Public-Comment Window Closing On Endangered Species Act Revamp

(CN) – The public comment period on the Trump administration’s move to overhaul the Endangered Species Act ends next week and if new rules are finalized, it could become harder to protect new species and guard those already under threat.

The proposed overhaul to the Endangered Species Act, legislation which has seen modest revisions since it was enacted in 1973, was introduced in July by David Bernhardt, the Interior Department’s deputy assistant secretary.

The decision to streamline the legislation, according to the Interior, is the result of an Trump administration directive to all agencies to scale back regulations for the sake of efficiency.

Three sections of the bill are facing revisions. New provisions change the definition of terms like “foreseeable future” and modify definitions for “threatened” or “endangered.” Others establish prohibitions for listed species and enact new requirements for how federal agencies conduct consultations when establishing protections.

For example, the ESA currently defines a threatened species as one that is “likely to become endangered within the foreseeable future throughout all or a significant portion of its range.”

This language has given conservationists and environmentalist groups more room to interpret the breadth of protections and effectively strengthen them.

The newly proposed changes limit how “foreseeable future” is interpreted.

The agencies now propose a definition that “makes clear that [protections] extend only as far as they can reasonably determine that both the future threats and the species response to those threats are probable.

The proposal also does away with a current rule granting routine extensions on protection for threatened species that are subject to the same or very similar threats, faced by endangered species.

Language around the designation of critical habitats will also be tweaked if the proposal is finalized.

The proposal now “eliminates the need to reinitiate consultation on certain land management plans upon listing of new species designation of new critical habitat.”

For now, the ESA requires that all listing decisions are made “solely on the basis of the best scientific and commercial data available” – not economic analysis – Jason Rylander, senior counsel with Defenders of Wildlife, told Courthouse News.

“They are proposing to remove language from the regulation that prohibits any consideration of an economically-based listing process,” he said. “Our concern is … they may attempt to do economic analyses on listings that ultimately waste agency resources or are used to gin up opposition to a listing.”

Changes to the consultation process are also unnecessary, Rylander said because the vast majority of consultations end informally with no changes to potential developer projects in areas where protections may be needed.

Formal consultations typically end the same way, he noted.

“The notion that the Endangered Species Act is stopping development on land is just simply wrong,” he said.

Industry groups, like the American Farm Bureau Federation, disagree. In a fact sheet released this summer, the bureau argues the ESA “puts the interest of species above those of people,” restricts human activity and allows “private special interest groups to sue anyone who they allege to be in violation of the act.”

Rebecca Riley, legal director at the Natural Resources Defense Council, told Courthouse News the ESA is “flexible” and historically, has balanced property rights with species protections.

But if that flexibility becomes too great and rollbacks succeed, the impact is simple.

“Species will go extinct,” she said.

Gavin Shires, spokesman for the Fish and Wildlife Service, told Courthouse News it appears the public hasn’t taken the same emphatic interest to changes impacting the ESA as might occur with proposals effecting more “charismatic” issues.

“Like protections for polar bears or grey wolves. Sometimes we’ve seen comments in the millions for those issues,” he said.

As of Thursday, only 125,000 comments have been submitted for consideration.

This is a considerably low number in light of polls indicating that Americans – of various political affiliations – dramatically and overwhelmingly support the bill’s current formation.

When the comment period ends on September 24, the agencies then sort responses, remove duplicates and take out other erratum.

“You could have 30,000 comments and maybe 29,000 would be identical. You just don’t know until you’re done reviewing,” Shires said.

Shires noted it could take weeks, or even months, before the proposal moves into a final rulemaking stage.

Typically, public comment periods do little to change an agency’s original proposal.

But the overarching threat to the ESA – and what it protects – Riley said, continues to be lack of funding.

With adequate investment, these latest revisions – which the administration claims streamline, clarify and even strengthen protections  – may not even be necessary.

“By adequately funding ESA protections, we can recover species so they no longer need protection under law,” Riley said.

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