[Federal Register Volume 79, Number 126 (Tuesday, July 1, 2014)]
[Rules and Regulations]
[Pages 37577-37612]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-15216]
[[Page 37577]]
Vol. 79
Tuesday,
No. 126
July 1, 2014
Part VIII
Department of the Interior
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Fish and Wildlife Service
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50 CFR Chapter I
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Chapter II
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species''; Final Rule
Federal Register / Vol. 79 , No. 126 / Tuesday, July 1, 2014 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Chapter I
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Chapter II
[Docket No. FWS-R9-ES-2011-0031; FXES11130900000C6-145-FF09E42000; DOC
Docket No. 110131072-4385-02]
RIN 1018-AX49; 0648-BA78
Final Policy on Interpretation of the Phrase ``Significant
Portion of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species''
AGENCIES: Fish and Wildlife Service, Interior; National Marine
Fisheries Service, NOAA, Commerce.
ACTION: Notice of final policy.
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SUMMARY: We, the United States Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) (collectively, the Services),
announce a policy to provide our interpretation of the phrase
``significant portion of its range'' in the Endangered Species Act's
(Act's) definitions of ``endangered species'' and ``threatened
species.'' The purpose of this final policy is to provide an
interpretation and application of ``significant portion of its range''
that reflects a permissible reading of the law and minimizes
undesirable policy outcomes, while fulfilling the conservation purposes
of the Act. This final policy provides a consistent standard for
interpretation of the phrase and its role in listing determinations.
DATES: This policy is effective on July 31, 2014.
ADDRESSES: This final policy is available on the Internet at http://www.regulations.gov at Docket Number FWS-R9-ES-2011-0031. Comments and
materials received, as well as supporting documentation used in the
preparation of this policy, are also available at the same location on
the Internet.
FOR FURTHER INFORMATION CONTACT: Gina Shultz, U.S. Fish and Wildlife
Service, Ecological Services Program, 4401 North Fairfax Drive, Room
420, Arlington, VA 22203; telephone 703-358-2171; facsimile 703-358-
1735; or Marta Nammack, National Marine Fisheries Service, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910;
telephone 301-427-8469; facsimile 301-713-0376. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Changes from the Draft Policy
III. Policy Explanation
A. Purpose
B. The First Component: Consequences of a Species Being in
Danger of Extinction or Likely to Become So Throughout a Significant
Portion of Its Range (SPR)
C. Second Component: The Definition of ``Significant'' as it
Relates to SPR
1. Circumstances under which a portion can be ``significant''
2. Biological basis for ``significant''
3. The threshold for ``significant''
D. Range and Historical Range
E. Relationship of SPR to the Act's Distinct Population Segment
(DPS) Authority
F. Procedure for Implementing the Policy
IV. Summary of Comments and Responses
A. The Policy is Not Needed, Needs Additional Process, or
Legislation is Required
B. The SPR Language Provides an Independent Basis for Listing
C. Apply Protections to Entire Species if Listed Because it is
Endangered or Threatened Throughout an SPR
D. The Biological Basis for ``Significant''
E. The Threshold for ``Significant''
F. Quantitative Approaches or Rebuttable Presumptions to
Determine Whether a Portion is ``Significant''
G. Range and Historical Range
H. Relationship with DPS Authority
I. Whether a Species Can Be Both Threatened Throughout All of
Its Range and Endangered Throughout an SPR
J. Use of Best Available Science, Appropriate Analyses, Correct
Conclusions
K. Implementation in Listing Determinations
L. Effects on Implementation of Other Portions of the Act
M. Procedural Requirements and Compliance with Laws
V. Policy
VI. Effects of Policy
A. Designation of Critical Habitat
B. Rules Promulgated Under Section 4(d) of the Act
C. Recovery Planning and Implementation
D. Sections 7, 9, and 10 of the Act
VII. Required Determinations
A. Regulatory Planning and Review (E.O.s 12866 and 13563)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
D. Takings (E.O. 12630)
E. Federalism (E.O. 13132)
F. Civil Justice Reform (E.O. 12988)
G. Government-to-Government Relationship with Tribes
H. Paperwork Reduction Act
I. National Environmental Policy Act
J. Energy Supply, Distribution or Use (E.O. 13211)
I. Introduction
On December 9, 2011, the Services published a notice of a draft
policy in the Federal Register (76 FR 76987) regarding the
interpretation and application of the phrase ``significant portion of
its range'' (SPR) as it occurs in the Act's definitions of ``endangered
species'' and ``threatened species.'' The Act defines the term
``endangered species'' to mean any species which is in danger of
extinction throughout all or a significant portion of its range and the
term ``threatened species'' to mean any species which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. In the December 9, 2011,
Federal Register notice, we provided the background for our draft
policy in terms of the statute, legislative history, and case law. We
also explained different aspects of the draft policy and discussed
various alternatives for interpreting the phrase ``significant portion
of its range,'' including defining ``significant.'' Finally, we
discussed the effects the draft policy would have with respect to
implementation of other sections of the Act.
We intend this final policy to be legally binding. It sets forth
the Services' interpretation of ``significant portion of its range''
and its place in the statutory framework of the Act. In this final
policy, we focus our discussion on changes to the draft policy based on
comments we received during the comment period. For background on the
statutory, legislative history, and case law relevant to this policy,
as well as alternatives we considered for interpreting the phrase
``significant portion of its range'' and defining ``significant,'' we
refer the reader to our draft policy and the environmental assessment
of the policy, which is available at http://www.regulations.gov under
Docket No. FWS-R9-ES-2011-0031.
II. Changes From the Draft Policy
This final policy differs from our draft policy in one substantive
respect and three editorial respects. Here we summarize those changes.
They are explained in greater detail in section III. First, we modified
the definition of ``significant.'' The definition in the draft policy
was: ``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
[[Page 37579]]
danger of extinction.'' The definition in this final policy reads:
A portion of the range of a species is `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.
We explain in detail why we revised the definition of
``significant'' in section III.C. 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.
Second, we made a nonsubstantive change to the first section of the
policy, regarding the consequences of a species being endangered or
threatened throughout an SPR. The second paragraph of the draft policy
stated (emphasis added):
If a species is found to be endangered or threatened in only a
significant portion of its range, the entire species is listed as
endangered or threatened, respectively, and the Act's protections
apply across the species' entire range.
In the final policy, we replaced ``across the species' entire
range'' with ``to all individuals of the species wherever found.'' This
does not reflect a change in the intended meaning of the language but
instead simply clarifies how protections will apply. As we explain in
section III.D., the protections apply to the species itself, not the
``range'' in which it is found. Further, this change aligns our
interpretation with our regulations at 50 CFR 17.11(e) and 17.12(e)
that state that once a species is determined to be an endangered
species or threatened species, the protections of the Act apply ``to
all individuals of the species, wherever found.''
Third, we made a nonsubstantive change to the last section of the
policy, reconciling the SPR and Distinct Population Segment (DPS)
authorities. In the draft policy, this paragraph read (emphasis added):
If the species is not endangered or threatened throughout all of
its range, but it is endangered or threatened within a significant
portion of its range, and the population in that significant portion
is a valid DPS, we will list the DPS rather than the entire
taxonomic species or subspecies.
In the final policy, we have deleted the language in italics as
redundant. It is no longer necessary to specify this as a prerequisite
for when this provision will operate, in light of the revised
definition of ``significant.'' Under the final policy, it will be a
prerequisite to any SPR analysis that the Services first find that the
species is neither endangered nor threatened throughout all of its
range. Thus, the edit to this paragraph does not represent a change in
meaning, but merely harmonizes the language in this paragraph with the
previously described edit.
Fourth, we substituted ``throughout'' for ``in'' or ``within'' in
several places to track the statutory language (``throughout . . . a
significant portion of its range'') more closely.
III. Policy Explanation
A. Purpose
The purpose of this policy is to develop a joint interpretation of
``significant portion of its range'' to reduce inconsistencies in
applying the phrase and to improve effective and efficient
implementation of the Act. The Services need to ensure that the policy
is consistent with the plain language and mandates of the Act, is
consistent with case law, provides clarity as to both the meaning and
consequences of the SPR phrase so that the Services will be accorded
deference when they apply the interpretation in making status
determinations, and furthers the conservation purposes of the Act.
The relevant statutory provisions together create a variety of
tensions and ambiguities, so there is no single best interpretation.
Here, we adopt a reasonable interpretation of these statutory
provisions. We conclude that (1) if a species is found to be endangered
or threatened throughout a significant portion of its range, the entire
species is listed as endangered or threatened, respectively, and the
Act's protections apply to all individuals of the species wherever
found; (2) a portion of the range of a species is ``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; (3) the range of a
species is considered to be the general geographical area within which
that species can be found at the time FWS or NMFS makes any particular
status determination; and (4) if a vertebrate species is endangered or
threatened throughout an SPR, and the population in that significant
portion is a valid DPS, we will list the DPS rather than the entire
taxonomic species or subspecies.
As discussed in the draft policy (76 FR 76987, pp. 76988-76990) and
in more detail in the Department of the Interior (DOI) (2010) and FWS
and NMFS SPR Working Group (2010), the role of the SPR language in the
context of the entire statutory scheme is not clear from the text
itself or the legislative history. However, the Ninth Circuit's ruling
in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001)
(Defenders (Lizard)), indicates that, with respect to the statutory
language ``throughout all or a significant portion of its range,'' we
should give the words on either side of the ``or'' operational
[[Page 37580]]
meaning (see Defenders (Lizard) 258 F.3d at 1141-42). We agree, and we
have therefore developed a policy that gives operational effect to the
SPR language instead of treating it as merely a clarification of the
``throughout all'' language. Thus, under our policy, a species will be
able to qualify as an ``endangered species'' in two different
situations: (1) If it is in danger of extinction throughout all of its
range, or (2) if it is in danger of extinction throughout a significant
portion of its range. The same is true for ``threatened species.''
This policy addresses two separate, but interrelated, components to
giving the phrase ``a significant portion of its range'' operational
meaning. First, we establish the consequence of a species being
endangered or threatened throughout an SPR. Second, we define
``significant,'' thereby providing a standard for determining when a
portion of a species' range constitutes an SPR, and thus when that
consequence may be triggered. (We address the consequences issue first
because the Services have greater discretion in defining
``significant,'' and those consequences play an important role in the
Services' decision as to how to exercise that discretion.) We address
each of these components in turn.
We note that throughout this policy when discussing SPR and
``portion of the range'' and similar phrases, we are referring to the
members of the species within that portion of the range. As explained
further below, when analyzing portions of ranges we consider the
contribution of the individuals in that portion to the viability of the
species in determining whether a portion is significant, and we
consider the status of the species in that portion. Thus, when we refer
to ``portion of its range,'' we mean the individuals of the species
that occupy that portion. However, for the sake of readability, in this
policy we sometimes refer to ``a portion of the range'' or similar
phrases as a short hand for the ``members of the species in that
portion of its range.''
B. The First Component: Consequences of a Species Being in Danger of
Extinction or Likely To Become So Throughout a Significant Portion of
Its Range (SPR)
Given that we have determined that a species may be an ``endangered
species'' or ``threatened species'' if it is in danger of extinction
(endangered) or likely to become so (threatened) throughout an SPR but
not throughout all of its range, we considered what consequences under
the Act flow from such a determination. In particular, we considered
two alternative interpretations: individuals of a species that are
endangered or threatened throughout an SPR are protected wherever
found, or individuals of a species that are endangered or threatened
throughout an SPR are protected only in that SPR. The legal opinion
issued by the Solicitor of the DOI in 2007 (referred to as the ``M-
Opinion'') (DOI 2007) took the latter view (for additional discussion
of the M-Opinion, see our draft policy (76 FR 76987, p. 76990)). We
conclude that the former view is the best interpretation of the Act. As
we explained in the draft policy (76 FR 76987, pp. 76991-76993), the
statutory text and the most relevant case law strongly support our
conclusion, while the purposes of the Act, the legislative history, and
past agency practice are of little help in answering this question. (We
acknowledge that one of the district court opinions we discussed was
vacated after we published the draft policy: Defenders of Wildlife v.
Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010), vacated, 2012 U.S. App.
Lexis 26769 (9th Cir. Nov. 7, 2012). That opinion was vacated, however,
not on the merits, but solely because the pending appeal of the opinion
became moot due to intervening congressional action. Thus, to the
extent that this policy is informed by the reasoning of the district
court opinion, it is because we have concluded that that reasoning is
valid notwithstanding the opinion's vacatur for technical reasons.)
In addition, we note that our revised definition of ``significant''
bolsters our conclusion in the draft policy that our interpretation
does not render irrelevant the ``all'' language in the definitions of
``endangered species'' and ``threatened species'' (76 FR 76987, p.
76992). As discussed in our draft policy, the ``all'' language retains
independent meaning via the practical way in which the Services
actually determine the status of a species. Our revised definition of
``significant'' further reinforces the ``all'' language by essentially
stipulating that a portion can be significant only if we first find
that the species is not currently endangered or threatened throughout
all of its range. Thus, the ``all'' language will retain independent
meaning and play an important role in status determinations.
C. Second Component: The Definition of ``Significant'' as It Relates to
SPR
Having concluded that the phrase ``significant portion of its
range'' provides an independent basis for listing and protecting the
entire species, we next turn to defining ``significant'' to establish a
standard for when such an independent basis for listing exists. As we
explained in our draft policy, we have broad discretion to interpret
``significant,'' particularly in the context of creating a policy
related to SPR after notice and comment, as we have done here (see 76
FR 76987, p. 76993). In this final policy, we determine that a portion
of the range of a species is ``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. Our definition of ``significant''
addresses three questions: (1) Under what circumstances can a portion
be significant? (2) what information is relevant to determining whether
a portion is significant? and (3) what is the threshold or level of
importance required for a portion to be significant?
1. Circumstances Under Which a Portion Can Be ``Significant''
As discussed in our draft policy (76 FR 76987, p. 76992), we have
concluded that we must give both the ``all'' language and the SPR
phrase operational effect. In other words, there must be some
circumstances in which each provision results in listing species. The
Act, however, does not specify the relationship between the two
provisions. Based in part on public comments on our draft policy, we
now conclude that a portion of the range of a species can be
``significant'' only if the species is not currently endangered or
threatened throughout all of its range.
We reach this conclusion for both textual and practical reasons.
With regard to the text of the Act, we note that Congress placed the
``all'' language before the SPR phrase in the definitions of
``endangered species'' and ``threatened species.'' This suggests that
Congress intended that an analysis based on consideration of the entire
range should receive primary focus, and thus that the agencies should
do an SPR analysis as an alternative to a rangewide analysis only if
necessary. Under this reading, the Services should first consider
whether listing is appropriate based on a rangewide analysis and
proceed to conduct an SPR analysis if (and only if) a species does not
qualify for listing according to the ``all'' language.
A practical consideration, as made clear by numerous commenters, is
that interpreting the definitions of an
[[Page 37581]]
``endangered species'' and a ``threatened species'' in a way that a
species could meet both definitions simultaneously (i.e., threatened
throughout all of its range and endangered throughout a significant
portion of its range) would be extremely confusing to the public.
Limiting significance to circumstances in which the species is not
currently endangered or threatened throughout all of its range
eliminates that concern. A related benefit of limiting the
applicability of the SPR language is to reduce the circumstances in
which additional legal determinations are necessary. This will allow us
to more efficiently use our limited resources to undertake additional
actions required in administering the Act to further its conservation
purposes.
As noted below (section VI. Effects of Policy) and in the draft
policy (76 FR 77003), we conclude that finding that a species is an
endangered species or a threatened species based on its status in an
SPR will occur only under a limited set of circumstances and will be
relatively uncommon. Under the draft policy, finding that a species is
threatened throughout its range and also endangered in a significant
portion of its range is only one of the possible circumstances (of that
already limited set) that would have led to finding that a species is
endangered or threatened in an SPR, and thus would have been relatively
uncommon even within that set of limited circumstances. Moreover, in no
circumstance should the interpretation in this final policy lead to a
reduction in protections that the Secretaries deem to be necessary and
advisable, as the Secretaries have the authority under section 4(d) to
apply the full protections of the Act to threatened species.
2. Biological Basis for ``significant''
As we explained in our draft policy (76 FR 76987, p. 76994), we
conclude that a definition of ``significant'' that is biologically
based best conforms to the purposes of the Act, is consistent with
judicial interpretations, and best ensures species' conservation. This
policy's definition emphasizes the biological importance of the portion
of the range to the conservation of the species as the measure for
determining whether the portion is ``significant.'' For that reason, it
describes the threshold for ``significant'' in terms of an increase in
the risk of extinction for the species. We evaluate biological
significance based on the principles of conservation biology using the
concepts of redundancy, resiliency, and representation (the three Rs)
(Schaffer and Stein 2000). These concepts also can be expressed in
terms of the four viability characteristics used more commonly by NMFS:
abundance, spatial distribution, productivity, and diversity of the
species.
3. The Threshold for ``significant''
As discussed in our draft policy (76 FR 76987, p. 76995) and below,
we conclude that the threshold for ``significant'' should be high
enough to avoid dilution of conservation efforts and unnecessary
restrictions that may result from listing a species based on its status
throughout an SPR, but not so high as to make it indistinguishable from
the ``clarification interpretation'' in the M-Opinion (the
clarification approach was rejected by the Ninth Circuit, as discussed
in the draft policy). After considering comments received on the draft
policy, we have lowered the threshold for ``significant'' somewhat by
incorporating the concept of being likely to become in danger of
extinction in the foreseeable future (the threatened standard) along
with the standard for endangered in the definition of ``significant.''
Use of the somewhat lowered threshold furthers the conservation
purposes of the statute and more clearly avoids the appearance of
similarity to the ``clarification'' approach while striking a balance
between too high and too low a threshold. At the same time, use of the
endangered and threatened standards in the definition of
``significant'' minimizes the introduction of complicating new concepts
into the status-determination process.
Use of Endangered and Threatened Standards: We used the endangered
and threatened standards from the Act to define the threshold for
``significant'' because they are well-understood concepts that are
directly linked to the conservation status of the species, and are
within the expertise of the Services. Lowering the threshold further,
beyond the endangered and threatened standards, would require that we
define new standards that would complicate the understanding, and
analysis, of how or whether a species meets the definitions of the Act.
We also considered using another well-known standard--the definition of
significance in the DPS policy--as a threshold for ``significant'' in
this policy. We rejected this option, however, because it would result
in all DPSs being SPRs, rendering the DPS language in the Act
meaningless. We concluded that the threshold for significance must be
higher than that in the DPS policy in order to avoid this outcome.
Lower Threshold Furthers the Conservation Purposes of the Act: The
threshold for ``significant'' in our draft policy furthered the
conservation purposes of the Act by adding an independent basis for
listing. In other words, under the draft policy we would consider not
only whether a species is endangered or threatened throughout its
range, but also whether it is endangered or threatened throughout an
SPR. This final policy retains the additional, independent basis for
listing and, by lowering the threshold for ``significant'' to
incorporate the threatened standard, may slightly increase (compared to
the draft policy) the number of species we consider for listing. In
other words, the lower threshold for ``significant'' in this final
policy will further the conservation purposes of the statute beyond
that already embodied in the draft policy because it will enable us to
provide protection under the Act to species with important populations
facing significant threats that we might not have otherwise listed.
Lower Threshold is More Clearly Distinguishable from the
``Clarification Interpretation'': Although this final policy's
definition establishes a threshold for ``significant'' that is
relatively high, lowering it somewhat from what we described in the
draft policy will make it clearer that we are giving the phrase ``a
significant portion of its range'' independent meaning. Specifically,
we have not set the threshold as high as it was under the
interpretation presented by FWS in the Defenders (Lizard) litigation
(termed the ``clarification interpretation'' in the M-Opinion). As
discussed in the draft policy (76 FR 76987, p. 76989), under that
interpretation, the portion of the range must be so important that
current imperilment there would mean that the species would be
currently imperiled everywhere. Under this final policy, the portion of
the range need not rise to such an exceptionally high level of
biological significance. (Note that if the species is imperiled in a
portion that rises to the high level of biological significance
required under the clarification interpretation, then we should
conclude that the species is in fact imperiled throughout all of its
range--and we need not conduct an SPR analysis.) Rather, under this
final policy we ask whether the species would be in danger of
extinction or likely to become so in the foreseeable future without
that portion, i.e., if the members of that portion were not just
currently imperiled, but already completely extirpated.
Unlike the clarification interpretation at issue in Defenders
(Lizard), this final policy does not, by definition, limit the SPR
phrase to situations in which it is
[[Page 37582]]
unnecessary. The clarification interpretation defined ``significant''
in such a way that a portion of a species' range could be significant
only if the current status of the species throughout its range were
endangered or threatened (in particular, as a result of the endangered
or threatened status of the species throughout that portion of its
range). But if the current status of the species throughout its range
is endangered or threatened, then the species could be listed even
without the SPR phrase. Thus, that definition of ``significant''
inherently made the statutory SPR phrase unnecessary and redundant. In
contrast, the definition in this policy does not render the statutory
phrase redundant. In fact, this policy's definition of ``significant''
itself makes it clear that a portion can only be significant if the
species is not currently endangered or threatened throughout all of its
range. Moreover, a portion of a species' range is significant when the
species would be in danger of extinction or likely to become so in the
foreseeable future rangewide if the species were extirpated in that
portion, but that will not be the case at the time of the analysis
because, by definition, an SPR is a portion of the current range of the
species, and therefore the species cannot yet be extirpated there. In
other words, this policy's definition leaves room for listing a species
that is not currently imperiled throughout all of its range.
Two examples illustrate the difference between the policy's
definition and the clarification interpretation. First, a species might
face severe threats only in the portions of the range it uses in one
part of its life cycle (Portion A). Because the species cannot complete
its life cycle without Portion A, threats in Portion A affect all
individuals of the species even if other portions of the species' range
are free of direct threats. In other words, if the species is
endangered in Portion A, it is in fact endangered throughout all of its
range. Portion A would be an SPR under the clarification
interpretation. Under this policy's interpretation, we would still list
this species, but its listing would be based on its status throughout
all of its range rather than its status throughout a significant
portion of its range. We would not go further to consider the status in
any potentially significant portion of its range.
