Resource Development Council

RDC Comment Letter:
Draft Policy on Interpretation of the Phrase “Significant
Portion of its Range” in the Endangered Species Act’s
Definitions of “Endangered Species and “Threatened Species”

March 7, 2012

Pubic Comments Processing
Attn: FWS-R9-ES-2011-0031
Division of Policy and Directives Management
US Fish and Wildlife Service
4401 North Fairfax Drive, MS 2042
Arlington, VA 22203

Re: Draft Policy on Interpretation of the Phrase “Significant Portion of its Range” in the Endangered Species Act’s Definitions of “Endangered Species and “Threatened Species” (76 Fed. Reg. 76987).

To Whom if May Concern:

On behalf of the Resource Development Council for Alaska, Inc., (RDC), I am writing to provide comments on the joint NMFA, FWS policy proposal regarding the interpretation of “significant portion of range” as it applies to implementation of the Endangered Species Act (ESA).

RDC is a statewide, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

RDC members are significantly and directly impacted by the implementation of the ESA. The preponderance of recent and pending listings of species and distinct population segments in Alaska is compounding the challenges of responsibly developing and appropriately managing the natural resources of Alaska that are critical to Alaska’s economy, national security, and the general welfare of the people of Alaska.

The implications of the draft policy are complex and profound. RDC’s comments are admittedly brief, however as a member of the Western Business Roundtable (WBR), a signatory to the National Endangered Species Act Reform Coalition (NESARC), we endorse NESARC’s more detailed and exhaustive comments by reference and fully support the position of NESARC with respect to this draft policy. It is only through such coalitions that organizations like RDC can provide meaningful comments to the seemingly endless array of policy directives, guidance documents, and rulemakings coming from a multitude of federal agencies.

The Policy Inappropriately Applies Protections Across the Entire Species Range When Only a Significant Portion of its Range Warrants Protections

The Services admit that listing a species throughout its entire range when the species is at risk in only a portion of its range, “may lead to application of protections of the ESA in areas in which a species is not currently endangered or threatened.” Such an admission begs for a more rationale approach. Imposing additional burdens on commerce, communities, landowners and industry for no public benefit cannot be aligned with congressional intent for protecting species and in the long term can only serve to undermine public support for species protections afforded by the ESA.

Such an approach flies in the face of this administration’s stated goals for more regulatory efficiency, increased domestic energy production, and economic recovery and job creation. In a February 28 memorandum to the Secretary of the Interior, (regarding Proposed Revised Habitat for the Spotted Owl: Minimizing Regulatory Burdens), President Obama stresses the importance of ensuring that regulatory burdens maximize net benefits.

Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), explicitly states that our "regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation" (emphasis added). Consistent with this mandate, Executive Order 13563 requires agencies to tailor "regulations to impose the least burden on society, consistent with obtaining regulatory objectives" (emphasis added). Executive Order 13563 also requires agencies to "identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice" while selecting "those approaches that maximize net benefits." To the extent permitted by law, our regulatory system must respect these requirements.

Undoubtedly, more flexibility in limiting listings so that they apply only to the significant portion of the range where the species is at risk can be applied. We urge the Services to fully reconsider this aspect of the policy in full context to the congressional record, which supports a more rational approach including application of the Secretary’s discretion.

RDC believes that this finding leads to unwarranted species protections that are likely to flow from the policy is a fatal flaw in this proposal. The notion that the ESA ties the Services hands to impose protections that provide no additional benefit (application of protections of the ESA in areas in which a species is not currently endangered or threatened) is indefensible. Such a rigid inflexible policy cannot pass an objective evaluation of the legislative history, the act’s purposes, past agency practice, the text of the statute, or judicial precedent.

With regard to judicial precedent, the draft policy points to two district court decisions supporting the policy while ignoring two appellate court decisions to the contrary. To conclude that the draft policy is fully consistent with and required by judicial precedent is incorrect. The service does not have its hands tied; it can implement a policy that does not require the irrational imposition of protections with no meaningful value. To continue with the policy as proposed will further erode public confidence in and support of the ESA, to the possible long-term detriment of the species the Act was created to protect.

It is Appropriate that the Policy Sets a Very High bar for “Significant” and Appropriately Defines “Significant Portion of its Range”

The Service appropriately uses an existing biological inquiry that sets a relatively high bar for determining that a portion of the species range is significant. Other metrics, such as a percentage of its range, would likely run counter to evaluation on the individual basis for the species of concern.

The Services Appropriately Limit Range to the Existing Range at Time of Status Determination

The identification of what constitutes a significant portion of a species range is a narrower inquiry than a listing determination and should only be looking at areas that are presently occupied by the species. The definition as proposed applies biological considerations to the definition of “significant portion of its range”. The definition provides a test to determine whether a portion of the species range is significant by giving consideration as to whether the species would be in danger of extinction without the contribution of the portion of the range. It is critical that this determination is made independent of a listing determination.

The Services Proposed Relationship with Regard to Significant Portion of its Range and Distinct Population Segment is Correct

Distinct Population Segments (DPS) are the smallest division of a species that can be protected under the Act. Where there is a valid DPS, the proposed policy defers a listing to that DPS rather than imposing a listing for the entire species or a significant portion of range. The Services approach appropriately ensures that in such circumstances a species will only be protected where necessary, however it is worded to suggest such an approach is discretionary. This should be modified to require the Services to determine whether a proposed SPR is encompassed by a DPS. This does not solve the fatal flaw discussed at page two of these comments where there is no DPS determination, yet the entire range of a species may be listed when only a significant portion of its range warrants protections.


In conclusion, RDC supports the draft policy definition of a significant portion of a species range to include only current range, not historic range; to define significant and significant portion of its range with a high threshold based on biologic considerations; and in cases where a DPS is determined, to defer a listing to that DPS rather than imposing a listing for a significant portion of range.

RDC strongly objects to the listing of a species throughout its entire range, rather than looking to the significant portion of its range where the species is actually at risk. By its own admission, the Services state that such an application “…in some circumstances may lead to the expenditure of resource without concomitant benefits”. (76 Federal Register, 76992). Such an approach flies in the face of common sense and is clearly an indefensible burden imposed on the citizenry, with no added benefit the viability of the species.

RDC appreciates the opportunity to comment on this important policy.

Resource Development Council for Alaska, Inc.

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