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Sen. Cruz, Colleagues Praise Trump Administration’s Act to Modernize Broken ESA Processes Negatively Impacting Species and Landowners

August 12, 2019

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WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas), member of the Senate Western Caucus, along with fellow members of the Senate and Congressional Western Caucus today released the following statements applauding three final rules from the U.S. Department of the Interior, the U.S. Fish and Wildlife Service and the National Oceanic Atmospheric Administration (NOAA) Fisheries that will modernize Endangered Species Act (ESA) regulatory requirements. These rules aim to improve collaboration, efficiency, and effectiveness. More information can be found here.

The ESA is more than 45-years-old and has a 3 percent recovery rate. It is far past time that we bring the ESA into the 21st Century. Congress last reauthorized the ESA in 1988. Last Congress, the Congressional Western Caucus introduced a bipartisan ESA modernization package comprised of nine bills that was endorsed by 170+ stakeholders throughout the country. More here.                                                                                                                                

Members of the Senate and House of Representatives released statements, including: Senate Western Caucus Chairman Steve Daines (R-Mont.), Congressional Western Caucus Chairman Rep. Paul Gosar (R-Ariz.), Sens. John Barrasso (R-Wyo.), Mike Crapo (R-Idaho), Jim Risch (R-Idaho), Jim Inhofe (R-Okla.), Kevin Cramer (R-N.D.), and Reps. Rob Bishop (R-Utah), Don Young (R-Alaska), Andy Biggs (R-Ariz.), Dan Newhouse (R-Wa.), Bruce Westerman (R-Ark.), Greg Walden (R-Ore.), Markwayne Mullin (R-Okla.), Russ Fulcher (R-Idaho), and Pete Stauber (R-Mo.).

“The Endangered Species Act was created with the good intention of protecting and conserving species on the brink of extinction,” Sen. Cruz said. “But in reality, it has inflicted more harm than good on Texas ranchers and farmers, along with the species it aims to protect. These reforms are an important step toward strengthening state and local conservation efforts, and I look forward to working with my colleagues in Congress to build on this progress by advancing the SAVES Act.”

“This is a win for Montana and the West, and will help restore commonsense, science based decision making when it comes to the Endangered Species Act,” Sen. Daines said. “These new rules will lead to more transparency, increased recovery of species greater conservation, and will help take the decision making powers out of the hands of radical activists in the courtroom. I applaud the administration for taking this action."

“Today’s final rules modernize Endangered Species Act regulatory requirements to improve efficiency and more closely align with the intent of Congress,” Rep. Gosar said. “Threatened Species and Endangered Species were designated as distinct classes for a reason and should function as such. With a three percent recovery rate in its nearly half-century history, it is far past time that we bring the ESA into the 21st Century. I appreciate Secretary Bernhardt taking time to personally brief me on these updates. I applaud the good work of the Department, the Fish and Wildlife Service and the National Marine Fisheries Service in strengthening the overall functionality of the Act and allowing more resources to go to truly endangered species.”

“The Trump administration is taking important steps to make the Endangered Species Act work better for people and wildlife,” Sen. Barasso said. “These final rules are a good start, but the administration is limited by an existing law that needs to be updated. I am working in the Senate to strengthen the law, so it can meet its full conservation potential. Congress needs to work across party lines to find common ground. I will continue to partner with states, stakeholders, and other senators from across the political spectrum on this important issue. We must modernize the Endangered Species Act in a way that empowers states, promotes the recovery of species, and allows local economies to thrive.”

“I strongly support today’s announcement by the U.S. Fish and Wildlife Service (USFWS) to bring long due reforms to the Endangered Species Act (ESA),” Sen. Crapo said. “The improvements announced today will provide greater clarity to farmers, ranchers, water users and landowners in how the law is administered, yield important benefits to ecological health and ensure the efficacy of the law for years to come.”

“These revisions to the ESA are welcome news in Idaho and across the West,” Sen. Risch said. “The Endangered Species Act should be consistent and science-based, and this work by the Fish and Wildlife Service and the National Marine Fisheries Service is an encouraging step to improve the ESA’s functionality for conservation, recovery, wildlife managers, and rural communities.”

“Today’s action by Secretary Bernhardt and Fish and Wildlife Service is a much needed step in the right direction for the Endangered Species Act,” Sen. Inhofe said. “We’ve seen before how the Act can be abused by environmental activist agendas, but by increasing transparency and ending the practice of one-size-fits-all reactions, we can end their sue and settle tactics while promoting responsible conservation without heavy-handed government intervention.”

