people,” said Tara Sweeney, vice president of external affairs for ASRC.
Mayor Edward Itta of the North Slope Borough expressed similar sentiments, while also expressing his appreciation that Fish and Wildlife had excluded Kaktovik and Barrow from the habitat designation.
“I agree that the polar bear habitat needs protection. The problem is that the polar bear’s habitat is melting and there’s nothing our people can do to change that,” Itta said. “Polar bears are not endangered by human activity in the Arctic, so the listing and the critical habitat designation simply miss the target. What they will do is complicate, delay and possibly block the construction of basic community infrastructure.”
On the other hand, Defenders of Wildlife said that the critical habitat is essential in helping polar bears deal with the loss of sea ice and other habitat impacts.
“Today’s decision to designate critical habitat will provide crucial protection for polar bears, a species watching its habitat melt from beneath its feet,” said Karla Dutton, Alaska director for Defenders of Wildlife, on Nov. 24. “Designating critical habitat will help ensure that federal actions will not contribute to the polar bear’s plight.”
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