WASHINGTON - U.S. Senate Western Caucus members Jim Risch and Mike Crapo (both R-Idaho) joined Senate Western Caucus Chair Cynthia Lummis (R-Wyoming) and Congressional Western Caucus Chair Dan Newhouse (R-Washington) in introducing legislation to prevent the U.S. Departments of the Interior and Commerce from finalizing three rule proposals and to retain the Trump-era regulations within the Endangered Species Act (ESA). The legislation will preserve legal clarity to landowners and businesses out West while also ensuring that the ESA effectively manages wildlife.

“The Biden administration is abusing the Endangered Species Act to institute burdensome regulations that put Idaho’s farming, ranching, mining, and other land management projects in the crosshairs,” said Risch. “With Senator Lummis, I am introducing legislation to protect wildlife and critical projects in the West from these heavy handed changes and, instead, keep a tailored, commonsense approach to species recovery.”

“Wildlife species should be protected and recovered when possible, but the ESA as written has had very limited success,” said Crapo. “The Biden Administration’s rollback of 2019 reforms will only create more red tape and burdensome regulations that will hinder recovery and conservation efforts. Idaho’s farmers, ranchers and conservationists need more support--not additional regulatory cudgels–to make on-the-ground decisions most successful at proper wildlife management practices.”

Additional cosponsors of the Senate legislation include U.S. Senators John Barrasso (R-Wyo.), Dan Sullivan (R-Alaska), Roger Marshall (R-Kan.), Roger Wicker (R-Miss.), Pete Ricketts (R-Neb.), Deb Fischer (R-Neb.), Kevin Cramer (R-N.D.), Steve Daines (R-Mont.), Jerry Moran (R-Kan.), John Hoeven (R-N.D.), Mike Rounds (R-S.D.) and Ted Cruz (R-Texas). 

Background:

In 2019, The Trump Administration finalized key changes to the Endangered Species Act that added more flexibility for affected stakeholders while also ensuring species’ recovery plans take a tailored and targeted approach. Last month, the Biden Administration moved to repeal and replace these changes, which are detailed below.

Blanket Rule Elimination

• The 2019 revisions eliminated the “blanket rule” under Section 4(d) that automatically provides endangered level protections to species listed only as threatened. 
• Now, U.S. Fish and Wildlife Services (FWS) and the National Oceanic and Atmospheric Administration (NOAA) are required to manage threatened species with specifically tailored plans, leading to less flexibility for landowners and stakeholders. 
• The Biden proposal would reinstate the blanket rule, essentially treating all threatened species as endangered once again. 

Critical Habitat Changes

• The 2019 revisions allow FWS and NOAA to research and share the economic impacts of a listing determination under the ESA. 
• It also provides flexibility in defining critical habitat, allowing the agencies leeway to only designate unoccupied areas as critical habitat if necessary. 
• Under the Biden proposal, the agencies are no longer able to share or disseminate information on the economic impact of a listing.
• More alarmingly, the proposal mandates the agencies must again designate unoccupied areas as critical habitat. 

Section 7 Changes

• Among the numerous changes to Section 7, the rule established standards to ensure effects analysis for proposed actions is limited to only “activities that are reasonably certain to occur.”
• This takes away the leeway for agencies to assume worst case scenarios for a species without “clear and substantial information” and is intended to provide a more realistic and flexible approach to benefitting a listed species. 
• The Biden rule would eliminate this clarification. 

On August 1, 2023, Risch and Crapo signed a letter to the FWS and NOAA asking for a comment period extension for the three rules that would roll back the Trump Administration’s ESA reforms.

On May 11, 2023, the United States Senate passed a Congressional Review Act (CRA) resolution supported by Risch and Crapo would overturn the Biden Administration’s ESA rule related to critical habitat. The CRA awaits consideration in the U.S. House of Representatives.

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