Endangered Species Archives - The National Law Forum

NJDEP Proposes Bald Eagle Removal and Other Changes to New Jersey’s Threatened and Endangered Species Lists

On June 3, 2024, the New Jersey Department of Environmental Protection announced a rule proposal which would update the endangered species and the nongame species lists promulgated by the Fish & Wildlife Endangered and Nongame Species Program (“ENSP”). These proposed updates would reflect, among other changes, the recategorization of the conservation status of certain species from the ENSP lists along with other structural and organizational amendments.

Primarily, the proposal celebrates the prospective reduced conservation status of three species, including the Peregrine Falcon, Bobcat, and Cope’s Gray Treefrog which each will have their conservation status reduced from “Endangered” to “Threatened.”

More significantly, the Bald Eagle, Red-headed Woodpecker, and Osprey are proposed to have their status reduced to “Special Concern” or “Secure/Stable.” The Department has further proposed partial conservation status reductions for the non-breeding populations of certain bird species including the Yellow-crowned Night-Heron, and Red-headed Woodpecker which have both been reduced to “Special Concern” for non-breeding activities. In effect, these species are being delisted, which is significant for Land Resource permitting under the Coastal Rules and Freshwater Wetlands Protection Act. This also should impact permitting under Pinelands Commission regulations.

Inapposite to those species having their conservation status reduced, the Department has proposed increased conservation designations for thirty (30) species, including select species particularly impactful to development and redevelopment initiatives in New Jersey. Those include three species of bat, the Northern Myotis, Little Brown Bat, and Tricolored Bat, which will each move from an undetermined/unknown status to “Endangered.”

Lastly, the Department proposes moving currently threatened species listed on the nongame species list at N.J.A.C. 7:25-4.17 to the endangered species list at N.J.A.C. 7:25-4.13. This restructuring will leave the species’ conservation status unchanged and includes a number of special species for New Jersey development and redevelopment, such as the Bobolink and Grasshopper Sparrow.

In addition to these conservation status changes, the Department has proposed a new procedure which would allow the addition of species to the list of endangered species by notice of administrative change when that species has been added to the Federal list of endangered and threatened species of wildlife pursuant to the Endangered Species Act of 1973 at 16 U.S.C. § 1531 et seq. and is indigenous to New Jersey. The Department notes this procedure seeks to further the goal of creating a listing that is more consistent with the Federal standard but in doing so the State will obviate the typical Administrative Procedure Act public comment process.

Matthew L. Capone contributed to this article

EPA Announces the Release of Its Endangered Species Act Workplan Update

On November 16, 2022, the U.S. Environmental Protection Agency (EPA) announced it released an Endangered Species Act (ESA) Workplan Update (Workplan Update) that outlines major steps to increase protections for wildlife and regulatory certainty for pesticide users. The Workplan Update details how EPA will pursue protections for nontarget species, including federally listed endangered and threatened (i.e., listed) species, earlier in the process for pesticide registration review and other Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) actions. According to EPA, these early protections will help EPA comply with the ESA, thus reducing its legal vulnerability, providing farmers with more predictable access to pesticides, and simplifying the ESA-FIFRA process that, left unchanged, creates both significant litigation risk and a workload far exceeding what EPA has the resources to handle.

EPA states this update is a follow-up to EPA’s April 2022 ESA Workplan that addresses the complexity of meeting its ESA obligations for thousands of FIFRA actions annually. The ESA Workplan prioritizes certain FIFRA actions for ESA compliance, outlines how EPA will pursue early mitigation for listed species under FIFRA, and describes directions for expediting and simplifying the current pesticide consultation process.

As part of registering new pesticides or reevaluating pesticides during registration review, EPA has a responsibility under the ESA to ensure certain pesticide registrations do not jeopardize the continued existence of listed species or adversely modify their designated critical habitats. EPA states that it has seen in the past few decades an increase in litigation due to EPA’s failure to meet its ESA obligations when taking FIFRA actions. Over the next six years, existing court-enforceable deadlines will require EPA to complete ESA reviews for 18 pesticides — the most EPA estimates it can handle during this period based on its current capacity and processes. Ongoing litigation and settlement discussions for other lawsuits cover dozens of additional pesticides and will likely fill the EPA’s ESA workload well beyond 2030. According to EPA, if its ESA efforts continue at this pace, a future court may decide to curtail drastically pesticide use until EPA meets its obligations. EPA believes this situation would be unsustainable and legally tenuous and provide inadequate protection for listed species and create regulatory uncertainty for farmers and other pesticide users.

