The United States Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration (NOAA) have released a joint proposal to make significant revisions to regulations that implement the Endangered Species Act (ESA) and are inviting comments from the public for a period of 60 days.

ESA was enacted in 1973 with the goal of preventing plants and animals from becoming extinct. The Administration has proposed changes to the enforcement of ESA that would make it harder to provide protections for certain species.

The inter-agency proposal tightens the definition of “foreseeable future” for making crucial ESA decisions. This is in reference to the ESA requirement that USFWS or the National Marine Fisheries Service must determine whether a species is “in danger of extinction, or likely to become so within the foreseeable future” when making a listing decision. Under the new proposal, foreseeable future only extends so far as officials “can reasonably determine that the conditions posing the potential danger of extinction are probable.”

The proposal would also eliminate the “blanket 4(d)” rule, which allows the same broad protections for threatened species that are received by endangered species. This move, which would only cover future listings, would result in narrower protections, made on a case-by-case basis, for threatened species.

The Administration has also proposed removing language that guides officials to ignore economic burdens when determining how species should be protected. “We propose to remove the phrase, ‘without reference to possible economic or other impacts of such determination,’… to more closely align with the statutory language,” the proposed rule reads. “The act requires the secretary to make determinations based ‘solely on the basis of the best scientific and commercial data.’”

The proposal makes a key change to the designation of “critical habitats”, which are areas essential for recovery of a species. These areas are sometimes still considered “critical” when it is not occupied by the species in question. The new rules would allow USFWS and NOAA Fisheries to designate unoccupied areas “critical habitat” only when the occupied areas are inadequate for the conservation of the species or if inclusion of unoccupied areas would yield other specified advantages. This could potentially shrink critical habitat.

The proposal has raised concerns in the conservation community. Jamie Rappaport Clark, President and CEO of the Defenders of Wildlife and former Director of USFWS said, “These regulations are the heart of how the Endangered Species Act is implemented. Imperiled species depend on them for their very lives.” Clark expressed concerns that the changes “would undercut the effectiveness of the ESA and put species at risk of extinction.”

“These proposals would slam a wrecking ball into the most crucial protections for our most endangered wildlife,” said Brett Hartl, Government Affairs Director at the Center for Biological Diversity. “If these regulations had been in place in the 1970s, the bald eagle and the gray whale would be extinct today.”

The proposal, published in the Federal Register on July 25, 2018, will accept comments until September 24, 2018. Comments can be submitted electronically through the Federal eRulemaking Portal: http://www.regulations.gov.

Links to the Federal Register notices:
https://www.gpo.gov/fdsys/pkg/FR-2018-07-25/html/2018-15811.htm
https://www.gpo.gov/fdsys/pkg/FR-2018-07-25/html/2018-15810.htm
https://www.gpo.gov/fdsys/pkg/FR-2018-07-25/html/2018-15812.htm