The Center for Biological Diversity (“CBD”) submitted a Notice of Intent to Sue (“NOI”) on August 15 to the US Fish and Wildlife Service and the Department of the Interior (col collectively, “Service”) alleging an endangered species violation. Act (“ESA”).
CBD alleges that the Service has violated section 4 of the ESA by failing to designate critical habitat for what it describes as the “critically endangered barrens topminnow.”
The Barrens topminnow is said to be found in only a handful of streams on the Barrens Plateau in central Tennessee.
When the Service identifies a species as threatened or endangered, Section 4 of the ESA requires that it also simultaneously designate critical habitat. The relevant legal language provides in part:
. . . To the maximum extent prudent and determinable, the Service will do so, at the same time as a determination is made. . . that a species is an endangered species or a threatened species, designate any habitat of those species that is then considered critical habitat.
The ESA also provides that if the Service determines that critical habitat designation for a listed species is prudent but cannot be determined at the time of final listing, it may take an additional year to designate critical habitat for the species
The CBD states that when the Service proposed to list the Barrens topminnow as endangered, it determined that critical habitat designation was prudent but not determinable. In addition, the organization claims that 18 months later, when it issued the final list of rules, it again concluded that critical habitat was not determinable. Accordingly, CBD asserts that the ESA provided the Service an additional year from the date of its final listing to designate critical habitat for barrens topminnow.
Because the Service has not yet designated critical habitat for the species, it is claimed not to be in compliance with the ESA. Therefore, CBD states that if the Service does not act within 60 days to correct the alleged violation of the ESA, it will file a civil action against the ESA seeking injunctive and declaratory relief.
A copy of the NOI is available for download here.