Steve Davies

is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his journalism career as a copy editor for the weekly Gazette Newspapers in Gaithersburg, Md., before becoming a reporter there. He then moved to Carlisle, Pa., covering Cumberland County government for the daily Sentinel. He moved back to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication. Click LinkedIn below for more detail.

Jul 092014
 

The National Marine Fisheries Service and Fish and Wildlife Service have released final rules designating critical habitat for threatened loggerhead sea turtles in the Northwest Atlantic. (NMFS page on loggerhead CH) (FWS page). The rules are scheduled to be published in the Federal Register Thursday, July 10.

The NMFS rule includes marine areas; the FWS rule includes the beaches that loggerheads use as nesting areas.

The Center for Biological Diversity hailed the decision, saying that the largest CH designation in history — including 685 miles of beaches from Mississippi to North Carolina and more than 300,000 square miles of ocean — “promises to conserve areas necessary for recovery.” (More from CBD)

FWS noted that its rule includes “88 nesting beaches in coastal counties located in North Carolina, South Carolina, Georgia, Florida, Alabama and Mississippi. These beaches account for 48 percent of an estimated 1,531 miles of coastal beach shoreline used by loggerheads, and about 84 percent of the documented numbers of nests, within these six states.”

http://www.nmfs.noaa.gov/pr/species/turtles/images/loggerhead_critical_habitat_map.jpg

Map from NMFS

Jul 092014
 

July 9 — In his opening statement at a markup of the Interior and Environment spending bill, subcommittee chairman Ken Calvert (R-Calif.) made a point of addressing some of the ESA provisions:

calvert-at-approps-7914

Rep. Ken Calvert (R-Calif.), before subcommittee hearing on FY 2015 Interior-Environment appropriations bill (Click for video of Calvert)

“This subcommittee has no interest in forcing any species to go extinct. What we’re concerned about is federal regulatory action based more on arbitrary legal deadlines than on common sense. Nowhere is this more evident than with sage-grouse.

“States are rightfully concerned that a federal takeover of sage-grouse will jeopardize existing conservation partnerships with states and private landowners which are necessary to save sage-grouse. This takeover would eliminate jobs and curtail future job growth; devastate state and local economies; and undermine the nation’s ability to develop conventional and renewable resources for energy independence.

“So long as sage-grouse are not under imminent threat of extinction, cooperative conservation must be given a chance to work. That is why this bill includes a one-year delay on any decision to list sage-grouse along with a strong cross-cutting budget to help implement these collaborative conservation plans.”

Excerpts:

VALLEY ELDERBERRY LONGHORN BEETLE

SEC. 116. None of the funds made available by this Act or any other Act may be used before October 1, 2015, for any study, nor to withdraw or finalize any rule, with regard to the valley elderberry longhorn beetle under the Endangered Species Act of 1973 (16 U.S.C. 1351 et seq.), except that the Secretary of the Interior shall accept for the record additional public comments on the Peer Review of the Scientific Findings in the Proposed Rule to Delist the Valley Elderberry Longhorn Beetle, dated January 2013, for a period of no less than 180 days following the date of the enactment of this Act.

SAGE-GROUSE

SEC. 117. None of the funds made available by this or any other Act may be used by the Secretary of the Interior to write or issue pursuant to section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533)—

(1) a proposed rule for greater sage-grouse (Centrocercus urophasianus);
(2) a proposed rule for the Columbia basin distinct population segment of greater sage-grouse;
(3) a final rule for the bi-state distinct population segment of greater sage-grouse; or (4) a final rule for Gunnison sage-grouse (Centrocercus minimus).

AMPHIBIANS

SEC. 118. The United States Fish and Wildlife Service shall release for public comment and submit for scientific peer review not later than December 30, 2015, individual or multi-species recovery plans for the Sierra Nevada yellow-legged frog; the northern distinct population segment of the mountain yellow-legged frog; and the Yosemite toad. The plans shall include analyses of social and economic impacts of implementing recovery actions as well as efforts to minimize such impacts as required by the policy published on July 1, 1994 (59 Fed. Reg. 34272 et seq.).

