A clarification of part of the Endangered Species Act (ESA) has some wildlife advocates concerned that the act is being watered down.
In a policy change that the U.S. Fish and Wildlife Service (USDWS) and the National Marine Fisheries Service claim will provide consistency, the agencies published a definition for the phrase “significant portion of (a species’) range,” which is sometimes used in determining whether a species should be listed as threatened or endangered.
The ESA defines an endangered species as “any species that is in danger of extinction throughout all or a significant portion of its range.” But the law didn’t define what qualifies as a significant portion.
Under this new policy, “significant” indicates that one portion of the species is so important to the survival of the species as a whole that, if it were lost, the species would likely go extinct.
So even if the species as a whole, such as the gray wolf or the grizzly bear in the U.S., was not endangered or threatened, but one significant population was, then the species would be considered endangered or threatened.
The other key change was the definition of “range” itself. Now, a species’ range is only that area where it resides when considered for listing.
As a protected species moves into areas outside that range, however, it remains protected.
The agencies said they wouldn’t consider lost historical range as sole justification for listing a species, although it would be considered when determining whether a species could recover.
This part, in particular, has Alliance for the Wild Rockies executive director Mike Garrity in Bozeman declaring the Obama administration to be worse than the Bush administration concerning the protection of endangered species.
In 2005, Bush Administration appointee Julie McDonald designated a fraction of the critical habitat that scientists had recommended for bull trout recovery.
In 2010, after McDonald was investigated and resigned, the USFWS increased the habitat designation by five times. Garrity said this new definition of range was similar to what McDonald had wanted.
“This is a weakening of the ESA. This is based upon politics, not science,” Garrity said. “The science is clear: To keep a species, you need to protect habitat and that habitat needs to be connected. They’re essentially changing the definition of ‘recovery.’”
Taking the situation of the gray wolf in the West as an example, the new rule would ignore the fact that wolves existed in the area prior to being driven to extinction because historical range doesn’t matter.
Wolves are thriving in and moving between Montana, Idaho and parts of Wyoming, and that might be considered a significant portion of the gray wolf’s range. A few smaller groups have established in Washington and Oregon.
If the gray wolves in the West were considered recovered and something were to threaten one of the smaller populations in Oregon or Washington, that wouldn’t affect the wolf ’s status. However, if something like disease threatened the Montana-Idaho-Wyoming population, but not the smaller populations, the wolf would be relisted.
The wolf situation is hypothetical, but wolves are being considered for delisting, so this definition could affect the efforts of wildlife groups to keep the wolf under ESA protections.
The phrase “significant portion of its range” has been a big part of many lawsuits either seeking to have species protected or fighting the delisting of a species.
Those lawsuits were the driving force behind this clarification, said USFWS spokesman Gavin Shire.
In the last year alone, dozens of lawsuits have claimed that species hadn’t recovered or were not surviving in a significant portion of their range.
Such lawsuits include efforts to protect the Florida manatee and the green sea turtle from septic tanks in Florida, to protect the lesser prairie chicken from habitat loss in Texas and the Canadian lynx from trapping in Idaho.
This clarification was put out to public comment in 2011 after two courts rejected parts of an earlier 2007 Department of the Interior opinion.
Gavin said there aren’t too many situations where the new definition would apply. Many species don’t have parts of their population separated enough to have significant portions within a whole.
“Finding an example may be tricky,” Gavin said. “We’re just codifying what we have been doing already.”
The Center for Biological Diversity has already threatened legal action in a press release.
“Most endangered species in the U.S. have suffered massive losses over the past and now cling to survival in only a small remnant of their historical home. As such, the final policy defines ‘significant portion of its range’ to make it superfluous: Only species at risk of extinction everywhere will now be protected,” the release said.
The Defenders of Wildlife said their attorneys were still reviewing the definition and could not comment. The policy goes into effect July 31.