Obama leaving mark on contentious law — with scant Hill input

By Phil Taylor, Corbin Hiar | 10/21/2015 06:52 AM EDT

The Obama administration is quietly reshaping the Endangered Species Act in hopes of tempering congressional critics and avoiding courtroom battles.

The Obama administration is quietly reshaping the Endangered Species Act in hopes of tempering congressional critics and avoiding courtroom battles.

Over the past several years, the administration has pushed a series of administrative reforms that it says will make the 1973 law more nimble, transparent and legally defensible. It has shifted course on how the law is applied, utilizing incentives over regulations to coax industry and private landowners to save vanishing habitats.

"The law has inherent flexibility," said Fish and Wildlife Service Director Dan Ashe. "We can apply that flexibility thoughtfully, and we can catalyze conservation, not command it."


Lawmakers and Western governors want to legislatively overhaul the law — a tall task in a deeply partisan Congress. But the law has already evolved significantly under President Obama and will continue to be molded by the next administration.

"What the administration has done or attempted to do will leave the Endangered Species Act in a very different place," said Don Barry, senior vice president for conservation programs at Defenders of Wildlife, who oversaw ESA policy during the Clinton administration.

One major change is the administration’s increased use of special rules that allow people to incidentally kill or harm listed species if they commit to certain conservation practices. The Obama administration has issued more of these so-called 4(d) rules than under any president other than Gerald Ford, according to a forthcoming paper authored by Ya-Wei Li, senior director of endangered species conservation at Defenders of Wildlife.

Such policies have drawn plaudits from land users and scrutiny from green groups.

Yet they have not tempered Republican efforts to reform the law. Bills introduced in this Congress would prevent closed-door ESA settlements, give states more sway over the protection of rare plants and animals, and block listings for a handful of hot-button species.

Critics say the administration’s biggest mark on ESA is its 2011 settlement with green groups that required final listing decisions on roughly 250 candidate species, which has resulted in scores of critters being added to the list of threatened and endangered wildlife (Greenwire, July 27).

"The ESA has been used and abused," Sen. Dan Sullivan (R-Alaska) said at an ESA briefing last month before an Environment and Public Works panel.

As Congress continues to debate what would be the law’s first reauthorization since 1988, here are some ways in which the administration has already changed it:

Critical habitat exclusions

Last year, the Fish and Wildlife Service and National Marine Fisheries Service unveiled a suite of proposed changes to how they designate and protect critical habitat, the lands that are deemed essential to a listed species’ conservation and recovery.

It included a draft policy to exclude from critical habitat private lands where landowners have committed to voluntary conservation measures.

The policy, a final version of which is under review at the White House, aims to assure landowners that their voluntary habitat conservation work will not go unnoticed when, and if, critical habitat is designated. It specifically encourages landowners to enter into candidate conservation agreements with assurances, safe harbor agreements and habitat conservation plans — formalized deals that provide legal protections for participants (E&ENews PM, Aug. 5).

The policy could stimulate conservation actions that otherwise would not occur, while reducing the amount of land that must be designated as critical habitat. Landowners typically oppose such designations, fearing that the restrictive label will reduce property value.

Definition of ‘adverse modification’

The agencies’ critical habitat package also contained a controversial proposal to redefine what constitutes "destruction or adverse modification" of critical habitat, a key test for whether federally funded or permitted projects may be approved.

ESA prohibits such activities if they would destroy or adversely modify critical habitat, but those terms are inherently ambiguous.

The final definition, which is also being looked over by the White House, could have profound impacts on habitats that are considered essential to species recovery (Greenwire, Sept. 4).

Environmentalists say the proposed definition rightly acknowledged that critical habitat must be preserved for both species survival and recovery, but they warned it could also lead to the piecemeal destruction of essential landscapes.

Business interests said the proposal would make adverse modification determinations unnecessarily complex.

Economic impacts of critical habitat

The agencies have also finalized a rule dictating when and how they calculate the costs of setting aside critical habitat for endangered and threatened wildlife (Greenwire, Aug. 26, 2013).

In a noncontroversial move, the rule required that the agencies provide an analysis of the costs of designating habitat at the same time that such designations are proposed, rather than months or years afterward.

But it also codified the services’ current policy of only tallying the incremental economic impacts of critical habitat designations — but not the underlying costs of listing a species under ESA.

That provision was backed by environmental groups and was consistent with the opinions of federal courts, but it was loudly opposed by Republicans who argued it hides the true cost of ESA restrictions.

Mapping critical habitat

The agencies also did away with the decades-old federal practice of using lengthy verbal descriptions for critical habitat boundaries, opting to provide digital maps instead (Greenwire, May 1, 2012).

