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New Rule Limits Options For Saving Species

Northeastern North Carolina, with public and private land seemingly as vast as the competing interests that work and play on it, has had its share of conflict over the Endangered Species Act protections. Battles over the piping plover and red wolf have raged in communities and courtrooms here for decades, but at the same time, few argue that the iconic brown pelican and bald eagle owe their recovery to the law.

A young loggerhead sea turtle near Panama City, Florida. Photo: NOAA

“It was a rare sighting to see bald eagles in the ’70s and early ’80s,” said Mike Bryant, who retired in 2016 after serving 21 years as refuge manager of six National Wildlife Refuge System locations totaling about 300,000 acres in eastern North Carolina. “Now you see good numbers of them.”

As the Trump administration’s new Endangered Species Act rule kicks in this week, Bryant and other conservationists are worried that the changes will reduce important habitat and management options that would counter future climate risks. And a new requirement to provide costs involved in protection of each species, he said, would only do more to neuter the 45-year-old law.

“That economic analysis will start to bog down an agency that doesn’t have a lot of resources,” Bryant said in a recent telephone interview. “It’s putting kind of a crosshair on a species.”

After proposing the revised rule in 2017, the U.S. Fish and Wildlife Service, the agency charged with executing the law, received some 800,000 public comments opposing the law, Bryant said.

According to comments submitted by the state of North Carolina and the Commonwealth of Virginia, a combined total of more than 75 fish and wildlife and 20 plants were listed under the Endangered Species Act in the two states. That biodiversity supports tourism economies in the neighboring states that generate $887 billion in annual consumer spending, $65.3 in federal tax revenue, $59.2 billion in state and local tax revenue and 7.6 million jobs.

“While most programs can be improved,” the states said in their submitted comments, “we are concerned that the proposed ESA rules changes would do more to hinder than support future endangered species protection and the collaborative work between states and the federal government.”

The final rule goes into effect on Thursday – 30 days after its publication Aug. 27 in the Federal Register. Since it is not retroactive, the impact will be largely on future actions. Although only Congress, which passed the law in 1973, would have the power to revoke the Endangered Species Act, the administration has the authority to revise it through the rulemaking process. The changes also apply to the National Marine Fisheries Service.

Legal challenges, legislation

California-based Earthjustice, representing seven environmental groups, filed on Aug. 21 a lawsuit against the government, contending that the revised regulations violate the purpose of the law and are arbitrary and capricious.

U.S. House Democrats also recently introduced legislation to repeal the changes, and the Republican-led Congressional Western Caucus has proposed legislation to reform the act.

Under the revisions, the Endangered Species Act will no longer grant the same protections to a designated threatened species as an endangered species, and will instead require managers to tailor conservation needs specifically to each threatened species. Looser recovery standards would also make it easier to delist species.

Also, a species’ former habitat or areas that extend beyond its current habitat will be eliminated as a protective measure. Known as critical habitat, the additional land would allow a recovering species to expand its range or move away from climate threats such as rising seas.

“It means whatever you can’t do today with that species, you can’t do tomorrow,” Bryant said. “Without that habitat, the species is likely to decline.”

A red wolf tends to her pups. Photo: U.S. Fish and Wildlife Service

Bryant, now the regional representative for the nonprofit National Wildlife Refuge Association, witnessed a sharp shift in the focus of species management years before the rule change was proposed, when Fish and Wildlife inexplicably pulled staff away from the red wolf recovery plan operated out of Alligator River National Wildlife Refuge, despite its record of success.

After Republican lawmakers, often pointing fingers at the Endangered Species Act, started siding with landowners who were angry about wolves on their property, changes in management were made, prompting environmental groups to file lawsuits under the act’s requirements.

Eventually, the wolf population drastically decreased, and under a judge’s order, the agency is currently reassessing its management.

“The politics around that got toxic,” said Bryant, who by his own choice was no longer in charge of the recovery program for several years before he retired. “From my perspective, the agency lost the will … because of the pressure.”

Modernization or eliminating science?

Officials in the Interior Department have defended the Endangered Species Act revisions as a modernization of the law that will increase clarity, efficiency and transparency.

