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Open Mic: Endangered Species Act – Listing Bird Species

At the Mic: Jason A. Crotty

The threshold for any species to be protected by the Endangered Species Act (ESA) is “listing,” the process by which the U.S. Fish & Wildlife Service (FWS) determines whether a species qualifies as either “threatened” or “endangered.” If listed, protections of ESA apply, but if not, they do not.

For a more detailed discussion regarding ESA and how it applies to birds, see the forthcoming August 2016 issue of Birding.

Because so many imperiled bird species have already been listed under ESA, new listing decisions are now fairly infrequent. However, unique circumstances have given rise to a high level of predictability for a number of species.

A little background is required.

ESA allows private citizens and organizations to file petitions to list species, so FWS does not control its own workload. The number of petitions filed by conservation organizations increased dramatically in the last decade. FWS states that from 1994-2006, the average number of species petitioned was 20 per year, but in 2011, there were petitions for 695 species. Moreover, petitions began to include dozens of species rather than just one.

Because FWS has long lacked the resources necessary to assess all of the listing petitions it receives, there have been protracted delays. To address its workload, FWS developed a “candidate species list,” which consists of species that deserve a comprehensive listing analysis, but do not receive it because other species are deemed higher priorities. The candidate list is evaluated annually but most species remain on the list, sometimes for decades.

Red Knot has long languished on the list of species that do not enjoy ESA protection, but objectively should. Photo: USFWS

Red Knot has long languished on the candidate list of species that do not enjoy ESA protection, but objectively should. Photo: USFWS

These delays often violate ESA, which imposes deadlines for FWS to achieve various milestones in the listing process. The delays—now worse because of the recent avalanche of petitions—prompted conservation organizations (led by the Center for Biological Diversity and WildEarth Guardians) to file lawsuits to compel FWS to meet its deadlines. The lawsuits were filed by the same conservation organizations that filed many of the petitions that helped create the delay in the first place, prompting criticism by industry groups and other organizations.

The lawsuits were filed around the country but were procedurally consolidated into a combined action before a single federal judge in Washington DC. Two settlement agreements were completed in 2011 and they included deadlines for FWS to decide petitions for species that had been languishing on the candidate list.  For example, the subject of the most recent listing decision, the Puerto Rican endemic Elfin-woods Warbler, was initially placed on the candidate list in 1982, removed, and then put on again in 1999, where it stayed until it was listed as “threatened” in 2016, pursuant to the settlement agreement.

The striking Elfin Woods Warbler, a species endemic to the US territory of Puerto Rico, has had a checkered ESA history. Photo: USFWS

The striking Elfin Woods Warbler, a species endemic to the US territory of Puerto Rico, has had a checkered ESA history. Photo: USFWS

The schedule is called the “workplan” and FWS maintains a webpage documenting its progress. FWS also states that it “anticipates updating the workplan to include future actions out through FY2023.”

Although the exact numbers are difficult to compile, it appears that FWS has made decisions on workplan petitions for the following bird species:

The following petitions are still on the workplan:

Thus, birders and others interested in avian conservation can anticipate decisions on these species in the next few years.

Black-footed Albatross, like many albatross species, has seen marked declines in recent decades and may soon see full protection under the ESA. Photo: USFWS

Black-footed Albatross, like many albatross species, has seen marked declines in recent decades and may soon see full protection under the ESA. Photo: USFWS

For each species, FWS will publish in the Federal Register a proposed rule that the species is either “threatened” or “endangered” or that listing is “not warranted.” (The Federal Register is a daily periodical where federal agencies publish rules and otherwise provide public notice.) The public is then provided a 60-day opportunity to comment and FWS seeks peer review opinions. And then within 12 months, FWS must publish a final rule, either maintaining the proposed rule or modifying it in light of comments.

An example makes the process more concrete. For the Elfin-woods Warbler referred to above, the proposed rule is here, public comments and peer review are here, and the final rule is here.

The process for other bird species on the workplan will be the same.

*Note that ESA applies to species, subspecies, and “distinct population segments.” This list does not distinguish between those categories, nor does it include listings from Hawaii, which are numerous. That information can be found at the FWS ECOS (Environmental Conservation Online Program) website.

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Jason A. Crotty is a birder and a lawyer living in Portland, Oregon. He wrote about how the U.S. Endangered Species Act applies to birds in the August 2016 issue of Birding.

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