Commentary by, Dan Keppen, Family Farm Alliance

Regulations for this four decades-old law are being updated to better allow federal agencies to accomplish what the Act was intended to do: Recover species.

As you have likely heard, the Interior Department’s U.S. Fish and Wildlife Service (USFWS) and the Commerce Department’s National Marine Fisheries Service (NMFS) - referred to here as "the Services" - jointly announced three final rules which make revisions to regulations governing sections 4 and 7 of the Endangered Species Act (ESA). The Interior Secretary's press office also included a quote from industry groups– including the Family Farm Alliance - supporting the Services’ efforts, in this press statement.

The three rules were published in the Federal Register last week, taking effect during the week of October 14, 2019.

The federal government’s significant presence in the West presents unique challenges for farmers and ranchers. This is particularly true with respect to the reach of the ESA. Implementation of the ESA impacts the management of land and water throughout the West. For example, federal water supplies that were originally developed by the Bureau of Reclamation (Reclamation) primarily to support new irrigation projects have, in recent years, been targeted and redirected to other uses. The result is that these once-certain water supplies – one of the few certainties in Western irrigated agriculture – have now been added to the long list of existing uncertainties. Farmers, ranchers, and rural communities from the California’s Central Valley, to the Columbia River Basin, to the Klamath Basin, to the Deschutes River (OREGON) have been impacted by these decisions.

Already, a flurry of misinformation and "sky is falling" rhetoric has engulfed this important development, driven by certain environmental groups and their allies in urban media outlets. Critics of these rules – days before they were even released – predictably claimed that the Trump administration was systematically dismantling this landmark legislation through policies and this set of proposed regulations.

The strongest reaction to this week’s announcement concerns the ESA’s economic impacts. The new regulation allows the disclosure of negative economic impacts of listing decisions, without changing the rules that dictate whether and how these impacts are considered in the regulatory process.

So - what's the problem? While listing decisions must be made based “solely on the basis of the best scientific and commercial data available,” the ESA itself does not prohibit the presentation of information on economic and other impacts to the public. We believe this is a positive change.

The Trump Administration’s efforts to modernize implementation of this 1973 federal law is not going to subject noble creatures like grizzly bears, sea otters and beluga whales to the rapacious activities of developers, agribusinesses and industrial corporations. Instead, the Services are simply updating implementation of the ESA to make it more clear and consistent and to better work to address the conservation challenges of the 21st century. These rules changes are being finalized following a transparent public process, resulting in regulations that are clear and will be effective in advancing the goal of recovery for species.

The Family Farm Alliance was one of a multitude of interests – including members of Congress, state, local and tribal governments and the public – who provided comments and input that were considered in the finalization of these regulations. You can see our September 2018 comments here. This letter was developed by a team of resources, law, and policy experts familiar with Western water resource management and how this important function is impacted by implementation of federal laws and regulations.

Much of the recent media coverage has led with headlines touting how the Trump Administration was “weakening” the ESA, quoting long-time critics of efforts to modernize the Act. Some of the same organizations bashing the new rules have an established track record for their consistent efforts to thwart the efforts of developers, farmers, ranchers and government agencies. They have done this through petitions to list more species to the ESA, create new ESA critical habitat for other plants and animals, and engage in a seemingly endless string of litigation aimed primarily at the agencies who regulate resource producers.

To potential donors and a sympathetic mainstream media, the litigious environmental community’s characterizations of an earth teetering on the brink of ecological collapse and the activist organizations’ aggressive courtroom actions are well-received. However, often times, there are hard-working family farmers and ranchers on the receiving end of these actions.

To be clear, not all environmental organizations should be lumped into the same category as the much smaller number of radical activist groups that rely on litigation to drive their agenda. The Alliance has a proven track record of working with a growing number of constructive conservation organizations who want to collaborate and find mutually beneficial ways to improve the environment, protect Western irrigated agriculture, and keep farmers and ranchers in business.

With that said, we thought it might be helpful to provide a different perspective on the new ESA regulations from our organization, which represents Western farmers and ranchers. Many of these family operations have been negatively impacted by agency implementation and litigation driven by the federal ESA. You can click on to the highlighted sections below for "the rest of the story" to see what the proposed regulations really do:

ESA Section 4: Determination of endangered species and threatened species

Click here to see why the Services are rescinding the Blanket 4(d) Rule.
Click here to learn about the definition of “Foreseeable Future”.
Click here to how the Services clarify that the Standard for Listing and Delisting are the same.
Click here to learn more about “Occupied” versus “Unoccupied” Critical Habitat rules.

ESA Section 7: Interagency Cooperation

Click here to see how the regulations address federal consultation.
Click here to see how the regulations treat minimizing/offsetting adverse effects and clarify the information needed for consultations.
Click here for the definitions of “Destruction or Adverse Modification”, “Effects of the Action”, and “Environmental Baseline”.
Click here for how the regulations will treat programmatic consultations, deadlines for informal consultations, and reinitiation of consultation.

We hope this information provides you with a better sense of how we view what the Trump Administration is actually proposing.

Dan Keppen from Klamath Falls is executive director of the Family Farm Alliance, a non-profit organization that advocates for irrigated agriculture in 17 Western states, including Oregon and the Klamath Basin.

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