Recently, the U.S. Fish and Wildlife Service settled a claim filed by the Center for Biological Diversity that forces FWS to take action on issues relating to a critical habitat designation for the western yellow-billed cuckoo.

In 2014, FWS listed the western distinct population segment of the yellow-billed cuckoo under the Endangered Species Act but had not yet published a final rule designating critical habitat or made a finding that it would not be prudent to do so. In 2017, the FWS received a petition to delist and subsequently published a 90-day finding on the petition, concluding that the petition presented substantial scientific or commercial information indicating that the delisting may be warranted. The FWS was preparing a 12-month finding to determine whether the delisting is warranted at the time that the plaintiff filed the lawsuit. According to the plaintiff’s complaint, this issue involves 550,000 acres of habitat across nine states. The cuckoos, which migrate between South American and the United States, usually nest in willow trees, but also use alder, buttonwood, mesquite, box elder, and sycamore trees. They usually live near rivers but much of the birds’ traditional habitat has been lost due to livestock overgrazing, encroachment from agriculture, and conversion of native habitat to predominately native vegetation.

Under the Settlement Agreement, the FWS is required to submit to the Federal Register for publication a proposed regulation to designate critical habitat for the species on or before August 5, 2019, unless, by that date, the FWS has published a 12-month finding that the listing is warranted.

If the FWS designates critical habitat, this will impact the construction industry. Assuming that critical habitat is designated, any builder or developer would need federal authorization for any action that would result in any “incidental taking” or a “taking” of the species. Then, the building or developer would need to consult with the FWS to ensure that the actions do not jeopardize the species or destroy or adversely modify critical habitat.