Interior Department Changes Rules for Endangered Species Act

The new rules direct the U.S. Fish & Wildlife Service to no longer automatically guarantee full “endangered” ESA protections to new species listed in the less critical category, “threatened.” They also specify that, when designating critical habitat for a species, officials may only need to focus on the areas where the species currently exists, leaving former habitat and potential expansion areas open to development.

The government can now analyze and consider the economic impact and possible threats to business opportunities from listing a species. The law does not allow such considerations to impact a final listing decision, and the DOI says they will not, but conservationists are concerned that projecting a price tag may cast a negative light over the important work of saving species from extinction. The new rules also limit the role climate change can play in the listing of a species.

The Endangered Species Act was signed into law by President Nixon in 1973 and is broadly hailed as one of the most effective conservation measures of all time. It has extended robust federal protections to more than 1,600 individual species within the United States, from bald eagles to grizzly bears, preventing extinction 99 percent of the time according to the USFWS. But you’d be hard pressed to find anyone to call the 45-year-old legislation perfect, with weaponized lawsuits from extreme environmental groups, onerous regulations on ranchers, and interference with traditional hunting and angling practices stemming from enforcement. A vocal group of Republican congressmen and Western governors has long advocated for altering and modernizing the law.

A draft of this latest rulemaking was released last year so it comes as a surprise to no one who follows the discussion. Predictably, oil, natural gas, agriculture, and other development interests supported and cheered today’s announcement, while environmentalists decried it. Conservation groups, however, offered a more moderate response.

Ed Arnett, wildlife biologist and chief scientist for the Theodore Roosevelt Conservation Partnership, said that TRCP generally supports several of the rule changes and worked with the Western Governors Association and Association of Fish and Wildlife Agencies to make some of the recommendations that led to the rulemaking. Flexibility and listing decisions tailor-made to a particular species and landscapes will help the ESA function more effectively and predictably, TRCP says.

Some modernization is good, but Arnett is concerned that the change to how “critical habitat” is determined could be problematic going forward.

“We would point out that the key to species recovery is ensuring there is enough habitat – both presently occupied and an amount needed for future expansion of a species’ current population, as well as habitat needed to account for unforeseen loss from fires or other perturbations,” Arnett said. “In many cases, we cannot rely only on the currently occupied habitat to recover a species—that’s basically the same amount of habitat for roughly the same number of plants or animals that triggered a listing to begin with.”

Likewise, many conservation groups take issue with economic considerations coming into play when determining whether to list a species. They point to the 1982 amendment to the ESA that listing decisions should be made “solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species.”

“Economic considerations should not come into play until post-listing decisions are made on critical habitat and other aspects of threatened and endangered species decision making, such as recovery plans,” TRCP said in a statement. “We believe the administration has muddied the water by attempting to clarify that economic information that can be presented along with listing decisions.”

Though perhaps not entirely disastrous, many in the conservation realm view these new rules as meant overall to benefit big business rather than wildlife.

“While we appreciate some of the improvements between the draft and final rule, the simple truth is that this final package creates more certainty for industry without any corresponding enhancements that would help hasten the recovery of the imperiled species which the Endangered Species Act was designed to protect,” National Wildlife Federation President and CEO Collin O’Mara said in a statement. “Rather than reducing protections, we urge Congress to take action and enact proactive solutions which match the magnitude of the wildlife crisis by investing at-scale in the collaborative on-the-ground recovery of at-risk species.”

Ryan Callaghan, MeatEater director of conservation, echoed O’Mara’s concern.

“Like all things that deal with wildlife, adjustments need to be made on occasion. Very rarely do we see a rule written four decades ago that applies perfectly in the present context,” Callaghan said. “I do, however, have concerns for the future management of wildlife and wildlands in the U.S. when you look at the larger picture. Revisions to the Clean Water Act and the ESA, and a character like William Perry Pendley as acting head of the BLM, makes me wonder if wildlife and wild lands matter as much to folks in D.C. as they do to most of America’s hunters and anglers.”

Feature image via Tony Bynum.