The Trump administration's proposal to modify the Endangered Species Act (ESA) and remove some blanket protections should have a minimal impact on the oil and gas industry and be more effective at protecting critical habitat of various species, industry representatives said.
Three rules jointly promulgated by the Interior and Commerce departments were unveiled last week and were to be published within days in the Federal Register. Public comments on the proposed rules were to be taken for a 60-day period ending Sept. 24.
The first proposed rule calls for modifying Section 4 of the ESA, specifically, Part 424.11, which covers the listing, delisting or reclassifying species. The proposal calls for striking the phrase "without reference to possible economic or other impacts of such determination," arguing that its removal would "more closely align with the statutory language." In its place, the Interior and Commerce secretaries would be allowed to make ESA determinations "solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species.”
Section 4(d) of the ESA currently allows Interior and Commerce secretaries to extend so-called blanket protections for endangered species to those deemed as threatened. Under the second proposed rule, Parts 17.31 and 17.71 of the section would be changed so that it aligns with the approach taken by the National Marine Fisheries Service (NMFS), a division of Commerce's National Oceanic and Atmospheric Administration.
"NMFS did not adopt regulations that extended most of the prohibitions for endangered species to threatened species as we did," Interior and Commerce said. "Rather, for each species that they list as threatened, NMFS promulgates the appropriate regulations to put in place prohibitions, protections, or restrictions tailored specifically to that species."
The third proposed rule calls for changes to Section 7 of the ESA to improve interagency cooperation between the NMFS and Interior's Fish and Wildlife Service. The rule "will improve and clarify interagency consultation, and make it more efficient and consistent, without compromising conservation of listed species," Interior and Commerce said.
The Independent Petroleum Association of America (IPAA) and Western Energy Alliance (WEA) embraced the proposed changes.
"In the interim, this won't change anything too significantly," IPAA's Samantha McDonald, director of government relations, told NGI on Tuesday. She added that the organization has heard from “various environmental groups that this is a huge overhaul and weakens protections, but I would argue that it doesn't do that at all. Quite frankly, the removal of the blanket 4(d) protections won't change anything for members' perspective in terms of conservation."
McDonald said IPAA members are actively participating in several conservation efforts at the state level, which have helped several species to avoid being listed as threatened or endangered, including the three species of bats in the Northeast, the dune sagebrush lizard and the lesser prairie chicken. "The thought is to do what we can now to incentivize conservation and promote the species that live in those environments," she said.
Eighteen states filed a lawsuit against the Obama administration after it finalized changes to the ESA habitat rules in 2016. McDonald said IPAA members, which depend on a consistent regulatory environment for their long-term planning, were alarmed by the changes.
"The [Obama] administration was able to designate critical habitat based not only on unoccupied areas, but also areas that lacked biological features under the premise of climate change. The ability to do that with the stroke of a pen made long-term planning for our members very difficult and very concerning."
WEA President Kathleen Sgamma echoed that sentiment. "For too long, the ESA has been used as a means of controlling lands in the West rather than actually focusing on species recovery, and hence, the ESA recovery rate is less than 3%.
“By tightening up the procedures for designating critical habitat, the rules will hopefully get away from limiting responsible economic activities on private and public lands that don't even contain the species or even habitat, and back to actually protecting high-value habitat,” she said.
Environmental groups, including the Center for Biological Diversity, voiced opposition to the proposed rules. "These proposals would slam a wrecking ball into the most crucial protections for our most endangered wildlife," said spokesman Brett Hartl.