Magazine

Legislation & Regulation

Legislative and Regulatory Update

September 2019 by Scott Harn

• ESA changes for the better
On August 12, 2019, the Trump administration finalized three rules governing the Endangered Species Act (ESA). (They are rather lengthy documents and links are provided at the end of this article.)

These rules are major improvements and will:

Advise the public of the economic impact of a listing decision.
Limit circumstances where unoccupied habitat can be designated as critical habitat.
Remove the “blanket rule” that applied all prohibitions regarding endangered species to threatened species.
Shift the burden to the Fish & Wildlife Service to define prohibitions for threatened species on a case-by-case basis subject to the rulemaking process.
Provide a new definition for threatened species that will limit the scope of threats weighed in the listing decision to those which are probable in the foreseeable future.
Streamline the de-listing process to removed recovered species from the list.

Clark Pearson (Public Lands for the People) and I had two in-person meetings with officials in the current administration in DC regarding these issues, and we are happy to see these specific items being addressed.

Further justification for the rulemaking comes from a unanimous decision by the US Supreme Court in Weyerhaeuser v. US Fish & Wildlife. In this 2018 case, the court ruled that the ESA must consider economic and other impacts before making a critical habitat designation.

In Weyerhaeuser, the Fish & Wildlife Service designated a parcel of land in Louisiana critical habitat for the endangered dusky gopher frog. The frog currently lives hundreds of miles away in Mississippi and had not been seen in Louisiana for decades. Additionally, the land in question was deemed unsuitable for the frog, but the Service claimed that habitat can include areas that would require “some degree of modification.” The US Supreme Court disagreed.

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Fish & Wildlife: Endangered and Threatened Species Interagency Cooperation: https://www.federalregister.gov/documents/2019/08/27/2019-17517/endangered-and-threatened-wildlife-and-plants-regulations-for-interagency-cooperation

Fish & Wildlife: Listing Species and Designation Critical Habitat: https://www.federalregister.gov/documents/2019/08/27/2019-17518/endangered-and-threatened-wildlife-and-plants-regulations-for-listing-species-and-designating

Fish & Wildlife: Prohibitions to Threatened Wildlife and Plants: https://www.federalregister.gov/documents/2019/08/27/2019-17518/endangered-and-threatened-wildlife-and-plants-regulations-for-listing-species-and-designating