The United States Fish and Wildlife Service (“FWS”) announced on September 1, 2020 that it has decided not to designate critical habitat for the endangered rusty patched bumblebee. The announcement, published in the Federal Register, comes more than three years after the bumblebee was listed under the Endangered Species Act (“ESA”) as an endangered species. At the time the bumblebee was listed in January, 2017, FWS determined that designation of critical habitat “may be prudent.” Now, FWS has made a final determination that it would not be prudent to designate critical habitat for the bumblebee because loss of habitat is not a primary threat to the bumblebee, and availability of habitat will not affect conservation efforts.
Designating Critical Habitat
The purpose of the ESA is to protect and recover imperiled populations of species, and the habitat on which those species depend. To achieve this purpose, the ESA requires that FWS keep a list of species that are endangered or in threat of becoming endangered. Once listed, those species receive certain protections under the ESA aimed at conserving, and eventually recovering, the species’ population. One of those protections is the designation of critical habitat.
Once FWS lists a species as either endangered or threatened, the ESA requires that the agency also make a critical habitat determination. The ESA identifies two types of critical habitat: habitat within the geographical area occupied by the species at the time it is listed, and habitat outside the geographic area occupied by the species at the time it is listed. Areas within the geographical range of a species at the time it is listed are only critical habitat if those areas contain “physical or biological features (1) essential to the conservation of the species and (2) which may require species management considerations or protection[.]” On the other hand, areas outside the geographical range of a species at the time it is listed will only be critical habitat upon a determination by FWS that “such areas are essential for conservation of the species.”
Although FWS will consider whether to designate critical habitat each time it lists a species under the ESA, not every listed species will receive critical habitat. According to the text of the statute, FWS is required to designate critical habitat only when it is “prudent and determinable” to do so. While neither the text of the ESA or its regulations define the term “prudent and determinable,” the regulations identify circumstances when it is either not prudent or not determinable to designate critical habitat. Designating critical habitat is not determinable when either there is not enough data to make the necessary analyses, or when the biological needs of a species are not sufficiently understood to know what areas would be critical habitat for that species. 50 CFR § 424.12 (a)(2)(i),(ii). There are a variety of circumstances when designating critical habitat would not be prudent, including when the primary threat to the species is not habitat destruction, or when threats to the species could not be addressed solely through habitat management. 50 CFR § 424.12 (a)(1)(i)-(v).
Once an area has been designated as critical habitat, it receives its own protections under the ESA. Under the ESA, federal agencies may not carry out or fund any action which would “destroy or adversely modify” critical habitat. Agencies must consult with FWS about the impacts their actions will have on critical habitat, and may need to adopt mitigation measures to avoid destruction or adverse modification of designated critical habitat.
Critical Habitat & the Rusty Patched Bumblebee
When FWS first listed the rusty patched bumblebees as endangered in 2017, the agency concluded that critical habitat was not determinable due to a lack of data on the needs of the bumblebee, but that critical habitat may be prudent. However, after gathering more data about the needs of rusty patched bumblebee, FWS has concluded that designating critical habitat would not be prudent after all because habitat loss is not the primary threat to the bumblebee.
According to FWS, the rusty patched bumblebee is a habitat generalist, and flexible with regard to its habitat requirements. The bumblebee is also a generalist forager, meaning that it does not depend on specific species of plants for survival, and can live in woodlands as well as woodland edges. Historically, the bumblebee was widely distributed across its range. Though the cause of its decline is unknown, evidence suggests that the cause is a combination of an introduced pathogen and exposure to pesticides. Given that the rusty patched bumblebee can live in a variety of different habitats, does not depend on a specific plant species to survive, and is not primarily threatened by habitat loss, FWS determined that it would not be prudent to designate critical habitat for the bee.
It is not uncommon for FWS to find that it would not be prudent or determinable to designate critical habitat for a listed species. According to FWS, of the 1,500 species listed under the ESA in 2015, only 704 had designated critical habitat. This means that slightly over half of the species listed under the ESA do not receive designations of critical habitat.
While the determination that it would not be prudent to designate critical habitat for the rusty patch bumblebee may not be uncommon, it is controversial. Various environmental groups have criticized FWS’s decision, and the National Resources Defense Council has speculated that the decision will likely result in litigation. No complaints have been filed yet, but action may be taken in the near future.
Finally, this decision from FWS may be important to review while awaiting the listing decision for the monarch butterfly. Before the end of 2020, FWS is expected to release a final decision on whether to list the monarch as endangered under the ESA. It is currently unknown whether FWS would designate critical habitat for the monarch if it decides to list the species. It is possible that this recent decision not to designate critical habitat for the rusty patched bumblebee could indicate how FWS might proceed with regard to the monarch butterfly. A key aspect of FWS’s decision not to designate critical habitat for the bumblebee was that the bee had historically been widely distributed across its range. The bumblebee’s range includes most of the eastern United States, and some south-eastern portions of Canada. Similarly, the monarch butterfly’s range includes large areas in the eastern United States, Canada, and Mexico, as well as areas in the Western United States. Given how widely distributed the monarch butterfly has been throughout its historic range, FWS may decide that it would not be prudent to designate critical habitat for the species, just as it has done with rusty patched bumblebee.
On the other hand, it is possible that FWS will perceive a difference between the habitat needs of the rusty patched bumblebee and the monarch butterfly. While the bumblebee is a generalist, the monarch butterfly relies on the milkweed plant for survival, and loss of milkweed habitat has been linked to the decline of the monarch butterfly population. With that in mind, it is possible that FWS may conclude that it would be prudent to designate critical habitat for the monarch butterfly. For more information on the upcoming decision to list the monarch butterfly, see here and here.
To read the decision from FWS not to designate critical habitat for the rusty patched bumblebee, click here.
To read the text of the ESA, click here.
To read the relevant ESA regulations, click here.
For more National Agricultural Law Center resources on the ESA, click here.