The Interior Department’s changes to the Endangered Species Act are being described as stripping protections from at-risk wildlife, but the actual wording tells a more nuanced story. The real fight is over how much power Washington should have to regulate private property in the name of protecting habitat. —CCD ed.
The most recent revisions to the Endangered Species Act (ESA) almost exclusively address property rights and which entity – state or federal – is responsible for protecting land where threatened and endangered wildlife live. [some emphasis, links added]
The federal government recently narrowed the definition of “harm” in the ESA. Citing the Loper Bright decision, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have rescinded the “regulatory definition of ‘harm'” and returned to the broader term “take.”
This change almost certainly scales back the federal government’s scope in land management, a win for proponents of smaller government.
“This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed,” Interior Secretary Doug Burgum said.
Opponents of the rule change suggest that it removes protections for critical habitat areas. When a species is listed as endangered, federal agencies designate federal and private lands as that species’ “critical habitat”.
If a developer seeks a permit to build on land designated as a critical habitat, the developer must explain how it will limit or mitigate harm to those areas.
According to opponents of the rule change, removing “harm” from the ESA eliminates critical habitat protections. However, even though “harm” isn’t specifically defined in the ESA, the law still protects critical habitats.
The ESA requires all federal agencies to:
“[E]nsure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat which is determined by the Secretary … to be critical…”
The ESA further allows for the federal government to purchase private property specifically “to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species” and bans the “taking” of listed animals by private citizens.
The ESA also clearly defines what “taking” means and expands it beyond the simplified definition of “hunting” to include the following:
“[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
The ESA provides ample protections for our endangered and threatened wildlife and the areas where they are found.
“Harm” was inserted into the ESA in 1975 and defined as:
“[A]n act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation…”
The additional language is redundant and unnecessary to enhance protections provided by the ESA.
In the 11 contiguous Western states and Alaska, about 47 percent of all land is federally owned, with Nevada leading at 80 percent and Washington state coming in last at 28.6 percent.
So, any time ESA changes are made, specifically those addressing property changes, a thorough understanding of the language is crucial.
Removing “harm” in favor of the original text’s reference to “take” makes sense. “Take” returns to the ESA’s initial intent and preserves the small-government model the framers envisioned for the United States.
When redundant language is found in existing laws, it is incumbent upon the leadership of the time to remove those redundancies as quickly as possible, just as has been done with the ESA.
What Americans get in return is a fortified Endangered Species Act that is better positioned to protect our nation’s vanishing wildlife and the habitats where they live.
Read more at PRI
