Opinion

Until recently, the U.S. Fish and Wildlife Service (FWS) maintained two categories of species considered candidates for listing under the Endangered Species Act (ESA). These categories aided the FWS, other agencies and the public to identify and protect species in trouble before the formal, and typically more expensive, protections of the ESA were either necessary or available. The FWS has now eliminated one of these categories, which has reduced by over 95% the number of candidate species. In doing so, the FWS has taken a step backward in the effort to avoid the environmental and economic crises typified by the northern spotted owl (Strix occidentalis caurina) saga, despite the fact that Secretary of Interior Bruce Babbitt has often given the avoidance of such "train wrecks" as a prime objective of ESA implementation.

Although designed by Congress to protect all species that are endangered or threatened, the ESA has never achieved this mandate since its passage in 1973. To the contrary, there has always been a long line of species and sub-species that require the ESA's protection but have not yet been formally listed as endangered or threatened. These species, therefore, are not afforded any binding protections.

In an effort to provide some measure of conservation for these many species, in 1980 the FWS developed a candidate species list. This list contained all species "being considered by the Secretary for listing as an endangered or threatened species but not yet the subject of a proposed rule" (50 C.F.R. § 424.02(b)). Like the endangered and threatened species lists, the candidate species list is periodically published in the Federal Register. These Notices of Review contain the names of all candidate species and "invite comment from all interested parties regarding the status of the species named" (50 C.F.R. § 424.15(c)).

Until 1995, species in Notices of Review were placed in two principal categories. Category 1 (C1) species are those species "for which the FWS has on file sufficient information on biological vulnerability and threat(s) to support proposals to list them as endangered or threatened species [but for which listing is] precluded at present by other listing activity" (59 Fed. Reg. 58,982, 58,983 (1994)). In other words, the FWS has already concluded the species are threatened or endangered, but can not yet issue proposed rules to list them. The FWS currently lists 182 such species (61 Fed. Reg. 7,596 (1996)).

The vast majority of the candidate species, however, were Category 2 (C2) species. These were species "for which information now in the possession of the FWS indicates that proposing to list as endangered or threatened is possibly appropriate, but for which persuasive evidence on biological vulnerability and threat are not currently available to support proposed rules" (59 Fed. Reg. 58,982, 58,983 (1994)). Thus, the FWS had concluded these species might be currently threatened or endangered, but more information was necessary before a final conclusion could be reached. According to the most recent C2 Lists, more than 1,700 plant species and 1,900 animal species warranted this designation (58 Fed. Reg. 51,544, 51,545 (1993); 59 Fed. Reg. 58,982, 58,984 (1994)).

The C2 List served several critical functions. As a compilation of species in some danger, it provided the FWS, other federal and state agencies, the conservation community, and land developers with an indispensable tool for the conservation of species. More specifically, the C2 List played three important roles.

(1) Notifying the public about which species require attention. Congress itself has noted the importance of notifying the public and other agencies about candidate species, describing Notices of Review as "important land use planning and habitat protection tools for state and federal agencies, private conservation organizations, private landowners and the scientific community [because] the advanced notice that a species may be listed in the future reduces the potential for serious conflict later with other activities" (S. Rep. No. 478, 100th Cong., 1st Sess. 7-8, 1988). In addition, each Notice of Review encourages consideration of candidate species in environmental planning. Including C2 species in these Notices of Review identified which species might be listed as endangered or threatened in the future. The FWS thus sought to avoid the need for formal listing by providing advance notice of the need for voluntary conservation actions. Without such notice, there is no comparable way for the potential "train wrecks" to be perceived and avoided by federal, state, and private parties.

(2) Providing a measure of species protection within the FWS's own programs. Over the years, the FWS incorporated the C2 List into many of its ESA programs. For example, the ESA requires "status surveys" in order to determine which species require formal listing (16 U.S.C. § 1533(b)(1)(A)). According to the FWS handbook titled Endangered Species Program: Candidate Species Guidance, the list of C2 species provided the foundation from which the FWS sorted and ranked species for status surveys (FWS 1994).

In addition, under Section 7 of the ESA, federal agencies must consult with the FWS to insure that their actions are not likely to jeopardize the continued existence of any endangered species (16 U.S.C. § 1536(a)(2)). As part of this process, the agency requests from the FWS a list of the species which may be affected by the planned action (50 C.F.R. § 402.12(c)). Among the list of species which the FWS provides are candidate species, which used to include C2 species (Id. at § 402.12(d)). As the FWS has explained, this process "provides a focus on the overall health of the local ecosystem" (FWS 1994, p. 3-4). Since the Section 7 process is the formal vehicle by which federal agencies can avoid further harming populations of species that might be formally listed, including consideration of C2 species in the Section 7 process likely resulted in fewer listings under the ESA.

