August 15, 2023

The ESA Goes Trekkie

Posted on August 15, 2023 by Rick Horder

I can hear the music in my ear, and the voice: “Space, the final frontier… “. Endangered and threatened species are destined to boldly go where none of them has gone before – habitats outside of their historical range. Factors such as climate change and invasive species have caused ecosystems, once suitable for these species, to no longer be acceptable or sustainable.

The 1982 amendments to the Endangered Species Act added a section, 10(j), to facilitate reintroduction of listed species via designation of “experimental populations.” The regulations carrying out Section 10(j) permit the U.S. Fish and Wildlife Service (Service) to designate experimental populations of endangered or threatened species that will be released into suitable natural habitats outside the species’ natural range, but within its probable historical range (absent a finding by the Director that the primary habitat of the species has been unsuitably or irreversibly altered or destroyed).

On July 3, 2023, the Service published a Final Rule finalizing  proposed revisions at 87 FR 34625 (June 7, 2022) to regulations at 50 CFR part 17, subpart H. The Service has determined that it may be “necessary and appropriate” to introduce experimental populations to habitats outside of a species’ historical range to ensure its conservation and adaptation to climate change and other threats. As Captain Picard would say, “Things are only impossible until they’re not.” To that end, this Final Rule removes the restriction that the Service may only consider doing so if the species’ primary habitat has been unsuitably or irreversibly altered or destroyed. The aim is to allow the Service to intervene before those species are severely depleted, lose important elements of genetic diversity, or become subject to captivity. The regulatory changes are also designed to prevent “costly and extreme” measures in the future.

The Service considered “just under 570” comments received on the June 7 Proposed Rule and, other than five revisions, largely editorial in nature, is finalizing the rule as proposed. Public comments raised several concerns, including that the criteria used in the proposed rule are “vague, nonspecific, and undefined” because the rule does not state how damaged a species’ habitat needs to be before this new authority can be invoked. The Service responded: “Defining what specific type of threats are ‘appropriate circumstances’ is not necessary or advisable because they will vary by species, their habitat needs, habitat availability, and threats to the species and any definition may fail to acknowledge all circumstances under which establishing an experimental population is appropriate.” Moreover, the preamble and existing regulations do provide standards the Service must consider.

The Final Rule went into effect on August 2, 2023.  If endangered and threatened species are “transported”* to locations they have never been before, I hope they “Live long and prosper,” as Dr. Spock would say, and to mix references, “May the Force be with them.” 

* This regulation also brought to mind the last stanza of one of my favorite Neil Young songs.  If you cannot guess which one, click on this hyperlink.