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1 1 (May 23, 2023)

handle is hein.crs/govelsn0001 and id is 1 raw text is: Congressional Research Service Informing the legislative debate since 1914 0 May 23, 2023 Experimental Populations Under the Endangered Species Act Section 10(j) of the Endangered Species Act (ESA; 16 U.S.C. §§ 1531 et seq.) allows for the establishment of experimental populations of endangered or threatened species listed under the act and delineates how they are to be regulated. Congress added Section 10(j) to the ESA as part of the Endangered Species Act Amendments of 1982.The amendments gave the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) more flexibility to determine how to protect and manage experimental populations, and they altered certain agency consultation requirements for nonessential experimental populations. With certain exceptions, experimental populations are treated as threatened species under the ESA regardless of the designation of the listed species generally. This treatment allows the Services to tailor the protections and exceptions that apply to the population, providing for flexible management while contributing to the conservation of the species. The Services have established more than 60 experimental populations for many kinds of species. Examples include the gray wolf, grizzly bear, black-footed ferret, California condor, Chinook salmon, Anthony's riversnail, and American burying beetle. Two experimental populations of gray wolf that were released in Idaho, Montana, and Wyoming in the mid-1990s eventually allowed the resultant distinct population segment to be delisted through administrative and legislative action. This In Focus describes the criteria and process for establishing and regulating 10(j) experimental populations. Experimental Population Criteria Section 10(j) authorizes the Secretary of the Interior or of Commerce, as delegated to FWS or NMFS, respectively, to release endangered or threatened species into the wild outside the current range of the species, provided the Services determine that the release will contribute to the conservation of the species. Experimental populations must be wholly separate geographically from any non- experimental populations of the species. The Services have each enacted regulations to implement Section 10(j). Outside the Species' Current Range Section 10(j) requires that the Services release experimental populations outside the species' current range. FWS regulations further require the experimental population to be released into suitable natural habitat. In addition, FWS generally requires the release to be within the species' historical range except in the extreme case where FWS concludes that the species' habitat within its historical range has been irreversibly altered or destroyed so as to render it unsuitable for the species. Wholly Separate Geographically The Services' regulations provide that the geographic separation between the released population and existing populations must be reasonably predictable. For example, fixed migration patterns or natural or manmade barriers between the populations may create sufficiently predictable separation. When making this determination, the Services focus on the population as a whole rather than individuals within the population. Individuals from an experimental population that venture into an area of overlap with the non- experimental population are not recognized as part of the experimental population while they are intermixed with a non-experimental population. Contribution to the Conservation of the Species The ESA requires that the establishment of an experimental population must contribute to the conservation of the listed species. The Services must consider whether removing individuals from existing populations to establish the experimental one will adversely affect those populations. They must also consider whether the experimental population is likely to survive for the foreseeable future and meet population goals. The agencies must further examine the anticipated effects that establishing an experimental population will have on the species' recovery. Finally, the Services must determine whether and to what extent existing or anticipated federal or state actions or private activities may be affected by establishing an experimental population. Each factor must be determined based on the best commercial and scientific data available. Designation as Essential or Nonessential When the Services designate an experimental population, Section 10(j) of the ESA also requires that they determine whether the experimental population is essential to the continued existence of the species. The Services designate such experimental populations as essential experimental populations and all others as nonessential experimental populations. These determinations are made based on the best available information. Pursuant to their regulations, the Services consider an experimental population to be essential if losing the population would likely appreciably reduce the likelihood of the species surviving in the wild. To date, no experimental population has been designated as essential. Implications of Designation In general, even if a species is listed as endangered, experimental populations of that species are treated as threatened species under the statute. The prohibitions in Section 9 of the ESA, such as on importing or exporting

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