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New Endangered Species Act regulations out
Changes are from Interior, Commerce (Fish and Wildlife, National Marine Fisheries Service); those opposed say they plan to sue
Kristen Nelso Petroleum News
On Aug. 12 the U.S. Department of the Interior and the U.S. Department of Commerce signed off on revised regulations for the Endangered Species Act. As this issue of Petroleum News went to press the regulations had not yet appeared in the Federal Register.
In a press release the Department of the Interior called the changes “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.”
Secretary of the Interior David Bernhardt said the best way to uphold the ESA “is to do everything we can to ensure it remains effective in achieving its ultimate goal - recovery of our rarest species. … An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”
The American Petroleum Institute praised the changes for “the reduction of duplicative and unnecessary regulations that ultimately bog down conservation efforts.”
Among benefits API cited in an Aug. 12 statement was amendment of “the definition of ‘physical or biological features’ for lands under consideration as critical habitat for a species to confirm that lands do have the features essential to a species at the time of designation.”
The release also drew opposition.
A statement from Defenders of Wildlife said the new regulations “weaken implementation” of the ESA and said the changes “undermine the conservation of threatened and endangered species.”
Jamie Rappaport Clark, president and CEO of Defenders, said the world is “facing a sixth extinction crisis, but the Trump administration is focused on weakening the world’s most successful law to conserve imperiled species.” The changes “will result in fewer protections for species and their habitat,” the organization said.
Reduction of regulatory burden “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,” U.S. Secretary of Commerce Wilbur Ross said in the Aug. 12 release.
Regulations revised include those of Interior’s Fish and Wildlife Service and Commerce’s National Marine Fisheries Service and apply to sections 4 and 7 of the ESA. Among other things, Interior said, section 4 deals with adding species to or removing them from the Act’s protections and designating critical habitat, while section 7 covers consultations with other federal agencies.
The department said that determinations to add or remove a species from threatened or endangered status is “based solely on the best available scientific and commercial information, and these will remain the only criteria on which listing determinations will be based.”
Defenders of Wildlife said the changes “will open the door for the economic impacts of listing a species to be evaluated and presented in the listing rules.”
Interior said revisions clarify that delisting and reclassification consider the same five statutory factors as are considered when a species is initially listed, ensuring “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.”
Praise, criticism The changes drew praise and criticism.
Congressional support included a statement by Congressman Don Young, R-Alaska.
“As the only currently serving Member of Congress who voted for the original Endangered Species Act of 1973, I can say with great confidence that the courts have turned it into a bureaucratic nightmare that could not have been anticipated. With these new rules, the Department of the Interior is helping to reign in the ESA and bring it closer to its Congressional intent.”
Efficiency was another focus of laudatory comments. “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,” said U.S. Sen. Kevin Cramer, R-North Dakota.
U.S. Sen. Steve Daines, R-Montana said: “This is a win for Montana and the West, and will help restore commonsense, science-based decision making when it comes to the Endangered Species Act.”
Congressman Dan Newhouse, R-Washington said in his state, “we have seen firsthand how arcane restrictions from an outdated Endangered Species Act have tied the hands of local governments and conservationists.”
On the opposing side, The Washington Post reported that within hours of the announcement, state attorneys general in California and Massachusetts had joined Defenders of Wildlife in declaring the changes to be illegal and vowing court challenges.
“You can anticipate that we will see many states join this action,” The Washington Post quoted Maureen Healey, attorney general of Massachusetts. “The way this was done was illegal under federal laws, and this is an administration that needs to be held accountable,” Healey said.
The Hill quoted Sen. Tom Udall, D-New Mexico, as saying “ESA has been a pillar of environmental protection in this nation” for more than 40 years, with undeniable success and support. “But this administration’s determination to dismantle bedrock environmental laws, turn a blind eye to science, and roll over for special interests apparently knows no bounds.”
California Attorney General Xavier Becerra, a Democrat, was quoted by The Hill as saying Congress, not the administration, has the power to change the ESA, and that the review process for the regulations has not followed the Administrative Procedures Act.
Matching regulations One of the changes in the regulations is from the Fish and Wildlife Service which is revising its “regulations related to threatened species to remove the prior default extension of most of the prohibitions for activities involving endangered species to threatened species,” FWS said in documents prepared for the Federal Register listing.
Interior said in its release that this change rescinds the FWS “blanket rule” which “had automatically given threatened species the same protections as endangered species unless otherwise specified.”
The National Marine Fisheries Service had no such blanket rule, “so the new regulations bring the two agencies into alignment,” the department said.
Only future threatened species’ listings or reclassifications from endangered to threatened are impacted, Interior said, and FWS will craft specific “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.”
Critical habitat Interior said the administration recognizes the value of designating critical habitat, “in some cases, designation of critical habitat is not prudent” and said while the revisions “identify a non-exhaustive list of such circumstances” those 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,” reducing the potential for “additional regulatory burden that results from a designation when species are not present in an area,” the department said.
The department said that existing standards require what unoccupied habitat which is designated as critical be “essential to the conservation of the species,” with the addition in the revisions that the area must, “at the time of designation, contain one or more of the physical or biological features essential t the species’ conservation.”
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