Settlement Requires Federal Government to Designate Critical Habitat for Species Listed Due to Global Warming Concerns

The National Marine Fisheries Service (“NMFS”) has agreed to propose critical habitat designations for four marine species occurring in parts of Florida, the Caribbean, the Gulf of Mexico, and California by early 2008, including two corals which are “the first, and to date the only, species listed under the Endangered Species Act due to threats from global warming.” [1] Final critical habitat designations will follow within one year. The deadlines are the result of a recent settlement agreement between the Center for Biological Diversity (the “Center”) and the federal government filed in U.S. District Court for the District of Columbia.[2]

Statutory Background

The Endangered Species Act (“ESA”) requires NFMS[3] to designate “critical habitat” for species under the agency’s jurisdiction.[4] NMFS must designate critical habitat “concurrently” with its decision to list species unless, based on the best scientific and commercial data available, unless critical habitat designation is not determinable at the time of listing.[5] “Critical habitat” is defined as a specific geographic area that is essential for the conservation of a threatened or endangered species listed under the ESA.[6] Areas designated as critical habitat sometimes require special management considerations or protections and also prohibit the destruction or adverse modification of the habitat.[7] If NMFS determines that critical habitat is not determinable at the time of listing, it has one additional year to publish a final rule designating, “to the maximum extent prudent” critical habitat based on “such data as may be available at that time.”[8] Under the applicable regulations, “not prudent” means “not…beneficial to the species” or “increasing the degree of [takings] threat to a species.”[9]

The Secretary may exclude areas that meet the statutory definition of “critical area” from designation under the ESA “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…that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”[10] The Secretary must also consider national security and economic impacts in designating any area as critical habitat.[11]

In practice, designation of critical habitat frequently does not occur at the time of the listing decision, thereby opening agencies up to ESA citizen litigation.[12] Agencies have contended that they lack the funds necessary to carry out the statutory mandate and that critical habitat designation is often duplicative of protections already provided under the ESA.[13]

Species in Question

On August 30, 2007, the Center sued the Secretary of Commerce and the National Marine Fisheries Service (collectively NMFS) for failing to designate critical habitat for four marine species protected by the ESA: elkhorn coral, staghorn coral, the U.S. distinct population segment (“DPS”)[14] of smalltooth sawfish, and the southern DPS of North American green sturgeon. The Center sought declaratory judgment and injunctive relief requiring NMFS to comply with its mandatory duty to designate critical habitat for the species.

More than a year had passed since NMFS promulgated final rules listing each of these species. NMFS listed the U.S. DPS of smalltooth sawfish as endangered on April 1, 2003 after determining that the species is in danger of extinction throughout much of its range. The species occurs in Florida, the Gulf of Mexico and along parts of the east coast of the United States up to North Carolina. The DPS is threatened with extinction by activities such as overharvesting and loss of habitat resulting from agricultural and commercial development, boating, erosion, and pollution.[15] At the time of listing, NMFS concluded that critical habitat for the smalltooth sawfish was “not determinable.”[16]

On April 7, 2006, NMFS listed the southern DPS of green sturgeon as threatened and, again, found that critical habitat designation for that species was not then determinable.[17] The green sturgeon occurs in marine waters from Alaska to Mexico. The only remaining spawning grounds for the southern DPS are located in California’s Sacramento River and Klamath River basin, and the Rogue River in Oregon. The Sacramento River contains the only known spawning population of the southern DPS.

Finally, NMFS listed elkhorn and staghorn corals as threatened on May 9, 2006, due to precipitous declines in abundance or range of the species across in Florida and the Caribbean.[18] Again, at the time of listing, NMFS concluded that critical habitat designations for the corals were “not determinable.”[19] As factors leading to the coral species’ decline, the agency cited disease, “persistent elevated sea surface temperature,” sea level rise, and hurricane damage.[20] According to the Center, the corals are “the first, and to date the only, species listed under the Endangered Species Act due to threats from global warming.”[21]

Settlement Agreement

Under the Settlement Agreement, NMFS must propose critical habitat for each of these species–if prudent-by early 2008, and must designate critical habitat for the species within one year. The deadline for NMFS’ proposed critical habitat designations for the smalltooth sawfish and green sturgeon DPS’s are February 29, 2008 and April 30, 2008, respectively. The deadline for NMFS’ proposed critical habitat designations for staghorn and elkhorn corals is January 31, 2008. NMFS must submit final critical habitat designations for the smalltooth sawfish and green sturgeon DPS’s to the Federal Register within one year of the proposed designations. NMFS must also submit final critical habitat designations for the coral species by November 30, 2008.

Despite these enforceable deadlines, NMFS may decide that: (i) it would not be prudent to designate critical habitat for one or more species; (ii) no critical habitat exists for one or more species, as defined by the ESA; or (iii) areas that meet the statutory definition of “critical area” should, nevertheless, be excluded from designation under the ESA. To the extent that NMFS decides to limit its designation of critical habitat in accordance with these factors, it must explain its decision in the proposed critical habitat designation submitted to the Federal Register in early 2008.

Conclusion

If critical habitat is designated, developers and other individuals will be affected by the designations in situations where there is a nexus between their activities and the modification or destruction of critical habitat. Given the potential for restrictions and the general controversial nature of critical habitat designations, NMFS is likely to hear from a wide array of stakeholders during the critical area designation process.