Endangered listing for Delta smelt warranted but precluded

Finally completing work on a petition submitted by the Center for Biological Diversity in 2006, the US Fish and Wildlife Service has determined that reclassifying the Delta smelt from threatened to endangered is “warranted but precluded.” That means the population decline is dramatic enough to justify the conclusion that the smelt is in fact endangered, but FWS has too much else on its plate right now to do the work of reclassifying it.

There is little doubt that the smelt currently falls within the Endangered Species Act’s definition of “endangered” (“in danger of extinction throughout all or a significant portion of its range”). The smelt population is notoriously difficult to monitor, but annual surveys by the California Department of Fish and Game show dramatic declines since about 2002. According to FWS, the delta smelt index “is now estimated at the lowest level ever measured-roughly one and a half percent of the 1980 index level.” California’s Fish and Game Commission reclassified the delta smelt as endangered last year.

But FWS is also probably right to put reclassification of the delta smelt behind other actions. It makes essentially no regulatory difference whether the fish is classified as endangered or threatened. In either case, it is protected against “take” by the ESA, and consultation on federal actions under section 7 must consider the latest scientific information, including those record-low population estimates. Under the circumstances, it makes sense to prioritize regulatory work on other species that don’t yet have any protection.

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