Proposed changes to the Endangered Species Act would give federal agencies much more leeway to shrink critical habitat and modify protection rules for vulnerable animals and plants.
Interior and Commerce department officials unveiled the proposals in a Thursday morning conference call with reporters. The regulation changes must go through a public comment process and could become policy by the end of 2018. Coincidentally, another set of ESA changes has been drafted into proposed legislation before Congress.
Both moves come as a new national survey shows strong support for the Endangered Species Act among four out of five Americans.
Interior Department Deputy Secretary David Bernhardt told reporters Thursday that a lot of problems weren’t foreseen when the law’s major regulations were developed in 1986.
The Interior Department oversees the U.S. Fish and Wildlife Service, which manages Endangered Species Act recovery efforts. The act was passed in 1973 by a nearly unanimous Congress.
“The service’s experience and understanding has evolved, since many of these regulations were promulgated in 1986,” Bernhardt said. “Some items weren’t contemplated by the regulations when they were developed. What has not evolved is the American public and its passion for the goal of conserving species enshrined in the law.”
The proposals touch three parts of the law. The first would change how a species gets listed for protection and how federal agencies draw boundaries of “critical habitat” where special rules would govern activity. For example, the U.S. Forest Service must consult with the Fish and Wildlife Service when it proposes a timber sale in critical habitat protecting bull trout or Canada lynx on national forest land.
Bernhardt said the proposal would clarify “instances where it may not be prudent to designate critical habitat,” and concentrate those efforts on places where the species resides at the time of listing.
That policy has spawned numerous court challenges and public protests. In the Rocky Mountains, recovery efforts for threatened grizzly bears include plans to restore them to unoccupied areas such as the Selway-Bitterroot Wilderness on the Montana-Idaho border. Critical habitat designations for Canada lynx now include large landscapes that are suitable for lynx although the cats might not currently live there, after an investigation exposed improper efforts in the George W. Bush administration to shrink the habitat boundaries.
The second proposal would change how agencies cooperate when their activities overlap a threatened or endangered species.
“This is an effort to simplify definitions that have led to difficult court decisions,” Bernhardt said.
Congress recently acted to undo a court opinion known as the “Cottonwood Decision” after the Bozeman environmental law firm that convinced the U.S. 9th Circuit Court of Appeals to require extensive high-level consultation between the Forest Service and FWS when making changes to endangered species management. The congressional move eliminated that requirement.
The proposed policy involves redefining many legal terms in the regulations, Bernhardt said. The Interior Department announcement noted that "the ESA defines a threatened species as one that is likely to become in danger of extinction within the 'foreseeable future.' For the first time, the agencies are proposing an interpretation of 'foreseeable future' to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable.”
The third proposal would change how the Interior Department makes rules for endangered and threatened species. An “endangered” designation brings the most strict protections, including specific rules limiting how or when the species can be killed. “Threatened” species have looser regulations. In Montana, grizzly bears have a “threatened species” designation, while the whooping cranes and the white sturgeon of the Kootenai River are considered “endangered.”
Under current policy, the Fish and Wildlife Service applies the same blanket rules of protection against killing either an endangered or threatened species. Bernhardt said the proposal would allow agencies to craft custom protection rules for different populations of threatened and endangered species.
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Bernhardt said the changes stem from an executive order from President Donald Trump to seek public comment on improving regulations throughout the administration. The results are intended to simplify government actions and make them easier to understand for the public, he said. They have not been analyzed for cost savings or benefits to industry, he added.
A national survey and historical review of attitudes about the endangered species law was released on Thursday by researchers at Ohio State University. Lead author Jeremy Bruskotter said Congress appeared to be out of step with the public support for the law.
“In the 1990s and 2000s, a typical year saw roughly five attempts to amend the act or curtail its protections,” Bruskotter wrote of his study. “But from 2011 to 2015, there were about 33 legislative attacks per year — and there have been almost 150 in the last two years alone. I don’t think at any time, maybe since the act was passed, have there been this many members of Congress working in direct opposition to the act, but that doesn’t mean that they’re acting in the interests of the people they represent.”
On July 12, the Congressional Western Caucus introduced nine bills in the House of Representatives to modify the Endangered Species Act.
They include measures allowing the Secretary of Interior to:
• delist species more quickly when a determination is made the species was wrongly listed in the first place;
• require more state participation in recovery plans;
• provide more incentives for voluntary species conservation efforts;
• let the secretary block petitions for listing or agency action on species protection;
• require the government to look at other conservation measures before making an ESA listing decision;
• block critical habitat designations on water reservoirs or irrigation systems already considered disturbed;
• and make recovery plan data sources publicly available, along with records of lawsuits and payments made to challengers of ESA actions.
“Unfortunately, environmental extremist groups have distorted the Endangered Species Act from its original intent and use it to unnecessarily shut down needed projects throughout Montana,” Rep. Greg Gianforte, R-Montana wrote of the Congressional Western Caucus bill slate.
The July 12 "package of bills offers us an opportunity to modernize the ESA with targeted reforms that will encourage greater input from leaders on the ground, spur partnerships between communities to preserve habitats, and bring some common sense back to protecting endangered species."