Public Input Sought on ESA Reform

U.S. Fish and Wildlife Service and NOAA Fisheries Seek Public Input on Proposed Reforms to Improve & Modernize Implementation of the Endangered Species Act

July 19, 2018


U.S. Fish and Wildlife Service:, 703-358-2649

NOAA Fisheries:, 301-427-8030

Continuing efforts to improve how the Endangered Species Act (ESA) is implemented, the U.S. Fish and Wildlife Service and National Oceanic Atmospheric Administration (NOAA) Fisheries today proposed revisions to certain regulations to ensure clarity and consistency. The changes incorporate public input, best science and best practices to improve reliability, regulatory efficiency and environmental stewardship.

“The Trump Administration is dedicated to being a good neighbor and being a better partner with the communities in which we operate. One thing we heard over and over again was that ESA implementation was not consistent and often times very confusing to navigate. We are proposing these improvements to produce the best conservation results for the species while reducing the regulatory burden on the American people,” said U.S. Fish and Wildlife Service Principal Deputy Director Greg Sheehan. “We value public input and have already incorporated initial public comments we received in response to our notices of intent published in 2017. We encourage the public to provide us additional feedback to help us finalize these rules.”

“We work to ensure effective conservation measures to recover our most imperiled species,” said Chris Oliver, NOAA Assistant Administrator for Fisheries. “The changes being proposed today are designed to bring additional clarity and consistency to the implementation of the act across our agencies, and we look forward to additional feedback from the public as part of this process.”

Several proposed changes relate to section 4 of the ESA, which deals with procedures for listing species, recovery and designating critical habitat (areas essential to support the conservation of a species). First, the agencies propose to revise the procedures for designating critical habitat by reinstating the requirement that they will first evaluate areas currently occupied by the species before considering unoccupied areas. Second, the agencies propose to clarify when they may determine unoccupied areas are essential to the conservation of the species.

While the agencies recognize the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. Accordingly, they are proposing a non-exhaustive list of circumstances where they may find that designation for a particular species would not be prudent. The agencies anticipate that such not-prudent determinations will continue to be rare and expect to designate critical habitat in most cases.

The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” For the first time, the agencies are proposing an interpretation of “foreseeable future” to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable.

The agencies are also clarifying that decisions to delist a species are made using the same standard as decisions to list species. In both cases, that standard is whether a species meets the established ESA definition of an endangered species or threatened species.

The U.S. Fish and Wildlife Service is separately proposing to rescind its blanket rule under section 4(d) of the ESA, which automatically conveyed the same protections for threatened species as for endangered species unless otherwise specified. This brings its regulatory approach to threatened species protections in line with NOAA Fisheries, which has not employed such a blanket rule. The proposed changes would impact only future listings or downlistings and would not apply to those species already listed as threatened. The U.S. Fish and Wildlife Service will craft species-specific 4(d) rules for each future threatened species determination that are necessary and advisable for the conservation of the species, as has been standard practice for most species listed as threatened in recent years.

“No two species are the same, and so by crafting species-specific 4(d) rules for threatened species, we can tailor appropriate protections using best available science according to each species’ biological needs,” said Sheehan. “By creating a clearer regulatory distinction between threatened and endangered species, we are also encouraging partners to invest in conservation that has the potential to improve a species’ status, helping us work towards our ultimate goal: recovery.”

Under section 7 of the ESA, other federal agencies consult with the U.S. Fish and Wildlife Service and NOAA Fisheries to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species or result in “destruction or adverse modification” of critical habitat. The proposed rule simplifies and clarifies the definition of “destruction or adverse modification” by removing redundant and confusing language. The proposed rule is not intended to alter existing consultation practice; rather, it seeks to revise and clarify language that was confusing to other federal agencies and the public.

Additional proposed revisions to the consultation regulations will clarify whether and how the U.S. Fish and Wildlife Service and NOAA Fisheries consider proposed measures to avoid, minimize or offset adverse effects to listed species or their critical habitat when conducting interagency consultations and will improve the consultation process by clarifying how biological opinions and interagency submissions should be formulated.

The proposed rules are available here and will publish in the Federal Register in coming days, including detailed information on how the public can submit written comments and information concerning these provisions.

Comments must be received within 60 days of publication. All comments will be posted on This generally means any personal information provided through the process will be posted.

