October 9, 2014
Public Comments Processing
Attn: FWS-R9-ES-2011-0104; FWS-R9-ES-2011-0072; FWS-HQ-ES-2012-0096
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, PDM-2042
Arlington, VA 22203
Re: Comments of draft policy and rule changes impacting critical habitat designation and consultations
To Whom It May Concern,
The Resource Development Council (RDC) offers the following comments in response to the U.S. Fish and Wildlife Service’s (FWS) and National Oceanic and Atmospheric Administration’s (collectively, the “Services”) request for comments on their draft policy and proposed revisions to the procedures and criteria for designating critical habitat under the Endangered Species Act (ESA).
RDC is a statewide, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources
The Services’ proposed changes are an alarming shift in the interpretation and enactment of the ESA’s critical habitat provisions. If adopted, the changes would unreasonably expand the Services discretion in designating critical habitat as well as determining which actions negatively impact the designations. This is in direct contrast to Congress’ amendment to the Act in 1978, which was intended to narrow the Services’ discretion and limit the magnitude of critical habitat designations.
RDC supports the comments offered by the Alaska Oil and Gas Association as well as the State of Alaska, and would like to reiterate the areas of utmost concern to our membership:
- The proposal to expand critical habitat designations to include unoccupied habitat that does not have the physical or biological features essential to the conservation of the species.
Under no circumstances should habitat be designated as critical for a species’ survival if it doesn’t contain the biological features necessary for survival, unless a determination by the Secretary is made that such areas are essential for the conservation of the species. Further, the Services should not expand critical habitat based on anticipated future habitat changes due to the effect of global climate change. Congress explicitly tied the habitat designation to “the time” at which a species is listed. The Services currently have authority to revise designations as necessary, and can make appropriate changes when necessary.
- The proposed changes to the definition of “Destruction or Adverse Modification” aren’t clear and are inconsistent with the ESA
The Services proposed changes to the definition of “destruction or adverse modification,” attempt to replace “survival and recovery” with the term “conservation value.” Congress defined the term “conservation” as “the use of all methods and procedures which are necessary” to bring a listed species to the point where ESA protections are no longer required. The Services suggest a definition of “conservation value” that differs from Congress’ definition of “conservation.” The preamble to the proposed rule defines “conservation value” as “the contribution the critical habitat provides, or has the potential to provide, to the recovery of the species.” The agency should not rely on a newly defined term in a preamble, especially when the preamble definition of “conservation” is different than the one imposed by Congress. Moreover, this new definition improperly focuses the adverse modification inquiry solely on recovery, not survival or recovery. RDC urges The Services to adopt a clear definition for “conservation value.”
In addition to these concerns, RDC would like to emphasize the importance of the provision – section 4(b)(2) – that requires the Services to consider economic and other factors that may weigh against designation of certain areas as “critical habitat.” The current proposals contradict this provision by expanding the Services’ discretion in a manner that the agencies acknowledge will result in increasing the size and scope of critical habitat designations.
Thank you for the opportunity to comment.
Sincerely,
Resource Development Council for Alaska, Inc.
