The Fish and Wildlife Service and National Marine Fisheries Service have finalized a policy interpreting the meaning of the phrase "significant portion of its range" (SPR) as applied to listed species. The policy will be published in the Federal Register on Tuesday, July 1. [We initially reported this as Monday, July 1. There's one more day until July, however.]
The services made one "substantive" change and three "editorial" changes from the draft policy, but said that ultimately, "listings dependent on an SPR determination still will be infrequent." The major change, they said, was to define part 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."
The draft had read: “A portion of the range of a species is ‘significant’ if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.” (See below for a brief summary of why the services made the change.)
The Center for Biological Diversity wasted little time in vowing legal action. In a news release, CBD said "the newly finalized policy sharply restricts the use of this part of the Act, defining 'significant' to mean that only when the loss of a part of a species’ range threatens the survival of the whole species" would species qualify for protection under the ESA.
The policy also defines the word "range" to mean "current range," a change CBD said ignores the fact that many species have suffered habitat losses over many years throughout their historic ranges.
"Most endangered species in the United States 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," CBD said.
In the policy, the services said, "Given our definition of SPR, we will arrive at the appropriate status conclusion by considering the effects of loss of historical range on the current status of the species even though we do not explicitly consider whether lost historical range is itself an SPR."
They also said: "[W]e conclude that the appropriate focus of our analysis is the status of the species in its current range. While we conclude that it is not necessary to separately consider whether lost historical range is an SPR, evaluating the effects of lost historical range on the viability of the species is an important component of evaluating the current status of the species."
But CBD said that "the idea that loss of historic range need not be considered when determining if a species is endangered in a significant portion of its range has been extensively criticized by scientists as a 'shifting baseline,' whereby the history of species is ignored. A study published by the Center in the international journal Conservation Biology cited the Colorado River cutthroat trout as a case in point: The trout was denied protection even though Fish and Wildlife acknowledged it had been lost in 87 percent of its historic range, including the biggest and best streams, and continued to face many threats. A number of other species have similarly already been denied protection under the policy, including gray wolves and cactus ferruginous pygmy-owls."
Regarding the "substantive" change mentioned above, FWS and NMFS said:
In brief, the revised definition will:
1. Remove problems associated with allowing a species to qualify as both threatened throughout its range and endangered throughout an SPR. The change to the first part of the definition ensures that only one legal status is assigned to the species: if a species is endangered or threatened throughout its range, no portions of its range can qualify as “significant.” We made this change in response to numerous comments, which raised two issues. First, commenters were concerned that a species simultaneously meeting the definitions of an “endangered species” and a “threatened species” would be extremely confusing. Second, some commenters thought that it was inappropriate to protect the entire range of a species as endangered if the species, viewed rangewide, met the definition of a “threatened species.” This change eliminates these concerns.
2. Lower and simplify the threshold for “significant.” Because we have changed “the species would be in danger of extinction” to “the species would be in danger of extinction, or likely to become so in the foreseeable future,” a portion of the range of a species would be significant if the species would, without that portion, be either endangered or threatened. Many commenters requested this change, and we concluded that the change is appropriate in combination with the other change we made to the definition of “significant.” A lower threshold will further the conservation purposes of the statute and more clearly avoid the appearance of similarity to the “clarification” approach. (The clarification approach was rejected by the Ninth Circuit, as discussed in the draft policy [76 FR 76987, p. 76991, section II.A].) Using this standard, we may list a few more species with important populations that are facing substantial threats. Nonetheless, this relaxed threshold is still relatively high. As discussed in the draft policy (76 FR 76987, p. 76995), this is desirable because we have concluded that, if a species is endangered or threatened in a significant portion of its range, it is protected throughout all of its range. Thus, we conclude that listings dependent on an SPR determination still will be infrequent.