This proposed policy differs substantially from the DOI’s M-Opinion interpretation. The new proposal requires that if a species is found to be threatened or endangered in a significant portion of its range, the entire species must be listed and protections of the ESA applied throughout its range. However, if the significant portion of the range is the exact same area inhabited by a “distinct population segment” of the species, only the distinct population segment would be listed. A distinct population segment is a vertebrate animal population or group of populations that is discrete from other populations of the species and significant to the overall species.

In contrast, under the M-Opinion, only individuals of a species found within the “significant portion of its range” were protected under the ESA. Today’s proposed policy also establishes a more specific and stringent standard to evaluate whether a portion of a species’ range would be considered “significant” than the standard applied under the M-Opinion interpretation. This higher bar will ensure that the species being evaluated for ESA protection on the basis of threats to only a significant portion of its range are truly in need of conservation.

Before finalizing the policy, FWS and NOAA are seeking public comments on the proposal for 60 days beginning on the date of the proposed rule’s publication in the Federal Register. All comments will be posted on You may submit written comments and information through:

Federal eRulemaking Portal: Follow the instructions for submitting comments to Docket No. [FWS–R9–ES–2011–0031];


U.S. mail or hand delivery: Public Comments Processing, Attn: [FWS–R9–ES–2011–0031]; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203.

Until the policy is final, FWS and NOAA Fisheries have an obligation to meet statutory timeframes and make determinations in response to petitions to list, reclassify, and delist species. During this interim period, FWS and NOAA Fisheries will consider the interpretations and principles in this proposed policy as nonbinding guidance in making individual listing determinations. As nonbinding guidance, FWS and NOAA Fisheries will apply these interpretations and principles only as the circumstances warrant, and the agencies will independently explain and justify any decision made in this interim period in light of the circumstances of the species under consideration. In preparing a final policy, FWS and NOAA Fisheries will consider all comments and information received during the comment period on this proposed policy, as well as experience gained during the interim period.