Department of Interior changes ESA to improve delisting process and more
To strike fear in the heart of any rancher, just mention grizzly bears, wolves or…jumping mice?
Wyoming attorney turned federal bureaucrat Karen Budd-Falen says the BLM’s rewrite of two Endangered Species Act regulations will lessen the bite of the dreaded regulation as it affects private industry.
The changes, which the Department of Interior announced Aug. 12, 2019, will streamline the permitting process for private industry dealing with endangered species and will also improve habitat selection, the delisting process and more, said Budd-Falen.
“We’re excited. This is really a good thing for industry including grazing, mining and many others. Now the ESA recognizes private property rights.”
Serving on President Trump’s transition team, Budd-Falen suggested changes such as these, then eventually was chosen to serve in Trump’s administration where she spent over a year working on these very rule changes.
“The President is in support of anything that provides regulatory certainty and makes it easier for businesses to operate,” she said. “I was excited to help push this across the finish line,” she said.
A rancher from Washington state would have liked if the rule changes were retroactive, to help more with the grizzly and wolf listing situations, but he is pleased just the same.
“The changes will help streamline the delisting process. It is so slow,” said George Wishon from the northeastern part of the state.
When the U.S. Fish and Wildlife Service can document that a population of animals is healthy and in adequate number, delisting shouldn’t be difficult.
He was also pleased to learn that the rule changes would affect fish, which he said can sometimes be even more challenging than land animals.
“When those anti-grazing groups decide to push for a fish species to be listed, or if one is listed, they ‘see red’ when they think about cattle in the region,” he said.
Changes have been make to section 4 and section 7 said Budd-Falen, explaining that the public had the chance to comment a couple of years ago.
The section 4 changes include:
a. Economic Impact Report – As always, the agency will not make decisions to list or delist species based on economic considerations. However, Budd-Falen said that, for certain species, government staff will put together reports detailing the predicted cost to the associated industry or landowner(s) in order to help educate the public as well as the agency itself as to the economic burden a listing can cause.
b. Delisting Focus – 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.
c. Threatened species treated differently than endangered species – In addition to the final joint regulations, the U.S. Fish and Wildlife Service finalized a separate revision rescinding its “blanket rule” under section 4(d) of the ESA. The rule had automatically given threatened species the same protections as endangered species unless otherwise specified. The National Marine Fisheries Service has never employed such a blanket rule, so 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 4(d) rules for each future threatened species determination as deemed necessary and advisable for the conservation of the species, as has been common practice for many species listed as threatened in recent years.
d. Critical habitat should have the species in existence and must possess at least one needed feature for the species. 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.
Regarding the fourth rule, Budd-Falen pointed out that in recent years, there have been cases where the federal government identified “critical habitat” that didn’t possess a single biological feature deemed necessary for the existence of the species. “When we designate critical habitat, we will identify the features that are needed, maybe they are big trees, year round water, certain plants or whatever. The area designated critical habitat must include at least one of those features, not hang on the hope that it might someday develop those features like has been happening in recent years,” she said.
The section 7 updates should simplify and streamline the permitting process for those who need to get a permit for grazing, building a pipeline, mining or many other activities.
“We are trying to make it easier and simpler to get through the consultation process,” said Budd-Falen. One specific change requires that a permit-seeker not be required to submit the same documentation to multiple agencies.“Say for example, you’re requesting a permit. This will streamline the process. You won’t have to supply duplicate documents to every agency,” she said.
“We’ve been working on these rule changes for a year and a half,” said Budd-Falen.
She explained that because of standard federal requirements, the rule will be enforced beginning 30 days after its publication date.
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