In July of this year, the federal government proposed an amendment to the Endangered Species Act (ESA) that redefines/streamlines the procedures and criteria for listing and delisting endangered species and designating critical habitat. There are a handful of amendments that are proposed but the overall direction points to allowing the U.S. Fish and Wildlife Service (FWS) to make unique or tailored assessments based on the species, habitat, region, etc. when deciding to list or delist a species.
Additionally, the ESA currently states that it will not take economic or other impacts into consideration when listing, delisting, or reclassifying a species. That is not being changed at this time. However, under the proposed amendments, the FWS acknowledges that there is value in referencing economic or other considerations such as ambient air studies, cost/benefits analysis, etc. By clarifying the criteria for critical habitat designations, the proposed changes aim to base determinations on conditions and circumstances present at the habitat as opposed to whether the designation would be beneficial and introduces transparency to the process.
Enacted in 1973, the ESA is a federal environmental law designed to raise awareness of wildlife populations in danger of extinction, provide modifications to the causes behind the population declines (overharvesting, habitat destruction, etc.), and outline methods and practices to protect, conserve, and aid in the recovery of populations that have experienced massive declines. Until recently, the Act has gone largely unchanged; however, the federal government is proposing changes intended to streamline the application and ruling processes. Some, in my opinion, that are good, and some that the jury is still out on.
- Revision of the Regulations for Listing Species and Designating Critical Habitat
- Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants
- Revision of Regulations for Inter-agency Cooperation
Currently, the federal government has proposed changes to the Act which alter the protocol for listing species and streamline the decision making and permitting process. 118 Pages of detail on the proposed changes can be found at the three Federal Register notices linked above but I’ll save you some read-time and summarize below:
The proposed changes will modify the approach by the FWS to resemble that taken by the National Marine Fisheries Service. The proposed changes also do not affect species listed as endangered or threatened species unless the FWS performs a species-specific determination in the future.
Many definitions could be getting updated or added to the ESA with these changes. One of the more interesting additions is the definition of “Programmatic Consultation”. While the definition is not set, these are consultations or decisions that are common across a policy/program, region, type of project or practice, etc. that developers and the FWS can reference while when planning a project that helps streamline the process. The proposed changes also look to change the timelines for information exchange and formal consultations with the FWS.
These changes aim to shorten the current consultation process between businesses and the federal government, allowing businesses to reduce project initiation timeframes and increase production. This proposal also allows builders and developers to bypass mitigation processes in areas of unpopulated critical habitats by concerned species or areas where protection of a threatened or endangered species is needed.
I believe that by reducing the application time and requirements for businesses, coupled with reducing the lengthy ruling process faced by government officials, that more time will be available to concentrate on actual conservation and protection measures of various wildlife species. In turn, this could allow time for the consideration of additional species in peril.
While some may argue these changes damage the effectiveness of the Act, others reason these changes could relieve massive backlogs on the federal government and reduce waiting periods imposed on businesses. If these changes are enacted and implemented correctly this could be a win-win for the species concerned as well as the businesses involved.
To stay informed, register for our lunchtime webinar on February 28, 2019 in which Anjali Karve will discuss changes to the Endangered Species Act and its implications.