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New ESA Listing Policy To Clarify Definition, Use Of ‘Significant Portion’ Of Species’ Range
Posted on Friday, December 09, 2011 (PST)

A new federal policy proposed this week is intended to clarify which species or populations of species are eligible for protection under the Endangered Species Act.


Public comments will be accepted for 60 days on the policy proposed by the U.S. Fish and Wildlife Service and NOAA’s National Marine Fisheries Service, the two federal agencies responsible for administering the ESA.


The proposed policy, the agencies say, will define the key phrase “significant portion of its range” in the ESA and “provide consistency for how it should be applied, aiding the agencies in making decisions on whether to add or remove species from the federal list of threatened and endangered wildlife and plants.”


The phrase is not defined in the ESA, but appears in the statutory definitions of “endangered species” and “threatened species” in the ESA.


The policy would clarify that the USFWS and NOAA Fisheries could list a species if it is endangered or threatened in a “significant portion of its range,” even if that species is not endangered or threatened throughout all its range.


Under the proposed policy, a portion of the range of any given species would be defined as “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.


While the agencies say they expect this circumstance to arise infrequently, this policy interpretation will allow ESA protections to help species in trouble before large-scale decline occurs throughout the species’ entire range.


“This proposed interpretation will provide consistency and clarity for the services and our partners, while making more effective use of our resources and improving our ability to protect and recover species before they are on the brink of extinction,” said USFWS Director Dan Ashe. “By taking action to protect imperiled native fish, wildlife and plants, we can ensure a healthy future for our communities and protect treasured landscapes for future generations.”


“A clear and consistent policy will help our partners and improve the process of evaluating species status under the Endangered Species Act,”

said Eric Schwaab, NOAA’s assistant administrator for Fisheries.


Uncertainty about the meaning of this important phrase has led to debate and litigation. A formal opinion developed by the Solicitor of the Department of the Interior (known as the “M-Opinion”) had been applied by the USFWS since March 16, 2007. But the M-Opinion was withdrawn on May 4, 2011, after two courts rejected key aspects of it.


NOAA Fisheries has never applied the USFWS interpretation, nor did it issue separate guidance, instead relying on a general understanding similar to the policy interpretation in the new proposal.


This proposed policy differs substantially from the DOI’s M-Opinion interpretation. This week’s proposal requires that if a species is found to be threatened or endangered in a significant portion of its range, the entire species must be listed and protections of the ESA applied throughout its range. However, if the significant portion of the range is the exact same area inhabited by a “distinct population segment” of the species, only the distinct population segment would be listed. A distinct population segment is a vertebrate animal population or group of populations that is discrete from other populations of the species and significant to the overall species.


In contrast, under the M-Opinion, only individuals of a species found within the “significant portion of its range” were protected under the ESA.


The proposed policy also establishes a more specific and stringent standard to evaluate whether a portion of a species’ range would be considered “significant” than the standard applied under the M-Opinion interpretation. This higher bar is intended to ensure that the species being evaluated for ESA protection on the basis of threats to only a significant portion of its range are truly in need of conservation.


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