U.S. Interior Secretary David Bernhardt announced changes to the Endangered Species Act this morning. He says the changes are designed to increase transparency and effectiveness of the 45-year-old ESA.
“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Bernhardt.
“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,” said U.S. Secretary of Commerce Wilbur Ross.
The changes finalized today by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from the Act’s protections and designating critical habitat; section 7 covers consultations with other federal agencies.
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.”
The revisions to the regulations clarify that the standards for delisting and reclassification of a species consider the same five statutory factors as the listing of 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.
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.
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. In addition, the regulations impose a heightened standard for unoccupied areas to be designated as critical habitat. On top of the existing standard that the designated unoccupied habitat is essential to the conservation of the species, it must also, at the time of designation, contain one or more of the physical or biological features essential to the species’ conservation.
To ensure federal government actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat, federal agencies must consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service under section 7 of the Act. The revisions to the implementing regulations clarify the interagency consultation process and make it more efficient and consistent.
The revisions codify alternative consultation mechanisms that may provide greater efficiency for how ESA consultations are conducted. They also establish a deadline for informal consultations to provide greater certainty for federal agencies and applicants of timely decisions, without compromising conservation of ESA-listed species.
Revisions to the definitions of “destruction or adverse modification,” “effects of the action” and “environmental baseline” further improve the consultation process by providing clarity and consistency.
In addition to the final joint regulations, the U.S. Fish and Wildlife Service finalized a separate revision rescinding its “blanket rule” under section 4(d) of the ESA. The rule had automatically given threatened species the same protections as endangered species unless otherwise specified.
The National Marine Fisheries Service has never employed such a blanket rule, so the new regulations bring the two agencies into alignment. The change impacts only future threatened species’ listings or reclassifications from endangered to threatened status and does not apply to species already listed as threatened. The U.S. Fish and Wildlife Service will craft species-specific 4(d) 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.
From comments received during the public comment period in making 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.
The final regulations submitted to the Federal Register can be found here: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html.
What are stakeholders saying:
"The ESA affects cattle-producing families across the country. 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.” – Jennifer Houston, President of the National Cattlemen’s Beef Association
“With these new rules, commonsense will once again be inserted into the ESA process. 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.” – Bob Skinner, President of the Public Lands Council
“The final reforms to the ESA’s Section 7 Consultation requirements and regulations governing the designation of critical habitat are a positive development for landowners whose projects may impact endangered species or their designated critical habitat. These regulatory changes will streamline the cumbersome and bureaucratic permitting process and allow federal regulators to spend more time on species preservation rather than creating red tape.” – Greg Ugalde, Chairman of the National Association of Home Builders
“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 de-listing process to better allocate critical resources to species in need.” – Zippy Duvall, American Farm Bureau Federation president