More time needed for public input on new endangered species regulations

Jun 20, 2014

Since 1973, the U.S. government has spent billions of dollars on more than 1,500 animal and plant species listed as endangered or threatened under the Endangered Species Act (ESA), with just 2 percent of the protected species’ coming off the evergrowing list.

In May, a proposal was offered up for comment on reforming ESA, although the current divide in D.C. makes it unlikely that there will be any changes soon. The last time ESA saw amendments was in the 1980s.

The controversy over the changes to the 40-year-old law has several members of Congress putting on the brakes.

House Natural Resources Committee Chairman Doc Hastings (R-WA) and 42 members of Congress sent a letter last week to U.S. Fish and Wildlife (FWS) Director Dan Ashe and National Oceanic and Atmospheric Administration (NOAA) Administrator Kathryn Sullivan requesting a six-month extension of the public comment period for three proposed ESA regulations.

The proposed rules, released on May 12, 2014, would make sweeping changes to how critical habitat designations are determined.

Specifically, how the federal government will evaluate whether proposed actions “destroy or adversely modify” critical habitat under the ESA; redefining “adverse modification” as used in consultation under Section 7 of the ESA, and creating a new policy on whether and when to exclude lands or waters from critical habitat designations under Section 4(b)(2).

The current 60-day public comment period expires on July 11, 2014.

The members went into detail about their concerns with the proposals and why the public should be given more time to give their input.

“As written, these rules could dramatically increase the amount of private and public lands designated for habitat, which in turn could result in blocking or slowing down an array of agricultural, grazing, energy transmission and production, transportation, and other activities on the more than 680 current habitat designations and hundreds more slated to be finalized in the next few years,” wrote the members in the letter. “There is a history of concerns that we and others have had with the FWS’ and NOAA’s interpretations of critical habit designations, economic analyses methodology, and regulations stemming from hundreds of listings from closeddoor settlements with litigious groups. In light of these concerns, we are surprised and disappointed that the FWS and NOAA would seek to finalize, within just 60 days, multiple rule changes of this significance without more advance notification of Congress, and with insufficient time for affected stakeholders to provide meaningful input.”

In Oregon, northern spotted owl critical habitat designations have already led to federal timber harvests dropping by more than 90 percent in the last 30 years. Facing an arbitrary court-ordered deadline of September 2015, rural communities across eastern Oregon are rushing to prevent the listing of the greater sage-grouse under the ESA in hopes of avoiding the detrimental economic impacts that have come along with species listings elsewhere in the West.

U.S. Rep. Greg Walden (R- OR) was also hoping the two federal agencies would allow more time for comment.

“The Endangered Species Act has already severely impacted rural communities throughout the West. And now the Obama administration is proposing to further expand their authority under the ESA with little time for public input,” Walden said. “Sixty days is simply not enough time for the public to read, understand, and comment on these proposals that would make sweeping changes to how the ESA is implemented on the ground. The administration must give rural citizens as much time as possible to explain how these new rules could affect Oregon farms, ranches, and communities.”

Federal agencies often offer 90- or 120-day comment periods for complex rules that can have significant economic impact. For these proposed rules, which were released on May 12, 2014 after more than a year of internal administration review, the public has been given 60 days to offer input.

Rep. Cynthia Lummis (R- WY) originally led the charge for changing the law to limit litigation from wildlife advocates that has resulted in protections for some species. And they hoped the policy change would give states more authority over imperiled species that fall within their borders. Also among the recommendations were increased scientific transparency, more accurate economic impact studies and safeguards for private landowners. — Traci Eatherton, WLJ Editor