The Endangered Species Act is a massive regulation that has wide-reaching implications. So it should come as no surprise that revisions to it are similarly sized.
At a combined 357 pages, three finalized rules to the Endangered Species Act (ESA) cover a lot of ground. In extreme summary, the recent changes will impact how the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (Services) will implement the ESA and focus on three sections in particular; Section 4, Section 4(d), and Section 7.
Brief summaries of the key changes relevant to landowners and public land ranchers are as follows:
Delisting considerations
In the past, it was much easier to list a species than delist it. The new changes address this, clarifying that, “The standard for a decision to delist a species is the same as the standard for a decision not to list it in the first instance.”
This standard is based on five-point listing criteria (found in ESA Section 4(a)(1)). Generally, these standards ask if a species faces current or threatened habitat harm, overutilization, disease or predation, threat by the inadequacy of current regulations, or other natural or manmade risks to its existence.
“In other words, there is no higher standard for delisting species than applies to the initial decision to list it,” summarized Jonathan Wood, a senior attorney at Pacific Legal Foundation and research fellow at Property and Environment Research Center (PERC), who is very familiar with ESA-related issues.
“This is consistent with the Endangered Species Act’s text, which addresses both listing and delisting decisions under the same provision and with the same five-factor test.”
The changes also clarify that if a listed species is found to be extinct or doesn’t meet the definition of a species, a status review would conclude without being measured against those five points. Basically, if a listed species is extinct or found not to meet the definition of a species, it would be delisted.
“Foreseeable future” definition
When assessing if a species should be listed, the agencies must consider if it will go extinct (or is at risk of going extinct) in the “foreseeable future.” The new changes define this concept as extending “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.”
Such determinations will be on a case-by-case basis using the best available science and does not need to include a specific period of time.
This change has received a lot of attention from environmental groups. For example, the Center for Biological Diversity claimed it will prohibit the Services from making listing decisions or critical habitat designations based on climate change impacts.
Wood, in a summary of the changes put out on Aug. 14 by PERC, explained that “the rule merely codifies the policy the agencies have followed since 2009. Since that time, numerous species have been designated based on climate change impacts.” He gave the example of the bearded seal, listed in 2012 as threatened for climate change-related habitat risks. The wolverine was most recently proposed for listing in 2010 for climate change-related threats to its snowy habitat.
Unoccupied critical habitat
“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,” noted the announcement by the Department of the Interior.
Previously, areas not occupied by a listed species could be designated as critical habitat, including areas that could not physically support the species without radical changes. The new ESA changes allow for areas unoccupied by the species to be designated “only upon a determination that such areas are essential for the conservation of the species.”
“Essential” in this case means situations where the currently occupied habitat is not enough.
Additionally, the changes note: “for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.”
“Essential features” definition
As mentioned, unoccupied critical habitat designations of the past sometimes included areas that could not support a listed species in its current form. A key example was the 2011 critical habitat designation for the dusky gopher frog that included 1,500 acres that had not supported the frog in over 50 years and could not physically support the frog without extensive alteration.
The changes clarify that an unoccupied habitat can only be designated if it is both essential and includes “physical or biological features essential to the conservation of the species.” This could include things like water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features that a species must have to survive.
Differentiating threatened species
Changes to Section 4(d) of the ESA involved the removal of what has been called the “Blanket rule.”
“In 1975, the Interior Department issued a blanket rule extending this prohibition to all threatened species, unless it adopted a special rule relaxing the prohibition for a particular species,” explained Wood.
“In essence, the blanket rule provided no meaningful distinction between regulations for species that are listed as threatened or endangered.”
Regulations related to endangered species include a lot of prohibitions related to “take” and negative impacts to habitat. The USFWS extended most of these automatically to threatened species as well. This is not how the National Marine Fisheries Service did things. The changes will require the USFWS to take a case-by-case approach with how threatened species will be treated. The change specifically states that this will only apply to species listed as threatened going forward. Treatment of currently listed threatened species will not change.
Economic impacts
The changes remove the phrase “without reference to possible economic or other impacts of such determination” from the ESA’s section dealing with the listing of species (§ 424.11(b)). Previously, the section read:
“The Secretary shall make any determination required by paragraphs (c) and (d) of this section solely on the basis of the best available scientific and commercial information regarding a species’ status, without reference to possible economic or other impacts of such determination.”
According to the change document, “the Act does not prohibit the Services from compiling economic information or presenting that information to the public, as long as such information does not influence the listing determination.” The change document additionally describes this change as in the interests of increased transparency.
“If the costs are extraordinarily high, some fear this may create political momentum for Congress to amend the Endangered Species Act,” noted Wood, though he added that past experience suggests that is unlikely. Other areas of the ESA allow reporting of conservation cost estimates, and they are sometimes extreme.
“Critical habitat for the green sturgeon, for instance, was estimated to cost up to $600 million per year,” he reported.
“Many other species have estimated impacts exceeding $100 million and the cumulative impacts are well into the billions. Yet protecting species remains extremely popular.” — WLJ
