Interior Department Proposes Endangered Species Reforms

Published September 18, 2018

The U.S. Fish and Wildlife Service (FWS) announced a series of policy reforms altering how it fosters species recovery under the 1973 Endangered Species Act (ESA), to reduce conflict between species and people while enhancing species recovery.

Dual Protections

FWS proposed several rule changes on July 19 as part of a larger effort by the administration of President Donald Trump to have endangered species policy better account for the impact of species protection on peoples’ property rights and economic activity.

One reform revises regulations on designating critical habitat for species recovery, reinstating a requirement that areas currently occupied by a species will be reviewed and considered for restrictions before, and separate from, unoccupied areas. The Obama administration had changed the rules to impose equally stringent restrictions on unoccupied privately owned habitat as on occupied habitat.

A second change reverses a policy going back decades, under which threatened species were automatically given the same protections against being harmed or threatened by development as endangered species. Under the ESA, restrictions on actions which resulted in taking a threatened species or altering its habitat were allowed to be made on a case-by-case basis, but previous administrations placed the same blanket prohibitions on the taking of threatened species as those regarding endangered species, eliminating, from a regulatory perspective, the different status of the two categories of species.

FWS’s revised, case-by-case analysis of the habitat protections for threatened species—and for future listings, down-listings, or removals from the endangered species list—would make its threatened species policies consistent with those of National Oceanic and Atmospheric Administration.

Ending ‘Compensatory Mitigation’

On July 30, FWS offered an additional regulatory revision, withdrawing the Obama-era “compensatory mitigation policy” requiring any natural resource extraction on federal land to provide a “net benefit” to endangered species by mandating industry pay the government a fee to mitigate potential habitat damage.

FWS says it determined it lacks authority to require “net conservation gains” under ESA and says tying a monetary fine to endangered species habitat destruction could lead to regulators abusing industry.

“Because by definition compensatory mitigation does not directly avoid or minimize the anticipated harm, its application is particularly ripe for abuse,” FWS’s rule says.

FWS’s proposed changes came in response to Interior Secretary Ryan Zinke’s March 29, 2017 “American Energy Independence” order requiring FWS and other bureaus in the Interior Department to review and reexamine mitigation policies and practices to “better balance conservation strategies and policies with job creation for American families.”

Providing ‘Regulatory Certainty’

Ranchers and oil and gas operators are hopeful the changes FWS is making will allow them to better plan their operations, says Ethan Lane, executive director of federal lands for the National Cattlemen’s Beef Association.

“Under the Obama mitigation policy, companies would have to create habitat for habitat they had not destroyed, requiring ranchers to undertake species habitat activities that hurt their bottom line and made many activities unprofitable,” Lane said. “Under FWS’s new policy, operators on federal land should have some regulatory certainty allowing them to better understand any regulatory risks they are exposed to.”

“FWS should go even farther, however, and craft a new mitigation policy that makes sense by rewarding landowners who voluntarily undertake habitat mitigation or enhancement by providing them with specific payoffs,” said Lane.

Calls for Changing Incentives

To advance species protections, Congress must fundamentally reform the ESA to provide incentives for landowners to protect species, says R. J. Smith, a distinguished fellow at the Competitive Enterprise Institute and senior fellow with the National Center for Public Policy Research.

“Fish and Wildlife’s reforms are good as far as they go, correcting some of the most egregious actions the agency has taken over the years to stretch its power over private property and economic development, supposedly to protect species, beyond the bounds of the law,” Smith said. “But much more fundamental—legislative—changes need to be enacted to make the ESA truly work better for endangered species and people alike.

“Congress must alter the punitive nature of protecting species contained in the present act, under which if an endangered species is attracted to a person’s property, he or she virtually loses all control over it,” said Smith. “The ESA should reward, not punish, people for managing their property in ways that attract and foster endangered species recovery. An incentive-based system for species protection would better promote species’ flourishing and people’s constitutionally protected property rights.”

Duggan Flanakin ([email protected]) writes from Austin, Texas.