WATERS OF THE UNITED STATES

SEC. 429. None of the funds made available in this Act or any other Act for any fiscal year may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.), including the provisions of the rules dated November 13, 1986 and August 25, 1993, relating to said jurisdiction, and the guidance documents dated January 15, 2003 and December 2, 2008, relating to said jurisdiction.

STREAM BUFFER

SEC. 430. None of the funds made available by this Act may be used to develop, carry out or implement (1) guidance, policy, or directive to reinterpret or change the historic interpretation of 30 C.F.R. § 816.57, which was promulgated on June 30, 1983 by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior (48 Fed. Reg. 30,312); or (2) proposed regulations or supporting materials described in the Federal Register notice published on June 18, 2010 (75 Fed. Reg. 34,667) by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior.

LIMITATION ON USE OF FUNDS FOR NATIONAL OCEAN POLICY

SEC. 432. None of the funds made available by this Act may be used to develop, propose, finalize, administer,
or implement the National Ocean Policy developed under Executive Order 13547. Not later than 60 days after the
date on which the President’s fiscal year 2016 budget request is submitted to the Congress, the President shall
submit a report to the Committees on Appropriations of the House of Representatives and the Senate identifying
all Federal expenditures by fiscal year since 2011, by agency, account, and any pertinent subaccounts, for the
development, administration, or implementation of such National Ocean Policy. The President’s budget submission
for fiscal year 2016 shall identify all funding proposed for the implementation of such National Ocean Policy.

DEFINITION OF FILL MATERIAL

SEC. 439. None of the funds made available in this Act or any other Act may be used by the Environmental Protection Agency to develop, adopt, implement, administer, or enforce any change to the regulations in effect on October 1, 2012, pertaining to the definitions of the terms “fill material” or “discharge of fill material” for the purposes of the Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.).

 

A few quotes

Rep. Harold Rogers (R-Ky.), chairman of the full appropriations committee, also spoke. A couple of highlights:

Administration “has tried to find new regulations that hamper economic activity.”

On waters of the U.S. proposal: “EPA seeks to gain jurisdiction over most of the country.”

On getting requested information from agencies. No agency, he says, is worse than EPA; “they just simply will not respond to inquiries.” EPA’s congressional affairs and budget office funding cut by 50 percent. Funding for EPA Administrator’s office also cut by half. “So let the word go forth. We want info.”

Moran: “Obviously there are going to be amendments at the full committee level. This is as good a bill … as we could have gotten out of subcommittee.” The issues “will be fully debated at the full committee level.”

 

Jul 082014
 

Editor’s note: The original article was missing a “not” before “spend any money” in the first sentence of the second paragraph.

Also: Judge tells EPA to respond to petition on PG&E power plant pollution

The House Appropriations Committee’s subcommittee on Interior and Environment has released its draft spending bill for DOI and EPA, taking aim at both the EPA/Corps proposal to define waters of the United States and a couple of species of grouse being considered for ESA protection.

Interior could not spend any money on a final rule to list the Gunnison sage-grouse or on proposed rules to list the greater sage-grouse, the bill says. Nor could money be spent to make any changes to current Clean Water Act regulations on “waters of the U.S.”

The bill also would halt funding for the Fish and Wildlife Service’s Landscape Conservation Cooperatives, designed to address the impacts of climate change on ecosystems.

House Appropriations Cmte: Subcommittee markup of Interior and Environment FY 2015 spending bill

Petition on PG&E power plant should get a response

A federal judge issued a terse order directing EPA to “either grant or deny Wild Equity [Institute]’s petition by 10/17/14. Wild Equity may pursue summary judgment if the EPA has not acted on its petition by that date. The case is referred to Magistrate Judge Spero for a settlement conference to be held by 8/15/14, subject to his availability.”

