Interior announces improvements to the Endangered Species Act

Changes come in response to petitions brought by Pacific Legal Foundation

Washington, D.C.; August 12, 2019: Today the Department of the Interior announced changes that will improve the way the Endangered Species Act is applied — changes that will benefit property owners and species. Interior’s new rules terminate an illegal and counterproductive rule that complicated the recovery of endangered species, change the way that critical habitat designations are reviewed, and improve inter-agency permitting consultations.

Blanket section 4(d) rule

Interior announced the repeal of the so-called blanket section 4(d) rule, which ignored the different needs of listed species and failed to encourage efforts to recover species.

“This is the most significant gain for property rights under the Endangered Species Act in decades,” said Jonathan Wood, a senior attorney at Pacific Legal Foundation, research fellow at Property and Environment Research Center, and author of The Road to Recovery: How restoring the Endangered Species Act’s two-step process can prevent extinction and promote recovery. “The previous rule treated critically endangered species the same as those facing only remote risks. Because an endangered species’ recovery meant no change in regulation, the rule undermined property rights and denied property owners any reward for helping that recovery. Species paid the price, with a recovery rate less than three percent.

“The new rule aligns the incentives of landowners with the interests of species. This promises to significantly boost the rate at which we recover endangered species, because the primary challenge for recovering species is protecting and restoring habitat on private lands.”

The elimination of the blanket section 4(d) rule was prompted by two petitions that PLF filed asking Interior and the Fish and Wildlife Service to rescind the regulation. Interior proposed the new rule in April 2018, and PLF submitted a comment letter encouraging its adoption.

More information about the blanket section 4(d) rule is available at pacificlegal.org.

Critical habitat designations

The Department of the Interior also announced changes in the way that critical habitat designations are made. All currently occupied habitat must be designated as critical habitat before unoccupied habitat can be considered for designation. Any unoccupied habitat must also meet at least one of the biological needs of the endangered species. Additionally, property owners can express interest in having their property set aside for conservation efforts.

In 2018, PLF represented a Louisiana property owner in Weyerhaeuser v. U.S. Fish and Wildlife Service. In that case, the U.S. Supreme Court found that FWS regulators overstepped their authority when they declared 1,500 acres of land to be a critical habitat for a frog that couldn’t survive there. This change is in direct response to the Supreme Court’s ruling in Weyerhaeuser.