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July 02, 2014
Services define key ESA phrase

The two agencies responsible for implementing the Endangered Species Act (ESA) have released a new policy defining a critical term that Congress introduced but failed to define in writing the ESA.

According to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (Services), the policy will interpret the phrase “significant portion of its range” (SPR) in a way that may result in additional ESA listings. The policy takes effect July 31, 2014.

Broad discretion

The ESA defines the term “endangered species” to mean any species that is in danger of extinction throughout all or an SPR and the term “threatened species”to mean any species that is likely to become an endangered species within the foreseeable future throughout all or an SPR.

“The role of the SPR language in the context of the entire statutory scheme is not clear from the text itself or the legislative history,” note the Services.

Given the absence of direction in the Act, the Services assert that they have “broad discretion” to interpret the term “significant,” particularly after they accepted public comment on a draft of the policy.

In addition, the final policy is influenced by a 2001 ruling by the 9th Circuit, which, the Services state, enables listing of a species as endangered in two different situations—(1) if it is in danger of extinction throughout all of its range, or (2) if it is danger of extinction throughout an SPR.  The same is true for threatened species.

Significant portion

Specifically, the policy clarifies a species “range”as the geographical area within which that species is found at the time of the listing determination.  The term “significant portion” is defined to mean a portion of that range whose contribution to the viability of the species is so important that, without the individuals in it, the species as a whole would be in danger of extinction (meriting an endangered status) or likely to become so in the foreseeable future (meriting a threatened status).

The policy departs from a legal opinion issued by the Solicitor of the Department of Interior in 2007 under the G.W. Bush administration.  That opinion held that individuals of a species that are endangered or threatened throughout an SPR are protected only in that SPR.  The new policy states that individuals of a species that are endangered or threatened throughout an SPR are protected wherever they are found.

Proactive conservation

The Services state that under most circumstances, application of the policy will result in the same status determinations that would have been made without the policy.

“However, in a few cases, application of the policy could result in a FWS or NOAA-Fisheries listing and protecting throughout their ranges some species that previously the agencies may not have listed or the Services would have listed in only portions of their ranges,” say the Services.

The policy will also provide for increased and earlier opportunities for proactive conservation of species that are facing serious threats in portions of their ranges that are of substantial conservation importance, add the Services.
The final policy was published in the July 1, 2014, FR.

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