In response to ill-conceived new regulations proposed by the US Fish and Wildlife Service to implement the Endangered Species Act, EHL pointed out ways to improve.

Faced with a court decision that invalidated the Service’s own narrow definition of what it meant to “recover” species, the agency proposed a series of new regulations affecting the lands and waters needed to restore imperiled species and the ecosystems upon which they depend. With 23 years of on-the-ground experience in implementing the Endangered Species Act (ESA), EHL was able to recommend important improvements to new regulations.

Under the ESA, land needed to build healthy populations is termed “critical habitat.” While the Service claimed it was addressing court decisions that faulted it for allowing loss of critical habitat until a species was about to go extinct, the proposed regulations simply substitute another way of circumventing the intent of the Act. Specifically, the new regulations would require that loss of critical habitat affect viability across the entire range of a species rather than that of biologically important populations. The result would be an incremental “death by a thousand cuts.” The scientific community mobilized to oppose these changes, and EHL joined a comment letter on this subject written by national environmental groups.

In its own letter, EHL made use of its experience in large-scale multiple species planning and focused on proposed policies governing when to exclude designating critical habitat within preexisting Habitat Conservation Plans (HCPs) adopted in accord with the ESA. The goal, which EHL supports, is to allow HCP participants––who are already addressing species recovery through their plan––to avoid additional burdens of new critical habitat designations.  

However, the Service proposed an awkward and ineffective “balancing test” that could be followed by excluding entire geographic areas from critical habitat designation in a blanket manner. This would allow agencies not participating in the conservation plan to escape the ESA protections that accompany critical habitat. A new road or reservoir not covered by a plan would get a free ride. EHL proposed a superior approach (based on the assurance of no additional mitigation requirements due to critical habitat designation) that is in our San Diego and Orange County plans. This approach not only avoids the problems in the Service’s proposal but even better serves the interests of plan participants.

Judging from the proposed regulations, the Service––even under a Democratic administration––seems loath to fully enforce the Endangered Species Act. This does not just reflect failure at the agency but also the politically weak position of the environmental community in the current political system.

We will monitor the agency’s response to our comments.