Fish and Wildlife Proposes Massive Critical Habitat Designation for Polar Bear

The U.S. Fish and Wildlife Service (the “USFWS”) recently proposed to designate 200,541 square miles of critical habitat in the Arctic for the polar bear, which the USFWS listed as a threatened species under the Endangered Species Act (the “ESA” or the “Act”) last year. The area is the largest ever proposed for critical habitat designation by the federal government in the history of the ESA.[1]

The primary industrial use in the proposed area is oil and gas development. The consultation requirements under section 7 of the Act will apply to the entire area, prohibiting federal agencies from carrying out, funding, or authorizing activities which could destroy or adversely modify critical habitat. The proposal, like the listing decision, is controversial. A number of oil and gas companies and the State of Alaska have already challenged the listing decision, which they believe will curtail production. The USFWS will accept comments on the proposed habitat rule through December 28, 2009.[2]

Background

The USFWS listed the polar bear as threatened in May 2008 because it determined that “polar bear habitat – principally sea ice – is declining throughout the species’ range, that this decline is expected to continue for the foreseeable future, and that this loss threatens the species throughout all of its range.”[3] The USFWS also evaluated potential threats from oil and gas operations, subsistence harvest, shipping and tourism. It determined that those impacts were not significantly contributing to the species’ decline, but that minimizing such activities could nonetheless become important to the species’ conservation. The USFWS anticipates that, with continued mitigation measured required under the Marine Mammal Protection Act (the “MMPA”), impacts to polar bears from oil and gas operations, for example, “will be minimized and will remain negligible.”[4]

The listing decision was the first instance in which the USFWS explicitly acknowledged the potential for extinction of a vertebrate species due largely to climate change effects. It was initiated by a lawsuit, and led to many more. See, e.g., J. Ferrell, Polar Opposites: State of Alaska, Hunting and Environmental Groups Challenge Polar Bear Listing, Marten Law Group Environmental News (June 11, 2008); J. Ferrell, Interior Lists Polar Bear – What Does It Mean?, Marten Law Group Environmental News (May 14, 2008). Alaska Governor Sean Parnell recently announced his state’s intent to continue litigation initiated and supported by his predecessors seeking to delist the polar bear,[5] and to oppose protections for other species in his State, such as ribbon seals.[6] Alaska Attorney General Dan Sullivan surmised that a consequence of listing could be turning the state into “the world’s largest zoo,” with associated negative economic effects from stunted resource development.[7]

Critical habitat requirements

Under the ESA, the federal wildlife services are required to designate critical habitat at the time of listing, to the maximum extent possible. In this case, the USFWS determined that it needed more time to determine the appropriate habitat. Environmental groups filed suit to force designation. The parties reached a settlement under which the Department of Interior agreed to publish a final rule designating habitat for the bear by June 30, 2010.[8]

Section 3 of the ESA defines “critical habitat” as: (1) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary.

Areas covered by proposed habitat designation

Polar bears occur throughout the ice-covered waters of the circumpolar Arctic. However, under federal regulations, the USFWS does not designate critical habitat outside of United States jurisdiction.[9] In the United States, two polar bear populations occur in Alaska and adjacent state, territorial, and federal waters: the southern Beaufort Sea population and the Chukchi and Bering Seas population. Therefore, the proposed designation would cover habitat in three separate areas, all off and along the Alaskan coast: barrier island habitat, sea ice habitat, and terrestrial denning habitat. Although critical habitat can be designated as such even if it is not occupied by the species, each of these areas was occupied at the time of listing, and is today.

