The Trump Administration's Proposed ESA Regulations

• Date: 01 November 2018

11-2018 NEWS & ANALYSIS 48 ELR 10953

DIALOGUE

The Trump Administration’s

Proposed ESA Regulations

Summary

e U.S. Department of the Interior and the

National Oceanic and Atmospheric Administration

recently proposed comprehensive changes in how

the Endangered Species Act (ESA) is implemented.

ese address the species listing process, critical

habitat designations, and the §7 consultation pro-

cess. If approved, these rules could have a signi-

cant impact on species conservation in the United

States. On July 31, 2018, ELI hosted a webinar that

highlighted reactions to the proposed changes. e

panelists provided an advance look into the poten-

tial benets and repercussions of applying the ESA

under these proposed regulations. Below, we pres-

ent a transcript of the discussion, which has been

edited for style, clarity, and space considerations.

Caitlin McCarthy is Director of the Associates Program

at ELI.

Ya-Wei (Jake) Li (moderator) is Director of Biodiversity at

the Environ mental Policy Innovation Center.

Dave Owen is the Harry D. Sunderland Professor of Real

Property Law at the University of California, Hastings

College of t he Law.

Holl y Pea ren is a Senior Attorney at the Environmental

Defense Fund.

Steve Qua rles is a Partner at Nossaman LLP.

Jonathan Wood is an Attorney at Pacic Legal

Foundation and a Research Fellow at the Property and

Environment Research Center.

Caitlin McCarthy: On July 19, the U.S. Fish and Wild-

life Service (FWS) and the National Oceanic and Atmo-

spheric Administration’s National Marine Fisheries Service

(NMFS) (the Services) released their high ly anticipated

proposed changes to r ules implement ing the End angered

Species Act (ESA).1 Following the release, the th ree pro-

posed rulemakings were published in the Federal Register2

and include revision of the regulations for listing species

and designated critical habitat, revision of the regulations

for prohibitions to threatened wildlife and plants, and revi-

sion of regulations for interagency cooperation.

I would like to take a moment to introduce our mod-

erator. Jake Li is the Director of Biodiversity at the Envi-

ronmental Policy Innovation Center (EPIC). Previously,

Jake represented regulated industries and then created the

endangered species policy program at Defenders of Wild-

life. After a decade t hat spans both sides of the table, he

is now largely focused on engaging t he public and private

sector in saving endangered species.

Jake Li: I’m delighted to be joined by four other expert

panelists to talk a bout the proposed revisions to the endan-

gered species regulations. We hope to provide a spectrum

of views ranging from the regulated community to envi-

ronmental groups.

We’ll discuss each of the three major par ts of the rule-

making, starting with the proposed withdrawa l of the

§4(d) general rules, followed by the listing and critical

habitat proposals, and we’ll end with the §7 consultation

proposals. First, I want to provide context for each of these

three parts and oer some of the perspectives of my orga-

nization, EPIC.

To do that, I am going to start with the image in Figure

1. It reects my eort to go through the three rulema king

packages and ca refully pull out each of the notable pro-

posals that I found—and there were roughly 36 notable

proposal s.3 Part of the purpose of this v isual is to ask: what

is the overall eect of these proposals? For those who have

1. See Press Release, U.S. Fish and Wildlife Service and NOAA Fisheries Seek

Public Input on Proposed Reforms to Improve & Modernize Implementation

of the Endangered Species Act (July 19, 2018), available at https://www.

fws.gov/news/ShowNews.cfm?ref=u.s.-sh-and-wildlife-service-and-noaa-

sheries-seek-public-input-on-&_ID=36286; 16 U.S.C. §§1531-1544,

ELR S. ESA §§2-18.

2. 83 Fed. Reg. 35178, 83 Fed. Reg. 35193, 83 Fed. Reg. 35174 (July 25,

2018).

3. Overview of New Endangered Species Draft Regulations, E

P I C, http://policyinnovation.org/esaregs18/ (last

visited Sept. 27, 2018).

Editor’s Note: Jonathan Wood represents petitioners on two 2016

rulemaking petitions urging this reform, to which the proposed rule

was issued in response. See Washington Cattlemen’s Association’s

Petition to Repeal, 50 C.F.R. §17.31 (led Aug. 4, 2016), available

at https://paciclegal.org/wp-content/uploads/2017/09/NIFB-

and-WCA-Litigation-Petition-8-4-16.pdf; National Federation

of Independent Business’ Petition to Repeal 50 C.F.R. §17.31 (led

Mar. 15, 2016), available at https://paciclegal.org/wp-content/

uploads/2018/04/PLF-Pet-Re-Repeal-Title-50-of-the-Code-of-

Reg.-Section-17.31.pdf.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.