In contrast, another species may have two main populations. The
first of those populations (found in Portion Y) currently faces only
moderate threats, but that population occurs in an area that is so
small or homogeneous that a stochastic (i.e., random, unpredictable,
due to chance) event could devastate that entire area and the
population inhabiting it. Therefore, if it were the only population,
the species would be so vulnerable to stochastic events that it would
be in danger of extinction. (With two main populations, it is unlikely
that both would be affected by the same stochastic event. The severity
of the threats posed by the stochastic event would therefore be smaller
because there could be exchange between the populations following the
stochastic event--and this exchange could help to stabilize the
population that has suffered declines.) Thus, without the portion of
the range currently occupied by the second population (Portion X), the
species would be in danger of extinction. But, as long as Portion X
contained an extant population, the resiliency and redundancy of the
two portions combined would be sufficient that the species would not be
in danger of extinction, or likely to become so in the foreseeable
future, throughout all of its range, even in the face of severe threats
to Portion X. Under these facts, Portion X would not be an SPR
according to the clarification interpretation. Under this final policy,
we first determine whether the species is endangered or threatened
throughout all of its range and, if so, list the species accordingly.
If the species is not endangered or threatened throughout all of its
range, then we look further to determine whether it is endangered or
threatened throughout a significant portion of its range. Under these
facts, and in contrast to the clarification interpretation, Portion X
would be an SPR under this policy because the species would not
currently be endangered or threatened throughout all of its range, but
the hypothetical loss of Portion X would cause the species to become
endangered. Therefore, we would need to consider whether the species
was endangered or threatened in Portion X, and, if so, we would list
the species.
More broadly, and as a logical corollary to the reasoning of
Defenders (Lizard), any interpretation of the definitions of
``endangered species'' and ``threatened species'' must afford practical
meaning to each part of the statutory language. Thus, an interpretation
must not render irrelevant any of the four discrete bases, or
categories, for listing set forth in the plain language of the statute
(that a species is: endangered throughout all of its range; threatened
throughout all of its range; endangered throughout a significant
portion of its range; or threatened throughout a significant portion of
its range). This policy's threshold for determining biological
significance will give meaning to all four discrete bases for listing.
Under our interpretation, there is at least one set of facts that falls
uniquely within each of the four bases (without simultaneously fitting
the standard of another basis).
Lower Threshold Is Still High Enough to Be Compatible with Listing
the Species Throughout its Range: Given that the consequence of finding
a species to be endangered or threatened throughout an SPR is listing
the species throughout its entire range, it is important not to use a
threshold for ``significant'' that is too low (e.g., the threshold
described by the definition of significance in the DPS policy, or that
a portion of the range is ``significant'' if its loss would result in
any increase in the species' extinction risk, even a negligible one).
Although we recognize that most portions of a species' range contribute
at least incrementally to a species' viability, use of such a low
threshold would require us to impose restrictions and expend
conservation resources disproportionately to conservation benefit;
listing would be rangewide, even if a portion of only minor
conservation importance to the species is imperiled. In such a
situation, a proportion of limited conservation resources would be
diverted away from the conservation of species most vulnerable to
extinction and used for species that might arguably better fit a lesser
standard if viewed solely across their ranges. The threshold defined in
this policy strikes a balance between being high enough to avoid these
negative consequences, and low enough to give the SPR phrase
independent meaning.
Application of the Threshold: Under this policy, after having
determined that the species is neither endangered nor threatened
throughout all of its range, we will determine if a portion of a
species' range is significant. To do so, we will ask whether, without
that portion, the three Rs of the species--or the four viability
characteristics used more commonly by NMFS--would be so impaired that
the species would have an increased vulnerability to threats to the
point that the overall species would be in danger of extinction (i.e.,
would be ``endangered'') or likely to become so in the foreseeable
future (i.e., would be ``threatened''). If so, then the portion in
question is significant, and we will undertake an analysis of the
threats to the species in that portion to determine if the species is
endangered or threatened there. That analysis evaluates current and
anticipated threats facing the species in that portion
[[Page 37583]]
now and into the foreseeable future, the impacts these threats are
expected to have, and the species' anticipated responses to those
impacts. If, on the other hand, the answer is negative, that is the end
of the inquiry--the portion in question is not significant and the
species does not qualify for listing.
There are a number of circumstances in which we might determine
that a portion of the range of a species is ``significant.'' For
example, the population in the remainder of the species' range without
the population in the SPR might not be large enough to be resilient to
environmental catastrophes or random variations in environmental
conditions. Or, if the viability of the species depends on the
productivity of the population in the SPR, 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.
Further, 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. If habitat loss is extensive, especially in core areas,
remaining populations become isolated and fragmented, and demographic
and population-dynamic processes within the species can be disrupted to
the extent that the entire species is at higher risk of extinction
(e.g., Waples et al. 2007), such that those remaining populations might
then warrant listing. Finally, if the population in the SPR contains
important elements of genetic diversity, without that population the
remaining population may not be genetically diverse enough to allow for
adaptations to changing environmental conditions. Diversity is
generally thought to buffer a species against environmental
fluctuations in the short term and to provide evolutionary resilience
to meet future environmental changes (e.g., Hilborn et al. 2003).
D. Range and Historical Range
When considering an interpretation of the SPR phrase, we must also
consider the meaning of the term ``range.'' The term is not defined in
the Act. Indeed, it is used only six times, two of which are in the SPR
phrases of the definitions of ``endangered species'' and ``threatened
species.'' None of these uses sheds much light on precisely what
Congress meant by the term ``range.'' The context in which Congress
used the term is, however, instructive. In the Act, ``range'' is used
as a conceptual and analytical tool related to (1) identifying
endangered and threatened species under section 4, and (2) identifying
areas appropriate for the establishment of experimental populations. In
contrast, the concept of ``range'' plays no direct role in
implementation of the key operative provisions of the Act that protect
species that we determine are endangered or threatened. (We note that
it would be possible to interpret the use of ``range'' in section
4(c)(1) of the Act in isolation to control the scope of the operative
protections under the Act. However, as discussed in our draft policy
(76 FR 76987, pp. 76991-76992, section II.B.), the interpretation of
section 4(c)(1) that best harmonizes the various parts of the Act and
relevant case law is to treat section 4(c)(1) as an informational
rather than a substantive provision.)
Once we determine that a species is an ``endangered species'' or
``threatened species,'' the protections of the Act are applied to the
species itself, not the ``range'' in which it is found.\1\ For example,
sections 7 and 9 of the Act contain no reference to ``range'' and their
provisions are applied to the species or individuals of the species,
rather than a specified ``range.'' In other words, as explicitly
acknowledged in the regulations governing the Lists of Endangered and
Threatened Wildlife and Plants, the protections of the Act are applied
``to all individuals of the species, wherever found'' (50 CFR 17.11(e),
17.12(e)). As long as a species is listed, these protections apply to
all populations and individuals of the species regardless of how that
species' range changes over time (whether the range contracts due to
continuing threats or expands as a result of recovery efforts). The
protections can be modified only through rules promulgated under
sections 4(d) and 10(j) of the Act, or completely removed through
delisting and removal of the species from the List of Endangered and
Threatened Wildlife or the List of Endangered and Threatened Plants.
---------------------------------------------------------------------------
\1\ We note that for species listed as DPSs, because individuals
in a distinct population segment are most often not morphologically
or visually distinct from other members of their taxonomic species
or subspecies, the population (``species'' as defined by the Act) is
often defined geographically. This geographic description (except in
the case of international boundaries) is intended to define the
``species'' by indicating the area within which it is highly likely
that individuals are members of the listed DPS rather than members
of other populations of the same taxonomic species or subspecies. It
may include areas that are generally not occupied by the species but
where an individual of the species, if found, is most likely a
member of the DPS. Geographic descriptions are meant to aid in
identification of individuals of the listed entity rather than limit
protections. In other words, the geographic description can define
the species. It is often true that individuals of the taxonomic
species or subspecies found outside the geographic area defining the
listed DPS are considered to belong to other populations of the
species (unless identity can be established by other means) and are
thus not protected. Within the area defining the species, all
members are assumed to belong to the DPS and protections of the Act
apply to ``all individuals of the species.'' It is important to note
that, while the geographic description of some listed DPSs (e.g.,
Pacific salmon) do not explicitly state that the boundaries of the
DPS include the marine range of the DPS, individuals of these DPSs
are protected wherever they go (to the extent that they can be
identified).
---------------------------------------------------------------------------
Thus, the term ``range'' is relevant to whether the Act protects a
species, but not how that species is protected. Having concluded that
the term ``range'' is used primarily in determining whether a species
qualifies as an endangered species or threatened species, we must still
consider its meaning in that context. The Services interpret the term
``range'' to be the general geographical area within which the species
is currently found, including those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis. We
consider the ``current'' range of the species to be the range occupied
by the species at the time the Services make a determination under
section 4 of the Act.
We reach this conclusion based on the text of the Act. As defined
in the Act, a species is endangered only if it ``is in danger of
extinction'' throughout all or a significant portion of its range. The
phrase ``is in danger'' denotes a present-tense condition of being at
risk of a current or future undesired event. Hence, to say a species
``is in danger'' in an area where it no longer exists--i.e., in its
historical range where it has been extirpated--is inconsistent with
common usage. Thus, ``range'' must mean ``current range,'' not
``historical range.''
Some have questioned whether lost historical range may constitute a
significant portion of the range of a species, such that the Services
must list the species rangewide because of the extirpation in that
portion of the historical range. We already take into account in our
determinations the effects that loss of historical range may have on
the current and future viability of the species. We conclude that this
consideration is sufficient to account for the effects of loss of
historical range when evaluating the current status of the species, and
a specific consideration of whether lost historical range constitutes a
significant portion of the range is not necessary. In other words, we
do not base a determination to list a species on the status
(extirpated) of the species in lost historical range. We base this
conclusion on the present tense language of the Act and on the fact
that considering the status of the species in its current range is in
fact applying
[[Page 37584]]
the test required by our SPR definition as explained below.
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. In
other words, considering the status of the species in its current range
is in fact applying exactly the test envisioned by our definition of
SPR, with the difference that the scenario is actual rather than
hypothetical. Under this policy's definition, we consider whether,
under a hypothetical scenario, a species would be endangered or
threatened without the portion in question. When we consider the status
of a species in its current range, we are considering whether, without
that portion (i.e., lost historical range) the species is endangered or
threatened. If lost historical range had indeed been an SPR prior to
its loss, then, with the loss having occurred, the species should
currently be endangered or threatened in its remaining current range.
When considering the status of a species that has lost historical
range, the scenario is no longer hypothetical but actual, and the
status of the remaining portion is no longer hypothetical but is
determined by examining the species in its current range. Thus, we
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. Past range
reduction can stem from habitat destruction or degradation, or from
factors that cause displacement of the species from an area they once
occupied. Range reduction may result in reduced numbers of individuals
and populations, changes in available resources and carrying capacity,
changes in demographic characteristics (survival, reproductive rate,
metapopulation structure, etc.), and changes in genetic diversity and
gene flow, which in turn can increase a species' vulnerability to a
wide variety of threats, including habitat loss. In other words, past
range reduction can reduce the redundancy, resiliency, and
representation of a species in its remaining range. Additionally,
factors other than habitat loss may become important as a species loses
its range, and these factors that result from past range reduction are
evaluated as current or future threats. For example, a species with a
reduced range is at greater risk of all or most of its populations
being affected by a catastrophic event such as a hurricane or fire. We
collectively evaluate all the current and potential threats to a
species, including those that result from past loss of historical
range. For example, the loss of historical range may have resulted in a
species for which distribution and abundance is restricted, gene flow
is inhibited, or population redundancy is reduced to such a level that
the entity is now vulnerable to extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its current range. The effect of loss of historical range on the
viability of the species could prompt us to list a species because the
loss of historical range has contributed to its present status as
endangered or threatened throughout all or a significant portion of its
range. In such a case, we do not list a species because it is
endangered or threatened in its lost historical range, but rather
because it is endangered or threatened throughout all or a significant
portion of its current range because that loss of historical range is
so substantial that it undermines the viability of the species as it
exists today. Conversely, a species suffering a similar loss of
historical range would not be listed if viability of the remaining
individuals was not compromised to the point of endangering or
threatening the species. (We also note that a species that has not
experienced any loss of historical range may still be vulnerable to a
wide variety of threats and in fact meet the definition of an
``endangered species'' or a ``threatened species.'' Thus, loss of
historical range is not necessarily determinative of a species' status,
but must be considered in the context of all factors affecting a
species.)
In addition to considering the effects that loss of historical
range has had on the current and future viability of the species, we
must also consider the causes of that loss of historical range. If the
causes of the loss are still continuing, then that loss is also
relevant as evidence of the effects of an ongoing threat. Loss of
historical range for which causes are not known or well understood may
be evidence of the existence of threats to the remaining range.
In implementing listing determinations (including reclassifications
and delistings), the Services use the best scientific and commercial
data available, including data on the species' current range,
regardless of the point in time at which we examine the status of the
species (12-month listing finding, reclassification, proposed listing
or delisting rule, 5-year review, and so forth). For example, if we are
petitioned to reclassify an already listed species, we examine the
status of the species in the range it currently occupies, not the range
it occupied at the time of listing. As explained above, examining the
current status of the species in its current range in no way constrains
or limits use and application of the tools of the Act to only the
species' current range. Protections of the Act (except as modified
through sections 10(j) and 4(d) of the Act) apply ``to all individuals
of the species, wherever found'' (50 CFR 17.11(e) and 50 CFR 17.12(e)),
even if the range of the species changes over time. In fact, reducing a
species' vulnerability to threats and ultimately to extinction often
requires recovering the species in some or all of its lost historical
range. Indeed, the Act's definitions of ``conserve'' and ``critical
habitat,'' and the provisions of section 10(j) of the Act, all indicate
that Congress specifically contemplated that recovering species in lost
historical range may be needed to bring a species to the point that it
no longer needs the protections of the Act. Thus, examining a species'
status in its current range does not set the bar for recovery; rather,
it is simply the approach that the Act requires us to apply when we
examine a species' current and future vulnerability to extinction.
We acknowledge that the Ninth Circuit Court of Appeals has held
that FWS must consider whether lost historical range is a significant
portion of a species' range (Defenders (Lizard), 258 F.3d at 1145)
(``where . . . it is on the record apparent that the area in which the
lizard is expected to survive is much smaller than its historical
range, the Secretary must at least explain her conclusion that the area
in which the species can no longer live is not a `significant portion
of its range'''). This appears to have been based at least in part on a
misunderstanding of FWS's position, which the Ninth Circuit Court
interpreted as a denial of the relevance of lost historical range (see
Tucson Herpetological Society v. Salazar, 566 F.3d 870, 876 (9th Cir.
2009) (``On appeal, the Secretary clings to his argument that lost
historical habitat is largely irrelevant to the recovery of the
species, and thus the [Act] does not require him to consider it.'')).
As explained above, the fact that historical range has been lost can be
highly relevant to the conservation status of the species in its
current range. The Services also consider historical range during
recovery planning. For the
[[Page 37585]]
reasons described above, however, we respectfully disagree with this
holding of the Ninth Circuit, and conclude that the status of lost
historical range should not be separately evaluated; ultimately, it is
the conservation status of the then-current range at the time of the
listing determination in question that must be evaluated (see Ctr. for
Biological Diversity v. Norton, 411 F. Supp. 2d 1271 (D.N.M. 2005),
vacated by No. 06-2049 (10th Cir. May 14, 2007); Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 2007 U.S. Dist. LEXIS 16175
(D. Colo. Mar. 7, 2007), vacated by No. 07-1203 (10th Cir, Oct. 22,
2007)). Thus, if a species ``is expected to survive [in an area] much
smaller than its historical range,'' we undertake an analysis different
from that apparently contemplated by the Ninth Circuit. In fact, two
different analyses may be required. First, if the species has already
been extirpated in some areas, the Services must determine whether the
loss of those areas makes the species endangered or threatened
throughout all of its current range. Second, if the species is not
endangered or threatened throughout its current range, but there are
areas in its current range in which the species has not been
extirpated, but is in danger of extirpation (or is likely to become so
in the foreseeable future), the Services must determine whether those
areas constitute a significant portion of its range, and, if so, list
the species in its entirety.
E. Relationship of SPR to the Act's Distinct Population Segment (DPS)
Authority
As we explained in our draft policy (76 FR 76987, p. 76998), the
definition of ``significant'' for the purpose of SPR analysis differs
from the definition of ``significant'' found in our DPS policy and used
for DPS analysis. We expect, based on our experience in applying the
DPS policy, that the differences between the two standards, the
specific circumstance described by the definition of ``significant
portion of its range,'' and the high bar this policy sets will seldom
result in situations in which the population within an SPR for a
taxonomic species or subspecies might also constitute a DPS. In those
rare circumstances, under this policy we will consider the DPS to be
the proper entity for listing. Please refer to our draft policy for a
discussion of various issues we considered in choosing an appropriate
relationship between the SPR language and the Act's DPS authority,
including: (1) The differing definitions of ``significant'' in each
context; (2) the overlap between SPR and DPS analyses; and (3) the
portions of the species to protect when a DPS also constitutes an SPR.
This final policy includes what we conclude is the most reasonable
approach.
F. Procedure for Implementing the Policy
This policy will be applied to all status determinations, including
analyses for the purposes of making listing, delisting, and
reclassification determinations. The procedure for conducting analyses
of whether any portion is an SPR is similar, regardless of the type of
status determination we are making. The first step in our analysis of
the status of a species is to determine its status throughout all of
its range. If we determine that the species is in danger of extinction,
or likely to become so in the foreseeable future, throughout all of its
range, we will list the species as endangered (or threatened) and no
SPR analysis will be required. If the species is neither endangered nor
threatened throughout all of its range, we will determine whether the
species is endangered or threatened throughout a significant portion of
its range. If it is, we will list the species as endangered or
threatened, respectively; if it is not, we will conclude that listing
the species is not warranted. (Figure 1)
[[Page 37586]]
[GRAPHIC] [TIFF OMITTED] TR01JY14.028
If we conclude a species is neither endangered nor threatened
throughout all of its range, we must examine whether it is endangered
or threatened throughout a portion of its range. When we conduct an SPR
analysis, we will first identify any portions of the species' range
that warrant further consideration. The range of a species can
theoretically be divided into portions in an infinite number of ways.
However, there is no purpose to analyzing portions of the range that
are not reasonably likely to be significant and endangered or
threatened. To identify only those portions that warrant further
consideration, we will determine whether there is substantial
information indicating that (1) the portions may be significant and (2)
the species may be in danger of extinction in those portions or likely
to become so within the foreseeable future. We emphasize that answering
these questions in the affirmative is not a determination that the
species is endangered or threatened throughout a significant portion of
its range--rather, it is a step in determining whether a more detailed
analysis of the issue is required. In practice, a key part of this
analysis will be whether the threats are geographically concentrated in
some way. If the threats to the species are affecting it uniformly
throughout its range, no portion is likely to warrant further
consideration. Moreover, if any concentration of threats apply only to
portions of the range that clearly do not meet the biologically based
definition of ``significant'' (i.e., the loss of that portion clearly
would not be expected to increase the vulnerability to extinction of
the entire species), those portions will not warrant further
consideration. (Figure 2)
[[Page 37587]]
[GRAPHIC] [TIFF OMITTED] TR01JY14.029
If we have identified any portions that may be both (1) significant
and (2) endangered or threatened, we will engage in a more detailed
analysis to determine whether these standards are indeed met. As
discussed above, to determine whether a portion of the range of a
species is significant, we consider whether, under a hypothetical
scenario, 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 analysis will
consider the contribution of that portion to the viability of the
species based on principles of conservation biology. Contribution would
be evaluated using the concepts of redundancy, resiliency, and
representation. (These concepts can similarly be expressed in terms of
abundance, spatial distribution, productivity, and diversity.)
To determine whether a species is endangered or threatened
throughout a portion of its range, we will use the same standards and
methodology that we use to determine if a species is endangered or
threatened. The identification of an SPR does not create a presumption,
prejudgment, or other determination as to whether the species in that
identified SPR is endangered or threatened. We must go through a
separate analysis to determine whether the species is endangered or
threatened in the SPR. Depending on the biology of the species, its
range, and the threats it faces, it may be more efficient to address
the ``significant'' question first, or the status question first. Thus,
if we determine that a portion of the range is not ``significant,'' we
will not need to determine whether the species is endangered or
threatened there; if we determine that the species is not endangered or
threatened in a portion of its range, we will not need to determine if
that portion was ``significant.''
IV. Summary of Comments and Responses
The notice announcing our draft policy (76 FR 76987) requested
written comments and information from the public. That notice
established a 60-day comment period ending February 7, 2012. We
received several requests to extend the public comment period and
subsequently published a notice (77 FR 6138) that extended the comment
period an additional 30 days, from February 7, 2012, through March 8,
2012.
During the public comment period, we received approximately 42,000
comments, of which approximately 41,500 were form letters and
approximately 100 were duplicate submissions. We received comments from
State and local governments, tribes, commercial and trade
organizations, conservation organizations, nongovernmental
organizations, private citizens, and others. The range of comments
varied from those that provided statements of support or opposition to
the draft policy with no additional explanatory information, to those
that provided extensive comments and information (supporting or
opposing the draft policy or specific aspects of the policy) and
suggestions for revisions. Some comments were strictly editorial and
included suggested specific line edits or word usage, which we
addressed as appropriate in this document.
All substantive information provided during the comment period has
been considered in this final policy and, where appropriate, has been
incorporated directly into this final policy or is addressed below.
Comments received were grouped into general issues specifically
relating to the draft policy, and are presented below along with our
responses to these comments.
A. The Policy Is Not Needed, Needs Additional Process, or Legislation
Is Required
Comment (1): The Services should amend the Act to exclude the
phrase ``throughout a significant portion of its range.''
[[Page 37588]]
Response: Amendments to the Act are outside the scope of this
policy. Only Congress has the authority to amend the Act.
Comment (2): One commenter stated that the internal review process
did not involve enough pragmatic review.
Response: We disagree. A team of experienced, informed staff within
both Services spent many hours reviewing the statutory language,
legislative history, and case law relating to SPR. The team looked at
every practical option of how to address SPR before developing the
draft policy, including detailed discussion of pragmatic
considerations. The team's recommendations were reviewed more broadly
by practitioners and officials at both agencies. These reviews took
pragmatic considerations into account. Nonetheless, the Services'
ultimate decision is also constrained by legal considerations, as
detailed above and in the draft policy--implementation of the statutory
language that is ``pragmatic'' but likely to be rejected by the courts
as inconsistent with the statute is not truly pragmatic.
