On July 1, 2014, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (both referred to herein as “FWS”) published a “Notice of Final Policy” interpreting the phrase “significant portion of its range” (“SPR”) in making listing decisions under the Endangered Species Act (“ESA”).  79 Fed. Reg. 37578 (July 1, 2014).  Beginning on July 31, 2014, FWS will use the new SPR Policy to list entire species as “endangered” or “threatened” when the species has experienced impacts in only a fraction of its range.  Though FWS avers that new listings based on the SPR policy will be “relatively uncommon,” in practice this significantly broadened agency discretion will have far-reaching impacts for project proponents and other regulated individuals.  For example:

• A FWS finding of threatened or endangered status in one particular area now may result in listing nationwide.  This will create new delays and restrictions for activities, ironically even more so in areas where the species is more abundant.

• FWS has lowered its threshold for determining that a portion of range is “significant.”  No minimum percentage is specified; rather, FWS relies on any of several “biological” factors or perceived risks which are undefined and thus difficult to challenge.  In turn, FWS may find that more activities on or near newly “significant” areas present a risk warranting listing of the species in its entirety.  Conservation efforts throughout much of a species’ range also may not obviate an ESA listing if FWS finds that a single portion is significant and remains unaddressed.

• The species’ “range” includes any area used anytime in the species’ life, even if not used regularly.  While lost historical range itself cannot be SPR, it may increase the likelihood that FWS will deem a portion of the reduced range as SPR.

• Increased listings under the SPR Policy may result in even broader application of the FWS’ pending proposals to expand its “critical habitat” jurisdiction.

This new avenue for ESA listings comes on the heels of two recent proposals and a draft guidance document on designation of critical habitat and a court-entered settlement for FWS to remedy a backlog of hundreds of species listing determinations.  Individually or collectively, these actions demonstrate FWS’s current trajectory towards more species listings and greater species protection, with consequently increased restrictions for surrounding projects, large or small, on either public or private lands.  As a result, entities in various sectors should ensure they are actively involved in these administrative proceedings, fully understand the proposed changes, and plan their projects accordingly.

Background

FWS must list a species as “endangered” if it is found to be “in danger of extinction throughout all or a significant portion of its range.”  16 U.S.C. §§ 1532(6), 1533(a).   Similarly, it must list a species as “threatened” if it is “likely to become endangered within the foreseeable future throughout all or a significant portion of its range.”  Id. §§ 1532(20), 1533(a).  But neither the statute nor regulations define what constitutes a “significant portion of [a species’] range.”  As a result, for years FWS simply interpreted that phrase on a case-by-case basis, resulting in inconsistent interpretations, confusion for the agency and the regulated community, and ultimately litigation. 

FWS largely had not interpreted the SPR language in the ESA as independently operative.  The real inquiry was whether a species should be listed as endangered or threatened due to its status “throughout all” of its range.  Analysis of certain portions of a species’ range informed the agency’s broader analysis of the species’ status nationwide.  The Ninth Circuit rejected this so-called “clarification” interpretation in Defenders of Wildlife v. Norton, 258 F.3d 1136 (2001), prompting FWS to reconsider its approach.

In 2011, FWS issued a draft policy to standardize its interpretation of SPR.  76 Fed. Reg. 76987 (Dec. 9, 2011).  Under the draft policy, FWS said it would consider a species threatened or endangered if it meets those respective criteria throughout either “all of its range” or only “a significant portion of its range.”  FWS took public comment on the draft and instituted it as an interim policy while it worked to develop a final policy.  Nearly three years later, FWS has issued its SPR Policy which it deems “legally binding.” 

Final SPR Policy

FWS asserts that the final SPR Policy merely clarifies its interpretation of “significant portion of its range” by elaborating on the key concepts of what constitutes a species’ “range” and what portions of that range are considered “significant,” as well as explaining how application of the SPR Policy will affect the Service’s listing determinations.  Each of these “clarifications” represents a significant policy interpretation under the ESA.

Species’ “Range”

The final SPR Policy defines “range” as the general geographical area within which the species can be found at the time FWS makes a status determination for listing the species.  Thus, “range” means those areas that a species uses at some point during its life, including areas that the species does not use on a regular basis.  While historical range areas now unoccupied cannot directly be SPR to prompt a listing, the reduced range, or the causes thereof, may affect the likelihood that FWS would find remaining range portions to constitute SPR.  Id. at 37583-84.  Moreover, once a species is listed under the SPR Policy, the geographical areas effectively subject to ESA protections may grow even larger via the FWS’ proposed expansion of designated “critical habitat” for that listed species.