The petition seeks action on pollution from PG&E’s Gateway power plant, near the Antioch Dunes, home to the endangered Lange’s metalmark butterfly.

News release

Jul 082014
 

Group wants to know why whistleblowing scientists haven’t gotten redress

Public Employees for Environmental Responsibility is suing the Fish and Wildlife Service to obtain documents about a scientific misconduct case that has dragged on for years.

PEER wants to know why FWS Director Dan Ashe has not released documents that might explain why the two managers who violated scientific integrity standards were not disciplined, while the scientists who blew the whistle on them were suspended without pay. Those employees continue to work at the service but have not received their back pay or had their records cleared.

The PEER news release, issued today, notes that a paper on the range of the American burying beetle, which was withdrawn for use by FWS in Section 7 consultations, continued to be posted by an online journal until the journal was contacted by ESWR. [Update: The paper is still online, despite a commitment by the publisher to remove it. We have sent another email inquiry to M. Ilyas Khan, Managing Editor of Bentham OPEN.]

Here is a story from the latest issue of ESWR on the misconduct.


For Immediate Release:  Tuesday, July 8, 2014
Contact:  Kirsten Stade (202) 265-7337

FISH & WILDLIFE SERVICE SUED OVER SCIENTIFIC FRAUD DOCUMENTS

Records Show Why Director Did Not Act After Investigations Proved Misconduct

Washington, DC — The U.S. Fish & Wildlife Service is wrongfully withholding documents detailing why top agency officials refused to act on findings of scientific integrity reviews confirming serious scientific misconduct by agency managers, according to a federal lawsuit filed today by Public Employees for Environmental Responsibility (PEER). This stalemate signals that the vaunted new scientific integrity program inside FWS has broken down completely, apparently at the instigation of its Director Dan Ashe.

In spring of 2013, two separate panels found two managers of the FWS Oklahoma Ecological Services field office guilty of scientific misconduct in two separate cases.  Months followed without any action by FWS leadership.  Approximately one year ago on July 11, 2013, Deputy Interior Inspector General Mary Kendall issued an extraordinary public rebuke in the form of a Management Advisory stating:

“The Office of Inspector General (OIG) requests that immediate action be taken to address an unreasonable and inappropriate response regarding the discipline of two Fish and Wildlife Service (FWS) supervisors who engaged in scientific misconduct and apparently retaliated against three FWS employees in 2012. The failure to take timely and appropriate management action by FWS senior leadership, including Director Dan Ashe, damages the credibility and integrity of the Department of Interior (DOI) and the FWS Science Program as well as senior leadership.”

Besides Ashe, the OIG named Regional Director Benjamin Tuggle and Deputy Director Rowan Gould.  Days later, FWS issued a statement that it “is pursuing all appropriate disciplinary actions to address the matters raised in the Inspector General’s Management Advisory.”  Subsequent events, however, suggest that statement was untrue.  A year later, there is no sign of the “appropriate” actions promised by FWS:

  • The two guilty managers were not demoted or suspended.  Instead, they were kicked upstairs through prestigious details until they ultimately found other jobs.  One, Luke Bell, left to work for an oil company. Dixie Porter, the senior manager, eventually secured a high-level position with the U.S. Forest Service, although it is unclear if her new employer was apprised of the scientific integrity review findings about her deliberate misconduct;
  • The three whistleblowing scientists who suffered a series of unpaid suspensions and other punishments have yet to get FWS to agree to redress the career damage they suffered; and
  • FWS took no steps to withdraw a fraudulent paper cooked up by Porter and Bell to create a phony paper trail supporting their actions.  The journal moved to withdraw the paper only after being contacted by a journalist.

“The Service leadership is itself guilty of scientific misconduct in how it handled these findings,” stated PEER Executive Director Jeff Ruch. “Dissembling about its actions to ensure integrity speaks volumes.”

