What the new Endangered Species Act rules mean for Washington state

Scientists, conservationists and state regulators warn that changes to the legislation could make species and habitat recovery more difficult. 

A grey wolf from the endangered population in Washington's North Cascades Mountains. (Photo © David Moskowitz)

In Washington state, the Endangered Species Act is credited with helping protect the southern resident killer whale, the gray wolf, chinook salmon and many more species. But this month, two federal agencies jointly announced plans to drastically alter how its regulations are carried out, in ways many environmentalists are claiming weakens the legislation.

The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (also NOAA Fisheries) issued rules governing how newly threatened species are protected, which habitats receive protection, how agencies consult on projects that could impact endangered or threatened species and what data informs these decisions.

USFWS claims the rules serve simply to clarify and improve implementation of the ESA, under which more than 1,650 animals and their essential habitats have been listed since 1973.

“[It was] all for the purpose of being as efficient as we can be, and clear in regards to what the standards are, so that we can both be able to do this work consistently across many species and many offices that we operate under throughout the country but also to make this as understandable to the public that we serve as possible,” Gary Frazer, USFWS’s assistant director for endangered species, told Crosscut via email.

But among Washington-focused scientists, agency employees, wildlife advocates and state officials, a consensus is emerging that the rules seriously deregulate methods for protecting wildlife and their habitats, especially where climate change and business interests are involved.

“The administration is doing real damage — how much will be immediate, that's a bit hard to say,” says Todd Wildermuth, director of the University of Washington School of Law’s environmental law program. The accumulation of “rollback decisions,” he says, means “Washington can't help but be affected.”

According to USFWS’ Environmental Conservation Online System, 48 plants and animals are federally listed as either threatened or endangered across Washington state’s lands and waters.

The “gutting” of the act “could impact the state’s ability to protect animals and habitats going forward,” confirms Tara Lee, Gov. Jay Inslee’s deputy communications director, via email. “We support any and all actions that could block [these] harmful rule[s] from taking effect,” Lee says. 

The directors of four state agencies and the governor’s salmon recovery office submitted a joint comment letter to DOI this past September sharing similar concerns.

The Attorneys General of both Massachusetts and California quickly announced they’d file lawsuits against the Trump administration in response to the new rules.

Washington AG Bob Ferguson announced on Sept. 25, 2019, the day before two of the rules are set to come into effect, that his office is filing a lawsuit.

"Today we're filing a lawsuit challenging the Trump administration's rules that undermine the Endangered Species Act, a cornerstone of national conservation law," he said, noting the ESA is critical to the state's efforts "to save species such as the Southern Resident Orca, and several species of salmon, such as Chinook and sockeye. The new rules increase the likelihood that these species will lose their federal protections before they have fully recovered." 

What the new rules mean

The rules will make it more difficult to provide newly listed animals with protections and habitat. 

The USFWS, housed within the Department of the Interior, and NOAA Fisheries, within the Department of Commerce, share responsibility for enforcing the ESA, with USFWS in charge of land-based and freshwater species and NOAA Fisheries managing marine and anadromous species (animals that split time between salt- and freshwater, like salmon).

Historically, any animal that USFWS lists as endangered or threatened is eligible to receive the same blanket protections. Broadly speaking, these protections make it illegal to capture, harm or traffic endangered species, and they impose steep penalties for those who do. This protection extends to species’ critical habitat: Companies or agencies looking to develop or use land — or pursue activities within it that could impair any listed species’ recovery — face a high bar for approval.

But the new rules would prevent animals listed as ‘threatened’ from automatically receiving those protections. Instead, the agency would consider protections for each threatened animal on a case-by-case basis (on the grounds that NOAA Fisheries already uses this more lenient case-by-case system).

In a recent assessment of the new rules provided to Crosscut, WDFW cites NOAA Fisheries’ 2010 threatened listing of the eulachon (also known as the candlefish) as an example of how case-by-case rules can fail animals: NOAA Fisheries elected not to give the fish blanket protections, and nine years later, it’s listed but there’s been no special rule to set up protections.

Hundreds of animals across the country are awaiting evaluation for different levels of federal listing considerations. In Washington state, animals whose petitions haven’t been reviewed yet include the Island Marble Butterfly, proposed for an endangered listing; and the North American Wolverine, fisher and Dolly Varden trout, which are gunning for threatened protection.

Thirteen animals have had their petitions put under federal review, including the grizzly bear (which former DOI secretary Ryan Zinke supported listing as endangered in the North Cascades), the Western pond turtle and the tufted puffin, both already listed as endangered by Washington state.

