Public Lands Watch: ESA Regulations

Administration proposes subsantial revisions to the regulations that implement the Endangered Species Act

One of the most important statutes for management of federal public lands is the Endangered Species Act (ESA).  It’s important because it requires all federal agencies to avoid jeopardizing the existence of listed endangered and threatened species through their actions, and also to avoid adversely modifying critical habitat for those species.  That means when the Forest Service builds a road or conducts a timber sale (for instance), it has to follow procedures under the ESA to avoid jeopardy and adverse modification, and can’t take actions that would cause those outcomes.

The Trump Administration has proposed significant revisions to the regulations that implement the ESA.  Those revisions are fairly complicated, and I plan to have more to say on their specific details later on.  In short, the revisions primarily would (a) make it a lot harder, or impossible, for the ESA to be used to address the threats of climate change to listed species; (b) potentially reduce the protections for “threatened” species from habitat degradation or direct harm (“threatened” species are less immediately under threat than “endangered” species); and (c) allow the agencies to analyze the economic impacts of listing species for protection under the ESA, even though economic impacts are legally irrelevant for listing decisions.

The agencies are taking comments from the public on the proposed revisions through September 24.  You can look at the proposed revisions and comment on them here, here, and here.  (There are three separate proposals, covering three different components of the ESA: listing and designation of critical habitat; 4(d) rules which provide protections for threatened species; and consultation, which involves federal agencies working with federal wildlife agencies to avoid jeopardy and adverse modification.)

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