The rule sought to make habitat information clearer and was estimated to save $400,000 annually on printing costs.

Until then, Federal Register notices often devoted dozens of pages to describing the protected lands using GIS coordinates and longitude and latitude, units that are indecipherable to much of the general public.

Defining ‘significant’ portion of species range

The administration last year finalized a controversial policy that dictates when a species is granted federal protection and, if so, where (Greenwire, June 27, 2014).

The rule change elaborated on how to determine if a species is in danger of extinction "throughout all or a significant portion of its range," a key, albeit oft-debated, phrase in the ESA.

The services concluded that "a portion of the range of a species is ‘significant’ if the species is not currently endangered or threatened throughout all of its range, but the portion’s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range."

Legal experts say the policy made it slightly harder for rare plants or wildlife to qualify for protections but also cleared up some confusion about the law’s significance threshold (E&ENews PM, June 27, 2014).

Critics of the ESA downplayed the importance of the change because it likely would only affect species with large ranges.

The Center for Biological Diversity has slammed the redefinition, which it says would have prevented Fish and Wildlife from protecting grizzlies, bald eagles and gray wolves — all of which have healthy populations in Alaska.

Clarifying requirements for incidental take statements

The administration this year also issued a final rule clarifying that the services need not issue incidental take statements (ITS) for federal planning decisions that anticipate future harm to protected species but do not authorize any specific projects that would cause impacts (E&ENews PM, May 4).

ESA requires the agencies to issue an ITS before a federally approved project such as a timber sale, an oil and gas well, or a solar farm may harm or kill a listed species. The statements typically describe the amount of harm that can be done to a particular species, as long as "reasonable and prudent measures to minimize the impact" are carried out by the developer and the project does not jeopardize the species’ survival.

But the final rule states that ITSs are not needed for federal actions that provide only a framework for future projects that could harm listed species. Such actions include land-use plans prepared by the Bureau of Land Management and Forest Service, which dictate where certain future activities will be allowed on public lands but do not authorize any specific projects.

The final rule also codifies an alternative process by which federal biologists can quantify harm to listed species using "surrogate" indicators, such as habitat loss, ecological conditions or impacts to similar species.

Proactive conservation ‘credits’

A procedural change that hasn’t been finalized is a draft Fish and Wildlife policy to provide incentives for landowners, businesses or federal agencies to voluntarily conserve species that may soon be at risk of extinction.

The proposal unveiled last year would reward land users who take steps to bolster declining species. If that species is later added to the endangered or threatened species lists, those "credits," as the agency described them, could be used to offset the harm caused by future activities like drilling for oil or building a road. They could also be sold to a third party (E&ENews PM, July 17).

The concept is supported by most environmental groups and industry, although some have raised concerns about the lack of detail in the agency’s plan (Greenwire, July 22, 2014).

Petition procedure change

The latest and perhaps most controversial reform the administration has proposed is to overhaul the way in which outside groups ask the services to review the status of plants and animals under the Endangered Species Act.

The draft rule would set a higher bar for petitions filed under the law to list new species as threatened or endangered, to change a species’ status, to delist a species or to change the boundaries of critical habitat. It seeks to improve the quality of petitions so the agencies can better focus their efforts on ones that may warrant action.

Among the contentious changes included in the proposal are a ban on multi-species petitions and a requirement that petitioners provide a copy of their requests to state fish and game agencies at least 30 days before they are submitted to the services. If a state wishes to submit comments on the accuracy or completeness of the petition, those comments must be submitted with the petition.

State regulators applauded the move to increase their role in the listing process. But most environmental groups panned it as unduly burdensome and counterproductive since it would require them to file — and the agencies to review — separate lengthy petitions for each species in a vanishing habitat, all of which are facing similar threats (Greenwire, May 19).

Landscape-scale focus

More broadly, the White House is also pushing the entire federal government to take into account and offset the full range of impacts from its actions on habitats and species.

Earlier this month, the Council on Environmental Quality released a memorandum directing all agencies to factor the value of ecosystem services into their planning and decision-making. The flood protection provided by wetlands or water quality improved by trees along river banks are examples the White House cited of services that are often overlooked in cost-benefit analyses.

The memo called on agencies to develop policies "that promote consideration of ecosystem services, where appropriate and practicable, in planning, investment, and regulatory contexts." It also established a process for the government to develop more detailed guidance on integrating ecosystem-service assessments into relevant programs and projects.

The White House is also working on a memo to streamline how the government offsets damage to public lands, waters and wildlife (Greenwire, Sept. 24).

Conservationists believe it could make the ESA more effective if it required permitted actions that harm protected plants or animals to have a net benefit on the species.