The Delaware Riverkeeper Network and the Natural Resources Defense Council, two environmental organizations, recently filed suit in federal district court in Washington D.C., seeking to compel the Secretary of Commerce to designate "critical habitat" for the Atlantic sturgeon. The fish is native to most East Coast rivers and estuaries, including the Hudson, Delaware, and Susquehanna river basins, Chesapeake Bay, and other waterways throughout the country's most populated region. The plaintiffs' complaint is posted here.

Several populations of Atlantic sturgeon were listed as endangered or threatened under the federal Endangered Species Act (ESA) by Commerce's National Marine Fisheries Service (NMFS) just over two years ago.1 East Coast energy and infrastructure developers, water users, port and shipping interests, and others potentially affecting river and estuary environments already face restrictions on "take" of Atlantic sturgeon. If the plaintiffs' action leads Commerce to designate critical habitat, the existing "take" restrictions will be augmented by new limits on federally permitted or funded actions adversely modifying or destroying sturgeon critical habitat.

The Commerce Department has not answered the environmental plaintiffs' complaint yet. In many instances, ESA critical habitat deadline suits are resolved by settlement and an agreed upon schedule to propose and finalize a critical habitat designation for the species at issue. This is so because the courts have routinely held that the critical habitat designation is a mandatory, not discretionary, step under the ESA following the listing of a species. While NMFS may decline to designate critical habitat at the time of listing if it is not prudent to do so or if such habitat is not determinable,2 the agency must eventually do so within one additional year based on data available at the time.3 For the Atlantic sturgeon, that deadline passed more than a year ago.

The many businesses, governments, special-purpose districts, water users, permit holders, landowners, and others potentially affected by designation of critical habitat for the Atlantic sturgeon may wish to begin gathering information now in anticipation of a proposed designation of critical habitat. All interested parties will have an opportunity to comment on the proposed designation, which will be accompanied by a draft economic impact analysis. The ESA specifically directs the agency to take into account the economic and other impacts of designating particular areas as critical habitat,4 and also provides NMFS with the opportunity to exclude areas from a critical habitat designation.

The proposed designation comment and rulemaking process is the key opportunity to advise NMFS on what should and should not be in critical habitat, and to provide supporting information for the administrative record before the agency. This is an especially crucial step if litigation concerning the designation may be anticipated, because there is no opportunity to develop the record before the court, which bases its review on the record compiled before the agency during the designation process.

Well before the critical habitat designation is finally resolved, potentially affected parties will want to consider the options that may be available under the ESA to minimize future regulatory exposure and requirements from the designation. One tool to consider in commenting and participating in the critical habitat designation process is providing information to NMFS to aid it in identifying which areas contain or lack the primary constituent elements essential to the conservation of the species; areas lacking such elements do not meet the regulatory definition of critical habitat. Also, parties that are participating in a habitat conservation plan (HCP) under ESA Section 10 may have a basis to exclude areas covered by the HCP from the designation.

If NMFS develops an overbroad designation, litigation may provide a remedy in appropriate instances, as in the recent polar bear critical habitat designation. That designation, the largest ever at over 187,000 square miles, was set aside by a federal court in Alaska after it determined that the U.S. Fish and Wildlife Service failed to follow the required procedures, failed to appropriately consider and respond to the State's comments on the designation, and failed to document that all areas designated contained the necessary primary constituent elements to support the designation5.

ESA Section 4 also contains specific petition procedures that, in applicable circumstances, can be used to revise or correct an overreaching designation. In Idaho, NMFS revised a designation this way after the petitioner established that the area did not satisfy the requirements to be treated as critical habitat. These and other approaches to managing critical habitat issues may merit consideration in responding to the Atlantic sturgeon potential critical habitat designation.