Interior Plan To Modify Endangered Species Act Gets Mixed Reaction

Today, Secretary of the Interior David Bernhardt announced changes to the Endangered Species act that will bring mixed reaction from those who will be affected most by the changes.

Here’s the official statement from Bernhardt with the following headline:

Trump Administration Improves the Implementing Regulations of the Endangered Species Act

Species recovery the ultimate goal

Washington – In its more than 45-year history, the Endangered Species Act (ESA) has catalyzed countless conservation partnerships that have helped recover some of America’s most treasured animals and plants from the bald eagle to the American alligator. Today, U.S. Secretary of the Interior David Bernhardt unveiled improvements to the implementing regulations of the ESA designed to increase transparency and effectiveness and bring the administration of the Act into the 21st century.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Secretary Bernhardt. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

“The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”

The changes finalized today by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from the Act’s protections and designating critical habitat; section 7 covers consultations with other federal agencies.

The ESA directs that determinations to add or remove a species from the lists of threatened or endangered species be based solely on the best available scientific and commercial information, and these will remain the only criteria on which listing determinations will be based. The regulations retain language stating, “The Secretary shall make a [listing] determination solely on the basis of the best scientific and commercial information regarding a species’ status.”

The revisions to the regulations clarify that the standards for delisting and reclassification of a species consider the same five statutory factors as the listing of a species in the first place. This requirement ensures that all species proposed for delisting or reclassification receive the same careful analysis to determine whether or not they meet the statutory definitions of a threatened or endangered species as is done for determining whether to add a species to the list.

While this administration recognizes the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. Revisions to the regulations identify a non-exhaustive list of such circumstances, but this will continue to be rare exceptions.

When designating critical habitat, the regulations reinstate the requirement that areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered. This reduces the potential for additional regulatory burden that results from a designation when species are not present in an area. In addition, the regulations impose a heightened standard for unoccupied areas to be designated as critical habitat. On top of the existing standard that the designated unoccupied habitat is essential to the conservation of the species, it must also, at the time of designation, contain one or more of the physical or biological features essential to the species’ conservation.

To ensure federal government actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat, federal agencies must consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service under section 7 of the Act. The revisions to the implementing regulations clarify the interagency consultation process and make it more efficient and consistent.

The revisions codify alternative consultation mechanisms that may provide greater efficiency for how ESA consultations are conducted. They also establish a deadline for informal consultations to provide greater certainty for federal agencies and applicants of timely decisions, without compromising conservation of ESA-listed species.

Revisions to the definitions of “destruction or adverse modification,” “effects of the action” and “environmental baseline” further improve the consultation process by providing clarity and consistency.

In addition to the final joint regulations, the U.S. Fish and Wildlife Service finalized a separate revision rescinding its “blanket rule” under section 4(d) of the ESA. The rule had automatically given threatened species the same protections as endangered species unless otherwise specified.

The National Marine Fisheries Service has never employed such a blanket rule, so the new regulations bring the two agencies into alignment. The change impacts only future threatened species’ listings or reclassifications from endangered to threatened status and does not apply to species already listed as threatened. The U.S. Fish and Wildlife Service will craft species-specific 4(d) rules for each future threatened species determination as deemed necessary and advisable for the conservation of the species, as has been common practice for many species listed as threatened in recent years.

From comments received during the public comment period in making these regulatory changes, concerns were raised regarding the lack of transparency in making listing decisions and the economic impact associated with determinations. Public transparency is critical in all government decision making, and the preamble to the regulation clarifies that the ESA does not prohibit agencies from collecting data that determine this cost and making that information available, as long as doing so does not influence the listing determination.

The final regulations submitted to the Federal Register can be found here: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html.

Conservationists are staunchly against the regulatory changes. Close to home. here’s some reaction from the Golden Gate Salmon Association, which has fought to protect California’s precarious Chinook salmon runs:

GGSA’s president John McManus also weighed in:

“Here in California we’re likely to see salmon, sturgeon, steelhead trout, wolves, wolverines, kit fox and many others all slide towards extinction as a result of today’s action by the Trump White House.  It’s clear that the Trump administration actions are aimed at helping developers, large agribusinesses, multi-national mining companies and others profit at the expense of our natural areas and wildlife.  This will hurt the people of California who rely on healthy natural resources to make a living, including salmon fishermen and women.”

The hunting organization Boone and Crockett Club had a different take on the news:

MISSOULA, Mont. (August 12, 2019) – According to the Boone and Crockett Club, one of the most significant pieces of legislation in the history of wildlife conservation, now almost 50 years old, is undergoing much-needed steps toward modernization to improve efficiency.

Secretary of the Interior, David Bernhardt, today signed new Endangered Species Act (ESA) rules that increase transparency, make it easier for the U.S. Fish and Wildlife Service (Service) to work with the states and give landowners more opportunities to promote conservation for imperiled species.

 

“We welcome the actions taken today by the Secretary and his staff,” said Timothy C Brady, president of the Boone and Crockett Club. “The most powerful changes made today open the possibility of positive action to restore listed species.”

 

The new rules include a provision for protections that will enable the Service to identify, at the time a threatened species is listed, the beneficial actions already being taken by states and private entities to help declining species. The rules also include a similar provision by which the Service will consider beneficial actions when evaluating federal activities, as well as create incentives for private funds and actions to go to species conservation in return for assurances against ESA penalties.

 

“One of the ESA’s shortcomings has been a clear pathway where the Service can collaborate with state experts who are working on the ground where species live.” explained Brady. “Another is incentivizing private landowners, allowing them to participate instead of being shut out of species recovery and security efforts. The new rules are a common sense approach to addressing both of these limitations.”

 

Other improvements cited by the Club include clarity in the responsibilities of the Service, designation of unoccupied critical habitat, standards for delisting, bundling of related analyses, and basic definitions, all designed to eliminate confusion and misguided litigation.

 

“As pleased as we are to see this progress, these changes are still limited to options available within the current outdated law,” Brady concluded. “There is much more work to do. The ESA itself needs modernization to catch up to modern developments in ecology and management, such as the establishment of a priority system to replace the unscientific blanket requirement that all listing decisions be made within one year.”

 

Some other social media reaction:

 

 

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