On Monday, U.S. Secretary of the Interior David L. Bernhardt announced improvements to the Endangered Species Act (ESA) implementing regulations, which were welcomed by those in the agriculture sector while criticized by environmental groups.
In its more than 45-year history, the 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. Still, the U.S. Department of Interior said the proposed actions help bring the act into the 21st century in reaching the ultimate goal: recovery of the rarest species.
The changes finalized by DOI’s U.S. Fish & Wildlife Service (FWS) and the U.S. Department of Commerce’s National Marine Fisheries Service (NMFS) apply to ESA sections 4 and 7. Section 4 deals with, among other things, adding species to or removing species from the ESA’s protections and designating critical habitat. Section 7 covers consultations with other federal agencies.
“With these new rules, common sense will once again be inserted into the ESA process,” Public Lands Council president Bob Skinner noted. “Among other things, prioritizing critical habitat designations on occupied territory, streamlining the consultation process and rolling back the ‘Blanket 4(d) Rule’ demonstrates that the agencies are reaffirming their commitment to both conserve sensitive species and safeguard rural economies.”
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.”
American Farm Bureau Federation president Zippy Duvall said the regulations make real-world species recovery more likely as a result. He said the regulations restore the traditional distinction between a 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. This approach will eliminate unnecessary time and expense and ease the burden on farmers and ranchers who want to help species recover,” Duvall said.
DOI said 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, the agency said.
From comments received during the public comment period on 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.
Duvall said the Farm Bureau is pleased to see that lands to be designated as unoccupied critical habitat for threatened and endangered species will have to actually include at least one physical or biological feature needed to conserve the species.
With a 3% recovery rate in its nearly half-century history, it is far past time that we bring the ESA into the 21st century, Congressional Western Caucus chairman Paul Gosar (R., Ariz.) said, adding that the actions will strengthen the overall functionality of the ESA and allow more resources to go to truly endangered species.
“The ESA affects cattle-producing families across the country,” National Cattlemen’s Beef Assn. president Jennifer Houston said. “We are grateful to Secretary Bernhardt and the staff at FWS and NMFS for bringing this long-awaited regulatory relief to American cattle farmers and ranchers.”
Sen. Jim Inhofe (R., Okla.) said he has seen how the ESA can be abused by environmental activist agendas, and this proposal will increase transparency and end the practices of one-size-fits-all reactions. ‘We can end their sue-and-settle tactics while promoting responsible conservation without heavy-handed government intervention,” Inhofe said.
“The Endangered Species Act exists to identify struggling species and help them recover. Unfortunately, current implementation is drawn out and ineffective. Today’s actions will help achieve actual species recovery while providing much-needed clarity and stability to those who are too often held hostage by the ESA,” Sen. Kevin Cramer (R., N.D.) added.
Meanwhile, environmental groups voiced opposition to the proposed changes.
Rebecca Riley, legal director for the Nature Program at the Natural Resources Defense Council (NRDC), said consumer polls support the ESA, but this Administration “ignored the hundreds of thousands of objections from scientists, wildlife experts and the American people who overwhelmingly support” the ESA.
NRDC stated late last year that a report revealed a 60% decline in the populations of mammals, birds, fish, reptiles and amphibians around the world in just more than 40 years.
Kitty Block, president and CEO of The Humane Society of the United States, and Sara Amundson, president of the Humane Society Legislative Fund, wrote in a joint blog post that the proposed action “amounts to a ‘death-by-a-thousand-cuts’ approach and aims to extinguish one of the country’s most effective statutes, on which the survival of so many wildlife species depends. The ESA has saved more than 99% of listed species from going extinct, and if it is weakened, it will be much more difficult to ensure that threatened and endangered animals, including species like the bald eagle, the grizzly bear and African lions and elephants, do not go extinct.”
The National Wildlife Federation expressed concerns with the proposal. “While we appreciate some of the improvements between the draft and final rule, the simple truth is that this final package creates more certainty for industry without any corresponding enhancements that would help hasten the recovery of the imperiled species which the Endangered Species Act was designed to protect. Rather than reducing protections, we urge Congress to take action and enact proactive solutions, which match the magnitude of the wildlife crisis by investing at-scale in the collaborative on-the-ground recovery of at-risk species,” federation president and CEO Collin O'Mara said in a statement.
Barring court action, the rules package will officially take effect following a 30-day objection period.