FWS proposes largest ever critical habitat designation with over 200,000 square miles for polar bears
74 Fed. Reg. 56058 / Vol. 74, No. 208 / Thursday, October 29, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States
ACTION: Proposed rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for polar bear (Ursus maritimus) populations in the United States under the Endangered Species Act of 1973, as amended (Act). In total, approximately 519,403 square kilometers (km2) (200,541 square miles (mi2)) fall within the boundaries of the proposed critical habitat designation. The proposed critical habitat is located in Alaska and adjacent territorial and U.S. waters. DATES: We will consider comments we receive on or before December 28, 2009.
EXCERPT RE: LOCATIONS. Currently, there are two polar bear populations in the United States as defined under the Marine Mammal Protection Act (MMPA): the southern Beaufort Sea population, which extends into Canada; and the Chukchi and Bering Seas population, which extends into the Russian Federation (Russia). Although the two U.S. populations are not distinguishable genetically, the population boundaries are thought to be ecologically meaningful and distinct enough to be used for management.
EXCERPT RE: PRIMARY CONSTITUENT ELEMENTS. Based on the needs identified above and our current knowledge of the life history, biology, and ecology of the species, we have determined that the primary constituent elements (PCEs) for the polar bear in the United States are: (1) Sea-ice habitat used for feeding, breeding, denning, and movements, which is sea ice over marine waters that occur over the continental shelf at depths 300 m (984.2 ft) or less. (2) Terrestrial denning habitat, which includes topographic features, such as coastal bluffs and river banks, with suitable macrohabitat characteristics. Suitable macrohabitat characteristics are: (a) Steep, stable slopes (range 15.5–50.0°), with heights ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or relatively level ground below the slope and relatively flat terrain above the slope; (b) unobstructed, undisturbed access between den sites and the coast; and (c) the absence of disturbance from humans and human activities that might attract other bears. (3) Barrier island habitat used for denning, refuge from human disturbance, and movements along the coast to access maternal den and optimal feeding habitat. This includes all barrier islands and their associated spits, within the range of the polar bear in the United States, and the water, ice, and terrestrial habitat within 1.6 km (1 mi) of these islands. For purposes of this proposed rule, we are proposing three critical habitat units based on the three PCEs described above.
As polar bears evolved from brown bears, they became increasingly specialized for hunting seals from the surface of the sea ice. Snow cover, both on land and on sea ice, is an important component of polar bear habitat in that it provides insulation and cover for polar bear dens. Sea ice is rapidly diminishing throughout the Arctic, and declines in optimal polar bear sea-ice habitat have already been documented. The proposal would designate habitat in three areas or units: barrier islands, sea ice and terrestrial denning habitat. Photo by FWS from The Physical Environment.
KEITHINKING: It could become the largest ever designation of critical habitat, and in turn, will probably spawn the largest ever litigation over whether or not some future federal agency action "adversely modifies" the critical habitat. As FWS explained in the rule, "Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that appreciably reduces the conservation value of critical habitat for polar bear populations in the United States." Also, as FWS explained in its special 4(d0 rule on the threatened species listing, "in the event critical habitat is designated for the polar bear in the future, nothing in this special rule affects the prohibition against destruction or adverse modification of any critical habitat through a Federal action, and Federal agencies would be required to consider the destruction or adverse modification standard in the consultation process under section 7 of the ESA." See links to rule in ESA blawg.
This critical habitat designation could easily turn into an alternative tool for regulating climate change. See prior ESA blawg. Notably, FWS listed three specific types of activities that it believes trigger the "adverse modification" threshold: (1) Actions that would reduce the availability or accessibility of polar bear prey species. (2) Actions that would directly impact the PCEs. (3) Actions that would render critical habitat areas unsuitable for use by polar bears. The third category could prove especially controversial; inevitably, the dispute will be over how direct or attenuated the cause and effect relationship needs to be between the proposed federal action, and the affects on polar bears. (Interestingly, in its own comment letters on the ESA regulations, the State of California asserted that "carbon dioxide emissions have a direct adverse impact on the polar bear and its habitat.") Expect the battle over the application of the adverse modification standard to be intense. NRDC already stated that it expects the FWS to expand its ESA review of oil and drilling activity. The Los Angeles Times. WWF emphasized the close relationship with climate change issues. But on the other side of the issue, the State of Alaska plans to continue former Governor Sarah Palin's opposition to the designation. See NPR article. The 60-day comment period is now underway.
FOR MORE INFORMATION, visit FWS Alaska office, and articles in sustainablebusiness.com, and New York Times and blogs and other media including Van Ness Feldman,