Animals already listed as threatened or endangered retain blanket protections. But the rule would apply to already-endangered animals if they are downlisted to ‘threatened’ (when an animal is no longer immediately at risk of extinction but warrants some protection). In Washington, the woodland caribou is under review for downlisting.

“There was very good logic to treating the species the same as a general rule and... no reason to make the change other than to provide lower protection to threatened species than endangered ones,” Wildermuth says. “[Blanket protection] saves a ton of agency time [relative to] writing separate rules. For an administration that talks so much about increasing government efficiencies and setting consistent standards, this rule stands out for decreasing efficiency and making it harder to understand what the government wants of the rest of us.”

It could complicate conservation at the state level, too. The Washington Department of Fish and Wildlife, in its recent ESA rule assessment, contends the rule will increase state responsibility and lead to listing delays, in addition to decreasing overall protection. 

The ESA gives WDFW authorization to do some conservation work related to federally listed threatened animals without having to get special permits first, says Penny Becker, WDFW’s wildlife diversity manager and policy lead. Case-by-case protections for threatened species mean states would have to spend time ensuring their work meets species-specific policies.

“We as the states would have to renegotiate to ensure for threatened species that we get authorization every single time for conservation work,” Becker says. “We're going to need permits just like we would for an endangered species."

“Both the western pond turtle and the tufted puffin are species that we currently have on our state list and are very concerned about,” Becker says. “[They] are on the work plan for Fish and Wildlife Service to evaluate in the near future, so certainly [we’re] concerned about what these changes will mean for those species.”

Protections based on forecasts—especially where climate change is involved—may get more difficult to approve. 

Some experts argue that the new rules will make it harder to extend protections to potential future habitat, which means it will be harder to list species whose main threat is climate change.

USFWS and NOAA Fisheries currently consider all possible habitats when designating critical habitat, but under the new rules, they’re only required to look at places where threatened animals already live. Data would have to explicitly show unoccupied areas as “essential” to an animal’s recovery to even be considered, based on current habitat conditions.

“It seems clear that [these rules are] set up to allow the federal government to ignore the threat of climate change and is a blatant attack on science,” says Lee.

That’s dangerous for unlisted animals, as well as long-standing endangered species like southern resident killer whales and salmon that live in warming, acidifying marine waters.

Key to all of this is formalizing the definition of “foreseeable future” — a phrase used to evaluate how quickly an animal or habitat needs protection. There’s no standard for length of time, but there’s now a benchmark for the quality of data used to make designations: Threats and responses to threats must be “likely.” That means forecasts based on climate projections will receive more scrutiny when pitched as support for species listings and critical habitat.

For field biologists David Moskowitz, who helps collect wolverine population data through Cascades Wolverine Project, and Dr. Jocelyn Akins, of Cascades Carnivore, that spells disaster for many animals.

“Allowing a non-scientific interpretation of ‘foreseeable future’ will likely lead to abuses interpreting conservation science and this will likely affect listing decisions for all species,” Akins says. “Scientists have acceptable approaches to model into the future and analyze population trends to assess potential threats to a species. If their results are misinterpreted or ignored at future timelines, critical threat analyses will be ignored.”

Most populations of wolverine are trending upward or at least stable since recovering from over-harvesting and predator control programs, Akins says. But climate change will likely threaten recovery for animals like wolverines, which thrive in snowy alpine conditions.

“Fragmentation and loss of habitat [from development] continues to impact population connectivity and thus viability of their small populations. In addition, climate change will likely have a significant negative impact in the future as snow is lost in the mountains. While snow loss is not now occurring to a degree to currently affect the wolverine's high-mountain habitats, it will in the future as temperatures continue to rise and the winter freezing level rises,” Akins says.

Given that wolverines were passed over once for listing in 2014 based on climate data controversy, animals like them will have an even harder time if they depend on forward-looking climate data for protections.

“The fact that even before these rules were initiated, FWS found a way to not list [wolverines], it is really a problem given the number of other species that are going to have similar issues,” Moskowitz says.

"While the Services state that they will continue to use the 'best available science and evaluate impacts to the species that may result from changing climate within the foreseeable future,' the administration’s determinations about what counts as the ‘best available data’ around climate change has been repeatedly challenged,” Becker adds. “Additionally… [the rules] raise concern that climate change effects, which may not fully be in effect for a few more decades, could be disregarded as not being immediate enough. This could impede efforts to protect species like wolverines, tufted puffin and Western pond turtles from threats that are developing right now."

