The Interior and Commerce departments have announced changes to the Endangered Species Act that were cheered by farmers and ranchers but harshly criticized by environmentalists, who vowed to challenge them in court.
Three new rules will make a variety of changes to the ESA, including narrowing areas to be considered for critical habitat designations, allowing the Fish and Wildlife Service and National Marine Fisheries Service to gather information on the economic impacts of listing species, and setting standards for deciding whether federal agencies’ mitigation efforts are sufficient to address harm to listed species.
The ESA has been praised for preventing the extinction of species listed as threatened or endangered from going extinct and, in some cases, recovering them to the point they no longer needed federal protection. But it also has been a target of industries such as developers and agribusinesses, who claim the law is confusing and discourages disparate parties from working together to conserve species habitat.
American Farm Bureau Federation President Zippy Duvall said the new rules "restore the traditional distinction between threatened and endangered species."
“In the real world, the things we must do to restore a threatened species are not always the same as the ones we’d use for endangered species," Duvall said in a statement. "This approach will eliminate unnecessary time and expense and ease the burden on farmers and ranchers who want to help species recover."
Public Lands Council President Bob Skinner pointed to “prioritizing critical habitat designations on occupied territory, streamlining the consultation process, and rolling back the ‘Blanket 4(d) Rule,’” as signs the U.S. Fish and Wildlife Service and National Marine Fisheries Service “are reaffirming their commitment to both conserve sensitive species and safeguard rural economies.”
On the other side, the Center for Biological Diversity and a host of other environmental groups blasted the rules.
“These regulations are totally out of touch with the American public, which broadly supports endangered species protections,” CBD Endangered Species Director Noah Greenwald said. “We’ll do everything in our power to get these dangerous regulations rescinded, including going to court.”
Rebecca Riley, legal director at the Natural Resources Defense Council, said the Trump administration “ignored the hundreds of thousands of objections from scientists, wildlife experts, and the American people who overwhelmingly support the Endangered Species Act.”
The blanket 4(d) rule had extended the same protections to threatened species, defined as those likely to become endangered in the “foreseeable future,” as received by endangered species. Now, the services will issue separate rules for threatened species with species-specific protections or prohibitions.
The change only applies to FWS, because NMFS, which has jurisdiction over marine species, “has successfully implemented the provisions of the act using this approach” for more than 40 years, the final rule addressing the ESA’s Section 4(d) states.
One change welcomed by industry but criticized by environmental groups would remove a longstanding prohibition against considering economic impacts when making listing decisions. The services went ahead with the change, but said they recognize the ESA requires listing decisions be made without regard to economic effects.
“We’re continuing to make decisions based on the best scientific information and not economic impacts,” Gary Frazer, FWS assistant director for ecological services, said on a conference call with reporters Monday.
FWS and NMFS also will focus primarily on occupied habitat when designating critical habitat for listed species. The services said in their listing and critical habitat rule that they will look at unoccupied areas “only upon a determination that such areas are essential for the conservation of the species.”
“The main problem with forcing the services to evaluate occupied habitat first is that it creates the risk of overlooking unoccupied habitat that may be more effective or less costly at recovering a species,” the Environmental Policy Innovation Center said in evaluating the proposal when it came out a year ago.
FWS and NMFS are required to designate “critical habitat” for listed species, defined as areas “essential” to the species’ conservation. The designations affect only federal agency actions or federally funded or permitted activities, but can affect private activities if there is a federal “nexus,” such as an Army Corps of Engineers’ wetlands permit.
The services are also trying to make interagency consultations on agency actions, such as approving dam operations, more efficient by lowering the bar on approving federal agencies’ mitigation efforts. Other federal agencies considering projects that may harm endangered species or their critical habitat will not have to produce specific plans showing how they intend to mitigate for those harms.
Case law has created confusion about when agency mitigation commitments can be considered in approving agency actions, the services said. “Some courts have inappropriately conflated the services’ role with that of the action agency by concluding the services cannot lawfully consider measures proposed to avoid, minimize, or offset adverse effects unless we second-guess the intent and veracity of an action agency’s commitments,” they said in the rule on interagency cooperation.
They added, however, that “any type of action proposed by a federal agency receives a presumption that it will occur, but it must also be described in sufficient detail that the services can both understand the action and evaluate its adverse effects and beneficial effects.”
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