On July 25, 2018, the U.S. Interior and Commerce Departments announced proposed regulatory changes to the Endangered Species Act (ESA). They will be accepting public comments on the proposed regulations until September 24, 2018. The ESA has not seen major updates in over 30 years and now is the time to engage in this important discussion.
Opponents to the proposed changes argue that the modifications would create additional difficulties protecting endangered or threatened species and put them at risk of extinction. Supporters say the changes will increase efficiencies and expedite program consultations, allowing for easier and swifter creation of land-use projects and infrastructure.
The following changes have been proposed:
Foreseeable Future Definition Change
The ESA defines a “threatened species” as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” As the term “foreseeable future” is not specifically defined, the department seeks to determine its use on a case-by-case basis. The department would interpret the phrase as extending so far as can reasonably be determined. It will depend upon whether conditions that potentially pose a danger of extinction in the foreseeable future are probable through the best available scientific data, rather than based on speculation.
Parity for Listing and Delisting
The proposed changes would ensure that the same standard is used for both listing and delisting species. They would also clarify that a species may be delisted if it becomes extinct or no longer meets the definition of an endangered or threatened species.
The regulations currently require an analysis “without reference to possible economic or other impacts of such determination.” The proposed changes would eliminate this language so that the determination is made solely on the basis of the best available scientific information.
Prudent Critical Habitat Determinations
The ESA requires the designation of a geographical area as a critical habitat for a species when it is both “prudent and determinable.” The proposed changes suggest a list of circumstances in which Fish and Wildlife would have the authority, but not requirement, to find that a designation would not be prudent. The proposals would also remove the language “designation of critical habitat would not be beneficial to the species” as the term “prudent” would be more transparently determinable rather than the term “beneficial.”
Designating Unoccupied Critical Habitat
The proposed changes would revert back to the previously used two-step process to first evaluate areas occupied by the species, then only consider designation when occupied areas would be inadequate to ensure conservation or would result in a less efficient conservation of the species.
The Department of the Interior’s Fish and Wildlife Service and the Department of Commerce’s National Oceanic and Atmospheric Administration share jurisdiction of the ESA. The proposed changes would take necessary steps toward improving and clarifying the interagency consultation processes and make them more efficient and consistent.
As you know, ESA regulations can have a significant impact on agriculture production, especially in the Western United States. If you feel inclined to participate, follow the link below to file comments on the proposed changes. Please note that all comments made, including personal information provided through the process will be posted publicly on www.regulations.gov. As an association, Western Growers will be filing comments on this important issue in consultation with members affected by the ESA.
For more information on this program, please visit the US Fish and Wildlife Services website.
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