NMFS Defines Critical Habitat for Atlantic Sturgeon

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Endangered and Threatened Species; Designation of Critical Habitat for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Maine Distinct Population of Atlantic Sturgeon, 82 FR 39229 (Aug. 17. 2017)

On August 17, 2017, NMFS published its final designation of critical habitat for five distinct populations segments (DPS) of Atlantic Sturgeon.  Endangered and Threatened Species; Designation of Critical Habitat for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Maine Distinct Population of Atlantic Sturgeon, 82 FR 39229 (Aug. 17. 2017).  The designation concludes a process that took almost five years and involved a legal challenge and ultimately, a court order.  The five DPS of Atlantic Sturgeon were listed in 2012 as either endangered or threatened.  Once a species is listed, the relevant agencies must identify critical habitat for the species.  Under the ESA, impacts to critical habitat must be evaluated in federal permitting actions, in addition to impacts to the species itself.  In March 2014, two NGOs filed a lawsuit alleging the NMFS had violated the ESA by failing to issue proposed and final rules designating critical habitat for the DPSs.  The parties settled the case, and, pursuant to the court-ordered agreement, NMFS submitted proposed rules for the critical habitat designation on May 30, 2016.  The Final Rule became effective on September 18, 2017.

The Final Rule designates over 3,900 river miles along the east coast as critical habitat.  The Agency chose these areas based on the presence of “physical or biological factors” (PBFs) essential for the conservation of the species and that may require special management considerations or protection.  Notably, this critical habitat designation is based on the new critical habitat regulations finalized in February 2016.  These regulations instruct the agencies to identify habitats with sufficient PBFs to promote the recovery of a species in addition to promoting its survival.  Once a critical habitat is designated, a project’s impacts cannot “appreciably diminish” the PBFs within the habitat.  Many believe these regulations could result in critical habitat designations that extent beyond the traditional scope, and that require more mitigation and avoidance.

In the rule, NMFS defines the conservation objectives for all five DPSs.  These conservation objectives include:

  • Facilitating increased successful reproduction and recruitment to the marine environment
  • Increasing the abundance of the DPS by facilitating increased survival of all life stages and facilitating adult reproduction and juvenile and subadult recruitment into the adult population,

The objectives are supported by protecting specific PBFs tailored for the different populations of the sturgeon.  Any project affecting the Atlantic sturgeon’s critical habitat must avoid altering the identified PBFs.

It is notable that NMFS exercised its discretion under Section 4(b)(2) of the ESA not to designate certain unoccupied areas as critical habitat, concluding that “the benefits of exclusion (that, is avoiding some or all of the impacts that would result from designation) outweigh the benefits of designation.”  82 FR 39229.  This decision was a departure from the proposed rule, which proposed to designate areas of unoccupied areas in the Santee-Cooper river system and the Savannah River as critical habitat.

Significance of this rule:

This is the first critical habitat designation issued by the Trump Administration.  Although it complied with the new critical habitat regulations, the final rule deviates significantly from the proposed rule by avoiding designating unoccupied areas.  Nonetheless, a significant area along the east coast has been designated as critical habitat, which will impact the scope of review for projects requiring federal permits in these areas, including most projects that take place in water, since those projects commonly require a permit from the U.S. Army Corps.

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