Economic interests get a seat at the listings table for the first time 

The ESA explicitly defends against considering economic interests in listing decisions, but the new rules would remove the key phrase ensuring USFWS and NOAA Fisheries consider only the best scientific and commercial data, “without reference to possible economic or other impacts of such determination.”

While one group at an agency works on an official listing decision for a species, another would be able to work separately to compile related economic analysis, according to E&E News.

USFWS and NOAA Fisheries claims legislative history clearly defines which data it can consider, regardless of whether it removes this language. But, Becker says, “it could be possible to interpret the regulation as allowing room to weigh in economic interests.”

Streamlined agency consultations could impact already-listed species 

Government agencies that use or regulate areas home to endangered species go through ESA consultations before doing things that may impact those species. The new rules reduce regulations around and speed up consultations, giving agencies more control over how their actions are evaluated.

“[The new rules] very severely reduce the scope of what is being considered to the point that it's effectively eliminated [consultation],” says Robb Krehbiel, Northwest representative for environmental non-profit Defenders of Wildlife. “It puts the burden on agencies and private developers to really assess the full extent of the damage they are going to be doing.

“I can guarantee you consultation is not going to happen during the Trump administration voluntarily — especially when we're looking at things like proposals to expand drilling and mining activities on public lands, and proposals to expand road in Forest Service plans and changes in recreation management,” Krehbiel adds. “This could open a door to a lot more destructive and irresponsible recreation like off-road vehicle use in sensitive areas, or planning for ski resorts in alpine areas wolverines rely on.”

For Defenders, one of the most concerning changes has to do with the “environmental baseline” definition. Federal agencies compare the impacts of proposed activity against baseline conditions in an ecosystem. “Historically that has always been sort of a pre-development baseline, what the ecosystem looked like before we started mucking it up, but now this gives a lot of discretion to the agencies to decide” whether things like dams could be considered part of current ecosystems, Krehbiel says.

“For salmon and orca [in Washington], that means that even if current dam operations are causing massive declines in salmon, the federal dam owner can claim that even small improvements mean the project is “better” for species – never mind that it will still drive species extinct,” Defenders explains on its website.

What it means for state agencies

Some note that weakened wildlife protections at the federal level mean states may have to step up to fill the void, but Washington agencies say they aren’t in a great position to do that.

Between the state’s rapidly increasing population and a series of what it calls “chronic budget shortfalls,” WDFW is uncertain about its ability to support its total workload — the projected gap between its spending needs and available funding sits at about $31 million. That puts extra stress on its conservation projects, especially efforts to prevent species from requiring federal listings in the first place.

“We are definitely hugely resource limited," Becker says. “A big topic of discussion right now is, how do we find the resources and the capacity to fully serve and protect all of the species and ecosystems that we have in our state? And we don't have the resources to do that right now.”

Becker believes the ESA rule changes highlight the importance of proactive conservation: Without guarantees of full-scale federal protections, it’s even more important to do preventative work. “Once a species gets to the federal ESA list, it’s at a place where it’s really difficult for us to turn these things around, and super expensive,” she says.

“Very few species live only in Washington or any single state — nature ignores state boundaries even more than national ones,” Wildermuth says. “For another, the time scales and resources needed here are bigger than just [what we can find in] Washington.  And lastly, the state law on this is in my humble opinion very underdeveloped. If we are serious about keeping other species around in stable or sufficient numbers then we have every right to develop the law much more than we have.”

Two of the rules go into effect Sept. 26, with another activating on Oct. 28. “This could be stayed by a court, in which case the old rules apply until the case is settled,” Wildermuth says.

States like California and Massachusetts have already filed suits against the federal government contesting the rules, and conservation groups and other states are considering action as well.

WDFW notes in its assessment that Congress itself may provide opposition through the Congressional Review Act, which overturns agency regulations.

Public support for the ESA remains strong: An Ohio State University study recently found 83 percent of Americans support it.

“We are in the middle of [a] massive extinction crisis, where biodiversity is threatened at a scale that only happened six times in the history of life on Earth, and the Trump administration's plans here are making it harder — not more efficient — for us to really tend to the biodiversity crisis,” Moskowitz says. “What the Trump administration's doing with the Endangered Species Act just fits in with the policy of basically hiding your head in the sand in terms of dealing with the climate crisis — and that's not going to just affect wolverines or orcas. It's going to affect us as well.”

Update: We added language to clarify that USFWS is housed within the Department of the Interior, while NOAA Fisheries is part of the Department of Commerce; and on Sept. 25, we updated the article to reflect that Washington AG Bob Ferguson decided to also file a lawsuit against the Trump administration on account of the rules. 

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