Consistent with the aggressive (and welcomed) initiative taken by President Donald Trump to reduce the regulatory burden on American producers, the U.S. Fish and Wildlife Service and National Marine Fisheries Service recently asked the American public to share their thoughts on proposed changes to regulations that implement the Endangered Species Act.
The very significant federal presence in the West presents unique challenges that producers may not face in other parts of the United States, particularly with respect to the reach of the ESA. Federal agency implementation of this law has had significant impacts on how producers manage land and water. Importantly, federal water supplies that were originally developed by the Bureau of Reclamation primarily to support new irrigation projects in recent years have been targeted and redirected to other uses. So, in the West, once-certain water supplies — one of the few certainties in Western irrigated agriculture — have now been added to the long list of existing “uncertainties.”
Western producers reliant on federal irrigation projects are often directly impacted by implementation of federal laws, including the ESA, due to the potential for their Western irrigation projects to impact listed species or those species’ critical habitat. Fortunately, the agencies are now proposing to revise portions of regulations to clarify, interpret and implement portions of the ESA concerning the procedures and criteria used for designating critical habitat.
One of those changes would amend portions of regulations that address designating areas unoccupied by protected species as critical habitat. The agencies propose restoring the requirement that they would first evaluate areas occupied by the species. The agencies would only consider unoccupied areas to be essential when a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation or would result in less efficient conservation for the species. The agencies’ leaders must determine that there is a reasonable likelihood that the area will contribute to the conservation of the species.
This could help to prevent the reoccurrence in other areas of what happened in Idaho in 2010. That year, USFWS proposed to designate several areas in the Boise and Payette basins as critical habitat for bull trout, even though the areas in the Payette were uninhabited. Idaho water users submitted comments opposing that proposal. Ultimately, however, the uninhabited area was designated as critical habitat.
It cannot be conclusively stated that anything “bad” has necessarily happened as a result of that designation. However, the designation opens up these uninhabited areas to a new and different world of administrative regulation and potential litigation, particularly if some activist group decides to raise the issue. This is unnecessary — given that the area is uninhabited.
A new rule that provides a greater threshold for designating uninhabited areas as critical habitat would be a positive change. Even though we cannot conclude that the Payette would NOT have been designated under this rule, this proposed rule would provide a higher threshold for such a designation.
This would be a good thing for the Western regulated community.
Keppen is executive director of the Family Farm Alliance.