Endangered Species Law & Policy

After a relatively quiet start to the year, the National Marine Fisheries Service (NMFS) and U.S. Fish & Wildlife Service (FWS)  have issued findings and rules regarding the proposed listings of four separate species under the Endangered Species Act (ESA) over the last two days.  NMFS issued a 90-day finding on a petition to list the Gulf of Mexico population of Bryde's whale (Balaenoptera edeni) on April 6, 2015.  FWS issued a 12-month finding on a petition to list the Humboldt marten (Martes caurina humboldtensis) and proposed to list two species of crayfish - the Big Sandy crayfish (Cambarus callainus) and Guyandotte River crayfish (Cambarus veteranus) – on April 7, 2015.

April 6, 2015 - NMFS announced its finding (pdf) that the listing of the Gulf of Mexico population of Bryde's whale may be warranted based on information contained in a petition from the Natural Resources Defense Council (NRDC).  The petition asks NMFS to list the whale population in the Gulf of Mexico as an endangered distinct population segment (DPS).  Bryde's whale is a baleen whale occurring in tropical waters throughout the Atlantic, Pacific and Indian oceans.  The population in the Gulf of Mexico appears to be highly limited to the coastal areas off of the Florida panhandle, and none of these whales have been reported outside the U.S. exclusive economic zone (EEZ), though NMFS acknowledges that satellite tagging will be required to confirm this assertion.  NRDC's petition cites several 2014 studies that found the Gulf of Mexico population to be genetically and behaviorally distinct from other Bryde's whale populations globally.  Based on this information, NMFS found that the Gulf of Mexico population may be sufficiently discrete and significant to qualify as a DPS.  NMFS further found that the population is at risk from ship strikes, acoustic effects from commercial shipping traffic, and the use of airguns during oil exploration activities. NMFS announced that it will commence a status review for the species, and is accepting comments until June 5, 2015.

April 7, 2015 - FWS announced that it plans to list two species of crayfish as endangered and to designate critical habitat for each species.  The proposed rule (pdf) finds that the Big Sandy crayfish, native to freshwaters in Kentucky, Virginia and West Virginia, is a distinct subspecies of the Guyandotte River crayfish, which is native to freshwaters of West Virginia.  The proposed rule follows a settlement agreement from a 2012 lawsuit against FWS by the Center for Biological Diversity for failure to issue a 12-month finding on the Big Sandy crayfish within the statutorily prescribed time period.  Following a status review for both species, FWS found that neither species occurs outside of the Big Sandy River basin and the Upper Guyandotte River basin, respectively, and that both have suffered a decline in distribution and population since they were first discovered in 1900.  Both the Upper Guyandotte and Big Sandy River basins have been impacted by widespread sedimentation and erosion linked to coal mining, commercial timber harvesting, commercial and residential development, roads, and sewage discharges, which substantially decrease the available habitat for crayfish and other species native to both river systems.  The proposed rule finds that the impact of habitat degradation is amplified for both species due to their small and isolated populations.  FWS has not proposed critical habitat at this time, citing a lack of information regarding the species' current habitat as impeding its ability to determine an appropriate extent of critical habitat.  FWS is seeking comments on the proposed rule until June 8, 2015.

April 7, 2015 - FWS announced its finding (pdf) that listing of the Pacific marten subspecies, the Humboldt marten, is not warranted either as a subspecies or as a DPS at this time.  Based on comments received on its initial finding that listing of the Humboldt marten may be warranted, FWS concluded that the Humboldt marten, which is limited to northern California, is genetically linked with the coastal Oregon population of Pacific marten (Martes caurina caurina).  Together, these two populations form a DPS that is both discrete and significant; however, FWS did not find that any of the identified threats to this DPS rose to a level sufficient to warrant listing as an endangered or threatened species.  Rather, based on conservation measures at the state and federal level aimed at preserving marten habitat, and ongoing voluntary conservation efforts, FWS found that the coastal DPS of Pacific marten is not currently at risk of either extinction or becoming endangered throughout all or a significant portion of their range..