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US agencies revamp endangered species rules, resolve debate over frog habitat


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US agencies revamp endangered species rules, resolve debate over frog habitat

In the name of easing regulatory burdens, the Trump administration has finalized sweeping changes to a 46-year-old law that saved a number of species such as bald eagles, humpback whales, grizzly bears and Florida manatees from the brink of extinction.

The U.S. Fish and Wildlife Service, or FWS, and National Marine Fisheries Service, or NMFS, on Aug. 12 issued final rules regarding adding or removing species from protections under the Endangered Species Act, or ESA, as well as for designating protected habitat for listed plant and animal species, and regarding consultations with other federal agencies.

Another final rule would make it so that species listed as threatened rather than endangered will no longer automatically be covered by the same protections as species listed as endangered. However, the agencies clarified that the protections that currently apply to threatened species will not change, unless the FWS adopts a species-specific rule in the future.

The agencies will also begin providing details to the public about the potential economic impacts of the proposed decisions, although the agencies would only consider biological factors in making a final determination as is required by law.

The FWS and NMFS argue that the changes, which will go into effect 30 days after the rules are published in the Federal Register, will ensure resources are focused on affected plants and animals while also speeding up decision-making.

"The revisions finalized with this rulemaking fit squarely within the President's mandate of easing the regulatory burden on the American public, without sacrificing our species' protection and recovery goals," Commerce Secretary Wilbur Ross said in a statement. Under the ESA, marine species fall under the jurisdiction of the NMFS, a Commerce Department agency, and all other species fall under the FWS' purview.

SNL Image

Female desert tortoises, which are listed as threatened under the Endangered Species Act, near Joshua Tree National Park in California's southern desert likely died while exhausting themselves to lay eggs during the state's drought.
Source: AP/U.S. Geological Survey

Changes to ESA implementation are anticipated to have wide-reaching implications for infrastructure development, including energy infrastructure. Would-be developers often try to avoid areas where species are listed or are likely to be listed because the law requires developers to mitigate any potential impacts of the project on those species, which can be time-consuming and costly.

Moreover, the agencies have had trouble over the years keeping up with the requirements of the ESA to process listing and delisting of endangered or threatened species within specific time frames. The ESA is also a frequent target of proposed legislation from Republican lawmakers aimed at limiting the law's impact on species in their districts.

But environmental groups worry the changes will make it harder to protect species, including those that face longer-term risks such as from climate change. The groups point to a recent study that found about 1 million animal and plant species are at risk of extinction globally due to climate change, pollution and lost habitat.

The groups also said the revised rule could allow the Trump administration to no longer protect land that could be critical to the future of certain species solely based on whether the species currently inhabit a particular location.

The Trump administration in July quietly settled a related case that had made it all the way to the U.S. Supreme Court. The case involved whether the federal government had properly assigned ESA protections to 1,500 acres of land leased by a timber company for potential future use by the endangered dusky gopher frog. The land would have needed to undergo significant changes to become a suitable spot for the frog but the FWS had decided to protect that parcel on the belief it could be needed in the future if the frog's current habitat was lost.

The Supreme Court in 2018 vacated an appeals court's decision and directed the lower court to consider "whether the Service's assessment of the costs and benefits of designation [of the land as protected] was flawed." With the case passed back down to a federal district court, the FWS in a consent decree signed on July 3 by Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana agreed to undo its designation of those acres as protected.

In the new final ESA rule, the FWS went one step further and added a requirement that, at a minimum, an unoccupied area must have one or more of the physical or biological features essential to the conservation of the applicable species in order to be considered as potential critical habitat. The new policy could give more certainty to infrastructure developers as to which lands could be subject in the future to ESA-related protections.