“The Endangered Species Act exists to identify struggling species and help them recover,” Sen. Cramer said. “Unfortunately, current implementation is drawn out and ineffective. Today’s actions will help achieve actual species recovery while providing much-needed clarity and stability to those who are too often held hostage by the ESA. I applaud Secretary Bernhardt and the Trump Administration for their continued work to make the federal government more efficient and effective, and I look forward to continue working with them to modernize the Fish and Wildlife Service.”

“Under the previous administration, the Endangered Species Act strayed woefully far from its original intent,” Rep. Bishop said. “The Act was morphed into a political weapon instead of a tool to protect wildlife. Secretary Bernhardt’s dogged dedication to righting this wrong is again made apparent today. These final revisions are aimed at enhancing interagency cooperation, clarifying standards, and removing inappropriate one-size-fits-all practices. I look forward to supporting efforts in Congress to enshrine these revisions into law."

“As the only currently-serving Member of Congress who voted for the original Endangered Species Act of 1973, I can say with great confidence that the courts have turned it into a bureaucratic nightmare that could not have been anticipated,” Rep. Young said. “With these new rules, the Department of the Interior is helping to reign in the ESA and bring it closer to its Congressional intent. I am pleased with Secretary Bernhardt's announcement and will continue working with the DOI and my colleagues in Congress to ensure that the ESA is modernized and streamlined.”

“I continue to be encouraged that the Trump administration is actually listening to the on-the-ground advice of farmers, ranchers, and other landowners,” Rep. Biggs said. “The final rules announced today are an important step in the modernization of the Endangered Species Act, and I look forward to working with my colleagues in House of Representatives to further reform this decades-old legislation in the coming months.”

“In Washington state, we have seen firsthand how arcane restrictions from an outdated Endangered Species Act have tied the hands of local governments and conservationists,” Rep. Newhouse said. “Instead of enabling federal bureaucrats and partisan interest groups, we must focus our resources on the species that need them most. Thank you, Secretary Bernhardt, for taking this step to revise regulations and bring the Endangered Species Act into the 21st Century.”

“The ESA has been a helpful tool in protecting wildlife at risk of extinction,” Rep. Westerman said. “However, like many government programs, a lack of reform and abundance of red tape caused ESA to become ineffective and overused. These much-needed rule changes will streamline ESA regulations and allow it to fulfill its original purpose. I hope to continue working with the Interior Department and my colleagues in Congress to make positive change and steward our resources well.”

“The Endangered Species Act’s (ESA) outdated language imposes a burden on many rural communities,” Rep. Walden said. “Oregonians have seen how the listing of the spotted owl has forced many federal forests in Oregon into endless litigation by special interest groups that hold up forest management projects and leave communities at risk of catastrophic wildfires that choke our air with smoke and destroy the very wildlife habitat the ESA aims to protect. I am glad to see the U.S. Fish and Wildlife Service and National Marine Fisheries Service are making sensible improvements to modernize and streamline the ESA process and ensure we can protect species without overburdening our rural communities.”

“For 45+ years, the Endangered Species Act has not fulfilled its mission and instead created burdensome red tape and unnecessary obstacles for landowners, small businesses, and communities to comply with,” Rep. Mullin said. “In Oklahoma, the American burying beetle continues to be on the endangered species list, despite a substantial increase in conservation efforts that should have removed them from the list. The ESA under the Obama Administration looked less like a preservation plan and more like blatant government overreach. I applaud the Department of Interior for taking these steps to modernize the ESA and bring the law into the 21st century.”

“While the Endangered Species Act had great intentions when it was first enacted into law, these intentions have not met all of their original goals,” Rep. Fulcher said. “The ESA has had a poor track record in delisting species and has become an overly bureaucratic process that has created divisions in the West. I applaud the Department of Interior and Department of Commerce for increasing transparency and continuing to fix this broken law.”

“I welcome the Trump Administration's understanding of the need to modernize the Endangered Species Act,” Rep. Stauber said. “Although the law has done great things for many species, it has also become a political tool used by activist judges without any input from the American people. Therefore, I believe managing the population belongs with our state Department of Natural Resources. In northern Minnesota, the gray wolf needs to be delisted so our farmers can stop worrying about attacks on their cattle, our deer hunters can stop worrying about thinning our deer herd, and for our moose population to grow.”

The bellow information is courtesy of the Department of the Interior:

SECTION 4 

Rescinding the Blanket 4(d) Rule 

● The ESA provides protections that distinguish between endangered species and threatened species. Full protections are automatically applied to endangered species, but the Services can tailor protections for threatened species by means of species-specific “4(d) rules.” These protections will specifically address the specific threats to the species. 