The sea ice habitat unit is by far the largest of the proposed designation, comprising 96% of the total area. Sea ice habitat is 93% federally owned, with the remainder belonging to the State of Alaska. The terrestrial denning habitat covers just 5,668 square miles, and is also primarily federally owned, with 20% ownership by the state and 6% ownership by Alaska Natives. The barrier island habitat covers the smallest portion (4,089 square miles), and is primarily owned by the State, with 27% ownership by Alaska Natives and 9% federal ownership.[10]

Effects of designation

Critical habitat receives protection under section 7 of the Act through the prohibition against federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. To that end, section 7 requires consultation on federal actions that may affect critical habitat. Habitat designation does not “affect land ownership or establish a refuge … or preserve.” It does, however, require the USFWS to take steps to help the species recover. In addition, wherever a permit applicant seeks or requests federal agency funding or authorization that may affect a listed species or critical habitat, section 7 applies. But even in the event of potential destruction or an adverse modification finding, the permit applicant’s “obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.” [11]

According to USFWS, the type of actions that would likely trigger section 7 obligations include: (1) reducing the amount or accessibility of polar bear prey, such as human disturbances of polar bear foraging, especially during key feeding periods; (2) seismic activity, road and drilling pad construction, development of new onshore and offshore oil and gas production sites, and various methods of transport, including helicopters, aircraft, boats, snow machines, and vehicles; and (3) activities that could render areas unsuitable for use by the bears, including discharges or spills from oil and gas drilling and production.[12]

Related administrative and judicial developments

The polar bear is the highest profile species among many relevant to developing law involving the ESA and climate change. See R. Prugh & J. Ferrell, Despite Apparent Recovery, Climate Change Keeps Grizzly Bears on ESA List (Oct. 19, 2009) (providing background on recent delisting decision and status of listing petitions based on climate change effects). With respect to the polar bear and its primary food sources (i.e., seals), environmental groups have aggressively and sometimes successfully litigated against the U.S. government. Oil and gas operations have been subjected to increased litigation since environmental groups first petitioned to list the polar bear, including lawsuits under the MMPA, ESA, and the National Environmental Policy Act (“NEPA”). With the addition of the section 7 hook as early as this summer, the critical habitat designation will likely expand litigation challenging such activities considerably.

Many open questions remain, particularly regarding the scope of consultation obligations in the context of the effects of activities on listed species in the Arctic. Earlier this year, Secretary of the Interior Ken Salazar announced that he would retain a controversial Bush-era rule that limits application of certain ESA protections for the polar bear to the existing regulatory requirements under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the MMPA (the “polar bear 4(d) rule”).[13] The decision left open the possibility of using additional conservation measures in the future. The Secretary’s decision indicated, however, that the current administration will not likely use the ESA as a mechanism to control greenhouse gas emissions, notwithstanding the adverse effect of such emissions on some species’ habitat. Instead, Salazar stated that the United States “need[s] a comprehensive energy and climate strategy that curbs climate change and its impacts.”[14] The USFWS subsequently issued a draft “Strategic Plan for Responding to Accelerating Climate Change,” intended to address “the agency’s role in the Department of the Interior’s national efforts to conserve fish and wildlife in a rapidly changing climate.”[15]

In the polar bear 4(d) rule and additional guidance documents and rules published in 2008 and 2009, the Services emphasized that the emission of greenhouse gases by individual sources will not trigger ESA consultation requirements. See J. Ferrell, Obama Administration Revokes Bush-Era ESA Consultation Rule; Decision on Polar Bear Rule Still Pending; New ESA Consultation Regulations Draw Immediate Fire; Proposed ESA Rule Could Significantly Reduce Section 7 Consultations. The polar bear 4(d) rule exempts from consultation the effects of actions that “are manifested through global processes and (i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or (ii) would result at most in an extremely small, insignificant impact on listed species or critical habitat; or are such that the potential risk of harm to a listed species or critical habitat is remote.”[16] Accordingly, consultation requirements that will be triggered when the USFWS publishes its final rule designating the polar bear’s critical habitat – presumably, by June 2010 – may not expand to all-encompassing proportions, as they will be largely limited to activities occurring in or near designated habitat that could directly affect critical habitat or individual bears.

However, the regulatory requirements will be more significant than they are now, and litigation over protections for the polar bear is far from over. The listing and polar bear 4(d) rule are already the subject of several lawsuits which have been consolidated into a single case in before Judge Emmet Sullivan in the United States District Court for the District of Columbia.[17] Suits over critical habitat may join that docket soon.

For additional information on the ESA, contact Jessica Ferrell or any other member of Marten Law Group’s Natural Resources practice group.