Endangered Species Law & Policy

On June 19, 2012, the U.S. Fish and Wildlife Service announced its final action designating 24,527 acres as critical habitat for the Pacific coast population of western snowy plover (Charadrius alexandrinus nivosus).  The designated critical habitat spans coastal areas in Washington, Oregon, and California to the Mexican border, typically characterized by sparsely vegetated, sandy beaches.  The Service identified several activities that may require special management within critical habitat areas, including, water diversions, resource extraction, and dune stabilization associated with human development. This final designation doubles the previously designated critical habitat.  The final rule is effective July 19, 2012.

The Service designated critical habitat in areas both occupied and unoccupied by the snowy plover.  Projects with a federal nexus (e.g., Clean Water Act section 404 permit, Bureau of Land Management right-of-way agreement), must comply with the consultation requirements of section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2).  Section 7(a)(2) applies when critical habitat is designated in an area even if the federally listed species does not occur on or near the project site. 

The Service’s 2012 final critical habitat rule for snowy plover is its third.  The species was listed in 1993  and critical habitat was first designated in 1999.  The 1999 critical habitat rule was challenged in court and vacated and remanded to the Service to correct deficiencies in the economic analysis accompanying the rule.  The Service issued a new critical habitat rule in 2005.  That rule, too, was challenged; the Service and the plaintiffs entered into a settlement agreement under which the Service would reconsider, re-propose, and finalize a new critical habitat rule—now the 2012 final rule. 

This sequence of events is not uncommon in the world of critical habitat regulatory activity.  Many critical habitat rules are now—or will soon become—third generation critical habitat designations.  The mid-2000’s generation of critical habitat designations were generally circumspect; the Service used its authority under section 4(b)(2) of the ESA, 16 U.S.C. § 1533(b)(2), broadly and excluded areas from critical habitat based on economic, social, national security, and other relevant factors.  Under a new administration, and in the wake of dozens of lawsuits challenging critical habitat rules, the pendulum has swung. As reported here, contemporary critical habitat designations are generally expanding and the regulated community appears ready to fight back.