Trump Administration Pushes to Amend the Endangered Species Act

In what is one of the most concerted efforts in recent years to change the Endangered Species Act (ESA), the Trump Administration and Republican Congress members have introduced proposals to significantly change the Endangered Species Act. The specific rule proposals from the Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) will not be published in the Federal Register until Wednesday July 25, but they were unveiled late last week. Comments will be due 60 days after publication in the Federal Register, which will be September 24, 2018.

The FWS and NMFS have three proposals on the table to revise section 4, 4(d), and 7 of the Endangered Species Act regulations. The proposed rule change for section 4 would affect 50 C.F.R. Part 424. According to the notice provided, these changes would “clarify, interpret, and implement portions of the Act concerning the procedures and criteria used for listing or removing species from the Lists of Endangered and Threatened Wildlife and Plants and designating critical habitat. One of the main changes to this section would be to remove the phrase “without reference to possible economic or other impacts of such determination.” Currently, decisions on listing a species and designating a critical habitat are supposed to be made based only on the best scientific information available. This is intended to ensure that a decision is made in the best interests of the continuation of species rather than by considering how much listing a species and designating a critical habitat will cost to either the government or private companies and individuals. This has always been one of the great strengths of the Endangered Species Act and made it a model of species protection around the world. This has also been one of the most controversial points for business and some individuals who have lost use of land based on critical habitat designation. These groups have always wanted economic considerations to be more of a driver in making listing decisions and habitat designation. The notice claims that decisions would still be made solely based on biological considerations, but that economic considerations could be presented to the public. Another change would be to define the phrase “foreseeable future”. Listing a species as threatened is supposed to happen for any species likely to become endangered throughout all or a portion of its range in the foreseeable future. The Obama administration treated the foreseeable future as a very broad period of time and the current proposal would be to define the foreseeable future as a period “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.” This would apparently be done on a case-by-case basis. Other changes under this Part would be factors in delisting a species and reasons not to designate a critical habitat.

The change to 4(d) would affect 50 C.F.R. Part 17. These changes would impact threatened wildlife and plants. One of the main changes would be to ensure that species listed or reclassified as threatened after any change in the rule is finalized would only get protections specified for the species by the Service. This would end any practice of extending some of the protections afforded to endangered species to threatened species.

The changes to section 7 would affect 50 C.F.R. Part 402. One change would be to change the definition of destruction of adverse modification of a critical habitat by adding the phrase as a whole and removing the second sentence of the definition. The definition for environmental baseline would be moved to be a standalone definition. A definition for programmatic consultation would be added as well. Another proposed change would be to add a deadline for informal consultation of perhaps 60 days. Additionally, the proposal would clarify when formal consultation is required. A new provision would allow for expedited consultation for actions with minimal adverse effects or predictable effects based on prior experiences.

These proposals come after a rider to place a 10 year ban on listing the sage-grouse and lesser prairie chicken under the ESA was added to the National Defense Authorization Act in the House version of the bill. There are also several outstanding bill proposals to amend the ESA in some way; most proposed by republicans.

In the face of this assault on the Endangered Species Act it is important to think of all the good it has done. It helped restore populations of the Bald Eagle, the symbol of the United States. American alligators were aided by the ESA, along with the gray wolf. For those who criticize it, just try to imagine how many countless species it has saved from extinction even if it has not rehabilitated all populations that have been listed. Our ecosystem continues to be diverse because the ESA has helped us protect it.

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