ESA Changes Expected to Begin this Month

The Trump Administration is changing how the Endangered Species Act will be implemented, however only Congress can change the underlying law.  Changes are expected to begin in September.  The changes are significant and there is much uncertainty about how the changes will be implemented on a day to day basis.  Changes are not expected to affect existing species management programs and practices.   

The changes will provide increased restrictions for identifying unoccupied critical habitat.  While such a change will reduce burdens on private landowners it may limit species recovery by allowing irreversible land uses.  

It also rescinds the blanket rule under section 4(d) that provides the same protection to threatened and endangered species.  This increased flexibility could help recover species faster, or it may lead to poor decisions moving species closer to extinction.

The changes also allow for consideration of the economic impacts of listing decisions.  While this would greatly limit landowner’s economic burden it will hasten extinction and prevent the formation of critical mitigation markets.

The new rules also requires the same five criteria for listing to be used for delisting decisions.  This would increase delisting of species, potentially removing funding and protections for species whose survival is dependent on active management.

It also allows for a new interpretation of “foreseeable future” that maybe used to limit the use of climate projection models.  Many fear this change will provide a basis for ignoring the influence of climate change when devising recovery strategies, mitigation measures and listing decisions.  The mitigation banking industry has been on the front lines of providing conservation benefits under a changing climate, and is making progress.  The new interpretation removes incentives for this progress and will speed extinction. 

Those who are proponents of these changes have a rare opportunity to demonstrate how regulatory relief can improve environmental quality and economic returns.  However, we are concerned that many lessons of species conservation are missing from the new rules, decreasing the likelihood of recovery and increasing the list of candidate species for future listing.  Lawsuits to prevent the changes have begun and there appears slim hope that Senate oversight procedures will be triggered to overturn the changes.

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