Analysis of the 2018 Proposed Changes to the Endangered Species Act

Background

The Fish and Wildlife Service and the National Marine Fisheries Service (from here on collectively referred to as the Services) propose changes to sections 402.02, 424.11 and 424.12 of the Endangered Species Act (referred to as ESA or the Act). Section 402.02, among other things, defines the term “destruction or adverse modification” of critical habitat. Section 424.11 details how the Services are to determine the listing of a species under the Act, and Section 424.12 describes the designation of critical habitat for listed species.

The Services propose modifying sections 402.02, 424.11 and 424.12 of the ESA in the following ways:

1. Revising the definition of “destruction or adverse modification” of critical habitat to include the phrase “as a whole” such that the definition reads:

2. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species [emphasis added]

3. Removing the phrase “without reference to possible economic or other impacts of such determination” from section 424.11 (b)

4. Adding a new section, 424.11 (d), that describes the term “foreseeable future”

5. In determining whether a species is a threatened species, the Services must analyze whether the species is likely to become an endangered species within the foreseeable future. The term foreseeable future extends only 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. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time, but may instead explain the extent to which they can reasonably determine that both the future threats and the species' responses to those threats are probable.

6. Moving the current section 424.11(d) to section 424.11(e) and modify the factors the Secretary must consider when delisting a species:

7. The species is extinct

8. The species does not meet the definition of an endangered species or a threatened species. In making such a determination, the Secretary shall consider the same factors and apply the same standards set forth in paragraph (c) of this section regarding listing and reclassification [ ie. They remove the word “recovery”]

9. The listed entity does not meet the statutory definition of a species

10. Modifying section 424.12 to include a list of instances in which the Secretary may choose not to designate critical habitat:

11. The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species

12. The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act

13. Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States

14. No areas meet the definition of critical habitat

15. After analyzing the best scientific data available, the Secretary otherwise determines that designation of critical habitat would not be prudent

16. Modify section 424.12 to clarify when the Secretary may decide to exclude unoccupied habitat from the critical habitat designation

The Services have the authority to propose this rule under the Endangered Species Act2. Further, the Department of Interior (DOI) and the National Oceanic and Atmospheric Administration (NOAA), under which the Services are housed, were prompted by Executive Order 13777 to publish documents in the Federal Register requesting public comment on how the departments could streamline efficiency and effectiveness of current regulations1,6. The proposed changes are a result of these documents and public comment .

Stakeholder Involvement and Response

State agencies, wildlife groups, and many other key stakeholders have long believed that changes to the ESA are needed. However, many of these groups are hesitant to initiate or support change with the current administration and its ties to industry. Some stakeholder groups are pushing for legislation that would provide more funding to state and regional agencies for implementation of recovery efforts for listed species. Other groups are looking for legislation that would support protecting species before they reach critical levels that require listing under the Act.

Although the Services are proposing the changes described in this memo, certain members of Congress are also introducing legislation to amend the ESA. The Western Governors Association made several recommendations that Senator John Barrasso (R) has incorporated into a draft bill titled ‘The Endangered Species Act Amendment of 2018‘. This bill seeks to increase state and local level government input and responsibility in the recovery of listed species. Additionally, it would increase transparency during the listing process, require that the regulatory agency include recovery goals for each listed species in consultation with states, and outline requirements for increasing understanding the use of conservation resources. States are already required to have State Wildlife Action Plans in order to receive federal funding through the State and Tribal Wildlife Grants Program. These plans are used by states to focus conservation efforts on the preservation and recovery of threatened and endangered species and ecosystems. Incorporating these State Wildlife Action plans in the recovery planning for ESA listed species could assist in conservation efforts and bring more resources to the table.

The Congressional Western Caucus has also introduced nine bills to amend the ESA. These nine bills, collectively titled the ESA Modernization Package, seek to open areas to energy development, tourism, and recreation through rights for private entities. Sponsors cite the low ESA recovery rate of 3% as a need to update and modernize the ESA, with Rep. Bruce Wetserman (R-Ark) calling the ESA an “8-track law in a Spotify World”. The Independent Petroleum Association of America and the National Association of Home Builders are just a few of the outside organizations that support the ESA Modernization Package, calling for an ESA that balances conservation and economic needs.

Significance

The proposed changes to sections 402.02, 424,11, and 424,12 of the ESA will create room for input by private entities into the listing of species and the designation of critical habitat. These changes will allow for economic impact and cost-benefit analysis when designating species and when determining the effect of development in portions of a species current or potential critical habitat.

Currently the Services are not allowed to include cost-benefit analysis in determinations of species protections and destruction, modification, or designation of critical habitat. The Services state that economic impact will only be considered in species listings on a case-by case basis, and that scientific data will still be the preferred method of determining a listing. However, if there is a strong enough cost-benefit analysis the Services have stated that this information could be “informative to the public.”

The greater impact of the cost-benefit analysis is in the definition of “destruction or adverse modification” of critical habitat. The Services have proposed adding the phrase ‘as a whole’ to the definition. This would allow for destruction or modification of critical habitat as long as the project is of economic significance and does not harm the overall critical habitat. Currently, any projects that destroyed or harmed any critical habitat were denied, unless they were of significant enough economic status to receive special exemption through the Endangered Species

Committee (aka the “God Squad”). This committee is composed of seven Cabinet-level members and requires a 5/7 vote in favor of the development in order to grant the exemption. Exemptions are rarely granted, and often the exemption applications are withdrawn as there are usually additional laws that would delay or harm the development project.

With the proposed changes described above, corporations in the construction/real-estate industry and natural resource extraction industry would be more likely to be given approval to commence projects that have the potential to occur in areas of current or potential critical habitat. Corporations would need to have data supporting a strong cost-benefit analysis in favor of development and showing that the destruction or modification of the habitat would not greatly impact the species critical habitat as a whole. If they can do this, then they would have a much easier time initiating and completing projects in areas previously closed to development.