Comment on FR Doc # E8-17533

Defenders of Wildlife • Environmental Defense Fund World Wildlife Fund September 3, 2008 Public Comments Processing Attn: FWS-R9-ES-2008-0063 Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, Suite 222 Arlington, VA 22203 Re : Proposed Amendments to the Format of the Lists of Endangered and Threatened Species, 73 Fed. Reg. 45383 (Aug. 5, 2008) Dear Sir or Madam: The Environmental Defense Fund, Defenders of Wildlife, and the World Wildlife Fund submit these comments in response to the above-referenced proposed rule. In our view, the Fish and Wildlife Service wrongly characterizes its proposed changes as “editorial in nature” and involving “no substantive changes.” In fact, what the proposed changes actually do is to effectuate significant and substantive changes to the long-settled understanding of how the Endangered Species Act applies to species that have been designated as “endangered” or “threatened.” In practical effect, the proposed revisions codify the legal conclusions of a Solicitor’s Opinion from March 16, 2007. Those conclusions reversed more than three decades of administrative practice and understanding, without any opportunity for outside input into the decision-making process. The proposed revisions to the format for the endangered and threatened species list would cement that reversal without ever honestly acknowledging what is being done. If the Service believes that the Solicitor’s novel interpretation of the law can withstand careful scrutiny, it should at least tell the public that its proposed rulemaking is designed and intended to effectuate that interpretation, rather than misleading the public with a false characterization of the nature of its proposal. In addition, by changing the primary source upon which the Service relies for nomenclature from the current International Codes of Nomenclature to the Integrated Taxanomic Information System, the Service will further exacerbate the negative consequences of the proposed rulemaking. At bottom, these proposed changes address a simple question: whether a taxon eligible for listing under the Endangered Species Act (i.e., a species, subspecies, or vertebrate “distinct population segment”) is to be given the protection of that Act wherever it occurs, or whether it may be given the protection of the Act only in some places and not in others. Heretofore, the consistent and unvarying administrative practice for nearly three and a half decades was that a taxon that met the Act’s definition of an “endangered species” or a “threatened species” received the Act’s protection wherever it occurred. The Solicitor’s 2007 opinion reversed this settled understanding. Under that opinion, a listed taxon may be protected in only some of the places it occurs. The proposed revisions to the format of the list reflect the Solicitor’s conclusion by adding a new column with the heading “where listed.” Although the Service asserts that this heading “better reflects the data in the column” than the existing column heading (“vertebrate population where endangered or threatened”), in actuality this change fundamentally changes the purpose that the column serves. What it also fails to point out is that the existing column heading better reflects the actual language of the statute (section 4(c) of the Endangered Species Act requires that for each listed species the list “specify over what portion of its range it is endangered or threatened.”). Furthermore, though displaying how the format of the list has changed over time, the Service fails to acknowledge how the earlier formats reflect an administrative understanding that is at odds with the Solicitor’s subsequent interpretation. On September 26, 1975, the Service promulgated 50 CFR 17.11, which included both a list of threatened and endangered species and an explanation of the information set forth in the list. Section 17.11(d) explained that “For information purposes only, the ‘known distribution’ column will indicate the normal, known distribution of a species, subspecies, or a smaller taxon. This column does not imply any limitation on the prohibitions in the Act and in this Part 17. Such prohibitions apply to all specimens of the species, wherever found.” On February 27, 1980, the Service revised the list format, replacing the “known distribution” column with a column headed “historic range.” Section 17.11(d) said with respect to this new “range” column, just as it had formerly said with respect to the “known distribution” column, that “This column does not imply any limitation on the application of the prohibitions in the Act or implementing rules. Such prohibitions apply to all specimens of the species, wherever found.” The proposed revisions make two subtle, but important changes to the explanation of the “historic range” column. Significantly, neither of these is explained, or even acknowledged, in the preamble to the proposed rule. Instead, they are buried in the text of the proposed revisions of the rules themselves, where they are easily overlooked. Whereas since 1980, the explanation of the “historic range” column (and its precursor dating to 1975) has provided that the column “does not imply any limitation on the application of the prohibitions of the Act,” the proposed revisions would say that the column “does not imply any application, or limitation of application, of the prohibitions