Plover habitat

NWU Radio Script

9-17-01

Copyright

The U.S. Fish and Wildlife Service (USFWS) recently announced its proposal for the designation of critical habitat for piping plovers. While this impacts many areas of the United States, in Nebraska the habitat listing throws a new monkey wrench into the already complicated Cooperative Agreement between Nebraska, Colorado and Wyoming.

The USFWS argues the designation will not have an impact on the agreement or program. However, some questions have been raised whether the designation of critical habitat will affect the ability to count alternative habitats (such as sand pits) towards the overall goal of 10,000 acres set aside for the other threatened and endangered species covered in the Cooperative Agreement. Others wonder whether USFWS will use the plover habitat designation to press for expanding the scope of the agreement.

The USFWS listed the piping plover as a threatened species in 1986. The plover is a small, pale-colored North American shorebird that historically bred across three geographic regions.

These regions include: The United States and Canadian Northern Great Plains from Alberta to Manitoba and south to Nebraska; the Great Lakes beaches; and the Atlantic coastal beaches from Newfoundland to North Carolina. Currently, piping plovers live in an area similar to their historical range, although numbers breeding in the Great Lakes region have decreased since the 1930s.

Because the USFWS did not designate critical habitat in 1986 as required under the Endangered Species Act (ESA),  a federal court order in a suit brought by the Defenders of Wildlife has now directed USFWS to designate critical habitat for the plovers. The critical habitat designation must be based on the "best scientific data available." And USFWS must conduct an economic analysis on the potential economic impacts that may result from the designation of critical habitat.

The ESA required federal agencies to consult with the USFWS to ensure that any activity the agency funds, authorizes, licenses, or carries out will not jeopardize the survival of a threatened or endangered species. For species with designated critical habitat, agencies must ensure their activities do not adversely modify critical habitat to the point it will no longer aid in the species recovery. Activities that could affect piping plover critical habitat include road and bridge construction, bank stabilization projects, dredging operations or water development projects such as ground water withdrawal for water supply and other river depletions.

It is unclear what impacts the designation of critical habitat will have on farmers and ranchers, other land owners, municipalities, counties and communities along the Platte, Loup and Niobrara Rivers. Because the piping plover is already listed as a threatened species, federal agencies must already ensure their actions do not jeopardize the survival of the species.

However, in areas that are unoccupied by the species, and now are proposed critical habitat, the critical habitat designation will result in greater regulations because these areas are now protected by the prohibition against adverse modifications of critical habitat. In other words, designation of critical habitat expands the USFWS regulatory authority in geographic areas it does not currently encompass.

Another area of uncertainty centers on which federal actions trigger a consultation. In instances where a federal permit is required (i.e. 404 wetland permit) it is clear a consultation is required. However, other federal agency actions are less clear. For example, the USFWS has taken the position that USDA/NRCS cost-share funding activities for practices like farm ponds or grade-stabilization structures are subject to consultation. It has also been suggested that federal farm program payments might constitute a federal nexus, and thus the USDA should review farmers' activities to determine if species and habitat are adversely affected. If USFWS pushes these beliefs, farmers and ranchers along the Platte, Loup and Niobrara Rivers could come under the auspices of the ESA.

A table from the June 12, 2001, Federal Register containing the 60-page listing documents shows that in Nebraska alone there would be 463 miles of riverine habitat, of which 450 come under private ownership. Only 13 miles are along state land out of the 27 counties with designated habitat.

Other states with sizeable chunks of designated critical habitat are Minnesota (235 miles); Montana (103,451 acres), North Dakota (92,889 acres) and Missouri (875 miles). Adding the five states together that is a grand total of 196,5767 acres of habitat and 1,338 river miles.

Public meetings regarding the critical habitat proposal were held this summer in Glasgow, Mont., Bismarck, N.D., Pierre and Yankton, S.D. and Grand Island, Neb.

The time for written comments has also passed and now officials are scrambling to meet designation deadlines. One major objection has been that the required economic analysis has not yet been completed, allowing for no comments on this important part of the plan. Orders were for USFWS to come up with a final rule by March 15, 2002.

As this report airs, farm and water groups in Nebraska are attempting to find answers to the uncertainties noted above and working for extensions to the original comment period which expired in July. A special emphasis is being placed on investigating whether the science used by USFWS is the best available and working to assure a proper economic analysis is performed.

We also note with concern the wide expanse of counties across the five-state region including Nebraska, South and North Dakota, Montana and part of Minnesota that have designated critical habitat, and this is just the Great Plains region.

The far-reaching arm of the ESA is reaching ever further.

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