Three rules proposed by the U.S. Fish and Wildlife Service and National Marine Fisheries Service to change parts of the Endangered Species Act go against the goal of creating certainty, consistency and transparency in how the law is applied.
GPA Midstream filed comments in late August protesting the changes. Just one year ago the services put a sensible set of regulations in place that allowed greater certainty in defining habitat and removing recovered species from the list. The latest move by the government, however, would rescind those rules without providing sufficient rationale for the arbitrary action.
For instance, the rules don’t provide for any disclosure of the economic impacts of listing, delisting or reclassifying a species, something GPA Midstream has made clear is necessary to the federal services before.
What’s more, the new language for taking a species off the list leaves determination open-ended and discretionary. That means the services could keep a species on the list even if it has recovered and is no longer endangered. At the very least, the changes need to clarify the definition of “recovery” when it comes to delisting.
The issue of the endangered species’ habitat, likewise, muddies the regulations. The services didn’t follow a long-standing regulation that a geographic area deemed a “critical habitat” shouldn’t include the entire area the species could live. The move to ignore this regulation would cause more area to be considered “occupied” instead of “unoccupied,” which is detrimental to helping GPA Midstream members comply with the act.
Fish and Wildlife also proposes returning to a one-size-fits-all approach that treats all species the same. That approach is inefficient and doesn’t best serve the goals of the act. In fact, GPA Midstream and the Endangered Species Act are aligned in their goals to tailor regulations to best protect each species. By identifying and targeting the primary threats to an individual species, Fish and Wildlife can more efficiently usher through permitted projects.
Proposed rules to another section of the act revise definitions and make some minor clarifications to language in the law, something GPA Midstream supports as long as the government agencies stick to the intent of sensible rule changes made in 2019.
There also is a proposal that would expand Fish and Wildlife’s authority beyond what was intended by the act. Under the rule, the service would be allowed to levy mitigation measures on member companies if an outside consultant to the government determines it is needed.
GPA Midstream has requested clarification of several parts of that proposed rule and oppose any required mitigation measures that should remain beyond the services’ authority.
