Endangered Species Law & Policy

On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida).  (79 Fed. Reg. 71,714).  The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres.  The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 Fed. Reg. 76,706).  Females give birth to one pup a year and the seal's range is strongly associated with the extent of sea ice throughout the Arctic Ocean and into the Beaufort, Bering, and Chukchi seas along the coasts of Canada and Alaska.  Seals depend on sea ice for birthing, molting, and over-wintering habitat, and depend on a large mass of open water for foraging habitat.

In addition to other factors, NMFS lists greenhouse gas emissions, oil and gas exploration, development, and production, shipping and transportation, and commercial fishing as threats to the seal. NOAA notes that, although the precise impact of greenhouse gas emissions upon the seal is unknown, they have the potential to decrease the availability of suitable sea ice habitat.

While the Secretary of Commerce has the authority under the ESA to exclude areas from critical habitat if those areas are nonessential to the survival of the species and if the economic impact of including the area outweighs the benefits of its inclusion, in the proposed rule.  Despite the identified potential economic impacts to oil and gas related activities, dredge mining, navigation dredging, commercial fishing, oil spill prevention and response, and certain military activities, the Secretary and NMFS declined to do so at this stage.  After acknowledging that there is a lack of data regarding activities in the proposed habitat that would be subjected to consultation under section 7 of the ESA, that there is a lack of information regarding any activities or development that is planned in the area, and a lack of information regarding native cultural practices or tribal activities that might be impacted by the proposed designation, NMFS estimated that the potential economic impact of the critical habitat designation is between $1.33 million and $1.86 million in the next ten years.

The proposal is open for comment for 90 days, and NMFS is specifically seeking information on any areas that should be considered for exclusion from designation as none are currently proposed.  Four public hearings on the proposal will be held in Alaska, in Anchorage, Nome, Kotzebue, and Barrow, with the dates and times to be announced at a later date.