Comment (3): Several commenters, including the Association of Fish
and Wildlife Agencies (AFWA), stated that the draft policy needs
significant work and that it is neither necessary nor timely for
finalizing at this time. They urged it be given no further
consideration until a determination of need and timeliness is
concluded. Another commenter stated there is no compelling need to
advance a revised definition at this time because the Services have
acknowledged that the SPR definition would be only sparingly used.
Response: The SPR phrase is integral to the Act's definitions of
``endangered species'' and ``threatened species,'' terms that are
relevant to all listing determinations. We have not previously provided
a joint interpretation of the phrase. In part as a result, we have
faced an increasing amount of litigation related to our application of
the phrase. Therefore, we have determined that we need to promulgate a
binding interpretation of the SPR phrase. This policy will allow us to
more efficiently and consistently carry out our responsibilities under
section 4 of the Act and reduce litigation. Although we anticipate that
the policy will affect the outcome of only relatively few
determinations, the policy itself will be relevant to numerous
determinations.
Comment (4): Several commenters recommended that we refer the draft
SPR policy to a panel comprised of representatives nominated by
scientific, professional, and conservation societies as the Act advises
the Services to do in section 4(b)(5)(C) with regard to listing
decisions.
Response: As the commenters acknowledge, section 4(b)(5)(C) of the
Act applies only to particular determinations under section 4(a); it
does not apply to generic policies and rules promulgated by the
Services to guide implementation of the Act. In any case, section
4(b)(5)(C) simply states that we should give notice of a proposed
regulation to such professional scientific organizations as the
Secretary deems appropriate. We notified professional scientific
organizations of our draft policy and accepted public comments from
those organizations, as well as all other interested parties, during
the public comment period.
Comment (5): AFWA, the Hawaii Department of Land and Natural
Resources, the Florida Fish and Wildlife Conservation Commission, and
the Washington Department of Fish and Wildlife recommended that the
draft policy be referred to the Joint Federal/State Task Force on
Endangered Species Act Policy (JTF) for review.
Response: The Services acknowledged the special and unique
relationship between the States, FWS, and NMFS through the formation of
the JTF in 2011. However, we had substantially formulated the draft SPR
policy (the culmination of a multi-year effort on the parts of the
Services, DOI, and DOC) prior to the formation of the JTF. While
formulating the draft policy predated the JTF, we nevertheless briefed
the JTF on development of the draft SPR policy prior to its
publication, and through the JTF and AFWA, we hosted webinars in 2011
and 2012 with State fish and wildlife agencies during the public
comment period to inform the States and provide opportunities for
feedback. The open comment period provided an additional opportunity
for the States to comment. We have considered and addressed comments we
received from the States in the development of this final policy. In
light of our ongoing need to have established guidance on this
important policy matter to guide our listing determinations, and in the
absence of discrete concerns raised by the States that have not already
been thoroughly considered, we have determined that the most
appropriate course of action is to proceed with finalizing this policy.
We will continue to coordinate with the States on application of this
policy as needed.
Comment (6): The Arizona Game and Fish Department questioned
whether this policy is necessary in the absence of ``thorough
development and review of alternatives conducted by the affected
parties.'' They further suggested that a task force should develop and
analyze alternatives and present them to the public for comment.
Response: The draft policy presented a detailed discussion of
alternatives. The notice-and-comment opportunity provided on the draft
policy allowed for adequate development and review of alternatives by
affected parties.
B. The SPR Language Provides an Independent Basis for Listing
Comment (7): Most commenters who addressed this topic agreed that
the SPR language provides an independent basis for listing. One
commenter asserted that this interpretation is more consistent with
both the statutory language and the spirit of the Act, and will help
facilitate resource adaptation and provide the protections of the Act
to more species that need it.
Response: We appreciate the commenters' feedback.
Comment (8): The Wisconsin Department of Natural Resources stated
that interpreting the SPR language as providing an independent basis
for listing may not be appropriate, and suggested (without further
explanation) that other alternatives, such as equating the SPR language
with the ``distinct population segment'' language, may be more
appropriate, understandable, and simpler to implement and defend.
Response: As indicated in the draft policy (76 FR 76987, pp. 76997-
76999), we considered a number of other alternatives, including
equating the SPR language with the DPS language. For the reasons
described there and elsewhere in this final policy, we have determined
that interpreting the SPR language to provide an independent basis for
listing is the most appropriate interpretation; the Wisconsin
Department of Natural Resources comments presented no analysis that
rebutted this conclusion.
Comment (9): One commenter thought that separate analyses with
respect to significant portions of the range would create an arbitrary
process that is difficult to understand and explain. The commenter
recommended that the Services return to a simpler definition and stated
that Congress intended species should be listed when threats reach a
large-enough portion of the range to affect the entire species.
Response: This appears to be an argument in favor of the
clarification interpretation, which FWS had unsuccessfully advanced in
the litigation that culminated in the Ninth Circuit's Defenders
(Lizard) decision. As discussed in the draft policy (76 FR 76987, pp.
76989-76990) and elsewhere in this final policy, that interpretation
[[Page 37589]]
has been rejected by most courts, and we have accepted those judicial
determinations as correctly interpreting the statute's language.
C. Apply Protections to Entire Species if Listed Because It Is
Endangered or Threatened Throughout an SPR
Comments on the topic of whether to list the whole species or
instead apply protections only to a portion of the range were split
almost entirely by group affiliation: Environmental groups asserted
that this result was required by the Act and will increase the
likelihood that the species will be conserved and restored; the
regulated community and States asserted that either the Act requires
the opposite result, or that it is unwise policy to interpret the Act
in this way. Responses to more specific comments follow.
Comment (10): One commenter, while admitting that the Act and
relevant case law prohibits listing distinctions below the subspecies
or DPS level, argued that the definition of ``species'' governs only
the taxonomic level of what can be listed, not where a ``species'' can
be listed.
Response: We disagree. The Act's limitation of listing solely
``species'' would have no meaning if we interpreted the Act to allow
``species'' to be listed or protected only in certain places.
Comment (11): Numerous commenters opposed to this interpretation
pointed to section 4(c)(1) of the Act for support, with at least one
arguing that we have misinterpreted the district court's decision in
Defenders of Wildlife v. Salazar. They argued that the language about
specifying ``with respect to each species over what portion of its
range it is threatened or endangered'' means that a species can be
listed and protected in only a portion of its range. They further
argued that the interpretation in the draft policy writes this language
out of the statute. One commenter claims that the Services' treatment
of section 4(c)(1) is ``without authority or even reasoning.''
Response: As we indicated in the draft policy, it is a challenge to
harmonize the various relevant provisions of the Act. However, we have
concluded that section 4(c)(1) of the Act is a bookkeeping provision,
and should not be interpreted to change the otherwise plain meaning of
the operative and definitional provisions of the Act. The type of
information to be conveyed may include, for example, whether the
species was listed on the basis that it is endangered or threatened in
a portion of its range, and if so, which portion. This does not render
the ``portion of its range'' language in section 4(c)(1) meaningless,
as such information can, for example, help focus recovery efforts.
Moreover, even if it would have been reasonable to interpret the 1972
bill as using the SPR language to authorize listings of significant
portions of the ranges of species (as opposed to entire ``species''),
the final language of the 1973 Act moved the SPR language to the
definitions of ``endangered species'' and ``threatened species,'' and
added the precursor to the DPS language to address the issue of
listings of less than a species or subspecies. This revised structure
simply cannot support the interpretation preferred by these commenters,
notwithstanding the fact that the 1973 Act carried over the language in
section 4(c)(1) referring to ``portion of its range.'' Finally, despite
the claim about lack of authority and reasoning, the draft policy cited
relevant case law and provided the Services' reasoning (see 76 FR
76991-76992). No commenter advanced a clear or persuasive explanation
of their view that our interpretation of any of these sources or case
law is in error.
Comment (12): One commenter asserted that the draft policy was
inconsistent with the requirement of section 4(b)(1) that listing
determinations take into account State and local governmental efforts
to protect species.
Response: We disagree. Under this policy, those protection efforts
still will be considered. Those efforts are, of course, relevant to the
rangewide analysis, but they are also highly relevant to both the
questions of significance of a portion of a range, and the status of
the species throughout that portion. For example, the Services would
consider whether local governmental protections in the portion at issue
prevented the species from being endangered or threatened throughout
that portion, and whether local governmental protections in the
remainder of the range would make the population throughout the
remainder sufficiently robust that the portion of the range at issue
cannot meet the standard for being a ``significant portion.''
Comment (13): One commenter asserted that our interpretation
rendered meaningless the ``all'' language in the definitions of
``endangered species'' and ``threatened species.''
Response: We directly addressed this argument in the draft policy,
noting that (1) the argument fails to take into account the fact that
the Services as a practical matter consider a species' status
throughout its range first, and (2) the relevant cases have rejected it
(76 FR 76987, p. 76992). Also, as discussed above, the revised
definition of ``significant'' in this final policy accords particular
weight to the ``all'' language because it prescribes that the rangewide
analysis be done first.
Comment (14): Several commenters agreed with the Services'
conclusion that the SPR language provides an independent basis for
listing, but asserted that adherence to that principle required listing
something other than the entire species when the species is endangered
or threatened throughout an SPR. They did not explain the basis for
this assertion.
Response: We disagree. There is nothing inherently inconsistent
with the SPR language providing an independent basis for listing and
the result being listing the entire species. In other words, the SPR
language provides an independent basis for listing the entire species;
there are some circumstances covered by each basis that are not covered
by the other. We discussed our reasons for choosing this interpretation
in detail in the draft policy (76 FR 76987, pp. 76991-76993 and 76999-
77000).
Comment (15): Several commenters argued that it is contradictory
for us to determine that a species does not warrant listing rangewide,
and then to list it rangewide because it is endangered or threatened
throughout an SPR.
Response: Determining that a species is not in danger of extinction
throughout all of its range is not the same thing as determining that
there is an absence of risk to the species. The species still may face
a sufficient level of risk in portions of its range to warrant listing
rangewide. This policy concludes that, under the properly construed
definitions of the Act, a species that is in danger of extinction
throughout an SPR does warrant listing rangewide, because it meets the
definition of an ``endangered species.''
Comment (16): Two commenters sought to analogize to the Act's
provisions for designation of critical habitat as a basis for urging
the Services not to apply protections throughout a species' range.
Specifically, they pointed to the Act's provisions dividing potential
critical habitat into areas occupied at the time of listing and areas
not occupied, and requiring that unoccupied areas be included only if
the areas themselves are found ``essential for the conservation of the
species,'' as well as the proclamation that critical habitat generally
shall not include the entire geographical area which can be occupied by
the species
[[Page 37590]]
(see 16 U.S.C. 1532(5)). These provisions, they suggested, evince
congressional recognition that it is possible and sometimes necessary
to limit protections for listed species to only certain areas
throughout their ranges. They urge the Services to conclude from this
structure that Congress would similarly intend for the Services to have
the ability to tailor the effect of a listing.
Response: While it is true that Congress specifically provided that
critical habitat need not be coextensive with the entire geographical
area where a species can exist (except in circumstances where the
Secretary determines that it should), 16 U.S.C. 1532(5)(C), Congress
did not include such specific direction in the provisions governing
listings. Nor does Congress' recognition that critical habitat need not
cover the full range of a species imply that the geographic parameters
of a listing also should be flexible; listing provides the fundamental
level of protection to the species, whereas critical habitat's direct
legal effect is limited to application of the destruction or adverse
modification standard to Federal agency actions through section 7 of
the Act. It is also important to note that the SPR analysis is not
based on the physical and biological features of the area and is not
designed to protect the area. Rather, it is based on an assessment of
the biological importance of the members of the species in an area to
the overall listed entity.
Comment (17): One commenter asserted that the import of the 1978
and 1979 amendments to the Act and the wolf and Gunnison's prairie dog
district court opinions was that the Act does not allow listing of
something ``smaller'' than a DPS--doing so would render the DPS
language superfluous. The commenter suggested, however, that the
Services could still limit a listing to an SPR if that SPR was
``larger'' than the range occupied by a DPS.
Response: The SPR and DPS authorities are distinct: DPSs do not
have to be a particular size, and therefore we cannot mathematically
compare the size of an SPR to that of a DPS. As discussed elsewhere,
however, if the population within the SPR qualifies as a valid DPS, we
will list the DPS, rather than the entire ``species'' of which the SPR
is a part.
Comment (18): Several commenters, including the Idaho Office of
Species Conservation, questioned the propriety of the Services relying
on two district court opinions (Defenders of Wildlife v. Salazar, 729
F. Supp. 2d 1207 (D. Mont. 2010), vacated, 2012 U.S. App. Lexis 26769
(9th Cir. Nov. 7, 2012), and WildEarth Guardians v. Salazar, 2010 U.S.
Dist. Lexis 105253 (D. Ariz. Sept. 30, 2010)), rather than two circuit
court opinions (Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th
Cir. 2001), and Roosevelt Campobello Intl. Park Comm'n v. U.S. Envt'l
Protection Agency, 684 F.2d 1041 (1st Cir. 1982)). Idaho specifically
asserted that, although the Services referred to Defenders of Wildlife
v. Norton as the seminal case, we did not discuss that case's analysis
of the legislative history, which Idaho further asserted supports
protecting species only in portions of their ranges. Commenters also
criticized the reasoning of the district court decisions. Several
commenters, including Idaho, suggested reinstating the M-Opinion at
least until an appeals court has directly addressed the issue.
Response: As discussed in the draft policy (76 FR 76987, p. 76990)
the district court opinions represent the most recent and detailed
judicial analyses of the precise point at issue. We find the reasoning
of these cases to be persuasive. In contrast, the language in the
circuit court opinions that lends some support to the commenters'
position (that the Secretaries have the authority to list or protect
species in only a portion of their range) is dicta and appears to be
based in part on a misunderstanding of the basis for some of FWS'
earlier listings. We conclude that both the First and Ninth Circuits
would likely adopt conclusions consistent with the district court
opinions, were the issue now directly presented to them. The Department
of the Interior has withdrawn and no longer supports the reasoning of
the M-Opinion. For this reason, we think it would be wasteful,
inefficient, and unwise to pursue further litigation in support of this
aspect of the M-Opinion.
Comment (19): One commenter suggested that two additional district
court cases support this aspect of the draft policy: In re Polar Bear
Endangered Species Act Listing and Sec. 4(d) Rule Litigation, 794 F.
Supp. 2d 65, 96 n.38 (D.D.C. 2011), and Center for Native Ecosystems v.
Salazar, 795 F. Supp. 2d 1236, 1240 (D. Colo. 2011).
Response: We agree, but because these cases cite the cases we
discussed without additional analysis, we focused on the other cases.
Comment (20): Several commenters argued that the legislative
history clearly supports interpreting the Act to allow the Services to
list just a portion of the range of a species. Other commenters pointed
to legislative history that supports the contrary position. The Idaho
Office of Species Conservation criticized the draft policy for not
sufficiently analyzing the legislative history.
Response: As discussed in the draft policy (76 FR 76987, p. 76989)
and FWS (2011), aspects of the legislative history support different
conclusions. And although there is some legislative history that
suggests that Congress intended to give the Secretaries discretion to
list less than full biological species, it is unclear how that
intention relates to the various statutory provisions (e.g., the
definition of ``species'' versus the definitions of ``endangered
species'' and ``threatened species'') and to the restructuring of the
operative provisions and definitions between the 1972 Nixon
Administration bill and the 1973 Act as passed. Ultimately, we
concluded that it would not be necessary or particularly helpful to the
public to include in the draft policy itself a detailed written
analysis of the legislative history, but we have made the summary
available for public review.
Comment (21): Several commenters asserted that FWS has a historical
practice of protecting only portions of the range of species, citing
the examples listed in Defenders of Wildlife v. Norton, 258 F.3d 1136
(9th Cir. 2001); the Idaho Office of Species Conservation asserted that
the draft policy completely ignored this history. One commenter further
stated that if the authority for these listings was not section 4(c)(1)
(with respect to SPRs) of the Act, the Services must explain what
statutory basis other than section 4(c)(1) of the Act authorized the
partial protections provided in those examples.
Response: Contrary to Idaho's assertion, we directly referred to
the examples listed in Defenders in explaining that the draft policy
did not conflict with established agency practice. The draft policy
concluded that those listings could also be explained as relying on the
authority of the DPS language in the definition of ``species'' or the
precursor to that language (76 FR 76987, pp. 76992-76993). The draft
policy (76 FR 76987, p. 76988) also explained that prior to and in the
years following the issuance of the DPS Policy (61 FR 4722, February 7,
1996) the Services had generally understood (although not expressly
articulated) that, given the Act's definition of ``species,'' the only
way to list less than a taxonomic species or subspecies was as a DPS.
For example, on April 28, 1976, FWS listed the U.S. population of a
subspecies of the Bahama swallowtail butterfly (41 FR 17736). When the
Act was amended in 1978 to limit population listings only to
vertebrates, the Service removed the
[[Page 37591]]
population because it did not qualify as a ``species'' under the
revised definition (49 FR 34501, August 31, 1984). Thus, past practice
indicates FWS did not believe the Act allowed listing units below
taxonomic species or subspecies, except (after 1978) in the case of
vertebrate DPSs.
Comment (22): Several commenters, including several States, argued
against a one-size-fits-all approach, noting that various provisions of
the Act provide the Services with flexibility. They noted that the
flexibility provided by allowing the listing of a species in a portion
of its range (with the remainder unlisted) would also recognize the
States' role in managing fish and wildlife populations within their
borders, and would provide an incentive for States to conserve
imperiled species. In contrast, the approach in the draft policy was
described by one commenter as ``heavy handed'' and likely to generate
increased animosity towards the Act. Another commenter suggested that
being endangered or threatened throughout an SPR should result in a
rangewide listing only if protective actions anywhere in the range
would reduce the threat of extinction in the SPR, an assumption that
may not be valid in all cases.
Response: Although we agree that in a number of areas Congress
provided the Services with administrative flexibility, that flexibility
derives from particular statutory language. As discussed in the draft
policy, here the better reading of the relevant statutory language (and
the only one permissible under prevailing case law, as discussed
previously) is that Congress did not intend to allow partial listing of
``species.'' Regarding providing an incentive to States to conserve
imperiled species, we recognize that in some circumstances allowing
protection only in certain portions of the range would provide a
stronger incentive to States. However, under this policy States will
have an incentive to conserve species, as State conservation efforts
are relevant to both listing and delisting determinations under section
4(b)(1) of the Act.
Comment (23): One commenter suggested that, taken to its logical
conclusion, the draft policy would mean that any time a species is
endangered or threatened ``in some isolated area,'' it could be listed
throughout its current range. The Florida Fish and Wildlife
Conservation Commission expressed concern that listing would be
required even if a species is ``thriving and well managed in some
portion of its range.'' Other States expressed similar concerns,
particularly the Alaska Department of Fish and Game given its isolation
from the contiguous 48 States.
Response: A species would only be listed because of its status
throughout an ``isolated area'' if that area was ``significant'' (i.e.,
the contribution of the members of the species in that portion of its
range to the viability of the species was so important that, without
that portion, the species would be in danger of extinction or likely to
become so within the foreseeable future). In that unlikely
circumstance, listing the species throughout its range is appropriate
and consistent with the statutory language. Similarly, if a species is
``thriving and well managed'' in some portion of its range, in most
circumstances the other parts of its range would not be ``significant''
as defined in this policy, and would be listed, if at all, only under
our authority to list DPSs.
Comment (24): Several commenters, including the Hawaii Department
of Land and Natural Resources, suggested that listing only the
endangered or threatened portions of the range of a species would allow
the Services to focus their limited resources where they can be most
effective in furthering the purposes of the Act, and that listing
rangewide would be inequitable to stakeholders in the remainder of the
range.
Response: Although we acknowledge that focusing conservation
efforts on the most imperiled portions of a species range is one of the
benefits of interpreting the Act to allow for listings of portions of
ranges, there are also benefits of the contrary interpretation (76 FR
76987, pp. 76991-76993). Moreover, as discussed elsewhere (76 FR 76987,
p. 76992), we have concluded that requiring rangewide listings is the
best way of harmonizing the various provisions of the Act. And, as also
discussed elsewhere (76 FR 76987, p. 77004), we will use what
discretion is available to us to focus conservation efforts on the
areas where those efforts are most likely to lead to recovery of the
species.
Comment (25): One commenter stated that interpreting the Act to tie
the hands of the Secretary to impose protections that apply no
additional benefit is indefensible.
Response: We disagree that rangewide listing will provide no
additional benefit. We recognize that, in most cases, the key to
recovery of a species listed because it is endangered or threatened
throughout a significant portion of its range will be to reduce the
threats in that portion, so that it is no longer endangered or
threatened there. But, in some cases, protections throughout all of the
range may lead to recovery. This may occur if the conservation status
of the members in the remainder of the range is improved such that the
endangered or threatened portion of the range loses its significance.
For instance, the resiliency and redundancy of the remainder of the
range may be increased through conservation actions to the point that
the endangered or threatened portion of the range's relative
contribution to the viability of the species is reduced, and the status
of the species in the remainder of the range is not dependent on the
portion of the range in which the species is endangered or threatened.
In other words, the remainder of the range may become secure enough
that it would not qualify as endangered (or threatened) even in the
absence of the portion of the range that was endangered or threatened
at the time of listing.
Comment (26): One commenter agreed that the issue is a difficult
one, and expressed no opinion as to the right interpretation. The
commenter did suggest that listing the species rangewide would be
consistent with the ``precautionary principle'' and scientific
principles of conservation biology, but recognized that rangewide
listing ``will likely result in unintended consequences that may be
contrary to congressional intent . . . and may result in the [Act]
being applied to protect populations where those protections are not
needed.'' The commenter, however, expressed the opinion that the
Services should not even attempt to answer this question in a policy
defining ``significant,'' as doing so injects considerations of
economic and regulatory consequences in conflict with the mandate of
section 4(b) of the Act that listing decisions be based solely on the
best scientific and commercial data available. Therefore, the commenter
suggested removing this section of the draft policy.
