Trump Administration Promotes Species Conservation with New Rules

Published October 10, 2019

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released final regulations aimed at improving implementation of the 1973 Endangered Species Act (ESA) to protect threatened and endangered species while strengthening private property rights.

As implemented so far, the law has been a failure. Over the ESA’s more than 45 years, only about 3 percent of the species listed as threatened or endangered have been removed from the list because of recovery.

Sen. John Barrasso (R-WY) summed up these results by saying, “As a doctor, if I admit 100 patients to the hospital and only three recover enough under my treatment to be discharged, I would deserve to lose my medical license.”

Many of the problems with the law have resulted from how the federal government has implemented it. The FWS and NMFS acted to fix the problems by releasing the new rules on August 12.

Blurred Distinctions

The most significant protections under the ESA apply to species classified as “endangered,” including stringent prohibitions against activities that would harm those species or their habitats. This often includes sharply restricting how property owners can use their land.

Under the law as written, different, less stringent rules are supposed to apply to threatened species than to endangered ones.

For decades, however, the FWS has applied the same prohibitions to threatened and endangered species alike.

This policy hurt conservation efforts by diverting time and resources from where they were most needed. It also removed important incentives for private property owners to foster species recovery. If the stringent prohibitions didn’t apply to threatened species, private property owners would have an incentive to protect these species from becoming endangered, in order to avoid restrictions on the use of their property.

The FWS’s new regulation properly follows the law, treating endangered and threatened species differently from each other. This is consistent with Congress’ stated intentions and follows what the NMFS has been doing successfully for years.

The change applies only to species listed as threatened in the future, not those currently designated as threatened.

Promoting Transparency

The FWS and NMFS are also improving the transparency of their actions.

The ESA requires science alone be used to determine whether to list a species as endangered or threatened, without taking into account the estimated costs of protecting a species. The federal government, however, has used this science-only requirement as an excuse to prohibit identifying the benefits and costs of listing a species.

The final regulations still require listing decisions be made without considering costs, but they require the federal government to identify and communicate the effects of these decisions.

Transparency, Not Neglect

Critics argue this change will require the government to consider economic considerations when listing species. The regulations do no such thing.

There is nothing novel about informing the public about the costs of actions when an agency isn’t considering them in making decisions. This is exactly what the Environmental Protection Agency does when designating the National Ambient Air Quality Standards.

When legislators and the public know what the actual costs and benefits are for conserving species, they can better understand how the ESA might be changed to improve protection of species.

Society has decided to conserve species under the ESA, but private property owners bear much of the cost. Society, not private property owners, should bear these costs. Although more should be done to protect private property owners, the current regulatory change will shed light on the hidden costs property owners often incur, such as severe declines in property values.

Improving Habitat Designations

Under the ESA, the federal government designates critical habitat for listed species, which may include areas the animals do not currently occupy. These unoccupied areas must be essential to the conservation of the species, the law states.

The new regulations should help ensure any unoccupied areas designated as critical habitat are viable and truly essential to a species’ conservation. That should end extreme situations like what happened in Louisiana when FWS designated 1,544 acres as “critical habitat” for an endangered species known as the dusky gopher frog even though the frog has not been seen in Louisiana in more than 50 years and couldn’t survive on the land designated as critical habitat in its current condition.

As the Pacific Legal Foundation’s Mark Miller, who represented the property owners in the case, stated, “The feds may as well have labeled this Louisiana property critical habitat for a polar bear. It would have done just as much good.”

Designating the unsuitable land as critical habitat was a misguided attack on property rights, which could have cost the property owners as much as $34 million. It appeared to be aimed more at restricting development than conserving the dusky gopher frog.

‘Wasting Time and Money’

A major problem with ESA implementation is the agencies responsible for it have misallocated resources that could be better spent elsewhere. Wasting time and money restricting property rights on land endangered species cannot reside upon, as in the case of the dusky gopher frog, is a prime example of this problem.

The administration’s new regulations are designed to focus habitat protection efforts on lands actually capable of sustaining species. As U.S. Secretary of the Interior David Bernhardt stated, “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

These changes may pose a problem for those who are more interested in blocking development than in promoting the welfare of threatened and endangered species. For those who want to improve recovery efforts and protect private property rights, these regulations are an important step forward.

Daren Bakst ([email protected]) is a senior research fellow at The Heritage Foundation.