Final Endangered Species Act Changes

Final Rules Remove Blanket Protections for Both Threatened, Endangered Species

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Fish and Wildlife Service finalized several changes to the Endangered Species Act this week. The lesser prairie chicken is one of hundreds of species that have been protected by the ESA. (Photo by Marcus Miller, Natural Resources Conservation Service)

OMAHA (DTN) -- The federal government finalized three rules on Monday that make a number of changes to the Endangered Species Act, after introducing the proposal in 2017 as a result of an executive order signed by President Donald Trump.

Most notably, the U.S. Fish and Wildlife Service removed its blanket rule in the ESA that automatically grants the same protections for threatened species that are available for endangered species.

The final rules do not affect protections for species currently listed as threatened, but instead will receive protections tailored to species' individual conservation needs.

Gary Frazer, assistant director for endangered species at USFWS, said during a news conference on Monday the ESA included protection for species for the "foreseeable future" but did not define the term.

"We'll look out into the future as far as we can reliably predict," Frazer said, "so long as we can determine threats and species' reaction to those threats. Our purpose in codifying is we want to be clear and make sure they are reasonable determinations.

"There are zoning plans that reach out 30 to 50 years. When you reach out to 70 to 80 years, the confidence in predictions starts to degrade significantly."

Farmers and ranchers across the country face challenges in managing their land when critical habitats are present.

By most accounts the Endangered Species Act hasn't done the job it set out to do in 1973 and has recovered only a few endangered species.

As of July 2016, 34 of 1,596 listed species were delisted because of recovery, or a success rate of 2.1%, according to USFWS. About 75% of listed species use private land as habitat.

American Farm Bureau Federation President Zippy Duvall said in a statement on Monday the reforms will make species recovery more likely.

"These new regulations restore the traditional distinction between threatened and endangered species," he said. "That's important. 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. This approach will eliminate unnecessary time and expense and ease the burden on farmers and ranchers who want to help species recover.

"Keeping species on the endangered list when they no longer face the threat of extinction takes valuable resources away from species that still need ongoing protection under the ESA. These new regulations will provide much needed consistency in the listing and delisting process to better allocate critical resources to species in need."

The final rules also require that lands designated as unoccupied critical habitat, have to include at least one physical or biological feature needed to conserve the species.

"While this administration recognizes the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent," USFWS said in a news release. "Revisions to the regulations identify a non-exhaustive list of such circumstances, but these 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."

BEST-AVAILABLE SCIENCE

The final rules state that decisions made to add or remove species from the threatened and endangered lists will continue to be based solely on best-available scientific and commercial information.

USFWS said it received public comments stating concern about a lack of transparency in making listing decisions, and the economic effects associated with those decisions.

"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 USFWS said in a news release.

Revisions made, however, will now require consideration of the same factors when looking at delisting and reclassification of species that were used in listing 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," USFWS said.

ECONOMIC FACTORS NOT CONSIDERED

While the Trump administration has urged federal agencies to consider economic factors when it comes to federal rules and regulations, Frazer said the agencies have not developed a method for considering the economic effects of species listings.

Changes made to section 7 of the ESA, make it less likely for government actions to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat.

Federal agencies are required to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service. Revisions made in the final rules are designed to clarify the interagency consultation process.

In addition, the new rules establish a 60-day deadline for informal consultations. The deadline is designed to help provide more certainty for federal agencies and applicants that timely decisions will be made without compromising conservation of listed species.

Environmental groups were unified in their opposition to the ESA changes.

Environmental Defense Fund Senior Attorney Holly Pearen, said in a statement the Trump administration's actions will harm wildlife.

"Many of the rule changes are overtly political, do nothing to enhance science-based decision-making, and undermine key incentives for proactive and collaborative conservation," Pearen said. "Further, they would allow the agencies to deliberately ignore how plants and animals, just like people, are affected by the impacts of climate change. To get ahead of this problem, we urgently need flexible and innovative policies that reward collaborative conservation on private lands, where wildlife is most threatened and where we can make the biggest advances in restoring habitat."

Christy Goldfuss, senior vice president for energy and environment policy at the Center for American Progress, said the new rules will make matters worse for species that need protection.

"The final rules sideline science, allow industry to put a price on extinction, and deal a major blow to the prospect of recovery for America's imperiled wildlife," she said in a statement. "At a time when more species are threatened by climate change and natural area loss, these rule changes undercut one of the country's most successful environmental laws that since its inception has helped keep 99% of listed species from going extinct."

Read the final regulations here: https://www.fws.gov/…

Todd Neeley can be reached at todd.neeley@dtn.com

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(CZ)

Todd Neeley