Fish and Wildlife chief counters attacks on endangered species
WASHINGTON, April 27, 2016 - House
Republicans held three hearings last week to spotlight what they characterized
as federal land grabs enabled by the Endangered Species Act (ESA) and committed
by the U.S. Fish and Wildlife Service (FWS), which fought back against the
charges.
Utah Republican Rob Bishop, chairman of the
House Natural Resources Committee, opened the first of the hearings on Tuesday by
bashing the agency’s newly finalized rules pertaining to ESA’s critical habitat
designation policy.
Critical
habitat designations for ESA-listed species are required by the
law when “prudent and determinable,” but usually take several years or more to
finalize after a species is listed because of FWS’ budget constraints. The
designation protects a listed species by identifying the lands that are
“essential to the species’ recovery” and requiring the federal government to
consult with FWS before it takes action that is “likely to destroy or adversely
modify” that critical habitat.
Bishop argued that the new rules finalized
by FWS in February “will now make it even easier for the federal government to
absorb larger and larger swaths of land and water… from local, state
governments and private citizens.”
FWS Director Dan Ashe said that was not the
case, referring to the rules as detailed in the Federal Register. According to
FWS, the rules only clarified the definition for what can be designated as
critical habitat, and aren’t likely to have much, if any, ill effect on
development projects on public lands.
One rule defines two previously undefined
concepts that in the past had invited litigation: “geographic area occupied by
the species” and “physical or biological features.” FWS says it defined these
terms in keeping with the law’s original intent and in a way that critical
habitat could be designated in areas that do not currently support a listed
species.
“If critical habitat is being designated or
revised several years after the species was listed, it can be difficult to
discern what was occupied at the time of listing,” FWS says in the Federal
Register. “The known distribution of a species can
change after listing” if new or more suitable habitat is discovered, the population
at the time of listing was nearly extinct and only occupying a fraction of the
area necessary to recover the species, or if some individuals emigrated to new
areas, the agency says.
Ashe said the new definitions allow for the
inclusion of data “developed since the species was listed.” The second rule
redefined “adverse modification,” as “direct or indirect alteration that
appreciably diminishes the value of critical habitat,” after the previous
regulatory definition had been invalidated by several courts for being
inconsistent with the language in the ESA.
Nothing is expected to be done differently
in the consultation process for a development that is likely to affect a listed
species’ habitat as a result of this change, Ashe explained. What’s more, he
said, there hasn’t been a single project stopped or altered because of an FWS
adverse modification finding during the Obama administration in which there
were more than 88,000 consultations – an assertion backed up by a 2015 peer-reviewed
article published by the National Academy of
Sciences.
Botanist Loyal Mehrhoff, the endangered
species recovery director for the Center for Biological Diversity and a former
FWS field supervisor, said over the course of his career he had never heard of
an adverse modification finding. “Critical habitat designations do not affect
private development on private lands if there is no federal nexus or federal
permit required,” Mehrhoff testified. “Nor does (a critical habitat
designation) establish de facto wilderness areas or limit public access to
public lands.”
Ashe said critical habitat was compatible
with livestock grazing, causing some to remember the slogan “What’s good for
the bird is good for the herd” that became popular during the campaign against
the listing
of the greater sage grouse. He said it could even jibe with energy
development.
“When next any of you are flying into Las
Vegas… you are going to see the largest commercial solar facility in the world…
right smack dab in the middle of (the ESA listed) gopher
tortoise critical habitat,” he said.
Several Republican lawmakers in the two
subsequent House hearings on ESA criticized critical habitat designations for
reducing property values and deterring developers from taking on projects.
“I don’t. I really don’t… want to do away
with (the) Endangered Species (Act),” Texan Louie Gohmert said. “But I’ve seen
the inequities caused by the (ESA)… the billions and billions of dollars that
have gone into saving maybe not even 1 percent of the endangered species. Some
of us feel like there’s got to be a better way where you don’t take away
private property rights.”
“I am aware of no scientific evidence
whatsoever that critical habitat has resulted in reduction of property value,”
Ashe maintained. Private landowners are only prohibited from “taking”
a listed species – which refers to killing, injuring or harassing it – unless
they have a permit, he said.
Speaking with Agri-Pulse after the last
hearing, Ashe said, “cutting budgets to implement the Endangered Species Act
isn’t going to help private landowners. We actually need more people in the
field if we’re going to the do the kinds of things that members (of Congress)
want done – to accommodate development in a way that’s not going to impact
species survival.”
#30
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