Response: Section 4(b)(1) of the Act requires the Services to
``make determinations required by subsection (a)(1) solely on the basis
of the best scientific and commercial data available.'' Section 4(a)(1)
governs individual listing determinations. The commenter failed to
recognize that defining ``significant'' is not itself a listing
decision; rather, it is an interpretive exercise with legal, policy,
and biological components. In other words, the policy is not a
``determination[] required by subsection (a)(1),'' and therefore
section 4(b)(1) does not by its own terms apply to the policy. In
resolving ambiguities in the Act and providing guidance for its
[[Page 37592]]
implementation, it is lawful and completely appropriate for the
Services to consider a wide variety of factors.
Comment (27): One commenter suggested that if the final policy also
concluded that an entire species must be listed if endangered or
threatened throughout an SPR, then that authority should be used
sparingly.
Response: We agree that rangewide listings should not be made
lightly, and as discussed in the draft policy (76 FR 76987, p. 76995)
and above in the II. Changes from the Draft Policy section, part of our
reasoning for adopting the relatively high standard of this final
policy for the definition of ``significant'' is to avoid unnecessary
regulatory burdens. However, we have a duty to apply the Act's
definitions in the context of the best available scientific and
commercial information in each case and must not hesitate to use the
authority where appropriate.
Comment (28): One commenter suggested that when a species is
endangered or threatened throughout an SPR outside of the United
States, that the U.S. population should not be included in the listing.
Response: As the commenter pointed out, the draft policy is silent
as to the effect of jurisdictional boundaries on the operation of the
SPR language. There is, however, a good reason for this: Section 4 of
the Act makes no reference to any different treatment of species found
outside of the United States. Rather, it only specifies notification
requirements to foreign governments, and clarifies that the
conservation efforts of those governments should be considered in
making listing determinations. That said, as indicated in the draft
policy (76 FR 76987, p. 77003) and elsewhere here, if an SPR that
warrants listing also qualifies as a DPS, we will list the DPS,
including those with boundaries that correspond with international
boundaries.
Comment (29): One group of commenters opposed application of the
policy to foreign species. The commenters asserted that the
conservation considerations for foreign species are very different than
those for domestic species. The commenters were particularly concerned
that rangewide listing resulting from application of the draft policy
would interfere with sport-hunting programs in countries that manage a
species well, and provided several existing examples of FWS providing a
species with different listing statuses in different countries. The
commenters also asserted that the DPS concept is not an adequate
safeguard to prevent that interference. One commenter stated that the
Services should issue a separate policy for foreign species to take
into account foreign programs and practices and congressional language
not to list areas that do not themselves warrant being listed.
Response: We disagree. The standards for listing are the same for
domestic and foreign species, although the nature of the data to be
analyzed can differ. Moreover, as discussed in the draft policy, our
policy stipulates that if an endangered or threatened SPR of a species
also qualifies as a DPS, we will list the DPS rather than the entire
taxonomic species or subspecies. This treatment is consistent with the
commenters' examples and maintains the full flexibility of the DPS
authority to apply differing statuses across the range of a vertebrate
taxon comprising multiple DPSs, including those that qualify as DPSs
based on different management across international boundaries. Thus,
our SPR policy honors congressional intent that suggests we should
apply differing statuses for species across international boundaries if
there are differences in management.
Comment (30): Colorado Parks and Wildlife commented that it would
be unreasonable to list the Gunnison's prairie dog rangewide if the
prairie portion of its range does not warrant listing itself, and if
adequate mechanisms do not exist for the recovery of the montane
population, which is subject to much greater threats.
Response: On November 14, 2013, FWS published (78 FR 68660) a not-
warranted finding for Gunnison's prairie dog consistent with
application of the principles laid out in this policy.
D. The Biological Basis for ``Significant''
Comment (31): Most commenters, including the Wisconsin Department
of Natural Resources and Idaho Office of Species Conservation,
supported the biological basis for the definition of ``significant.''
One noted that a percentage-of-range test departs from the biological
conservation of listed species and the ``best science'' features of the
Act, and moves away from the areas of expertise of Service biologists.
Another thought size of the portion would be most straightforward, but
acknowledged that size will not always be directly related to
biological/conservation importance, which matters most when trying to
conserve endangered and threatened species.
Response: We appreciate the commenters' constructive feedback.
Comment (32): Several commenters supported the biological basis for
the definition of ``significant,'' but questioned how the Services will
make these determinations. For example, the Nevada Department of
Wildlife questioned whether decisions based on an analysis of
biological significance (based on the principles of conservation
biology using the concepts of representation, resiliency, and
redundancy (the three Rs)) can be articulated and supported in a manner
that will be able to withstand challenges. The Idaho Department of Fish
and Game found it difficult to imagine the multitude of potential
analyses of different geographically based configurations of how much
of the taxonomic species' range is required to meet the threshold of
``significance.'' The Hawaii Department of Land and Natural Resources
was concerned that the biological basis may be too subjective. It was
unclear to another commenter how a species with a metapopulation
structure throughout all of its extant range would be affected by the
proposed interpretation.
Response: Although these determinations are necessarily subjective
to some degree, we will make them based on the best available
scientific and commercial data. Our expertise and experience uniquely
qualify us to make these sorts of determinations. The biologically
based definition of ``significant'' requires the same types of analyses
that we already conduct, and we are confident that we can apply this
standard in a manner that will be able to withstand challenges. With
regard to the concern about the multitude of potential analyses that
would be required, we acknowledged this in the draft policy, and
explained how our process for considering SPRs would address that
concern (76 FR 76987, p. 77002). The process we outlined is appropriate
for species with a metapopulation structure throughout all of its
extant range, since a metapopulation is a group of spatially separated
populations of the same species that interact at some level. One or
more of these populations can constitute an SPR.
Comment (33): Several commenters supported the biological basis of
the definition of ``significant,'' but asked how we will determine that
the threats in a portion are so ``significant'' as to warrant a listing
determination based on an SPR.
Response: The commenters' question goes to the second step of the
SPR analysis, which asks whether a species is endangered or threatened
throughout an SPR. We will make these determinations in the same way we
determine whether any species is endangered or threatened. The only
[[Page 37593]]
difference in these determinations is that they will be made with
reference to the members in a smaller portion of the species' range. We
do not ask whether the threats acting on the portion are
``significant,'' but whether they cause the species to be either in
danger of extinction or likely to become so within the foreseeable
future throughout that portion.
Comment (34): One commenter suggested that we include the more
detailed language about the three Rs and four viability criteria
(abundance, spatial distribution, productivity, and diversity) in the
definition itself, instead of only in the preamble, to ensure that the
definition is more specific and less open to interpretation and debate.
Otherwise, ``in danger of extinction'' will be difficult to apply
consistently.
Response: We disagree. A succinct policy statement is beneficial
both to the Services and the public, and additional guidance is
available by referring to the preamble. If we determine that it would
be helpful to do so in the future, the Services may develop internal
guidance that would include such details to help their biologists
implement the policy.
Comment (35): One commenter was concerned about the emphasis placed
on the term ``viability'' because this term is not defined.
Response: We use the term to describe conservation biology
principles, as it is a common term in the field of conservation
biology. ``Viability'' is the ability of a population to persist and
avoid extinction. The viability of a population will increase or
decrease in response to changes in the rates of birth (or germination),
death, immigration, and emigration of individuals.
Comment (36): One commenter wondered how the Services will
determine what will constitute a significant portion of the range for
plants with disjunct distributions. What criteria will we use (genetic
data, population viability analysis (PVA), population modeling, or
other methods)? The commenter was concerned that genetic diversity may
be lost if the ``significance'' of a portion of a plant species' range
or genetic diversity or both across its range is not adequately
investigated and understood. The commenter also opined that climate
change (changing precipitation patterns and temperature regimes) may
increase the significance of populations located at the extremes of a
species' range because those populations may make disproportionately
high contributions to the total adaptive capacity of species.
Response: All of these considerations are subsumed within our
evaluation of the three Rs and four viability criteria. In evaluating
the status of species, the Services encounter species with a wide range
of life histories, circumstances, and varying levels of data quality
and quantity. Because of this, it is not possible to lay out a single
set of specific criteria in this policy. Analyses will necessarily be
species-specific and will rely on the best scientific and commercial
data available for that species. However, as explained in the draft
policy (76 FR 76987, p. 76994), the framework of the three Rs and four
viability criteria include considerations such as spatial distribution,
abundance, and genetic diversity. Where we have quantitative data, we
may be able to use PVAs or population modeling. In less data-rich
situations, we will use qualitative methods. In the response to Comment
84 below, we provide an example of the application of this framework to
the Queen Charlotte goshawk. In that analysis, we specifically
considered geographic barriers and genetic diversity in our evaluation
of whether portions of the species' range could be ``significant.''
Comment (37): A few commenters, including the Alaska Department of
Fish and Game, recommended changing the definition of significant to
read, ``A portion is `significant' in the context of the Act's
`significant portion of its range' phrase if its contribution to the
viability of the species is so important that, without the individuals
in that portion, the species would be in danger of extinction.'' The
commenters suggested that this would eliminate confusion that could
arise from the fact that ``range'' usually refers to a geographic area
rather than the individuals in that area.
Response: The commenters are correct that our determinations are
made with reference to the biological organisms, not the geographic
area. Therefore, we changed the definition of ``significance'' to
clarify that ``that portion'' refers to members of the species in the
portion of the range.
Comment (38): Two commenters suggested the following modification
to our definition of ``significant'': ``In implementing the assessment
of a portion of a range's contribution to the viability of a species,
the Services shall identify and explain those physical attributes and
biological elements that are present in the species' occupied range and
are so integral to the life cycle of the species that they make a
unique and irreplaceable contribution to the species' ability to
survive.''
Response: The biologically based definition in our draft policy
refers to the biological organisms, not the geographic area.
Regardless, the biological principles that we will consider when
evaluating whether a portion's contribution to the viability of a
species is so important that, without the members in that portion, the
species would be in danger of extinction or likely to become so within
the foreseeable future already incorporate the concepts suggested by
these commenters because it is impossible to separate these habitat
concepts from the species' needs. These concepts will be reflected in
the viability of the species.
Comment (39): A number of commenters argued in favor of using other
factors (e.g., size, esthetic, ecological, educational, recreational,
cultural, U.S. presence) to define ``significant'' instead of applying
a purely biological/conservation approach. For example, South Dakota
Game, Fish and Parks suggested that we include both the options of
conservation value and size for defining ``significant,'' and another
commenter stated that percentage of range and percentage of population
should be required components of a science-based SPR analysis
throughout all ecotypes within the species' current and historical
range. Other commenters preferred that we base our approach on the
``Values of the Act'' so that we can retain broad discretion to
determine that a particular portion of a species' range should be
deemed significant based on the specific national ``values'' set forth
in the Act itself.
Response: We considered these factors as well as other factors when
we were developing the draft policy (76 FR 76987, pp. 77000-77002).
However, we concluded that a biological/conservation importance
approach would result in us applying protections and resources to
portions that are biologically important and in need of conservation,
consistent with the purposes of the Act. An approach that is based on
biological importance necessarily includes consideration of factors
such as size of the population, spatial distribution across ecotypes,
etc. Such a biological approach is most appropriate because the Act
focuses on protecting species, and to protect species requires that we
assess whether they are biologically viable. The commenters did not
present a clear explanation or rationale for why or how non-
biologically based factors would be better than a biological/
conservation approach.
Comment (40): The Kalispel Tribe of Indians suggested a hybrid
approach, incorporating both the biological/conservation importance and
the values identified in section 2 of the Act. Under this approach, if
a portion is
[[Page 37594]]
``significant'' for biological or conservation reasons, the portion
would be a ``significant portion of [the species'] range''; if not, the
Services would, in consultation with the affected Tribe, look to
whether that portion is ``significant'' because of the values
articulated by the Act (e.g., cultural, historical, educational). If
the portion is important because of any of these values, it would then
be ``significant.''
Response: All of the reasons we gave in the draft policy (and in
response to Comment (39), above) for not applying a values approach (76
FR 76987, p. 77001) apply as well to the hybrid approach suggested by
the Kalispel Tribe. Therefore, we concluded that the biological/
conservation approach should be used alone in determining whether a
portion of the range of a species is significant.
Comment (41): One commenter suggested that a variety of factors
should be used to determine the significance of a portion of the range
of a species, including whether that portion supports unique habitats
or adaptations for the species, and whether its loss would result in a
significant gap in the species' range.
Response: Unique adaptations are incorporated in the three Rs or
four viability criteria. Since the Act is a species-focused law (rather
than ecosystem-focused), incorporating the concept of ``unique
habitats'' is not appropriate unless the species' presence in that
habitat contributes to its resilience. Evaluating whether the loss of
the portion would result in the species being endangered or threatened
already captures the commenter's suggestion of evaluating whether its
loss would result in a significant gap in the species' range. We
deliberately chose not to use the phrase, ``significant gap in the
species' range'' because that is a factor in the DPS Policy, and
``significant'' in the SPR phrase is not the same as ``significant'' in
the DPS Policy.
Comment (42): Several commenters recommended that we incorporate
ecosystem principles into our definition of ``significant.'' For
example, one commenter recommended rewording the definition of
``significant'' so that when the loss of a portion of a species' range
would result in the extirpation of that species from a defined
ecoregion or ecosystem unit, then that portion is significant to the
species and the species must be protected under the Act. The commenter
further argues that an ecosystem-unit assessment provides for a
meaningful distinction between the concept of endangered throughout an
SPR and threatened throughout an SPR. Another commenter recommended
that we revise the draft policy by defining the word ``significant'' in
a way that recognizes the ecological significance of various parts of a
species' range to the species and the ecosystem, does not diminish the
species' resilience or potential to adapt in response to rapidly
changing environmental conditions, and does not rule out the
possibility that areas that do not now constitute good habitat might
become so as a consequence of the same processes that are causing the
loss or degradation of presently occupied areas. As an example, this
commenter suggested that the loss of a large whale population from an
ecosystem (i.e., Gulf of Alaska, Bering Sea, or Sea of Okhotsk) would
be significant at the species and ecosystem level, and therefore, this
loss could be considered a loss from an SPR. Similarly, this commenter
argued that portions of a species' range that are important for
supporting vital functions such as reproduction, feeding, and refuge
from predators could reasonably be considered SPRs. This commenter
emphasized the importance of preserving the populations' capacity to
adapt to changing environmental conditions by not allowing a population
to decline as a result of human impacts throughout an SPR.
Response: We explained our rationale for choosing a biologically
based definition of ``significant'' in detail in the draft policy (76
FR 76987, pp. 76993-76994 and 77001). A biologically based definition
best conforms to the purposes of the Act, is consistent with judicial
interpretations, and best ensures species' conservation. While one of
the purposes of the Act is to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved, the Act provides for protecting listed species and their
critical habitat, not ecosystems. Therefore, we declined to reword our
draft policy to incorporate ecoregions or ecosystem units, although we
note that extirpation of a species from an ecoregion or ecosystem unit
can be a relevant consideration under the policy, even if not
dispositive. With regard to the comment that an ecosystem-unit
assessment provides for a meaningful distinction between the concept of
endangered throughout an SPR and threatened throughout an SPR, the
commenter did not explain how this would be provided, and therefore, we
cannot offer a response. When determining whether a species is
endangered or threatened, we recognize the ecological significance of
various parts of its range to the species and the ecosystem, and
consider its resilience or potential to adapt in response to rapidly
changing environmental conditions; there is no need to revise the draft
policy to recognize this. In response to this commenter's
recommendation that we consider the possibility for low- quality areas
to become good habitat, nothing in our policy precludes us from
considering the dynamic ecological and evolutionary processes that lead
to these changes in habitat quality when determining whether a portion
of the range of a species is significant.
Comment (43): One commenter stated that the draft policy equates
``significant'' only with ``biological viability'' when it should be
focusing on viability and geographic representation. Another commenter
stated that ``significant'' should be defined to include a geographic
component that is related to but not subsumed by viability, citing
Congressional Report No. 93-412, historical application of the Act, and
peer-reviewed assessments (Vucetich et al. 2006 and Carroll et al.
2010) to support its claim. Another commenter notes that species cannot
be effectively protected without protecting the habitats and ecosystems
on which they depend and without considering the species' integral
ecological processes; this commenter supported the use of the
conservation-biology principles of resilience, representation, and
redundancy, but believed that our focus on species viability as the
sole criterion for listing contradicts these three principles. As an
example, this commenter argued that misinformed and harmful
``mitigation'' for a proposed groundwater-pumping-and-exportation
project would be allowed under the species-viability focus in our
proposed approach.
Response: As we discussed in the draft policy, we consider the
conservation-biology principles (three Rs or four viability criteria)
when evaluating whether a portion is significant (76 FR 76987, p.
76994). Consideration of these principles necessitates an evaluation of
geographic representation as all of the three Rs (resilience,
representation, and redundancy) and the spatial distribution criterion
(one of the four viability criteria) include geographic components.
While one of the Act's purposes is to provide a means whereby the
ecosystems upon which endangered and threatened species depend may be
conserved, the actual, operational provisions of the Act are explicitly
species-focused and do not specifically provide for protection of
ecosystems (though critical habitat designation
[[Page 37595]]
offers some protection). However, the species' integral ecological
processes are considered in any evaluation of the status of a species.
With regard to the comment expressing concern about harmful
``mitigation'' resulting from our draft policy, the commenter did not
explain the connection between this concern and our draft policy.
However, we disagree that there would be any harmful mitigation as a
result of implementing the policy
E. The Threshold for ``Significant''
Comment (44): A number of commenters supported a lower bar that
would include ``threatened.'' Arguments offered in favor of this
include: (1) A recommendation to apply the precautionary principle and
protect species before they become endangered (when it is too late) and
species recovery becomes more costly; and (2) concern that the draft
definition does not provide a meaningful distinction between when a
species is endangered throughout an SPR and when a species is
endangered throughout all its range (citing Defenders (Lizard)).
Response: Although we disagree with the assertion that the
precautionary principle should be applied to listing determinations
under section 4 of the Act (see CBD v. Lubchenco, 758 F. Supp. 2d 945,
955 (N.D. Cal. 2010)), as discussed above, this final policy adopts the
standard suggested by these commenters. See section II. Changes from
the Draft Policy, above.
Comment (45): Two commenters stated that the threshold in the draft
policy was too high and would result in decreased protections for
species with important populations that are facing significant threats.
They expressed concern that many populations important to the
redundancy, resiliency, and representation within the species will not
warrant protection. The commenters proposed that a population be
considered ``significant'' if its loss would ``meaningfully
compromise'' redundancy, resiliency, or representation for the species
as a whole. They suggested that this would ensure that all species are
represented by multiple viable populations distributed across the range
of variation of that species including geographic, ecological, and
genetic variation. Another commenter agreed that the threshold was too
high, and asserted that the Services are giving economic impacts of
listing species too much emphasis and not giving conservation success
enough emphasis.
Response: We agree that the threshold should be lower than in the
draft policy to ensure that species with important populations that are
facing significant threats receive protection under the Act, but we do
not believe ``meaningfully compromise the redundancy, resiliency, or
representation for the species as a whole'' is an appropriate and clear
standard. In addition to its ambiguity, the recommended threshold would
appear to set an inappropriately low standard for ``significant'' given
the effect of finding that a species is endangered or threatened
throughout an SPR, i.e., rangewide listing. For the reasons discussed
above, we have lowered the threshold for ``significance,'' but we
decline to adopt this recommendation. We do not agree with the
commenter who asserted that we are giving economic impacts of listing
species too much emphasis and not giving conservation success enough
emphasis. We developed our policy by examining the Act, its legislative
history, and case law, and the result is a policy that balances the
need to give full meaning to both ``throughout all of its range'' and
``throughout a significant portion of its range'' while affording
appropriate protections to species.
Comment (46): Many commenters, including the Idaho Department of
Fish and Game, Alaska Department of Fish and Game, Wisconsin Department
of Natural Resources, and Hawaii Department of Land and Natural
Resources supported the high threshold for ``significant'' in the draft
policy. A few argued that introducing the consideration of whether a
species is ``likely to become endangered'' as part of identifying a
``significant portion'' would confuse the purpose of the identification
of an SPR. Another stated that the use of the endangered standard would
provide a more straightforward approach for determining if a species'
range is ``significant'' because it would avoid adding the temporal
element of the threatened standard. The commenter also suggested that
use of a higher standard lessens the risk of unnecessary species
listings that would result in application of the Act's protections
across the species' range.
Response: We do not think introducing the consideration of whether
a species would meet or exceed the standard for threatened as part of
the threshold for ``significant'' confuses the purpose of the
identification of an SPR. Determining whether a portion is
``significant'' is a separate exercise from determining whether the
members of the species in that portion meet the status test of
``endangered'' or ``threatened.'' The inquiry assumes that all members
in that portion are extirpated, without reference to a particular point
in time. Regarding use of the threatened standard in the definition of
``significant,'' in our draft policy we also concluded that the use of
the endangered standard was more straight-forward. However, for the
reasons discussed in sections II. and III.C.3., above, we now conclude
that it is more appropriate to include the threatened standard along
with the endangered standard in the definition of ``significant,'' and
have done so in this final policy.
F. Quantitative Approaches or Rebuttable Presumptions To Determine
Whether a Portion is ``Significant''
Comment (47): One commenter asked us to rescind the draft policy
and instead adopt one that considers the plain meaning of significance
of the range in terms of the majority of the range as measured in
quantitative or numerical terms. However, most commenters, including
the Wisconsin Department of Natural Resources, Hawaii Department of
Land and Natural Resources, and Alaska Department of Fish and Game,
agreed with us that a quantitative approach or rebuttable presumption
should not be used for determining whether a portion of a species'
range is significant. Many commenters noted that a single metric,
percentage, or other quantitative measure should not be used to
establish a presumption for identifying an SPR. Instead, they suggested
that we must draw upon those myriad factors specific to the species and
the portion of the range at issue to determine whether that portion
meets the threshold for identification and review under the SPR
inquiry.
One commenter added that, based on research indicating variation in
habitat quality and productivity at the scale of the species' range,
percentage of range or population is an unreliable indicator of
biological or conservation significance. Therefore, a rebuttable
presumption would be either overly strict in many instances, would
somehow result in ``shifting to the public'' an assessment the Services
are better equipped to make, or would be generally under-protective.
