ESA desperately needs modernization

The recovery of the black-footed ferret was one example cited by Wyoming Gov. Matt Mead when talking about some of the ESA’s greatest successes.

The Biden administration announced on June 4 that it will revise or reverse changes made to Endangered Species Act (ESA) under the Trump administration.

The U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) announced a plan to “improve and strengthen implementation” of the ESA.

The plan follows President Joe Biden’s Executive Order 13990, which called for an immediate review of agency actions issued or adopted during the Trump administration that “conflict with Biden-Harris administration objectives, such as addressing climate change.”

Among the changes under consideration are:

• Rescinding regulations that revised USFWS’ process for considering exclusions from critical habitat designations under Section 4(b)(2) of the ESA. Section 4(b)(2) states that the Interior secretary must designate critical habitat based on the best scientific and commercial data available after considering the economic impact, the impact on national security and any other relevant impact.

• Rescinding the regulatory definition of “habitat” for critical habitat designation, stating a regulatory designation is not required for compliance with a 2018 Supreme Court decision. The decision resulted from Weyerhauser v. USFWS, which ruled that, in order to be designated as “critical habitat” under the ESA, the land must also be habitat for the species.

• Revising regulations for interagency cooperation, which governed the rules regarding Section 7 consultation. USFWS will propose to revise the definition of “effects of the action” and associated provisions to that portion of the rule.

• Reinstating protections for species listed as threatened under ESA by reinstating its “blanket 4(d) rule.” The blanket 4(d) rule automatically extends protections provided to “endangered” species to those listed as “threatened” unless USFWS adopts a species-specific 4(d) rule.

“The U.S. Fish and Wildlife Service is committed to working with diverse federal, Tribal, state and industry partners to not only protect and recover America’s imperiled wildlife but to ensure cornerstone laws like the [ESA] are helping us meet 21st century challenges,” said USFWS Principal Deputy Director Martha Williams in a statement. “We look forward to continuing these conservation collaborations and to ensuring our efforts are fully transparent and inclusive.”

Reaction to announcement

Environmental groups applauded the proposals, stating they will mean stronger protections for “the country’s most imperiled species.” The groups have hailed the success of the ESA as helping to protect the majority of wildlife from extinction.

Rebecca Riley, managing director of the Nature Program at Natural Resources Defense Council, stated the changes “will mean stronger protections for species and their habitats at a time when habitat destruction, exploitation, and climate change threaten their existence more than ever.”

Earthjustice, in a statement, said they are “grateful” the Biden administration is moving to protect imperiled species but stressed, “time is of the essence.”

“Each day that goes by is another day that puts our imperiled species and their habitats in danger,” Earthjustice said in a statement.

Rep. Raúl M. Grijalva (D-AZ), chair of the House Natural Resources Committee, called the announcement “a good start,” urging the Biden administration to update the regulation in a way that safeguards species threatened by rising temperatures.

The announcement spurred criticism from Rep. Bruce Westerman (AR-4), the top Republican lawmaker on the House Natural Resources Committee.

“By reinstating burdensome regulations, this administration has once again opened the door for environmental groups to weaponize the ESA and use it to delay critical projects across the country,” Westerman said in a statement. “These changes will result in greater inefficiency in the federal permitting process and reduce incentives for proactive conservation.”

Kaitlynn Glover, Public Lands Council (PLC) executive director and National Cattlemen’s Beef Association Natural Resources executive director, stated while not unexpected, the move by USFWS represents a “step backward” and goes against the ruling by the Supreme Court, “which led to the development of several critical habitat rulemakings.”

“These regulatory revisions will not improve outcomes—they will just make the ESA more burdensome on the people actually working to restore habitat and protect biodiversity,” Glover said in a statement. “We are disappointed to see the Biden administration take such a major step backward on measures that facilitated significant on-the-ground progress by livestock producers, state governments, and advocates in recent years.

“Frankly, the motivation behind this rollback is out of touch with how federal regulations impact rural communities and seems to have more to do with partisanship than the protection and recovery of wildlife.”

Jonathan Wood, a research fellow at the Property and Environment Research Center, stated that the reversal by the agencies could backfire as ESA restrictions and punitive approaches “do little to encourage landowners to provide or restore habitat for imperiled species,” adding the liability makes it so landowners and states wish to avoid it.

An example of the proposed changes backfiring against the Biden administration’s climate change agenda is the proposed listing of the Tiehm’s buckwheat. The buckwheat is a few inches tall, with creamy white blossoms found only on 10 acres in the Silver Peak Range of western Nevada.

The Australian mining company ioneer Ltd. has proposed building a large-scale lithium-boron mine in the buckwheat’s habitat to supply materials for electric vehicle batteries, wind turbines, and other clean-energy technologies. Listing the buckwheat would stop the mining project, which fulfills Biden’s climate change and “buy American” agenda.

The reviews announced by USFWS and NMFS could take months or years to complete. In a statement, the agencies said, “Each of these recommended actions will undergo a rigorous and transparent rulemaking process, including publication of a proposed rule in the Federal Register, a public comment period and coordination with federally recognized Tribes before being finalized.” — Charles Wallace, WLJ editor

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