The National Marine Fisheries Service ("NMFS") proposes to designate critical habitat within the Puget Sound/Georgia Basin for three species of rockfish, including the endangered Distinct Population Segments ("DPS") of bocaccio (Sebastes paucispinus) and the threatened DPSs of yelloweye rockfish (S. ruberrimus) and canary rockfish (S. pinniger). Section 4 of the Endangered Species Act ("ESA") requires NMFS to designate critical habitat for endangered and threatened species on the basis of the best available scientific data, after taking into consideration economic, national security, and other impacts. The designation of critical habitat does not create a wildlife preserve, but Section 7 of the ESA requires that federal agencies ensure that federally authorized projects, including projects that require dredging or filling permits, do not destroy or adversely modify critical habitat.
The three rockfish DPSs share similar natural history and habitat uses and were originally listed as threatened or endangered under the ESA on April 28, 2010. Generally, rockfish are iteroparous, meaning they have multiple reproductive cycles during their lifetime, and are long-lived, spending most of their lives (juvenile and adult stages) in habitats within and adjacent to areas that are highly rugose (rough).
In the proposed rule, NMFS intends to designate over 1,250 square miles within five interconnected areas as critical habitat for juvenile and adult rockfish: (1) The San Juan/Strait of Juan de Fuca Basin, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and (5) Hood Canal. The basis for the designations is evidence suggesting that each area contains suitable attributes to support growth, survival, reproduction, and feeding opportunities (such as the availability of prey and satisfactory water quality) and contains the structure and rugosity to support predator avoidance (such as rocky or highly rough habitat). Notably, NMFS is declining to designate certain areas within the control of the Department of Defense on the basis that national security considerations outweigh the benefits of the designation in those particular areas. NMFS also plans to exclude Indian lands. The proposed rule, along with several maps showing the areas proposed for designation, is available at the link above.
The proposed designations may have ramifications for projects that require dredging and filling or bank stabilization and for offshore energy developers. Under Section 7 of the ESA, permitting agencies may be required to consult with NMFS before issuing federal permits and must ensure that any such projects occurring in areas designated as critical habitat do not destroy or adversely modify the habitat. Comments are due by 5 p.m. P.S.T. on November 4, 2013, and all comments received will (1) become part of the public record and (2) be considered by NMFS when making its proposed critical habitat designations.
Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on critical habitat issues and issues involving endangered and threatened species. If you have any questions about the issues raised in this alert, please contact a key contributor.