Explaining changes to the Endangered Species Act

In 1990 the Northern Spotted Owl was listed as a “threatened” species under the federal Endangered Species Act (ESA), resulting in the steep decline in federal timber harvests and the economic collapse of many rural communities across the nation.

In the Pacific Northwest over 9.5 million acres of federal land have been set aside as “critical habitat” for the owl, where forest management is either highly restricted or entirely prohibited. Yet Northern Spotted Owl populations are still declining, even in areas where logging has been prohibited for decades. As wide swaths of federal lands have been set aside from forest management for the owl, early seral habitat for deer, elk and other dependent species-including prey species for owls such as woodrats- have declined by 90 percent.

Against this backdrop, in August the Departments of the Interior and Commerce announced changes to Endangered Species Act regulations. Given today’s political environment, it’s not surprising the changes, though they consist of modest tweaks to ESA processes, have been controversial and framed in partisan terms. Here we will attempt to cut through some of the political rhetoric and explain of how the regulations are changing, and not changing:

First, the new regulations do not change the basic process for endangered species reviews.. Listing determinations will continue to be judged “solely on the basis of the best scientific and commercial information regarding a species’ status.” As before, federal agencies must consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service to ensure federal actions don’t jeopardize a listed species or undermine their critical habitat.

What changes is the previous “one-size-fits-all” approach to the ESA. As with the Northern Spotted Owl, the  the U.S. Fish and Wildlife Service has treated “threatened” or “endangered” species the same, an approach that often undermines public support and fails to consider the specific needs of unique species. The revisions will follow the same two-tiered classification system that Congress originally established for “endangered” and “threatened” species, enabling the U.S. Fish and Wildlife Service and the Department of Commerce’s National Marine Fisheries Service (NMFS) to develop unique rules to help recover species populations (a model that NMFS already uses).

In the Pacific Northwest there has been controversy over critical habitat the spotted owl doesn’t even use. To provide clarity, the new regulations focus on prioritizing occupied critical habitat rather than unoccupied areas that may never support wildlife.  The regulations ensure that federal agencies first evaluate areas where species are actually present, before considering areas where they are not.  Designated “unoccupied habitat” must contain one or more of the physical or biological features essential to the species’ conservation.  This rightfully placed the focus on the habitat utilized by a species and helps ensure that critical habitat designations are free from speculation or surmise.

It often takes a lot of time for the federal government to make decisions on listing a species or determining critical habitat. In federal forest management, such decisions can add months, if not years, to the implementation of forest projects that reduce overstocking and fire risk, provide timber or enhance wildlife habitat for various species. In the case of the Northern Spotted Owl, the Fish & Wildlife Service’s 2011 Revised Recovery Plan identified catastrophic wildfire as the primary source of habitat loss.

In addition to revising definitions to promote consistency and clarity in the consultation process, the new regulations establish a deadline for informal consultations to provide greater certainty for those needing timely decisions, without compromising conservation of ESA-listed species.  Informal consultation covers projects that won’t have a negative impact on listed species and where additional process or study will bring no conservation benefit.  The regulations also aim to streamline the relatively complex process of formal consultation.

In conclusion, these are the first changes to ESA regulations in 33 years. During this time science has evolved. Research has since found that active forest management can benefit the Northern Spotted Owl, whose primary habitat are increasingly threatened by stand-replacing fire due to a lack of management. We hope the new regulations can help streamline forest management where treatments are needed, in a way that benefits both wildlife species and communities that depend on healthy, resilient and renewable forests.

Explaining changes to the Endangered Species Act