The 118th Congress: Playing Politics with Extinction

This amendment would undermine the ESA and the Marine Mammal Protection Act (MMPA) – and subvert the agency rulemaking process – by prohibiting funds from finalizing, implementing, or enforcing any amendments, updates, modifications, or replacements of the North Atlantic right whale vessel strike reduction rule until section 11303(e) of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 is fully implemented. Section 11303(e) requires the Under Secretary of Commerce for Oceans and Atmosphere, in consultation with the Secretaries of Commerce, Defense, Transportation, and Interior, to develop and deploy mitigation protocols that make use of any monitoring system designed and deployed under a near real-time monitoring and mitigation program for large cetaceans established elsewhere under that section. The protocols would be used to direct sector-specific mitigation measures that avoid and significantly reduce risk of serious injury and mortality to North Atlantic right whales.

An effective real-time monitoring system is years away from being developed – at best – and even if deployed, would not be sufficient to effectively protect this critically endangered species in lieu of a vessel speed rule. See the discussion provided regarding H.R. 4323.

This amendment combined elements and language that emerged later in the year in several other legislative proposals.  See the discussion regarding the text in H.R. 5893, the House Commerce, Justice, Science (CJS) appropriations bill S. 1833, and H.R. 4323 which similarly prohibit NOAA from amending the North Atlantic vessel strike reduction rule until NOAA has fulfilled the requirements of section 11303(e) as well as separate language in the House CJS bill (and elsewhere) that prevents funds from being spent on enforcing the new vessel strike reduction rule.
 

The American Sovereignty and Species Protection Act would prohibit the Secretary of the Interior or Commerce from listing species that are not native to the United States, drastically undermining the ESA’s commitment to the conservation of imperiled species around the world. Listing foreign species under the ESA provides important protections that are vital to international conservation, including protections against their commercial exploitation through trade and prohibitions on taking them in the United States or on the high seas. Listing foreign species also triggers the authority provided in section 8 of the ESA for the United States to provide financial assistance to foreign countries for development and management of conservation programs. Prohibiting the listing of foreign species would tie the United States’ hands in international conservation.

Without the protections offered by an ESA listing, foreign species on the brink of extinction could be hunted and killed overseas and then imported as trophies, and live specimens could be imported into the U.S. for breeding. Roadside zoos and captive hunting ranches could mistreat, breed, and commercialize these species without oversight and without regard for their welfare and genetic health. This bill would incentivize wildlife trafficking around the world, including by organized criminal and terrorist groups, and could greatly expand the trade both domestically and globally in both living and dead imperiled species. The federal government would lose a valuable tool in promoting conservation of imperiled species abroad.

In addition to undercutting the United States’ ability to engage in international conservation, the bill would allow the operators of hunting preserves in the United States to offer paying customers the opportunity to hunt imperiled foreign species. Under section 9 of the ESA, it is illegal to take listed species, including foreign species, in the United States, but if foreign species were barred from being listed, they could be hunted legally on such game reserves even if critically imperiled.

H.R. 94 would also impair the ability of the United States to engage in international conservation efforts to protect species that are native to the United States as well as other countries. The bill would prohibit U.S. financial assistance to acquire lands or waters in a foreign country to aid in international conservation for any listed species, including species that are native to both the U.S. and other countries and have habitat in other countries (such as jaguar and many species of migratory birds).

The Armed Forces Endangered Species Exemption Act would, as its title indicates, exempt the U.S. military from compliance with the ESA. The bill appears to be based on the faulty premise that the military is incapable of safeguarding both our national security and endangered species. The bill prohibits the Secretary of the Interior or Commerce from designating as critical habitat any military installation or National Guard installation, or any other lands or waters designated for use by the Defense Department – including defense contractors – that the Secretary of Defense deems necessary for training, weapons testing or any other reason. The bill also exempts the Secretary of Defense from consulting with the Secretary of the Interior under Section 7(a)(2) of the ESA to ensure that Defense Department actions are not likely to jeopardize the continued existence of an endangered or threatened species or result in destruction of critical habitat for such species (regardless of whether the area in question is subject to an integrated natural resources management plan under the Sikes Act). Finally, the bill exempts military personnel – including contractors and even employees of non-military agencies – engaged in national defense-related operations, including research, weapons testing, training, and any action the Secretary of Defense deems necessary to support the Defense Department’s mission, from the prohibitions on taking endangered and threatened species in Section 9 of the ESA.

H.R. 97 thus carving a huge loophole in the ESA for all manner of military activities, including activities of industrial contractors and subcontractors, exposing endangered and threatened species to unrestricted harm and possible extinction. The lands managed by the Department of Defense are an essential component of our nation’s biodiversity. The Department of Defense manages approximately 27 million acres of land on 338 military installations. These lands support the preservation of ecologically important native habitats such as old-growth forests, tall-grass prairies, coastal beaches, and wetlands, making military installations a haven for fish, wildlife, and plants, including rare and unique species. More than 400 threatened and endangered species live on DOD-managed lands. Public access to many of these sites is limited due to security and safety concerns, sheltering them from disturbance and development.

There is no evidence that compliance with the ESA threatens the nation’s military security. The Department of Defense has long worked, in partnership with the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and state wildlife agencies, to conserve fish and wildlife resources, including imperiled species, on military lands and when such resources are potentially affected by training activities outside military lands. Under the Sikes Act, 16 U.S.C. § 670, the Department of Defense develops and implements integrated natural resources management plans to manage and protect natural resources, including listed species, on military lands. Military lands are already excluded from designation as critical habitat where such plans provide a benefit to listed species. 16 U.S.C. § 1533(a)(3)(B)(i). Exempting the Department of Defense and its many industrial contractors from compliance with the ESA puts our nation’s natural legacy at needless risk. See description of amendment vote on National Defense Authorization Act below.

The Less Imprecision in Species Treatment Act (“LIST Act”) increases the risk of incorrectly delisting imperiled species while simultaneously deterring the public from petitioning to list other species that are imperiled. The ESA currently requires that the same process and criteria be used to both list and delist a species, i.e., by making a determination based on the best scientific and commercial data available regarding the five listing factors under section 4(a)(1). The courts have held that those factors, and not other considerations such as the goals of recovery plans, must form the basis for any decision to list or delist.1   

The LIST Act, however, directs the Secretary to delist species if the Department of the Interior has produced or received substantial information demonstrating that the species “is recovered” or that the goals of a recovery plan for a species have been met regardless of the statutory factors set forth in section 4(a). This change would subvert the integrity of the ESA because the delisting process would no longer require a methodical review of the listing factors to ensure that a listed species is not threatened or endangered, elevating recovery goals above the statutory factors that determine whether a species is threatened or endangered. However, FWS and NMFS have long viewed recovery plans as non-binding guidance documents. Moreover, many recovery plans are more than 20 years old, and the recovery goals for at least 130 species inexplicably set recovery goals with fewer populations or individuals than existed at the time these species were determined to be at-risk enough to merit protection under the ESA, indicating that many recovery plans are at odds with conservation science.2 Yet the bill dispenses with rulemaking requirements intended to ensure public transparency and reliability of agency information, directing that the Secretary only publish a notice that a species is being removed rather than undertaking the notice-and-comment procedures required with a proposed delisting regulation, as now required by the ESA. 

The LIST Act also establishes a one-sided process for delisting based on the false premise that many species are erroneously listed. The bill would allow for cursory delistings if the Secretary determines, based on information submitted by third parties or developed by the Department of the Interior (oddly omitting the Department of Commerce, which shares responsibility for implementing the ESA), that the species was listed based on information that was “inaccurate beyond scientifically reasonable margins of error,” fraudulent, or misrepresentative. If the Secretary determines that the listing was less than likely to have occurred absent such information, the species would be cursorily delisted (without consideration of the statutory factors in section 4(a)(1) and without a public rulemaking process) and that determination would not be subject to judicial review. By contrast, a decision by the Secretary that finds that the original listing was not based on inaccurate, fraudulent or misrepresentative information would be subject to judicial review by parties interested in forcing the delisting of the species. These judicial review provisions blatantly stack the odds in favor of wrongly removing protections for threatened and endangered species. 

Finally, in an apparent attempt to limit citizen petitions, the bill would punish a person who submitted a listing petition containing any information later determined to be inaccurate beyond scientifically reasonable margins of error, fraudulent, or misrepresentative by prohibiting the person from submitting future petitions for ten years. The prospect of a politically driven inquiry into their motives may deter parties from submitting listing petitions that contain legitimate information. There is no evidence of widespread errors in the listing of species or the submission of fraudulent information by petitioners to warrant setting up such intrusive and one-sided processes for invalidation of listings.

The Forest Information Reform Act, H.R. 200, would amend the Forest and Rangeland Renewable Resources Planning Act of 1974 and the Federal Land Policy and Management Act of 1976 to exempt the Forest Service and the B4    ureau of Land Management (BLM) from being required to reinitiate consultation on a land management plan when a new species is listed, critical habitat is designated, or new information concerning a listed species or critical habitat becomes available. The bill seeks to reverse a 2015 decision by the U.S. Court of Appeals for the Ninth Circuit, Cottonwood Environmental v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015) (“Cottonwood”), which held that the Forest Service must reinitiate consultation on its forest plans where new critical habitat is designated for a listed species. 

The National Forest system comprises almost 197 million acres of federally managed forests and grasslands; BLM manages an additional 245 million acres of public lands. Together, the two agencies manage almost 20% of the U.S. land base. The Forest Service and BLM manage their lands through land management plans developed through a public process and through project level actions that implement those plans. The agencies consult with the FWS and NMFS under Section 7 of the ESA when adopting land management plans to assess whether their plans may affect listed species; they also consult when they propose project-level actions that may affect listed species. 

Under FWS and NMFS regulations, federal agencies are required to reinitiate consultation regarding actions over which they retain discretionary involvement or control when: 

1. The amount or extent of taking specified in an incidental take statement is exceeded; 
2. New information on the species or action reveals effects of the action that may affect species or critical habitat in a manner or to an extent not previously considered; 
3. The identified action is sufficiently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or 
4. A new species is listed or critical habitat designated that may be affected by the identified action. 