The National Marine Fisheries Service is a part of the Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA). NOAA’s mission is to understand and predict changes in the Earth’s environment, from the depths of the ocean to the surface of the sun, and to conserve and manage our coastal and marine resources. Join us on TwitterFacebookInstagram and our other social media channels.

Livestock Groups Urge Swift Passage of ESA Amendments of 2018

The Public Lands Council (PLC), the National Cattlemen’s Beef Association (NCBA), and the American Sheep Industry Association (ASI) today urged swift passage of the Endangered Species Act Amendments of 2018. The amendments, introduced today by Senator John Barrasso (R-Wyo.) Chairman of the Environment and Public Works Committee, are based on the Western Governor Association Species Conservation and Endangered Species Act Initiative bipartisan policy recommendations. In a letter of support, PLC President Dave Eliason, NCBA President Kevin Kester, and ASI President Mike Corn stated:

“As the nation’s largest non-governmental bloc of land managers, ranchers take great pride in their integral role in species conservation and recovery. For generations, livestock producers have been dedicated to improving the health of landscapes where wildlife call home. Over the years, they have grown frustrated by the lack of commonsense ESA implementation and being put on the sidelines while those decisions are made. This legislation will help bring them back to the table to craft recovery plans that are workable and produce favorable results.”

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NCBA and PLC Support the Modernization of Endangered Species Act

National Cattlemens Beef USA logo(via NCBA Beltway Beef) The Endangered Species Act has become one of the most economically damaging laws facing our nation’s livestock producers. When species are listed as “threatened” or “endangered” under the ESA,the resulting use-restrictions placed on land and water, the two resources upon which ranchers depend for their livelihoods, are crippling.The ESA has not been reauthorized since 1988 and is in great need of modernization.

The National Cattlemen’s Bee Association and the Public Lands Council support all attempts to modernize and streamline the ESA and have provided several recommendations to Congress. The House of Representatives Endangered Species Act Congressional Working Group released a report in February 2014 which gave several recommendations for ESA improvements.The report concludes that the ESA “while well-intentioned from the beginning,must be updated and modernized to ensure its success where it matters most: outside of the courtroom and on-the-ground. ”The working groups’ recommendations echo our organizations’ recommendations.

NCBA and PLC submitted a letter of support this week for four bills that are a direct result of the findings that are covered in the working groups’report.

H.R.4315, the 21st Century Endangered Species Transparency Act introduced by Representative Doc Hastings (R-WA),requires data used by federal agencies for ESA listing decisions (including proposed listings) to be made publicly available and accessible through the Internet. The public should be able to see the information that their government is using to make listing decisions that ultimately affect everyone.

H.R.4316, the Endangered Species Recovery Transparency Act introduced by Representative Cynthia Lummis (R-WY), requires the Interior Secretary to report and comprehensively track ESA litigation costs, including attorneys’ fees, and post it on the internet. We must hold people accountable for the monetary resources,taxpayer money that is spent.

H.R.4317 the State, Tribaland Local Species Transparency and Recovery Act introduced by Representative Randy Neugebauer (R-TX),requires the federal government to disclose to affected states all data used in ESA prior to any listing or proposed listing decision. It also ensures that “best available scientific and commercial data” used by the federal government will include data provided by affected states, tribes,and local governments.

H.R.4318, the Endangered Species Litigation Reasonableness Act introduced by Representative Bill Huizenga (R-MI),caps hourly fees paid to attorneys that prevail in cases filed under ESA, consistent with current law under the Equal Access to Justice Act.Currently, no cap on attorney fees exists under the ESA allowing attorneys to be awarded massive sums of taxpayer money.

The ESA,while designed to protect species from endangerment of extinction, has proven itself o be ineffective and immensely damaging to our members’ ability to stay in business. Less than two percent of species placed on the endangered list have ever been deemed recovered.

Environmental activist groups’ list-and-litigate routine costs not just producers, but taxpayers, as well.These groups have a habit of suing the federal government to force the listing of a species,then suing to prevent species delisting—even after recovery goals have been met.Their legal expenses are often reimbursed by the American taxpayer. It is no small wonder when environmental radicals can keep themselves well-funded by a seemingly endless stream of taxpayer dollars that so many species have been listed and so few have been delisted. While not a complete fix, these four bills take some of the necessary steps to repairing this broken law.

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