Developing a Criterion for Delisting the Southern Sea Otter under the U.S. Endangered Species Act

Recent surveys of recovery plans indicate that criteria, such as population sizes, for delisting species from the U.S. Endangered Species Act (ESA) are often unrealistically low by scientific standards. We describe the delisting criterion for the threatened southern sea otter (Enhydra lutris nereis) developed by the Southern Sea Otter Recovery Team. A major oil spill is the most serious threat to this sea otter population. After extensive modeling of oil spills, the recovery team concluded that it was not scientifically defensible to develop a delisting criterion in terms of a single probability of extinction over a specified time period. Instead, the team decided to define a size at which it would consider the population endangered and to consider the population threatened as long as a major oil spill might reduce it to that size. The effective population size (N_e) for endangered status was set at 500, estimated to be about 1850 otters. Using a spill the size of the Exxon Valdez spill (250,000 bbl), the oil spill model was iterated to generate a frequency distribution of the number of sea otters contacted by oil, from which the team estimated that less than 800 otters would be killed by 90% of the simulated spills. Thus, the delisting criterion was set at 1850 + 800 = 2650 individuals. There have been several proposals to improve the Endangered Species Act by providing quantitative guidance, in the form of specific probabilities of extinction within some time frame or specific criteria like those used by the World Conservation Union as to the levels of extinction risk represented by the terms "threatened" and "endangered." Experiences of the Sea Otter Recovery Team indicate that guidelines should not be overly rigid and should allow flexibility for dealing with specific situations. The most important consideration is to appoint a recovery team that is both technically well qualified and unconstrained by pressures from management agencies.     

Geography and Recovery under the U.S. Endangered Species Act

Abstract: The U.S. Endangered Species Act (ESA) defines an endangered species as one “at risk of extinction throughout all or a significant portion of its range.” The prevailing interpretation of this phrase, which focuses exclusively on the overall viability of listed species without regard to their geographic distribution, has led to development of listing and recovery criteria with fundamental conceptual, legal, and practical shortcomings. The ESA's concept of endangerment is broader than the biological concept of extinction risk in that the “esthetic, ecological, educational, historical, recreational, and scientific” values provided by species are not necessarily furthered by a species mere existence, but rather by a species presence across much of its former range. The concept of “significant portion of range” thus implies an additional geographic component to recovery that may enhance viability, but also offers independent benefits that Congress intended the act to achieve. Although the ESA differs from other major endangered‐species protection laws because it acknowledges the distinct contribution of geography to recovery, it resembles the “representation, resiliency, and redundancy” conservation‐planning framework commonly referenced in recovery plans. To address representation, listing and recovery standards should consider not only what proportion of its former range a species inhabits, but the types of habitats a species occupies and the ecological role it plays there. Recovery planning for formerly widely distributed species (e.g., the gray wolf [Canis lupus]) exemplifies how the geographic component implicit in the ESA's definition of endangerment should be considered in determining recovery goals through identification of ecologically significant types or niche variation within the extent of listed species, subspecies, or “distinct population segments.” By linking listing and recovery standards to niche and ecosystem concepts, the concept of ecologically significant type offers a scientific framework that promotes more coherent dialogue concerning the societal decisions surrounding recovery of endangered species.     

Gray Whales and the Value of Monitoring Data in Implementing the U.S. Endangered Species Act

Abstract: Many scientists lament the absence of data for endangered species and argue that more funds should be spent acquiring basic information about population trends. Using 19 years of abundance estimates for the eastern North Pacific gray whale ( Eschrichtius robustus ), we sampled subsets of the original survey data to identify the number of years of data required to remove the population from the U.S. Endangered Species Act's (ESA) list of endangered and threatened wildlife. For any given duration of monitoring, we selected all possible combinations of consecutive counts. To incorporate variability in growth rates, we extracted a maximum likelihood estimator of growth rate and confidence interval about that growth rate on the assumption that the population changes can be approximated by a simple diffusion process with drift. We then applied a new approach to determine ESA status for each subset of survey data and found that a quantitative decision to delist is unambiguously supported by 11 years of data but is precariously uncertain with fewer than 10 years of data. The data needed to produce an unequivocal decision to delist gray whales cost the National Marine Fisheries Service an estimated U.S. $660,000, a surprisingly modest expense given the fact that delisting can greatly simplify regulatory constraints. This example highlights the value of population monitoring in administering the ESA and provides a compelling example of the utility of such information in identifying both imperiled and recovered species. The economic value of such data is that they provide the foundation for delisting, which could ultimately save much more money than the collection of the data would ever cost.     

