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Highlighted Activity: Strengthening the Implementation of the
Endangered Species Act

The Endangered Species Act of 1973 is one of the most comprehensive laws ever passed anywhere in the world to protect biodiversity and prevent the extinction of endangered species.  Despite its strengths, the Endangered Species Act (ESA) has remained unchanged since 1988, and the regulations that implement the ESA have mostly remained unchanged since 1986, just one year after the founding of the Society for Conservation Biology.  Many of the advances in knowledge from the field of Conservation Biology and its related disciplines have yet to be incorporated into the regulations that implement the ESA.  In late 2008, SCB briefed the Obama Administration Transition Team on a set of recommendations for improving the implementation of several United States environmental laws, including the ESA.  SCB then began the process of translating these general recommendations into a set of specific reforms.  First, SCB developed a master list of potential improvements to the ESA as part of a larger effort in the environmental community.  To read the discussion document listing potential improvements throughout the ESA program, click HERE (please note that this is a working document only and does not represent an approved policy statement of SCB or any other organization).  In 2012, SCB submitted formal petitions to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), the two agencies responsible for implementing the ESA, requesting that they take action to implement SCB's reform proposals.  In 2013, we provided the Obama Administration with an updated set of recommendations, which included additional suggestions for ways to reform and strengthen the implementation of ESA.

Every U.S. citizen and U.S. organization has the right under the Administrative Procedure Act (APA) to petition any agency of the Federal government “for the issuance, amendment, or repeal of a rule.”  The APA further requires the petitioned agency to fully consider the merits of a petition and respond within a reasonable period of time.  Below are the administrative petitions that SCB has filed as of May 15, 2013 under the APA to improve the implementation of the Endangered Species Act:

Petition to Restore Global Scope of Endangered Species Act Consultation Requirement

Filed June 12, 2012. Under Section 7 of the ESA, all agencies must consult with FWS and NMFS on actions that might jeopardize the existence of threatened and endangered species.  Shortly after the ESA was passed, the agencies established regulations that made clear that all federal agencies would consult on their actions whether they occurred within the United States or overseas.  In 1986, the Reagan administration weakened those regulations by eliminating the requirement that Federal agencies consult on actions that they might take that could affect species that the U.S. lists as endangered or threatened which occur in foreign nations.  Failing to require consultations on actions that might have impacts to endangered species in foreign countries increases the risk that an agency's actions will harm species, for example by funding an ill-conceived development project that is not biological or economically sustainable.  This petition would undo the changes made in 1986 and restore the global scope of the consultation requirement.

Update - March 7, 2013.  Today the FWS and NMFS sent a letter to SCB in response to SCB's petition.  In their response, the Services reject SCB's request to restore the full geographic scope of the Section 7 consultation process.  Read the FWS response HERE.

Petition to Strengthen Critical Habitat Designation Process

Filed July 5, 2012.  Section 7 of the ESA requires that all agencies of the Federal government consult with FWS and NMFS on actions that could jeopardize the existence of threatened and endangered species or result in the “destruction or adverse modification” of a species’ critical habitat.  In 1986, the Services promulgated a weak regulatory definition of the term “destruction or adverse modification,” that undercut the protective effects of critical habitat.  Despite this definition being held legally invalid by three separate Federal Courts of Appeals as far back as 2001, the Services have still not changed this illegal regulation.  In its petition, SCB is proposing a new definition of these terms that has a clear scientific basis, and that will require the Services to consider and provide for the recovery, not just the survival, of threatened and endangered species.

SCB is also proposing changes to the Services’ regulations to ensure that the Services consider and address climate change and habitat connectivity in the context of species recovery when they designates critical habitat.  Finally, SCB is proposing that the Services adopt a strict timeline for processing petitions to designate critical habitat.  As of April 2011, critical habitat has only been designated for 604 or 44 percent of the 1,372 domestic species protected by the ESA.

Update - December 31, 2012.  Today the FWS and NMFS sent a letter to SCB in response to SCB's petition.  In their response, the Services state that the ideas contained in SCB's petition will be considered as part of an upcoming proposal to change the regulations defining the term "destruction or adverse modification" of critical habitat.  SCB expects that this regulatory proposal will be made public in the spring of 2013.

Petition to Establish Recovery Planning Regulations

Filed May 14, 2013.  Section 4(f) of the ESA requires the FWS and NMFS to develop and implement recovery plans for threatened and endangered species.  Section 4(f) requires that all recovery plans include (1) a description of site-specific management actions necessary to achieve recovery of the species, (2) objective, measurable criteria which, when met, would result in a determination that the species be removed from the list, and (3) estimates of the time and costs required to achieve the plan's goal.  Beyond that, the agencies have a great deal of discretion in implementing recovery actions.   Unfortunately, despite the paramount importance of recovery in the ESA, for nearly forty years, the Services have operated without any regulatory structure for recovery planning and recovery implementation.  Instead, the Services developed non-binding guidance for recovery planning in 2004.  While this guidance document has helped to clarify the procedural and logistic requirements of recovery planning, it has failed to establish substantive, science-based, sideboards to ensure that the recovery planning process always meets certain minimal requirements.  The result of failing to provide a rigorous definition of recovery has led to predictable results.  Recovery criteria setting forth levels of population abundance, geographic range of recovery, and acceptable levels of risk from external threats after delisting vary widely across species and taxonomic groups.  Political interference in recovery planning efforts has also occurred, most notably during the FWS recovery planning process for the Northern Spotted Owl (Strix occidentalis caurina). 

In its petition, SCB proposes a rigorous, science-based definition of the term “recovery” that will help to ensure that each species is recovered throughout all significant portions of its historic range.  The petition also proposes clear regulatory sideboards on the most critical parts of the recovery planning process.