Proposed Revisions to Regulations Implementing the Endangered Species Act (ESA)
Submitted by Bonner R. Cohen, Ph. D.,
Committee for a Constructive Tomorrow
September 17, 2018
Revisions of Regulations for Listing Species and Designating Critical Habitat and Revisions of the Regulations for Prohibitions to Threatened Wildlife and Plants
Several proposed changes relate to section 4 of the ESA, which deals with procedures for listing species recovery and designating critical habitat (areas deemed essential to support the conservation of a species). There are two key provisions in this section of the proposal. First, FWS and NOAA propose to revise the procedures for designating critical habitat by reinstating the requirement that they will first evaluate areas currently occupied by the species before considering unoccupied areas. Second, the agencies propose to clarify when they may determine that unoccupied areas are essential to the conservation of a species.
The proposal dealing with unoccupied critical habitat is no doubt rooted in the case of the dusky gopher frog. FWS’s designation several years ago of 1,544 acres of forested land in St. Tammany Parish, Louisiana as critical habitat for the endangered frog has triggered a legal dispute that is now before the U.S. Supreme Court. The Louisiana land in question contains no dusky gopher frogs. In fact, the only such frogs known to exist are in neighboring Mississippi. The designation of the unoccupied Louisiana land as critical habitat has devalued the property by an estimated $20 million. The case underscores the importance of the proposed revisions to the ESA’s critical habitat provisions.
By limiting the power of officials implementing the ESA so that they can no longer designate an area as critical habitat that is not currently, or even in the recent past, occupied by an endangered or threatened species, the proposed revision restores a much-needed measure of integrity to implementation of the statute. It also gives landowners some assurance that their property will not be arbitrarily designated as critical habitat for a listed species that does not reside there.
Vague language is a problem with many laws, and the ESA is no exception. The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” But the statute provides no definition of “foreseeable future.” For the first time, the reform proposals contain an interpretation of “foreseeable future” that makes it clear that it extends only so far that it can be reasonably be determined that both the future threats and the species’ response to those threats are probable.
In a similar vein, the proposal seeks to clear up confusion on what constitutes “destruction or adverse modification” of critical habitat under section 7 of the ESA. The ESA provides no definition, leaving it to regulators to apply the term as they see fit. The proposed rule simplifies and clarifies the definition by removing redundant and confusing language. This confusion has led to protracted litigation that has benefited neither species nor landowners and has been one of the key reasons behind the slow recovery of species.
Over the decades, government officials have developed different standards for listing and delisting a species. This has resulted in substantial delays in getting a recovered species removed from the endangered species list. The proposal seeks to have the same standard used to delist that are applied to list a species and will curtail the ESA’s often arbitrary enforcement.
In a significant change of policy, the Fish and Wildlife Service is proposing to rescind its blanket rule under section 4c of the ESA, which automatically conveyed the same protections to threatened species as for endangered species. The distinction between the two categories has become blurred over the years, and the administration’s proposal would end that practice, thereby restoring the original intent of the law.
Revision of Regulations for Interagency Cooperation
Poorly coordinated interagency cooperation has been a hallmark of ESA implementation since the statute was enacted in 1973. This has raised the level of confusion for communities harboring endangered species and brought additional and absolutely unnecessary delays to the recovery process. By clarifying how biological opinions and interagency submissions are to be formulated, the proposal will avoid, minimize, or off-set adverse effects on listed species and their habitats when conducting interagency consultations.
In summary, the biggest losers in the way the ESA has been enforced over the past 45 years have been landowners with listed species on their property and the species themselves. Landowners have been punished for having listed species on their land and have been given little if any incentives to cooperate in their recovery. Taken as a whole, the steps proposed by FWS and NOAA Fisheries will break some of the bureaucratic logjams that have plagued the ESA from the outset, and begin to give landowners incentives to restore and improve endangered species’ habitat.