On December 9, 2011, the two federal agencies responsible for the Endangered Species Act (ESA) announced a draft policy providing a new interpretation of a key phrase in the ESA’s definition of “endangered species.” The agencies request public comment on the draft policy and are accepting submissions until February 7, 2012.

The ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The draft policy addresses the meaning of “a significant portion of its range,” a phrase that has been hotly litigated over the past decade.

The draft policy makes four key proposals:

  1. If a species is found to be endangered or threatened in any significant portion of its range, then it will be protected as endangered or threatened throughout its entire range.
  2. A portion of a species’ range is significant if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction. Under this definition, the significance of a portion of range will be evaluated using the principles of conservation biology. The agencies will not base their evaluation on the cultural significance of a portion of range.
  3. “Range” means the species’ range at the time of the agency’s status determination. The agencies will consider the reasons why historical range has shrunk, but lost historical range cannot be a “significant portion of its range.” The draft policy emphasizes that this process is separate from the designation of critical habitat. The agencies will still be able to designate critical habitat outside a species’ current range.
  4. If a species is endangered or threatened in a significant portion of its range that is also a “distinct population segment” but the species is healthy elsewhere, then only the distinct population segment will be listed and protected.

If adopted in its current form, the draft policy would have mixed effects. The agencies’ admittedly high threshold of what constitutes a significant portion of range would likely result in fewer listings of species as endangered or threatened than under the current policy. This has led one environmental organization to call the draft policy a “recipe for extinction.”

On the other hand, once a species is listed, the strict protections of the ESA would apply across the whole range – even where it is flourishing. This has been described as a “lightning rod for the regulated industry.” The agencies are particularly interested in receiving public comment on this element of the draft policy. They have struggled to find a policy that both provides flexibility to vary levels of protection according to local threats and that is also acceptable to the courts. Federal courts have struck down past attempts, such as the Fish and Wildlife Service’s listing of the gray wolf as endangered in Wyoming but not in Montana or Idaho.

If the draft policy is adopted, the agencies may increasingly turn to the concept of distinct population segments to achieve flexibility to vary levels of protection. The ESA defines the phrase species to include the concept of distinct population segments. Distinct population segments are discrete subpopulations of a species that are significant to the species as a whole. They can be listed as endangered or threatened even if the species as a whole is not. The word ‘significant’ has a different and broader meaning when applied a distinct population segment than when applied to a significant portion of range. The agencies have asked for comment on the proper relationship between the concepts of significant portion of range and distinct population segments.

The agencies have also requested input on a series of specific issues, including whether they should have chosen a higher or lower threshold of significance and the proper role of lost historical range in determining whether a species is endangered or threatened. The draft policy and instructions for commenting can be found in the policy’s Federal Register entry. The agencies have also released a set of “Questions and Answers” regarding the draft policy.

William Most
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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