• Jennifer Heywood

Federal Wildlife Agencies Propose New Endangered Species Listing Policy

On December 8, 2011, the Obama Administration proposed to clarify which species or populations of species are eligible for protection under the Endangered Species Act (ESA). The proposed policy will define a key phrase in Section 4 of the ESA. That section defines an endangered species as a species in danger of extinction “throughout all or a significant portion of its range.” The policy is intended to explain what is meant by a “significant portion of [a species’] range” and will affect decisions whether to add or remove species from the federal list of threatened and endangered wildlife and plants. Uncertainty about the meaning of this important phrase has led to intense litigation.

Under the draft policy, when making listing decisions the Services would: (1) define a portion of a species’ range as “significant” if without that portion, the species would be in danger of extinction; (2) limit the relevant “range” in question to the range currently used by a species during any of its life stages (as opposed to the species’ historical range); and (3) apply that listing decision to the entire species, throughout its entire range. On the one hand, this means fewer species are likely to be listed. By defining significance with reference to an entire species and focusing on a species’ current range, specific threats to a species in the portion in question as well as purely historic losses lose relevance. On the other hand, once it is determined that a species is in danger of extinction throughout a significant portion of its range, the entire species would be listed, and the ESA’s restrictions would apply throughout that entire area. In short, a species could be listed even in areas where it presently thrives.

The draft policy is a precursor to a formal rulemaking and is available as Draft Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and “Threatened Species.” 76 Fed. Reg. 76,987 (Dec. 9, 2011). Comments on the proposal will be accepted for the next 60 days.

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