U.S. Fish and Wildlife Service and NOAA Fisheries Announce Changes to Endangered Species Act

Contact: Andy Treharne, Senior Director, Federal Policy

On Monday, August 12, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly announced revisions to regulations that guide implementation of the Endangered Species Act. The changes were announced following the issuance of draft rule modifications issued more than a year ago and subsequent to the agencies’ review of hundreds-of-thousands of comments submitted through the required public process needed to modify federal regulations.

Following issuance of the final rules, the Department of the Interior issued a press release detailing the proposed changes:

“The changes finalized today by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from the Act’s protections and designating critical habitat; section 7 covers consultations with other federal agencies.

The ESA directs that determinations to add or remove a species from the lists of threatened or endangered species be based solely on the best available scientific and commercial information, and these will remain the only criteria on which listing determinations will be based. The regulations retain language stating, “The Secretary shall make a [listing] determination solely on the basis of the best scientific and commercial information regarding a species’ status.”

The revisions to the regulations clarify that the standards for delisting and reclassification of a species consider the same five statutory factors as the listing of a species in the first place. This requirement ensures that all species proposed for delisting or reclassification receive the same careful analysis to determine whether or not they meet the statutory definitions of a threatened or endangered species as is done for determining whether to add a species to the list.”

As a foundational component of conservation in the United States, the sportsmen’s community recognizes the impact that the ESA has on hunters, anglers, fish, wildlife and habitat. However, the community has also acknowledged that the ESA’s laudable goals have not always produced positive outcomes. In the latest version of Wildlife for the 21st Century, American Wildlife Conservation Partners – a group of more than 40 national conservation partners – recommended the following:

“This landmark law was last amended in 1988. Gridlock preventing updates to ESA are putting the law’s admirable principles at risk. Many of the problems concern the listing and delisting of threatened and endangered species. For example, removing a species from the list is difficult even after recovery goals have been met. A species can also be added to the list even when science demonstrates that greater conservation can be achieved by keeping it off the list. The Act leaves no discretion to the Secretary to fix these problems. As a result, the ESA has fallen into a state of near constant litigation. Arguments over words enacted in 1988 or earlier, rather than decisions based on modern science and current experience, are now driving federal ESA decision-making by the federal courts. The ESA needs to be modernized and refocused on restoring and delisting species. The clearest starting point is in the listing and delisting decisions. Species considered for listing should be chosen based on science-based priorities with great deference to state fish and wildlife agency population data. Delisting should be justified by meeting recovery population and habitat goals. More money should go to the recovery of species so that ultimately delisting better balances with new listings. More of the significant role Congress intended for state fish and wildlife agencies should be realized. These improvements can be achieved only by revision of the law.”

Those wishing to review the final rules outlining changes to the ESA can view them on the U.S. Fish and Wildlife Service website.

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