Efforts to reform the Endangered Species Act seem to come around as often as election years, if not more frequently. There is currently an effort by the U.S. Fish and Wildlife Service to tackle some technical details, and the agency is seeking stakeholder input.
Comments will be closing Sept. 24 on a trio of proposed rules to change how the Endangered Species Act (ESA) functions. The proposed changes come from the U.S. Fish and Wildlife Service (USFWS) and are in places quite technical and address the regulatory process of the ESA. However, several of the proposed changes deal with definitions and considerations relevant to private landowners and public land users.
Very generally speaking, the three proposed rules will alter or clarify listing and delisting considerations, the designation of critical habitat, and core concepts used within the ESA. Details of potential relevance to ranching interests are outlined in greater detail below, along with information on submitting comments.
“We are pretty pleased by and large with what we see in this rule-making,” Ethan Lane, executive director of the Public Lands Council, told WLJ.
“This is really pretty technical and gets down in the weeds on some long-standing issues with the way ESA is implemented and the changes they’re proposing would definitely help to expedite the process.”
He added that the proposed rules represent a regulatory push for ESA reform, as compared to statutory reform. The variety of proposed legislation efforts to reform the ESA, including Sen. John Barrasso’s (R-WY) draft bill, are examples of efforts at statutory reform.
Barrasso’s bill, the Endangered Species Act Amendments of 2018, was announced in draft form at the beginning of July but has not yet moved on to the Senate. It seeks to increase state and local participation in the listing and recovery planning process for species, and defines numerous relevant words, phrases, and concepts regularly used in the ESA.
“This package is a fantastic start and if this gets done, it will serve to make the ESA work better for producers on the ground. Period,” Lane said, speaking of the trio of proposed rules. However, he added that there’s always more to do, particularly in terms of getting state governments more involved in the ESA process.
“North of 70 percent of work on species is taking place at the state level, yet their voice in that process is a really muted one. There’s only so far you can go in restoring that or fixing that in a regulatory rulemaking like this. To really make a change and really give them an even seat at the table, you’ve really got to open the act and work on the statutory level.”
Details and definitions
The three proposed rules are “Revision of the regulations for listing species and designating critical habitat” (0006 rule), “Revision of the regulations for prohibitions to threatened wildlife and plants” (0007 rule), and “Revision of regulations for interagency cooperation” (0009 rule). For ease of reference, the proposed rules will be referred to by the last four digits of their respective Docket ID codes.
There were several definitions the proposed rules seek to either amend or clarify. Among these were “Foreseeable Future” and “Unoccupied Critical Habitat” in the 0006 rule, and “Destructive or adverse modification” in the 0009 rule.
“Foreseeable Future” — Currently, a threatened species is defined as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” However, according to the proposed rule, the concept of “foreseeable future” has not been clearly defined.
The USFWS is proposing a “framework” for how the concept will be interpreted, specifically that it “extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life-history characteristics, threat-projection timeframes, and environmental variability.”
The proposed 0006 rule additionally noted that, “The Services need not identify the ‘foreseeable future’ in terms of a specific period of time but may instead explain the extent to which the future threats and the species’ responses to those threats are probable.”
“Unoccupied Critical Habitat” — Also in the 0006 rule was a reference back to an earlier 2016 revision to the ESA that was perceived by many stakeholders who submitted comments as indication that the USWFS intended to designate “expansive areas of unoccupied habitat” for listed species.
The USFWS proposes to return language to the ESA that was removed in the 2016 revisions that led to the concerns.
“We also propose to clarify when the Secretary may determine unoccupied areas are essential for the conservation of the species.”
This clarification includes:
• Assessment of if the unoccupied habitat is or will likely become usable by the species;
• The extent to which the unoccupied habitat would need to be “restored” to make it usable in the future;
• The willingness of private landowners or federal land users to undertake or allow “extensive affirmative restoration” of unoccupied habitat that might be usable in the future; and
• The potential contribution or value of designating the unoccupied habitat to the species’ conservation.
“Destruction or adverse modification” — The USFWS is proposing to add the phrase “as a whole” to the definition of destruction or adverse modification of a listed species’ designated critical habitat in the 0009 rule.
The proposed rule additionally would remove the second sentence in the existing definition of destruction or adverse modification of a listed species’ designated critical habitat. It reads: “Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.”