Another thought using percentage of range or habitat as the threshold
for ``significant'' is appealing because it is more tangible and
objective, but admitted that it is likely to be impossible to develop
size-based criteria that will work for all possible scenarios. Another
pointed out that a predetermined percentage of the species' overall
range should not be used to define ``significant''; significant
reduction in a species' range, particularly when coupled with reduced
abundance, could be a sufficient basis
[[Page 37596]]
for listing even if that portion fails to meet some predetermined
percentage of the species' range.
Two other commenters noted that the use of size (either of a
population or a range) as a rebuttable presumption would provide a
quantitative measure that could be easier to apply as a first cut, but
acknowledge that it could ultimately complicate the issue rather than
streamline the process because it would not take into account species-
specific characteristics, and determining what is necessary to rebut
the presumption would be problematic. They concluded that the use of
the size approach, and necessary size-threshold determination, would be
arbitrary and likely impossible to apply in a consistent or systematic
manner. They agreed with us that percentage of range or population as a
rebuttable presumption would be inconsistent with case law (the Ninth
Circuit has already rejected the argument that a specific percentage
loss of habitat should automatically qualify a species for listing
(Defenders (Lizard), 258 F.3d at 1143-44)).
Response: In view of the comments received and the complications
identified in the draft policy, we have concluded that it is not
feasible to implement a purely quantitative approach. The Services
specifically contemplated the possibility of using a quantitative
threshold for ``significant'' when we considered using size as a basis
for determining significance. We specifically rejected using size
because a single quantitative threshold would be unlikely to be
applicable to the widely varying life histories, habitats, and needs of
the species for which we conduct status reviews. We also specifically
requested comment on the possibility of developing a specific
quantitative threshold for significance that could be used as a
rebuttable presumption to streamline and simplify our analyses and
provide for greater transparency (a rebuttable presumption would
provide a standard quantifiable threshold for significance that would
be applied unless certain assumptions or conditions are not met). Most
commenters who addressed this issue replied that developing
quantitative thresholds (even as a rebuttable presumption) would not be
feasible or useful or would be unnecessarily complicated given the
variety of circumstances, species life histories, and variability in
the types of data that would be available to the Services. We agree.
G. Range and Historical Range
Comment (48): Many commenters appeared to believe the policy would
limit protections of a species to only the range occupied at the time
of listing. Other commenters recommended we explain that ``range'' is
not a regulatory concept.
Response: The Services noted in the draft policy that our
interpretation of the term ``range'' does not limit application of the
tools and protections of the Act (76 FR 76987, pp. 76997 and 77003-
77004). However, in this final policy, we have further clarified that
the term ``range'' is relevant to whether the Act protects a species,
but not how that species is protected. We note that the protections of
the Act are applied ``to all individuals of the species, wherever
found,'' the phrasing used in 50 CFR 17.11(e) and 17.12(e).
Comment (49): Many commenters believe that the policy would result
in the Services giving no consideration of loss of historical range or
reasons for its loss in our listing determinations. Several commenters
believed that defining range as current range would result in a
``shifting baseline.'' Commenters assumed that we would establish the
current range as the baseline for comparison of a species' status
without consideration of historical information to provide context to
interpret the species' current status.
Response: As explained in the draft policy (76 FR 76987, pp. 76996-
77007), loss of historical range, its impact on the current and future
viability of the species, and its causes are important considerations
in determining a species' status. While the definition of ``range''
establishes that the question of whether a species is endangered or
threatened is a forward-looking inquiry, nothing in the policy suggests
that current range would be used as the baseline against which to
measure whether a species is endangered or threatened. In fact, because
asking whether a species is currently in danger of extinction or likely
to become so is a forward-looking exercise, there is no specific
``baseline'' of comparison. As we explain above in section III.D., a
species' current and future status is informed by past trends and
events and the Services agree that information regarding historical
range cannot be ignored. We have further clarified the importance and
relevance of evaluating the effects of loss of historical range on the
current and future viability of the species.
Comment (50): Many commenters supported the Services'
interpretation of range as current range and noted additional support
in other provisions of the Act and other case law for the policy's
interpretation that ``range'' must mean current range.
Response: We appreciate the commenters' supportive feedback.
Comment (51): One commenter suggested the Services more clearly
make a distinction between the roles of SPR and consideration of lost
historical range. Further, the commenter recommended that the Services
explain that SPR concerns the biological significance of a portion of
currently occupied range, while loss of historical range is a factor in
determining whether a species is currently viable.
Response: We have added further explanation of the roles and
relationships of SPR and lost historical range in determining the
status of a species.
Comment (52): Many commenters believe that defining ``range'' as
the current range accepts that lost historical range is unrecoverable
and that it would limit options going forward for recovery. Some have
suggested that defining ``range'' as current range would exclude from
conservation and protection efforts any areas from which a species has
been extirpated.
Response: We explained in the draft policy (76 FR 76987, p. 76997)
and in section III.D., above, that examining a species' status in its
current range in no way constrains or limits use and application of the
tools of the Act to the current range of the species. Such tools
include, but are not limited to, designation of critical habitat
outside areas occupied by the species at the time it is listed;
protection, restoration and management of habitat to allow for natural
range expansion; improvement in population growth rates to allow for
natural expansion; and translocation and reintroduction to areas
outside the current range of the species (e.g., California condor,
black-footed ferret, peregrine falcon). We specifically note that
recovering a species in some or all of its historical range may be
necessary, and that the language of the Act indicates Congress
specifically contemplated this necessity. However, we have added
further explanation that the term ``range'' is a conceptual and
analytical tool related to identifying threatened and endangered
species and plays no direct role in implementing the Act to protect and
recover species.
Comment (53): Some commenters asked how range would be determined
for listing determinations and status reviews. Some commenters
requested we explain how the Services would address specific scenarios,
such as species with disjunct populations,
[[Page 37597]]
recently restored populations, captive populations, or species found
only in captivity.
Response: The available information on current and historical
ranges varies widely among species. For example, we may have very
detailed information for some species and more limited data for others.
Similarly, we may have detailed information in some portions of a
species' range and very limited data in others. There is no single
method for defining a species' range that can be used for all species
and all situations. We describe the range, both current and historical,
based on the best scientific and commercial data available. We note
that range is described in our findings and status reviews for the
purposes of conducting analyses of the species' status. As explained in
section III.D., above, description of a species' range does not limit
where protections of the Act apply, as the protections apply to the
species itself. The same would be true for a species with disjunct
populations. Similarly, protections of the Act would be extended to
newly restored populations, as the protections of the Act are applied
to the species itself, not the ``range.'' We note that with regard to
considering whether newly restored populations constitute an SPR, we
would consider such populations to be part of the range of the species
for purposes of any status reviews because ``range'' is defined as the
current range of the species at the time of the determination (not the
range defined at listing or another previous determination). Whether or
not a newly restored population would be considered an SPR would depend
on its contribution to the conservation of the species. As for any
other portion of a species' range, we would consider its contribution
to the resiliency, redundancy, and representation of the species (such
considerations could include the size of the newly restored population,
its likelihood of persistence, or its contribution to the genetic
diversity of the species). With regard to species found in captivity,
the Services consider a captive population to have no ``range''
separate from that of the species to which it belongs (captive
populations cannot be considered an SPR). Captive members have the same
legal status as the species as a whole. In situations where all members
of the species in the wild are gone, either because they are extirpated
or because, as a last resort, the remaining wild members are captured
and moved into captivity, the species remains listed as endangered or
threatened until the species can be reintroduced and recovered in the
wild. Our reasoning regarding the status of captive populations is
further detailed at 78 FR 33790 (June 5, 2013).
H. Relationship With DPS Authority
Comment (54): One commenter asserted that the draft policy
conflates the identification of the relevant ``species'' with the
determination of whether it is an ``endangered species'' or a
``threatened species.'' According to the commenter, the fact that a
population could be protected either because a DPS is endangered or
threatened throughout all of its range or because a biological species
is endangered or threatened throughout a significant portion of its
range does not mean that either provision is superfluous. Moreover, the
commenter asserted that Congress's adoption of the DPS concept in 1978
did not alter the SPR phrase or otherwise change its meaning.
Response: We agree that the identification of the ``species'' and
the determination of whether it is endangered or threatened are two
different steps. Once we determine that a species meets the definition
of an ``endangered species'' or a ``threatened species,'' the operative
provisions of the Act do not provide that protections only apply with
respect to some members of the species (absent, for example, an
applicable rule under section 4(d) or section 10(j) of the Act that
modifies those protections). As we discussed in the draft policy, a
species that is in danger of extinction throughout a significant
portion of its range is an ``endangered species.'' Take of an
``endangered species'' (not just of an endangered species where it is
endangered) is prohibited by section 9 of the Act. Moreover, we did not
assert that interpreting the Act to allow protections solely in an SPR
would make the DPS language redundant. We merely asserted that doing so
``creates unnecessary tension between the SPR language and the DPS
language'' (76 FR 76987, p. 76991). Also, we did not argue that the
addition of the DPS language in the 1978 amendments to the Act changed
the meaning of the SPR language. The commenter's preferred
interpretation would also have created unnecessary tension with the
1973 definition of ``species.''
Comment (55): Many commenters, including the Florida Fish and
Wildlife Conservation Commission, agreed that the draft policy struck a
reasonable balance between the DPS policy and the statutory SPR
language. The Wisconsin Department of Natural Resources appeared to
agree that endangered or threatened DPSs that also qualify as SPRs
should not be the basis for listing the entire taxonomic species of
which it is a part. Otherwise, the agency suggested, the result could
be ``unintended listings of DPSs'' (which we take to mean the portions
of the range outside the SPR/DPS); the remainder of the range
presumably is one or more DPSs, for which independent listing
determinations should be made.
Response: We appreciate the constructive feedback of the
commenters.
Comment (56): A number of commenters recommended that the Services
reevaluate the DPS policy. In particular, several commenters, including
the Wisconsin Department of Natural Resources, suggested that the DPS
policy be revised to allow DPS boundaries to be defined by State
borders, or by ecoregion or ecosystem unit boundaries, without
requiring that DPSs be disjunct from one another. The Alaska Department
of Fish and Game suggested that the Services clarify that, for purposes
of the DPS policy, Alaska is separated from the contiguous 48 States by
international boundaries. One commenter suggested distinguishing DPS
analysis from SPR analysis by relaxing or eliminating the significance
requirement of the DPS policy. Another commenter suggested adding a
fifth criterion for significance to the DPS policy (geographic
representation in an ecosystem unit), and another suggested that any
reevaluation of the DPS policy should include a notice-and-comment
process for formulating a more rational approach to reconciling the SPR
and DPS language.
Response: Revision of the DPS policy is outside the scope of the
current effort. This policy does, however, describe the relationship
between the DPS language and the SPR language in the Act.
Comment (57): One commenter asserted that giving ``significant''
different meaning in the SPR and DPS contexts runs afoul of Supreme
Court precedent that statutory terms should normally be given the same
meaning throughout a statute.
Response: We disagree. ``Significant'' is not a statutory term in
the DPS context--``significant'' is used in the DPS policy, not in the
statute. The case law cited by the commenter is simply not applicable.
Comment (58): Several commenters asserted that despite our
explanation to the contrary, the draft policy defines ``significant''
in the exact same way as the DPS policy because both refer to the
concept of importance. They argued that this has the effect of
rendering the DPS
[[Page 37598]]
language moot and illegally amending the Act.
Response: We disagree. The fact that the concept of significance in
the draft policy and the DPS policy both relate to importance (as
opposed to, for example, statistical significance) does not mean that
the terms are defined identically. As explained in great detail in the
draft policy, the draft policy sets a much higher and more specific bar
than the DPS policy (76 FR 76987, pp. 76998-76999). In other words,
although both relate to importance, under the draft policy a portion of
the range must be much more important to be ``significant'' than a
population must be to be significant to the taxon as a whole under the
DPS policy. This remains true under the revised definition of
``significant'' in this final policy.
Comment (59): One commenter suggested that we will not be able to
list a DPS rather than the entire species if an endangered or
threatened DPS occupies an SPR of the species, because the policy
requiring rangewide listing will be binding.
Response: We disagree. The policy expressly provides that where a
DPS overlaps with an SPR only the DPS will be listed.
Comment (60): Several commenters suggested that we should list a
species rangewide even if there is a valid DPS that could be listed
instead. Two of these commenters cited the disparity between the
treatment of vertebrates and invertebrates if the draft policy is
followed, with the paradoxical result that a similarly situated
invertebrate could receive more protection than a vertebrate, in
contravention of congressional intent. Another suggested that because
DPS and SPR inquiries encompass different kinds of characteristics,
they should be assessed independently.
Response: As discussed in the draft policy (76 FR 76987, pp. 76988-
76989), it is very difficult to harmonize the various provisions of the
Act and the goals that Congress intended to pursue. We conclude that
the position taken in this policy strikes the best balance and
appropriately reconciles these two distinct authorities.
Comment (61): One commenter asserted that the draft policy did not
provide an adequate rationale for listing only the DPS where its range
is coextensive with an SPR of the taxon to which it belongs. The
commenter argued that the rationale given is undermined by the fact
that section 4(d) of the Act allows the Service to tailor restrictions
for threatened species. Also, the commenter suggested that, for
domestic species, DPSs are unlikely to correspond to political
boundaries in the absence of international borders.
Response: As we discussed in the draft policy (76 FR 76987, pp.
76998-76999), DPSs will not often correspond to SPRs, but we determined
that the policy should explain what happens if they do because the Act
does not indicate how these two distinct authorities should interact
with one another. Rules promulgated under section 4(d) of the Act are
not adequate to address the problem, as section 4(d) does not apply to
endangered species.
Comment (62): Several commenters, including the Alaska Department
of Fish and Game, stated that the draft policy should be modified to
require the Services to determine whether a proposed SPR is encompassed
by a DPS.
Response: As discussed in the draft policy, we generally will
identify, as a matter of practice, relevant DPSs before considering
SPRs, although in some circumstances a different order or scope of
analysis may be more appropriate. To preserve flexibility, we find
there would be no benefit to expressly requiring this in the policy.
Comment (63): One commenter expressed concern that the draft
policy's discussion of DPSs would lead the Services ``to conduct a
review that is out of order''--apparently considering the proper order
to be to identify the ``species'' first, and then apply the definitions
of ``endangered species'' and ``threatened species'' to the species.
Response: As we stated in the draft policy, we agree that we will
usually identify the species to be analyzed first. In fact, in our
draft policy, our treatment of DPSs that are also SPRs helps justify
conducting the analysis in this order, without a need to reexamine
endangered or threatened DPSs to determine whether they also constitute
SPRs. Under the draft policy, no change in the listing would result
from that additional analysis, so there would be no need for the
Services to conduct it.
Comment (64): Several commenters asserted that an SPR inquiry
should not be used in evaluating whether a DPS warrants listing. In
other words, those commenters think that a DPS should not be listed
because it is endangered or threatened throughout a significant portion
of its range. Another commenter took the opposite position, and
suggested that we clarify this fact.
Response: As stated in the draft policy, the same logic applies to
DPSs that applies to taxonomic species and subspecies (76 FR 76987, p.
76998). Natural operation of the language of the statute leads to the
conclusion that any ``species,'' including a DPS, can be an
``endangered species'' because it is ``in danger of extinction
throughout . . . a significant portion of its range.''
Comment (65): The Wisconsin Department of Natural Resources
suggested defining SPR and DPS as the same where there is substantial
overlap to allow for more effective, efficient, and practical
application of listing and delisting efforts.
Response: Although they use the same word, the DPS Policy and the
SPR language have different purposes: The DPS policy helps define what
counts as a ``species,'' and the SPR language helps determine whether a
species is endangered or threatened. Therefore, it is reasonable for
``significant'' to have different meanings in those different contexts.
Moreover, as discussed above and in the draft policy (76 FR 76987, p.
76995), given the effect of finding a species to be endangered or
threatened in a significant portion of its range, it is appropriate for
``significant'' in that context to be a demanding standard. The
definition of ``significant'' used in the DPS Policy, although
appropriate in that context, would, applied in the SPR context, be too
low a standard, and result in the listing of many species with little
long-term risk of extinction, diluting the conservation efforts of the
Services, and imposing costs with relatively little conservation
benefit. Finally, defining ``significant'' the same way in both
contexts would tend to make the DPS language of the Act irrelevant, as
DPSs of a species would always constitute SPRs of that species.
Comment (66): Two commenters thought that the discussion of the
relationship between DPSs and SPRs was confusing and should include
examples or case studies. One commenter specifically suggested the
Services need to provide spatial diagrams to explain the relationship
of SPR to DPS.
Response: There is no static relationship between these concepts,
and not every species will have both an SPR and a DPS. Beyond the
general framework that we have laid out, the relationship between DPSs
and SPRs is highly fact-specific; we do not see the value of providing
additional examples or case studies. Also, as ``significance'' is
defined differently for SPR versus DPS, these concepts are not in
tension.
Comment (67): One commenter noted that the draft policy's
discussion was unclear as to whether the Services would give any
consideration to the status of the species as a whole if a DPS warrants
listing. The commenter pointed to a number of current examples in which
a DPS is listed as endangered, and the species of which it is a part is
listed as threatened.
[[Page 37599]]
Response: We generally look at taxonomic species and subspecies
before considering DPSs, and we will always consider whether a species
is in danger of extinction (or likely to become so in the foreseeable
future) throughout all of its range before we engage in an SPR analysis
(76 FR 76987, p. 77002). In addition, our revised definition of
``significant'' will preclude existence of an SPR if the species is in
danger of extinction, or likely to become so in the foreseeable future,
throughout all of its range. Nothing in this policy will change how the
Services conduct the analysis of ``species'' throughout their ranges.
When a taxonomic species or subspecies is endangered in one DPS, and
threatened throughout the rest of its range, the Services will continue
to make separate listing determinations for the two (or more)
populations, and list those populations accordingly.
Comment (68): One commenter suggested that we add a discussion of
the relationship of the SPR language and NMFS' evolutionary significant
unit (ESU) policy.
Response: ESUs identified under NMFS' ESU policy (56 FR 58612,
November 20, 1991) are DPSs, and for the purposes of this policy will
be treated as DPSs.
Comment (69): Montana Fish, Wildlife & Parks asserted that the
Services already list populations as DPSs even though they do not meet
the criteria of the DPS policy, and expressed concern that the Services
not use the DPS policy to list populations that are not SPRs.
Response: We disagree with Montana's assertion; the Services
rigorously apply the DPS criteria, and list DPSs sparingly, as
suggested by Congress (Senate Report 151, 96th Congress, 1st Session).
Moreover, the fact that a DPS may be imperiled in a portion of its
range that is not significant will not provide a basis for listing the
DPS.
I. Whether a Species Can Be Both Threatened Throughout All of Its Range
and Endangered Throughout an SPR
Comment (70): Many commenters, including the Wisconsin Department
of Natural Resources, South Dakota Game, Fish and Parks, and Idaho
Department of Fish and Game, stated that, where the Act would allow
either an endangered or a threatened listing, the Services should favor
the more flexible threatened listing. They asserted that the part of
the draft policy supporting an endangered listing in those
circumstances is undesirable over-regulation that would produce
needless economic dislocation. They suggested that the Services embrace
the flexibility of tailoring ``take'' rules and reducing regulatory
burdens with respect to threatened species, in response to a
Presidential Order (E.O. 13563 to promote economic growth, innovation,
competitiveness, and job creation), a Supreme Court ruling, and
congressional intent. The New Mexico Department of Game & Fish was
concerned that the many different analyses we would need to do under
the draft policy would affect the Services' Act-mandated deadlines for
responses to petitions and other potential listing actions.
Response: Although we do not necessarily agree with all of the
rationale provided by these commenters, for the reasons described
above, we agree with their conclusion, and thus the final policy
defines ``significant'' such that a portion cannot be significant if
the species already warrants listing throughout all of its range.
Therefore, as this policy is applied, there will be no circumstance in
which a species is threatened throughout all of its range and
endangered throughout an SPR (see section II., above).
Comment (71): A commenter noted that the most efficient use of
limited Service resources is to focus first on the entire species, and
to use the SPR concept only secondarily and sparingly. Under that
approach, once the Services find that a species is threatened
throughout its range, the species should be listed as threatened, and
an SPR-based endangered listing should not be considered further.
Response: We agree with the commenter and have changed the policy
in part in response to this comment.
Comment (72): Some commenters expressed concern about a species
being both threatened throughout its range and endangered throughout an
SPR because it would be confusing to have two statuses for the same
species.
Response: We have changed the definition of ``a significant portion
of its range'' to avoid the confusion of a species potentially
qualifying both as threatened throughout its range and endangered
throughout an SPR.
Comment (73): One commenter suggested that, when a species is found
to be endangered throughout an SPR, the species should be listed as
endangered only in that portion of its range and threatened in the
remainder of its range. This would allow more flexibility to issue a
rule under section 4(d) of the Act for the species where it is only
threatened. Other commenters, including the Hawaii Department of Land
and Natural Resources, suggested that we apply protections according to
the degree of threat in different portions of a species' range. Two
commenters believed it is fine to protect a species as endangered if it
is threatened throughout all of its range but endangered throughout an
SPR, but protective efforts should be focused on the portion of the
range where threats are greatest.
Response: For reasons set out above and in the preamble of the
draft policy (76 FR 76987), we cannot list an entity smaller than a
species (i.e., species, subspecies, or DPS). Once a species is listed
as endangered, it is listed as endangered wherever found, and all of
the Act's section 9 prohibitions apply. We cannot apply different
listing statuses to the same species in different portions of its range
(except to the extent that those portions of the range correspond to
subspecies or DPSs, i.e., are in fact different ``species''). That
said, with the revisions incorporated into this final policy, a species
that in fact warrants listing as threatened because of its status
throughout all of its range will, by definition, not contain any
endangered SPRs.
J. Use of Best Available Science, Appropriate Analyses, Correct
Conclusions
Comment (74): Several commenters stated that we should revise the
draft SPR policy's current heavy and litigation-inviting reliance on
the principles and concepts of conservation biology in determining
biological significance. Conservation biology is a philosophy and
pseudoscience.
Response: The Act requires that we use the best available science
in making listing determinations. The principles and concepts of
conservation biology are commonly accepted throughout the scientific
community, and make up part of the best available science relevant to
listing determinations. We always consider relevant and available
species-specific evidence as well.