in the Act” (emphasis added). For three decades the regulations explaining this column have expressly disavowed any implied limitation of the reach of the Act. Now, for the first time ever, the regulations would disavow any implied application of the Act. That the regulations heretofore did clearly assume the application of the Act to every specimen of a species wherever it may occur was made explicitly clear by the next sentence of current section 17.11(d), which provides that “Such prohibitions apply to all individuals of the species wherever found.” The proposed regulations would change this sentence as well, and would do so in a manner than conceals the real agenda of this rulemaking by inserting –without explanation – one seemingly innocuous word. As proposed to be revised, the sentence would read “Such prohibitions apply to all individuals of the listed species wherever found.” Concealed behind the addition of this seemingly innocuous word is the fact that what the proposed regulations regard as the “listed species” is not what the current regulations regard as the “species.” Whereas current regulations and longstanding Service practice treat all members of any taxon on the endangered or threatened list as subject to the prohibitions of the Act, the proposed regulations would treat only those members of the taxon in the area designated in the new “where listed” column as subject to the prohibitions of the Act. That is a change that is both substantive and significant, and calculated to reinforce a dubious legal conclusion that was reached without benefit of public input. As promulgated in 1975, Section 17.11(e) explained that: “The column entitled ‘Portion of the range where endangered or threatened’ designates that portion of the range of the species over which it is endangered or threatened. The Act requires that the species must be endangered or threatened over all or a significant portion of its range in order to be listed.” At the time, the Act defined “species” to include subspecies and “any other group of fish or wildlife of the same species or smaller taxon in common spatial arrangement that interbreed when mature.” On April 28, 1976, when the Service listed the US population of the Bahama swallowtail butterfly (a subspecies) as a threatened species, it entered the words “USA (Florida), Bahamas” in the column that was headed “Known Distribution,” but in the column headed “Portion of range where threatened or endangered” it simply entered “USA.” In doing so, it clearly indicated its understanding that the column was intended to delineate geographically the limits of listed taxon below the level of subspecies. In 1978, the Act was amended to replace the third category of listable taxa with the following: “any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” In response, the Service amended the format of the list on February 27, 1980, to its current form. In doing so, the Service renamed the “Portion of the range where endangered or threatened” column by labeling it “Vertebrate population where endangered or threatened.” This clearly indicated that the Service continued to interpret Section 4 (c)(1) of the Act, which requires that the list “specify with respect to such species over what portion of its range it is endangered or threatened,” to refer only to those situations where the listed entity was a geographically delimited taxon (i.e., a pre- 1978 “population” such as the Bahamas swallowtail, or a post-1978 “distinct population segment” or “DPS”). Indeed, it has been the consistent practice of the Service since 1980 to enter the abbreviation “NA” in that column for every full species or subspecies that is listed, whereas for listed “DPSs” the entry in that column specifies the portion of the range of the species or subspecies that is comprised by the DPS. Further evidence of the above understanding of Section 4(c)(1) is the fact that in 1978 the Service dropped the column headed “Portion of range where threatened or endangered” from the list of plants. Since DPSs of plants are not eligible for listing, the Service apparently saw no useful purpose in retaining a column for which every entry had always been, and could only be, the word “entire.” The Solicitor’s opinion reviews none of this lengthy administrative practice, perhaps because it reveals a consistent history at odds with his legal conclusion. While ignoring that long administrative history, the Solicitor does acknowledge that Section 4(c)(1) of the Act could be interpreted to “relegate its application to delineating the range of distinct population segments and experimental populations,” but he rejects that interpretation because “neither of these terms existed when Congress prescribed the requirements for listing in section 4(c)(1).” That dismissal, however, overlooks the fact that though the term “distinct population segment” was not included in the original language of the Act, the original Act did authorize the listing of taxa below the level of subspecies under a similar verbal formulation. The Solicitor’s opinion also gives insufficient attention to the interplay among the various provisions of the Act, and to the effect that the Solicitor’s novel interpretation would have on the Service’s ability to implement the Act. First, as the Service itself has elsewhere noted, “the range of a species can theoretically be divided into portions in an