50 C.F.R. § 402.16. The requirement to reinitiate consultation in these circumstances reflects the continuing obligation of federal agencies under Section 7 of the ESA to “insure” that their actions, including actions being carried out, are not likely to jeopardize the continued existence of any listed species or result in the destruction of their critical habitat. 

Applying these regulations, the Ninth Circuit held in Cottonwood that the Forest Service must reinitiate consultation with the FWS regarding the effects of forest plans on Canada lynx after the FWS designated additional critical habitat for the species in Montana, North Dakota, northern Idaho, and northwest South Dakota. The court held that the Forest Service retained discretionary involvement or control over its forest plans, including the ability to amend them to address new circumstances. 

In 2018, Congress enacted legislation that modified how the Cottonwood decision applies to forest plans and certain BLM land use plans. The FY 2018 consolidated appropriations act amended 16 U.S.C. § 1604 to exempt the Forest Service from reinitiating consultation for previously adopted forest plans when new species are listed or critical habitat is designated. This exemption does not apply if 15 years have passed since the forest plan was adopted and 5 years have passed since the FY 2018 appropriations bill was enacted (March 23, 2018) or the date of the new species listing or critical habitat designation, whichever is later. Since many forest plans are more than 15 years old, this provision effectively postponed the requirement of reinitiation of consultation for species or critical habitat designations for such plans. It also applies only to certain BLM land use plans (previously adopted plans for Oregon and California Railroad grant lands and Coos Bay Wagon Road grant lands).3 

H.R. 200 would greatly expand the statutory exemption created by Congress in 2018. First, the bill extends the 2018 statutory exemption to cover not just the listing of species or designation of critical habitat but also the discovery of new information that reveals that the impacts of land management plans on listed species or critical habitat is greater than understood when the plans were adopted.  Second, the bill extends the exemption to all Forest Service and BLM land management plans.  Third, the bill discards any time limits on the exemption.   

H.R. 200 thus would allow the Forest Service and BLM to blind themselves to the existence of newly listed species or newly designated critical habitat and to ignore new information about the impacts of their land use management plans on existing species or critical habitat, even if such information reveals sharply increased risks to endangered and threatened species. The Forest Service and BLM would continue to be required to evaluate the impacts on species from project level actions that they undertake, but critical land use allocations typically made during the planning process, such as designation of areas within National Forests or BLM land units for logging or other resource extraction or for off-road vehicle use, would escape review under the ESA when new species are listed, critical habitat is designated or new information reveals additional risks to endangered or threatened species, potentially threatening the existence of imperiled species in those areas. 

More broadly, the most efficient and effective way for federal land management agencies and the wildlife services to assess the effects of their programs on listed species and critical habitat is at the plan level, where cumulative effects of a land unit’s proposed management over a decade or more can meaningfully be assessed and mitigation developed at the planning unit scale. Project level evaluation can then be efficiently tiered to the analysis in the larger plan, minimizing duplicative effort; this tiered approach to environmental reviews is widely accepted and effective under the National Environmental Policy Act. But without consideration at the plan level, the impacts of a multitude of implementing actions – timber sales, road building, oil and gas permitting, off-road vehicle recreation – may be lost in the details of specific decisions, threatening endangered species and their habitat with death by a thousand cuts. See also description of Sec. 446 in H.R. 4821 further below. 

H.R. 248, the “Promoting Local Management of the Lesser Prairie Chicken Act,” amends Section 4 of the ESA to prohibit the Secretary from listing any population of the lesser prairie chicken in Kansas, Oklahoma, Texas, Colorado, or New Mexico as threatened or endangered, and directs the Secretary to delist the populations of that species in those states. The lesser prairie chicken is a species in the grouse family that once ranged widely across the Southern Great Plains of the United States. It has lost between 83-90% of its habitat to various forms of development, including oil and gas production, and its population has declined by as much as 99% in some ecoregions as a result.  In 2014 the FWS listed the species as threatened under the ESA, but the listing was vacated in 2015 following legal challenges. 

On November 25, 2022, the FWS determined that the lesser prairie chicken’s range was divided into two distinct population segments (DPSs). 87 Fed. Reg. 72674 (November 25, 2022). It found that the primary threat impacting both DPSs is the ongoing loss of large, connected blocks of grassland and shrubland habitat. The agency determined that the southern population segment in New Mexico and Texas has low resiliency, redundancy, and representation and is particularly vulnerable to severe droughts due to being located in the dryer and hotter southwestern portion of the range. The FWS accordingly listed that DPS as endangered. The FWS found that the northern population segment in Texas, Oklahoma, Colorado, and Kansas still retained redundancy and genetic and environmental representation across its range, but because it faced continued habitat loss and fragmentation that put it at risk of extinction listed the northern DPS as threatened. Id. The agency described the scientific basis for its determinations in an extensive discussion in the published rule. Id. 72675-72710. FWS also promulgated a special rule under Section 4(d) of the ESA that allows for continued agriculture, prescribed fire, and grazing in the northern DPS, listed as threatened. 

H.R. 248 reverses the FWS’s listing decision for the lesser prairie chicken and creates uncertainty about whether the Secretary can list the imperiled bird species in the future. The bill overrides the scientific and factual findings that underlie the FWS’s determination that the species faces an imminent risk of extinction in the southern portion of its range and longer-term risks to its survival in the northern DPS that warrant listing the species. H.R. 248 substitutes Congress’s judgment for that of the expert wildlife agency without explanation or rational basis and establishes a terrible precedent for Congressional interference in the science-based conservation of imperiled species under the ESA. See also description of H. J. Res. 29 and Sec. 448 in H.R. 4821 further below. 

The “Endangered Species Transparency and Reasonableness Act,” H.R. 518, would subvert the ESA’s bedrock requirement that listing decisions be based on sound science by simply declaring that all information submitted by state, tribal or county governments must be considered as the best scientific and commercial data available, irrespective of its actual merit. The ESA already encourages governments to submit information that may aid the Services in making listing decisions. That information is assessed, like any other, for its accuracy and reliability. Under this provision, information of any quality provided by state, tribal, and county governments – even data that are flatly wrong – would be presumed equivalent, if not superior, to peer-reviewed research from leading species experts. 

H.R. 518 also would establish burdensome procedural requirements for listing species, requiring the Secretary to publish on the internet and provide to the states all data that are the basis for each proposed listing under the ESA. The FWS and NMFS already must fully describe the basis for any listing in proposed and final rules published in the Federal Register and give actual notice of proposed listing regulations to affected states and counties. 16 U.S.C. § 1533(b)(5). The bill would also create a loophole in its requirements for transparency by exempting information that is subject to state privacy laws, potentially encouraging states to pass laws shielding commercial data from public inspection to appease special interests. Moreover, the bill would attempt to discourage or intimidate the public from challenging agency actions by requiring a broad range of federal agencies to report annual expenditures on ESA-related litigation, including whether any plaintiffs received federal funding, and limiting attorneys’ fees for persons suing under the Act by substituting the reduced fees available under the Equal Access to Justice Act for the Act’s longstanding authorization of full market-based fees for prevailing parties. 

H.R. 520 would undermine the central purpose of the ESA – the conservation of the ecosystems upon which endangered species and threatened species depend, 16 U.S.C. § 1531(b) – by prohibiting the Secretary from distinguishing between naturally propagated animals and artificially propagated animals in making determinations under the Act. The bill adds a new Section 14 to the ESA that directs the Secretary to authorize the use of artificial propagation of animals of a species for purposes of any mitigation required under the Act with respect to such species. 

Controlled propagation is an essential tool in the conservation of imperiled species, expressly authorized by Section 3(3) of the ESA, 16 U.S.C. § 1532(3). Propagation is used by FWS, NMFS and other conservation agencies to maintain genetic diversity in small, isolated populations, to permit scientific research, to supplement wild populations and to recover depleted populations in secure settings before reintroducing them to the wild. But as the FWS and NMFS noted in adopting a formal policy governing the use of controlled propagation, 65 FR 56916 (September 20, 2010), the central purpose of the ESA is to conserve the ecosystems on which endangered and threatened species depend, and “controlled propagation is not a substitute for addressing factors responsible for an endangered or threatened species' decline.” The Services declared that their “first priority” is “to recover wild populations in their natural habitat wherever possible, without resorting to the use of controlled propagation.” Id. Moreover, as the FWS/NMFS policy makes clear, the use of propagation must be carefully controlled to avoid transmission of disease or genetic release into wild populations that may harm their survival. 

H.R. 520 would force the Services to abandon their carefully controlled approach to propagation as a conservation tool, forbidding the Secretary from making any distinction between artificial propagation and natural propagation and requiring approval of artificial propagation whenever mitigation is required under the ESA. Even more alarming, the sweeping language of H.R. 520 would force the Secretary to treat artificially propagated animals as if they were wild in making listing determinations and in determining when species have recovered. Sufficient numbers of fish in a hatchery or of animals in a zoo could, under this bill, preclude listing such species or force their delisting even when they cannot survive in the wild. The bill would thus destroy the central purpose of the ESA – conserving the habitats on which endangered and threatened species depend so that species can thrive in the wild. 

The Trust the Science Act, H.R. 764, directs the Secretary of the Interior to reissue the final rule published November 3, 2020, delisting the gray wolf within 60 days of enactment. The bill bars judicial review of the Secretary’s action delisting the wolf. 

The gray wolf is an iconic keystone species that plays a vital role in keeping ecosystems healthy.  Gray wolf populations in the United States were decimated by decades of predator control programs, as well as loss of habitat and prey. Since receiving protection under the ESA in 1974, the gray wolf has begun a comeback, but remains far from recovered. The rule that H.R. 764 would reinstate was hastily issued by the FWS at the end of the Trump administration to delist gray wolves in 44 states. The rule was challenged by conservation organizations and vacated by a federal district court in February 2022.  The court found that the delisting decision improperly relied on two core populations to delist wolves nationally, failed to provide a reasonable interpretation of what constitutes a “significant” portion of the species’ range, ignored the fact that the ancestry of West Coast wolves was distinct from northern Rockies wolves, and did not consider the impact of lost historical range on gray wolves. 