The scientific integrity report about the two cases came to light only after PEER pursued an appeal of their denial under the Freedom of Information Act.  Today these redacted reports can be seen only on the PEER website. The agency, however, continues to balk at turning over report exhibits and the communications from FWS leadership following those reports.  After it became clear that further appeals would not secure production, PEER filed suit in the U.S. District Court for the District of Columbia to force their release.

“How can official efforts to guarantee scientific integrity have any credibility if they are exercised only in secret?” Ruch asked, noting that the FWS never even made the reports available to the scientists who brought the complaints.  “Progress in protecting science from political interference requires that the courageous scientists who exposed this corruption are fully vindicated.”

 

###

 

Jul 072014
 

FWS plans to list the northern Mexican gartersnake and the narrow-headed gartersnake as threatened, according to a rule to be published in tomorrow’s Federal Register.

The species are native to Arizona and New Mexico. The service also is publishing a 4(d) rule that specifies measures needed to help conserve the northern Mexican gartersnake, which is also endemic to the Mexican states of Sonora, Chihuahua, Durango, Coahuila, Zacatecas, Guanajuato, Nayarit, Hidalgo, Jalisco, San Luis Potosí, Aguascalientes, Tlaxacala, Puebla, México, Veracruz, and Querétaro.

Also scheduled for publication in tomorrow’s FR: a notice announcing the initiation of five-year status reviews for 11 species.

Those species are the Gray bat (Myotis grisescens), Indiana bat (Myotis sodalis), Piping plover–GreatLakes breeding population (Charadrius melodus), Piping plover–Atlantic Coast and Northern Great Plains populations (Charadrius melodus), Scioto madtom (Noturus trautmani), Curtis’ Pearlymussel (Epioblasma florentina curtisi), Purple cat’s paw (Epioblasma (=dysnomia) obliquata obliquata), Scaleshell mussel (Leptodea leptodon), Higgins eye (Lampsilis higginsii), Pitcher’s thistle (Cirsium pitcheri), and Lakeside daisy (Hymenoxys herbacea (=H. acaulis var.glabra)).

See www.eswr.com/latest-listings for more FR notices.

 

Jul 072014
 

Climate change may not be so crippling to wildlife after all.

I got your speculation right here! (credit: Steve Kroschel)

I got your speculation right here! (credit: Steve Kroschel)

That’s one conclusion that could be drawn from a recent decision by a Fish and Wildlife Service Regional Director to withdraw a proposal to list the wolverine as threatened.

The Los Angeles Times‘ Louis Sahagun reported Saturday that the service was preparing the withdrawal of the proposed rule. Today,  the Center for Biological Diversity posted a memo from FWS Mountain-Prairie Regional Director Noreen Walsh, directing scientists to prepare a Federal Register notice withdrawing the proposal.

[Addendum: A final decision to withdraw the proposal has not been made yet by FWS Director Dan Ashe, Assistant Director for Endangered Species told ESWR.]

CBD said the service was caving to state interests and ignoring science that supports the listing. Said the center in a news release:

On May 17, 2014, the assistant regional director of ecological services at the Fish and Wildlife Service sent a memo to the regional director in Denver transmitting the recommendation of the Montana field office that “the wolverine listing be finalized as threatened.” The memo further concludes that, “In our review we have been unable to obtain or evaluate any other peer reviewed literature or other bodies of evidence that would lead us to a different conclusion.”

In contrast, the recently leaked memo overrules and ignores the substantial evidence and conclusions of the proposed rule, the independent science panel report [see below], and the strong conclusions of the Montana field office, which is staffed with the agency scientists who have the greatest knowledge of wolverines.