infinite number of ways” (see the Service’s “Draft Guidance Regarding Identifying Significant Portions of a Species’ Range Under the Endangered Species Act”). As a result, the Service can reasonably anticipate a slew of petitions that do exactly that, seeking protection in any number of portions of their ranges for species that are clearly in no peril overall. Thus, the Service’s petition response workload will almost certainly grow substantially. Ironically, the workload will grow the most through having to consider groupings that are neither DPSs nor scientifically recognized groupings within species that are not imperiled throughout their entire ranges. These are taxa that ought to be of the lowest conservation priority. Second, inasmuch as all listings prior to the Solicitor’s interpretation were based upon the opposite interpretation that species (as defined in the Act) are to be listed either everywhere or nowhere, the Service will almost certainly now be required – either in the course of 5-year status reviews or in response to petitions – to consider for the first time whether all current listings need to be reexamined for consistency with the Solicitor’s reading of the Act “to require protection of a species only where it is endangered.” That is an administrative burden that would dwarf those that already sorely stretch the Service’s ability to implement the Act. Third, the Solicitior’s new interpretation of “significant portion of the range” invites efforts to bestow the protections of the Act on groupings of plants and invertebrates that have heretofore been considered to be ineligible for protection. The curious result would be that although DPSs of plants and invertebrates may not be listed as such, they may now be protected if they are deemed to constitute a “significant portion of the range” of a species or subspecies. Because of the considerable overlap of the DPS concept with the factors that go into a determination of “significant portion of its range,” the practical effect is to allow the listing of invertebrate and plant DPSs by another name. While we would welcome expanded protection for plants and invertebrates, we do not believe that Congress has authorized it, nor do we think that what is most needed is protection of heretofore unrecognized sub-subspecific units of species that are not in peril overall. Moreover, such a proliferation of potentially protected entities could expose the Service to a limitless series of petitions and lawsuits, from all sides, over the status of invertebrate and plant taxa in portions of their ranges. Fourth, the path on which the Service is now embarked will make it much harder to recover listed taxa because the limitation of the Act’s protective provisions to just those portions of a species’ range where it is imperiled will preclude many otherwise available conservation opportunities. For example, by limiting the protections of the Act to just those areas where a species is most imperiled, it will no longer be possible for the Service to require that takings of a species in areas of relative abundance and relatively low threat be mitigated by conservation actions undertaken in areas where the species is relatively scarce and faces high threats. This artificial narrowing of mitigation options – and therefore of recovery opportunities – will make the goal of recovery more difficult to attain and the frequency of irreconcilable conflicts between species conservation needs and development projects much greater. The above-referenced draft Guidance acknowledges one aspect of this problem when it cautions that “boundaries [of the areas where species are protected] must not circumscribe the current distribution of the species so tightly that opportunities for recovery are foreclosed.” However, it is doubtful that such caution can be heeded given the Solicitor’s interpretation of the term “range” to refer narrowly to “current range” and to exclude portions of its historical range where it “has ceased to exist.” In many, if not most, cases, areas within the historic range of a species but beyond its current range, present the best opportunities to recover the species through restoration of habitat, translocation of individuals, and other management activities. Yet, by limiting the provisions of the Act to only those portions of the current range of a species where it is endangered (and excluding those portions where it has previously been extirpated), the very result of foreclosing recovery opportunities that the draft Guidance seeks to avoid seems almost certain. That the Solicitor’s interpretations of “range” and “significant portion of its range” are in error is evident from the fact that they produce a logical conundrum under Section 10(j) of the Act. Section 10(j)(2) explicitly authorizes the Service to establish an experimental population “outside the current range” of a listed species – and therefore outside the area where the protections of the Act apply – for any species that is protected only in a specified portion of its current range. Yet, if the Act’s protection extends to a species only within that portion of its current range where it is endangered or threatened, why would the Act treat such an artificially established population more protectively than the naturally occurring populations of the same species that are within the current range of the species? Clearly, there