By forcing the reinstatement of the Trump administration’s scientifically indefensible delisting rule, the ironically named “Trust the Science Act” undermines the scientific integrity of the ESA. The intent of the bill to shield the FWS’s flawed scientific reasoning from inquiry is made clear by the bill’s preclusion of judicial review, undermining the rule of law that holds government officials accountable in the courts. 

H.R. 872, the Federally Integrated Species Health Act (“FISH Act”), transfers authority over anadromous species (fish such as salmon that spawn in fresh or estuarine waters and migrate to ocean waters) and catadromous species (fish such as eels that spawn in ocean waters and migrate to fresh or estuarine waters) under the ESA from NMFS to FWS. The bill would thus reverse the allocation of responsibility for such species established by Congress when it enacted the ESA (adopting a 1970 reorganization plan implemented by the Nixon administration). 16 U.S.C. § 1533(15) (defining “Secretary” under the Act as including the Secretary of Commerce). Under that original allocation of responsibility, NMFS has administered the ESA with respect to Pacific salmon and most other anadromous and catadromous species for fifty years. It has developed substantial scientific and administrative expertise with respect to such species. 

Development interests have for years expressed concerns with NMFS’s approach to management of salmon species, contending that NMFS is generally more restrictive than FWS. But there is no basis for their apparent assumption that the FWS would make more lenient decisions than NMFS regarding listing of fish species or the mitigation appropriate for federal agency actions affecting listed fish species. Moreover, the sweeping transfer of all authority over anadromous and catadromous species to FWS would disrupt the functioning of the ESA and impose a sharply increased administrative and scientific burden on FWS. H.R. 872 does not address the resource burdens that it would create for the FWS, which is already stretched thin in carrying out its responsibilities under the ESA.  

H.R. 1142 would amend Section 4 of the ESA to prohibit the Secretary from listing a species if it would cause “significant economic harm” to any State or locality. “Significant economic harm” is not directly defined, but the bill requires that it be determined by considering cumulative economic effects on public land, private land and property values; the provision of water, power or other public services; employment; and revenues available for State and local governments. 

By precluding the listing of species based on the economic effects of listing, H.R. 1142 repudiates the ESA’s central commitment to scientific integrity. In enacting the ESA, Congress determined that the determination whether a species is endangered or threatened is a scientific question to be resolved solely on the basis of the best scientific and commercial data available after taking into account conservation efforts directed at the species. 16 U.S.C. § 1533(b). The word “solely” was added to the phrase “on the basis of the best scientific and commercial data available” during the 1982 amendments to the ESA. See H.R. Rep. No. 97-567 (1982) as reprinted in 1982 U.S.C.C.A.N. 2807. As explained in the House Report, “[t]he addition of the word ‘solely’ is intended to remove from the process of the listing or delisting of species any factor not related to the biological status of the species.” Id. at 2820 (emphasis added). Congress was adamant that “economic considerations have no relevance to determinations regarding the status of species[.]” H.R. Rep. No. 97-835, at 20 (1982) (Conf. Rep.), as reprinted in 1982 U.S.C.C.A.N. 2860, 2862; see also id. at 19 (“The principal purpose of these amendments is to ensure that decisions in every phase of the process pertaining to the listing or delisting of species are based solely upon biological criteria and to prevent non-biological considerations from affecting such decisions.”).  

The ESA takes economic effects into account in other aspects of its implementation, including the designation of critical habitat, 16 U.S.C. § 1533(b)(2), and the consultation process under Section 7.  16 U.S.C. § 1536(b)(3)(A) (if jeopardy found, the Secretary shall suggest reasonable and prudent measures that “can be taken” by the federal agency or applicant); id. § 1536(e) (authorizing the Endangered Species Committee to grant exemptions where the benefits of an action clearly outweigh the benefits of alternative courses of action consistent with conserving a species or its critical habitat and the action is in the public interest). But the initial determination of whether a species is or is not endangered or threatened is – and should be – a purely scientific determination. 

H.R. 1142 would replace that scientific determination of a species’ conservation status with a financial calculus by the Secretary whether preserving the existence of a species would be too costly. That determination would apparently be made without any consideration of the potential benefits to society of preserving the species. Those benefits may be very large – many of the world’s medicines, for example, including drugs that fight cancer and other diseases that impose enormous health costs on society, have been developed from rare and imperiled species. Indeed, the benefits of preserving species may fairly be termed “incalculable,” as the U.S. Supreme Court observed in TVA v. Hill, 437 U.S. 153, 178-79 (1978), because of "the unknown uses that endangered species might have and the unforeseeable place such creatures may have in the chain of life on this planet." 

The ESA’s entire structure is based on the honest assessment whether particular species face imminent risk of extinction. To replace that with a one-sided financial calculus about whether protecting a species may be expensive cheapens the commitment the United States made in enacting the strongest conservation law in the world. 

H.R. 1245 requires the Secretary to reissue a rule promulgated by the FWS in 2017 delisting the Greater Yellowstone population of grizzly bears and held unlawful by the U.S. Court of Appeals for the Ninth Circuit. H.R. 1245 also bars judicial review of the reissued rule. The bill would undermine the Ninth Circuit’s ruling and preempt the scientific process initiated only a month ago by the FWS to consider whether the grizzly bear populations in the Greater Yellowstone Ecosystem (GYE) and Northern Continental Divide Ecosystem (NCDE) should be delisted under the ESA. 88 Fed. Reg. 7658 (February 6, 2023). The FWS found that petitions for delisting filed by the States of Montana and Wyoming presented substantial information indicating that delisting of the grizzly bear in those regions may be warranted, triggering a 12-month process of evaluation of current scientific information and regulatory programs to determine whether to remove the GYE and NCDE populations. Importantly, the FWS identified significant issues regarding how the states would manage grizzly bears if they were delisted, including concerns about recent legislation in Montana and Idaho that could lead to unrestricted mortality from hunting and predator control. The FWS also stated that if it initiates a rulemaking process to delist the GYE or NCDE populations, it will consider the effects of any proposed rule on the recovery of grizzly bears in the lower-48 listed entity outside of the GYE and NCDE. 

The grizzly bear is an iconic species of the American west, and its survival is one of the success stories of the ESA. The grizzly bear’s decline from habitat loss and suppression through hunting and heavy-handed predator control programs was one of the factors prompting enactment of the ESA, and it was listed as threatened soon after enactment. The FWS has identified six recovery areas in the United States; the bear is primarily found today in four geographic areas of the United States, including substantial populations in the GYE and NCDE. The grizzly bear populations in those locations is stable and growing, but conservationists remain concerned about the geographic and genetic isolation of those populations, the threat of increased human-induced mortality through hunting or predator control if they were delisted and management returned to the states of Montana, Wyoming, and Idaho, and the effects of delisting particular populations on grizzly bears in the rest of the lower-48 states. 

The FWS attempted to delist the GYE population of grizzly bears in 2017. Its delisting rule, which H.R. 1245 would reinstate legislatively, was vacated by a federal district court in 2018, and its decision was affirmed by the U.S. Court of Appeals for the Ninth Circuit. Crow Indian Tribe v. United States, 343 F. Supp. 3d 999 (D. Mont. 2018), aff’d, 965 F.3d 662 (9th Cir. 2020). The district court found that the FWS had not sufficiently assessed the effect of delisting the GYE population on the recovery of grizzly bears in the rest of the lower-48 States; that FWS and the states had not committed to recalibrate potential new population estimators in the future to ensure the ongoing applicability of the 2016 GYE Conservation Strategy’s mortality limits in the event hunting was authorized following delisting; and that FWS had inadequately analyzed the genetic health of the GYE grizzly bear population. The FWS’s newly announced process in response to petitions by Montana and Wyoming will evaluate those issues, among other conservation concerns, to determine whether the bear can now safely and legally be removed from the protections of the ESA. 

H.R. 1245 preempts that careful scientific and regulatory review, superimposing Congress’s political judgment for that of the expert wildlife service charged with implementing the ESA. By barring judicial review, it precludes the vital check and balance that the courts provide to ensure that agency decisions properly consider the best available science and comport with the law. 

H.R. 1364 incorporates the provisions of both H.R. 1245 and H.R. 1419, requiring the delisting of both Greater Yellowstone grizzly bears and Northern Continental Divide Ecosystem (NCDE) grizzly bears, and barring judicial review of the decisions and the directive to issue them.  

H.R. 1419, like its companion bill H.R. 1245, would force the Secretary to delist the NCDE population of grizzly bears, and would bar judicial review of that action. Like H.R. 1245, H.R. 1419 preempts the FWS’s newly initiated scientific and regulatory review that would determine, in accordance with the procedures of the ESA, whether that population of the bear can safely and legally be removed from the protections of the ESA. 88 Fed. Reg. 7658 (February 6, 2023).  And, like H.R. 1245, it would deprive the public of the assurance provided by judicial review that the agency’s action delisting the NCDE population was scientifically sound and legally proper. 

H.R. 1558 would remove all ESA protections from foreign species listed under the Act once those species are located in the United States. Under current law, it is generally illegal to trade in foreign-listed species within the United States without an appropriate permit approved by the Services for scientific purposes or to enhance the survival of the species; this restriction is separate from the provisions set forth in the ESA implementing the Convention on the International Trade in Endangered Species (CITES). Foreign species listed as threatened or endangered under the ESA are not necessarily regulated under CITES, and vice-versa. If passed, H.R. 1558 would create a catastrophic free-for-all for foreign imperiled species; once a species makes it into the United States, it would lose vital protections permanently. 

The bill’s sponsor has argued that this bill would promote conservation by removing so-called regulatory burdens for those involved in captive breeding of exotic species. However, this bill would instead have devastating impacts on imperiled species. Roadside zoos, game ranches, and others would find it easier to mistreat foreign-listed species without oversight, and breed and commercialize them without regard for their welfare and genetic health. Imperiled species could even be hunted and killed without concern for their biological status, risking driving such species to extinction. This bill would incentivize wildlife trafficking around the world, including by organized criminal and terrorist groups, and could greatly expand the trade both domestically and globally in both living and dead imperiled species. 

