Watching Government: Tweaking ESA implementation

The US Departments of Commerce and the Interior jointly announced changes on Aug. 12 in regulations governing implementation of the 1973 Endangered Species Act.

“The [ESA’s] effectiveness rests on clear, consistent, and efficient implementation,” said Interior Sec. David L. Bernhardt. “An effectively administered act ensures more resources can go where they will do the most good: on-the-ground conservation.”

The changes follow President Donald Trump’s mandate of easing federal regulatory burdens without sacrificing species protection and environmental goals, Commerce Sec. Wilbur Ross said. “These changes were subject to a robust, transparent, public process, during which we received significant public input,” he said.

Essentially, the changes at DOI’s US Fish and Wildlife Service and Commerce’s National Marine Fisheries Service aim to clarify that standards for removing a species from threatened or endangered status consider the same five statutory factors as the listing of a species in the first place.

This will assure that species considered for delisting or reclassification receive the same careful analysis to determine whether they meet the statutory definitions of a threatened or endangered species which occurs when determining whether to add a species to the list, DOI said.

“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,” it said. “This reduces the potential for additional regulatory burden that results from a designation when species are not present in an area.”

The new regulations also 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,” DOI said.

Other improvements 

DOI added that the revisions codify alternative consultation mechanisms that might make ESA consultations more efficient. Also established was a deadline for informal consultations to provide greater certainty for federal agencies and applicants of timely decisions without compromising conservation of ESA-listed species, it said.

The presence of endangered or threatened species can significantly affect oil and gas and other business activity occurring on onshore federally administered land in the US. Years of discussions involving state and local governments, ranchers, as well as oil and gas producers, outdoor recreation interests, and environmental organizations preceded a landmark 2015 agreement protecting the greater sage grouse and its habitat across 11 Western states.

The American Petroleum Institute and other oil and gas groups welcomed the latest ESA implementation revisions. Environmental and similar organizations did not.