[House Report 116-469]
[From the U.S. Government Publishing Office]


116th Congress  }                                              {  Report
                         HOUSE OF REPRESENTATIVES
 2d Session     }                                              {  116-469

======================================================================



 
PROTECT AMERICA'S WILDLIFE AND FISH IN NEED OF CONSERVATION ACT OF 2019

                                _______
                                

 August 7, 2020.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Grijalva, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4348]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4348) to terminate certain rules issued by the 
Secretary of the Interior and the Secretary of Commerce 
relating to endangered and threatened species, and for other 
purposes, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of H.R. 4348 is to terminate certain rules 
issued by the Secretary of the Interior and the Secretary of 
Commerce relating to endangered and threatened species, and for 
other purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    The world is losing species at unprecedented rates,\1\ and 
strong endangered species protections are necessary to prevent 
future extinctions.
---------------------------------------------------------------------------
    \1\See generally Sandra Diaz, Josef Settele & Eduardo Brondizio et 
al., Intergovernmental Sci.-Pol'y Platform on Biodiversity & Ecosystem 
Servs., Summary for Policymakers of the Global Assessment Report on 
Biodiversity and Ecosystem Services of the Intergovernmental Science-
Policy Platform on Biodiversity and Ecosystem Services Advance Unedited 
Version (2019), https://www.ipbes.net/sites/default/files/downloads/
spm_unedited_advance_for_posting_htn.pdf.
---------------------------------------------------------------------------
    The Endangered Species Act\2\ (ESA) was signed into law in 
1973 by President Nixon with overwhelming bipartisan support 
from Congress. The U.S. Fish and Wildlife Service (FWS) and the 
National Oceanic and Atmospheric Administration acting through 
the National Marine Fisheries Service (collectively, the 
``Services'') are the two federal agencies that implement the 
ESA.
---------------------------------------------------------------------------
    \2\Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 
(1973), https://uscode.house.gov/statviewer.htm?volume=87&page=884 
(codified as amended largely at 16 U.S.C. Sec. Sec. 1531 et seq.; see 
https://uscode.house.gov/table3/93_205.htm).
---------------------------------------------------------------------------
    On August 27, 2019, the Trump administration published 
three final rules\3\ to the ESA that change the implementation 
of the law.\4\ It is the Committee's view that these new rules 
undermine the intention of the law.
---------------------------------------------------------------------------
    \3\Endangered and Threatened Wildlife and Plants; Regulations for 
Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. 44,753 
(Aug. 27, 2019), https://www.govinfo.gov/content/pkg/FR-2019-08-27/pdf/
2019-17519.pdf; Endangered and Threatened Wildlife and Plants; 
Regulations for Interagency Cooperation, 84 Fed. Reg. 44,976 (Aug. 27, 
2019), https://www.govinfo.gov/content/pkg/FR-2019-08-27/pdf/2019-
17517.pdf; Endangered and Threatened Wildlife and Plants; Regulations 
for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 
45,020 (Aug. 27, 2019), https://www.govinfo.gov/content/pkg/FR-2019-08-
27/pdf/2019-17518.pdf.
    \4\Pervaze A. Sheikh, Erin H. Ward & R. Eliot Crafton, Cong. Res. 
Serv., IF10944, Final Rules Changing Endangered Species Act Regulations 
(updated Sept. 25, 2019); ESA Implementation  
Regulation Revisions, U.S. Fish & Wildlife Serv., https://www.fws.gov/
endangered/improving_ESA/regulation-revisions.html (last updated Sept. 
25, 2019).
---------------------------------------------------------------------------
    First, the new regulations allow the Services to evaluate 
economic factors alongside species listing decisions, which is 
contrary to the spirit of the ESA. The ESA requires listing 
determinations to be based ``solely on the basis of the best 
scientific and commercial data available,'' regardless of 
potential economic impacts.
    Second, FWS has historically afforded threatened species 
the same protections as endangered species, under the ``blanket 
4(d) rule.''\5\ A threatened species is defined as one that is 
``likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its 
range.''\6\ However, the new rules eliminate the blanket 4(d) 
rule for FWS listing decisions, which will result in threatened 
species no longer receiving these guaranteed protections under 
the ESA as they have for nearly 40 years. Under the new 
regulations, a newly listed threatened species will not receive 