House Joint Resolution 29 would disapprove, pursuant to the Congressional Review Act, the FWS’s rule published November 25, 2022, listing two distinct population segments (DPSs) of the lesser prairie-chicken as threatened and endangered, respectively. See the discussion provided above regarding H.R. 248 and the description of Sec. 448 in H.R. 4821 further below. 

House Joint Resolution 46 would disapprove, pursuant to the Congressional Review Act, the NMFS and FWS rule published June 24, 2022, repealing the Trump administration’s definition of “habitat” under the ESA.4 .That definition applied when the agencies were designating critical habitat for listed species. The Trump administration’s definition was promulgated in December 2020; prior to that date no regulatory definition existed, and Service scientists and regulators would determine appropriate habitat on a species-by-species basis based on the best available science. The Trump administration definition limited habitat only to areas that could currently support the species, excluding areas that might be needed to conserve the species in the future even if they could not support the species now. 

Under the ESA, when listing a species as threatened or endangered the Services in most cases must designate “critical habitat” for that species. The Services must designate as critical habitat areas “essential to the conservation of the species”; such areas can be occupied or unoccupied by the species at the time of listing. Under section 7 of the ESA, federal agencies are prohibited from jeopardizing the existence of listed species, or adversely modifying that critical habitat. Critical habitat designations therefore only impact actions authorized, carried out, or funded by federal agencies, and do not otherwise impact private landowners. Historically the Services designated as critical habitat areas that were likely to be essential to conserve the species through the future, including areas that could not yet support the species, but which might be essential to its conservation in the future. 

The Trump definition was spurred by a Supreme Court case, Weyerhaueser v. FWS. That case arose out of a critical habitat designation for the endangered dusky gopher frog. FWS had designated certain areas as critical habitat for the endangered dusky gopher frog, though there was a question as to whether they could currently support the species without restoration. The Fifth Circuit upheld that designation, finding that “critical habitat” did not need to include areas that were actually “habitat” for the species. The Supreme Court disagreed, remanding the case back to the Fifth Circuit to interpret the term “habitat” in the statute and determine whether “habitat” could include areas where the species could not currently survive. However, the Services sought to resolve that issue by promulgating their own definition of “habitat” that would exclude such areas and consist only of the “abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” 

Returning to the Trump administration definition of habitat would unduly narrow what areas FWS and NMFS can designate as essential to the conservation of the species. Areas that could be restored, or which might support the species through climate change or other natural processes, would be automatically excluded no matter how important they were to the future of the species – even if it were likely the species would go extinct if such areas did not receive protections now. It would also take critical decision-making authority out of the hands of scientists well-versed in what habitat is, and what needs to be protected to recover listed species. 

House Joint Resolution 49 would disapprove, pursuant to the CRA, FWS’s reclassification of the northern long-eared bat (Myotis septentrionalis) from threatened to endangered. The northern long-eared bat is a medium-sized bat distributed across 37 states and the District of Columbia but was historically found primarily in the eastern and north central areas of the United States, as well as through much of Canada. Northern long-eared bats have been devastated by white-nose syndrome (WNS), a fungal disease that can infect hibernating bats and that has been responsible for the deaths of millions of bats throughout North America. Northern long-eared bat populations have declined by 97-100% across 79% of the species’ range due to WNS. While WNS is the most significant driver of northern long-eared bat loss, the species also faces threats from habitat loss, wind energy mortality, and climate change. 

FWS classified the northern long-eared bat as threatened in 2015, but conservation groups successfully sued FWS for the legal violations the agency committed in the listing rule. FWS subsequently reclassified the bat as endangered on November 30, 2022. Successfully disapproving the reclassification of the northern long-eared bat to endangered would result in it receiving the weaker protections set by the Service in 2015, which exempted most habitat-destroying activities from regulation, leaving the species vulnerable to loss of both summer roosting and foraging habitat and winter hibernation habitat.  

This language would undermine the ESA and the MMPA by rendering the existing process provided in the MMPA for the military to seek a national security exemption from otherwise-applicable incidental take regulation requirements effectively meaningless. Sec. 1853 would require the Secretaries of Commerce, Interior, and Defense to begin the process under the MMPA of seeking an exemption for military training and testing activities, conducted at Eglin Air Force Base, Florida, that may result in the incidental take of Rice’s whale. The Department of Defense has not requested this exemption from Congress, nor has it acted on its own to initiate the existing MMPA exemption process. This provision would also set a damaging precedent for congressional interference in how the military addresses conservation issues. 

This amendment would prohibit Automatic Identification System (AIS) based enforcement on vessels not required to have AIS after January 1, 2023. It also would have prohibited the Coast Guard from enforcing vessel speed reduction rules related to marine mammals before certain requirements were met – namely, that NOAA had consulted with the Coast Guard and incorporated its input regarding enforcement capabilities and boating safety implications of the proposed rule; that NOAA and the Coast Guard had jointly consulted with the National Boating Safety Advisory Committee and the Sport Fishing and Boating Partnership Council regarding implications of new MMPA related regulations that would require Coast Guard enforcement and any proposed regulations that would alter, impose, or limit navigation or vessel speeds or any other action that would involve boating safety matters; and that NOAA had consulted with the Department of Commerce Bureau of Economic Analysis to produce accurate economic impact estimates associated with MMPA regulations that would alter, impose, or limit navigation or vessel speeds or any other action that would involve boating safety matters. 

This amendment would undermine an important near real-time monitoring pilot program authorized by Congress in 2022. See the discussion regarding Amendment #29 to H.R. 1. 

 H.R. 4323 would circumvent the ESA and the MMPA – and would subvert the agency rulemaking process – by preventing NOAA from issuing a final vessel speed rule until a real-time monitoring system is deployed. See also the discussion regarding S. 1833.

The proposal to expand the existing vessel speed rule is necessary to protect the critically endangered North Atlantic right whale. Fewer than 360 individuals remain and, of those, approximately 70 are reproductive females. If trends over previous fifteen years continue, experts predict the species will become functionally extinct within a few short decades. Loss of even one right whale per year to human causes may prevent any hope of recovering the species, thus the risk of vessel strikes must be reduced to close to zero. Without amended regulations to reduce the speed of vessels 35 feet and greater in length to 10 knots or less in areas and at times of greatest risk, unsustainable numbers of vessel strikes will undoubtedly continue, risking the species’ survival. Currently, vessels 65 feet in length or greater must travel at 10 knots or less in specific areas and during specific times of year to avoid lethal vessel strikes of this species. NOAA is proposing to amend this rule to cover broader geographic areas and times when North Atlantic right whales are known to be most at risk, and to apply the rule to vessels 35 feet in length or greater. Three of the four known vessel strike events that involved mothers and calves since 2020 involved vessels between 35 and 65 feet in length. Without amended regulations to reduce the speed of vessels 35 feet and greater in length to 10 knots or less in areas and at times of greatest risk, unsustainable numbers of vessel strikes will undoubtedly continue, risking the species’ survival. 

H.R. 4323 would prohibit NOAA from issuing an amended rule until near real-time monitoring and mitigation protocols are fully developed and deployed before any form of rulemaking can take place. However, the technologies and related protocols capable of mitigating vessel strike risk to a level approaching zero – as is required to save the species – do  not yet exist. Furthermore, Congress did not appropriate any funds to advance the near real-time monitoring pilot program described in section 11303(e) of the Don Young Coast Guard Authorization Act 2022 (16 U.S.C. 1391) to determine the feasibility of such technologies, thus ensuring that this program is almost certainly years away from implementation. While there are currently a range of technologies in development to track whales and alert boaters, and some are being tested and used, to date no technologies or mitigation protocols have been proven effective in reducing the risk of a single strike in real time as a substitute for vessel speed restrictions. 
 

Amendment #32 would undermine the MMPA and the ESA by seeking to weaken the effectiveness of NOAA’s rulemaking to protect the North Atlantic right whale by prohibiting any funds appropriated to the Coast Guard from being used to enforce finalized Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule. This amendment would supplement the efforts elsewhere that would prohibit NOAA and Commerce from using any funds to enforce the forthcoming new vessel strike reduction rule.

Amendment #220 would undermine the MMPA and the ESA by intentionally seeking to weaken the effectiveness of NOAA’s rulemaking to protect Rice’s whale by prohibiting any funds from being used to enforce or support a mandatory speed limit or any other vessel-related mitigation measure imposed due to the presence of Rice’s whales in the Gulf of Mexico. It is important to note that there is currently no new proposed speed limit to protect Rice’s whale. On October 27, 2023, NOAA denied the 2021 petition filed by Defenders of Wildlife and several other environmental groups to establish new vessel speed restrictions in the Gulf to protect Rice’s whale. The agency stated that, currently, “such a rule is not necessary nor appropriate” and that instead, the agency would be working on developing a recovery plan for the species, as well as finalizing a critical habitat designation and conducting additional vessel risk assessments. This decision virtually ensures that there will not be new vessel speed restrictions in the Gulf to protect Rice’s whale for the foreseeable future.

H.R. 4558 would compel the FWS to withdraw its proposed rule to list the dunes sagebrush lizard (Sceloporus arenicolus) as endangered under the ESA and prevent FWS from taking any future action to finalize that proposed rule or “any substantially similar rule.” This may permanently remove the possibility of ESA protections ever being extended to the dunes sagebrush lizard, potentially dooming it to extinction. 

The dunes sagebrush lizard has the second-smallest range of any lizard species in the United States and is reliant on shinnery oak sand dune habitat in parts of southeastern New Mexico and West Texas. The lizard’s entire range lies in a narrow, heavily fragmented band running through the Permian Basin, with only 6 percent of its current range considered “high quality” habitat sufficient to support robust populations. The dunes sagebrush lizard’s habitat has been heavily impacted by oil and gas development, and habitat loss has also occurred due to sand mining, agriculture, and ranching. The FWS has predicted continued reduction of the species’ habitat across all scenarios. When shinnery oak dunelands are disturbed, they likely cannot be restored, which would mean the species’ habitat is effectively irreplaceable. 