The Workplan Update is EPA’s first update to the ESA Workplan and covers four main goals:

Describes EPA’s overall approach to mitigating ecological risks in registration review, which includes prioritization of registration review cases based on opportunities to reduce a pesticide’s risk to human health or the environment.
Proposes a menu of FIFRA Interim Ecological Mitigation measures that EPA will draw from for many future conventional and biological pesticide registration and registration review actions to protect nontarget species. For each FIFRA action, EPA will consider this menu and propose, based on the risks and benefits of the particular pesticide, which specific measures to include on the pesticide label.
Proposes label language to expand the use of online endangered species protection bulletins to implement geographically specific mitigation measures for individual listed species. These measures are designed to focus protections only in specific needed areas, thus minimizing impacts to agriculture. Where needed, EPA may develop these measures to complement the generic FIFRA ecological mitigation described above.
Describes current and future programmatic initiatives with other federal agencies to prioritize mitigation for listed species that are particularly vulnerable to pesticides and to improve the efficiency and timeliness of the ESA-FIFRA process.

The first strategy described in EPA’s ESA Workplan is to “meet ESA obligations for FIFRA actions.” EPA states as part of its work to execute this strategy, it has identified a menu of Interim Ecological Mitigation measures it will use as a starting point to address pesticide risks to nontarget species during registration and registration review.

The menu of Interim Ecological Mitigation will include measures to reduce pesticide spray drift and pesticide runoff and will be considered as part of EPA’s upcoming proposed interim registration review decisions. While EPA intends for this set of Interim Ecological Mitigation measures to apply widely to many pesticides, EPA will consider the menu of options for any given pesticide depending on the level of risk that it poses to species and the exposure route.

EPA anticipates that this approach will more efficiently establish protections for nontarget species, including listed species, and standardize the protections across similar pesticides, in contrast to identifying mitigation measures pesticide by pesticide or species by species, as EPA has typically done in the past.

EPA states it will also work with registrants to add language on pesticide incident reporting, advisory language to protect insect pollinators, and language to most outdoor-use pesticide labels that directs users to reference Bulletins Live! Two, a website where pesticide users can find endangered species protection bulletins. These bulletins describe geographically specific use limitations to protect threatened and endangered species and their designated critical habitat.

EPA expects that once consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service is completed for any given outdoor-use pesticide, endangered species protection bulletins may be necessary for at least one listed species.

EPA also expects that working with registrants proactively to add the reference to Bulletins Live! Two to pesticide labels in advance of consultation will ultimately save EPA, state partners, and registrants time and resources by minimizing the number of amendments to labels.

The ESA Workplan Update also describes initiatives that, according to EPA, will help it and other federal agencies improve approaches to mitigation under the ESA and improve the interagency consultation process outlined in the ESA Workplan. These initiatives include EPA’s work to identify ESA mitigation measures for pilot species, incorporate early ESA mitigation measures for groups of pesticides (e.g., herbicides), and develop region-specific ESA mitigations.

Comments on the proposed set of interim mitigation measures and the proposed revisions to label language included in the Workplan Update appendix are due on or before January 30, 2023. Comments can be submitted at EPA-HQ-OPP-2022-0908.

Commentary

This next phase of the ESA Workplan provides more detail about how EPA plans to impose various mitigation measures to meet its ESA obligations when registering a pesticide. The most favorable view of what EPA has presented is that it continues the march toward ESA compliance, which is long overdue, and provides more detail about the kinds of mitigation approaches it will place on pesticide labels to meet ESA requirements. The less favorable view here is that EPA has outlined a number of “off the shelf” mitigation options (buffers to reduce pesticide drift and water runoff), and EPA might impose such conditions in many instances where more careful analysis of usage data and site- or use-specific considerations might lessen the areas where such mitigation measures are needed.

EPA has stated previously as part of its earlier Workplan document, issued in April 2022, that using the present approaches EPA would complete only 5 percent of the ESA required reviews in about 18 years — implying that the current approach would take about 360 years to complete. This next iteration of the Workplan, describing “early mitigation” strategies, is designed to reduce this unacceptable timeframe (360 years), but is likely to lead to fears among some stakeholders that in a “rush” to complete this work, EPA will make overly conservative label restrictions and reduce availability of the pesticide without increased species protections. Such concerns raise immediate ancillary concerns about stakeholder involvement in decision-making, compliance with what might be complicated label requirements, and enforcement of what is already typically a long list of label requirements for many current products. An example of such issues: one mitigation option example discussed is “do not use when rain is expected in the next 48 hours” — which could raise issues concerning what or how compliance might be proven or enforced.

