critical habitat on the way - maybe

Conservation groups have reached agreement with the feds on one big issue related to the polar bear listing -- the designation of critical habitat -- although it's still unclear what will come of it. The agreement came Monday in the form of a settlement between the Center for Biological Diversity and two other green groups on one side and Interior Secretary Dirk Kempthorne and the US Fish and Wildlife Service on the other. Basically it forces the feds to make a final determination on critical habitat by June 2010 and issue final guidelines for bear deterrence procedures by March 2010 (and issue proposed guidelines and determination in time to meet those deadlines). Conservation folks say the feds were supposed to do the habitat listing already (the law actually allows an extra year in cases where critical habitat is "not then determinable") and say they've been slacking on designations with other species listed under the Endangered Species Act. The agreement is essentially an affirmation of existing law, but an important one, according to conservation groups.
That said, it's still unclear whether any habitat will be designated.
"The difficulty is that the ocean per se is not the habitat, the sea ice on the ocean is the habitat," FWS spokesman Bruce Woods told me last month. And the sea ice is constantly moving.
Conservation folks, meanwhile, say it would be a complete violation of the law not to designate any habitat.
The designation of critical habitat steps up protection for the animal by barring activities that would jeopardize the habitat (and not just the species), and by extending Sec. 7 consultation requirements "from the critter to the critical habitat," as Woods put it. Federal agencies would be barred from doing anything, such as permitting oil and gas exploration, in a designated area if the action would result in "destruction or adverse modification" of the critical habitat.
"It could have a pretty big impact," an attorney for CBD told me last month.
But the Interior Secretary also has some discretion in designating habitat. Critical habitat is defined as areas within the species' range "on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." (The Secretary can also designate some areas outside the species' range if those are found "essential for the conservation of the species.")
Unlike with the listing itself, the Secretary can -- and must -- consider economic impacts of designating critical habitat. "The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." The Secretary is only required to designate a certain area if he determines, based on the best science available, that failure to do so "will result in the extinction of the species."
The other part of the settlement forces the feds to come up with guidelines for the non-lethal deterrence of bears that pose a threat to public safety.
The conservation groups are still seeking to have the bear listed as endangered rather than threatened and to overturn the special rule issued along with the listing.
For what it's worth, the settlement is technically a victory for the conservation groups. Under the agreement, the feds acknowledge the plaintiffs (the three enviro groups) are the "prevailing parties" regarding the two issues and agree to pay for plaintiffs' legal costs.