Avoiding the traps on Endangered Species Act reform

Bill Hartwig

Last month, Deputy Secretary of the Interior David Bernhardt announced that the department was planning significant changes in how it would administer the Endangered Species Act (ESA). The goal, he said, was to encourage “collaborative conservation” and “flexibility to incorporate innovation.” As he wrote in The Washington Post:

It may surprise most Americans… that the highest level of protection is often applied, regardless of the classification, through application of a ‘blanket rule.’ The use of this rule by the U.S. Fish and Wildlife Service automatically elevates protections for threatened species to the same level as those given to endangered species.

But automatically treating the threatened species as endangered places unnecessary regulatory burden on our citizens without additional benefit to the species. The blanket rule reflexively prohibits known habitat management practices, such as selective forest thinning and water management, that might ultimately benefit a threatened species.

We need creative, incentive-based conservation, but that becomes impossible with the current blurring of the lines between the two distinctions. This muddle discourages collaborative conservation from the parties we most need to partner with us — states, tribes and private landowners — ultimately harming species that can thrive with a more tailored approach.

The Endangered Species Act (ESA) is the strongest environmental law in the world. It draws a line in the sand to halt the loss of plants and animals that may be vital to the web of life. The ESA presents a set of conditions that anyone desiring to secure a Federal permit to change the landscape must meet. ESA’s provisions are especially important when a permit application involves wetlands since 85% of all life depends on wetlands.

Having spent 40 years dealing with ESA permitting, including 8 years as a U.S. Fish and Wildlife Regional Director and 3 years as head of the National Wildlife Refuge System, I offer the following thoughts on contending with these upcoming changes:

Among the issues that I expect the Administration’s review will try to reform are:

  • Revision to listing practices,
  • Critical habitat definitions,
  • Ways to decrease permit review time and
  • Legal fee reimbursement evaluation.

Federal district courts have varied in their interpretations of these policies and other ESA areas. But the problem with moving too quickly on ESA reform, especially when focused on reducing the law’s impact and speeding up ESA review processing time, is that new rules become legally risky. Short-cuts not based on existing law can result in significant delay and increased cost if courts do not agree. I’ve seen it happen before — for example, with several large pipeline projects now tied up in court actions.

It’s key to keep in mind that Administration policy changes can give a false sense of security because a permit approval is easier for project opponents to challenge in court.

That’s why I still recommend following previous Law, Policies and Executive Directives, at least until the law is updated by Congress. Complying with the current law often involves a small percentage of project funds but failure to comply can result in significant loss of time toward final permits and turning dirt.

Several District Courts have disagreed with the current Administration’s environmental policy changes. That’s why a smart permit applicant will comply with existing rules – in short, do it right and avoid the loss of time and money that will come if courts rule against policy changes.

There’s no doubt that the ESA needs updating and streamlining. Even the environmental community sees the need for improvements. But the problem is in the details: While some want to improve ESA efficiency and effectiveness, others see a chance to weaken its impact.

Bill Hartwig
Senior Advisor at Dawson & Associates

A member of the Dawson team since 2007, Bill formerly served as Chief of the National Wildlife Refuge System at the U.S. Fish & Wildlife Service.

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