Conservation Government Affairs Science

New rules unveiled for Endangered Species

Opportunity for improvement lost; higher risk of extinction gained. On August 12, the U.S. Fish and Wildlife Service (Service) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service…

Opportunity for improvement lost; higher risk of extinction gained.

On August 12, the U.S. Fish and Wildlife Service (Service) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) -referred to here as “the Agencies” –  jointly announced three final rules which modify regulations that implement portions of the Endangered Species Act (ESA). The final rules follow a public comment period on draft rules in the fall of 2018.  See TU’s comments on the proposed rules here:

The three rules will be published in the Federal Register this week, taking effect during the week of October 14, 2019.

How this will impact coldwater fisheries:

There are far too many trout and salmon on the endangered species list, from Atlantic salmon in Maine, to Gila trout in New Mexico, to bull trout in Montana, to steelhead in Washington state.  TU, and those fish, rely on the Endangered Species Act (ESA) for protection, and most importantly, recovery.  The set of regulatory changes rolled-out by the Agencies this week will not help those species get healthier, which is a major opportunity lost and a higher risk of extinction gained.  For our communities and cities, it means less protection for healthy watersheds and fewer tools to restore degraded ones. 

About the proposal:

 The regulatory roll-backs announced on Monday allow more harm to come to imperiled species. Critical habitat is restricted. climate models are rejected and blanket protections are eliminated. The new rules will weaken ESA protections in the following ways:

  • Climate Change cannot be meaningfully considered by the Agencies: they can’t designate critical habitat based on threats posed by climate change; currently unoccupied habitat that a species may migrate into due to climate-change impacts can’t be designated as critical habitat without jumping through multiple hoops and meeting an almost impossibly high bar; and, in new listing determinations, threats must be “likely” rather than “foreseeable.” 
  • Newly-listed species get less protection:  a species newly-listed as threatened is no longer automatically afforded protection from a “take,” or from actions that kill the species or harm its habitat. 
  • “Death by a Thousand Cuts” is Allowed, only direct actions that harm species will come under scrutiny:  under the new rules, everything but the direct consequences of a proposed action is defined away as “environmental baseline;” actions can chip away at the health of critical habitat so long as they don’t harm “critical habitat as a whole;” and, a proposed action’s mitigation concepts don’t have to have dedicated resources behind them or a binding plan. 
  • Easier to De-list Species because a species doesn’t have to be “recovered,” and population data for the species does not have to “substantiate delisting.” 

The regulatory roll-backs are supposed to “streamline” agency decision-making, but they add more work to the Agencies without adding resources: 

  • Listing Process Burdened by New Rules and More Studies:  now the Services must do an economic study in order to list a species, even though the agencies are precluded by statute form considering that information; and, species-specific “take” rules under 4(d) must be completed at the time of listing.
  • More Work; Less Time:  The Agencies only have 60 days to complete informal consultation.   

 A Better Way: The new rules missed an opportunity to increase recovery through increased financial investment for agencies and programs, additional flexibility for voluntary restoration activities, and increased coordination across agencies and with impacted communities.

In particular, we believe the best success for the ESA program will come through increased collaboration with private landowners – the Agencies should work to find new ways to help restore habitat on private lands.  TU works with farmers, ranchers, and miners who are willing to do more to protect listed species, in return for greater assurances for their operations and healthier streams. 

That’s the kind of work that will make listed and candidate species healthier; not more at-risk.

The Agencies should work on measures that make it easier to recover species, restore degraded watersheds, and protect pristine ones

What comes next and how you can help:

Additional Background

Previous TU comments on proposed rules:


For more information, please contact Kate Miller, Government Affairs Director, or contact your local Council leaders.