Congressman Gosar Applauds DOI Action to Modernize ESA

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Washington, July 19, 2018 | comments

WASHINGTON, D.C. – Western Caucus Chairman Rep. Paul A. Gosar (AZ-04), released the following statements after the U.S. Fish and Wildlife Service (Service) and the National Oceanic Atmospheric Administration Fisheries published three proposed rules to improve & modernize the Endangered Species Act:

Congressman Gosar stated, “Today, Interior Secretary Ryan Zinke, Deputy Secretary Bernhardt, the Service and the Department made it clear that they are dedicated to modernizing the Endangered Species Act of 1973. While we are still reviewing all of the details, I like what I see at first glance. These proposed rules aim to help address the lack of clarity, transparency and consistency associated with the ESA listing and delisting processes as well as the designation of critical habitat. Furthermore, these proposals build on the strong legislative package that Western Caucus rolled out last week to comprehensively address the many inefficiencies of the Endangered Species Act. The abuse of the litigation process by the Center for Biological Diversity, the Sierra Club, and other extremist organizations for the sole purpose of receiving massive taxpayer-funded settlements in order to finance their radical agenda is inexcusable and un-American. The Congressional Western Caucus will continue to work hard to ensure the passage of our common sense bills that will update the nearly 45 year old Endangered Species Act. I am grateful to the Secretary, Dep. Sec and Service for their continued leadership on this critical issue.”

Background

Today, the Department of the Interior, in particular the U.S. Fish and Wildlife Service, and the National Oceanic Atmospheric Administration Fisheries announced proposed revisions to the Endangered Species Act. Specifically, the revisions aim to address Section 4 and Section 7 of the law by improving consultation, implementing sidebars for critical habitat designations, addressing issues with threatened status, and addressing flaws with listing and delisting processes.

Courtesy of the Department of the Interior, the Fish and Wildlife Services, and the National Oceanic Atmospheric Administration

Several proposed changes relate to section 4 of the ESA, which deals with procedures for listing species, recovery and designating critical habitat (areas essential to support the conservation of a species). First, the agencies propose to revise the procedures for designating critical habitat by reinstating the requirement that they will first evaluate areas currently occupied by the species before considering unoccupied areas. Second, the agencies propose to clarify when they may determine unoccupied areas are essential to the conservation of the species.

While the agencies recognize the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. Accordingly, they are proposing a non-exhaustive list of circumstances where they may find that designation for a particular species would not be prudent. The agencies anticipate that such not-prudent determinations will continue to be rare and expect to designate critical habitat in most cases.

The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” For the first time, the agencies are proposing an interpretation of “foreseeable future” to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable.

The agencies are also clarifying that decisions to delist a species are made using the same standard as decisions to list species. In both cases, that standard is whether a species meets the established ESA definition of an endangered species or threatened species.

The U.S. Fish and Wildlife Service is separately proposing to rescind its blanket rule under section 4(d) of the ESA, which automatically conveyed the same protections for threatened species as for endangered species unless otherwise specified. This brings its regulatory approach to threatened species protections in line with NOAA Fisheries, which has not employed such a blanket rule. The proposed changes would impact only future listings or downlistings and would not apply to those 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 that are necessary and advisable for the conservation of the species, as has been standard practice for most species listed as threatened in recent years.

Under section 7 of the ESA, other federal agencies consult with the U.S. Fish and Wildlife Service and NOAA Fisheries to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species or result in “destruction or adverse modification” of critical habitat. The proposed rule simplifies and clarifies the definition of “destruction or adverse modification” by removing redundant and confusing language. The proposed rule is not intended to alter existing consultation practice; rather, it seeks to revise and clarify language that was confusing to other federal agencies and the public.

The proposed rules are available here.

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