Factors associated with preemptive conservation under the U.S. Endangered Species Act

In recent decades, there has been an increasing emphasis on proactive efforts to conserve species being considered for listing under the U.S. Endangered Species Act (ESA) before they are listed (i.e., preemptive conservation). These efforts, which depend on voluntary actions by public and private land managers across the species’ range, aim to conserve species while avoiding regulatory costs associated with ESA listing. We collected data for a set of social, economic, environmental, and institutional factors that we hypothesized would influence voluntary decisions to promote or inhibit preemptive conservation of species under consideration for ESA listing. We used logistic regression to estimate the association of these factors with preemptive conservation outcomes based on data for a set of species that entered the ESA listing process and were either officially listed (n = 314) or preemptively conserved (n = 73) from 1996 to 2018. Factors significantly associated with precluded listing due to preemptive conservation included high baseline conservation status, low proportion of private land across the species’ range, small total range size, exposure to specific types of threats, and species’ range extending over several states. These results highlight strategies that can help improve conservation outcomes, such as allocating resources for imperiled species earlier in the listing process, addressing specific threats, and expanding incentives and coordination mechanisms for conservation on private lands.     

Genetic Data and the Listing of Species Under the U.S. Endangered Species Act

Abstract:  Genetic information is becoming an influential factor in determining whether species, subspecies, and distinct population segments qualify for protection under the U.S. Endangered Species Act. Nevertheless, there are currently no standards or guidelines that define how genetic information should be used by the federal agencies that administer the act. I examined listing decisions made over a 10-year period (February 1996–February 2006) that relied on genetic information. There was wide variation in the genetic data used to inform listing decisions in terms of which genomes (mitochondrial vs. nuclear) were sampled and the number of markers (or genetic techniques) and loci evaluated. In general, whether the federal agencies identified genetic distinctions between putative taxonomic units or populations depended on the type and amount of genetic data. Studies that relied on multiple genetic markers were more likely to detect distinctions, and those organisms were more likely to receive protection than studies that relied on a single genetic marker. Although the results may, in part, reflect the corresponding availability of genetic techniques over the given time frame, the variable use of genetic information for listing decisions has the potential to misguide conservation actions. Future management policy would benefit from guidelines for the critical evaluation of genetic information to list or delist organisms under the Endangered Species Act.     

Taxonomic Considerations in Listing Subspecies Under the U.S. Endangered Species Act

Abstract:  The U.S. Endangered Species Act (ESA) allows listing of subspecies and other groupings below the rank of species. This provides the U.S. Fish and Wildlife Service and the National Marine Fisheries Service with a means to target the most critical unit in need of conservation. Although roughly one-quarter of listed taxa are subspecies, these management agencies are hindered by uncertainties about taxonomic standards during listing or delisting activities. In a review of taxonomic publications and societies, we found few subspecies lists and none that stated standardized criteria for determining subspecific taxa. Lack of criteria is attributed to a centuries-old debate over species and subspecies concepts. Nevertheless, the critical need to resolve this debate for ESA listings led us to propose that minimal biological criteria to define disjunct subspecies (legally or taxonomically) should include the discreteness and significance criteria of distinct population segments (as defined under the ESA). Our subspecies criteria are in stark contrast to that proposed by supporters of the phylogenetic species concept and provide a clear distinction between species and subspecies. Efforts to eliminate or reduce ambiguity associated with subspecies-level classifications will assist with ESA listing decisions. Thus, we urge professional taxonomic societies to publish and periodically update peer-reviewed species and subspecies lists. This effort must be paralleled throughout the world for efficient taxonomic conservation to take place.     

Critique of the Evolutionarily Significant Unit as a Definition for "Distinct Population Segments" under the U.S. Endangered Species Act

The U.S. Endangered Species Act grants protection to species, subspecies, and "distinct population segments" of vertebrate species. Historically, Congress included distinct population segments into endangered species legislation to enable the U.S. Fish and Wildlife Service to implement a flexible and pragmatic approach in listing populations of vertebrate species. Recently, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have proposed a policy that would narrowly define distinct population segments as evolutionarily significant units based on morphological and genetic distinctiveness between populations. Historically, the power to list species or populations as distinct population segments has been used to tailor management practices to unique circumstances; grant varied levels of protection in different parts of a species' range; protect species from extinction in significant portions of their ranges as well as to protect populations that are unique evolutionary entities. A strict redefinition of distinct population segments as evolutionarily significant units will compromise management efforts because the role of demographic and behavioral data will be reduced. Furthermore, strictly cultural, economic, or geographic justifications for listing populations as threatened or endangered will be greatly curtailed.     

