Draft Guidance Defines Key Term Under The Endangered Species Act

On December 9, the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) jointly published draft guidance defining the phrase "significant portion of its range" for purposes of listing a species under the Endangered Species Act (Act). See 76 Fed. Reg. 76987 (Dec. 9, 2011). The Act protects any species found to be endangered or threatened "throughout all or a significant portion of its range." A clear and consistent interpretation of this phrase has proved elusive over the years, and the new draft policy seeks to fulfill the Act's purposes while also harmonizing the Act's different provisions and satisfying the varying instructions courts have provided on how the phrase should be applied. The policy would replace a 2007 Solicitor's M-Opinion, which was withdrawn in May 2011.

The draft policy contains four key elements:

If a species is found to be endangered or threatened within a significant portion of its range, then the species will be listed under the Act, and the Act's protections will apply to the species, throughout all of its range. A portion of a species' range is "significant" if its contribution to the species' viability is so important that without the portion, the species would face the danger of extinction.

A species' "range" is the general geographical area within which the species is found at the time the listing decision at issue is made. Lost historical range, while relevant to the overall status of the species, is not part of the "significant portion of its range."

If the species is endangered or threatened throughout a significant portion, but not all, of its range – and if the population in that significant portion qualifies as a "distinct population segment" (DPS) – then only the DPS, and not the entire species, will be listed.

The relevant statutory provisions. The Act directs the FWS and NMFS to list species within their respective jurisdictions that they find to be "endangered" or "threatened." Listed species are then afforded specific protections under the Act to ensure their conservation and recovery.

An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." A "species" is defined to include "any subspecies of fish or wildlife or plants, and any...