ESA Rules Targeted

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — Fourteen states are seizing the moment in asking the Trump administration in a letter this week to repeal two new Endangered Species Act rules they say are costly to farmers and ranchers in their states.

The attorneys general of Alabama, Alaska, Arkansas, Arizona, Kansas, Nevada, Louisiana, South Carolina, Michigan, Texas, Montana, West Virginia, Nebraska and Wyoming have asked Trump to repeal two ESA habitat rules they say are hampering private landowners’ ability to manage the land.

Though members of Congress have for years introduced legislation to reform the ESA, those attempts largely have been unsuccessful. With the new administration and Republican control of Congress, however, there is talk in various House and Senate committees of exploring reform options.

In November, 18 states, including Alabama, sued the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, and the current secretaries of the Interior and Commerce, to challenge the rules. The Obama administration filed a motion to dismiss this lawsuit on Jan. 13, 2017.

In the letter to Trump’s Policy Implementation Team Lead Ado Machida, the attorneys general said the two rules have hampered economic development.

"Critical habitat designations, by their very nature, limit human activity," the letter said.

"That limitation almost always results in a lost economic opportunity. The impact ripples through the economy; in an average industry, every billion dollars in regulatory costs results in a loss of over 8,000 jobs. As a consequence, states also suffer a subsequent loss of tax revenue, both as a result of reduced employment as well as foreclosed industrial and recreational use of areas designated as critical habitat."

Efforts to conserve critical habitats increasingly have focused on local efforts as the most effective methods to conserving and saving endangered species.

In recent months, however, although ordered by a court to withdraw the listing of the lesser prairie chicken as an endangered species, the USFWS announced in November that new information warranted a second look. Members of Congress and others expressed disappointment that local efforts were not first given a chance to be successful.

The Trump administration has made a point to cut federal regulation through executive action as well as legislatively. For decades, the Endangered Species Act has faced criticism because of its largely unsuccessful record of recovering species.

In the letter to the administration, the attorneys general made an economic appeal to the new president, pointing to how conserving the sage grouse has been costly.

"For instance, proposals to conserve the sage grouse could cost up to 31,000 jobs, up to $5.6 billion in annual economic activity and more than $262 million in lost state and local revenue every year," the letter said.

"These new rules unlawfully and vastly expanded the authority of the services to designate areas as critical habitats. The rules violate the act because they expand the regulatory definition of ‘critical habitat’ beyond its narrow statutory definition. The act defines critical habitat as ‘specific areas within the geographical area occupied by the species at the time it is listed…on which are found those physical or biological features essential to the conservation of the species, and which may require special management considerations or protection."

In particular, the attorneys general asked the new administration to "immediately repeal" the "Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat" and the Interagency Cooperation – Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat" rules.

OTHER PURSUITS

In August, the Pacific Legal Foundation petitioned the USFWS to repeal a regulation that applies the "take" provision of the Endangered Species Act to every threatened species listed. The take provision makes it unlawful for anyone to "take" a listed animal, including significantly modifying its habitat. The provision applies to private parties and private land; a landowner is not allowed to harm an endangered animal or its habitat on his property.

In the petition brought on behalf of the Washington Cattlemen’s Association, the group makes the case that the law does not give blanket authority to federal regulators to apply the provision to each of 150 threatened species listed.

There has been an outcry from farmers and ranchers in the West who say the federal government is overreaching and protecting species and their habitats, essentially assuming control of private land after the federal government strikes deals with litigants behind closed doors.

In April 2016, then USFWS Director Dan Ashe told members of a subcommittee of the U.S. House of Representatives Oversight and Government Reform committee, his agency is trying to be proactive to avoid ESA litigation.

According to the USFWS, 63 species have been de-listed since the law went into effect 44 years ago. There are about 2,000 species listed. The reason is environmental groups have largely opposed efforts to de-list species, although some are no longer in need of federal protection.

A February 2014 report from a Congressional ESA working group concluded the law "while well-intentioned from the beginning, must be updated and modernized to ensure its success where it matters most; outside the courtroom and on the ground."

The group said the ESA should be changed to provide more transparency of the regulation and related scientific data, reducing litigation and "encouraging settlement reform," and empowering local governments and private landowners on ESA decisions.

"With less than 2% of species removed from the ESA list in 40 years, the ESA’s primary goal to recover and protect species has been unsuccessful," the report concluded.

"Progress needs to be measured not by the number of species listed, especially as a result of litigation, but by recovering and de-listing those that are currently listed and working cooperatively on-the-ground to prevent new ones from being listed."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(AG/BAS)