protections unless issued a special 4(d) rule.
---------------------------------------------------------------------------
    \5\The name is a reference to ESA Section 4(d), which requires the 
relevant Secretary to issue a regulation that is as ``necessary and 
advisable'' to conserve a species when it is newly listed as 
threatened. Pub. L. No. 93-205, Sec. 4(d), 487 Stat. at 888 (codified 
as 16 U.S.C. Sec. 1533(d)).
    \6\16 U.S.C. Sec. 1532(20).
---------------------------------------------------------------------------
    Third, the new regulations change the definition of 
``foreseeable future,'' interpreting the foreseeable future as 
extending in time only as far as the Services can reasonably 
determine that future threats and the species' response to 
those threats are ``likely.'' While the ESA does not define the 
term ``foreseeable future,'' a 2009 Department of Interior 
Solicitor's Memorandum Opinion concluded that ``Congress 
intended the term `foreseeable future' to describe the extent 
to which the [agency] can reasonably rely on predictions about 
the future in making determinations about the future 
conservation status of the species.''\7\ Under the new 
regulation, the Services will determine the foreseeable future 
on a case-by-case basis, which could allow the Services to 
ignore any threats caused by climate change.
---------------------------------------------------------------------------
    \7\Memorandum M-37021 from David Longly Bernhardt, Solicitor, U.S. 
Dep't of the Interior, to the Acting Director, U.S. Fish & Wildlife 
Serv. (Jan. 16, 2009), https://www.fws.gov/endangered/esa-library/pdf/
M-37021%20Foreseeable%20future.pdf (``The Meaning of `Foreseeable 
Future' in Section 3(20) of the Endangered Species Act'') (citation 
omitted).
---------------------------------------------------------------------------
    Fourth and finally, the new regulations allow the Services 
to create exemptions for critical habitat designations, 
particularly unoccupied critical habitat, which is often 
essential for the conservation and recovery of the species. A 
key feature of the ESA is the protection of critical habitat of 
threatened and endangered species. Previous regulations have 
made it clear that critical habitat ``will'' be designated 
unless such designation ``would not be beneficial to the 
species,''\8\ and previous practice has also protected 
unoccupied habitat. Furthermore, Section 7 of the ESA requires 
federal agencies to consult with the Secretary to ensure their 
actions will not jeopardize species' survival or destroy or 
degrade critical habitat. Through Section 7, Congress 
prohibited federal agencies from taking any action that would 
result in the ``destruction or adverse modification'' of 
critical habitat.\9\ Thus, by limiting critical habitat 
designations, the new rules also clip the wings of Section 7 
consultations and the extent to which those consultations can 
contribute in a positive way toward the recovery of threatened 
and endangered species.
---------------------------------------------------------------------------
    \8\50 C.F.R. Sec. 424.12(a)(1)(ii) (2018), https://www.govinfo.gov/
content/pkg/CFR-2018-title50-vol11/pdf/CFR-2018-title50-vol11-sec424-
12.pdf.
    \9\16 U.S.C. Sec. 1536(a)(2).
---------------------------------------------------------------------------
    H.R. 4348 repeals all three of the Trump administration's 
rules. Despite chronic underfunding of the ESA, 99 percent of 
species listed under the ESA have not gone extinct,\10\ and the 
ESA continues to enjoy bipartisan support across our 
country.\11\ This bill maintains the integrity of the ESA to 
continue recovering species on the brink of extinction based on 
the best available science, as Congress intended.
---------------------------------------------------------------------------
    \10\U.S. Fish & Wildlife Serv., Endangered Species Recovery 
Program, at 2 (2011), https://www.fws.gov/endangered/esa-library/pdf/
recovery.pdf.
    \11\Jeremy T. Bruskotter et al., Support for the U.S. Endangered 
Species Act Over Time and Space: Controversial Species Do Not Weaken 
Public Support for Protective Legislation, Conservation Letters (2018), 
https://conbio.onlinelibrary.wiley.com/doi/pdf/10.1111/conl.12595; see 
also Support for the Endangered Species Act Remains High as Trump 
Administration and Congress Try to Gut It, PBS: News Hour (July 21, 
2018, 1:50 PM EDT), https://www.pbs.org/newshour/science/support-for-
the-endangered-species-act-remains-high-as-trump-administration-and-
congress-try-to-gut-it (citing id.); Ctr. for Biological Diversity, 
Defs. of Wildlife & Endangered Species Coalition, a Wild Success: 
American Voices on the Endangered Species Act at 40 (2014), https://
www.biologicaldiversity.org/campaigns/esa_wild_success/pdfs/
A_Wild_Success.pdf (collecting sources).
---------------------------------------------------------------------------

