SCI Supports USFWS Proposed Improvements To ESA

“Today’s announcement ushers in a major move forward for the FWS.  At long last, we have leadership that recognizes the importance of flexibility in the conservation of federally listed wildlife and the recognition that different approaches, including sustainable use, can be used to recover and sustain the world’s wildlife,” said SCI President Paul Babaz.

Of the many proposed changes, SCI generally supports the proposals to provide more flexibility to the management and recovery of threatened species and to modify how the agency establishes the “foreseeable future” when making threatened listing decisions.

Under one proposal, the FWS would decide on a species-by-species basis what, if any, ESA prohibitions would apply to each species listed as threatened.  The ESA itself applies these prohibitions (e.g., regarding take and import) only to endangered species.  Congress envisioned that the FWS would decide individually what prohibitions applied to each particular threatened species.

But the FWS long ago adopted a blanket rule that the statutory prohibitions would automatically apply to all threatened species, unless the FWS adopted a “special rule” specific to a particular species that spelled out what restrictions applied.

The FWS’s sister agency in implementing the ESA, the National Marine Fisheries Service (NMFS), followed Congressional intent and did not adopt the blanket rule.  The FWS’s proposal would align it with NMFS and Congressional intent.

The FWS’s proposal would ensure that, moving forward, all threatened species receive the level of protection that is appropriate for each species.  This approach will free-up limited resources for more targeted and efficient recovery of threatened and endangered species.

SCI also supports the FWS’s consideration of revisions to how it establishes the “foreseeable future.”  The ESA defines a threatened species as one that is likely to become an endangered species within the “foreseeable future.”

Under the proposed change, the foreseeable future would extend only as far as the agency can reasonably determine that both the future threats and the species’ responses to those threats are “probable.”  While refinement of this proposal may be necessary, SCI hopes that whatever the FWS adopts will help avoid future threatened listings such as the unwarranted listing of the polar bear, which used an excessive 45-year foreseeable future.

Other proposed changes include streamlining critical habitat designations, modifying ESA consultation requirements for other federal agencies, and clarifying how the agencies make decisions to delist species.

The FWS will accept comments on the proposals for 60 days after the upcoming publication of the proposals in the Federal Register.  SCI will provide comments.

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