Regulation Database – Fish and Wildlife Service
On November 14, 2016, FWS published a final rule, Management of Non-Federal Oil and Gas Rights, to protect refuge resources, visitors, and the general public’s health and safety from potential impacts associated with non-Federal oil and gas operations located within refuges. The rule specifies, among other things, that non-federal oil and gas operators must “[d]esign, operate, and maintain your operations and equipment in a manner consistent with good air pollution control practices so as to minimize emissions and leaks of air pollutants and hydrocarbons, including intentional releases or flaring of gases.”
Deregulatory Action: On March 29, 2017, DOI Secretary Zinke issued Secretarial Order 3349, aimed at implementing President Trump’s Executive Order on Promoting Energy Independence and Economic Growth. Among other things, the Order directed FWS to review the final rule on managing non-federal oil and gas rights. However, the Trump administration did not rescind the rule. More info >>
In 2010 FWS published a strategic plan for responding to climate change and a joint adaptation strategy for wildlife management that it plans to implement in coordination with the National Marine Fisheries Service (NMFS). FWS also provided additional guidance to managers through amendments to its handbook (pt. 1 / pt. 2) and instructional reports on planning for adaptation in the National Wildlife Refuges (see below). The handbook specifies that FWS will “integrate climate change adaptation strategies into all aspects of our policies, planning, programs, and operations” and the reports describe how FWS officials can account for climate change impacts and adaptation opportunities when developing conservation plans. To support this work, FWS began to conduct vulnerability assessments for specific refuges, promulgated guidance for future vulnerability assessments, and created an online portal of resources on climate change impacts and adaptation strategies (organized by region).
Adaptation Plans and Guidance Documents:
- Rising to the Urgent Challenge: Strategic Plan for Responding to Accelerated Climate Change (2010)
- National Fish, Wildlife and Plants Climate Adaptation Partnership, National Fish, Wildlife and Plants Climate Adaptation Strategy (2012).
- FWS Handbook, 056 FW 1 (2013)
- FWS Handbook, 056 FW 2 (2014)
- Planning for Climate Change on the National Wildlife Refuge System (2014)
- Considering Multiple Futures: Scenario Planning to Address Uncertainty in Natural Resource Conservation (2014)
Vulnerability Assessments (guidance):
- Refuge Vulnerability Assessment and Alternatives Technical Guide (2012)
- Manager’s Guide to Refuge Vulnerability Assessment & Alternatives (2012)
- Conservation in a Changing Climate, Consequences for Wildlife (website)
Vulnerable Assessments (examples):
- Vulnerability Assessment and Strategies for the Sheldon National Wildlife Refuge and Hart Mountain National Antelope Refuge Complex (2011)
- Resource Vulnerability Assessment and Strategies for Management Options for the Eastern Shore of Virginia and Fisherman Island NWRs (2011)
Integration of Climate Impact Analysis into Management Plans:
- Klamath Basin National Wildlife Refuge Final Conservation Plan and EIS (2016) (see Chapter 5)
- Deer Flat National Wildlife Refuge Final Comprehensive Conservation Plan and EIS (2015) (see pp. 2-7 -2-8, 3-4 – 3-10, 4-29)
- San Luis Valley National Wildlife Refuge Complex, Final Comprehensive Plan and EIS (2015) (see pp. 3, 39-40, 154, 169-171, 174)
Amendment to Critical Habitat Designation Regulations
On Feb. 11, 2016, FWS and the National Marine Fisheries Service (NMFS) finalized a rule amending parts of their regulations on the designation of critical habitat for endangered species. One important component of the rule are revisions to the regulatory provisions describing when FWS and NMFS can designate critical habitat outside of the outside the range occupied at the time of listing. The Endangered Species Act (ESA) provides that such areas should be included in the critical habitat designation if they are “essential for the conservation of the species.”
The previous regulations provided that FWS and NMFS could designate areas outside of the “geographical area presently occupied by a species’’ only when ‘‘a designation limited to its present range would be inadequate to ensure the conservation of the species.’’ The revised regulations remove this language, and instead instruct the agencies to consider “the life history, status, and conservation needs of the species based on the best available scientific data” when determining whether there are unoccupied areas that should be included in the critical habitat designation. As noted in the final rule, this gives the agencies more flexibility to account for factors such as climate change when setting habitat boundaries.
In August 2019 NOAA and the FWS amended the ESA regulations to reinstate the restriction that areas outside of the geographical area currently occupied by a species could be designated as critical habitat only when a designation limited to its present range "would be inadequate to ensure the conservation of the species.’’ NOAA and FWS further amended the regulations to prohibit the Secretary of Interior from designating critical habitat within an unoccupied area unless there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more physical or biological features essential to the conservation of the species.
The revisions also alter the threshold for designating a species as "threatened." When considering whether to list a species as threatened under the ESA, NOAA and the FWS analyze whether that species is likely to become endangered within the “foreseeable future.” As amended, the ESA regulations now define “foreseeable future” to extend “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.”
On August 21, 2019, seven organizations filed a lawsuit in the federal district court for the Northern District of California challenging amendments to the ESA regulations. Center for Biological Diversity v. Bernhardt (N.D. Cal. 3:19-cv-05206).
Listing Decision (FWS, 2008): Climate change was a key factor in FWS’s decision to list the polar bear as threatened. FWS found that the polar bear was threatened because they are dependent on sea ice for their survival, sea ice is declining across the bear’s habitat, and climate change has and will continue to reduce the extent of sea ice to a degree that polar bear populations are likely to become endangered within the foreseeable future. The polar bear listing was upheld by the D.C. Circuit District Court and Court of Appeals in In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litigation (D.C. Cir. 2013) .
