The Fish and Wildlife Service and NOAA Fisheries today unveiled what some bill as the most significant changes to Endangered Species Act regulations in several decades.
Consultations with other agencies would be streamlined. There would be a tighter definition of "foreseeable future," crucial in ESA decisions. Critical habitats could shrink, and threatened species would no longer automatically receive the same protections as endangered species.
Taken together, the proposed rule changes would more closely align the two agencies that share responsibility for the ESA and address some common complaints aired by critics of the 1973 law.
First, though, the reform ideas will ignite a debate that’s likely to grow heated.
"One thing we [have] heard over and over again was that ESA implementation was not consistent and often times very confusing to navigate," Fish and Wildlife Service Principal Deputy Director Greg Sheehan said in a statement.
He said changes should "produce the best conservation results for the species while reducing the regulatory burden on the American people."
Some environmentalists were preparing to take to the ramparts.
"These proposals would slam a wrecking ball into the most crucial protections for our most endangered wildlife," said Brett Hartl, government affairs director at the Center for Biological Diversity. "If these regulations had been in place in the 1970s, the bald eagle and the gray whale would be extinct today."
Others offered initial nuance.
"Although some conservationists might characterize the entire rulemaking as simply another Trump administration effort to undercut conservation, we think that a closer look will reveal both advantages and concerns from a conservation perspective," Jake Li, director for biodiversity at the Environmental Policy Innovation Center, said prior to the release.
Today’s release follows months of study, and comes as Congress continues to struggle with ESA legislation. Unlike the bills now afloat on Capitol Hill, the administrative changes can be accomplished through a departmental regulatory process that includes a public comment period (E&E Daily, July 18).
The proposed regulatory changes are both technical and consequential. One, for instance, bears the deceptively dull title of "elimination of blanket 4(d) rule" (E&E News PM, April 4).
The ESA prohibits the "take" of species designated as endangered, while Section 4(d) of the law allows the agency to establish special regulations for threatened species. In 1978, FWS used this authority to extend the prohibition of take to all threatened species. This is known as the "blanket 4(d) rule."
Take covers a wide range of actions, including those that "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" a threatened or endangered species. This blanket 4(d) rule for threatened species can be modified by a species-specific 4(d) rule.
Conservatives and private-property advocates have previously sought to scale back the blanket 4(d) rule, which they say erases what should be a meaningful distinction between threatened and endangered species. The proposal would cover only future listings.
"Some of our regulations were promulgated back in 1986, and frankly, a great deal has been learned by the agencies administering the act and by the public," Deputy Interior Secretary David Bernhardt told reporters today.
Another change would establish that the "foreseeable future" definition used in making ESA listing decisions extends only so far as officials "can reasonably determine that the conditions posing the potential danger of extinction are probable."
A potentially key change involves critical habitats, which are areas important for recovery of a species. Sometimes an area can be considered important for recovery even when it is not currently occupied by the species in question.
Under the new proposal, FWS and NOAA Fisheries will designate unoccupied critical habitat only when the occupied areas are inadequate to ensure the conservation of the species or if inclusion of unoccupied areas would yield certain other specified benefits.
In some "rare" cases, officials say, there may be no critical habitat designated.
"The changes … are designed to bring additional clarity and consistency to the implementation of the act across our agencies, and we look forward to additional feedback from the public," said Chris Oliver, NOAA assistant administrator for fisheries.
The proposed rules will be published in the Federal Register and subject to a 60-day public comment period.
"I think we’ll hear from people who think that it’s great," Bernhardt said, "and we’ll hear from people that think it’s crazy, and from people who are in between."