Federal agencies limit Endangered Species Act protections
This blog one in an ongoing series of intermittent analyses of the United States’ Endangered Species Act. --ED
It doesn’t take Congressional attacks on the Endangered Species Act (ESA) to dilute the landmark law’s conservation benefits.
The agencies responsible for its administration are already doing so by further defining and narrowing the standards that are used to identify species in need of protection.
The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) recently announced a policy that, although intended to clarify the demands of the ESA with respect to listing and delisting species, will ultimately interfere with the Act’s efficacy.
This applies specifically to the definition of geographic range.
According to the ESA, a species is to be listed as endangered if it “is in danger of extinction throughout all or a significant portion of its range” and as threatened if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”
The ESA, however, does not define “significant portion of its range” (SPR); accordingly, the agencies’ new policy was established to provide a formal interpretation of SPR.
According to the new recently finalized language a,
“portion of the range of a species is ‘significant’ if the species is not currently endangered or threatened throughout all of its range, but the 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.”
This definition of “significant” is worrisome because it sets far too high a bar for listing.
In practice, it will cause only those species that are endangered or threatened throughout their ranges to receive protections—an effect which is inconsistent with the ESA’s original intent.
According to the SPR policy, “range” consists of “the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination." This range includes those areas used throughout all or part of the species’ life cycle, even if they are not used regularly (e.g., seasonal habitats).
What’s more, lost historical range is relevant to the analysis of the status of the species, but it cannot constitute a significant portion of a species’ range.”
By ignoring a species’ historic distribution and limiting the agencies’ analyses to current non-seasonal populations, the SPR policy conflicts with the ESA’s species recovery objectives.
It favors isolated but arguably viable populations over entire species—regardless of the size and nature of the ecosystems that they once inhabited.
Being at risk of extinction in a portion of its range (in which its survival is not considered vital to the survival of the entire species) would not qualify a species for protection.
If, for example, most populations of a species have been extirpated across its historic range, but one healthy population is intact when the agencies consider ESA listing, the existence of that single population could ultimately justify a decision not to extend protections to that species.
Does this run counter to the Congressional intent underlying the ESA?
We feel it does.
The SPR policy has now been finalized, but we will keep you informed about opportunities to comment on future agency actions affecting endangered species.
Despite recent setbacks, IFAW will continue to work with both Congress and the Administration to preserve ESA protections.
Learn more about IFAW’s policy and legislative work: visit our Political Advocacy page.