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The US Endangered Species Act Is About to Be Stripped of Some Key Provisions

DARRYL FEARS, THE WASHINGTON POST
20 JUL 2018

President Trump's administration unveiled a proposal Thursday that would strip the Endangered Species Act of key provisions, a move that conservationists say would weaken a law enacted 45 years ago to keep plants and animals in decline from going extinct.

 

The proposal, announced jointly by the Interior and Commerce departments, which are charged with protecting endangered wildlife, would end the practice of extending similar protections to species regardless whether they are listed as endangered or threatened. If the proposal is approved, likely by year's end, protections for threatened plants and animals would be made on a case-by-case basis.

In another rollback of a key provision, the administration wants the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration to strike language that guides officials to ignore economic impacts when determining how wildlife should be protected.

"We propose to remove the phrase 'without reference to possible economic or other impacts of such determination'… to more closely align with the statutory language," the proposed rule says.

"The act requires the secretary to make determinations based 'solely on the basis of the best scientific and commercial data.' "

Conservationists who worried about the changes, expected for months, said their fears have been realized. They decried numerous aspects of the proposal, including the removal of a requirement compelling federal agencies to consult with scientists and wildlife agencies before approving permits for ventures such as oil and gas drilling and logging.

 

"These regulations are the heart of how the Endangered Species Act is implemented. Imperiled species depend on them for their very lives," said Jamie Rappaport Clark, who was director of the Fish and Wildlife Service under President Bill Clinton. Clark is now president and chief executive of Defenders of Wildlife, a nonprofit advocacy group.

"Unfortunately, the sweeping changes being proposed by the Trump administration include provisions that would undercut the effectiveness of the ESA and put species at risk of extinction," Clark said.

"The signal being sent by the Trump administration is clear: Protecting America's wildlife and wild lands is simply not on their agenda."

In April, the administration weakened a century-old law to protect birds by issuing guidance that says it would not be used as it had been to hold people or companies accountable for killing the animals.

The Interior Department told police who enforce the Migratory Bird Treaty Act that killing birds "when the underlying purpose of that activity" is not intended to kill them, is no longer prohibited.

For example, the new guidance says, a person who destroys a barn knowing that it is full of baby owls in nests is not liable for killing them. A mass killing of birds resulting from a catastrophic event such as the Deepwater Horizon oil spill, which destroyed or injured up to a million birds, would no longer be punished under the treaty.

 

Interior would pursue penalties under the Natural Resources Damage Assessment program that is not specific to birds.

In the past, "the department has pursued MBTA claims against companies responsible for oil spills that incidentally killed or injured migratory birds. That avenue is no longer available." Interior and Commerce officials said the Endangered Species Act proposal would be published in the Federal Register "in coming days."

The public can submit comments on a government website within 60 days after publication. The proposal was months in the making, with Gary Frazer and Sam Rauch, top wildlife officials at Fish and Wildlife and NOAA, respectively, work-shopping regulatory changes with wildlife experts starting in December.

During the announcement of the proposal at a news conference, Interior Deputy Secretary David Bernhardt described the proposed changes as an effort to fulfill President Trump's executive order to scale back government regulation.

"Some of our regulations were promulgated back in 1986, and frankly a great deal has been learned" since then, Bernhardt said in a phone call with reporters.

Several of the suggested revisions align with proposals in legislation that emerged from a House committee overseen by a lawmaker who said he "would love to invalidate" the Endangered Species Act. Rep. Rob Bishop (R-Utah), chair of the Natural Resources Committee, supports five bills that would force the federal government to consider the economic impact of saving a species rather than making a decision based solely on science, according to current rules.

 

Other bills would make federal wildlife officials look past evidence collected by their own scientists and defer to data collected by states as "the best scientific and commercial data available," even though state funding of science related to endangered species is a small fraction of federal funding.

Last month, the Trump administration suggested an outright merger of the two wildlife agencies at Interior and Commerce, but Congress is unlikely to approve such a major reorganization. One of the motivations for this recent proposal is to have the two work better together.

The desire by Republicans on the committee to defer to states that stood by as wildlife populations declined, according to conservationists, was reflected in Interior's statement Thursday about the proposal.

"The Trump administration is dedicated to being a good neighbor and being a better partner with the communities in which we operate," said Fish and Wildlife Service Deputy Director Greg Sheehan, echoing a refrain of his boss, Interior Secretary Ryan Zinke.

Zinke expressed support for some of the language in the House legislation, which passed the committee last year but has yet to come up for a vote by the full House.

"We are proposing these improvements to produce the best conservation results for the species while reducing the regulatory burden on the American people," Sheehan said.

Jonathan Woods, an attorney for the Pacific Legal Foundation, agreed.

"The modest reform proposed by the Department of Interior today could finally enable the Endangered Species Act to achieve both of its noble goals of preventing extinctions and promoting recovery of protected species," Woods said.

"Relaxing regulations as a species recovers will reward property owners for their role in that recovery, creating a necessary incentive for landowners to restore and improve endangered species habitat."

Advocacy groups see the pitch from the Trump administration, if enacted, as a boon to energy and agricultural firms that want to drill or farm in the habitat of endangered populations.

When asked about whether the proposal would save those businesses money, Bernhardt, a former lobbyist for those industries, said "it's not as much a matter of cost savings by anyone" but it is about "having a clear timely process" for listing decisions.

But the administration's opponents see the revisions differently.

"These proposals would slam a wrecking ball into the most crucial protections for our most endangered wildlife," said Brett Hartl, government affairs director at the Center for Biological Diversity.

"If these regulations had been in place in the 1970s, the bald eagle and the gray whale would be extinct today. If they're finalized now, Zinke will go down in history as the extinction secretary."

Staff writer Dino Grandoni contributed to this report

2018 © The Washington Post

This article was originally published by The Washington Post.