The Trump administration has released final rules that would alter important current requirements under the Endangered Species Act, a move that industry groups viewed as welcome reforms but environmental organizations blasted as wildlife-protection rollbacks, which they and at least two state attorneys general pledged to challenge in the courts.
The new regulations, unveiled jointly on Aug. 12 by the Interior Dept.’s U.S. Fish and Wildlife Service and the Commerce Dept.’s National Marine Fisheries Service, include several key changes, industry officials and environmental groups say.
They include tightening the definition of “critical habitat” that endangered species are judged to need to survive; ending a practice giving threatened species the same protections as endangered ones; allowing economic factors to be aired—though not as a determining factor—as agencies decide whether to list species as endangered; and moving to speed up consultations among federal agencies in the species-listing process.
Nick Goldstein, American Road & Transportation Builders Association vice president for regulatory and legal issues, says of the administration's action, “It’s probably one of the most significant reforms to the ESA that we’ve seen in a long time.” The rule is scheduled to take effect 30 days after its publication in the Federal Register.
Goldstein noted in an Aug. 12 interview that he was still reviewing the final regulations' lengthy text, but says the rules' most significant provision for ARTBA's member firms is the change in the treatment of "critical habitat."
Along with deciding which species should be listed as endangered, federal officials also designate which tracts of land are critical to protect those species. Goldstein says, “In the past, the problem is—at least from our point of view—they’ve over-designated.”
He adds, “It’s one thing when you know a species is there and you know what areas you need to protect. But it’s another thing where you’re declaring a significant portion of a state or multiple states off-limits.”
One specific change in the new rules deals with habitats where an endangered species does not now live. Under the new regulations, agencies would only designate such "unoccupied" habitat as “critical” to a species if they judge its occupied habitat isn’t adequate to ensure the species’ survival.
Goldstein contends that the agencies have sometimes designated as critical habitat not only areas where a species is located naturally but also places where it could be located.
The National Association of Home Builders terms the new rules as a "victory." NAHB Chairman Greg Ugalde said in a statement, "These regulatory changes will streamline the cumbersoe and bureaucratic permitting process and allow federal regulators to spend more time on species preservation rather than creating red tape."
Change for threatened species
William Hartwig, a senior adviser with water resources consulting firm Dawson & Associates, says another key provision is the new regulations' change in how threatened species are evaluated.
A species is deemed endangered if it is “in danger of extinction throughout all or a significant portion of its range,” according to Fish and Wildlife. A threatened species is one likely to become endangered “within the foreseeable future” in "all or a significant part of its range,” the service states.
“Right now,” Hartwig said in an interview, “the Fish and Wildlife Service treats threatened species as endangered species, by and large.”
Hartwig, a former assistant director with Fish and Wildlife, adds that if a threatened species is present in an area where a federal permit is being sought for a project, “You’re going to go through the same hoops that you would for an endangered species.”
A provision in the new regulations would affect species deemed threatened after the rule takes effect. Those animals or plants would be treated on a case-by-case basis and lose the current “blanket” protection.
The endangered-level protections would continue, however, for species currently rated as threatened.
In the formal notice outlining the new final rules, the federal agencies observe that the National Marine Fisheries Service already treats endangered and threatened species differently.
Another element of the rules deals with the species-listing process. The regulations continue to follow the Endangered Species Act’s language in stating that federal agencies will base species-listing determinations “solely on the basis of the best scientific and commercial data available.”
Environmentalists, state AGs plan lawsuit
But environmental groups criticize language in the agencies’ formal notice that the endangered species statute “does not prohibit the [Fish and Wildlife and Marine Fisheries] Services from compiling economic information or presenting that information to the public, as long as such information does not influence the listing determination.”
Environmental groups lashed out at the new regulations. Rebecca Riley, legal director of the Natural Resources Defense Council’s nature program, said in a statement, “We are in the midst of an unprecedented extinction crisis, yet the Trump administration is steamrolling our most effective wildlife protection law.”
Environmental advocates say they will challenge the rules in court. Kristen L. Boyles, an attorney in Earthjustice’s Seattle office, told ENR in an Aug. 12 email that officials had not yet filed a lawsuit, citing the need to study the just-issued reglulations. But she adds, “Any challenge will likely ask a court to invalidate the rules.”
Asked whether environmental groups will seek an injunction, Boyles says that “it is too soon to know at this point.”
Massachusetts Attorney General Maura Healey and California AG Xavier Becerra also said they will challenge the rules in court, contending that the regulations are "illegal, arbitrary and capricious" and violate the Endangered Species Act, according to an Aug. 12 statement from Healy's office
Story updated on Aug. 13 with Massachusetts and California attorneys general plan to challenge new regulations in court; also added National Association of Home Builders comment.