Addressing concern that habitat protection could be viewed as subordinate to tapping resources such as natural gas and oil, U.S. Fish and Wildlife Service Assistant Director Gary Frazer said in a transcript of comments provided on Aug. 16 by the Interior Department that the agency is “dedicated” to making the act work for the species and the public.

An Interior Department spokesperson wrote in an email that the agency was “unable to accommodate an interview.”

“Conserving species is very much a function of trying to reconcile their needs with the needs of humans,” Frazer said, according to the transcript. “Growing population, the need for more food and fiber, the energy resources – all these things are challenging and the Endangered Species Act is all about finding ways to reconcile those other societal needs, human needs, with species conservation.”

In practical terms, what the new rule will do is not only reduce protective measures for threatened and endangered species, it will force wildlife managers to make a case for protection of each threatened species.

“It was already proven with the best available science,” said Steve Holmer, vice president of policy and director of the Bird Conservation Alliance. “I don’t think it comports with the spirit and intent of the law if the species doesn’t have protection.”

Holmer also condemned the contention reflected in the law that wildlife biologists and managers can’t “look off into the foggy future” in management plans. The result is the elimination of scientific analysis of potential future threats that would contribute to the decline of a species.

Without tiptoeing around what he contends is a reflection of politics, not science, Holmer said the changes to the act are carrying out a goal voiced “in a stump speech.”

“They’re just writing this rule for certain constituencies,” he said, adding: “As a society, we’re much better off operating under the rule of law, rather than a ruler.”

Bryant said that under the new rule, threatened species will lose the protections from “taking,” or disturbing, harassing or harming the animal, that it had before under the act, leaving species such as loggerhead turtles vulnerable while the agency works on writing specific rules to prove it needs protection. Rulemaking, he added, will inevitably be subject to stall tactics.

“Not a good thing,” he said. “It’s just forcing the agency to climb another hurdle.”

Fish and Wildlife has long needed more funding to meet the responsibility of managing the many species that are currently listed, Bryant said, resulting in it doing “triage” in an effort to meet its responsibilities under the law.

And then there is always someone who charges that the agency is not doing enough fast enough to protect the species, he said.

The Endangered Species Coalition’s report lists 10 species imperiled by the new rule.

A December 2018 report compiled by the Endangered Species Coalition said that 10 species would be imperiled by the new rule, including the leatherback and loggerhead sea turtles and the red wolf. Others cited by the coalition as at risk were the California condor, the giraffe, the hellbender (a salamander), the Humboldt marten, the rusty patched bumble bee, the San Bernardino kangaroo rat, the West Indian manatee and the Western yellow-billed cuckoo.

And in May, a report released by the United Nations revealed that about 1 million animal and plant species are close to becoming extinct, a scenario that could create cascading disastrous consequences for humans.

If anything, Bryant said, the Endangered Species Act had “proved itself over and over for a number of species,” he said.

Of the 1,600 species that have been listed, Bryant said, about 94% had survived – and a number of them were at risk of going extinct. In addition to the bald eagle and the brown pelican, the law is credited with saving, among others, the humpback whale, the American alligator, the Channel Island fox, and the Tennessee purple coneflower. Currently about 1,200 animals and 700 plants are listed.

“The proof is in the outcome,” he said. But there are many competing interests for land and resources and resistance to adaptation to changing conditions.

“Is it really ruining your life because you used to do that there?” Bryant asked.  “The bottom line, the biggest challenge is there are more and more people.”

Referring to a quote from early 20th century ecologist Aldo Leopold, “to keep every cog and wheel is the first precaution of intelligent tinkering,” Bryant cautioned that people need not be so anodyne about the fragility of the balance inherent in mutual survival on a stressed planet.

“You don’t know when you’ve hit that threshold of missing parts,” he said.

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About the Author

Catherine Kozak

Catherine Kozak has been a reporter and writer on the Outer Banks since 1995. She worked for 15 years for The Virginian Pilot. Born and raised in the suburbs outside New York City, Catherine earned her journalism degree from the State University of New York at New Paltz. During her career, she has written about dozens of environmental issues, including oil and gas exploration, wildlife habitat protection, sea level rise, wind energy production, shoreline erosion and beach nourishment. She lives in Nags Head.