A new pair of regulatory changes that will substantially weaken Endangered Species Act protections is prompting concern for conservationists in Central Florida.
It comes right on the heels of the Department of the Interior’s July 10 announcement of another big regulatory change also affecting the ESA. That earlier rule change redefines the meaning of the word “harm,” to exclude harm to habitat for plant and animal species protected under the ESA.
Now, the latest set of changes announced Friday are set to further weaken the 53-year-old law’s protections for vulnerable species. In Central Florida, the changes spell trouble for species like manatees, according to environmentalists.
Eliminating the ‘blanket rule’
Both newly-announced changes have to do with Section 4 of the ESA, which addresses how federal agencies determine which plant and animal species to list, or protect, under the law. Those protected species get listed, or classified, as either threatened or endangered, depending on how imminently they are facing extinction. Endangered is the more severe designation.
The first change announced Friday will eliminate what’s known as the ESA’s “blanket rule,” which automatically provides certain protections for species newly designated as threatened.
The blanket rule protects threatened species from “take,” which means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” Effectively, that prohibition of “take” is “the meat of the ESA,” according to Elizabeth Neville, director of environmental law and policy for Save the Manatee Club, a nonprofit advocacy group based in Longwood.
“It's a bit of a common-sense mechanism in efficiency for the agency: that, if a species is threatened with extinction, the baseline prohibition should be prohibition against take,” Neville said. “Those are the common-sense protections to prevent an already imperiled species from declining further.”
Now, though, that protection against “take” is poised to disappear for species newly designated as threatened.
Critical habitat costs
The other new change will require federal agencies to consider economic and national security interests when designating critical habitat for a protected species. It allows for areas to be excluded from the critical habitat designation “if that exclusion will not cause the extinction of the species,” according to the Interior Department.
Neville considers all three of recently announced changes to be concerning. But the critical habitat revision in particular stands out to her, she said, as “flagrantly illegal.”
“It makes critical habitat really vulnerable to economic considerations, when the statute requires the best available science,” Neville said. “It's going to put a weight on the scale in favor of economic interests over conservation.”
If it’s determined that the economic costs of designating critical habitat in a certain area outweigh the benefits of doing so, agencies will be required to exclude those areas from the critical habitat designation.
Neville said she’s worried the critical habitat revision could lead to the loss of warm water or forage habitat that manatees depend on to survive. And in the long run, she said, the cost of losing critical manatee habitat could be huge.
“Keystone species like manatees provide incredible ecosystem services,” Neville said. “And it's really amazing the millions and millions of tourism dollars that manatees alone bring into the state.”
‘Murky territory’ for Florida manatees
The pending rule changes will “advance President Donald J. Trump’s directives to strengthen American energy independence, improve regulatory predictability, and ensure federal actions align with the best reading of the law,” according to the Interior Department.
Critics say the changes are the latest in a slew of attempts to undermine the ESA, including the administration’s unprecedented move earlier this year to exempt from the law all offshore oil-and-gas drilling activities in Gulf waters.
Proposed legislation to overhaul the law itself remains in limbo. It was pulled from the House floor earlier this year, following widespread outcry from the public and lawmakers on both sides of the aisle.
Changing the ESA law itself would be more difficult — and permanent — than the pending rule changes. Still, environmentalists are concerned.
For manatees specifically, the risks are especially layered and concerning, Neville said — because, according to many marine mammal experts, the species’ “threatened” designation in itself is incorrect.
“Just zooming out, there are these two buckets: endangered and threatened,” Neville said. “And we feel strongly that manatees are presently not in the correct bucket to begin with.”
Last year, federal agencies decided not to upgrade manatees’ current, threatened status. Instead, the U.S. Fish and Wildlife Service proposed different designations for the West Indian manatee’s two subspecies: endangered, for the Antillean manatee, which calls Caribbean waters home, and threatened, for the Florida manatee.
Once eliminated, the ESA’s blanket rule protections will no longer apply for species designated as threatened moving forward. In the case of manatees, since they are already considered threatened, the change wouldn’t appear to immediately apply.
But because of the agency’s pending proposal last year to split up the species into two, Neville said, manatees’ future under the new rules appears far more uncertain.
“It’s going to come down to how the agency interprets Florida manatees: as whether they're a new threatened species or [not],” Neville said. “I would characterize the situation as very uncertain and very unconcerning … We’re in very murky territory.”
All three of the recently-announced changes affecting the ESA will likely become effective in the coming weeks. An unpublished version of the rule eliminating the ESA’s blanket rule indicates it will take effect in late August. Meanwhile, the rule redefining “harm” to exclude harm to habitat takes effect Sept. 14.