Again, to be sure, this next document about how EPA plans to make significant progress in meeting its ESA obligations continues the effort to convince courts that it is meeting its ESA obligations. As such, it represents a large step forward where in the past EPA was left with little progress or plans to present in court as part of litigation over ESA compliance. As it continues to reveal its plans and options, however, stakeholders will need to follow closely and consider the possible impacts of the Workplan and the resulting label proposals to follow.

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U.S. Fish & Wildlife Service Proposes New Regulations Creating General Eagle “Take” Permits for Certain Wind Energy and Power Line Infrastructure Projects

The U.S. Fish and Wildlife Service recently published a proposed rule revising regulations that authorize permit issuance for eagle incidental take and eagle nest take under the Bald and Golden Eagle Protection Act (the “Act”). In addition to retaining the individual permits already available under the Act, the new rule proposes creation of a “general” permit for qualifying wind energy and power line infrastructure projects.

The Act generally prohibits the “take,”[1] possession, and transportation of bald eagles and golden eagles, except pursuant to federal regulations. However, the Act also authorizes the Secretary of the Interior to issue regulations to permit the take of these eagle species for various purposes. Under the current regulations, there are 2 permit types for the incidental take of eagles and eagle nests, which are issued on an individual, project-specific basis. Due, in part, to inefficiencies in the application review and approval process, issuance of these project-specific eagle take permits has – historically – been relatively rare. The Service acknowledges that, while participation in the permit program by wind energy projects has increased since 2016, it still remains well below the Service’s expectations.

According to the Service, the purpose of the new regulations is to: (i) increase the efficiency and effectiveness of permitting; (ii) facilitate and improve compliance with the regulations; (iii) and increase the conservation benefit for eagles. The Service proposes to do this by creating a general permit program to streamline the permitting process and provide more timely and cost-effective coverage for affected industries.

General permits would be available to authorize incidental take by activities that occur frequently enough for the Service to have developed a standardized approach to permitting. Specifically, the Service proposes activity-specific eligibility criteria and permit requirements in 4 new sections based on activity and type of take: (i) incidental eagle take for permitting wind energy; (ii) incidental eagle take for permitting power lines; (iii) bald eagle disturbance take; and (iv) bald eagle nest take. As part of the revised application process, a general permit applicant would self-identify as eligible and register with the Service. The applicant is then required to submit an application containing all requested information and fees, as well as certification that the applicant meets the eligibility criteria and would implement permit conditions and reporting requirements.

Two particular proposed general permits – for wind energy and power line projects – could prove particularly useful for renewable energy developers.

Wind Energy Projects

The core general permit eligibility criterion for wind energy projects would be a relative eagle abundance threshold, which a project would need to be below in order to qualify for a general permit. The proposed rule includes specific abundance thresholds for bald and golden eagles, applicable during 5 defined portions of the year. For project eligibility, seasonal bald or golden eagle abundance at all existing or proposed turbine locations must be lower than all 5 seasonal thresholds listed. Presently, the Service estimates that nearly 80% of all existing wind-energy turbines in the coterminous United States are located in areas under the proposed relative abundance thresholds for both species and thus eligible for a general permit under this proposal. The Service plans to offer publicly available online mapping resources depicting areas that qualify. However, at this time, we note that under the proposed rule, Alaska would be excluded from the general permitting program.

In addition to falling below the relative eagle abundance thresholds, wind energy projects would also need to be sited more than 660 feet from bald eagle nests and more than 2 miles from golden eagle nests to be eligible for a general permit.

For existing projects where not all turbines are located within an area below the designated thresholds of relative abundance, the project operator would need to apply for an individual permit and request consideration for a general permit in the application. The Service would review the project and issue a letter of authorization if it determines it is “appropriate” to extend general permit coverage.

Although the Service has not yet promulgated a complete set of conditions for wind energy project general permits, the proposed rule requires permittees to implement all practicable avoidance and minimization measures to reduce the likelihood of take. Permittees would also be subject to a 4 discovered-eagle permit condition, under which discovery of 4 eagle mortalities at a wind energy project covered by a general permit would prohibit the project from reapplying for additional 5-year general permits. Such a project would have to apply for an individual permit.

Power Lines

In the proposed rule, the Service acknowledged that it has sufficient understanding of how eagles interact with power lines to develop a general permit for eagle take resulting from power-line infrastructure.

