Three Kansas Republicans in Congress want the U.S. Fish and Wildlife Service to extend by 90 days the public comment period on a proposal to list the lesser prairie chicken under the Endangered Species Act. (Greg Kramos/USFWS)
So could the rusty patched bumblebee, a black-headed pollinator that at one time ranged from Georgia to Maine and across the Midwest.
The Biden administration is rewriting how it protects endangered species — making significant shifts in regulations that could affect how habitat is kept safe for these and other imperiled birds, fish, insects, mammals and plants across the United States.
Biden administration officials announced this month that they would revisit five key regulations in the Endangered Species Act. In doing so, they will overturn changes the Trump administration had made to narrow the scope of the law and make it easier to approve development.
The revamped regulations could give stronger protection to some 2,700 species protected under the act. There are dozens of candidates in some states — 72 in Arizona, 24 in Louisiana, 134 in Florida, 26 in Michigan, 24 in Maryland.
Among those that could benefit are birds like the lesser prairie chicken, which has declined 97% in the past century, largely due to habitat loss and fragmentation, some of which came from oil and gas development.
The Fish and Wildlife Service last month proposed listing it as threatened in Colorado and Kansas and endangered in New Mexico, Oklahoma and Texas.
Then there’s the rusty patched bumblebee. It received endangered status in 2017, due to habitat loss, climate change and threat from pesticides.
But the government did not protect any critical habitat for the bee, a decision environmentalists sued to try to reverse.
Years of battles
The Biden administration’s regulatory reversals are the latest in years of tug-of-war between Democratic and Republican administrations over how to implement the Endangered Species Act, passed by Congress in 1973.
Environmentalists hail the landmark law as one of their most powerful tools and credit it for rescuing the American crocodile, gray wolf and bald eagle. Republicans have criticized it for becoming mired in lawsuits and land restrictions, while relatively few species graduate off the list.
Over the years, members of Congress have made several failed attempts to rewrite the act.
However, the Trump team was able to make significant changes to how it implemented the act through regulations that required no approval from Congress.
“The Trump administration changes significantly weakened the act, way beyond what was done in the past. They really moved away from Congress’ original intent of the law to protect any and all imperiled wildlife, animals or plants,” said Jacob Malcolm, director of the Center for Conservation Innovation at Defenders of Wildlife, a nonprofit that aims to find creative solutions to save species through research and policy.
Malcolm, a former Fish and Wildlife Service biologist, applauded the Biden team’s decision to reverse those moves and said it could potentially put species protection back on track.
The Trump administration sought to “ease the regulatory burden” of the Endangered Species Act. Its changes narrowed habitat protections, reducing both the timeline and area that could be considered for critical habitat.
They also got rid of some automatic protections for “threatened” species, the classification one step below “endangered.”
According to the Fish and Wildlife Service, endangered means a species is in danger of extinction through all or a significant part of its range, while threatened means a species is likely to become endangered sometime in the foreseeable future.
The Biden administration said it would reinstate a regulation that gives any threatened species, like the lesser prairie-chicken, default protection unless the agency writes a specific plan for the species.
The Biden team also plans to reverse Trump-era rules that allow regulators to consider economic assessments when deciding whether to protect habitat — like calculating potential lost revenue. Previously, the law required regulators to make the decision solely based on science.
For some industries, the Trump administration’s rewrite was a welcome change.
For instance, the National Association of Home Builders says some Trump rules improved timelines on consultations, which can take 18 months or longer and slow down their projects.
“Returning to an inefficient ESA permitting process will not only raise the cost of housing, but will also delay countless other infrastructure projects that require either a federal permit or use federal funds,” said Michael Mittelholzer, NAHB’s assistant vice president of environmental policy.
Many Western Republicans also favored the Trump rules. Idaho Governor Brad Little said the Biden team’s reversal is a “major disappointment.”
“It only serves to reinstate unnecessary regulatory burdens on the states and local communities that are most critical to the ESA’s success,” Little said in a statement.
White House directive
The turnaround on endangered species decision followed a directive from the White House for all federal agencies to reconsider Trump-era rules that run counter to Biden’s objectives like addressing climate change.
Fish and Wildlife Service Principal Deputy Director Martha Williams said in a statement that her agency would work with partners to make sure the regulations recover wildlife and help “meet 21st century challenges” like climate change.
Williams said listing decisions would be made “without reference to possible economic or other impacts.” She also promised to throw out regulations that limited the scope of habitat protections and reinstate protections for plants and animals listed as “threatened species.”
The acting administrator of the National Marine Fisheries Service, which oversees protections for the 165 endangered and threatened marine species, also promised to revisit the agency’s regulations.
A push to do more
While environmental groups applauded the changes, some say that the Biden administration needs to go farther to protect plants and animals from climate change and other threats.
“I am really glad they are going to rescind and revisit these disastrous rules, but they’ve got their work cut out for them with dozens of other decisions that really leave imperiled species at risk of extinction,” said Noah Greenwald, endangered species director for the Center for Biological Diversity, a nonprofit that files lawsuits and scientific petitions to try to compel the government to protect species.
For instance, his group recently threatened to sue the Fish and Wildlife Service to protect 21 different species that the Trump administration had decided not to list. Greenwald says the agency drastically underestimated the threat climate change poses to the species.
But the agency said in a letter last month that the species had been properly evaluated and did not merit protection.
The list of species includes Florida’s Cedar Key Mole Skink, a small lizard that makes its home in the beach wrack that washes up during high tide. The group says the skink is threatened by sea-level rise, but the Trump administration only looked 30 years in the future to make its decision not to protect the lizard.
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