● FWS has long had a “blanket 4(d)” rule that automatically applies all the ESA’s protections in cases where FWS has not developed a species-specific 4(d) rule. To be more consistent with the ESA and its intended system of tiered protection, FWS is rescinding this blanket 4(d) rule. 

● This reform is not retroactive and will affect only future listings and downlisting from endangered status to threatened status. 

Definition of “Foreseeable Future” 

● This is the approach we have been using for about a decade and is not a change from our now long-established practice. However, by codifying our approach in regulation, it will make us more transparent to everyone. 

● We are clarifying that the foreseeable future extends only so far as we can reasonably determine that both future threats and the species’ responses to those threats are likely. 

Clarifying that the Standard for Listing and Delisting are the Same 

● The ESA is clear in its requirement that when a species is in danger of extinction, either now or in the foreseeable future, it should receive the Act’s protection. Likewise, when the ESA has done its job and the species is no longer in danger of extinction, it should be delisted. To provide consistency, the standard under the law for listing and delisting must be the same, i.e., whether the species meets the ESA’s definitions of an endangered species or a threatened species. 

● When some of our delisting decisions have been challenged, courts have sometimes appeared to set a higher bar for removing a species from the list than for adding a species to the list (i.e., gray wolves and bald eagles). 

● Keeping species on the list when they no longer face the threat of extinction takes valuable resources away from species that still need ongoing protection under the ESA and discourages the kind of state and private partnerships essential to conserve plants and wildlife that genuinely need our help. 

Occupied versus Unoccupied Critical Habitat 

● Critical habitat plays a valuable but often misunderstood role in species’ recovery. Critical habitat designations describe the areas that are important for recovery…We are providing clarity in the final rules by explaining that we designate unoccupied critical habitat only when occupied areas are inadequate to ensure the conservation and recovery of the species. In addition, for an unoccupied area to be considered essential, we must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more physical or biological features essential to the conservation of the species. 

SECTION 7 

Federal Consultation 

● Interagency consultations are a cornerstone of the ESA that help ensure federal actions are not likely to jeopardize the continued existence of our most at-risk wildlife. 

● This final rule affirms our authority to use such streamlining methods that we have developed through experience since we last undertook a revision of our consultation regulations. 

● Streamlining the consultation process helps with timely decision-making on critical infrastructure and other projects important for job creation and economic development without compromising the conservation purposes of the section 7 consultation process. 

Minimizing/Offsetting Adverse Effects 

● As part of their actions, federal agencies often include measures to avoid, minimize or offset adverse effects to ESA-listed species or critical habitat. 

● Courts have sometimes appeared to set a higher standard for certainty of implementing mitigation actions than for implementing the development activity itself. Our rule clarifies that these mitigation measures should be held to the same standard of certainty as the associated development action. 

Clarifying the Information Needed for Consultations 

● A lack of clarity in what information we need to initiate formal consultations with federal agencies has led to frequent confusion and a loss of valuable time while we work with the agencies to compile the necessary information. 

● By clarifying what we need to initiate consultation, we will shorten the time it takes for consultations and ensure taxpayer dollars are spent wisely and efficiently. 

Definition of “Destruction or Adverse Modification” 

● We are removing confusing language from the existing definition without changing the substance of the standard. 

Definition of “Effects of the Action” 

● Clarifying the definition of “effects of the action” will reduce confusion about terms in the existing definition and help decrease the resources needed for federal agencies and applicants to describe the effects of their actions to listed species or critical habitat when engaged in section 7 consultation. 

Definition of “Environmental Baseline” 

● Establishing “environmental baseline” as its own definition makes it clear that establishing the baseline for a consultation is a separate consideration from describing the effects of the action.

● Clarifying the environmental baseline with respect to ongoing agency activities or existing agency facilities addresses issues that have caused confusion in the past, particularly with regard to impacts from ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modify. 

Programmatic Consultations 

● Programmatic consultations are useful in evaluating the effects of multiple related actions within a particular geographic area and in assessing federal agency programs that establish standards, guidelines or governing criteria for future actions. Increased use of programmatic consultations will streamline the consultation process, increase predictability and consistency for federal agencies and applicants, and improve conservation outcomes. 

Deadline for Informal Consultation 

● Establishing a deadline for informal consultation will help ensure informal consultations are completed in a timely fashion and provide regulatory certainty to federal agencies and applicants. 

Reinitiation of Consultation 

● Amending the regulations with respect to reinitiation of consultation on land or resource management plans of the BLM or Forest Service aligns them with existing practice and congressional action. 

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