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Paul Simmons

Paul Simmons, KWUA attorney, director

Recent headlines and social media posts declared that the Trump Administration weakened the Endangered Species Act (ESA) last Monday. Accompanying articles adhered to the talking points of groups insisting that the ESA had been “gutted.”

The reality?

The ESA has not changed. Only Congress can change a federal statute. All 2,200+ species listed as threatened or endangered under the ESA are still listed. Environmental groups can still file lawsuits alleging ESA violations, and recover their attorneys’ fees as they go.

Why the commotion?

Executive Branch agencies must develop regulations to implement statutes written by Congress.

Last week, federal wildlife agencies amended some regulations that were initially adopted more than 30 years ago. The amendments followed a year-long public process and honor the constraints of the statute.

Although more fundamental ESA reform is needed, last week’s action yielded modest and common-sense improvements to implementation of an imperfect law. New efficiencies, clarity, and transparency will serve the purposes of the ESA and the public interest.

The former ESA regulations offered a badly muddled definition used in determining the “effects” of federal agency actions on species.

The wildlife agencies have simplified the definition to say what is intended — in plain English, and as courts have interpreted the law.

Another important clarification concerns the term “environmental baseline,” recognizing, as courts have recognized, that the ESA does not require agencies to violate longstanding legal duties.

Economics vs biology

The strongest reaction to last week’s announcement concerns the ESA’s economic impacts. The ESA does not say whether or not wildlife agencies can decline to list a species as threatened or endangered in order to prevent economic or social harm, but courts have ruled that those real-world impacts cannot factor into a listing decision: only the biology matters. That requirement has not changed, period.

In the meantime, the ESA requires that economic impacts do factor into whether an area should be designated as “critical habitat” for listed species, a status that carries extra regulatory protection. But environmental advocates have successfully argued that it is the listing of the species as threatened or endangered, not the designation of critical habitat, that causes economic impacts. As a result, the economic impacts of agency decisions are not disclosed.

The amended rule affords increased transparency and 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. There is no reason, at least no good reason, to fear candid disclosure of facts about the ESA’s negative impacts.

Water for fish, but not waterfowl

In the Klamath Project, ESA implementation has disrupted family farm and ranch operations and the local communities.

Klamath Water Users Association’s objections to the ESA do not relate to the fact that three aquatic species in the Klamath Basin are listed as threatened or endangered. Instead, defects in the implementation of the ESA are the problem.

Klamath Project water supply is regulated because there is a “federal nexus” here and there is a handle that has been easy to turn, cutting off water to farms and ranches and increase water for listed species. Over a decade ago, in its report on Klamath fisheries, the National Academy of Sciences explained that “more water means more fish” is a false paradigm. Yet that paradigm continues.

Similarly, the myopic single-species focus of the ESA continues. As a result, and due to ESA implementation, Lower Klamath National Wildlife Refuge will likely receive little or no water during the critical period for waterfowl migration this year, despite the good snowpack and precipitation we received last winter and spring.

KWUA, and the agricultural community, support responsible resources stewardship and species recovery. It’s not good stewardship when the ESA requires agencies to prepare recovery plans but does not require implementation of recovery plans or effective recovery actions. Instead, agencies resort to relentless regulation, which has produced no fisheries benefits in the Klamath Basin.

The Klamath Project is ground zero for the unnecessary impacts to people and communities resulting from poor ESA implementation.

KWUA will resist impacts of ill-advised regulatory mandates, and will work constructively with other parties to recover species. In the meantime, there is comfort in knowing that our government has not abandoned common sense altogether.

— Paul Simmons is the Executive Director and Counsel for the Klamath Water Users Association.