Proposed Legislative and Regulatory Changes for Endangered Species

In mid-July, Senator John Barrasso (R.-Wyo.), Chair of the Senate Environment and Public Works Committee, released a “discussion draft” of a bill that seeks to amend the Endangered Species Act.  The committee held a hearing on July 17 to explore the proffered changes. The bill is largely based on the recommendations of the Western Governors Association for modernizing the ESA and includes provisions inspired by the association’s Species Conservation and Endangered Species Act Initiative, led by Wyoming Governor Matt Mead.

Testifying in support of the bill, Bob Broscheid, Director of Colorado Division of Parks and Wildlife and immediate past president of the Western Association of Fish and Wildlife Agencies, said in his written statement that the “key to improving the effective implementation of the ESA is to empower state wildlife agencies…to leverage their expertise and resources to achieve better species protection and restoration…” He explained further that “the success of the Act was seen to depend on productive partnerships between the state and federal wildlife agencies,” but the act has not always worked as intended particularly due to the lack of state authority in the listing and recovery process, that filing comments on proposed rules constitutes “cooperation,” and substantive input by the states is either dismissed or unacknowledged.

Matthew Strickler, Virginia’s Natural Resources Secretary, expressed concern in written testimony that “even well intentioned efforts to amend the ESA could open the door to provisions that would harm its essential purpose” and advocated for greater resources “to do more for threatened and endangered species than keep them on life support.” He argued that the “best way to improve implementation of the ESA and to recover more species faster is for Congress to provide adequate funding for science and management of these resources and their habitat.”

Sen. Tom Carper (D.-Del.), Ranking Member of the Senate and Environment and Public Works Committee, questioned the specific bill language to define “best scientific information” saying, “It creates a new definition for how the Fish and Wildlife Service should consider scientific information. This change could actually prevent the best available science from guiding species management…”

The hearing comes in the same week that the U.S. Fish and Wildlife Service took formal steps to amend its ESA policy. In April, the Service proposed to remove its blanket rule under section 4(d) of the ESA that automatically conveys the same protections for threatened species as for endangered species. This change would apply prospectively and would not apply to species that are currently listed as threatened. The Administration has now officially released the proposed rule and will accept comments for 60 days from publication in the Federal Register.

In response to the proposed rule change, Carper said “The new regulations…undercut vital sections of the Endangered Species Act that may harm imperiled species” and expressed concern with the proposal to “remove the phrase ‘without reference to possible economic or other impacts of such determination’ from the law” when listing endangered species on the grounds that it “could undermine best available science, which should remain the sole driver of listing decisions.”