While the proposed rule does not include detailed eligibility criteria, the Service contemplates 6 key conditions for the new power line general permit:

All new construction and reconstruction of pole infrastructure must be electrocution-safe for bald eagles and golden eagles, except as limited by human health and safety.
All new construction and reconstruction of pole infrastructure must be electrocution-safe for bald eagles and golden eagles, except as limited by human health and safety. All new construction and reconstruction of transmission lines must consider eagle nesting, foraging, and roosting areas in siting and design, as limited by human health and safety. Specifically, the Service recommends siting utility infrastructure at least 2 miles from golden eagle nests, 660 feet from a bald eagle nest, 660 feet from a bald eagle roost, and 1 mile from a bald eagle or golden eagle foraging area.
A reactive retrofit strategy must be developed that governs retrofitting high-risk poles when an eagle electrocution is discovered. A reactive retrofit strategy responds to incidents in which eagles are killed or injured by electrocution.
A proactive retrofit strategy must be developed and implemented to convert all existing infrastructure to be electrocution-safe, prioritizing poles identified as the highest risk to eagles.
A collision-response strategy must be implemented for all eagle collisions with power lines. If an eagle collision is detected, a strategy must outline the steps to identify and assess the collision, consider options for response, and implement a response.
An eagle shooting response strategy must be developed and implemented when an eagle shooting is discovered near power-line infrastructure.

Service review and approval would not be required prior to obtaining coverage under either of these general permits. Rather, according to the Service, the general permit authorization would be “generated” using permit conditions and reporting requirements for the proposed activity. Under the proposed rule, upon submitting an application, the Service will “automatically issue a general permit to authorize the take requested in the application.”

The Service intends to conduct annual audits for a small percentage of all general permits to ensure applicants are appropriately interpreting and applying eligibility criteria. The maximum term for wind energy and power line project general permits would be 5 years; after expiration, with certain narrow exceptions, projects could reapply for new 5-year general permits.

Finally, because the Service will undertake environmental review to support its final rule, obtaining coverage under the general permits would not require project-specific environmental review under the National Environmental Policy Act. However, applicants for the general permit must certify, among other things, that: (i) the activity for which take is to be authorized does not affect a property that is listed, or is eligible for listing, in the National Register of Historic Places; or (ii) that the applicant has obtained, and is in compliance with, a written agreement with the relevant State Historic Preservation Officer or Tribal Historic Preservation Officer that outlines all measures the applicant will undertake to mitigate or prevent adverse effects to the historic property.

The Service is accepting comments on the proposed rule until November 29, 2022. The Service hosted an initial listening session for the general public on October 20^th, and will host an additional listening session on November 3, 2022.

FOOTNOTES

^[1]Under the federal Endangered Species Act, “take” is defined as any action “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

Article By S. Keith Garner and Daniel S. Maroon of Sheppard, Mullin, Richter & Hampton LLP

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New Endangered Species Act (ESA) Critical Habitat Rules Expand Federal Authority and Add Uncertainty

On February 11, 2016, the United States Fish & Wildlife Service (“FWS”), together with the National Marine Fisheries Service (“MFS”) (collectively “Services”) published two final rules and a final policy that purport to clarify their procedures for listing species under the Endangered Species Act (“ESA”) and designating and revising critical habitat for listed species. Hundreds of comments were filed opposing the Services’ actions, with the IPAA and numerous other trade organizations expressing significant concerns about the content and scope of the rules. The rules and policy become effective as of March 14, 2016.

The new rules first revise the term “destruction or adverse modification.” This is a fundamentally important term in implementing the ESA. The new rule defines this term as follows:

Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

50 C.F.R. 402.02, Definitions. This shifts the historic endpoint for this factor from “both the survival and recovery” of a species to simply conservation of a species. The Services have even changed the underlying significance of the term “conservation.” The existing Section 402.02 definitions include a definition for “conservation recommendations,” which are “suggestions of the Service regarding discretionary measures to minimize or avoid adverse effects of a proposed action on a listed species or critical habitat.” Under the new rule, Section 402.02’s definitions will include a definition for “conserve, conserving, and conservation”:

To use and the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures . . . are no longer necessary, i.e., the species is recovered in accordance with § 402.02 of this chapter.

50 C.F.R. 402.02, Definitions (Emphasis added). Thus at the outset the level of change that might be considered “destruction of modification” of critical habitat is arguably substantially different. Equally concerning, the remainder of the new definition appear to include current and future habitat features, and uses the newly defined and even broader term “physical or biological features.”

