Ag Policy Blog

Senators Push for Withdraw of Endangered Species Act Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A group of U.S. Senate leaders have asked the U.S. Fish and Wildlife Service and National Marine Fisheries Service to withdraw a rule that would allow the federal government to more easily designate land and water as critical habitat through the Endangered Species Act, in a letter to the U.S. Department of the Interior and the U.S. Department of Commerce Wednesday.

"As ranking members of the Senate committees and subcommittees with jurisdiction over the ESA, we are concerned that the proposals provide the FWS and the NMFS with an unprecedented ability to designate vast swaths of land and bodies of water as critical habitat with limited justification and without stakeholder input," the letter said. The letter is signed by Sens. David Vitter, R-La., ranking member of the Senate Committee on Environment and Public Works; John Thune, R-S.D., ranking member of the Senate Commerce Committee; John Boozman, R-Ark., ranking member of the subcommittee on Water and Wildlife; and Marco Rubio, R-Fla., ranking member of the subcommittee on oceans, atmosphere, fisheries and Coast Guard.

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The senators said the latest rule is a "troubling trend" of expanding the act beyond its "lawful scope."

"In 2011, the FWS reached a secret sue-and-settle agreement with two radical environmental groups to require listing determinations on more than 250 species across the entire United States," the letter said. "In August 2013, the services moved forward with a rule to severely limit economic analyses required under the ESA. These alarming actions are transforming the act into less of a statute designed to protect species, and more of a statute that controls and encroaches upon land and private property and limits the productive use of that land."

The senators say the new rule allows the federal government to claim authority to designate unoccupied areas as critical habitat, even if those areas already designated as critical habitat are "sufficient to provide for the conservation" of a species. In addition, the senators say they oppose the rule because the federal government can claim the authority to designate unoccupied areas as critical habitat even if those areas don't have the physical and biological features needed to conserve a species.

"These assertions are an overreach not supported by the plain text of the ESA," the senators said. "The services' draft policy on exclusions should serve as a warning to states with significant federal lands. By issuing a policy that focuses on the 'benefits' of including federal lands as critical habitat, the services virtually guarantee that more federal lands will be included in critical habitat designations.

"This could severely impact both renewable and traditional energy production on federal lands, at a time when our country needs to enhance its energy resources and the opportunities that these resources provide...These proposed rulemakings and the draft policy were released without any significant congressional consultation. Moreover, if the FWS and the NMFS proceed, these changes will be used to ultimately lock up more federal and private lands from any productive and beneficial use."

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