The dunes sagebrush lizard has been a candidate for listing since 1982, but the FWS did not propose to list the species until 2010, before withdrawing that proposal in 2012 based on the hope that voluntary conservation plans would be sufficient to protect the lizard. More than 10 years later, in the wake of the failure of those plans to stop the lizard’s slide towards extinction, and in response to a lawsuit filed by conservation groups, FWS proposed the species for an endangered listing on July 2, 2023. 

Preventing the dunes sagebrush lizard from obtaining critically-needed ESA protections not just now but into the indefinite future would likely mean the species will go extinct, as oil companies and other industries will be given free rein to destroy its habitat. Furthermore, what voluntary agreements do exist to protect the species would lose what impact they do have: knowing the species is unlikely to be listed removes the incentive to participate in these agreements in the first place since the permits offered through them may never be needed. 

Sec. 116 of H.R. 4821 continues and expands the rider which has been included in Interior appropriations bills since 2014 prohibiting FWS from considering greater sage-grouse and the Columbia Basin distinct population segment of the species for protection under the ESA. FWS first found in 2010 that the species warranted listing but was precluded by lack of funding. Sec. 116 also expands the perennial rider to include the geographically isolated, genetically distinct, and extremely vulnerable bi-state population of greater sage-grouse found only on the California-Nevada border.  

The greater sage-grouse is an imperiled western bird and the charismatic ambassador for the Sagebrush Sea, an iconic biome of the American West that is vital not only to the sage-grouse but also to more than 350 other species of conservation concern that have evolved as part of this ecosystem. These include the pronghorn, pygmy rabbit, mule deer, native trout and nearly 200 migratory and Western bird species. As many as 16 million greater sage-grouse once occurred across 297 million acres of sagebrush grasslands in the West. Today, the sagebrush biome continues to decline. Sage-grouse habitat is less than half of what it once was – diminished by invasive species, roads, grazing, mining, energy development, agricultural conversion, and wildfire – and its populations have declined eighty percent range wide since 1965 and nearly forty percent since 2002.5  

The Obama administration undertook a revision of federal land management plans to support conservation of the species, but those management prescriptions were reversed by the Trump administration. The Biden administration is again working to update land management plants to improve conservation of the sage-grouse. Regardless of the attempts to improve land management, the rider unduly prevents the FWS from properly assessing the condition of the species and determining whether ESA protections are needed; it also removes necessary incentives to achieve conservation progress.  

Sec. 446 would finalize a proposed Trump-era ESA rule titled ‘‘Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation’’ (86 Fed. Reg. 2373 (January 12, 2021)). This damaging proposed rule provided that reinitiation of ESA Section 7 consultation would not be required for previously approved Forest Service and Bureau of Land Management land management plans when new information reveals that effects of a plan may affect listed species or critical habitat in a manner or to an extent not previously authorized. See the discussion provided above regarding H.R. 200. 

Sec. 448 would block funding for the rule protecting the lesser prairie chicken under the ESA titled  ”Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken; Threatened Status With Section 4(d) Rule for the Northern Distinct Population Segment and Endangered Status for the Southern Distinct Population Segment'” (87 Fed. Reg. 72674 (November 25, 2022)). See the discussions provided above regarding H.R. 248 and H.J. Res. 29. 

Sec. 450 blocks funding to prepare an environmental impact statement for the North Cascades Ecosystem Grizzly Bear Restoration Plan as well as funding to implement the plan. On November 14, 2022, the National Park Service and the FWS announced they’d jointly be preparing a Northern Continental Ecosystem (NCE) Grizzly Bear Restoration Plan and Environmental Impact Statement that would involve reintroduction of grizzly bears into the NCE (87 Fed. Reg. 68190). According to the agencies’ announcement, the purpose of the Grizzly Bear Restoration Plan is to determine how to restore the grizzly bear to the NCE, a portion of its historical range. The agencies further say that action is needed to: restore grizzly bears to the NCE because they are functionally extirpated from the ecosystem, contribute to the restoration of the ecosystem’s biodiversity, enhance the probability of long-term survival of grizzly bears in the NCE, and support overall grizzly bear recovery so that the species can eventually be delisted.  

Sec. 452 directs the Secretary of the Interior to reinstate the Trump-era rule delisting the gray wolf titled ‘‘Endangered and Threatened Wildlife and Plants; Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife’’ (85 Fed. Reg. 69778 (November 3, 2020)). See the discussion provided above regarding H.R. 764. 

Sec. 457 would block funding to implement the final rule uplisting the northern long-eared bat from threatened to endangered titled ‘‘Endangered and Threatened Wildlife and Plants; Endangered Species Status for Northern Long-Eared Bat’’ (87 Fed. Reg. 73,488 (November 30, 2022)). See the discussion provided above regarding H.J. Res. 49. 

Sec. 461 would block funding under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to prevent the Environmental Protection Agency (EPA) from issuing or adopting any guidance or policy, take any regulatory action, or approve any label (or label amendment) that differs in any respect from either (a) a human health assessment performed pursuant to FIFRA or (b) a carcinogenicity classification for a pesticide performed pursuant to FIFRA.  

If enacted, this provision would prohibit EPA from regulating pesticides based on the result of ecological risk assessments. Ecological risk assessments examine how wildlife, plant life, and water sources may be affected by a pesticide. Ecological risk assessments are fundamental to ensuring that pesticide registration and labeling fulfill FIFRA’s twin purposes of protecting both human health and the environment. Under FIFRA, EPA must ensure that pesticides are registered and labeled to avoid “unreasonable adverse effects on the environment,” i.e., “any unreasonable risk to [humans] or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide,” or human dietary risk from pesticide residue in food.  

This provision also would bar EPA from ensuring that pesticides are approved and regulated to protect the environment, including vulnerable plant and animal species and their ecosystems. It would also likely prevent EPA from complying with its obligation under the ESA to consult with FWS and NMFS to ensure its actions under FIFRA don’t jeopardize the survival and recovery of imperiled species. 

Sec. 486 would block funding to implement any final rule listing the dunes sagebrush lizard under the ESA pursuant to the proposed rule to list the species as endangered currently open for public comment, entitled “Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Dunes Sagebrush Lizard” (88 Fed. Reg. 42661 (July 3, 2023)). See the discussion provided above regarding H.R. 4558. 

Sec. 487 would prohibit the EPA from using funds to “finalize, implement, administer, or enforce the decisions” proposed in EPA’s “Proposed Interim Decisions for the Rodenticides,” released on November 29, 2022. The proposed Interim Decisions have been developed as part of the pesticide registration review process and if finalized would place additional usage restrictions on 11 rodenticides. Some of these usage restrictions were developed in order to avoid jeopardizing three listed species under upcoming ESA consultations – Attwater’s prairie chicken, Stephens’ kangaroo rat, and the California condor – as well as avoiding adverse modification of critical habitat for the California condor. 

The additional mitigation measures proposed would not prohibit use of these pesticides but would simply require users take commonsense measures to avoid harming non-target species like the listed species above. Such mitigation measures include things such as mandating bait be put in tamper-resistant boxes and requiring users to collect rodent carcasses to avoid non-target organisms scavenging rodents poisoned by the bait. The decisions would also require users of these 11 rodenticides to consult EPA’s dynamic online Endangered Species Protection Bulletins system, which sets forth geographical restrictions on pesticides that the EPA can update in response to new scientific information. 

EPA identified these measures as necessary to avoid jeopardizing the existence of these three species, and blocking implementation of these measure could doom them to extinction. This would interfere with scientific decision-making under both the ESA and FIFRA. The California condor has been one of the ESA’s most visible success stories; this provision could erase decades of hard work bringing this species back from the brink. The two other species, while not as well-known, are important parts of the American landscape. Fewer than 200 Attwater’s prairie chickens still exist in the wild, limited to two populations in a small section of Texas. Stephen’s kangaroo rat, an important keystone species where it resides, is similarly restricted in range and reliant on rodenticide management to reach recovery goals.  

Sec. 491 directs the Secretary of the Interior to reinstate the final rule delisting the Greater Yellowstone population of grizzly bears entitled “Endangered and Threatened Wildlife and Plants; Removing the Greater Yellowstone Ecosystem Population of Grizzly Bears from the Federal List of Endangered and Threatened Wildlife” (82 Fed. Reg. 30502 (June 30, 2017)). Sec. 491 further bars judicial review of the reissued rule. See the discussion provided above regarding H.R. 1245. 

Sec 501 would prevent FWS from finalizing or implementing the proposed rule to list the Salina mucket (Potamilus metnecktayi) and Mexican fawnsfoot mussel (Truncilla cognata) as endangered under the ESA and designate critical habitat for both species. These two mussel species are native to the Rio Grande drainage in Texas and Mexico, where they occur in medium to large rivers in the drainage area. Both species are thought to have been extirpated from most of their historical range, and currently inhabit comparatively short lengths of river with only a single population of each found in Texas and both species completely eliminated in Mexico. Both species have suffered, and continue to suffer, through increased sedimentation and other changes in water quality and quantity from human development and water management practices. 

On July 23, 2023, FWS proposed to list both species as endangered and designate critical habitat for them, with approximately 200 river miles qualifying as critical habitat for the Salina mucket, and 185 river miles qualifying as critical habitat for the Mexican fanwnsfoot. Preventing this rule could doom these Rio Grande mussels to extinction and allow further degradation of the species’ riverine habitat which will impair its ecological functioning and health. As with the other attempts to use appropriations bills to interfere with the Services’ management of imperiled species, it would short-circuit the listing process of the ESA and substitute political for scientific decisions. 

Sec. 506 would undermine the ESA – and subvert the agency rulemaking process – by prohibiting FWS from completing the rulemaking process on three proposed regulations to update how the ESA is implemented. If enacted, the amendment would prevent FWS from making final decisions on the proposed regulations, thus keeping in place harmful Trump-era regulations, and prohibiting the agency from implementing important updates to bring the rules back into conformity with the ESA and ensure robust decision-making firmly grounded in the law and the science. See the discussion provided regarding H.R. 5504 and S. 2811. 

