By Nancy Macan McNally, NESARC
Approaching its 40th anniversary later this year, the Endangered Species Act originally was approved by Congress, with broad bipartisan support, to protect high profile endangered species such as the grizzly bear. Throughout the years, implementation of the Endangered Species Act has evolved through a series of legislative amendments, regulatory actions and judicial decisions.
Recently, there have been a number of developments that could result in radical changes in how the Endangered Species Act is applied and could have profound impacts on companies and individuals throughout the country. If you have not been focusing on ESA issues recently, now is the time.
Settlements Could Add ESA Protections for 250+ species Nationwide
In September 2011, a federal district judge in the District of Columbia approved a litigation settlement that mandates that the U.S. Fish and Wildlife Service (FWS) review and potentially designate 250 candidate species as threatened or endangered under the ESA over the next five years. The number of listed species could increase by more than 20%. And, these species can be found in every one of the 50 states.
Several wide-ranging species are included in this settlement mandate, including the greater sage grouse and the lesser prairie chicken. Not only will these species likely be listed as threatened or endangered, the Fish and Wildlife Service (FWS) also will be obligated to make decisions on potential critical habitat for these species—which can impose significant additional restrictions on land and water use activities.
Also in September 2011, the FWS announced a decision to consider the listing of 374 aquatic species in twelve southeastern states. These two decisions alone could result in the current number of species listed as endangered under the ESA to double by 2020.
FWS/NMFS Policy Changes to the Listing Process
These unprecedented listing settlements were soon followed by the December 2011 announcement of a new policy interpreting the term “significant portion of its range” for purposes of listing a species. Under this policy, a species that is otherwise healthy throughout its range could be designated as threatened or endangered if a portion of its population or its range is deemed to be “significant” and the lack of ESA protection would endanger its continued existence in that range. Further, the policy introduces a new concept of “up-listing” a species where a species that is threatened throughout its range would be designated at the higher protection level of “endangered” where it is determined that a species warrants that protection within a significant portion of its range.
This policy is just one of several key ESA policies that the Administration is reviewing. For example, the Administration is continuing to review proposals on how to interpret the “adverse modification” standard for impacts to critical habitat in Section 7 consultations and exploring ways to encourage and improve voluntary conservation efforts.
Congress Reacts: Time to Re-Assess the ESA
Driven by the stepped up pace of listing decisions, continued frustration with an Act that has been unauthorized since 1992, and the recent initiatives announced by FWS, many Members of Congress are focusing again on the ESA.
The 250 candidate species listing review, policy changes and other ESA efforts underway are likely to affect landowners and businesses for years to come. For more than 20 years, the National Endangered Species Act Reform Coalition (NESARC), the only national coalition dedicated to improving implementation of the Endangered Species Act, has been helping landowners and industry work together to advocate practical improvements to the ESA. NESARC hopes you will join this call to action during this critical time in the continued evolution of Endangered Species Act policy.
Nancy Macan McNally has served as the Executive Director of the National Endangered Species Act Reform Coalition (NESARC) since its inception in 1991. She is a Principal and Managing Director with Van Ness Feldman Law Firm.