Incorporating Climate Science in Applications of the U.S. Endangered Species Act for Aquatic Species

Aquatic species are threatened by climate change but have received comparatively less attention than terrestrial species. We gleaned key strategies for scientists and managers seeking to address climate change in aquatic conservation planning from the literature and existing knowledge. We address 3 categories of conservation effort that rely on scientific analysis and have particular application under the U.S. Endangered Species Act (ESA): assessment of overall risk to a species; long‐term recovery planning; and evaluation of effects of specific actions or perturbations. Fewer data are available for aquatic species to support these analyses, and climate effects on aquatic systems are poorly characterized. Thus, we recommend scientists conducting analyses supporting ESA decisions develop a conceptual model that links climate, habitat, ecosystem, and species response to changing conditions and use this model to organize analyses and future research. We recommend that current climate conditions are not appropriate for projections used in ESA analyses and that long‐term projections of climate‐change effects provide temporal context as a species‐wide assessment provides spatial context. In these projections, climate change should not be discounted solely because the magnitude of projected change at a particular time is uncertain when directionality of climate change is clear. Identifying likely future habitat at the species scale will indicate key refuges and potential range shifts. However, the risks and benefits associated with errors in modeling future habitat are not equivalent. The ESA offers mechanisms for increasing the overall resilience and resistance of species to climate changes, including establishing recovery goals requiring increased genetic and phenotypic diversity, specifying critical habitat in areas not currently occupied but likely to become important, and using adaptive management. Incorporación de las Ciencias Climáticas en las Aplicaciones del Acta Estadunidense de Especies en Peligro para Especies Acuáticas     

Climate Change,Marine Environments,and the U.S. Endangered Species Act

Climate change is expected to be a top driver of global biodiversity loss in the 21st century. It poses new challenges to conserving and managing imperiled species, particularly in marine and estuarine ecosystems. The use of climate‐related science in statutorily driven species management, such as under the U.S. Endangered Species Act (ESA), is in its early stages. This article provides an overview of ESA processes, with emphasis on the mandate to the National Marine Fisheries Service (NMFS) to manage listed marine, estuarine, and anadromous species. Although the ESA is specific to the United States, its requirements are broadly relevant to conservation planning. Under the ESA, species, subspecies, and “distinct population segments” may be listed as either endangered or threatened, and taking of most listed species (harassing, harming, pursuing, wounding, killing, or capturing) is prohibited unless specifically authorized via a case‐by‐case permit process. Government agencies, in addition to avoiding take, must ensure that actions they fund, authorize, or conduct are not likely to jeopardize a listed species’ continued existence or adversely affect designated critical habitat. Decisions for which climate change is likely to be a key factor include: determining whether a species should be listed under the ESA, designating critical habitat areas, developing species recovery plans, and predicting whether effects of proposed human activities will be compatible with ESA‐listed species’ survival and recovery. Scientific analyses that underlie these critical conservation decisions include risk assessment, long‐term recovery planning, defining environmental baselines, predicting distribution, and defining appropriate temporal and spatial scales. Although specific guidance is still evolving, it is clear that the unprecedented changes in global ecosystems brought about by climate change necessitate new information and approaches to conservation of imperiled species. El Cambio Climático, los Ecosistemas Marinos y el Acta Estadunidense de Especies en Peligro     

The Normative Dimension and Legal Meaning of Endangered and Recovery in the U.S. Endangered Species Act

Abstract:  The ethical, legal, and social significance of the U.S. Endangered Species Act of 1973 (ESA) is widely appreciated. Much of the significance of the act arises from the legal definitions that the act provides for the terms threatened species and endangered species. The meanings of these terms are important because they give legal meaning to the concept of a recovered species. Unfortunately, the meanings of these terms are often misapprehended and rarely subjected to formal analysis. We analyzed the legal meaning of recovered species and illustrate key points with details from "recovery" efforts for the gray wolf ( Canis lupus ). We focused on interpreting the phrase "significant portion of its range," which is part of the legal definition of endangered species. We argue that recovery and endangerment entail a fundamentally normative dimension (i.e., specifying conditions of endangerment) and a fundamentally scientific dimension (i.e., determining whether a species meets the conditions of endangerment). Specifying conditions for endangerment is largely normative because it judges risks of extinction to be either acceptable or unacceptable. Like many other laws that specify what is unacceptable, the ESA largely specifies the conditions that constitute unacceptable extinction risk. The ESA specifies unacceptable risks of extinction by defining endangered species in terms of the portion of a species' range over which a species is "in danger of extinction." Our analysis indicated that (1) legal recovery entails much more than the scientific notion of population viability, (2) most efforts to recover endangered species are grossly inadequate, and (3) many unlisted species meet the legal definition of an endangered or threatened species.     