The total definition would then read: “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.”
Proposed considerations
The proposed rules variously outline areas where different considerations or processes would need to be undertaken. These include considering economic impacts when listing a species, what factors should be considered when delisting a species, conditions under which it is not prudent to designate critical habitat, and when an “expedited consultation” may be warranted when different agencies cooperate on an ESA-related issue.
Economic impacts — Currently, the section of the ESA dealing with the basis of listing decisions reads: The Secretary shall make any [listing] determination … 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.” (Emphasis original, internal citations omitted.)
The 0006 rule proposes to remove the last portion beginning with “without reference…”
“In removing the phrase, the Services will continue to make determinations based solely on biological considerations,” read the proposed rule. “However, there may be circumstances where referencing economic, or other impacts may be informative to the public.”
Delisting species — The 0006 rule also proposes to change how listing decisions are made, specifically by using the same standards for delisting as for listing. This means if a listed species no longer fits the definition of threatened or endangered, it will be delisted.
“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,” the 0006 rule reads.
Additionally, though the proposed rule does not aim to redefine “species,” it does propose to clarify how it is used in the case of delisting species. Specifically, “listed entities” that don’t meet the definition of a species, subspecies, or distinct population segment would be delisted under this proposed rule.
Not prudent critical habitat designation — The 0006 rule seeks to clarify the ESA’s standards for when it is not prudent to designate critical habitat by removing language narrowing it to instances where “designation of critical habitat would not be beneficial to the species.” The USFWS suggests this because numerous instances of not-prudent decisions based on the standard were remanded by courts following litigation.
Instead, the proposed change focuses on whether “the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species.” Namely, the proposed change hinges on whether or not habitat-based threats exist. They gave an example scenario where a listed species’ primary threat is disease, or climate change-related results such as melting glaciers, sea level rise, or reduced snowpack.
“In those situations, a designation could create a regulatory burden without providing any conservation value to the species concerned,” the 0006 rule noted.
Consultations on interagency cooperation — The 0009 rule proposes a variety of changes or clarifications when it comes to interagency consultations, including timelines, necessary items and processes for formal consultations, and the proposed provision for an “expedited consultation.”
This latter element would be to “offer opportunities to streamline consultation, particularly for actions that have minimal adverse effect or predictable effect based on previous consultation experience.”
The rule noted that this could be anything from projects that will have a minimal impact, to those that would have wide-ranging impacts that are nonetheless known, predictable, and unlikely to cause “jeopardy or destruction or adverse modification.”
Changes in the 0007 rule
Most of the proposed changes come in the 0006 rule and the 0009 rule. However, the 0007 rule includes one change related to how listed species can be treated. Currently, almost all prohibitions that apply to endangered species also apply to threatened species.
Should the proposed rule be implemented, however, species listed as threatened or reclassified as threatened on or following the date of implementation would only be covered by species-specific prohibitions the USFWS might choose to apply. This would allow the agency to apply discretion on a species-by-species level, rather than widely apply prohibitions.
Submitting comments
Comments for all three proposed rules must be submitted by Sept 24. Comments can be submitted either online or by mail as listed below. All comments will be made public online, so do not include identifying information unless you are comfortable with that information being public.
Anyone interested in submitting comments on these three proposed rules is strongly encouraged to read them in full as the proposed changes are far more numerous and detailed than could be presented here.
The full text of the proposed rules can be found—and online comments can be submitted—via the links below:
• FWS-HQ-ES-2018-0006: This rule dealt with definitions of “Foreseeable Future” and “Unoccupied critical habitat,” and the need to consider economic impacts of listing decisions, how to determine delisting requirements, and when a not-prudent decision should be rendered on the designation of critical habitat.
• FWS-HQ-ES-2018-0007: This rule proposed to change prohibitions applied to threatened species. Currently most of the prohibitions applied to endangered species are applied to threatened species, but the proposal would make prohibitions optional and species-specific.
• FWS-HQ-ES-2018-0009: This rule proposed to add “as a whole” to the definition of destruction or adverse modification of critical habitat and outlined a variety of changes to the interagency consultation process including creating an expedited consultation process.
Comments should be submitted individually if you are responding to more than one; do not combine your comments to the three proposals into one comment or it may not be considered. — Kerry Halladay, WLJ editor