The new rules next change the FWS’ current rules found at 50 C.F.R. sections 424.12(b) and (e). The FWS and MFS plan to eliminate existing limitations on when they can designate unoccupied areas as critical habitat for listed species. Those limitations are generally set forth in Section 424.12(e) which currently states that FWS may include unoccupied area in designating critical habitat “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (Emphasis added). Section 424.12(b)(2) of the new rule supersedes this provision, with the ability to designate unoccupied areas drafted as a mandate or general authority as opposed to a limitation. Section 424.12(b)(2) also relies on the new definition of “conservation” that leaves many concerned over whether “conservation” will now be equated with species recovery. The rule states as follows:

(b) Where designation of critical habitat is prudent and determinable, the Secretary will identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.

(2) The Secretary will identify, at a scale to be determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species that are essential for its conservation, considering the life history, status, and conservation needs of the species based on the best available scientific data.

See 81 Fed. Reg. 7414 (February 11, 2016), at p. 7439 (Emphasis added). While the rule limits the Services’ reach to exclude foreign countries, 50 C.F.R. 424.12(g), their authorities to designate habitat for new or previously listed species, or to modify designated critical habitat where such habitat was previously designated, is otherwise broad. The Services are explicit in acknowledging their intent to increasingly exercise their discretion to include unoccupied areas outside of a species’ range where those areas “are essential for its conservation.” 50 C.F.R. 424.12(b)(2). New defined terms such as “physical and biological features,” “special management considerations” and “geographical area occupied” add to the uncertainty regarding critical habitat.

As rationale for the new rules, the Services cite past litigation, but also “anticipate that critical habitat designations in the future will likely increasingly use the authority to designate specific areas outside the geographical area occupied by the species at the time of listing.” 79 Fed. Reg. 27,066 (May 12. 2014), p. 27073. The Services go on to explain that “[a]s the effects of global climate change continue to influence distribution and migration patterns of species, the ability to designate areas that a species has not historically occupied is expected to become increasingly important.” For example, such areas may provide important connectivity between habitats, serve as movement corridors, or constitute emerging habitat for a species experiencing range shifts in latitude or altitude (such as to follow available prey or host plants). Where the best available scientific data suggest that specific unoccupied areas are, or it is reasonable to infer from the record that they will eventually become, necessary to support the species’ recovery, it may be appropriate to find that such areas are essential for the conservation of the species and thus meet the definition of “critical habitat.”” Id. The Services have relied on these generalized concepts of climate change to support sweeping new authority over the designation of unoccupied areas as critical habitat, and appear poised to regulate or prohibit changes to those unoccupied lands based on an inference that the lands may eventually become necessary to support the species’ recovery in the future.

The final policy published together with the two new rules addresses the Services’ discretionary authority to exclude areas from a designation of critical habitat pursuant to Section 4(b)(2) of the ESA. According to the Services, “[t]he final policy consists of six elements that the Services consider when determining whether to exclude any areas from critical habitat: (1) partnerships and conservation plans, (2) conservation plans permitted under section 10 of the ESA, (3) tribal lands, (4) national security and homeland security impacts, and military lands, (5) federal lands, and (6) economic impacts.” See http://www.fisheries.noaa.gov/pr/species/critical%20habitat%20files/4b2_faqs_final.pdf. The policy sets a high bar for when areas will be excluded as critical habitat based on private and non-federal conservation plans or agreements. Evaluations pursuant to 4(d)(2) involving non-permitted conservation plans or agreements will be considered using at least eight factors, one of which is the “degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species.” 81 Fed. Reg. 7226 (February 11, 2016), at p. 7247 (Emphasis added). The policy is also notable in its express intent to focus on non-federal lands, and its statement that “the benefits of designating Federal lands as critical habitat are typically greater than the benefits of excluding Federal lands or of designating non-federal lands. This part of the policy seems not to properly consider the approximately 700 million acres of federal mineral estate lands and the over-300 million acres of surface estate federal lands, many of which are leased for various mining, exploration or other activities. See http://www.blm.gov/public_land_statistics/pls10/pls10.pdf

Given the breadth of the Services’ new rules, and the ambiguity that appears in the new definitions and other rule changes, lawsuits are anticipated challenging the rules. The following is a link to dockets for each final action: http://www.regulations.gov/#!docketDetail;D=FWS-HQ-ES-2012-0096.