is not a shred of evidence that Congress, when enacting Section 10 (j), contemplated the restrictive interpretation that the Solicitor has now offered. The same can be said of the Act’s critical habitat provisions. The Act defines “critical habitat” to include areas “outside the geographical area occupied by the species at the time it is listed.” The legislative history of this provision is quite clear that Congress contemplated that this authority could be used to help restore a species to areas within its historic range, but beyond its current range. However, if a species is subject to the Act’s protection in only a portion of its existing range, it would be clearly inconsistent with that determination to designate critical habitat for it elsewhere. Thus, the effect of the Solicitor’s interpretation is to create a clear conflict with the statutory definition of critical habitat. A final ambiguity unnecessarily created by the Solicitor’s opinion concerns the “similarity of appearance” provisions of Section 4(e) of the Act. These provisions authorize the Service to “treat any species as an endangered species or threatened species” if it “so closely resembles in appearance … a species which has been listed … that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species.” As a result of the Solicitor’s interpretation, every species that is listed in only a portion of its range will be comprised of some individuals that are subject to the protection of the Act and other individuals that are not. The latter will be not just similar in appearance to the former, but identical in appearance to them. At least for those species for which there is a possibility of trade or regulated taking, the problem that Section 4(e) was intended to address will be acute. And yet, it is not clear how Section 4(e) would actually be used in such circumstances. The above-referenced draft Guidance emphasizes that “it is important to note that an SPR is not a ‘species,’ i.e. it is not a listable entity as defined by the Act, but is the portion of a range of a listable entity where we may determine that listable entity is threatened or endangered.” If that is the case, then how is one to make sense of the references in the Act to species that have been listed and others that have not been listed, if the listed and unlisted species are one and the same? The only logical answer is that Congress never contemplated or intended the distinction between a listed entity and the various “portions” that comprise that entity, unless those portions were themselves listable entities (i.e., subspecies or DPSs). Exacerbating the problems associated with the proposed changes discussed above is the proposal to change the primary documents on which the Service relies for species’ nomenclature. The references currently used – the International Code of Zoological Nomenclature and the International Code of Botanical Nomenclature – are the standard references used globally. Relying instead on the Integrated Taxonomic Information System (ITIS) poses several problems not discussed or recognized in the preamble to the proposed rule. First, the ITIS is not as comprehensive as the International Codes currently used, nor is it used outside of North America. The ITIS is primarily focused on North American species, and as such, does not have as complete a body of data as the currently used International Codes. Especially given that the Act is the implementing legislation for the Convention on International Trade in Endangered Species of Fauna and Flora, the primary documents used for nomenclature should be the same ones used internationally, especially in the implementation of the Convention. Second, the IT IS currently uses a numbering system down to the subspecies level but has language that proposes the inclusion of “regional species,” which could be interpreted as distinct population segment, whereas the International Codes rely on the scientific name encompassing the entire species range only. This numbering system could further encourage the Service toward effectuating the Solicitor’s opinion in practice. Frankly, we are unsure of potential complications or consequences that may arise in proposing a system to identify species that is not internationally recognized or used, and its effects on enforcing the Act and the Convention if ITIS were to be applied without additional consideration or explanation by the Service. For the reasons above, we oppose the proposed changes to existing regulations. Their purpose and effect has been misrepresented by the Service, to its unfortunate discredit. We urge the Service to withdraw the proposed regulations. If it wishes to reverse three decades of consistent administrative practice, it should clearly say so and invite public comment on the rationale for doing so. The interpretation of the Endangered Species Act put forth in the Solicitor’s opinion will have major practical ramifications, that warrant a thorough examination in the daylight of a rulemaking where the purpose and effect of proposed regulatory changes are honestly disclosed. Respectfully submitted, Michael J. Bean Senior Director, Wildlife Program Environmental Defense Fund Robert P. Davison Senior Scientist, Endangered Species & Wildlife Conservation Defenders of Wildlife Jason Patlis Vice President and Managing Director, U.S. Government Relations World Wildlife Fund