Changes to ESA Implementation Signal Trouble for Cattle Producers from the National Cattlemen’s Beef Association Since President Biden took office, some of the administration’s top targets for rollback and reform have been the Endangered Species Act (ESA) regulations that were finalized under the Trump administration. Recently, a series of final rules, proposed rulemakings and court decisions have all pointed to a strategy of expanding federal control over land management decisions by expanding the federal footprint over species management — while restricting the flexibility that producers know is necessary for durable conservation work. “Some of the recent actions that the administration has taken to expand their regulatory reach under the ESA were expected. We expected the Biden administration, for example, to attempt to expand the scope of what counts as potential habitat,” said Sigrid Johannes, National Cattlemen’s Beef Association (NCBA) and Public Lands Council (PLC) associate director of government affairs and federal lands. “However, some of these changes were unexpected. Actions like the immediate vacatur of three rules, essentially wiping them from the books overnight, create regulatory whiplash that is harmful for cattle producers and harmful to the wildlife they provide habitat for. Overreach under the ESA burdens producers and landowners, often without added benefit for endangered species.” In July, a federal judge in the Northern District of
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California remanded and vacated three ESA rules finalized during the Trump administration. That decision brought the return of the “blanket 4(d)” rule, which extends the same protections against take to both threatened and endangered species. The court decision also removed the requirement for the Fish and Wildlife Services (FWS) to consider the economic impact of species listings or critical habitat designations. Finally, the ruling ended alternative consultation methods that had provided a variety of ways for federal agencies to consult with FWS or the National Marine Fisheries Service before taking action that could impact a listed species. The alternative consultation methods also included deadlines to encourage a more efficient process and provide greater certainty for both regulators and impacted producers, landowners and communities. Earlier in June, the Biden administration repealed the Trump-era definition of “habitat.” This poses a problem for several reasons: the 2019 definition of habitat was formulated to bring FWS into compliance with the Supreme Court’s decision in Weyerhaeuser Co. v. U.S. FWS. The court said that to be designated as critical habitat, an area of land must first be habitat for the species — not if conditions were changed, not at some hypothetical ...CONTINUED ON PAGE 24