WASHINGTON, April 27, 2016 - House Republicans held three hearings last week to spotlight what they characterized as federal land grabs enabled by the Endangered Species Act (ESA) and committed by the U.S. Fish and Wildlife Service (FWS), which fought back against the charges. 

Utah Republican Rob Bishop, chairman of the House Natural Resources Committee, opened the first of the hearings on Tuesday by bashing the agency’s newly finalized rules pertaining to ESA’s critical habitat designation policy.

Critical habitat designations for ESA-listed species are required by the law when “prudent and determinable,” but usually take several years or more to finalize after a species is listed because of FWS’ budget constraints. The designation protects a listed species by identifying the lands that are “essential to the species’ recovery” and requiring the federal government to consult with FWS before it takes action that is “likely to destroy or adversely modify” that critical habitat.

Bishop argued that the new rules finalized by FWS in February “will now make it even easier for the federal government to absorb larger and larger swaths of land and water… from local, state governments and private citizens.” 

FWS Director Dan Ashe said that was not the case, referring to the rules as detailed in the Federal Register. According to FWS, the rules only clarified the definition for what can be designated as critical habitat, and aren’t likely to have much, if any, ill effect on development projects on public lands.

One rule defines two previously undefined concepts that in the past had invited litigation: “geographic area occupied by the species” and “physical or biological features.” FWS says it defined these terms in keeping with the law’s original intent and in a way that critical habitat could be designated in areas that do not currently support a listed species.

“If critical habitat is being designated or revised several years after the species was listed, it can be difficult to discern what was occupied at the time of listing,” FWS says in the Federal Register. “The known distribution of a species can change after listing” if new or more suitable habitat is discovered, the population at the time of listing was nearly extinct and only occupying a fraction of the area necessary to recover the species, or if some individuals emigrated to new areas, the agency says.

Ashe said the new definitions allow for the inclusion of data “developed since the species was listed.” The second rule redefined “adverse modification,” as “direct or indirect alteration that appreciably diminishes the value of critical habitat,” after the previous regulatory definition had been invalidated by several courts for being inconsistent with the language in the ESA. 

Nothing is expected to be done differently in the consultation process for a development that is likely to affect a listed species’ habitat as a result of this change, Ashe explained. What’s more, he said, there hasn’t been a single project stopped or altered because of an FWS adverse modification finding during the Obama administration in which there were more than 88,000 consultations – an assertion backed up by a 2015 peer-reviewed article published by the National Academy of Sciences. 

Botanist Loyal Mehrhoff, the endangered species recovery director for the Center for Biological Diversity and a former FWS field supervisor, said over the course of his career he had never heard of an adverse modification finding. “Critical habitat designations do not affect private development on private lands if there is no federal nexus or federal permit required,” Mehrhoff testified. “Nor does (a critical habitat designation) establish de facto wilderness areas or limit public access to public lands.”

Ashe said critical habitat was compatible with livestock grazing, causing some to remember the slogan “What’s good for the bird is good for the herd” that became popular during the campaign against the listing of the greater sage grouse. He said it could even jibe with energy development.

“When next any of you are flying into Las Vegas… you are going to see the largest commercial solar facility in the world… right smack dab in the middle of (the ESA listed) gopher tortoise critical habitat,” he said.

Several Republican lawmakers in the two subsequent House hearings on ESA criticized critical habitat designations for reducing property values and deterring developers from taking on projects. 

“I don’t. I really don’t… want to do away with (the) Endangered Species (Act),” Texan Louie Gohmert said. “But I’ve seen the inequities caused by the (ESA)… the billions and billions of dollars that have gone into saving maybe not even 1 percent of the endangered species. Some of us feel like there’s got to be a better way where you don’t take away private property rights.”

“I am aware of no scientific evidence whatsoever that critical habitat has resulted in reduction of property value,” Ashe maintained. Private landowners are only prohibited from “taking” a listed species – which refers to killing, injuring or harassing it – unless they have a permit, he said.

Speaking with Agri-Pulse after the last hearing, Ashe said, “cutting budgets to implement the Endangered Species Act isn’t going to help private landowners. We actually need more people in the field if we’re going to the do the kinds of things that members (of Congress) want done – to accommodate development in a way that’s not going to impact species survival.”


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