Finally, under Section 10 of the ESA the FWS, in some circumstances, may issue a permit for the "take" of listed species, where the take is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity" (16 U.S.C. § 1539; 50 C.F.R. § 17.22(b)). In order to acquire such a permit, an applicant must submit, and the FWS must approve, a conservation agreement called a Habitat Conservation Plan (HCP). C2 species were routinely considered in these HCPs, which was entirely consistent with Congressional intent:

[T]he purposes and policies of the ESA are far broader than simply providing for the conservation of individual members of listed species. . . The conservation plan will implement the broader purposes of all of [the fish and wildlife statutes] and allow unlisted species to be addressed in the plan (H. R. Rep. No. 835, 97th Cong., 2d Sess. 30, 1982).

Moreover, to the extent the FWS provides assurances regarding future mitigation measures for HCPs that purport to consider all the species in an affected area, the consideration of C2 species is critical (Walley 1996). Without a list of relevant C2 species, HCPs are more likely to fail to address declines in unlisted species in the future.

(3) Encouraging other agencies to take action on behalf of these species. Because the FWS encouraged other agencies to consider C2 species in environmental planning, agencies throughout the federal government incorporated these species into their planning documents. Both the U.S. Forest Service and U.S. Bureau of Land Management (BLM) incorporated consideration of C2 species into their own manuals for agency programs, making consideration of such species a routine aspect of agency planning (BLM 1988; Forest Service 1991). Additionally, federal agencies routinely considered the effects their activities might have on C2 species when preparing environmental impact statements as required under the National Environmental Policy Act (NEPA).

On July 19, 1995, without any public participation or comment period, the FWS announced the elimination of the C2 List. According to the FWS, "[t]he designation of C2 species as candidates resulted in confusion about the conservation status of these taxa" (61 Fed. Reg. 7,596, 7,597 (1996)). Consequently, on February 28, 1996, the FWS published a Notice of Review which contained no list of C2 species ( Id.).

On April 1, 1996, a coalition of environmental groups and individuals filed suit over this decision. The plaintiffs claimed that by eliminating the C2 List, the FWS had failed to comply with the NEPA and the notice and comment requirements of the Administrative Procedure Act (APA), which directs all federal agencies to provide opportunities for public notice and comment when promulgating a rule. Plaintiffs sought the reinstatement of the C2 List, and compliance with both the NEPA and the APA.

On October 11, 1996, the parties settled the litigation. Pursuant to the settlement, the FWS published a notice soliciting public comment concerning changes to the C2 List (61 Fed. Reg. 48,875 (1996)). Numerous commenters urged the FWS either to retain the C2 List or to at least replace it with a system that would perform the same critical conservation functions. As the commenters explained, whatever confusion the C2 List caused could easily be rectified without eliminating its vital role in species' conservation.

On December 5, 1996, however, the FWS published a notice making a final decision to eliminate the C2 List (61 Fed. Reg. 64,481 (1996)). According to the FWS, species lists such as those compiled by state natural resource agencies and Natural Heritage Programs more accurately reflect species' status than the C2 List, and these lists will be used to track species that require attention. The lists to which the FWS referred include a significantly larger number of species than those that were on the former C2 List, and, if these species were to become C1 species, they might receive even more attention than species which were formerly in C2 status.

The FWS, however, failed to articulate how these lists will be used to substitute for the many functions of the C2 List. There is no assurance that they will be included in Section 7 consultations or Section 10 conservation planning. There is no indication that they will be provided to agencies to incorporate into their programs or to use in compliance under the NEPA. Additionally, there is no mechanism for public notification concerning which species are on these various lists. Until these species become C1 candidates--and the FWS does not indicate how that might occur--former C2 species will be lost from public view, at least until a crisis is imminent.

Former Director of the FWS Mollie Beattie (1996) once said:

All of us would agree that the most opportune time to conserve species and their habitat is before the protections of the Act are necessary. In fact, one of the shortfalls of how natural resources were previously managed was that not enough emphasis was placed on candidate conservation . . . . By being proactive, we hope to preclude the listing of many species in the future.

Unfortunately, in eliminating the C2 List the FWS is failing to ensure that species facing threats will receive the proactive attention they deserve. As a result, the status of species is more likely to deteriorate and we can expect to see more, not fewer, "train wrecks" in the future.

Beattie, M. April 17, 1996. Testimony on the Endangered Species Act implementation before the House Committee on Resources.

Bureau of Land Management. 1988. Bureau of Land Management Manual.

U.S. Forest Service. 1991. Forest Service Manual.

U.S. Fish and Wildlife Service. 1994. Endangered species program: candidate species guidance, draft 1994. See 59 Federal Register 65,680, December 21, 1994 for information on how to obtain a copy.

U.S. Fish and Wildlife Service. 1994. Endangered species consultation handbook, draft 1994. See 59 Federal Register 65,680, December 21, 1994 for information on how to obtain a copy.

Walley, K.K. 1996. Surprises Inherent in the No Surprises Policy. Endangered Species Update 13(8):8-9,14.

Howard Crystal is an associate at Meyer and Glitzenstein in Washington, D.C. Meyer and Glitzenstein is a public interest law firm specializing in issues such as wildlife and animal protection, environment and safe energy, open government, constitutional rights and civil liberties, and consumer protection.