- - Monday, August 19, 2019

ANALYSIS/OPINION:

On August 12, the Commerce Department’s National Marine Fisheries Service (NMFS) and Interior Department’s U.S. Fish and Wildlife Service (USFWS) announced rules changes to the implementation of regulations pertaining to the Endangered Species Act (ESA) of 1973.

The Endangered Species Act  was last reauthorized in 1988. Why the prolonged delay in updating it? It’s long overdue to modernize the law and bring it into the 21st century. 

Of the 1,661 species that have been awarded endangered or threatened protections since 1973, however, only 54 species — or three percent of listed species —  have fully recovered or been delisted. 

Efforts to modernize the Endangered Species Act  last Congress, namely the bipartisan ESA Modernization Legislative Package, sadly didn’t gain much traction. Under the Democrat-led People’s House today, many representatives are keen to leave the status quo in place.

Why won’t Congress fulfill its constitutional duty to ensure this conservation tool works properly? 



It’s time to make the Endangered Species Act fully functional and less susceptible to weaponization by special interests. 

Too often, environmental non-governmental organizations (NGOs), including serial litigants WildEarth Guardians (WEG) and the Center for Biological Diversity (CBD), file “citizen suits” or “sue and settle” in the name of protecting imperiled species. After these groups claim legal victories, their attorneys’ fees are recouped by our taxpayer dollars. These lawsuits, often settled behind closed doors, divert critical resources away from important species recovery efforts. 

Unacceptable. This undermines the critical work of wildlife biologists and other dedicated conservationists. 

That’s why various stakeholders across different industries — including conservation groups like National Wild Turkey Federation, Safari Club International, Public Lands Council, and Boone and Crockett Club — also support these newly-unveiled rules changes. 

Endangered Species Act  reforms to Sections 4, 4(d), and 7 will help improve, not undermine, the process for protecting and recovering endangered or threatened species. 

First, Section 4 has changed to note determinations for delisting or reaffirming listing protections will strictly be made on the basis of “best available scientific and commercial information.” Going forward, critical habitat designations won’t be sufficient alone to justify Endangered Species Act protections. This revision will prevent abuse by litigants who apply such designations to species residing outside habitats in question—as reaffirmed in Weyerhauser vs. USFWS. The ruling determined the dusky gopher frog isn’t eligible for ESA protections under this condition since it inhabits Mississippi, not Louisiana. 

Bills like Sen. John Cornyn’s, Texas Republican, 21st Century Endangered Species Transparency Act (S.1429) ensures Section 4 of the law compels the responsible agencies to make “the best scientific and commercial data available” on the Internet as it relates to listed protections. 

Second, removing blanket protections under Section 4(d) will ensure future listed threatened species aren’t awarded the same protections applied to endangered species. This means list designations will be individually tailored to the species’ actual conservation needs. Congress should also pass the SAVES Act — notably Rep. Gohmert’s bill differentiating non-native species from native ones when considering list protections and Senator Ted Cruz’s, Texas Republican, bill ensuring ESA protections aren’t extended to non-native species. 

As the Property and Environment Research Center (PERC) notes, restoring the ESA’s original two-tiered approach not only affords endangered species the best possible protections, it provides immense regulatory relief for property owners who serve as important stakeholders and help protect at-risk species. In fact, this will further incentivize landowners and private property advocates to cooperate and partner with regulators without jeopardizing their livelihood or disrupting business operations. 

Third, reforming Section 7 will improve the interagency consultation as it relates to the Endangered Species Act. This amended rule will also establish deadlines for informal consultations between governmental agencies without compromising conservation efforts of imperiled ESA-listed species. 

How is strengthening and reforming existing ESA provisions detrimental to the law and the wildlife it protects? Why should the status quo be tolerated when 97 percent of critically endangered or threatened listed species haven’t gotten off the list? 

Without a doubt these rule enhancements will lead to better implementation of the law, to more species being delisted, and to greater cooperation between all stakeholders involved in species recovery. 

The Endangered Species Act  has played an integral role in protecting and recovering imperiled native flora and fauna throughout the United States. Over the course of its 45 year history, it has prevented iconic species like the bald eagle, grizzly bear, American alligator, and gray wolf, from going extinct. 

Yet, Congress must update the law to address modern-day challenges. 

The Endangered Species Act  must evolve and become more palatable for the present day. Failing to improve or update existing status requirements is not only detrimental to true conservation efforts, it’s also antithetical to the original intent of this legislation. 

Not delisting endangered or threatened species once they’ve recovered-in large part, due to litigation-would also undermine the ESA’s very purpose. 

If more improvements aren’t implemented, the law will cease to be effective. This would be disastrous for the nation and the wildlife we admire. 

Congress must do its part to modernize the Endangered Species Act. so the 97 percent of remaining listed species avoid extinction. Will they live up to the task? Time will tell. 

• Gabriella Hoffman, a media strategist, consultant and outdoor writer, hosts the “District of Conservation” podcast.

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