Endangered Species Law & Policy

In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule on August 3, 2010 listing five species of penguins as "threatened" under the Endangered Species Act.  Specifically, the Service determined that the yellow-eyed, white-flippered, Fiordland crested, Humboldt, and erect-crested penguins are likely to become in danger of extinction within the foreseeable future.

None of the five species is native to the United States, and therefore no critical habitat is designated for the listed species.  Nevertheless, the listing triggers the requirement that federal agencies evaluate actions they take within the United States or on the high seas for their potential impacts on listed penguins.  The listing also enables the Secretary of the Interior to authorize financial assistance, personnel, and the training of personnel for management and conservation programs for the penguins.

Some contend that anthropogenic climate change is a major threat to the survival of the penguins.  While the Service acknowledged that the evidence of warming of the climate system is unequivocal, it concluded that the best available information does not indicate how increased sea level rise, ocean warming, or ocean acidification may affect the five penguin species.   Instead, the Service determined that other threats such as predation by introduced species, habitat loss, overfishing, unregulated ecotourism, and El Niño events were responsible for the population declines.

Under the terms of the settlement agreement, the Service must issue final rules regarding listing of the African penguin by September 30, 2010, and listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.