- Final Rule, Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28212(May 15, 2008)
Designation of Critical Habitat (FWS, 2010): FWS designated 484,734 square kilometers of Alaskan land and territorial waters as critical habitat for the polar bear. FWS accounted for coastal erosion caused by climate change when defining the inland boundary of the bear’s terrestrial denning habitat. FWS also rejected comments from the State of Alaska urging it to reduce the extent of protected sea ice habitat and redefine habitat boundaries based on seasonal parameters, finding that this approach was impracticable due to “the extreme variability and dynamic nature of the sea ice, especially in the face of climate change.” The habitat designation was vacated by a district court in Alaska but ultimately upheld by the Ninth Circuit Court of Appeals in Alaska Oil and Gas Association v. Jewell (9th Cir. 2016).
- Final Rule, Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States, 75 Fed. Reg. 76,086 (Dec. 7, 2010)
Draft Conservation Management Plan (FWS, 2015): The conservation plan recognizes that slowing the rate of global warming is the most important action that can be undertaken to protect polar bears, and commits FWS to implementing a “science-based communication effort highlighting the urgent need for sufficient reductions in greenhouse gas emissions to support conditions for the recovery of polar bears from projected declines.” The plan also highlights actions that can be undertaken to improve the resilience of the polar bear population in the near term, including: (1) conserving the broad spatial distribution and ecological diversity of polar bear populations (including populations outside of the United States); (2) focusing resources on the conservation of terrestrial habitats for use by polar bears during ice-free months, particularly denning areas; (3) accounting for climate change when establishing subsistence harvest levels; and (4) strategic monitoring and research to better understand how to respond to the effects of climate change.
Greater Sage Grouse
Proposed Listing and Habitat Designation (FWS, 2013): In its proposal to list a population segment of the greater sage grouse as threatened, FWS listed climate change as one of 16 potential threats to the species, and describe how the effects of climate change (particularly rising temperatures) would exacerbate other threats, such as disease and habitat destruction caused by invasive species. FWS published a proposed habitat designation at the same time as the proposed listing, where it also accounted for climate change impacts. Specifically, FWS proposed to designate corridors of land as critical habitat, even though the corridors did not contain ideal habitat for the sage grouse, in order to improve the connectivity between current populations and reduce habitat fragmentation. The habitat designation was never finalized due to the withdrawal of the listing proposal.
FWS withdrew the proposed listing decision in 2015, noting that other conservation efforts were underway that would mitigate some of the threats of climate change.
- Proposed Rule, Threatened Status for the Bi-State Distinct Population Segment of Greater Sage-Grouse with Special Rule, 78 Fed. Reg. 64358 (Oct. 28, 2013)
- Proposed Rule, Designation of Critical Habitat for the Bi-State Distinct Population Segment of Greater Sage Grouse, Proposed Rule, 78 Fed. Reg. 64328 (Oct. 28, 2013)
- Withdrawal of the Proposed Rule to List the Bi-State Distinct Population Segment of Greater Sage-Grouse and Designate Critical Habitat, 80 Fed. Reg. 22828 (April 23, 2015)
North American Wolverine
Proposed Listing Decision (FWS, 2013): FWS issued a proposal to list a population segment of the North American Wolverine as threatened based, in part, on climate-related threats, but ultimately withdrew the proposal based on uncertainty about the impacts of climate change on the wolverine.
The withdrawal of the proposed listing decision for the wolverine was held arbitrary and capricious in Defs. of Wildlife v. Jewell, No. 14-247-M-DLC, 2016 WL 1363865 (D. Mont. Apr. 4, 2016). There, the court held that FWS had not adequately account for future climate change-related risks. Pursuant to that decision, FWS re-opened the comment period on the original proposal in Oct. 2016.
- Proposed Rule, Threatened Status for the Distinct Population Segment of the North American Wolverine Occurring in the Contiguous United States, 78 Fed. Reg. 7864 (Feb. 4, 2013)
- Withdrawal of Proposed Rule, Threatened Status for the Distinct Population Segment of the North American Wolverine Occurring in the Contiguous United States; Establishment of a Nonessential Experimental Population of the North American Wolverine in Colorado, Wyoming, and New Mexico, 79 Fed. Reg. 47522 (Aug. 13, 2014)
- Reopening of comment period, Proposed Rule for the North American Wolverine, 81 Fed. Reg. 71670 (Oct. 18, 2016)
Recovery Plan (FWS, 2015): The recovery plan describes how climate change will affect the bull trout and its habitat, and that FWS will address these impacts by: (1) utilizing a system of monitoring and adaptive management, and (2) allocating conservation resources to those areas with coldest water temperatures to offer the greatest long-term benefit for the bull trout. Other management strategies that are contemplated in the plan include artificial propagation and translocation.
Critical Habitat Designation (FWS, 2016): FWS recognized that this plant species was limited to a small range at higher elevations in one portion of east Maui, making it highly vulnerable to climate change, and thus that the establishment of additional populations in currently unoccupied areas would be essential for its continued survival. This decision illustrates how FWS and NMFS can use their authority to designate critical habitat in areas “outside the geographic area occupied by the species ta the time it is listed… [that are] essential for the conservation of the species” to address the effects of climate change on a species. As many species’ suitable ranges will shift northwards in latitude or higher in altitude as a result of climate change, it would make sense to take a similar approach in future habitat designations.