Comment (75): One commenter stated that the basis for the draft
policy is flawed in that it fails to consider the full array of
scholarly research, economic information, and legal considerations
related to the issues and effects of various policy choices
legitimately before the Secretary.
Response: We did consider the best scientific information available
as well as recent judicial opinions relating to SPR. We considered a
wide variety of policy options and the pros and cons of each. This
final policy reflects the Services' expert judgment as to the best way
to interpret and apply ``significant portion of its range'' as that
phrase
[[Page 37600]]
appears in the Act. The commenter did not offer any specific
constructive suggestions that we have not already considered.
K. Implementation in Listing Determinations
Comment (76): Some commenters requested we clarify when SPR
analyses would be required. Several commenters requested we clarify how
SPRs will be identified, what criteria will be used to identify SPRs,
and whether threats will always be used to identify SPRs.
Response: When making a determination according to section 4(a)(1)
of the Act, the Services must always interpret and apply the
definitions of ``endangered species'' and ``threatened species,''
including the SPR language. We must always ensure that we are fully
considering all the parts of these definitions. We explain how and when
an SPR analysis will be conducted under the approach adopted in this
policy in section III.F., above. No analysis of SPR is required when we
find a species to be either endangered or threatened throughout all of
its range. Where the rangewide analysis does not lead to a
determination that the species is endangered or threatened, an SPR
analysis is required. However, the level of detail of analysis
necessary will vary according to the specific species and data under
consideration. In general, a more detailed SPR analysis would likely be
needed to fully address and consider all parts of the definitions when
the kinds and levels of threats vary across a species' range. This is
more likely to occur for species with large ranges than for narrow
endemics with a very small range. Narrow endemics are likely to
experience the same kinds and levels of threats in all parts of their
ranges, and thus, no portion would likely have an increased level of
threats and thus a different status. Essentially, we would conduct a
``screening'' analysis to determine whether additional analysis is
needed. As a matter of definition, the SPR does not always have to be
identified according to threats. In practice, a portion is most likely
to be identified if there is a concentration of threats that could
indicate the individuals in that portion may be endangered or
threatened. The Services would then ask whether the portion also may be
significant. If we determine that the portion is not significant (e.g.,
if it were an extremely small area), we would not analyze it further.
The Services may also identify a portion for further consideration
based on biological characteristics, such as population structure or
spatial distribution, that indicate a portion may be of particular
biological importance (i.e., it may be significant). However, if we
determine that the portion is not endangered or threatened there (e.g.,
if threats were not acting on the species in that area), we would not
analyze it further.
Comment (77): One commenter suggested that we clarify that the
identification of an SPR does not create a presumption, prejudgment, or
other determination as to whether the species in that identified SPR
warrants protection under the Act as either endangered or threatened.
Response: As we stated in the draft policy (76 FR 76987, pp. 76994,
77002), the determination of whether a portion of the range of a
species is significant is completely separate from the determination of
whether a species is endangered or threatened throughout a significant
portion. We have added some language to this document to make this even
clearer.
Comment (78): Montana Fish, Wildlife & Parks asked whether certain
species will be treated as exceptions to this policy.
Response: We plan to apply this policy consistently to all species,
unless we need to do otherwise to comply with a court order.
Comment (79): Some commenters expressed concern that adopting the
SPR Policy will require the Services to undertake additional analyses
that could affect timelines for completing determinations or otherwise
affect the Services' resources. Some commenters asked for clarification
of when detailed analysis of SPRs is needed. Some expressed concern
that the Services will have to devote scarce resources to ensure
consistency in interpretation.
Response: As explained above (section III.F.), the policy outlines
a stepwise process to ensure that we engage in the level of analysis
that is appropriate for the particular species. This process will not
only ensure that the Services are not expending resources on
unnecessarily detailed analyses, but also promote a consistent approach
to conducting the analyses. We cannot predict every possible scenario
we will encounter and must necessarily leave room for best professional
judgment based on specific circumstances, but a consistent
interpretation and stepwise analytical process will promote a
consistent approach.
Comment (80): Several commenters requested we clarify that
identifying the species, as defined by the Act, would be the first step
in the process of making a listing determination. Some seemed concerned
that the Services might instead identify potential SPRs and then
broadly ask what entity (species, subspecies, or DPS) of which it may
be a part.
Response: We have clarified in the policy explanation that the
Services first determine what entity meets the definition of
``species.''
Comment (81): Some commenters suggested that the Services should
develop quantitative tools and standards for measuring contribution to
the viability of the species to ensure objective and unbiased SPR
analysis. (We addressed the similar but distinct issue of whether to
incorporate a quantitative threshold or rebuttable presumption as part
of the definition of ``significant'' in response to Comment (47),
above.)
Response: Our policy applies a conceptual framework that identifies
the relationship a portion must have to the conservation of the species
as a whole rather than a specific quantitative approach such as a
numerical threshold. As with any listing determination, analyses
applying this framework may use quantitative methods if data are
available and allow for applying appropriate methodologies. However,
quantitative data and methodologies are not required if the data
available do not allow for quantitative analyses. Section 4(b)(1)(A) of
the Act requires us to make determinations based on the best scientific
and commercial data available. Thus, we must make determinations as to
whether species are endangered species, threatened species, or neither,
regardless of whether the data allow for quantitative analyses. In
other words, we cannot defer making a determination where we lack the
ideal kinds and quantity of data. Our policy accommodates the wide
variety of situations and types of data available.
Comment (82): Several commenters requested that the Services
provide more detail on how the policy will be implemented. Requests
included providing more detail on what kinds of data will be used to
determine whether a portion is significant (genetic data, PVAs,
modeling, etc.), as well as how a variety of specific circumstances
will be addressed and evaluated.
Response: The Services must use and base our determinations on the
best scientific and commercial data available. We also must interpret
and apply the definitions of ``endangered species'' and ``threatened
species,'' including the SPR phrase, in all our determinations,
regardless of the kind and quality of the data or the specific
circumstances. However, the same kinds of information that have always
been useful in determining a species' status
[[Page 37601]]
may be relevant to evaluating the relative contribution of a portion of
its range to the viability of a species. The kinds of data include, but
are not limited to, species biology and life history, genetic data,
population-viability analyses, species distribution and abundance data,
population and metapopulation structure, threats and species response
to threats, etc. While particular kinds of data (and especially
detailed, up-to-date data and information) may be most useful, we are
required to apply the definitions of ``endangered species'' and
``threatened species'' regardless of the kind, quantity, or quality of
the data available. We cannot predict every possible circumstance or
scenario we will encounter. This policy, therefore, lays out a broad,
conceptual framework that will allow the Services to evaluate a wide
variety of circumstances. The Services have made numerous
determinations prior to this policy as to whether a species meets the
definitions of ``endangered species'' or ``threatened species.'' These
determinations span a wide variety of species and circumstances, as
well as a wide variety in the types, amount, and quality of data and
information available. We expect to encounter the same variety in the
future and will continue to apply our expertise to base our
determinations on the best scientific and commercial data available.
Comment (83): The Arizona Game and Fish Department suggested that
the policy, if approved, should ``more thoroughly describe how it would
be applied during . . . application of the Policy on the Evaluation of
Conservation Efforts (PECE) criteria.''
Response: Nothing in the SPR policy affects application of PECE or
related considerations. Of course, the status of a species throughout
an SPR can be affected by conservation efforts, as can its status
throughout all of its range.
Comment (84): Several commenters requested we provide examples for
real species.
Response: The Services have continued to publish numerous
determinations in which we apply the definitions of ``endangered
species'' and ``threatened species,'' including, as appropriate, the
SPR language in those definitions. These include 12-month findings on
petitions to list, reclassify, and delist species, as well as proposed
and final rules to list, reclassify, and delist species. The Services
have been applying an approach that is similar to this policy on a
case-by-case basis when circumstances warrant giving some consideration
to whether the species is endangered or threatened throughout an SPR.
While the definitions applied on a case-by-case basis prior to this
final policy may differ slightly from this final policy's definition of
SPR, our recent determinations generally illustrate how we would apply
the analysis framework laid out in this policy. We provide examples
below.
Example 1: FWS was petitioned to list Van Rossem's gull-billed tern
(a subspecies of gull-billed tern) and conducted a status review to
determine whether listing was warranted. In our 12-month finding (76 FR
58650, September 21, 2011), FWS determined that this species was not
endangered or threatened throughout all of its range. We next examined
the question of whether the species might be endangered throughout a
significant portion of its range. We identified two portions of the
species' breeding range that may have a greater concentration of
threats because of reductions in water levels that could increase nest
predation and make the locations less suitable as nesting habitat. We
next examined the question of whether these portions could be SPRs by
examining their contribution to the resiliency, redundancy, and
representation of the species. We determined that these two nesting
locations were not unique or biologically different from other nesting
locations. We also concluded that, even if these sites were to be
abandoned in the future, it is likely that the Van Rossem's gull-billed
tern would move and nest elsewhere because the species displays low
nest-site fidelity. Additionally, existing and potential nesting
locations are distributed along a 2,250-km (1,400-mi) stretch of the
species' range, such that the two locations, either individually or
combined, would not constitute a significant portion of the total
breeding range. We therefore concluded that these two nesting areas
were not SPRs because their contribution to the viability of the
species is not so important that the species would be in danger of
extinction without those portions. In this example, we identified
portions based on a concentration of threats but determined the
portions were not SPRs and therefore did not further examine the status
of the species in those portions.
Example 2: On November 4, 2013, NMFS published a final rule
removing the eastern distinct population segment of the Steller sea
lion from the List of Endangered and Threatened Wildlife (78 FR 66139).
After considering the status of the DPS throughout all of its range,
NMFS next considered whether any portions of the DPS qualified as SPRs.
NMFS identified as a potential SPR the southern portion of the range in
California because of previously identified concerns over performance
of rookeries in this portion. While this portion of the range has
poorer performance compared to the rest of the DPS, data indicate that
this portion is not in decline, nor does its poorer performance appear
to be affecting the recovery of the DPS elsewhere. In other words, it
does not appear to be endangered or threatened in that portion, and its
contribution to the viability of the DPS is not so important, that
without it, the DPS would be in danger of extinction now or in the
foreseeable future. NMFS also identified the California Current
Ecoregion as a potential SPR. Trend and threat information for this
portion indicate that this portion is not in danger of extinction or
likely to become so. Because NMFS determined that the California
portion was not significant, and neither the California portion nor the
California Current Ecoregion portion was endangered or threatened, NMFS
did not evaluate them further. NMFS then concluded that the DPS no
longer meets the definitions of an endangered species or threatened
species. This example illustrates the process of identifying portions.
The first portion was identified by considering information that could
indicate the species could be endangered or threatened there (poor
performance of rookeries). The second portion was identified by
considering information that could indicate that the area is important
to the conservation of the species (an ecoregion). This example also
illustrates that we treat DPSs in the same manner as species and
subspecies when applying the SPR language in our status determinations.
Comment (85): Several commenters suggested that visual aids such as
charts or diagrams would be helpful in illustrating how the policy will
be implemented.
Response: See Figures 1 and 2 in section III.F., above.
Comment (86): One commenter suggested the Services should provide
an opportunity for public comment on the potential characterization of
any portion of the range as ``significant'' for a particular species
prior to the Services making any listing or status-related
determination for the SPR. Specifically, the commenter suggested the
Services include in their policies and procedures a requirement to
publish a notice in the Federal Register prior to initiating a status
review (i.e., at the 90-day finding stage on a petition or prior to
conducting the annual candidate notice of review) and prior to any
proposed
[[Page 37602]]
listing of a species as endangered or threatened on the basis of an
SPR. At a minimum, the commenter further suggested that this advance
public notice should include mapping, identification of factors
considered, identification of all studies and information to be
considered, and an explanation as to any proposed basis for the
identification of an SPR.
Response: The commenter's suggestion is not consistent with the
requirements of the Act and is not necessary or feasible. The statute
does not require the Services to engage in a rulemaking process to
arrive at a 90-day or a 12-month finding on a listing petition. The
statute generally requires an initial determination on a petition
within 90 days of receipt, and a 12-month finding (along with any
proposal to list) within one year of receipt, following a status
review. Even if the Services were required to conduct rulemaking-style
activities as part of the review of a petition, the requirement of
relatively quick turnaround and relatively low ``may be warranted''
standard at the 90-day stage would make it wholly infeasible to try to
seek public comment on the identification of an SPR prior to the
Services completing their analysis and announcing their decision to
commence a status review. In any event, an SPR analysis is a part of
the overall analysis of whether a species is endangered or threatened
under the Act, and no need is served by pre-publishing separate
findings prior to our overall finding. Of course, if the Services
determine that any portion of the range is both significant and either
endangered or threatened and propose to list a species based on this
(or to reclassify or delist), we will publish a proposed listing rule
upon which the public will have an opportunity to comment. At that time
the public can review and respond to the explanation of the basis
developed by the agency and submit additional relevant information to
be considered in development of a final listing rule.
Comment (87): The commenter further suggested that the Services
should revise their regulations governing the petition process to
prescribe strict requirements for the petitioner to provide information
specifying and documenting an SPR. The commenter also recommended that
we modify our petition regulations to specify that the Services will do
SPR analyses only when specifically petitioned to do so and that
failure to submit the requisite level of information will result in the
petition being construed to request listing on a rangewide basis. Other
commenters requested we clarify whether petitioners will be required to
identify SPRs or whether the Services will identify them.
Response: Modifying our petition regulations is outside of the
scope of this policy. However, we agree that, if petitioners intend
that the Services should base their analysis on an SPR, the petitioners
should include as much information as they have about any potential
area of special importance so the Services can determine whether the
area may qualify as an SPR. Such petitions should include substantial
information to indicate that a particular portion may be both
significant and in danger of extinction or likely to become so. We have
emphasized that, unless there is evidence to suggest both prongs are
met, the Services need not conduct a detailed SPR analysis. However,
the Services conclude that it is not necessary to more specifically
prescribe the showing that needs to be made in a particular petition,
as the Services must evaluate each petition in context to determine if
the standard of section 4(b)(3)(A) of the Act (whether the petition
``presents substantial scientific or commercial information indicating
that the petitioned action may be warranted'') is met. In any case, we
conclude that it is preferable to retain the discretion to address SPR
issues in petitions as needed in the context of particular
circumstances, rather than create a binding rule. At the initial review
stage (i.e., development of a 90-day finding), the standard the
Services must apply is whether the petition presents substantial
information indicating that the petitioned action may be warranted. At
the 12-month finding stage, the Services have a responsibility to
interpret and apply the Act's definitions, including (if a species is
found to be neither endangered nor threatened rangewide) the SPR
language, regardless whether a petition specifically identifies any
SPRs. Thus, we will identify any SPRs as necessary and based on the
best scientific and commercial data available.
Comment (88): Some commenters suggested that the policy should more
clearly articulate that determining whether a species is endangered or
threatened in a SPR requires two separate tests and both must be met:
that the portion is ``significant,'' and that the species is endangered
or threatened throughout that portion.
Response: We have clarified this further in section III.F., above.
Comment (89): Several commenters inquired as to the continuing
relevance or functioning of an SPR, such as how a spatial area to be
``designated'' as an SPR will be identified and defined, how SPRs will
be defined and mapped, and whether areas that qualify as SPRs would be
subject to periodic review.
Response: To the extent commenters believe the Services will map or
``designate'' SPRs as entities or boundaries formalized in regulations,
they misunderstand the purpose of our interpretation of the SPR
language. Under this policy, the SPR phrase and its interpretation is
used solely to determine whether a species is an endangered species or
threatened species, pursuant to the definitions in the Act and the
requirements of section 4(a)(1) of the Act. Once we determine that a
species is an endangered species or threatened species, the SPR
language has no direct effect on implementation of the Act. If a
species is an endangered species or threatened species because of its
status throughout an SPR, the entire species is listed and the Act's
protections are applied to the entire species, not just to the SPR. The
process of listing a species does not ``designate an SPR'' for the
species. Once a species is listed, there is no formal relevance of the
SPR. Of course, consistent with current practice, the identification of
a concentration of threats in a certain portion of its range may be
relevant in a variety of contexts, such as identifying actions needed
for recovery, formulating rules under section 4(d) of the Act, and
analyzing proposed actions under section 7 of the Act. In other words,
the SPR language is an analysis tool, not an entity or a designation,
and it does not directly result in regulations or requirements specific
to the SPR, but may inform development of other measures as discussed
above. In fact, once a species is listed, periodic review of the
species' status (through 5-year reviews or petitions,
reclassifications, or delistings) will be conducted as for any species,
and the SPR interpretation will be applied independent of previous
findings. As a species' status changes over time, we expect that what
constitutes an SPR for the species may also change (for instance, if
new populations are established, portions of the range previously
identified as SPRs may contribute relatively less to the viability of
the species in the remainder of the range) and therefore will require
new analyses as the species progresses toward recovery. Threats may
also change over time and alter the basis for listing a species or
alter its status. For example, if new threats are identified that
affect the species throughout its range, it may warrant listing because
it is now threatened or endangered throughout all of its range and no
longer just in a significant portion of its range.
[[Page 37603]]
Some examples may be useful. Example 1: A species that has few
populations may be listed because it was threatened throughout most
populations, and those populations constituted an SPR (without those
populations, the remaining populations would be endangered or
threatened--even though with those populations extant, the species is
not threatened or endangered throughout all of its range). Recovery
efforts reestablished several populations, and the species recolonized
and expanded into unoccupied habitat in additional areas. The
populations that were originally considered an SPR now make up a much
smaller percentage of the total number of populations and their loss
would no longer result in the remaining populations (that are more
widespread) being likely to be in danger of extinction in the
foreseeable future. Under this scenario, the original SPR is no longer
an SPR because of the increased number of populations and expanded
species' range. The species might then be proposed for delisting even
though the threats in what had been an SPR have not abated.
Example 2: A species is threatened throughout an SPR, and the
species is therefore listed as threatened. For this species, threats
from development and land-use activities are acting primarily in the
SPR. Over time, new threats emerge (a new invasive plant is altering
habitat and outcompeting the species' primary host plant) that affect
the species throughout its entire range. We determine during a new
status review that the species is threatened throughout all of its
range. The status throughout the range is determinative, because an SPR
is relevant only where a species is neither endangered nor threatened
throughout its range. Therefore, it is no longer necessary to examine
the original SPR or any other potential SPR. The species remains listed
as threatened, but now on a different basis.
Comment (90): Several commenters, including the Arizona Game and
Fish Department and Montana Fish, Wildlife & Parks, requested we
clarify how the policy would be applied to already-listed species and
in delisting species. Some recognized that we said that ``listing''
really meant all determinations under section 4(a)(1) of the Act but
still believed more explanation would be useful.
Response: The interpretation of SPR in this policy applies to all
future determinations made under section 4(a)(1) of the Act. Section
4(a)(1) requires that we determine whether any species meets the
definitions of an ``endangered species'' or ``threatened species.''
This same process applies to all status determinations regardless of
whether we are evaluating a potential listing, or a reclassification or
delisting of an already-listed species. We will begin with first
assessing the status of a species throughout all of its range. If the
species is neither endangered nor threatened throughout its range, then
we will assess whether any portions require further examination, and if
so, ask whether the species is endangered or threatened throughout an
SPR. For example, if we are petitioned to delist a species, we would
first evaluate the status of the species rangewide. If we determine
that the species is neither endangered nor threatened throughout all of
its range, we would then examine the question of whether it might
remain endangered or threatened throughout any SPRs. This is identical
to the process we undertake in considering whether a species should be
listed.
Comment (91): Some commenters, including Montana Fish, Wildlife &
Parks, suggested that a species listed on the basis of an analysis in
an SPR must be considered for delisting once recovered in the SPR that
led to listing.
Response: We agree that significant improvement in the species'
status in the SPR would be relevant and important to considering the
species' listing status, but cannot agree with any suggestion that the
species should automatically be delisted in that situation. Once the
species is listed, the same standards and processes apply to reviewing
the listing regardless of whether the listing was based on status
throughout an SPR. Thus, it is not correct to think of a portion of the
range as being ``recovered''; the status of the species (and by
extension whether the species is ``recovered'') is assessed at the
level of the listed entity. While we might generally expect it to be
the case that a species would no longer qualify for the protections of
the Act once it is no longer facing significant threats in the area
analyzed as an SPR at the time of listing, there could be situations
where the status of the originally examined portion of the range
improves, but where other portions have become less stable (see Example
2 in our response to Comment (89), above). Since the result of listing
the species after an SPR evaluation is a rangewide listing, we would
need to consider whether the best available data at the time indicated
that the species had become endangered or threatened throughout any
other SPRs or had become endangered or threatened overall prior to
proposing to delist.
Comment (92): Several commenters, including Montana Fish, Wildlife
& Parks, asked if we could delist a species if it was recovered
throughout a significant portion of its range regardless of the basis
for the original listing.
Response: As we noted in the response to the previous comment,
determining whether a species is ``recovered'' is in reality
considering whether the species still meets the definitions of
``endangered species'' or ``threatened species.'' In evaluating whether
a species should be delisted due to recovery, we do not ask whether a
species is recovered throughout an SPR; the concept of ``recovery''
(like listing itself) is applicable only at the level of the species.
We begin by asking whether the species is an ``endangered species'' or
``threatened species'' rangewide using the same process as explained
above. We could determine that a species is neither endangered nor
threatened throughout all of its range under two circumstances: (1)
Threats throughout the range of the species have been sufficiently
ameliorated and all populations of the species are secure; or (2) some
threats to the species have been ameliorated and the species is secure
in a portion of its range. (In other words, a species cannot be
endangered or threatened throughout all of its range if it is secure in
a portion of its range; however, it still could be endangered or
threatened in another portion of its range.) If we examine the status
of a listed species rangewide and determine it is neither endangered
nor threatened throughout all of its range, we would then ask whether
it is endangered or threatened throughout an SPR. Under the first
scenario, we would likely not identify any portion for further SPR
analysis since no area is likely to be endangered or threatened (i.e.,
no remaining unaddressed threats). Under the second scenario, we would
consider whether the remaining threats cause the species to be
endangered or threatened throughout an SPR. We may find that some areas
of the species' range still experience threats, but these areas are not
SPRs. In that case, we would conclude the species does not meet the
definition of an ``endangered species'' or ``threatened species,'' and
we would propose to delist the species.
