In September, the Association of Zoos and Aquariums (AZA) submitted the following public comment letter in response to proposed regulatory changes to the Endangered Species Act.
September 24, 2018
United States Fish and Wildlife Service
Department of the Interior
National Marine Fisheries Service/NOAA
Department of Commerce
On behalf of its 232 member organizations, the Association of Zoos and Aquariums (AZA) hereby registers its opposition to the U.S. Fish and Wildlife Service’s (USFWS) and the National Oceanic and Atmospheric Administration’s (NOAA) recent proposed regulatory changes to the Endangered Species Act (ESA) listed above. We believe AZA brings a somewhat unique perspective to this important discussion. We are a partner with our government agencies in species conservation; but we are also a directly, and significantly regulated party.
Founded in 1924, the AZA is a 501(c)3 non-profit organization dedicated to the advancement of zoos and aquariums in the areas of animal care and husbandry, conservation, education, science and recreation. AZA’s 232 accredited zoos and aquariums annually see nearly 200 million visitors, directly contribute over $23 billion to the U.S. economy, and support more than 200,000 jobs. AZA-accredited facilities spent over $220 million last year in support of field conservation efforts in more than 120 countries. Our collaborative efforts with USFWS and NOAA have focused on endangered species rescue, recovery and reintroduction (black-footed ferrets, California condor, Mexican and red wolves, whooping cranes, Ozark hellbenders, Wyoming toad, Eastern indigo snakes, abalone, right whales, vaquita…), multinational species conservation funds, state wildlife grants, wildlife refuges, migratory birds, freshwater fisheries, illegal wildlife trafficking and invasive species.
AZA and its members take the issue of wildlife conservation very seriously and wholeheartedly support the Endangered Species Act, which has prevented hundreds of listed species from going extinct. Simply put, the ESA, which is recognized globally as a model for species preservation, is working. It has prevented the extinction of 99% of the species it protects since its inception, in 1973.
Yet, even landmark legislation is not timeless and it certainly goes without saying, that the ESA can be improved. And it has been improved, continuously, over the more than four decades since its enactment. Those efforts have been rooted in intentions to improve the protections that are afforded to species facing threats of extinction. We do not see that intention in this most recent effort. We know that species recovery works, but as we’ve learned in working with species like California condor and manatee, it takes time, talent and treasure. AZA believes that species recovery needs to be more fully financed, and we applaud recent efforts like the Recovery Challenge Grant Program. We also stand ready to work with the USFWS and NOAA on critical ESA education, confiscation, reintroduction and conservation breeding partnerships. The accredited zoos and aquariums of the AZA are dedicated and purposeful conservation organizations, and we are ready to work alongside our agency partners to save species.
Improving the law and its implementation, and saving species, requires recognition of the challenges inherent in that endeavor. Things like habitat loss, invasive species, wildlife trafficking, climate change, ocean acidification, and human-wildlife conflict are important, complex and interrelated factors. We do not see the recognition of these great challenges in this regulatory proposal, and see no statement or analysis of how these regulatory changes will help address these complex issues.
Improving a law like this also requires the hard work of consensus-building. People of differing perspectives, and of good intention need to be brought together. Recent examples abound: Listing of the greater sage grouse was avoided when leaders at Federal and state levels came together — Republican and Democrat, career and political — to drive the nation’s largest-ever land management planning process. The result was what Nevada Governor Brian Sandoval (a Republican) heralded as “good government” and a conservation strategy that kept the bird off the endangered species list. .
1) The agencies have proposed to revise the procedures for designating critical habitat, establishing policy that they will first evaluate areas currently occupied by the species before considering unoccupied areas. On its face, this sounds almost innocuous, but for some species (and especially those affected by changing climate) currently unoccupied habitats may be their last best chance. The policy should be to identify the habitat that is critical to the species’ survival and recovery, whether it is currently occupied or not.
2) The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” For the first time, the agencies are proposing an interpretation of “foreseeable future” to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable. This is an intentional policy to make it more difficult for the agencies to consider the effects of complex forces like climate change. Putting the agencies under a burden of “probability” will make them increasingly cautious in protecting species, and will encourage an entire new industry of litigation around listing decisions. And it is unclear what, if any, consideration has been given to how this will affect delisting decisions. Will the same probability calculus apply when species are considered for delisting? If so, that process will be slowed as well.
3) USFWS is separately proposing to rescind its blanket rule under section 4(d) of the ESA, which automatically conveyed the same protections for threatened species as for endangered species. Under longstanding practice, the USFWS “default” policy has been to afford the law’s full protections to both endangered and threatened species. However, for threatened species, the agency could, and frequently has put in place a special, species-specific rule under section 4(d) of the ESA — often called a “4(d) rule”. These rules tailor the protections for threatened species, reducing the regulatory restrictions, as appropriate for that species. Under the current proposal, no protections would apply, unless the agency fashions a specific rule enacting them. The ESA is designed to protect and conserve species. The default switch should be set to “protect” versus what is now proposed — “not protect.”
4) Science has always been the bedrock for the ESA listing process. In fact, the law requires that the agency shall consider only the “best available” science in making listing decisions. The proposed regulatory changes fracture this bedrock, allowing the agency to analyze the economic impacts of listing a species, even though the law prohibits the consideration of those effects. Listing a species has always, and appropriately, been treated as a factual diagnosis. The species is endangered, or threatened, or not. Economics, national security, practicability and other factors can be, and are weighed during subsequent decision processes, like critical habitat designation, or federal agency consultation. Doing economic analysis that cannot be considered is nonsensical, places another barrier in the way of species protections, and raises the possibility that the information is being unlawfully considered.
Therefore, AZA stands in opposition to these proposed regulatory changes. Not because we believe the law is perfect. Not because we believe all of these proposed changes are bad. But because we believe that several are damaging, and we need to do a better job at analyzing the inherent challenges of species conservation and building consensus around ideas to improve the law and its implementation.
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