Sec. 512 would undermine the ESA and the Marine Mammal Protection Act (MMPA) – and would subvert the agency rulemaking process – by prohibiting any funds appropriated in the Interior bill from being used to “finalize, implement, administer, or enforce” the proposed rule to expand the existing 2008 vessel speed rule. The expansion is necessary to protect the critically endangered North Atlantic right whale. The most recent population estimate of approximately 360 individual right whales, with only 70 reproductively active adult females, may reflect a slowing of the general decline we have seen in recent years, but it is too soon to tell. The species continues to be at significant risk of functional extinction within a few short decades. On August 1, 2022, NMFS proposed a rule to amend the 2008 North Atlantic right whale vessel speed rule to further reduce the likelihood of mortalities and injuries to endangered right whales from vessel collisions. Vessel strikes are the second leading cause of mortality and injury to adult North Atlantic right whales (after entanglements).

A December 2022 rider added to the FY2023 Omnibus appropriations bill at the behest of the Maine congressional delegation effectively prevents NMFS from finalizing a new regulation to directly address right whale entanglements in the American lobster and Jonah crab fishery, the number one threat to adult whales before December 31, 2028. Thus, the need to address the number two threat to these whales has taken on even more importance. 

The impact of this rider is likely mitigated by the fact that it applies to funds appropriated under the Interior Appropriations bill, which does not have jurisdiction over Commerce, NOAA and NMFS, the agencies responsible for the development of the rule, nor does it have jurisdiction over the Coast Guard, which has a role in enforcing it. Within the Interior bill, the funding for Council on Environmental Quality may be the most relevant to this issue.  

Sec. 517 would weaken protections for the critically endangered Rice’s whale in the Gulf of Mexico by prohibiting any funding from going towards the implementation of a recent settlement agreement that would: 1) exclude Rice’s whale habitat from any lease sales that occur while a lawsuit stay is in effect, 2) require future oil and gas leaseholders to reduce the risks of vessel strikes to Rice’s whale throughout their northern Gulf habitat, including requiring any lease sales during the stay to require a 10 knot vessel speed for oil and gas-related vessels in Rice’s whale habitat, and 3) notify existing oil and gas leaseholders of the threat that vessels pose to Rice’s whales and encourage them to adopt recommended speed reductions. The risk of being struck and killed by a vessel is a primary threat to the survival of the 51 remaining Rice’s whales and oil and gas vessel transits represent 40 percent of the vessel strike risk in the Gulf. Avoiding Rice’s whale habitat in leasing and slowing down while transiting the species’ habitat are bare minimum protections to save the species from extinction in the near term.

The settlement agreement was reached on July 21, 2023, by the Sierra Club, Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network and NMFS. Federal courts recently enjoined the federal government’s ability to include protective restrictions as agreed to in the settlement agreement in Lease Sale 261, which will be held on December 20, 2023.

Sec. 521 would prevent FWS from finalizing or implementing the proposed rule to list the Texas kangaroo rat (Dipodomys elator) as endangered under the ESA and designate critical habitat for the species. The Texas kangaroo rat is a nocturnal rodent in the Kangaroo rat genus (Dipodomys) named for their tendency to hop like kangaroo. The primary threat to the Texas kangaroo rat has been habitat loss and degradation, driven largely by historical land use change. The species is impacted by direct land use change through agriculture as well indirectly through the loss of American bison and black-tailed prairie dog, as well as periodic natural wildfire, all of which helped maintain the short grasses interspersed with woody cover and bare ground that the Texas kangaroo rat relies on. 

FWS first identified the Texas kangaroo rat as a species that may warrant listing as endangered or threatened in 1982, more than 40 years ago. On August 17, 2023, FWS proposed to list the Texas kangaroo rat as endangered and identified approximately 597,069 acres across five counties in Texas as falling within the boundaries of the proposed critical habitat designation. Preventing this rule could doom the Texas kangaroo rat to extinction.   

This amendment would prevent FWS from finalizing or implementing the proposed rule to list the salamander mussel (Simpsonaias ambigua) as endangered under the ESA and designate critical habitat for the species. The salamander mussel, also known as the mudpuppy mussel, occurs in rivers, streams, and lakes in 14 states, as well as the province of Ontario. The species is unique among freshwater mussels in that it attaches to an amphibian (the mudpuppy, Necturus maculosus) in its larval stage rather than a fish. The primary threats to the salamander mussel are contaminants, lack of connectivity (including from dams and water control structures), hydrological regime, invasive species, and vulnerability of its mudpuppy hosts, and at least 40% of its historical populations have been completely extirpated with most of the remaining populations are under high risk from these primary threats. As with other freshwater mussel species, the salamander mussel is an indicator species whose presence or absence in a given water body can be a measure of water quality and ecological health, as well as a filter feeder able to remove sediment from the water column and improve water quality.

On August 22, 2023, FWS proposed to list the species as endangered and designate critical habitat, with approximately 2,012 river miles determined as qualifying as critical habitat. Preventing this rule could doom the salamander mussel to extinction and allow industry interests to take further actions to harm the ecological health of our rivers, streams, and lakes.

This amendment would block federal funding under the ESA for the Northen Continental Divide Ecosystem (NCDE) population of grizzly bears, thwarting recovery efforts and leaving stakeholders uncertain about whether projects can go forward without violating the ESA. The grizzly bear is listed as threatened under the ESA throughout the lower 48 states and FWS has identified six recovery areas in the United States including the NCDE. See also the discussion of H.R. 1364, H.R. 1419, and S. 2571. 

This amendment would add language to Sec. 452 of H.R. 4821 which directs the Secretary of the Interior to reinstate the scientifically indefensible Trump-era rule delisting the gray wolf. The language added by the amendment would bar judicial review of the reissuance of the rule undermining the rule of law that holds government officials accountable in the courts. See also the discussion of H.R. 764.

This amendment would prohibit the EPA from using funds to “finalize, implement, administer, or enforce the decisions” proposed in EPA’s “Proposed Interim Decisions for the Rodenticides,” released on November 29, 2022. See also the discussion of H.R. 4821, Sec. 487 to which it is identical. 

This amendment would block federal funding under the ESA for the grizzly bear in the lower 48 states where the species is listed as threatened, thwarting recovery efforts and leaving stakeholders uncertain about whether projects can go forward without violating the ESA. The amendment would strip protections from the Greater Yellowstone and Northern Continental Divide populations, the struggling grizzly bear populations in the Cabinet-Yaak, Selkirk Mountain, and Bitterroot ecosystems, and prevent federal reintroduction of the species in the North Cascades ecosystem. See also the discussion of S. 2571. 

H.R. 5239 would intervene in the regulatory process, undermining NOAA’s ability to propose regulations under the ESA and MMPA to protect one of our most endangered whales from extinction. 

Rice’s whale is the only great whale species resident year-round in U.S. waters. It is also acutely vulnerable to vessel strike, as it spends the majority of its time near the ocean surface. In a 2020 Biological Opinion, NOAA found that mortalities from vessel strikes are likely to exceed—by more than ten times —what the species can sustain. 

Like amendments and legislation targeted at the proposed rule to amend the existing North Atlantic right whale vessel strike reduction rule, H.R. 5239 would indefinitely delay conservation measures for this critically endangered species and would prioritize congressional interference over a reliance on the best available science for conservation policymaking. It prohibits NOAA Fisheries from issuing an interim or final rule that establishes a vessel slowdown zone in the Gulf of Mexico until the Secretary of Commerce completes a study demonstrating that proposed mitigation efforts would have no net negative impact on supply chains or maritime commerce. “Demonstrating no net negative impact on supply chains or maritime commerce” would of course delay such rulemaking indefinitely, if not block it permanently. It also requires the Department of Commerce to develop mitigation protocols that make use of any monitoring system designed under section 11303 of the Don Young Coast Guard Authorization Act of 2022 (16 U.S.C. 1391) to direct sector-specific mitigation measures that reduce risk to Rice’s whales but forbids those protocols from including any prohibitions on transit at night or implementation of a static vessel slowdown zone. There is currently no new proposed speed limit to protect Rice’s Whale. 

Vessel strikes, along with oil and gas development, pose an existential threat to the Gulf whale, with estimated mortalities from large ships and oil and gas industry vessels (according to NOAA) far exceeding the species’ ability to sustain them. With fewer than 100, and possibly as few as 50 of these whales left, the species cannot wait years for meaningful action.  More than 100 marine scientists, including some of the country’s leading experts on marine mammal conservation, have called for slow-downs of vessels transiting through the whales’ habitat. “Unless significant conservation actions are taken,” they stated, “the United States is likely to cause the first anthropogenic extinction of a great whale species.
 

H.R. 5504 would undermine the ESA – and subvert the agency rulemaking process – by prohibiting FWS and NMFS from completing the rulemaking process on three proposed regulations to update how the ESA is implemented. On June 22, 2023, the FWS and NMFS published a joint proposed rule to update the ESA section 4 regulations, governing how species are listed (or uplisted, downlisted, or delisted) and how both occupied and unoccupied critical habitat is designated. The same day, the two wildlife agencies also published a joint proposed rule to update the ESA Section 7 regulations on interagency cooperation, governing how federal agencies must consult with the wildlife agencies to ensure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or destroy or adversely modify designated critical habitat. Separately, the same day, the FWS published a proposed rule to reinstate the “blanket 4(d) rule” for threatened species, such that the ESA Section 9 prohibitions will apply by default to any species listed as threatened, unless the FWS publishes a species-specific 4(d) rule to tailor section 9’s statutory prohibitions to the needs of that species. 

If enacted, the bill would prevent FWS and NMFS from making final decisions on the proposed regulations, thus prohibiting the agencies from implementing important updates to bring the regulations back into conformity with the ESA and ensure robust decision-making firmly grounded in the law and the science. Over the fifty years that FWS and NMFS have implemented the ESA, the two agencies have developed significant technical expertise on how best to implement the statute to effectuate Congress’ stated purpose of protecting and recovering species and the habitats they depend on. The bill would enshrine instead regulatory revisions promulgated during the Trump administration that were legally and scientifically infirm, some of which the Biden administration has proposed to roll back while others must still be addressed. This bill is yet another attack on the scientific integrity of the ESA and the authority conferred by Congress on the expert wildlife agencies to implement it. See also the discussion of S. 2811 provided further below.
 

