Four Comment Letters on ESA Proposed Changes

The Trump Administration published four proposed rules changing the Endangered Species Act. Many of these changes were in place under the Trump I administration, then rescinded under the Biden administration, and now… they’re back. Deja vu all over again.

Rather than making four posts, I’m combining all four comment letters here.

The top line of the comments are:

General Theme for All

The federal government needs to uphold its Tribal treaty rights and trust responsibilities. Any erosion of species protections opens the possibility of degrading lands and habitats that support species and cultural practices important to Tribes.

4(d) Rule and Requiring Consideration of Economic Impacts

• The removal of the 4(d) blanket rule might not be as problematic as many groups may state

• The Services should see if they have enough staff to write special rules for every threatened species

• 4(d) rules should be restricted to minor impacts, mitigation impacts, , conservation activities, or conservation neutral activities

• Provide transparency of what projects are permitted, where, under every 4(d) rule

• Remove the requirement to consider economic impacts, or if you have to require it, collect data in a consistent way that can be analyzed for opportunities for economic efficiencies in meeting compliance and improving recovery outcomes

Critical Habitat Exclusion Analysis

• Not prudent decisions did not increase under Trump I, which gives some evidence that reversion to that era’s framework for exclusion analysis may not have a major effect on species. For reference, the number of not prudent / prudent decisions made in recent Administrations:

• Biden: 63 prudent, 6 not prudent

• Trump I: 13 prudent, 3 not prudent

• Obama: 136 prudent, 5 not prudent

• Rescind the proposed to trigger a required exclusion analysis when someone provides undefined ‘credible information’ about economic or other impacts

• Rescind the proposal to exclude critical habitat on the basis that it makes the Feds do more paperwork (/incur costs) - it’s a poor argument because Section 7(a)(1-2) note the explicit conservation duties of Federal agencies

• Remove text giving weight of sources outside the Service providing evidence of nonbiological impacts (where duty of rebutting is on the Services) unless the text restricts this provision only to federally recognized Tribes

Section 7

• Keep offsets / mitigation as a voluntary option within Reasonable and Prudent Measures (RPM)

• We provide evidence on ‘reliance interests’ of the restoration economy

• Remove Tribes from the text adding a factor into evaluation whether activities are reasonable certain to occur - the onus of responsibility to protect Tribal resources and treaty rights is on the Federal government - it cannot be assumed that Tribes have the practical authority, resources, or jurisdiction to stop harmful projects. Or if Tribes are still to remain in the text, add explicit safeguards.

Listing, Delisting, and More on Critical Habitat

• Reiterated comment to remove the requirement to consider economic impacts, or gather good data

• The reversion to Trump I changes to foreseeable future may not be as bad as some thing as the Services already generally don’t use extremely long timeframes in listing decisions - we acknowledge some species could in theory be harmed by the interpretation

• The reversion to Trump I delisting standards may have negligible effects on conservation

• The 2-step criteria for delisting unoccupied critical habitat creates a catch-22, where if an area already had necessary features it would be occupied. We recommend an edit to acknowledge the possibility that an area could contribute to conservation of the species through restoration or other actions.