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New Policy Clarification from USFWS on Whether to List a Species May Itself Require Clarification… Among Environmentalists, It’s “All the Range”

Sometimes “clarification” requires clarification. That is the case with a recent policy change announced by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in June 2014 to “clarify” key terms central to the implementation of the Endangered Species Act. The new policy begs the question “How much significance does it take to be significant?”

The ESA is no stranger to controversy, both political and practical. As of November 2, 2014, 487 animals and 728 plants were listed as endangered in the United States. By the time a species is listed, its listing process likely has endured debate and disagreement over whether that species should be listed as endangered, threatened, or not at all. The listing of a species often leads to increased permitting complexity, costs, and delay for projects where that species or its habitat is found on site.

This issue recently took on an important new dimension with the Services’ June 2014 announcement of policy clarification affecting the evaluation of a species’ range during the listing process. The ESA defines “endangered species” to mean any species in danger of extinction throughout all or a “significant portion of its range,” and the term “threatened species” to mean any species that is likely to become an endangered species within the foreseeable future throughout all or a “significant portion of its range.”

So, what does “significant portion of its range” mean? Under the Services’ new policy, a portion of a species’ range is “significant” if that “portion’s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.” Notably, the new policy does not elaborate on how “important” that contribution must be before the Services will find the species to be threatened or endangered.

What does the new policy mean in practice? It means that if the Services determine a species is endangered or threatened throughout all of its range, the Services will list the species without any further analysis of its status within portions of its range. But if the Services determine a species is neither endangered nor threatened throughout all of its range, but is endangered or threatened within a “significant portion of its range” (in other words, a portion of its range that is “so important” that without individuals of that species in that portion, the species would be in danger of extinction or likely extinction), then the entire species will be listed as endangered or threatened.

Thus far, the jury is still out on whether this new approach will lead to more listings. According to the Services’ press release, the new policy will protect species before large-scale declines or threats occur throughout the species’ entire range. The application in practice of the vague terms and concepts introduced by the new policy will be followed closely. It seems possible that there may be challenges to the policy arguing that it effectively says that species may be listed as threatened or endangered before they are, in fact, threatened or endangered. As a result, the old battles regarding agency overreach likely will continue, even with this new “clarification” of the process.