Language in Title I of H.R. 5893 would prohibit NOAA from amending or withdrawing the North Atlantic vessel strike reduction rule until NOAA has fulfilled the requirements of section 11303(e) of the James M.  Inhofe National Defense Authorization Act for Fiscal Year 2023 (16 U.S.C. 1391). See the discussion regarding H.R. 4323 and Amendment #29 to H.R. 1.

Section 601 prohibits NOAA from using funds to issue incidental take authorizations under the MMPA for any activity related to offshore wind energy development, conducted under rights granted by lease numbers OCS-A 0532; OCS-A 0498; OCS-A 0499; OCS-A 0549; or OCS-A 0490; until the Comptroller General of the United States submits the study requested on May 15, 2023, on the impact of wind leasing on marine mammals and endangered species, to the House and Senate Appropriations Committees, the House Natural Resources Committee and the Senate Energy and Natural Resources Committee.

Section 602 prohibits NOAA or any part of the Department of Commerce from using any funds to enforce any vessel speed restriction for the North Atlantic right whale or the Rice’s whale that was not in place prior to January 20, 2021. This language may not  affect the Coast Guard’s role in enforcement but would  block any Commerce role in enforcement of any current or future proposal to amend the existing 2008 right whale vessel strike reduction rule. There is  no current proposal for new vessel speed restrictions in the Gulf of Mexico for Rice’s whale, but this  would prevent enforcement of any future Rice’s whale measure.  

 H.R. 6008 would indefinitely delay conservation measures -- such as a proposed rule to designate critical habitat for Rice’s whale as well as the development of a new biological opinion. With fewer than 100 left on the planet – and possibly as few as 50 – this species doesn’t have the time to wait. The bill would also undermine the ESA and MMPA by prioritizing congressional interference over a reliance on the best available science for conservation policymaking. In addition, the bill also explicitly favors the oil and gas industry by carving out areas where the industry’s interests should receive special consideration. 

More specifically, the bill dictates that compliance with the 2020 Biological Opinion (BiOp), which NOAA Fisheries is currently reevaluating, is sufficient to comply with the ESA, MMPA and all other federal environmental laws for current and future federally regulated oil and gas program activities in the Gulf of Mexico under the Outer Continental Shelf Lands Act (OCSLA). In the BiOp, NOAA Fisheries determined that the Outer Continental Shelf (OCS) Oil and Gas Program in the Gulf of Mexico poses a risk to the Rice’s whale, and that BOEM and BSEE could adequately mitigate risk associated with the program by adopting a “reasonable and prudent alternative” to protect the species.  Conservation groups subsequently sued NOAA Fisheries, contending that the BiOp understated the risk of the program to the Rice’s whale and that the reasonable and prudent alternative was insufficiently protective. In July 2023, the groups and NOAA Fisheries reached a settlement agreement to stay the litigation so that the agency could update the BiOp.

The bill also prohibits NOAA Fisheries, BOEM and the Secretary of the Interior from excluding acreage to protect the Rice’s whale from leasing in the Gulf OCS Oil and Gas Lease Sale 261, and imposing lease stipulations that limit vessel operation in Lease Sale 261 until a new biological opinion is complete. Significantly, federal courts recently enjoined the federal government’s ability to include protective restrictions as agreed to in the settlement agreement in Lease Sale 261 (that will be held on December 20, 2023). Additionally, the legislation delays the development and release of a new biological opinion until NOAA Fisheries finalizes two rules, including the proposed rule designating critical habitat for the Rice’s whale. Finally, the bill requires additional opportunities for stakeholder engagement during the development of a new BiOp, opportunities which would prove to be very helpful to the oil and gas industry.  

H.R. 6393 would amend section 9 of the ESA to remove any protections from take under the ESA for sturgeon and their progeny that are held in captivity or in a controlled environment as of the date of passage of this bill, for example in aquaculture facilities. Most sturgeon species are imperiled due to overharvesting and habitat modification, including the construction of dams that can block migration to spawning grounds. There are currently 19 U.S. and foreign sturgeon species listed under the ESA (14 endangered, five threatened), five proposed for endangered status, and five being considered for listing as either candidate species or through a current petition process. At least two of the sturgeon species proposed for endangered status, the Russian and stellate sturgeons, are currently being grown in U.S. aquaculture operations.

This bill would remove the Services’ ability to make necessary, science-based decisions as to what protections certain captive sturgeon populations might need. The ESA does not preclude responsible sturgeon aquaculture and the Services have mechanisms to protect wild populations while allowing captive breeding. For example, the FWS allows aquaculture of the threatened but commercially valuable beluga sturgeon and its caviar in the United States through a liberal 4(d) rule. Sturgeon hatcheries for listed species such as the pallid sturgeon and the Gulf sturgeon are critically important to recovery of those species. The west coast population of white sturgeon is listed as endangered, but the east coast population is not, and the species is commonly grown in aquaculture facilities in the U.S. See also the discussion of S. 2870 provided further below.
 

H.R 6784 would gut the ESA by allowing FWS and NMFS to issue watered-down protections when they list species as endangered. When Congress passed the ESA, it made a clear distinction between endangered species (those at risk of extinction) and threatened species (those that may become endangered in the foreseeable future). Endangered species under the current law are generally extended protections from “take” – i.e., killing, harassment, collection, etc., – while threatened species may receive species-specific rules (called “4(d) rules”) which can be weaker than the protections extended to endangered species so long as those protections are “necessary and advisable” to provide for the conservation of the species. FWS has determined that most threatened species listed to the present have still needed the same take protections that are extended to endangered species.   

This bill would largely eliminate the distinction between threatened and endangered species and allow less-stringent 4(d) rules for endangered species which could allow different forms of take, and thus fundamentally weaken the strong protections for endangered species that have driven the ESA’s successes over the past 50 years. Weak 4(d) rules could allow take even where such take is the primary threat to the species. Congress held that endangered species needed automatic protection against unpermitted take because halfway measures were not sufficient to save these species from extinction. While proponents of this bill suggest that it would better allow economic activities to go forward where they may impact endangered species, there already exists a comprehensive permitting system where those carrying out such activities can work with the Services to receive permits for incidental take of such species. 

H.R. 7408, the so-called America’s Wildlife Habitat Conservation Act, would gut critical ESA protections for imperiled species and undermine basic scientific processes under the guise of funding conservation.  

This misleadingly titled bill includes language that would strip protections from ESA-listed species and undermine the use of science as a critical component of ESA implementation. One extreme provision would weaken protections for threatened species by allowing states to develop their own recovery strategies, which could then be used as the basis for an individual 4(d) rule allowing take of the species, even if the strategy is not based on the best available science. The bill would also weaken these 4(d) rules – and 4(d) rules generally – by requiring the Services to build in provisions that phase out protections over time, forcing the agencies to sabotage their own recovery goals as the species moves toward delisting.  

Further, H.R. 7408 would expand the 2018 “Cottonwood” rider to eliminate certain reinitiation of consultation requirements under the ESA, specifically exempting the Forest Service and Bureau of Land Management from updating their land management plans based on “new information” about harm occurring to threatened or endangered species that live on public lands. Such new information often includes increasingly severe climate change impacts on wildlife, like drought and uncharacteristic forest, grassland, or brush fires. Reinitiation of consultation is rare but important for managing imperiled species in a rapidly changing world. See the discussion regarding H.R. 200 for more information on “Cottonwood.” 

H.R. 7408 would also drastically reduce how critical habitat designation could occur on private lands, which provide habitat to more than two-thirds of threatened and endangered species.   

The bill’s sponsors tout it as an improvement on state-led conservation funding, but the maximum level of funding for at-risk species outlined in H.R. 7408 is a mere $300 million -- a stark contrast to the estimated $1.6 to $2.3 billion needed to reverse the decline of ESA-listed species alone. Further, the bill does not guarantee funding, but rather relies on annual Congressional appropriations – a highly politicized process which makes it unlikely that conservation efforts would ever be allocated the full $300 million and putting downward pressure on other crucial conservation programs which are already inadequately funded through the appropriations process. By codifying an unreliable funding mechanism and low ceiling for conservation, the bill would make it significantly harder to address the chronic underfunding of the federal agencies chiefly responsible for implementing the Endangered Species Act, the nation’s best tool for giving our wildlife a fighting chance against extinction. H.R. 7408 would also rescind over $1.4 billion in Inflation Reduction Act funding for NOAA, the Council on Environmental Quality, and the Bureau of Reclamation, further harming wildlife and their habitat by taking away vital conservation resources.  

H.R. 7408 is a trojan horse for imperiled species – it would undermine and gut the ESA, making it significantly more difficult to protect threatened and endangered wildlife across the country, while leaving conservation chronically underfunded. 

H.R. 7817, the “Michigan Sturgeon Protected and Exempt from Absurd Regulations (SPEAR) Act”, would exempt lake sturgeon populations in Michigan from receiving ESA protections, even if the species is listed as threatened or endangered everywhere else in the United States. The SPEAR Act disregards the FWS’s positive 90-day finding that an ESA listing for lake sturgeon may be warranted throughout its entire range – including Michigan. Indeed, the SPEAR Act rewrites the Endangered Species Act itself to preclude lake sturgeon in Michigan from ever being listed, no matter how dire their circumstances or close to extinction they become. Lake sturgeon populations in the United States have declined an astonishing 99 percent over the past century and have been completely extirpated in many of their historical spawning grounds.

If passed, this bill could set a dangerous precedent allowing politicians to pick and choose which species are afforded ESA protections in their state, even if their reasoning is not based on the best available science. Granting state-specific exemptions would blatantly undermine the authority of the Endangered Species Act, which is designed to provide consistent and robust protection for imperiled species across the entire country. More generally, amending the ESA to grant species-by-species or state-by-state exemptions would set the stage for further attacks and, as exemptions pile up, would prevent it from meeting its mandate to protect imperiled species from extinction, no matter the cost.  