CBD pointed out that Montana, Idaho and Wyoming had all opposed the listing, submitting comments that raised questions about the extent to which wolverines are dependent on snow for habitat. In her memo, Walsh took pains to say that the decision to withdraw the proposal was hers alone, and was not influenced by conversations with state officials. “I emphasize that while state agencies are our primary partners in conservation, the determination I have come to as stated in this memo about the wolverine’s status under the Endangered Species Act is mine alone, and has not been influenced in any way by a state representative.”

She also said that two other regional directors, who oversee regions containing wolverine habitat, agreed with her.

Because of the scientific disagreements, FWS convened an expert panel to take a closer look. It released its report in April.

————  More  ————

From proposed rule, Feb. 4, 2013:

“Due to dependence of wolverines on deep snow that persists into late spring both for successful reproduction and for year-round habitat, and their restricted distribution to areas that maintain significant snow late into the spring season, we conclude that deep snow maintained through the denning period is required for wolverines to [[Page 7875]] successfully live and reproduce. Reduction of this habitat feature would proportionally reduce wolverine habitat, or to an even greater extent if habitat reduction involved increasing fragmentation.”

“[B]ased on our current knowledge of occupied wolverine habitat and wolverine densities in this habitat, it is reasonable to estimate that the wolverine population in the contiguous United States numbers approximately 250 to 300 individuals (Inman 2010b, pers. comm.). The bulk of the current population occurs in the northern Rocky Mountains, with a few individuals in the North Cascades and one known individual each in the Sierra Nevada and southern Rocky Mountains.”

From Walsh memo, May 30, 2014:

“Since I do not accept the underlying premise that climate change is in fact a threat to wolverine, I also do not believe that the identified secondary threats are threats to the species. As I do not accept the conclusions that wolverine populations will decline in the foreseeable future due to habitat loss associated with climate change, I do not believe the genetic and demographic effects will be realized.”

“Since the proposed rule was published, Inman et al. (2013) published estimated available habitat capacity to be approximately 644 wolverines (95% CI = 506-1881) and estimated that current population size is currently approximately half of capacity.”

L.A. Times story by Louis Sahagun (7/6/2014)

Jul 022014
 
PLL 036_Free

Scalloped hammerhead (Credit: NOAA)

Here’s the listing, to publish in tomorrow’s Federal Register.

Summary from the final rule:

“In response to a petition submitted by WildEarth Guardians and Friends of Animals, we, NMFS, are issuing a final determination to list the Central and Southwest (SW) Atlantic Distinct Population Segment (DPS) and the Indo-West Pacific DPS of scalloped hammerhead shark (Sphyrna lewini) as threatened species under the Endangered Species Act (ESA). We are also issuing a final determination to list the Eastern Atlantic DPS and Eastern Pacific DPS of scalloped hammerhead sharks as endangered species under the ESA. We intend to consider critical habitat for the Central & SW Atlantic, Indo-West Pacific, and Eastern Pacific DPSs in a separate rulemaking.”

Links

NMFS scalloped hammerhead shark page

NMFS Office of Protected Resources T&E species page

Announcement of proposed rule (4/4/2013) | Rulemaking docket

Range

Click for a larger version of this map

Jul 012014
 

Big decision yesterday from the Fifth Circuit, which found that the Texas Commission on Environmental Quality could not be held liable under the ESA for the deaths of whooping cranes (The Aransas Project v. Shaw, 13-40317).

Here’s the court’s summary:

After the deaths of some whooping cranes — an endangered species — The Aransas Project (“TAP”) sued directors of the Texas Commission on Environmental Quality (“TCEQ”) under the Endangered Species Act (“ESA” or the “Act”). TAP sought and was granted an injunction prohibiting TCEQ from issuing new permits to withdraw water from rivers that feed the estuary where the cranes make their winter home. The injunction also required TCEQ to seek an incidental–take permit (“ITP”) from the U.S. Fish and Wildlife Service (“FWS”). A motions panel of this court stayed the injunction pending appeal. We conclude that the district court’s opinion misapplies proximate cause analysis and further, even if proximate cause had been proven, the injunction is an abuse of discretion. The judgment is reversed.

