Recent ESA Changes Likely to Have Resounding Habitat Impacts

The Definition of ‘Harm’

On July 10, the DOI announced that they finalized a rule rescinding the regulatory definition of “harm” under the ESA by removing “”habitat modification or degradation” from the definition.

The ESA functions by prohibiting the “take” of endangered species. According to the act, “the term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Essentially, “take” is an act that kills or injures wildlife.

Now, the definition of "harm" (before this recension) elaborated that "such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

The department claims this definition has caused nothing but financial and regulatory trouble and that this change will “reduce unnecessary permitting, cut compliance costs, and eliminate confusion for landowners, small businesses, energy producers, farmers, ranchers, and local governments.”

While it might be apparent to some that habitat degradation is inextricably connected to a species' well-being, the DOI assures its constituents that “the ESA’s core protections remain firmly in place. Actions that directly injure or kill listed wildlife will continue to be prohibited.”

This seems difficult to enforce without acknowledging habitat—even the USGS attributes habitat loss as the primary cause of heightened rates of species going extinct in recent years. Additionally, the ESA doesn’t just protect the species on the list. Habitat protections for protected species also positively impact game species that hunters and anglers can pursue.

Take sage grouse as an example. In August of '08, Wyoming Governor Freudenthal signed a landmark executive order that began the “Core Population Area Strategy.” The goal of this strategy was to prevent an endangered species listing, and it was achieved by limiting industrial development and disturbances in crucial lek areas. By determining these areas where sage grouse are most at risk for population declines, wildlife officials were able to take a targeted approach to mitigating surface disturbances in these locations while still maintaining energy development in grouse areas. The foundation of this effort was built around the understanding that habitat modification and degradation were considered acts of harm within the ESA.

Focusing on mitigating habitat risks created a massively successful conservation movement in the western US. By September of 2015, sage grouse were announced as not warranted for ESA listing. Wyoming now has a week-long season where hunters can bag two sage grouse to meet the daily limit with a free special permit.

If the definition of harm didn’t include habitat impacts at this time, there’s no guarantee sage grouse would have such a resounding success story.

Blanket Rule is Gone

At its core, the blanket rule gives species listed as threatened the same treatment as endangered. That is, the “take” of the species is prohibited.

The removal of this rule is an attempt to take a more tailored approach to each individual species listed as threatened. This will be done by creating customized 4(d) protective regulations for each threatened species. (If 4(d) ruling sounds familiar, it’s the same framework that is allowing the proposal for grizzly bears to be managed by states.)

While a species-specific approach might sound appealing, the issue lies with implementation. Massive federal cuts have left gaps that are yet to be filled. Creating these individual rulings for the over 400 threatened species in the US will take time, effort, and funding.

And it’s worth noting, when the blanket rule is in effect, 4(d) rulings can still be made for individual species (re: grizzly bears). The difference is now these threatened species are starting without protections and needing them to be individually written rather than starting with the same protections as endangered and altering how they’re managed.

Critical Habitat Designation

This ruling creates the least amount of change in the function of the ESA, despite what other outlets are reporting.

Section 4(b)(2) of the ESA currently states that the Secretary shall designate critical habitat ”on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.”

The section continues, “The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.”

The DOI press release claims to revise the designation process of critical habitat to follow the law and consider “the economic, national security, and other relevant impacts"—which, as you can see above, is already written in the existing language.

Additionally, the revision also “allows an area to be excluded from a ‘critical habitat’ designation if that exclusion will not cause the extinction of the species." Again, this is already written into the section in question.

Essentially, the changes made to this section are minor word swaps in the regulatory text. According to the Federal Register, “The intended effect of this rule is to provide greater transparency and certainty for the public and stakeholders regarding the 4(b)(2) exclusion process.”

Changes Big and Small

The updated definition of “harm” is scheduled to take effect on September 14, while the blanket rule rescission and critical habitat changes should be updated on August 20.

The minor language changes to section 4(b)(2) aren’t likely to impact your hunting and fishing plans anytime soon, but consider how the animals you pursue may have benefited from habitat protections included within the larger definition of “take.” The consequential benefits from endangered to game species are undeniable.