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Our Views Columns

Date: 10/9/2014

Title: NCBA, PLC and Affiliated Livestock Associations file Comments on Proposed Changes to Endangered Species Act

The National Cattlemen’s Beef Association, Public Lands Council and 26 affiliated livestock associations collectively filed comments today regarding three proposed changes to implementation of the Endangered Species Act by the U.S Fish and Wildlife Service and the National Marine Fisheries Service, a division of the National Oceanic and Atmospheric Administration. The changes would modify the process of designating areas of critical habitat, what it means to adversely modify critical habitat and consulting on the effects of federal actions on critical habitat. 

The first proposed rule revises the definition of "adverse modification." Under current law, the federal government cannot take any action, or help fund any action, that will “adversely modify” habitat of a threatened or endangered species. Under the new definition, the consideration for whether an action constitutes an adverse modification becomes whether it affects the habitat’s ability to support the recovery of the listed species, including the quantity and quality of the habitat. It goes further to deem actions that may adversely modify critical habitat as restricted where designations have been made. Often times, critical habitat designations list cattle, or cattle grazing, as detrimental to the habitat of the listed species, including both federal land and private property owned by cattlemen.

The second proposed rule dangerously expands what can be designated critical habitat. If this rule were to be implemented, not only can land occupied by a species be designated as critical, but any land that could possibly be occupied by a species could also be designated as critical habitat. This change would essentially unleash US FWS regulators to, at will, designate land under critical habitat for nearly any reason carrying the full enforcement/penalties of the ESA.

According to FWS, the third proposal is a policy to provide greater predictability, transparency and consistency regarding how the Services consider exclusions from critical habitat designations. The policy limits when exclusions will be made, but those decisions will not be based on sound, quantitative data and analysis, but broader qualitative data instead.

These rules could dramatically increase the amount of private and public lands designated for habitat, which in turn could result in blocking or slowing down an array of agriculture, grazing, energy transmission and production, transportation, and other activities on the more than 680 current habitat designations and hundreds more slated to be finalized in the next few years. The associations have asked the FWS to withdraw the proposed rules and policy as they are beyond the statutory authority provided by congress in the ESA.