Impacts of phylogenetic nomenclature on the efficacy of the U.S. Endangered Species Act

Cataloging biodiversity is critical to conservation efforts because accurate taxonomy is often a precondition for protection under laws designed for species conservation, such as the U.S. Endangered Species Act (ESA). Traditional nomenclatural codes governing the taxonomic process have recently come under scrutiny because taxon names are more closely linked to hierarchical ranks than to the taxa themselves. A new approach to naming biological groups, called phylogenetic nomenclature (PN), explicitly names taxa by defining their names in terms of ancestry and descent. PN has the potential to increase nomenclatural stability and decrease confusion induced by the rank‐based codes. But proponents of PN have struggled with whether species and infraspecific taxa should be governed by the same rules as other taxa or should have special rules. Some proponents advocate the wholesale abandonment of rank labels (including species); this could have consequences for the implementation of taxon‐based conservation legislation. I examined the principles of PN as embodied in the PhyloCode (an alternative to traditional rank‐based nomenclature that names biological groups based on the results of phylogenetic analyses and does not associate taxa with ranks) and assessed how this novel approach to naming taxa might affect the implementation of species‐based legislation by providing a case study of the ESA. The latest version of the PhyloCode relies on the traditional rank‐based codes to name species and infraspecific taxa; thus, little will change regarding the main targets of the ESA because they will retain rank labels. For this reason, and because knowledge of evolutionary relationships is of greater importance than nomenclatural procedures for initial protection of endangered taxa under the ESA, I conclude that PN under the PhyloCode will have little impact on implementation of the ESA. Impactos de la Nomenclatura Filogenética sobre la Eficiencia del Acta Estadunidense para las Especies en Peligro     

Hybridization,agency discretion,and implementation of the U.S. Endangered Species Act

The U.S. Endangered Species Act (ESA) requires that the “best available scientific and commercial data” be used to protect imperiled species from extinction and preserve biodiversity. However, it does not provide specific guidance on how to apply this mandate. Scientific data can be uncertain and controversial, particularly regarding species delineation and hybridization issues. The U.S. Fish and Wildlife Service (FWS) had an evolving hybrid policy to guide protection decisions for individuals of hybrid origin. Currently, this policy is in limbo because it resulted in several controversial conservation decisions in the past. Biologists from FWS must interpret and apply the best available science to their recommendations and likely use considerable discretion in making recommendations for what species to list, how to define those species, and how to recover them. We used semistructured interviews to collect data on FWS biologists’ use of discretion to make recommendations for listed species with hybridization issues. These biologists had a large amount of discretion to determine the best available science and how to interpret it but generally deferred to the scientific consensus on the taxonomic status of an organism. Respondents viewed hybridization primarily as a problem in the context of the ESA, although biologists who had experience with hybridization issues were more likely to describe it in more nuanced terms. Many interviewees expressed a desire to continue the current case‐by‐case approach for handling hybridization issues, but some wanted more guidance on procedures (i.e., a “flexible” hybrid policy). Field‐level information can provide critical insight into which policies are working (or not working) and why. The FWS biologists’ we interviewed had a high level of discretion, which greatly influenced ESA implementation, particularly in the context of hybridization.     

The role of scientists in statutory interpretation of the U.S. Endangered Species Act

Like many federal statutes, the U.S. Endangered Species Act (ESA) contains vague or ambiguous language. The meaning imparted to the ESA's unclear language can profoundly impact the fates of endangered and threatened species. Hence, conservation scientists should contribute to the interpretation of the ESA when vague or ambiguous language contains scientific words or refers to scientific concepts. Scientists need to know at least these 2 facts about statutory interpretation: statutory interpretation is subjective and the potential influence of normative values results in different expectations for the parties involved. With the possible exception of judges, all conventional participants in statutory interpretation are serving their own interests, advocating for their preferred policies, or biased. Hence, scientists can play a unique role by informing the interpretative process with objective, policy‐neutral information. Conversely, scientists may act as advocates for their preferred interpretation of unclear statutory language. The different roles scientists might play in statutory interpretation raise the issues of advocacy and competency. Advocating for a preferred statutory interpretation is legitimate political behavior by scientists, but statutory interpretation can be strongly influenced by normative values. Therefore, scientists must be careful not to commit stealth policy advocacy. Most conservation scientists lack demonstrable competence in statutory interpretation and therefore should consult or collaborate with lawyers when interpreting statutes. Professional scientific societies are widely perceived by the public as unbiased sources of objective information. Therefore, professional scientific societies should remain policy neutral and present all interpretations of unclear statutory language; explain the semantics and science both supporting and contradicting each interpretation; and describe the potential consequences of implementing each interpretation. A review of scientists’ interpretations of the phrase “significant portion of its range” in the ESA is used to critique the role of scientists and professional societies in statutory interpretation.