The Trump administration has announced major changes in the way the Endangered Species Act (ESA) will be implemented, to reduce the system’s regulatory impact on private interests. On August 12, 2019, the Administration finalized three new rules governing the implementation of the Endangered Species Act. These rules may deliver significant relief to landowners whose forestlands provide the habitat for many at-risk, threatened, and endangered species.
“Family forest landowners have long been impacted by onerous regulatory burdens and economic disincentives from the ESA. The Forest Landowners Association (FLA) supports and appreciates the latest changes enacted by the Administration,” commented FLA Government Affairs Chairman and Louisiana forest landowner, Michael Crowell. “FLA will continue to work diligently with all stakeholders to help find a balance between recovering at-risk species, preserving private property rights and maintaining the economic viability of impacted landowners.”
“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,” U.S. Secretary of the Interior, David Bernhardt, said in a statement. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”
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 the preamble to the regulation clarifies that the ESA does not prohibit agencies from collecting data that determine this cost and making that information available, as long as doing so does not influence the listing determination. Crowell further noted, “Private landowners are the key to recovering at-risk species, and further reform of the ESA’s structure is necessary to reduce disincentives in order to create a system that promotes restoration, sustainability, and maintenance of suitable habitat on private lands.”
The new rules will:
- Limit the circumstances under which unoccupied habitat can be designated as critical habitat
- Allow information regarding the economic impact of a listing decision to be shared with the public
- Give threatened species a new definition, limiting the scope of threats weighed in the listing decision to those which are probable in the foreseeable future.
- Remove the “blanket rule” that applies all prohibitions regarding endangered species to threatened species, shifting the burden to USFWS to define prohibitions for threatened species on a case-by-case basis subject to the rulemaking process
- Streamline the de-listing process
- Restructure the inter-agency consultation process for federal agencies taking actions that may affect listed species and more easily dispose of certain listing petitions
“These new rules will lead to increased transparency and predictability under the ESA while lightening the regulatory burden placed on forest landowners,” said Lauren Ward, FLA’s General Counsel and Director of Regulatory Affairs. FLA applauds the adoption of these rules and encourages the administration to embrace a more collaborative approach to species conservation.
The final regulations submitted to the Federal Register can be found here: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html.