Further, species do not adhere to state boundaries. Allowing exemptions in one state could disrupt conservation efforts that span multiple states, leading to delayed species recovery and inefficient use of the limited resources provided for ESA implementation. The ESA already contains sufficient flexibility through designations of distinct population segments or 4(d) rules to allow responsible harvesting of some populations when appropriate, but those decisions should always be based on scientific judgment rather than political interference.

The SPEAR Act would not only set a precedent allowing states to undermine the ESA, but also harm lake sturgeon in Michigan, which the USFWS found may require ESA protection to prevent its extinction.  

S. 445 requires the Secretary of the Interior to reissue a rule promulgated by the FWS in 2017 delisting the Greater Yellowstone population of grizzly bears and held unlawful by the U.S. Court of Appeals for the Ninth Circuit. S. 445 also bars judicial review of the reissued rule. See the discussion provided above regarding H.R. 1245. The legislation is identical to H.R. 1245.  

S. 771 would prohibit the listing of any non-native species as threatened or endangered under the ESA. Under current law, foreign species can be listed under the ESA, with the primary protection being a general prohibition on importing, possessing, or trading in the species in interstate or foreign commerce, alive or dead. This restriction is separate from the provisions set forth in the ESA implementing the Convention on the International Trade in Endangered Species (CITES). Foreign species listed as threatened or endangered under the ESA are not necessarily regulated under CITES and vice versa. Under section 8 of the ESA, the federal government also gains the authority to use specific funding sources to promote conservation of foreign ESA-listed species abroad. 

If passed, S. 771 would be catastrophic for global conservation. The bill’s sponsor has argued that this bill is the same as H.R. 1558, introduced by Rep. Moran (R-TX) under the same name. However, the bills are significantly different. While H.R. 1558 would remove protections from foreign ESA-listed species once they are in the United States, this bill would prevent foreign species from being listed under the ESA entirely. Though the bill specifies that it prohibits listing “living nonnative species,” listing under the ESA applies to the species as a whole rather than the living or non-living segment of it, so this qualifier would likely not have any effect. 

The bill’s sponsor has also argued that this would promote conservation by removing so-called regulatory burdens for those involved in captive breeding of exotic species. However, instead of just “removing regulatory burdens,” this bill would prevent foreign species from receiving the protection of the ESA in the first place. 

 Species on the brink of extinction could be imported, hunted, and killed without limits. Roadside zoos and captive hunting ranches could mistreat, breed, and commercialize these species without oversight and without regard for their welfare and genetic health. This bill would incentivize wildlife trafficking around the world, including by organized criminal and terrorist groups, and could greatly expand the trade both domestically and globally in both living and dead imperiled species. The federal government would also lose a valuable tool in promoting conservation of imperiled species abroad.  

Senate Joint Resolution 9 would disapprove, pursuant to the CRA, the FWS’s rule published November 25, 2022, listing two distinct population segments (DPSs) of the lesser prairie-chicken as threatened and endangered, respectively. See the discussion provided above regarding H.R. 248, H.J. Res. 29, and Sec. 448 in H.R. 4821.  

Senate Joint Resolution 23 would disapprove, pursuant to the CRA, the Services’ joint rule published June 24, 2022 repealing the Trump administration’s definition of “habitat” under the ESA. See the discussion provided above regarding H.J. Res. 46. 

Senate Joint Resolution 24 would disapprove, pursuant to the CRA, FWS’s reclassification of the northern long-eared bat (Myotis septentrionalis) from threatened to endangered. See the discussion provided above regarding H.J. Res. 49 and Sec.457 of H.R. 4821.  

S. 1540 is similar to H.R. 200, the Forest Information Reform Act. See the discussion provided above on H.R. 200. It would excuse the Forest Service and BLM from being required to reinitiate Section 7 consultation under the ESA on certain land management plans when a new species is listed, critical habitat is designated, or new information concerning a listed species or critical habitat becomes available on certain forests or grasslands. 

S. 1788, directs the Secretary to issue a rule delisting the population of gray wolves in Minnesota, Wisconsin, and Michigan’s Upper Peninsula within one year. By forcing the delisting of the gray wolf in the Great Lakes states, the bill undermines the scientific integrity of the ESA. The bill would also preempt the scientific process initiated this year by FWS to update its status review of the gray wolf throughout the lower-48 states, including the Great Lakes, and initiate a stakeholder engagement effort. FWS anticipates issuing a proposed rule concerning the listing status of gray wolves in the lower-48 states by February 2, 2024. S. 1788 preempts this review, substituting Congress’s political judgment for that of the expert wildlife agency charged with implementing the ESA.  

The gray wolf is an iconic keystone species that plays a vital role in keeping ecosystems healthy. Gray wolf populations in the United States were decimated by decades of predator control programs, as well as loss of habitat and prey. Since receiving protection under the ESA in 1974, the gray wolf has begun a comeback, but remains far from recovered.   

S. 1833 would undermine the ESA and the MMPA – and would subvert the agency rulemaking process – by preventing NOAA from issuing a final vessel speed rule until a real-time monitoring system is deployed. The proposal to expand the existing vessel speed rule is necessary to protect the critically endangered North Atlantic right whale. See the discussion regarding H.R. 4323.

While it is very unlikely to advance in its current version as a stand-alone bill, it was one of the first major attacks on NOAA’s proposed expansion of the 2008 right whale vessel speed rule, and seems to have been incorporated in part, or in some cases in full, in subsequent legislative attacks. 

S. 1895 directs the Secretary of the Interior to reissue the final rule published November 3, 2020, delisting the gray wolf within 60 days of enactment. The bill bars judicial review of the Secretary’s action delisting the wolf. See the discussion provided above regarding H.R. 764. The legislation is identical to H.R. 764.  

S. 2571 directs the Secretary to delist the grizzly bear throughout the lower-48 states within two years of enactment. The Secretary is also directed to initiate the process to delist any “distinct population segment” of grizzly bear within the lower-48 that has “met the established recovery criteria for that distinct population segment.” The bill bars judicial review of the Secretary’s action delisting the lower-48 population. This bill is broader than H.R. 1245, H.R. 1364 and H.R. 1419 in that it would not only delist the Greater Yellowstone and Northern Continental Divide populations but it would also strip protections from the struggling grizzly bear populations in the Cabinet-Yaak, Selkirk Mountain, and Bitterroot ecosystems, and prevent federal reintroduction of the species in the North Cascades ecosystem.  

Similar to Sec.116 of H.R. 4821, Sec. 119 of S. 2605 continues the perennial rider which has been included in Interior appropriations bills since 2014 prohibiting FWS from considering greater sage-grouse and the Columbia Basin distinct population segment of the species for protection under the ESA. See the discussion of Sec. 116 above. However, the Senate rider differs from the House version in that it does not expand the language to include the bi-state population of greater sage-grouse found only on the California-Nevada border.  

S. 2811 would undermine the ESA – and subvert the agency rulemaking process – by prohibiting FWS and NMFS from completing the rulemaking process on three proposed regulations to update how the ESA is implemented. If enacted, the bill would prevent FWS and NMFS from making final decisions on the proposed regulations, thus prohibiting the agencies from implementing important updates to bring the regulations back into conformity with the ESA and ensure robust decision-making firmly grounded in the law and the science. The bill would enshrine instead regulatory revisions promulgated during the Trump administration that were legally and scientifically infirm. See also the discussion of H.R. 5504 provided above.

S. 2870 would amend section 9 of the ESA to remove any protections from take under the ESA for sturgeon and their progeny that are held in captivity or in a controlled environment as of the date of passage of this bill, for example in aquaculture facilities. Most sturgeon species are imperiled due to overharvesting and habitat modification, including the construction of dams that can block migration to spawning grounds. This bill would remove the Services’ ability to make necessary, science-based decisions as to what protections certain captive sturgeon populations might need. See also the discussion of H.R. 6393 provided above.

This bill would indefinitely delay conservation measures for Rice’s whale and undermines the MMPA and ESA by prioritizing congressional interference over a reliance on the best available science for conservation policymaking. The bill also explicitly favors the oil and gas industry by carving out areas where the industry’s interests should receive special consideration. The legislation prevents the Secretaries of Commerce and Interior from issuing rules or offshore oil and gas lease requirements or recommendations that establish vessel speed or vessel operational restrictions. It also requires the Departments to complete a study demonstrating that any mitigation protocols developed to protect Rice’s whales will not negatively impact supply chains, United States offshore energy production and generation, military activities, and United States commercial and recreational fishing or maritime commerce. See also the discussion regarding H.R. 5239. 

The bill also requires the Secretary of Commerce and Secretary of Defense to include a national security exemption in any interim or final rule establishing a vessel speed or vessel operational restriction for any length of time in targeted planning areas in the Gulf. Finally, the bill defines “core habitat” with respect to Rice’s whales as the same definition given to the term “Bryde’s whale area” in the March 2020 “Biological Opinion on the Federally Regulated Oil and Gas Program Activities in the Gulf.” Critically, this definition would not take into account other areas of the Gulf where the whales have recently been detected – areas of the Gulf which are being included in the new proposed critical habitat designation.
 

A Motion to Instruct (MTI) by Senator Marco Rubio would have instructed Senate NDAA conferees to insist that the final conference report retain Sec.1853 that had been included in the House bill and would have also required relevant agencies to craft a national security exception to the proposed rule designating critical habitat for Rice’s whale under the ESA. 

S. 3963, the “Native Species Protection Act”, would strip ESA protections from every species found exclusively within the borders of a single state. Given that approximately 77 percent of all listed species nationwide reside in only one state, including almost all species in Hawaii, which has the most listed species of any state, passage of this bill would be a devastating blow to the ESA and the species it protects.  

Most states lack the necessary laws and resources to prevent species declines and extinctions on their own. Declining resident species are only listed under the ESA because states have already failed to stop their decline. This bill would all but guarantee extinction for most of the approximately 1,200 imperiled intrastate species like the Palila (Hawaiian finch-billed honeycreeper), polar bear, Key deer, Puerto Rican parrot, Texas kangaroo rat, and more. Passage of this bill would not protect native species as its title suggests, but rather promote more species extinctions.