“Significant” Portion of Range

The SPR Policy considers a portion of a species’ range as “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 substantially lowers the threshold for “significant” compared to the draft policy, which had looked only to whether the species would be in danger of extinction without that portion of its range.  In essence, FWS now may list a species based on SPR not only when FWS finds the species is “endangered” in that SPR, but also when the species is “threatened” in that SPR.  Id. at 37578-79. 

FWS will assess the “biological” significance of the portion of the species’ range using viability factors from conservation biology.  Id. at 37592.  FWS will assess whether, without the portion of range in question, the species would have an increased vulnerability to threats to the point that the overall species would become endangered  or threatened.  Id.  In that event, the portion of the range is significant and the analysis moves on to consider the threats to the species absent that range to determine whether the entire species should be listed as endangered or threatened.  Id.  FWS offers the following examples of scenarios in which it might find that a portion of a species’ range is “significant.”  Id. at 37583.

• If the population in the remainder of the range without the SPR might not be large enough to be resilient to environmental catastrophes or random variations in conditions;

• If the viability of the species depends on the productivity of the population in the SPR, and the population in the remainder of the range might not be able to maintain a high-enough growth rate to persist in the face of threats without that portion;

• If without the population in the SPR, the spatial structure of the entire species could be disrupted, resulting in fragmentation that could preclude individuals from moving from degraded habitat to better habitat; or

• If the population in the SPR contains important elements of genetic diversity without which the remaining population may not be genetically diverse enough to adapt to changing environmental conditions. 

How the SPR Analysis Works

FWS provides examples and flow charts within its SPR Policy to illustrate how the analysis will work within the listing decision process.  The first inquiry is whether a species is endangered or threatened throughout its entire range; if so, the entire species is listed, and SPR is irrelevant.  Otherwise, if “substantial information” exists warranting further consideration, FWS examines whether there are any portions of the species’ range that are significant and whether the species is endangered or threatened within that area.  The two inquiries may proceed in either order.  If both conditions are met, again the entire species is listed as endangered or threatened, as appropriate.  If not, the species would not be listed at all.  FWS states that it will continue to list a valid Distinct Population Segment (“DPS”) of the species as a DPS rather than list the entire taxonomic species or subspecies based on SPR.  Id. at 37585-87.

Consequences of SPR Listing

Once FWS decides that a portion of a species’ range is significant and lists the species as endangered or threatened, ESA protections fully apply to all individuals of that species, wherever they are found – not just to the individuals of the species found within the SPR.  Therefore, questions of total range or SPR are relevant only to whether FWS decides to list the species.  Additionally, federal protection extends to all populations and individuals regardless of how the species’ range changes over time.  Thus, in effect, the SPR analysis simply provides another avenue for species listing.  Once listed, all other aspects of the Act, such as designation of critical habitat, promulgation of § 4(d) rules, the § 7 consultation process, the § 9 “take” prohibition, and recovery planning and implementation apply in the same manner that they would for species listed prior to the SPR Policy based on total range.  Id. at 37583. 

On one hand, FWS attempts to minimize the impact of its SPR Policy, estimating that it “may list a few more species with important populations that are facing substantial threats.”  Id. at 37579.  FWS opines that the SPR Policy will tend to result in the same status determinations as would have been made without it, except for a few, limited situations.  Id. at 37609.  These effects may be understated.  The policy gives FWS greater latitude to make nationwide listing decisions based on individual portions of a species’ range, which are likely to lead to more targeted, case-by-case protections not otherwise available absent this Policy.  Indeed, FWS acknowledges that threats, population trends, and relative importance of species recovery often vary across the range of species, especially as recovery efforts progress.  Id. at 37610.  Yet, FWS may now make a sweeping listing decision based on a narrower look at a particular area.

At the same time, FWS affirmatively claims its SPR Policy will result in positive changes and improve conservation of species.  According to FWS, listing a species when it is endangered or threatened throughout a SPR before it is at risk throughout all of its range may allow FWS to protect and conserve species and ecosystems upon which they depend before large-scale decline occurs.  Id. at 37609.  FWS further believes the Policy will result in greater consistency, saving the agency time, money, and resources.  Id. at 37581.  Whether these benefits occur, as opposed to simply more listings, remains to be seen.

The SPR Policy will officially take effect on July 31, 2014, 30 days after its publication.