Trump administration may alter protections for threatened species

The Interior Department’s Fish and Wildlife Service (FWS) is proposing weakening a rule in place for decades that gives threatened species on private land the same protections as endangered species.

The FWS announced Monday it is taking into consideration the “removal” of the policy, adopted under the 1973 Endangered Species Act, that prohibits the harming, harassing, killing and habitat destruction of threatened species. Thetext of the rule change proposal, first obtained by E&E News, tailors the protections for all future listed threatened species to instead determine regulations on a species-by-species basis.

“Species listed as a threatened species after the effective date of this rule, if finalized, would have protective regulations only if the Service promulgates a species-specific rule,” read the rule.

{mosads}As of now, when a species is listed as threatened, a blanket series of protections takes effect; under the new rule, those protections would be decided on a case-by-base basis.

For more than four decades, the FWS has applied the Endangered Species Act policy both to endangered species and to threatened species. Endangered species are plants and animals at the brink of extinction, while threatened species are likely to become endangered in the near future.

Industry groups and private landowners say the policy is being applied too broadly and was never intended to cover species that could be years from endangerment. 

In 2016, the Pacific Legal Foundation (PLF), an organization that advocates for personal liberty and private property rights, filed two petitions to the FWS that called into question the legality of the policy.

The FWS policy currently limits activity on areas, often private land, where endangered and threatened species or their habitats could be harmed. This definition is often determined broadly and could limit construction and activities in areas where either type of species is present if there’s potential for harm. Under the rule, it’s also a crime to move the species or get too close to them, depending on the listing. 

“The challenge that we present in our petition to that rule is that it’s illegal and counterproductive. It’s illegal because Congress, when it wrote the Endangered Species Act, created it as a last line of defense and never intended it to apply to threatened species,” said Jonathan Wood, a PLF lawyer.

Damien Schiff, a senior attorney at PLF, was nominated by Trump in June to serve on the U.S. Court of Appeals for the Federal Circuit, a court that hears monetary claims against the U.S. government. Schiff co-authored the group’s original petition against the Fish and Wildlife Service.

Wood said typically it can take “forever,” about five to six years, for an administration to respond to a petition. This one only took two years. While Wood couldn’t confirm whether the FWS proposal was a direct response his group’s petitions, he said their petition was “the only thing requiring the agency to look at this issue right now.”

He said the agency’s notice of a proposed rule change is a welcome sign.

FWS spokesman Gavin Shire said the proposed rule revision is meant to make the implementation of ESA “clear, unambiguous, consistent and flexible to the greatest extent possible.”

He said FWS is working in conjunction with the National Oceanic and Atmospheric Administration — the agency that defines endangered and threatened marine species — to develop consistent changes to the rule. 

“Any proposed changes will go through a full and transparent public review process that provides ample opportunity for interested parties to provide input that we will consider to help us ensure these regulations are effective in furthering the ESA’s ultimate goal: recovery of our most imperiled species to the point they no longer need federal protection,” Shire said in a statement.

FWS did not respond to a request for comment on the administration’s connection to Schiff or the PLF. 

At least one environmental group said it was disturbed by FWS’s announcement of a rule change. While the rule does not go as far as establishing the new parameters for protection retroactively, to about 300 species, it still will likely result in less strict protections for threatened species.

“It’s still quite concerning,” said Noah Greenwald, director of endangered species at the Center for Biological Diversity. 

“If FWS — they already have a backlog of over 500 species waiting for protection. It’s taken them an average of 12 years to give them the protection they need. So we are concerned that them having to add on what protections certain species get will further bog down the process.”

Greenwald said he also fears there is politics at play. 

“Given the Trump administration and FWS’s past problems with political interference, we’re concerned that they will use these species-specific rules to exempt specific threats to species,” he said.

“It still is quite a problematic rule and part of Trump’s overall efforts to roll back protections for land, air, water, wildlife.”

FWS submitted the proposal within days of reports that President Trump picked Susan Combs to oversee wildlife and parks at the Interior Department. Combs, a former Texas comptroller, has a long a history of opposing endangered species protections.