ARTICLE BY Allyn G. Turner of Steptoe & Johnson PLLC
© Steptoe & Johnson PLLC. All Rights Reserved.

Threatened and Endangered Species Listings Likely to Increase Under New U.S. Fish & Wildlife Service Policy

Beveridge Diamond National Law Review

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.

Article By:

James M. Auslander

W. Parker Moore

Sara L. Vink

Of:

Beveridge & Diamond PC

Massachusetts' Highest Court Upholds State's Endangered Species Regulations

In a long-awaited ruling, the Massachusetts Supreme Judicial Court affirmed the legality of the “priority habitat” regulations created by the Division of Fisheries and Wildlife (DFW) of the Massachusetts Department of Environmental Protection under the Massachusetts Endangered Species Act (MESA). In Pepin v. Division of Fisheries and Wildlife, SJC No. 11332 (February 18, 2014), the petitioners challenged the DFW’s establishment of “priority habitat” regulations “for which MESA makes make no express provision.”

MESA does expressly authorize DFW to designate certain areas as “significant habitats” of endangered or threatened species. Land designated a “significant habitat,” entitles an owner to (i) advance written notice that the land is being considered for designation as a significant habitat, (ii) a public hearing before any decision on the proposed designation is made, and (iii) an opportunity to appeal and seek compensation under the “takings” clause of the U.S. Constitution. Arguably to avoid paying just compensation, the DFW has never designated land “significant habitat.”

Instead, the DFW promulgated regulations establishing a second type of protected habitat denoted “priority habitat,” to protect species that are either endangered or threatened, or that fall into a third category of “species of special concern.” Delineations are “based on the best scientific evidence available.” A sixty-day public comment period follows the reevaluation of the priority habitat map every four years and a final map is posted on the DFW’s web site. The DFW reviews projects in a “priority habitat” on a case-by-case basis to determine whether it would result in either (i) a “no” take, (ii) a “conditional” no take, or (iii) a take. Even if DFW finds the project would be a “conditional” no take or a “take,” the project may proceed under DFW-imposed conditions or a “conservation and management permit.”

Here, the petitioners’ property consists of two building lots, totaling approximately 36 acres. In 2006, the property was delineated a priority habitat for a species of special concern (eastern box turtle). Challenging the validity of the “priority habitat” regulations, the petitioners maintained that MESA’s creation of the “significant habitat” designation with critical procedural protections meant that all landowners were entitled to the same protections whenever property development is restricted under MESA. Citing the broad authority granted by MESA, the Court rejected this view and instead found that that statute “extends to the formulation of the priority habitat concept as a means of implementing MESA’s prohibition on takes.” The Court refused to “substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, …[where] the regulation … [was] rationally related to those goals.” The petitioners could not overcome the presumption of validity accorded “duly promulgated regulations of an administrative agency….”

The Court also ruled that in deciding the petitioners’ challenge to the application of the priority habitat mapping guidelines to their property, a Division of Administrative Law Appeals (DALA) magistrate judge properly ruled in favor of the DFW even without a hearing because the petitioners failed to meet their burden of demonstrating that the DFW improperly delineated their property as priority habitat.

Article By:

Brian C. Levey

Marc J. Goldstein

Of:

Beveridge & Diamond PC

Eastern Population of Gopher Tortoise Eligible for Endangered Species Act Protection

Recently posted in the National Law Review an article about The United States Fish & Wildlife Service (USFWS) has released its listing decision for the eastern population of gopher tortoise by Ivan T. Sumner of Greenberg Traurig, LLP.

The United States Fish & Wildlife Service (USFWS) has released its listing decision for the eastern population of gopher tortoise. The USFWS has determined that listing the eastern population of the tortoise as Threatened under the Endangered Species Act (ESA) is warranted, however, it is precluded from doing so at this time due to higher priority actions and a lack of sufficient funds to commence proposed rule development. The western population is already listed as Threatened and will continue to be protected under the ESA. In the interim period of time the USFWS will place the eastern population of the tortoise on its candidate species list until sufficient funding is available to initiate a proposed listing rule. The USFWS did not provide any time estimate on that front. Candidate species do not receive any statutory protection under the ESA. The gopher tortoise in Florida is still protected under Florida laws and policies implemented by the Florida Fish and Wildlife Conservation Commission.

Tag: Endangered Species

NJDEP Proposes Bald Eagle Removal and Other Changes to New Jersey’s Threatened and Endangered Species Lists

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EPA Announces the Release of Its Endangered Species Act Workplan Update

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