The Conservation Column
By Pepper Trail

The Endangered Species Act under Assault
The Endangered Species Act (ESA) is America’s strongest wildlife protection law, and has been remarkably successful in preventing the extinction of species. Only one percent of the more
than 1,800 species listed in the United States as endangered or threatened have been declared extinct after receiving the protections of the Act, and many species are on the path to recovery.
The ESA currently protects about 100 U.S. bird species, including the Whooping Crane, Piping Plover, and Northern Spotted Owl. The law prohibits harm to listed species, designates “critical habitat,” and initiates a recovery plan with population goals and specific management activities. The ESA has also served as an important tool for incentivizing large-scale conservation efforts, such as the case with the Greater Sage-Grouse. The ESA has helped numerous bird species recover and be delisted, such as the Brown Pelican, Bald Eagle, and Peregrine Falcon, and has set many other species on the path to recovery.
Today, however, it is under attack, both from the Trump Administration and from Republicans in Congress. Together, these represent the most serious threats to the ESA since it was enacted in 1973.
In July the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service
(NMFS) announced a series of proposed changes which would affect the implementation of three sections of the Endangered Species Act, with significant impacts on the ways threatened and endangered species are managed. This package of proposals represents substantial changes to the ESA’s Section 4 (listing, delisting, critical habitat designations), Section 7 (consultation), and Section 9 (prohibitions for listed species).

Listing Process
One proposed change would impact information provided during the listing decision process. Currently, USFWS and NMFS regulations require that listing determinations be made “solely on the basis of the best available scientific and commercial information regarding a species’ status, without reference to possible economic or other impacts of such determination.” The proposed change would remove the latter phrase of this statement, allowing economic information to be provided during the listing process. USFWS and NMFS say the agencies will not use the economic analyses in listing decisions. They will continue to only consider biological and commercial information in the listing process, since that is still what the law requires. However, injecting cost considerations in the listing process could sap agency resources, make listing decisions more contentious, and delay protections for species that need them.

“Foreseeable Future” Determinations
The agencies also proposed a new interpretation of the term “foreseeable future” in regard to threatened species. Currently the law defines a threatened species as one that “is likely to become an endangered species within the foreseeable future throughout a significant portion of its range.” In recent years, climate change has been used as a factor in listing populations as threatened, including wolverines (Gulo gulo) and Arctic bearded seals (Erignathus barbatus). Climate change projections showed significant impacts to the species’ habitats, but opponents claimed the projections were not reliable enough for ESA determinations. Since many species could be affected by environmental changes, the question of whether or not climate change is considered “the foreseeable future” could impact future listing decisions. The proposed regulations would determine “foreseeable future” on a case-by-case basis based on life history and threat projections.

Critical Habitat Designations
Another change would affect how the agencies designate critical habitat for threatened and endangered species. Critical habitats are areas with physical or biological features that are essential to species conservation, and areas defined as critical habitat may require special protections or management.
One change would require that destruction or adverse modification of critical habitat be considered “as a whole.” Critical habitat is already defined as the areas “essential to the conservation of the species.” If that is the case, loss of any portion could impact the species’ recovery. In practice, USFWS approves alterations to designated critical habitat, but this regulation would explicitly authorize the piecemeal destruction of essential habitat leading to “death by one thousand cuts.”
The regulation would also make it more difficult to designate unoccupied critical habitat, areas where the species does not currently reside but which scientists believe are nonetheless essential to the conservation of the species. These could include intact areas of historic habitat, degraded habitats that are capable of restoration, or other areas that provide important benefits to the species. The proposal — which takes aim at the designation of unoccupied habitat for the dusky gopher frog (which the Supreme Court will consider in October) — would do nothing to conserve species and could in fact confine numerous species, like the frog, that lack sufficient occupied habitat to extinction.

Threatened Species Regulations
The administration is also proposing to eliminate a longstanding rule that automatically applies the same protections to threatened species as endangered species, unless the Fish and Wildlife Service develops a species-specific rule under Section 4(d) of the Act. USFWS says this proposed change would make policies and enforcement more consistent between agencies. NMFS does not use a blanket 4(d) rule when managing marine species. The change would not affect species that have already been listed, but in the future all threatened species would have species-specific rules, similar to existing “special rules.”
However, eliminating the “blanket 4(d) rule” changes the default from full protection to no protection. With limited funding and constant political pressure not to regulate, the Service will have a harder time ensuring the conservation of threatened species.
Instead of weakening protections, the administration should provide more resources for species recovery, including for habitat conservation, and deploy these measures as early as possible. By the time many species are listed, their populations have fallen dramatically, making it much more difficult to maintain and increase their numbers. The most effective species conservation strategy is to prevent the conditions that lead to the need for ESA protections by funding and supporting proactive conservation. While there are opportunities to simplify implementation practices that could result in better and faster conservation outcomes, too many of these proposals would only put birds at greater risk.
The Endangered Species Act is a lifeline for birds, and is far too important to allow its vital protections to be chipped away. We are working to ensure it continues to provide science-based decision-making, incentives for collaboration on proactive conservation, and robust protections for imperiled species and the places they need to survive.

These proposed rules were published in the Federal Register on July 25 as three related entries about interagency cooperation, listing species and designating critical habitat and prohibitions for threatened species. The public comment periods end on Sept. 24.
To comment on these changes, go to the three related entries:
I encourage making comments at each site. Comments do not have to be detailed, but should stress your support of a strong ESA and your opposition to these proposals, which will reduce the protections for our most vulnerable wildlife. Remember, unlike legislative proposals, these administrative rule changes could be enacted through the regular departmental regulatory procedure without Congressional action.

Additional ESA Proposals in Congress
Meanwhile, there are a large number of Congressional proposals to weaken the ESA. Sen. John Barrasso, R-Wyoming, has released a draft bill, the Endangered Species Act Amendment of 2018, based in large part on recommendations from the Western Governors Association. On July 12, the Congressional Western Caucus also released a series of nine bills to amend the ESA that focus on
“streamlining” the listings and delisting process, providing for more state involvement and codifying existing voluntary private lands conservation programs into law. All these bills would need to pass both houses and the conference process before becoming law, and therefore there will be many opportunities through the political process to defend a strong ESA. Stay tuned!

Changes Coming to Ashland Pond (stop me if you’ve heard this before…).
RVAS members with long memories will recall a flurry of activity in 2014 about possible changes to Ashland Pond. This beloved birding spot is located a few hundred yards downstream from the Ashland wastewater treatment plant, near the confluence of Ashland and Bear Creeks. For years, the city of Ashland has worked on a solution to the problem that the wastewater it releases into Ashland Creek exceeds DEQ temperature standards for fish-bearing streams. Some of the proposals for re-routing the water outfall involved draining Ashland Pond, or turning it into a marshy wetland. Ultimately those plans were shelved, and there seems to have been little activity in the past four years.
Well, things are gearing up again. Following up on a brief story in the Daily Tidings, I met with Ashland Public Works Director Paula Brown to find out what’s being proposed. The plan as it stands now includes piping the water from the treatment plant around the south and west sides of Ashland Pond (that is, the town side and the far end of the pond) and releasing it into Bear Creek below the confluence with Ashland Creek. Paula said some small trees may need to be removed, but none of the large conifers. She said that the pond will likely need to be drained during construction (probably in the summer), but will then be re-filled.
There will be a public meeting about the plans in October. The date hasn’t yet been set, but I will send out an alert when I find out – or interested RVAS members can periodically check the City of Ashland website (, where meetings are posted. It will be important to provide input about the need to preserve this relatively wild bit of habitat, and its importance to birders.