The Nickel Report

From the Penobscot River in Maine to the St. Mary’s River in Florida, the Atlantic sturgeon ranges, swimming periodically up river to spawn and returning to marine waters when it is done. With a lifespan of up to 60 years, the Atlantic sturgeon can grow up to 14 feet long and weigh up to 800 pounds, according to the National Marine Fisheries Service (NMFS). Despite this species’ mighty proportions and vast range, five distinct population segments of the species have been listed by the as threatened or endangered.

[caption id="attachment_576" align="alignnone" width="560"] Critical Habitat Map - Click for full-size PDF[/caption]

Now, NMFS has designated “critical habitat” (DCH) for those segments. 82 Fed. Reg. 39,160 (August 17, 2017). The designation covers almost 4000 miles of habitat in 14 states stretching down the Atlantic coast from Maine to Florida, with North Carolina, South Carolina and Georgia hosting the greatest number of river miles. This sweeping designation is likely to affect applicants seeking federal permits for activities that occur in or could affect the designated habitat.

Under the Endangered Species Act (ESA), “critical habitat” means (1) specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those “physical and biological features” essential to the conservation of the species and which may require special management considerations or protection, and (2) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Although ESA section (4)(a)(3) contemplates that the NMFS will designate critical habitat concurrently with a listing, section 4(b)(6()C)(ii) provides additional time if critical habitat is not at that point determinable. The NMFS found that critical habitat for the listed segments was not determinable in 2012; it was later sued, and entered into a settlement agreement under which it agreed to designate critical habitat for the Atlantic sturgeon, using the relatively sparse information it had on hand.

The newly designated critical habitat is likely to have an important influence on federal actions going forward, particularly with regard to federal permitting. Section 7(a)(2) of the ESA requires federal agencies to consult with the Services to ensure that any action authorized, funded or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or “result in the destruction or adverse modification” of designated critical habitat. Consultation often results in delay, costly mitigation measures, and changes to the project to avoid or minimize impacts. And consultation based on the final rule likely will be fraught with contention because, as the NMFS acknowledged, “there are large areas of most rivers where data are still missing” on the exact location of physical and biological factors essential to the species’ conservation. 82 Fed. Reg. 39,168. So, although the preamble defends the NFMS’s designation as reflective of the best scientific information available, the information it relied on leaves many questions unanswered.