Responding to widespread complaints that implementation of the Endangered Species Act (ESA), “was not consistent and often times very confusing to navigate,” Trump administration officials have unveiled a package of reforms crafted to make the 45-year-old statute better serve both the species it is supposed to recover and landowners caught up in the law’s cumbersome regulations.
“We are proposing these improvements to produce the best conservation results for the species while reducing the regulatory burden on the American people,” said Fish and Wildlife Service (FWS) Deputy Director Greg Sheehan in a July 20 statement.
Under the ESA, rural landowners harboring threatened or endangered species (plants or animals) on their property find themselves in the bull’s eye of the statute’s sometimes severe land-use restrictions, making it difficult for affected farmers and ranchers to make a living. In effect, the ESA’s perverse incentives punish landowners for the very stewardship that attracted the endangered wildlife to their property.
Critical Habitat
Several proposed changes relate to section 4 of the ESA, which deals with procedures for listing species recovery and designating critical habitat (areas deemed essential to support the conservation of a species). First, the Interior and Commerce departments, which jointly oversee the ESA, propose to revise the procedures for designating critical habitat by reinstating the requirement that they will first evaluate areas currently occupied by the species before considering unoccupied areas. Second, the agencies propose to clarify when they may determine that unoccupied areas are essential to the conservation of a species.
The proposal dealing with unoccupied critical habitat is no doubt rooted in the case of the dusky gopher frog. FWS’s designation several years ago of 1,544 acres of forested land in St. Tammany Parish, Louisiana as critical habitat for the endangered frog has triggered a legal dispute that is now before the U.S. Supreme Court. The Louisiana land in question contains no dusky gopher frogs. In fact, the only such frogs known to exist are in neighboring Mississippi. The designation of the unoccupied Louisiana land as critical habitat has devalued the property by an estimated $20 million.
Vague language is a problem with many laws, and the ESA is no exception. The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” But the statute provides no definition of “foreseeable future.” For the first time, the reform proposals contain an interpretation of “foreseeable future” that makes it clear that it extends only so far that it can be reasonably be determined that both the future threats and the species’ response to those threats are probable.
In a similar vein, the administration is seeking to clear up confusion on what constitutes “destruction or adverse modification” of critical habitat. The ESA provides no definition, leaving it to regulators to apply the term as they see fit. The proposed rule simplifies and clarifies the definition by removing redundant and confusing language.
Restoring the Distinction Between Threatened and Endangered Species
Over the decades, government officials have developed different standards for listing and delisting a species. This has resulted in substantial delays in getting a recovered species removed from the endangered species list. The Trump administration seeks to have the same standard used to delist that are applied to list a species.
In a significant change of policy, the Fish and Wildlife Service is proposing to rescind its blanket rule under section 4c of the ESA, which automatically conveyed the same protections to threatened species as for endangered species. The distinction between the two categories has become blurred over the years, and the administration’s proposal would end that practice, thereby restoring the original intent of the law.
“By creating a clearer regulatory distinction between threatened and endangered species, we are also encouraging partners to invest in conservation that has the potential to improve a species’ status helping us towards our ultimate goal: recovery,” the FWS’s Sheehan said.
Accustomed to using the ESA to impose land-use restrictions across broad swathes of rural America, particularly in the West, environmental groups lost no time in blasting the administration’s proposals. “These proposals would slam a wrecking ball into the most crucial protections of our most endangered wildlife,” said Brett Hartl, government affairs director at the Arizona-based Center for Biological Diversity (Washington Post July 20).
Others welcomed the change. “The modest reform proposed by the Department of Interior today could finally enable the Endangered Species Act to achieve both of its noble goals of preventing extinctions and promoting recovery of protected species,” Jonathan Wood of the Pacific Legal Foundation told the Washington Post. “Relaxing regulations as a species recovers will reward property owners for their role in that recovery, creating a necessary incentive for landowners to restore and improve endangered species’ habitat.”
As soon as the proposals are published in the Federal Register (late July), the public will have 60 days to submit comments. The final reform package is expected to go into effect by the end of the year.