Comment (93): Several commenters suggested that the draft policy
would exacerbate the problem of the ``virtually irreversible nature''
of listings, and suggested returning to the position taken in the M-
Opinion. The Wisconsin Department of Natural Resources also opined that
the draft policy's interpretation may make it more
[[Page 37604]]
difficult for species to be delisted and their management turned over
to the States.
Response: The Services disagree. As discussed in section VI.
Effects of Policy, the Services anticipate there would be relatively
few circumstances in which the SPR language would change the outcome of
a listing or delisting determination. Furthermore, some delistings have
occurred since the Services have begun to apply an analysis consistent
with the one adopted here. For example, since the M-Opinion was
withdrawn in May of 2011, the Services have delisted, due to recovery,
the Tennessee purple coneflower (76 FR 46632, August 3, 2011), Lake
Erie watersnake (76 FR 50680, August 16, 2011), Concho watersnake (76
FR 66780, October 27, 2011), Magazine Mountain shagreen (78 FR 28513,
May 15, 2013), Morelet's crocodile (77 FR 30820, May 23, 2012), and
eastern DPS of Steller sea lion (78 FR 66139, November 4, 2013). A
number of other species have been proposed to be delisted.
Comment (94): The Arizona Game and Fish Department suggested the
Services should discuss the impact of this policy on the monitoring of
species following their removal from the Lists of Endangered and
Threatened Wildlife and Plants.
Response: This final policy will affect only future listing
determinations (including delistings and reclassifications). We do not
anticipate changing existing monitoring plans as a result of this
policy. Moreover, the process and standards for future post-delisting
monitoring will not change. We will still direct monitoring resources
first to those areas where the species had previously experienced
significant adverse impacts. Those areas will be identified in the
delisting rule. Of course, if monitoring of a delisted species leads us
to conclude that a species again warrants listing, including because of
threats in an SPR, we may initiate a new listing process for that
species.
Comment (95): The Arizona Game and Fish Department suggested that
all previous listing determinations made under the now withdrawn M-
Opinion must be reexamined. The agency appeared to be concerned that we
may convert any existing listings to rangewide listings.
Response: During the time the M-Opinion was in effect (2007-2011),
FWS made a number of listing determinations, some of which resulted in
listings and some of which ended in negative findings on listing
petitions. Most of these listings were based on information about the
status of the species throughout its range; only a handful turned on
consideration of the species' status throughout an SPR. Only two final
listing rules based on consideration of status throughout an SPR
resulted from application of the M-Opinion (concerning Northern Rocky
Mountain wolves (74 FR 15123, April 2, 2009) and Preble's meadow
jumping mouse (73 FR 39790, July 10, 2008)), and both of these have
been modified or nullified for different reasons and thus are not
subject to revision as the commenter suggests.
We do not intend to reexamine every listing determination that was
made while the M-Opinion was in effect. Regulations and policies are
generally presumed to have prospective (forward-looking) impact only.
Further, consistent with the presumption of regularity of agency
decisions, all listing determinations are presumed consistent with the
then-existing guidance. Of course, anyone may petition us to reconsider
any listing determination if there is a basis to think the result would
be different under this final policy. It is unlikely, though, that a
species that was found not to qualify for listing during the time in
which the M-Opinion was in effect would be found to meet the standards
of this policy.
L. Effects on Implementation of Other Portions of the Act
Comment (96): Some commenters urged the Services to ensure that, in
applying the policy, we use all available tools to limit application of
the statutory protections for ``endangered species'' and ``threatened
species'' only to those members of the species in the SPR that is the
basis for a listing determination. Montana Fish, Wildlife & Parks, for
example, suggested that there needs to be more emphasis on utilizing
available tools under the Act in a creative manner to provide
regulatory relief and other incentives in areas where a species is
doing well and a commitment to work with regulated entities to provide
regulatory relief.
Response: The Services are committed to working with stakeholders
to develop innovative ways to further species protection consistent
with the statute. As we explained in the preamble to the draft policy
(76 FR 76987), the Services intend to use the flexibilities of the
statute to tailor protections to those members of the species most at
risk whenever possible. Where the statute permits flexibility, the
Services will use it to promote conservation without causing
unnecessary burdens that provide no benefit to the species. However,
because the Act requires us to list and manage entire species,
subspecies, or DPSs, the Services may not always be free to craft ideal
solutions that would satisfy all stakeholders. The purposes of the Act
go beyond just recognizing where a species has already become
imperiled. The ultimate goal is to bring species to the point where the
protections are no longer needed, which means managing the listed
entity to bring the health of the entity as a whole to that point. In
some cases protecting members outside the SPR may be necessary or
important to this overall goal.
Comment (97): Several commenters (including the Florida Fish and
Wildlife Conservation Commission and Montana Fish, Wildlife & Parks)
requested that the Services revise the text of the draft policy itself
to include additional detail from the discussion in the preamble as to
the tools and methods that would be used to minimize unintended
consequences and avoid over-regulation, with reference to several
specific sections of the Act. Other commenters requested we develop
additional guidance to explain how the Services plan to use available
tools to increase the efficiency of section 7 consultations for species
listed on the basis of status throughout an SPR. Some commenters,
including the Idaho Office of Species Conservation, suggested that we
failed to give adequate consideration to the burdens that will be
caused by the policy, particularly in relation to section 7
consultations and permitting under section 10 of the Act.
Response: The role of the language in the actual policy statement
is to concisely set out the fundamental principles that constitute the
Services' interpretation of the key phrase ``significant portion of its
range.'' While we have provided discussion of issues regarding the need
for flexibility in applying other portions of the Act above, we find it
unnecessary to expand the policy statement itself to discuss these
ancillary issues. Further, we have adequately considered any additional
regulatory burdens that might result from this policy. We specifically
considered this issue in developing this policy and in setting the
threshold for SPRs. The Services expect that the policy is unlikely to
lead to many new listings on the basis of an SPR, suggesting that it
would not be a wise use of agency resources to develop detailed
guidance at this time. As explained in section VI. Effects of Policy,
where threats vary across the range of a species, we may use methods
such as programmatic consultations, low-effect HCPs, or other methods
to streamline consultation and permitting
[[Page 37605]]
procedures for areas where the species is relatively more secure or the
effects of the action are small. We expect these same analyses and
procedures to be applicable regardless of whether a species is listed
because of its status throughout an SPR or throughout all of its range.
It does not appear that developing guidance in detail for species
listed on the basis of their status throughout an SPR would be a
valuable use of our resources because all consultations are driven by
highly fact-specific considerations. If these issues in practice arise
more frequently or pose more difficulty than expected at this time, the
Services will consider developing further guidance for agency staff.
Comment (98): Some commenters requested that the Services expressly
limit designations of critical habitat for species listed on the basis
of SPR to avoid undue impacts to projects that would have effects
outside the SPR. Some suggested that the Services should adopt a ``high
threshold'' or ``rebuttable presumption'' that would limit a
designation of critical habitat to the area within the SPR that was the
basis for listing the species. Appearing to key off of the distinction
in the statutory definition between ``occupied'' and ``unoccupied''
habitat, these commenters suggested that a designation of critical
habitat should first focus on the physical and biological features (or
primary constituent elements) inside the SPR and should include areas
outside the SPR only upon a finding that the area inside the SPR would
not satisfy the purposes of critical habitat designation.
Response: All provisions governing designations of critical
habitat, including the definition in section 3(5) of the Act, must be
applied for species listed on the basis of an SPR analysis in the same
manner as for any other listed species. Thus, since a listing based on
an SPR analysis is of the entire listed entity, not just the members in
the SPR, it would be incorrect to apply the provisions governing
habitat occupied at the time of listing to only the areas within the
SPR and ignore other areas where members of the listed entity are
present. Also, it would not be appropriate to categorically or
presumptively foreclose designation of areas outside the SPR, as we
discussed in the preamble to the draft policy (76 FR 76987, pp. 77003-
77004.). In light of the strong conservation purpose of critical
habitat and the definition of ``conservation'' as meaning all tools
useful to bring a species to the point where the protections of the Act
are no longer needed, we must consider the role all suitable habitat
can play in supporting species' recovery. However, while we cannot
agree that areas outside the SPR should be disqualified from the scope
of areas that may meet the definition of ``critical habitat,'' we note
that the impacts analysis and discretionary exclusions process of
section 4(b)(2) of the Act are key mechanisms for tailoring
designations to the areas where conservation benefits are greatest and
not outweighed by other impacts. As we have indicated, we would expect
the Secretary to consider using his or her discretion to tailor
designations where threats are present in only a portion of the range.
Comment (99): Some commenters suggested that section 4(c)(1) of the
Act provides a basis upon which to limit the scope of critical habitat
designations to the areas within an SPR. They argued that the text of
section 4(c)(1) should be interpreted as a substantive grant of
authority to the Services to tailor a critical habitat designation to
those areas within the SPR.
Response: Section 4(c)(1) of the Act simply has no substantive
bearing on the scope of critical habitat designations. As we have
explained, we adopt the view of the courts that have recently held that
section 4(c)(1) is meant to serve an informational purpose rather than
substantively constraining the scope of either listings or, by
extension, critical habitat designations. Further, even if section
4(c)(1) had substantive meaning, the commenters appear to misread the
last clause of section 4(c)(1), which does not refer to ``such
portion'' but refers to ``such range.''
Comment (100): One commenter asked that the Services confirm they
will exclude under section 4(b)(2) of the Act those areas where
benefits of exclusion outweigh benefits of inclusion, except where
exclusion would result in extinction of the species. (Another commenter
acknowledged that section 4(b)(2) ``enables'' the Services to exclude
areas rather than requires them.) Another suggested that there could
never be a circumstance where failure to include an area could result
in extinction of the species (which is the only circumstance in which
section 4(b)(2) prohibits excluding a specific area) and that the net
benefits analysis will likely always lean in favor of exclusion.
Response: We agree, as we have indicated in our draft policy (76 FR
76987, p. 77003) and in our response to Comment (98), above, that our
authority to exclude areas from critical habitat designations may be an
important tool in tailoring protections for a species listed because of
its status throughout an SPR. However, it is important to understand
that the application of the authority to exclude areas under section
4(b)(2) of the Act is discretionary rather than mandatory. While the
Secretary must ``consider'' economic and other relevant impacts prior
to designating, he or she is not required to undertake a particular
method of analysis and is not required to weigh benefits of exclusion
against benefits of inclusion. Exclusions under section 4(b)(2) are
always discretionary (see Building Industry Association (BIA) v. DOC,
No. C 11-4118 PJH, 2012 WL 6002511, *5-7 (N.D. Cal. Nov. 30, 2012)
(green sturgeon)).
Comment (101): One commenter suggested that the Services should
include a statement of intent to limit critical habitat designations to
areas within the SPR in any new policy regarding application of section
4(b)(2) and perhaps in the handbook.
Response: We clarified above (e.g., response to Comment (100)) the
role of section 4(b)(2) of the Act in appropriately tailoring critical
habitat designations. At this time we do not see a need to separately
address these issues through other policies or documents not within the
scope of the policy being adopted. If in practice there are more
listings on the basis of SPR than we currently expect, such that these
issues arise frequently or otherwise need further clarification, we may
consider promulgating additional guidance.
Comment (102): One commenter suggested that a February 28, 2012,
Presidential Memorandum addressing FWS' designation of critical habitat
for the northern spotted owl directed the Services to exclude private
lands from all critical habitat designations.
Response: The commenter misconstrues the scope and effect of the
cited memorandum. In any event, these issues are beyond the scope of
the present policy, which is focused on the interpretation of the
``significant portion of its range'' language in the definitions of
``endangered species'' and ``threatened species.'' We have separately
amended the regulations governing the designation of critical habitat
(50 CFR 424.19) to respond to the memorandum (78 FR 53058, August 28,
2013).
Comment (103): Several commenters (including the Alaska Department
of Fish and Game and Southern Nevada Water Authority) expressed
concerns about how this policy was intended to influence the conduct of
interagency consultation under section 7(a)(2) of the Act. Some appear
to believe that the Services intend to categorically consider any
action that would have an adverse
[[Page 37606]]
effect on members in an SPR to be likely to jeopardize the listed
species' continued existence. For example, the Alaska Department of
Fish and Game suggested the Services need to explain, ``whether a
jeopardy determination would differ if the proposed project affected
species outside the SPR as opposed to within the SPR. It also does not
address whether the Services would be more likely to make a `no
jeopardy' finding if a project is conducted outside of the SPR with no
direct impact on the individuals within the SPR.''
Response: We must make determinations under section 7(a)(2) of the
Act based on a review of the best available scientific and commercial
data assessed at the level of the entire listed entity (species/
subspecies/DPS). It has always been the case that impacts to
particularly sensitive or critical members of the listed entity may be
found to appreciably reduce the likelihood of survival or recovery of
the entire species, such as if those members are a critical breeding
population. This is very fact-specific. This policy does not establish
a presumption that a proposed Federal action that would adversely
affect the members in an SPR will automatically result in a jeopardy
determination under section 7(a)(2). Nor does this policy suggest that
impacts to members that are not located within the SPR will
automatically be found not likely to jeopardize the species. We will
analyze each situation on its own facts.
Comment (104): The Alaska Department of Fish and Game suggested
that one of the methods available to the Services to streamline
consultation would be to use section 4(d) rules at the listing stage to
tailor protections, and requested the Services to explain how the draft
policy would influence issuance of section 4(d) rules.
Response: As discussed further in the section of this document
discussing rules issued under section 4(d) of the Act (see section
VI.B., below), we agree that the ability to issue section 4(d) rules to
tailor protections for threatened species may be particularly important
for species listed on the basis of an SPR analysis. Thus, where
appropriate, we will consider whether certain activities in certain
areas can be exempted from the take prohibition of section 9 of the Act
even where those prohibitions are generally being applied for that
species. However, section 7(a)(2) creates independent obligations on
Federal agencies to avoid authorizing, funding, or carrying out actions
that would be likely to appreciably reduce the likelihood of survival
or recovery of listed species or to destroy or adversely modify their
critical habitat. Thus, even where the Services have tailored take
protections for threatened species, this would not relieve Federal
agencies of their consultation obligations.
Comment (105): One commenter seemed to question whether NMFS or FWS
would engage in ``consultation'' with foreign countries in the event
that a species is listed rangewide even though only a portion of its
range (and perhaps only insignificant portions) falls within the United
States, its territories, or its Exclusive Economic Zone (EEZ). The
commenter further suggested that the lack of ability to apply
protections outside the United States should influence how the Services
apply this policy in reaching listing determinations.
Response: Section 7(a)(2) of the Act does not apply to foreign
governments, so we do not engage in ``consultations'' with foreign
nations in the sense that that term is used in connection with section
7. However, we inform affected countries of potential listings and seek
information in return. We also provide some technical assistance after
listing when requested and feasible. In any event, our limited ability
to regulate the species outside of the United States does not factor
into either the development of this policy or individual listing
determinations. Listing determinations must be based solely on the best
available scientific and commercial data after taking into account
certain factors as specified in section 4 of the Act. Our authority to
list species worldwide has been an acknowledged feature of the Act and
its precursors, without regard to our limited ability to apply the
protections of the Act outside of the United States, its territories,
its EEZ, and on the high seas. This final SPR policy will in no way
affect the current framework.
Comment (106): Some commenters (including the Governor of Wyoming
and Alaska Department of Fish and Game) suggest that the Services
should choose to list species as threatened whenever possible, instead
of basing a listing on an endangered status inside an SPR, so that the
Services may take advantage of the ability to promulgate rules under
section 4(d) of the Act.
Response: We have revised the definition of ``significant'' in this
final policy. Under the new definition, it will not be possible for a
species to be simultaneously classified as threatened throughout its
range and endangered throughout an SPR. Thus, the commenters'
suggestion is no longer relevant. Of course, where a species is listed
as threatened, each agency will continue its practice of considering
whether a rule promulgated under section 4(d) of the Act would be
appropriate.
Comment (107): At least one commenter suggested that the Services
should clarify in the final policy that section 4(d) has two distinct
provisions, and that rules under the first requires a ``necessary and
advisable'' finding, while rules under the second (determining whether
to apply the take prohibitions) do not.
Response: While we acknowledge that this has been recognized by
courts as a permissible reading of section 4(d) of the Act, most
recently in the polar bear litigation, it is beyond the scope of the
SPR policy to construe section 4(d) at this level of detail (see In Re
Polar Bear Endangered Species Act Listing And Sec. 4(D) Rule
Litigation, 818 F.Supp.2d 214, 228 (D.D.C. 2011)).
Comment (108): The Governor of Wyoming stated that the Act's
``policy reform needs to address implementing laws particularly prone
to litigation.''
Response: This policy is an attempt to address an issue that has
frequently led to litigation. It is beyond the scope of the current
effort to comprehensively address other areas of the Act that could
benefit from reform.
Comment (109): The Arizona Game and Fish Department suggests that
the policy, if approved, should ``more thoroughly describe how it would
be applied during development of Recovery Plans.''
Response: As discussed in section III.F., above, we reiterate that
we anticipate recovery planning to focus first on ameliorating threats
in the SPR. This is consistent with current practice--our traditional
and reasonable approach, even for species not listed on the basis of an
SPR, has been to focus on the areas where members face greatest peril.
However, members of the species outside the SPR should not be ignored
in planning for overall species conservation and recovery.
Comment (110): One commenter suggested the agencies need to explain
how implementation of the SPR policy can be harmonized with the
candidate-review process and the process to implement FWS' settlements
with WildEarth Guardians and the Center for Biological Diversity.
Response: In reviewing whether a species is a candidate (or should
be removed from the candidate list), FWS considers the same definitions
of ``endangered species'' and ``threatened species,'' including the SPR
phrase, as we would for a proposed listing determination or any other
status review. As candidate species are reviewed for either proposed
listing or for removal from the candidate list as a
[[Page 37607]]
result of conservation actions or changed status, FWS will apply the
definitions of ``endangered species'' and ``threatened species'' using
the same process we have outlined in section III.F., above. If FWS
determines a candidate species is not currently endangered or
threatened throughout all of its range, we will consider whether there
are any portions that may be both (1) significant and (2) endangered or
threatened. If the species is endangered or threatened throughout an
SPR, it would remain a candidate or be proposed for listing. If it is
not currently endangered or threatened throughout all of its range and
it is also not endangered or threatened throughout any SPR, then FWS
would remove the species from the candidate list. This process will
apply to all FWS determinations, regardless of any settlement
agreements to complete such determinations--settlement agreements
require that we make a determination by a date certain, but do not
alter the standards the Services must apply to those determinations.
Comment (111): One commenter suggested that FWS should give SPR
candidates a low priority under its listing priority guidelines, and
that the Services should make greater use of their authority to make
warranted-but-precluded findings.
Response: FWS follows the current listing priority guidance (48 FR
43098, September 21, 1983) for assigning priorities to listing actions
in order to make the most appropriate use of the limited resources
available to implement the Act. The priority of a species depends on
the magnitude of threats, the imminence of threats, and the taxonomic
distinctness of the species (monotypic genus, species, or subspecies or
DPS). Under this system, FWS assigns a ranking to a candidate species
at the level of the entity considered for listing (species, subspecies,
or DPS). FWS will apply this system to any species that is a candidate
because of its endangered or threatened status throughout an SPR.
Because the entity that would be listed is the entire species (not just
the SPR), FWS will determine the ranking with respect to the species as
a whole. In other words, FWS will consider the magnitude and imminence
of threats to the entire species, not just the SPR. It is likely that a
species that is a candidate because it is endangered or threatened
throughout an SPR will not be experiencing the same level of threats
throughout its range, or will not be experiencing threats that are
currently acting on the entire range of the species. Thus, such a
candidate may be ranked relatively lowly based on magnitude and
imminence of threats. In other words, the current system, while not
explicitly addressing ranking of a species that is a candidate because
it is endangered or threatened throughout an SPR, allows for
considering differences in the magnitude and imminence of threats that
are likely to occur between species that are endangered or threatened
throughout all their range and species that are endangered or
threatened throughout an SPR.
We noted that NMFS' definition of ``candidate species'' differs
from that of FWS, and therefore the language above applies only to FWS.
NMFS' candidate species are those petitioned species that are actively
being considered for listing as endangered or threatened under the Act,
as well as those species for which NMFS has initiated a status review
that it has announced in the Federal Register (69 FR 19975, April 15,
2004; 71 FR 61022, October 17, 2006).
With regard to our authority to make warranted-but-precluded
findings, the Services can only make those findings to the extent that
prioritization of proposals and available resources allow, and
expeditious progress on adding to and removing species from the Lists
of Endangered and Threatened Wildlife and Plants can be demonstrated.
To the extent that a species that is a FWS candidate because it is
endangered or threatened throughout an SPR will tend to have lower
priority rankings than other species, it may be more likely that FWS
would make a warranted-but-precluding finding for it.
M. Procedural Requirements and Compliance With Laws
Comment (112): Several commenters stated that the SPR policy is a
major Federal action and, as such, the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) requires the preparation of an
environmental impact statement.
Response: We conducted an environment assessment, which concluded
with a finding of no significant impact (FONSI). Under NEPA, an
environmental impact statement is not required. See the discussion of
NEPA under VII. Required Determinations, below, and in the FONSI.
Comment (113): Several commenters stated that the required
determinations (explaining compliance with various procedural
requirements imposed by statutes and executive orders) in the Federal
Register notice announcing the draft policy were inadequate.
Response: We disagree. Specific criticisms are addressed
individually below.
Comment (114): One commenter suggested that the policy was contrary
to Executive Order 13563.
Response: We disagree. This is not a circumstance in which the
Secretaries have complete discretion delegated by Congress as to the
scope or substance of regulation. Here, we have determined that the
most defensible legal interpretation of the Act is the one set forth in
this policy. Nothing in the Executive Order suggests that agencies
should take legally unsound positions to reduce regulation.
Comment (115): One commenter stated that we misrepresented the
effect of the policy on small entities. The commenter asserted that the
policy will expand listings and require small businesses to get
incidental take permits. The commenter further argued that the Services
have no basis for asserting that they are the only entities affected by
the draft policy. Similar comments were made with respect to State and
Tribal governments, and local governments bear the burden of section 7
consultation on public works projects that may affect listed species.
Another commenter stated that the draft policy would have resulted in
gray wolves remaining listed in Montana and Wyoming, which would have
placed unreasonable burdens on small businesses.
