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Environmental Law

: ESA Blawg

FWS proposes "non-essential experimental population" of Rio Grande silvery minnows (yes, I'll explain...)

By Keith Rizzardi

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73 Fed. Reg. 9755-9756 (Feb. 22, 2008)(Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Rio Grande Silvery Minnow in the Big Bend Reach of the Rio Grande in Texas)

SUMMARY: "We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed rule and draft environmental assessment regarding our proposal to establish a nonessential experimental population of Rio Grande silvery minnow (Hybognathus amarus), a Federally listed endangered fish, into its historic habitat in the Big Bend reach of the Rio Grande in Presidio, Brewster, and Terrell counties, Texas… We will accept public comments received or postmarked on or before March 10, 2008."

NOTEABLE DISCUSSION: "We propose to reestablish the Rio Grande silvery minnow under section 10(j) of the Endangered Species Act of 1973, as amended (Act), and to classify it as a nonessential experimental population (NEP) (72 FR 50918). {The rule further describes the geographic areas along the Rio Grande and the Pecos River.} This proposed reestablishment is part of the recovery actions that the Service, Federal and State agencies, and other partners are conducting throughout the species' historic range. The proposed rule provides a plan for establishing the NEP and provides for limited allowable legal taking of Rio Grande silvery minnows within the defined NEP area.

Photo of silvery minnow from FWS available online from Wikipedia

COMMENTARY: ESA Section 10(j) of the ESA states that "For purposes of this subsection, the term 'experimental population' means any population (including any offspring arising solely there from) authorized by the Secretary for release... but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species." These populations are treated skin to threatened species, but with some differences, as further explained in the learned treatise ESA: Endangered Species Act, by Tony A. Sullins (ABA, 2001) at Appendix B, page 165 (viewable online through Google Books):

An essential experimental population of a species is one whose loss would be likely to appreciably reduce the likelihood of survival of the species in the wild. All other experimental populations are considered non-essential. There are two key differences in management of essential and non-essential populations. First, FWS and NMFS may designate critical habitat for essential experimental populations, but not for non-essential populations. Seconds, Section 7 consultations are relaxed for non-essential populations; consultation is only required for federal actions affecting non-essential populations occurring on National Park Service or FWS refuge lands. Standard Section 7 consultation requirements apply to essential experimental populations.

Accordingly, this action has the affect of changing, and potentially reducing, the burdens of administering the ESA with respect to some portions of the Rio Grande silvery minnow's habitat.

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