The Endangered Species Act protects threatened and endangered species, subspecies, and distinct population segments, with species listings guided by the best scientific information available. "Distinct population segment," however, is not a biological term. To date, there is still not a test based on evolutionary theory used to determine distinct population segments. This Comment attempts to change that by introducing the ecotype concept-a scientific theory that has existed for over one hundred years-into jurisprudence. This Comment begins by recounting how the distinct population segment terminology came to be. Next, it argues that the Endangered Species Act has been implemented contrary to its purpose of protecting the evolutionary process. It then modifies the test for determining distinct population segments with the aim of protecting populations in the early stages of ecological speciation and suggests using the ecotype concept as a guide to future listings. Lastly, this Comment follows the legal history of the Southern Resident killer whale and discusses how the ecotype concept would have applied to each twist and turn along its legal journey.

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