In its more than 45-year history, the Endangered Species Act (ESA) has catalyzed countless conservation partnerships that have helped recover some of America’s most treasured animals and plants, from the bald eagle to the American alligator. Today, U.S. Secretary of the Interior David Bernhardt announced improvements to the implementing regulations of the ESA designed to increase transparency and effectiveness and bring the administration of the act into the 21 st century.

“The finalization of these rules is a very positive sign of progress towards a more sensible implementation of the Endangered Species Act,” said Arizona Farm Bureau President and southern Arizona rancher, Stefanie Smallhouse, who was present at today’s announcement. “When you designate critical habitat for a species that not only doesn't exist in that area, but the habitat does not match its needs, that's a power grab to control people's livelihoods plain and simple.  That's activist management, not resource management.  Most folks realize that doesn't make sense and it wastes resources which could be put to use in areas of true critical habitat.  These rule changes bring back focus to the intent of the ESA and will make more efficient use of the efforts to conserve species.”

 

 “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 rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection goals,” added Secretary Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”

 

“Today’s Endangered Species Act reforms serve the needs of imperiled species as well as the people most affected by implementation of the law’s provisions,” said American Farm Bureau President Zippy Duvall. “This makes real-world species recovery more likely as a result.

 

“These new regulations restore the traditional distinction between threatened and endangered species. That’s important. In the real world, the things we must do to restore a threatened species are not always the same as the ones we’d use for endangered species. This approach will eliminate unnecessary time and expense and ease the burden on farmers and ranchers who want to help species recover.

 

“Plus, today’s rulemakings will also simplify environmental review and interagency consultations while maintaining effective species protections. Keeping species on the endangered list when they no longer face the threat of extinction takes valuable resources away from species that still need ongoing protection under the ESA. These new regulations will provide much-needed consistency in the listing and de-listing process to better allocate critical resources to species in need.

 

“Finally, we are pleased to see one other, common-sense matter: Lands to be designated as unoccupied critical habitat for threatened and endangered species will have to actually include at least one physical or biological feature needed to conserve the species. Farm Bureau welcomes all of these changes.”

 

The changes finalized today by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from the act’s protections and designating critical habitat; section 7 covers consultations with other federal agencies.

The ESA prohibits both agencies from making listing determinations based on anything but the best available scientific and commercial information, and these will remain the only criteria on which listing determinations will be based. The regulations retain language stating, “The Secretary shall make a [listing] determination solely on the basis of the best scientific and commercial information regarding a species’ status.” 

 

How species are listed and what classification - endangered or threatened - they are designated has significant impacts for the species and the surrounding areas of their habitat. Similarly, the process for which species are delisted from ESA is of great importance.

Species that are recovered but are not delisted can divert critical, limited resources away from species that most need support and protections by law. Accordingly, 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 they meet the statutory definition of a listed species.

 

While this administration recognizes the value of critical habitat as a conservation tool, in some cases, the designation of critical habitat is not prudent. Revisions to the regulations identify a non-exhaustive list of such circumstances, but this will continue to be rare exceptions.

 

When designating critical habitat, the regulations reinstate the requirement that areas where a threatened or endangered species is present 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 contributes 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 under section 7 of the act. The revisions to the implementing regulations clarify the interagency consultation process and make it more efficient and consistent.

 

The revisions address alternative consultation mechanisms to provide greater flexibility on how ESA consultations are implemented. They also establish a deadline for informal consultations to provide regulatory certainty for federal agencies and applicants without compromising conservation of ESA-listed species.

 

Revisions to the definitions of “destruction or adverse modification,” “effects of the action”, and “environmental baseline” further improve the consultation process by providing clarity and consistency.

 

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 when it is deemed necessary and advisable for the conservation of the species, as has been common practice for most species listed as threatened in recent years.

 

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 regulations clarifies that the ESA does not prohibit agencies from collecting data that determine this cost and making that information available if doing so does not influence the listing determination.

The Endangered Species Act is credited with helping save the bald eagle, California condor and scores of other animals and plants from extinction since President Richard Nixon signed it into law in 1973. The Endangered Species Act currently protects more than 1,400 species in the United States and its territories. The near-extinction of the bison and the disappearance of the passenger pigeon helped drive the call for wildlife conversation starting in the 1900s.

The regulation revisions are available to anyone's review and assessment. In 2017, the U.S. Fish and Wildlife Service sought public input on how the federal government can improve upon the regulatory framework. They received substantial input from a wide range of stakeholders on modernizing the implementation of the ESA in order to improve collaboration, efficiency, and effectiveness. The results are the revisions we have today.

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