The court said that the “principal liability issue” in the case was whether TCEQ, “by administering licenses to take water from the Guadalupe and San Antonio rivers for human, manufacturing and agricultural use, foreseeably and proximately caused the deaths of whooping cranes in the winter of 2008–2009. The district court either misunderstood the relevant liability test or misapplied proximate cause when it held the state defendants responsible for remote, attenuated, and fortuitous events following their issuance of water permits.”

Coverage

Twitter

Fifth hears arguments in case (Beveridge & Diamond)

Oral argument recording (from 5th Circuit)

Google news search

 

Jul 012014
 

FWS has concluded that a petition to downlist the West Indian manatee contains enough information to warrant a full-blown status review, which it said it would conduct along with the required five-year review for the species. The 90-day finding will be published in the Federal Register Wednesday, July 2.

Manatee surfacing to breathe (Photo by Jim P. Reid)

Manatee surfacing to breathe (Photo by Jim P. Reid)

The Florida manatee is a subspecies of the West Indian manatee. The petition was filed by the Pacific Legal Foundation on behalf of Save Crystal River Inc. in December 2012. See below for links.

FWS issues positive 90-day finding on petition to downlist West Indian manatee (FWS says it will conduct 5-year review along with status review) | Docket | Recovery plan can be found here | Science Summary in Support of Manatee Protection Area Designation in Puerto Rico (Drew et al. 2012) | PLF files petition (news release) | Petition | Species profile

Cape Wind (most likely) to get some money from DOE ($150 million, to be exact)

New England cottontail plan submitted by state of Maine, in case the rabbit gets listed. From our Federal Register page:

Maine Department of Inland Fisheries and Wildlife (MDIFW) applies to FWS for an Enhancement of Survival Permit that would authorize take of the New England cottontail resulting from certain habitat improvement and land use activities, should the species be listed as endangered or threatened in the future. | More here

“Significant portion of range” policy finalized by FWS, NMFS and published in the Federal Register today (July 1)

SURTASS LFS SEIS in the works. From ESWR’s FR page

Navy will prepare a Supplemental EIS (SEIS)/Supplemental Overseas EIS (SOEIS) to analyze the potential impact of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar on the five bottlenose dolphin stocks comprising the Hawaiian Islands Stock Complex (Kauai/Niiahu, Oahu, 4-island, Hawaii Island, and Hawaii Pelagic).

Surveys to study rancher attitudes toward jaguar, East Coasters’ views of wind energy

The Fish and Wildlife Service has contracted with the University of Arizona to conduct a survey of ranchers in southern Arizona and southwestern New Mexico “to determine their knowledge of and attitudes toward jaguar habitat, their level of knowledge regarding payments for ecosystem services, and their attitudes and interest toward a payment for ecosystem services intended to benefit jaguar habitat.”

The announcement will be published in the July 2 Federal Register.

Bureau of Ocean Energy Management to explore attitudes toward wind energy

BOEM said it has entered into a cooperative agreement with the University of Delaware for a survey “to assess the impact of offshore wind power projects on coastal recreation and tourism from Massachusetts to South Carolina. The survey will gauge public perceptions of offshore wind energy projects and how development could impact future recreation and visitation choices. BOEM will use this information, along with other economic and environmental information, in our offshore wind decision-making process and marine spatial planning efforts. States and coastal communities will use the information for local coastal planning efforts.”

Arlene Bajusz of BOEM’s Office of Policy, Regulations and Analysis said the total cost of the agreement for the federal government is $200,000: about $31,000 in survey expense, including photo simulations; $75,000 for faculty and graduate student time plus $20,000 for benefits for faculty and students. Another $4,000 is for domestic travel. About $70,000 is overhead, she said.

Jun 272014
 

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.

Background in docket