In early August, the Trump administration rolled out its long-anticipated update to Endangered Species Act implementation, intended to reflect 21st century conservation challenges. The administration’s proposed regulations are intended to better ensure agency actions are clear and consistent and provide the maximum degree of regulatory predictability to those affected by it – like Western farmers and ranchers.
The federal government’s significant presence in the West presents unique challenges for farmers and ranchers. This is particularly true with respect to the reach of the ESA. Implementation of the ESA impacts the management of land and water throughout the West. For example, federal water supplies originally developed by the Bureau of Reclamation primarily to support new irrigation projects have, in recent years, been targeted and redirected to other uses.
The result is that these once-certain water supplies – one of the few certainties in Western irrigated agriculture – have now been added to the long list of existing uncertainties. Farmers, ranchers and rural communities, from California’s Central Valley to the Columbia River Basin to the Klamath Basin to the Deschutes River (Oregon), have been impacted by these decisions.
We strongly support this administration's efforts to modernize and improve the ESA and its implementing regulations to provide clearer direction to the agencies in applying and enforcing the law. For example, the proposed regulations address a concern for many Western water users impacted by ESA implementation: the definition of “environmental baseline.”
Water managers correctly believe that pre-existing infrastructure like dams, including the ongoing operation of that infrastructure, should be part of the environmental baseline included in ESA consultation processes. Unfortunately, that is not how others view it. Critics argue that the mere existence of dams should be considered an agency action, and therefore subject to ESA Section 9 liability.
Dealing with reality
The fact is, the dams exist. They are not the subject of proposed construction or other action capable of modification. Proposed operations are separate from the existence of the structures. In other words, were federal agencies like Reclamation to take no action whatsoever, the dams would continue to exist.
Other activities where the environmental baseline is a consideration include the continuing operation of other federal water projects, administration of the National Flood Insurance Program and implementation of resource management plans by the U.S. Forest Service.
The proposed agency regulations have identified a stand-alone definition of “environmental baseline” that makes it clear that establishing the baseline for a consultation is a separate consideration from describing the effects of the action. This action addresses an important issue that has caused confusion in the past.
We all know the difficulty in amending the ESA. However, there is considerable discretion in how the program is implemented.
The time for modernizing the ESA is long overdue, since it was last amended in 1988. This administration is taking a measured approach to assessing and making recommendations to ESA implementation. This is a sound approach that will better serve the environment and farming and ranching families in the West.
Keppen is executive director of the Family Farm Alliance.