Fish and Wildlife proposes new rule for take permits under the Endangered Species Act

(CN) — The U.S. Fish and Wildlife Services proposed a new rule Wednesday to revise regulations regarding survival and incidental take permits under the Endangered Species Act. The announcement received mixed reactions by midafternoon, with the Interior Department stating the rule strengthened voluntary conservation opportunities, while conservationists claimed it streamlined the process for companies to harm vulnerable species.

“As we celebrate the 50th anniversary of the Endangered Species Act, it’s critical that we reflect on the lessons learned from implementing this landmark conservation law and assess what the next 50 years of species conservation should look like,” said Secretary Deb Haaland, in a statement. “A collaborative approach to the biodiversity and extinction crises will advance the goals of the President’s America the Beautiful initiative and set us on a course for continued recovery and resilience.”

According to Fish and Wildlife’s proposed enhancement of survival and incidental take permits, the overall purpose of its revisions are intended to reduce costs and time associated with negotiating and developing applications for take permits — where “take” is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or to attempt to engage in any such conduct,” according to NOAA Fisheries.

However, the revisions themselves include clarifying the appropriate use of permits and the agency’s authority to issue permits for non-listed species without including listed species. The revisions also include simplifying requirements for permits by combining safe harbor agreements and candidate conservation agreements with assurances — or voluntary landowner agreements — into one agreement type.

“The purpose of the proposed regulatory revisions is to improve the implementation of the conservation programs under ESA section 10(a) and to increase voluntary participation,” wrote Christine Schuldheisz, public affairs specialist for Fish and Wildlife, in an email with CNS.

Schuldheisz further explained that the agency plans to achieve this goal by simplifying processes and concepts that are often the sources of confusion and delay.

“The proposed rule would not significantly change the way we currently implement the section 10 program or expand the reach of species protections,” Schuldheisz added. “To the extent the revisions relate to the documents required to support a permit application, they clarify the requirements for those documents but do not impose additional requirements that would result in significantly increased costs to small entities.”

When asked how the proposed rule change would benefit threatened or endangered species, Schuldheisz gave reference to the Interior’s press release earlier Wednesday, which stated: “ESA section 10 permits have long been used to encourage candidate conservation agreements with assurances and safe harbor agreements, which are voluntary landowner agreements designed to benefit candidates or listed species, respectively. They have also been used to permit the take of listed species incidental to private development activities. ESA Section 10 permits allow for a variety of activities, some of which can benefit endangered species through innovation.”

But contrary to the Interior’s point, the Center for Biological Diversity claims the new rule combines two policies into one that “fails to require permanent conservation measures and allows participants to back out of the agreement at any point.”

“This lackluster rule is like rearranging deck chairs on the Titanic,” said Stephanie Kurose, a senior policy specialist for the Center, in a statement. “The Service missed a huge opportunity to make meaningful progress to recover our most vulnerable animals and plants. With time running out, we can’t afford more of the status quo.”

The Center explained that the proposed rule fails to include “strong monitoring and accountability requirements,” which would help Fish and Wildlife determine when species have been harmed at a greater level than authorized or have experienced a significant species-level population decline. Additionally, the Center claimed such changes wouldn’t limit the time it takes to develop these plans, which often take more than a decade due to insufficient resources.

Even so, Schuldheisz explained that by making the clarifications the agency did, Fish and Wildlife would improve the implementation of its conservation programs under the Endangered Species Act and increase its voluntary participation.

In explaining the difference between the agency’s take permits, for example, Schuldheisz wrote, “An enhancement of survival permits authorizing the take of covered species, above the baseline condition, when the primary purpose of the associated conservation agreement is to implement beneficial actions that address threats to the covered species, establish new wild populations, or otherwise benefit the covered species.”

In contrast, Schuldheisz explained incidental take permits authorize take that is incidental to otherwise lawful activities, such as resource extraction, commercial and residential development and energy development.

“The conservation actions in the associated conservation plan minimize and mitigate the impacts of the authorized take,” Schuldheisz wrote.

Fish and Wildlife’s announcement comes a day after a magistrate judge sided with the agency’s decision to permit a gas and oil company to cause “take” on threatened polar bears and Pacific walruses in northern Alaska.

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