Response: The discussion of small-business impacts in the draft
policy did not assert that no small businesses would be affected;
rather, it concluded that no small businesses would be directly
regulated. The draft policy went on to explain that we predict that few
small entities, including governments, will even be affected because
the policy is likely to result in only a small number of additional
listings (even when compared to no implementation of the SPR language
at all, which is not a legally sound option). As discussed below in
section VII.B., a regulatory flexibility analysis is only required if a
Federal action directly regulates small entities. The Services' current
understanding is that this position is supported by existing case law
regarding the certification requirements under the Regulatory
Flexibility Act (RFA), the Small Business Regulatory Enforcement
Fairness Act (SBREFA), and SBA's handbook, ``A guide for Government
Agencies: How To Comply With the Regulatory Flexibility Act (2003).
However, it is the current practice of the Services to assess, to the
extent practicable, these potential impacts if sufficient data are
available, whether or not this analysis is believed by the Services to
be strictly required by the RFA. In addition, we noted
[[Page 37608]]
elsewhere in the draft policy that where a species is listed as
threatened, the take prohibitions may be tailored under section 4(d) of
the Act so as not to apply throughout its range. Finally, contrary to
the assertion of one commenter, if the draft policy had been applied to
the Northern Rocky Mountain DPS of gray wolves in 2009, it is not clear
what the result would have been. In any case, that point is moot due to
subsequent congressional action.
Comment (116): One commenter asserted our conclusion that the draft
policy would not have significant takings implications is incorrect.
According to the commenter, the examples of delta smelt, northern
spotted owl, and others demonstrate that the policy would present a
barrier to all reasonable and beneficial use of private property
affected by listings that result from the policy.
Response: We stand by our analysis in the draft policy. We are
unaware of any court having found that a listing under the Act imposes
a taking under the Fifth Amendment of the Constitution. Therefore, even
to the extent that this policy leads to the listing of a species that
would not otherwise be listed, this policy will not cause a taking
under the Fifth Amendment. See our statement below under section VII.D.
Comment (117): One commenter asserted that we misstated the draft
policy's federalism implications and that the policy would turn the Act
into a massive land-use and zoning program administered by the Federal
Government, obviating State authority. Another commenter asserted that
our federalism conclusions are incorrect because listing determinations
have great impacts on States and local communities, and the policy will
create a disincentive on proactive State conservation.
Response: We disagree. In some circumstances, listing
determinations can have impacts on States and local communities, but,
as discussed elsewhere, we predict that relatively few listing
decisions will turn on application of this policy, so this policy is
likely only in rare circumstances to have impacts on States and local
communities. In any case, as we stated in the draft policy, any impacts
would not be ``substantial, direct effects,'' the threshold under
Executive Order 13132 (Federalism). Moreover, in no case does the Act,
with or without this policy, supplant State authority to regulate land
use or zoning.
Comment (118): One commenter asserted that we misstate the policy's
effect on energy supplies, distribution, or use, and cited the example
of proposed energy regulations adopted by Bureau of Land Management in
anticipation of protection of the greater sage-grouse.
Response: We disagree. Although listing species under the Act can
indirectly affect energy, as discussed elsewhere, we predict that
relatively few listing decisions will turn on application of this
policy. See our statement below under section VII.J.
Comment (119): One commenter suggested that we add a discussion of
how we will incorporate the Information Quality Act (IQA; Pub. L. 106-
554) and presidential directives into the process for evaluating
species under the SPR policy.
Response: The Services, in accordance with our July 1, 1994, peer
review policy (59 FR 34270) and the Office of Management and Budget's
December 16, 2004, Final Information Quality Bulletin for Peer Review,
solicit independent scientific review of the information and analyses
contained in our proposed listing determinations under the Act. This
review usually occurs concurrently with the public comment period for
the proposed action. Peer review would include consideration of the
adequacy of the data relied on, the analyses, and the conclusions
drawn, including any analyses of potential SPRs. In addition to
conducting peer review where appropriate, the Services conduct pre-
dissemination review of information to ensure compliance with
applicable Information Quality Act guidelines. The Services will follow
the same procedures and policies for peer review of influential
scientific documents and other supporting information for all listing
determinations, including those that may be based on a species' status
throughout an SPR. This SPR policy does not alter those procedures and
the Services are committed to conducting peer review and pre-
dissemination review for all determinations as part of the process of
ensuring our decisions are based on the best scientific and commercial
data available.
Comment (120): Colorado Parks and Wildlife asserted that the draft
policy is inconsistent with the 1994 Interagency Cooperative Policy
Regarding the Role of State Agencies in Endangered Species Act
Activities (59 FR 34274, July 1, 1994).
Response: The 1994 policy referred to by the commenter provides
guidance on how we will involve the States in prelisting, listing,
section 7 consultation, habitat conservation planning, and recovery.
The 1994 policy requires us to utilize the expertise and solicit
information from the States, and to provide notification to the States
regarding particular prelisting and listing actions. This final SPR
policy is not a particular prelisting or listing action. Nonetheless,
the SPR policy will apply to those actions, and we will continue to
implement the 1994 policy by notifying the States of those actions.
Additionally, as noted in our response to Comment (5), we have been in
close contact with the Joint Task Force concerning this issue.
Comment (121): One commenter asserted that we must complete a
comprehensive evaluation of the costs that will be caused by the draft
policy, including consideration of small businesses.
Response: We completed all required analyses; see section VII.
Required Determinations, below.
Comment (122): Several commenters asserted that we should be
engaged in Administrative Procedure Act (APA; 5 U.S.C. chapter 5,
subchapter II) legislative rulemaking (or ``full notice and comment
rulemaking''), not adopting a ``policy.'' They further commented that
the policy will have the effect of modifying the existing regulations,
and requires a revision of the Code of Federal Regulations.
Response: Labeling a document a ``policy'' or choosing not to
include it in the Code of Federal Regulations is not inconsistent with
APA rulemaking. In fact, in promulgating this policy, the Services have
purposefully used the processes required for APA rules, including
public notice of and opportunity for comment on the draft policy, even
if they may not have been required, in order to ensure full compliance
with the APA. Moreover, the Services have indicated that we intend to
be bound by the policy. Thus, the Services are effectively treating
this policy as an APA rulemaking. We note that several of these
comments recommended ``formal'' APA rulemaking. As ``formal
rulemaking'' is a technical term for a rare, trial-like proceeding
required by statutes that require rules to be made ``on the record
after opportunity for an agency hearing,'' 5 U.S.C. 553(c), we assume
that these were references to ``informal rulemaking'' under 5 U.S.C.
553 (commonly referred to as notice-and-comment rulemaking).
Comment (123): One commenter asserted that the draft policy is
inconsistent with 50 CFR 424.10, which states that the Secretary may
list species ``only in accordance with the procedures of [part 424]''
and stated that listing a species like the western snowy plover
(currently listed as a threatened species) as an endangered species if
[[Page 37609]]
FWS determines that it is endangered throughout a significant portion
of its range would violate the express provisions of 50 CFR 424.10.
Response: Nothing in the policy is inconsistent with the current
regulations, as the current regulations do not elaborate on the
statutory definitions of ``endangered species'' and threatened
species,'' and, in particular, are silent as to the meaning or
application of ``significant portion of its range.'' The policy merely
clarifies how we will implement the statute under the current
regulations. Therefore, no revision to the regulations is necessary. In
any case, under the final policy, we could not determine that a species
that is threatened throughout all of its range, like the western snowy
plover, is endangered throughout an SPR.
V. Policy
Consequences of a species being endangered or threatened throughout
a significant portion of its range:
The phrase ``significant portion of its range'' in the Act's
definitions of ``endangered species'' and ``threatened species''
provides an independent basis for listing. Thus, there are two
situations (or factual bases) under which a species would qualify for
listing: a species may be endangered or threatened throughout all of
its range or a species may be endangered or threatened throughout only
a significant portion of its range.
If a species is found to be endangered or threatened throughout
only a significant portion of its range, the entire species is listed
as endangered or threatened, respectively, and the Act's protections
apply to all individuals of the species wherever found.
Significant: A portion of the range of a species is ``significant''
if the species is not currently endangered or threatened throughout 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.
Range: The range of a species is considered to be the general
geographical area within which that species can be found at the time
FWS or NMFS makes any particular status determination. This range
includes those areas used throughout all or part of the species' life
cycle, even if they are not used regularly (e.g., seasonal habitats).
Lost historical range is relevant to the analysis of the status of the
species, but it cannot constitute a significant portion of a species'
range.
Reconciling SPR with DPS authority: If the species is endangered or
threatened throughout a significant portion of its range, and the
population in that significant portion is a valid DPS, we will list the
DPS rather than the entire taxonomic species or subspecies.
VI. Effects of Policy
This policy's interpretation of the ``significant portion of its
range'' language in the Act's definitions of ``endangered species'' and
``threatened species'' provides a standard for determining whether a
species meets the definitions of ``endangered species'' or ``threatened
species.'' The only direct effect of the policy will be to classify as
``significant'' (or not) portions of the range of a species under
consideration for listing, delisting, or reclassification. More uniform
application of the Act's definitions of ``endangered species'' and
``threatened species'' will allow the Services, various other
government agencies, private individuals and organizations, and other
interested or concerned parties to better judge and concentrate their
efforts toward the conservation of biological resources vulnerable to
extinction.
Application of the policy may result in the Services listing and
protecting, throughout their ranges, species that previously we either
would not have listed or would have listed in only portions of their
ranges. However, this result will occur only under a limited set of
circumstances. Under most circumstances, we anticipate that the
outcomes of our status determinations with or without the policy will
be the same. This comparison is true for both the period prior to the
M-Opinion, and the period during which FWS implemented the M-Opinion.
The primary difference when compared to the M-Opinion is that a species
will be listed throughout all of its range under this policy. Another
key difference is that, in implementing the M-Opinion on a case-by-case
basis, FWS generally interpreted ``significant'' as having a relatively
lower threshold (a portion only had to meaningfully contribute to the
viability of the whole species). FWS's experience with implementing the
M-Opinion suggests that listings based on application of this policy
will be relatively uncommon. During the time that the M-Opinion was in
effect, between March 2007 and May 2011, FWS determined that a species
should be listed based on its status throughout a significant portion
of its range only five times. Under this policy, in those instances
where we list a species because of its status throughout a significant
portion of its range, protections will be applied throughout the
species' range, rather than just in the portion. This outcome is a
permissible interpretation of the statute, and it reflects the policy
views of the Departments of the Interior and Commerce.
Listing a species when it is endangered or threatened throughout a
``significant portion of its range'' before it is endangered or
threatened throughout all its range may allow the Services to protect
and conserve species and the ecosystems upon which they depend before
large-scale decline occurs throughout the entire range of the species.
This may allow protection and recovery of declining organisms in a more
timely and less costly manner, and on a smaller scale than the more
costly and extensive efforts that might be needed to recover a species
that has reached a point that it has become endangered or threatened
throughout all its range.
Once we determine that a species is endangered or threatened, the
provisions of the Act are applied in a straightforward manner,
regardless of whether the species was listed because it is endangered
or threatened throughout all its range or only throughout a significant
portion of its range.
A. Designation of Critical Habitat
If a species is listed because it is endangered or threatened
throughout a significant portion of its range, the Services will
designate critical habitat for the species (within areas under the
jurisdiction of the United States) to the maximum extent prudent and
determinable. We will use the same process for designating critical
habitat for species regardless of whether they are listed because they
are endangered or threatened throughout a significant portion of their
range or because they are endangered or threatened throughout all of
their range. In either circumstance, we will designate all areas that
meet the definition of ``critical habitat'' (unless excluded pursuant
to section 4(b)(2) of the Act). ``Critical habitat'' includes certain
``specific areas within the geographical area occupied by the species,
at the time it is listed'' and certain ``specific areas outside the
geographic area occupied by the species at the time it is listed'' (16
U.S.C. 1532(5)(A)). Thus, critical habitat designations may include
areas within the SPR, areas outside the SPR occupied by the species,
and areas that are both outside the SPR and outside the area occupied
by the species at the time of listing, as appropriate. If a species is
listed, however, as a result of threats throughout a significant
portion of its range, the designation of critical habitat
[[Page 37610]]
may tend to focus on that portion of its range. For example, with
respect to portions of the range of the species not facing relevant
threats, the Secretary may find that the benefits of excluding an area
from designation outweigh the benefits of specifying the area as
critical habitat, which may lead to an exclusion under section 4(b)(2)
of the Act.
B. Rules Promulgated Under Section 4(d) of the Act
Determining that a species is threatened throughout a significant
portion of its range will result in the threatened status being applied
to the entire range of the species. When a species is listed as
threatened, section 4(d) of the Act allows us to issue regulations
``necessary and advisable to provide for the conservation'' of the
species. This provision allows us to tailor regulations to the needs of
the species. When a species is listed as threatened because of its
status throughout an SPR, we will consider the development of a section
4(d) rule to provide regulatory flexibility and to ensure that we apply
the prohibitions of the Act where appropriate.
C. Recovery Planning and Implementation
Regardless of whether a species is listed because it is endangered
or threatened throughout all of its range, or because it is endangered
or threatened throughout only a significant portion of its range, the
goal of recovery planning and implementation is to bring the species to
the point at which it no longer needs the protections of the Act.
Recovery plans must, to the maximum extent practicable, include site-
specific management actions and measurable, objective criteria for
determining the point at which the species no longer meets the
definition of an ``endangered species'' or a ``threatened species''
(see 16 U.S.C. 1533(f)(1)(B). In other words, the recovery plan
predicts that when those measurable, objective criteria are met, the
species would not be likely to become an endangered species in the
foreseeable future either throughout all of its range or throughout a
significant portion of its range. As with recovery planning and
implementation for species that are endangered or threatened throughout
all of their ranges, a variety of actions may be necessary to recover
species that are endangered or threatened throughout an SPR. Recovery
actions should focus on removing threats to the species, and are thus
likely to be focused on those areas where threats have been identified.
However, recovery efforts are not constrained to just the significant
portion of the range throughout which the species was originally
determined to be endangered or threatened, and may include recovery
actions outside the SPR, or even outside the current range of the
species. For example, reintroducing a species to parts of its
historical range outside the SPR may increase the species' redundancy
and resiliency such that the SPR no longer meets the policy's standard
for ``significant'' (i.e., loss of the species in the SPR would no
longer cause the remainder to become endangered or threatened).
D. Sections 7, 9, and 10 of the Act
Regardless of whether a species is listed because it is endangered
or threatened throughout all of its range, or because it is endangered
or threatened throughout only a significant portion of its range, the
provisions of the Act apply to the entire species. A Federal agency is
required to consult with FWS or NMFS under the jeopardy standard of
section 7 of the Act if its actions may affect an endangered or
threatened species anywhere in its range. Jeopardy analyses will be
conducted at the scale of the species as a whole. Where threats vary
across the range of a species, we may streamline consultation processes
in areas where the species is more secure. We note that threats,
population trends, and relative importance to recovery commonly vary
across the range for many species, especially as recovery efforts
progress. The Services routinely account for this variation in our
consultations. We expect to apply the same approach for species listed
because they are endangered or threatened throughout only significant
portions of their ranges. Similarly, analyses for issuing permits and
exemptions under section 10 of the Act will apply throughout the
species' range, and we will use our expertise to streamline the
processes and apply the appropriate level of protection for the areas
under consideration. In the same way, even if a species is listed
because it is endangered or threatened throughout a significant portion
of its range, the prohibitions under section 9 of the Act will apply
throughout the species' range for endangered species, and as
established by rules promulgated pursuant to section 4(d) of the Act
for species listed as threatened.
VII. Required Determinations
A. Regulatory Planning and Review (E.O.s 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant regulations. OIRA has determined that this
policy is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this policy in a manner consistent
with these requirements.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. We are certifying that this policy will not have a
significant economic effect on a substantial number of small entities.
The following discussion explains our rationale.
This policy establishes binding requirements for NMFS and FWS in
making listing determinations under the Endangered Species Act. NMFS
and FWS will apply this policy in determining whether a species meets
the Act's definitions of ``endangered species'' or ``threatened
species.'' However, based on agency experience, we predict application
of this policy will affect our determinations in only a limited number
of circumstances,
[[Page 37611]]
resulting in only a small number of additional species listed under the
Act and application of the Act's protective regulations. Moreover, a
regulatory flexibility analysis is only required if a Federal action
directly regulates small entities; it is not sufficient that the action
merely affects a small entity in some indirect manner. The Services'
current understanding is that this position is supported by existing
case law regarding the certification requirements under the Regulatory
Flexibility Act (RFA), the Small Business Regulatory Enforcement
Fairness Act (SBREFA), and SBA's handbook, ``A guide for Government
Agencies: How To Comply With the Regulatory Flexibility Act (2003).
However, it is the current practice of the Services to assess, to the
extent practicable, these potential impacts if sufficient data are
available, whether or not this analysis is believed by the Services to
be strictly required by the RFA.
We cannot reasonably predict those species for which we will
receive petitions to list, delist, or reclassify, or whether a species'
specific circumstances would result in us listing a species based on
its status throughout an SPR. We, therefore, cannot predict which
entities (other than the Services) could even potentially be affected,
much less directly regulated, by listing a species as endangered or
threatened based on its status throughout an SPR or the extent of those
potential impacts. Nonetheless, and given the reasons discussed in this
document under section VI. Effects of Policy and our experience
implementing the Act, we expect that few, if any, entities would be
indirectly affected in any way, and none would be directly regulated.
Moreover, NMFS and FWS are the only entities that are bound, and
therefore directly regulated, by this policy, and they are not small
entities under the Regulatory Flexibility Act. As discussed above, no
other entities are directly regulated by this policy. Therefore, this
policy will not have a significant economic effect on a substantial
number of small entities.
C. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
On the basis of information contained in the B. Regulatory
Flexibility Act section, above, this policy will not ``significantly or
uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this
policy will not impose a cost of $100 million or more in any given year
on local or State governments or private entities. A Small Government
Agency Plan is not required. As explained above, small governments will
not be affected because the policy would not place additional
requirements on any city, county, or other local municipalities.
This policy will not produce a Federal mandate on State, local, or
tribal governments or the private sector of $100 million or greater in
any year; that is, it is not a ``significant regulatory action''' under
the Unfunded Mandates Reform Act. This policy imposes no obligations on
State, local, or tribal governments.
D. Takings (E.O. 12630)
In accordance with Executive Order 12630, this policy will not have
significant takings implications. This policy will not pertain to
``taking'' of private property interests, nor does it directly affect
private property. A takings implication assessment is not required
because this policy (1) will not effectively compel a property owner to
suffer a physical invasion of property and (2) will not deny all
economically beneficial or productive use of the land or aquatic
resources. This policy will substantially advance a legitimate
government interest (conservation and recovery of endangered and
threatened species) and will not present a barrier to all reasonable
and expected beneficial use of private property.
E. Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this policy will have significant Federalism effects and have
determined that a federalism summary impact statement is not required.
This policy pertains only to determinations to list, delist, or
reclassify species under section 4 of the Act, and will not have
substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government.
F. Civil Justice Reform (E.O. 12988)
This policy does not unduly burden the judicial system and meets
the applicable standards provided in sections 3(a) and 3(b)(2) of the
Executive Order 12988. This policy clarifies how the Services will make
determinations to list, delist, and reclassify species under section 4
of the Act.
G. Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951, May 4, 1994), Executive Order 13175, the
Department of the Interior Manual Chapter 512 DM 2, and the Department
of Commerce American Indian and Alaska Native Policy (March 30, 1995),
we have considered possible effects on federally recognized Indian
tribes and have determined that there are no potential adverse effects
of issuing this policy. As noted above, we cannot reasonably predict
those species for which we will receive petitions to list, delist, or
reclassify, or whether a species' specific circumstances would result
in us listing a species based on its status throughout an SPR. We,
therefore, cannot predict which entities, including federally
recognized Indian tribes, will be affected by listing a species as
endangered or threatened based on its status throughout an SPR or the
extent of those impacts. Given our experience implementing the Act, we
predict that few if any entities, including tribes, will be affected.
However, the Act requires that we give notice of and seek comment on
any proposal to list, delist, or reclassify any species prior to making
a final decision. Our proposed rules to list, delist, or reclassify
species indicate the types of activities that may be affected by
resulting regulatory requirements of the Act. Any potentially affected
federally recognized Indian tribes would be notified of a proposed
determination and given the opportunity to review and comment on the
proposed rules.
H. Paperwork Reduction Act
This policy does not contain any new collections of information
that require approval by Office of Management and Budget (OMB) under
the Paperwork Reduction Act. This policy will not impose recordkeeping
or reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
I. National Environmental Policy Act
We have analyzed this policy in accordance with the criteria of the
National Environmental Policy Act (NEPA), the Department of the
Interior Manual (318 DM 2.2(g) and 6.3(D)), and National Oceanic and
Atmospheric
[[Page 37612]]
Administration (NOAA) Administrative Order 216-6, and prepared an
environmental assessment documenting our analysis. The environmental
assessment presents the purpose of and need for this SPR policy, the
proposed action and alternatives, and an evaluation of the effects of
the alternatives under the requirements of NEPA, as implemented by the
Council on Environmental Quality regulations (40 CFR 1500 et seq.) and
according to the Department of the Interior's NEPA procedures. In our
analysis of the probable environmental impacts of this SPR policy on
the human environment, we have determined that there will be no
significant impacts or effects caused by this SPR policy. The
environmental assessment, as well as the finding of no significant
impact (FONSI), is available for public inspection at http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0031.
J. Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking actions that significantly affect
energy supply, distribution, and use. This policy is not expected to
affect energy supplies, distribution, and use. Therefore, this action
is a not a significant energy action, and no Statement of Energy
Effects is required.
References Cited
A complete list of all references cited in this document is
available on the Internet at http://www.regulations.gov under Docket
Number FWS-R9-ES-2011-0031 or upon request from the Ecological Services
Program, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this policy are the staff members of the
Ecological Services Program, U.S. Fish and Wildlife Service, 4401 N.
Fairfax Drive, Arlington, VA 22203, and the National Marine Fisheries
Service's Endangered Species Division, 1335 East-West Highway, Silver
Spring, MD 20910.
Authority
We are taking this action under the authority of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 18, 2014.
Dan Ashe,
Director, U.S. Fish and Wildlife Service.
Dated: June 19, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2014-15216 Filed 6-27-14; 11:15 am]
BILLING CODE 4310-55-P