From 1968 to 1971 this author worked to establish a new agency of the Federal Government to protect our nations water supplies, our agricultural lands, our air quality, its waste disposal protocols, our surface and deep mining, our use of chemicals in the environment and everything else that could threaten the environment. I and a team of concerned scientists succeeded in 1971 when President Nixon chose to sign the law establishing our Environmental Protection Agency. In its first ten years the EPA created 7 regulations that served as a safety net for our environment and the citizens who live within it. Since 1980 most new regulations neither advanced the protection of our environment or the safety of our citizens. Many however just as they were intended interfered with the safe commerce of the United States.
The first such law, passed in 1980, was the Comprehensive Environmental Response Compensation an Liability Act (CERCLA) commonly know through the years as Superfund. It made illegal a wide variety of waste disposal activities that were legal at the time the various wastes were disposed of. It shut down many a company, but eventually as the years went by waste sites were cleaned up all across the nation and that work continues.
In this author’s mind no law has damaged commerce to a greater extent than the Endangered Species ACT (ESA) of 1973. Few could treasure the lives of animals more than I living with a plethora of dogs, cats, chickens and fish, but those who played a major role in the writing of the act and those charged with implementing it have improperly used taxonomy, biology, genealogy, zoology and geography to protect those species which were not truly endangered. They designed their own species rules and used the courts to enforce their misguided ideas of what animals were actually threatened or endangered and they did it purposely in many cases to thwart the business economy of our nation.
Having said this there is no question that in its more than 45-year history, the Endangered Species Act (ESA) has helped many conservation partnerships recover some of America’s most treasured animals. This month the U.S. Secretary of the Interior David Bernhardt unveiled improvements to the implementation of ESA regulations designed to increase its transparency, effectiveness and appropriate purpose.
“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Secretary Bernhardt. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”
“The revisions finalized with this rule making fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”
The changes finalized by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to adding species or removing species from the Act’s protections and designation of critical habitat.
The ESA directs that determinations to add or remove a species from the lists of threatened or endangered species be based only on the best available scientific and commercial information.
The revisions to the regulations clarify that the standards for delisting and reclassification of a species consider the same five statutory factors as the listing of a species in the first place. This requirement ensures that all species proposed for delisting or reclassification receive the same careful analysis to determine whether or not they meet the statutory definitions of a threatened or endangered species as is done for determining whether to add a species to the list. In the past while it often became clear that a specie was no longer endangered or threatened delisting was near impossible.
While this administration recognizes the value of critical habitat as a conservation tool, in some cases, designation of critical habitat has not been prudent. Near destruction of the timber industry in the Northwest US over the miscalculation of the Spotted Owl population remains a case in point.
When designating critical habitat, the regulations reinstate the requirement that areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered. This reduces the potential for additional regulatory burden that results from a designation when species are not present in an area. In addition, the regulations impose a heightened standard for unoccupied areas to be designated as critical habitat. On top of the existing standard that the designated unoccupied habitat is essential to the conservation of the species, it must also, at the time of designation, contain one or more of the physical or biological features essential to the species’ conservation.
To ensure federal government actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat, federal agencies must consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service. The revisions to the implementing regulations clarify the interagency consultation process and make it more efficient and consistent.
The new regulations bring the two agencies into alignment. The change impacts only future threatened species’ listings or reclassifications from endangered to threatened status and does not apply to species already listed as threatened. The U.S. Fish and Wildlife Service will craft species-specific rules for each future threatened species determination as deemed necessary.
From comments received during the public comment period in making these regulatory changes, concerns were raised regarding the lack of transparency in making listing decisions and the economic impact associated with determinations. Public transparency is critical in all government decision making, and will be improved by virtue of these regulatory changes.
The final regulations submitted to the Federal Register can be found here: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html