Endangered Species Law & Policy

On April 13, 2023, the United States Fish and Wildlife Service (“Service”) published a proposed rule to revise the critical habitat designation for the rufa red knot (Calidris canutus rufa). The red knot is a shorebird that migrates annually between the Canadian Arctic and wintering regions to the south, including the Southeast United States, the Northeast Gulf of Mexico, northern Brazil, and Tierra del Fuego at the southern tip of South America. During both northbound (spring) and southbound (fall) migrations, red knots use key staging and stopover areas to rest and feed.  

The red knot was listed as a threatened species under the federal Endangered Species Act (ESA), effective on January 12, 2015, after population data showed a decline of roughly 70-75 percent from the 1980s to the early 2010s. Threats to the species include habitat loss due to sea level rise and development along shorelines; climate-change related threats including greater predation in its Arctic breeding grounds and timing mismatches during its spring and fall migrations due to changing weather patterns; and reduced prey availability from multiple causes, including climate change and the reduced availability of horseshoe crab eggs in Delaware Bay due to the commercial harvest of the horseshoe crab. In its listing decision, the Service considered risks to the species due to wind development, particularly offshore wind development, but found that wind energy development was not likely to cause significant habitat loss or degradation unless facilities were constructed at key wintering or stopover habitats, and that collision risk was relatively low but higher near the coast.

The Service first proposed to designate critical habitat for the red knot in 2021, in portions of 13 states: Massachusetts, New York, New Jersey, Delaware, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. That filing was required by a court order in the case of Defenders of Wildlife v. Zinke, 18-cv-1474, in which the plaintiff had alleged that the Service had violated the ESA when it failed to designate critical habitat for the red knot within one year of listing the species as threatened. The areas proposed for designation as critical habitat include coastal areas identified as wintering and migration habitat for the red knot, which have been judged by the Service to have features essential to the conservation of the species that may require special management considerations or protection. Many of the proposed critical habitat units also overlap with critical habitat designated for other federally threatened species including the piping plover, loggerhead sea turtle, Gulf sturgeon, and West Indian manatee, and one federally endangered species (the aboriginal prickly-apple).

The 2023 proposed rule responds to comments on the 2021 proposed rule, changing several units and adding several others, but does not designate any new areas beyond the states and counties already included in the 2021 proposed designated critical habitat. The 2023 proposed critical habitat totals approximately 683,405 acres in the 13 states listed above, and the listing includes maps of all of the proposed critical habitat areas.

The Service is accepting public comments on the 2023 proposed rule and re-opening the comment period on the 2021 proposed rule; however, comments previously considered need not be resubmitted and will be considered in preparation of the final rule designating critical habitat for the rufa red knot. Comments must be submitted on or before May 30, 2023, and may be submitted by going to www.regulations.gov and searching for docket number FWS–R5–ES–2021–0032.