‘Comprehensive protection’ of ESA under microscope again
Gray whales, grizzly bears and the peregrine falcons that nest atop the Cathedral of Learning at the University of Pittsburgh are among 291 animal species that might have gone extinct if not for the Endangered Species Act.
A 2019 study by the nonprofit Center for Biological Diversity found that roughly 99% of plant and animal species on the list, ranked by threat of extinction and protected by federal law, have survived.
The Endangered Species Act was given congressional approval and took effect 50 years ago. The landmark law mandated federal stewardship of imperiled terrestrial, aquatic and avian species and their habitats.
But a proposal now being debated in Congress would change the way America protects struggling species. In February, a U.S. House of Representatives committee reintroduced the Endangered Species Act Flexibility Act. If passed, it would permit landowners, the Department of the Interior and U.S. Fish and Wildlife Service to independently reinterpret foundational elements of the law.
The Endangered Species Act altered the economic and environmental status quo by forcing landowners and industries to find alternatives to longstanding practices that threatened species’ survival. Many found new ways to do business while avoiding causing irreparable harm to indigenous species.
“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed,” said President Nixon on signing the bipartisan legislation that passed nearly unanimously in both chambers of Congress.
Science-based approach
For 50 years the ESA and other federal laws have slowed or reversed declines in some animal populations, and inspired similar laws throughout much of the world. In February, Steve Guertin, U.S. Fish and Wildlife Service deputy director for program management and policy, told a congressional committee the ESA continues to be a vital tool for species survival. “The ESA follows the sciencebased and commonsense approach of providing the most comprehensive protection for the species most significantly and urgently at risk of extinction,” he said.
An endangered species is defined in the law as one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is any species that is likely to become an endangered species within the foreseeable future in all or a significant portion of its range.
Despite high-profile successes and overwhelming popular support, the federal law has faced legislative challenges backed by resource harvesting industries and real estate groups claiming the law is too restrictive and curbs economic progress.
It has also been criticized by conservationists, water monitoring organizations and outdoors
enthusiasts who say the Endangered Species Act doesn’t go far enough to protect species in jeopardy and the critical habitats necessary for their survival.
The classifications impact land and water use decisions. The presence of a threatened or endangered plant or animal could influence timber harvesting zones, mining operations, real estate development and the routing of new highways.
Since 1978, the ESA has been periodically amended while retaining its basic structure. In 2014, the executive branch was required to disclose the data it uses to determine conservation status.
Trump era changes
In August 2019, the U.S. Department of the Interior under President Trump announced changes in the regulations that reduced protections for threatened species and redefined parts of the law.
“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal — recovery of our rarest species,” said then-Secretary of the Interior David Bernhardt.
“The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’protection and recovery goals,” saidWilbur Ross, who was then U.S. Secretaryof Commerce.
In 2022, the Fish and Wildlife Service under President Biden rescinded a Trump-era amendment that changed the definition of “habitat,” reducing the importance of vernal pools and some headwaters in the survival of at-risk species.
The proposed ESA Flexibility Act, reintroduced Feb. 14, would reduce regulatory burdens and grant landowners leeway regarding protected species and critical habitat on their properties. Currently, definitions of some species and habitat are clearly defined in the ESA. The new proposal would give the Department of the Interior and U.S. Fish and Wildlife Service the option of loosening regulations when determining conservation status.
“If we’re to build infrastructure, permit electricity transmission, mine for resources needed for everyday life, and properly manage our forests, we need common sense habitat conservation plans that protect wildlife without harming our economy,” said the proposal’s chief sponsor, U.S. Rep. Pete Stauber, R-Minn.
“The flexibility given to the Secretary of the Interior under this bill will allow for fit-for-purpose protections for species … while still allowing for responsible logging and land management across Northern Minnesota.”
Rep. Dan Newhouse, R-Wash., said reforming the ESA will improve the law for plant and wildlife species and rural America.
“This year marks the 50th anniversary of the ESA, and its disappointing track record highlights the urgent need for reform,” he said. “... Reintroducing this legislation [will] provide the Fish and Wildlife Service with additional flexibilities in implementing regulations to recover species while avoiding actions detrimental to landowners.”
In February, Guertin told a congressional committee the proposed Flexibility Act would undermine the ESA’s function.
“H.R. 6784 would authorize the service to provide less protection to endangered species. … It would effectively result in no distinction between endangered and threatened species,” he said.
States’ role
The proposal provides that any species-specific rule issued for a threatened or endangered species would not be operable in a state that has its own protective measures unless the state adopts the federal regulation.
“Creating a nationwide patchwork of different regulatory protections for endangered species would be confusing and inefficient for the regulated community and would undermine the secretary’s ability to achieve the conservation purposes of the ESA,” said Guertin.
The Endangered Species Act is administered by the Secretary of the Interior through the U.S. Fish and Wildlife Service and Secretary of Commerce in cooperation with the National Marine Fisheries Service and other federal, state, tribal and nongovernmental agencies as well as private citizens.
Conservation status is determined by the two federal agencies following years of research and adherence. The general categories are: Least Concern, Threatened, Vulnerable, Endangered, Extinct in the Wild and Extinct.
Violators whose actions are detrimental to a species’ survival are typically warned to avoid some geographic areas or procedures. Noncompliance with the federal law can result in financial penalties serious enough to cause bankruptcy, and lengthy lawsuits may ensue.
The ESA faces other challenges. Many Americans who support the law believe that once a species is protected by the listing it should never be removed. U.S. Fish and Wildlife Service public affairs specialist Christine Schuldheisz said delisting means the species no longer needs protection. It marks a conservation success.
“When a species can survive on its own in the wild, the species is considered to be ‘recovered’ and protection of the ESA is no longer necessary,” she said. “To delist species, we are required to determine that threats have been eliminated or controlled, based on several factors including population sizes and trends and the stability of habitat quality and quantity.”
Bald eagles’ return
Goodexamples of delisting can be found in Pittsburgh’s Hays neighborhood and West Mifflin, where live-streaming wildlife cameras offer views of the eggs inside bald eagle nests. For decades mating bald eagles were hard to find in Pennsylvania. Federal and state protections and Clean Water Act compliance radically improved the environment, making the isolated riverside escarpments of Pittsburgh good nesting sites for raptors, including eagles. Active bald eagle nest numbers in the state are estimated at more than 300, according to the PennsylvaniaGame Commission.
Schuldheisz noted that the Fish and Wildlife Service in February published a proposal to delist the wood stork, a large wading bird that inhabits several southeastern States.
“Since its listing in 1984, the breeding population has doubled, the number of nesting colonies has more than tripled and their breeding range has expanded significantly,” she said.
Pennsylvania and some other states place native species on their own regional endangered and threatened species lists that don’t always correspond with the national listings. The purple fringeless orchid is not federally listed, but it grows in a small restricted area in Pennsylvania and is on the state threatened list.
Currently, 29 fish species, five reptiles, five amphibians and 10 freshwater mussel species are listed as endangered in Pennsylvania. Twenty-three bird and mammal species are on the list.
“Pennsylvania is home to about 3,000 plant species. About twothirds of those are considered native to the commonwealth and 347 of them are currently considered rare, threatened or endangered,” said Cindy Adams Dunn, secretary of the Pennsylvania Department of Conservation and Natural Resources.
Most Pennsylvania plant species are holding their own, ranked in a category that doesn’t need special protections. No plants are included in the category of “special concern.”