                            COMMITTEE ACTION

    H.R. 4348 was introduced on September 17, 2019, by Chair 
Raul M. Grijalva (D-AZ). The bill was referred solely to the 
Committee on Natural Resources, and within the Committee to the 
Subcommittee on Water, Oceans, and Wildlife. On September 24, 
2019, the Subcommittee held a hearing on the bill. On January 
29, 2020, the Natural Resources Committee met to consider the 
bill. The Subcommittee was discharged by unanimous consent. 
Representative Paul A. Gosar (R-AZ) offered an amendment in the 
nature of a substitute designated #195. The amendment was not 
agreed to by a roll call vote of 15 yeas and 22 nays, as 
follows:


    No additional amendments were offered. The bill was adopted 
and ordered favorably reported to the House of Representatives 
by a roll call vote of 21 yeas and 16 nays, as follows:


                                HEARINGS

    For the purposes of section103(i) of H. Res. 6 of the 116th 
Congress--the following hearing was used to develop or consider 
H.R. 4348: legislative hearing held by the Subcommittee on 
Water, Oceans, and Wildlife on September 24, 2019.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

Section 2. Termination of regulations relating to endangered and 
        threatened species and restoration of prior regulations

    This section repeals the three final rules for the ESA 
issued on August 27, 2019, and mandates that the rules have no 
force or effect. The repealed rules are: ``Endangered and 
Threatened Wildlife and Plants; Regulations for Prohibitions to 
Threatened Wildlife and Plants''; ``Endangered and Threatened 
Wildlife and Plants; Regulations for Interagency Cooperation''; 
and ``Endangered and Threatened Wildlife and Plants; 
Regulations for Listing Species and Designating Critical 
Habitat.''\12\
---------------------------------------------------------------------------
    \12\See sources cited supra note 3.
---------------------------------------------------------------------------

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                  COMPLIANCE WITH HOUSE RULE XIII AND 
                        CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, June 1, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4348, the PAW and 
FIN Conservation Act of 2019.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                          Phillip L. Swagel
                                                          Director.
    Enclosure.

    
    

    H.R. 4348 would void three regulations related to the 
Endangered Species Act (ESA) that were issued by the U.S. Fish 
and Wildlife Service (USFWS) and the National Oceanic and 
Atmospheric Administration (NOAA) in 2019. Among other changes, 
those regulations:
           Clarified the criteria for delisting a 
        species under the ESA,
           Changed the process for how federal agencies 
        consult with USFWS and NOAA before starting a project 
        that could affect a listed species, and
           Rescinded certain protections automatically 
        applied to species listed as threatened.
    CBO expects that implementing H.R. 4348 would not 
significantly affect the workload of USFWS or NOAA. Based on 
the costs of similar tasks, we estimate that any costs to issue 
new regulations or guidance under the bill would be 
insignificant; any spending would be subject to the 
availability of appropriated funds.
    Enacting H.R. 4348 could increase civil and criminal 
penalties under the ESA (which are recorded as revenues) and 
the associated direct spending of those penalties. CBO expects 
that additional violations of the ESA would occur infrequently 
and we thus estimate that the net reduction in the deficit 
under the bill would be insignificant over the 2020-2030 
period.
    H.R. 4348 contains intergovernmental and private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA). 
CBO cannot determine whether the cost of the mandates would 
exceed the thresholds established in UMRA ($84 million and $168 
million in 2020, respectively, adjusted annually for 
inflation).
    The bill would revoke a rule that allows USFWS to establish 
species-specific protections for any species added to the 
threatened species list. Thus, under H.R. 4348 the agency could 
set different and possibly more rigorous restrictions for any 
species designated after enactment as threatened. (Current 
proposals call for 11 species to be added to the threatened 
list.)
    Private and public entities could be required to meet 
stricter criteria for forest or soil management and to obtain 
permits for construction in regions where those threatened 
species would be found. Because USFWS has not issued species-
specific regulations for each potential designated species, CBO 
cannot determine how much the bill would tighten restrictions 
for those species or how much it would cost entities to comply 
with possibly tighter restrictions.
    The CBO staff contacts for this estimate are Janani 
Shankaran (for federal costs) and Lilia Ledezma and Brandon 
Lever (for mandates). The estimate was reviewed by H. Samuel 
Papenfuss, Deputy Director of Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goals and 
objectives of this bill are to terminate certain rules issued 
by the Secretary of the Interior and the Secretary of Commerce 
relating to endangered and threatened species.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    According to CBO, H.R. 4348 contains intergovernmental and 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA). CBO cannot determine whether the cost of the 
mandates would exceed the thresholds established in UMRA ($84 
million and $168 million in 2020, respectively, adjusted 
annually for inflation).
    The bill would revoke a rule that allows USFWS to establish 
species-specific protections for any species added to the 
threatened species list. Thus, under H.R. 4348 the agency could 
set different and possibly more rigorous restrictions for any 
species designated after enactment as threatened. (Current 
proposals call for 11 species to be added to the threatened 
list.)
    Private and public entities could be required to meet 
stricter criteria for forest or soil management and to obtain 
permits for construction in regions where those threatened 
species would be found. Because USFWS has not issued species-
specific regulations for each potential designated species, CBO 
cannot determine how much the bill would tighten restrictions 
for those species or how much it would cost entities to comply 
with possibly tighter restrictions.

                           EXISTING PROGRAMS

    This bill does not establish or reauthorize a program of 
the federal government known to be duplicative of another 
program.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW

    Any preemptive effect of this bill over state, local, or 
tribal law is intended to be consistent with the bill's 
purposes and text and the Supremacy Clause of Article VI of the 
U.S. Constitution.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes to existing 
law.

                            DISSENTING VIEWS

    This bill voids the amendments to parts 17, 402, and 424 of 
Title 50, Code of Federal Regulations, made by final rules 
promulgated by the Secretary of the Interior and the Secretary 
of Commerce under the Trump Administration. These regulations 
are discussed in more detail below, but all involve the 
administration of the Endangered Species Act (ESA). This bill 
would undermine necessary regulatory progress made by the Trump 
Administration to provide more transparent and consistent 
regulations to stakeholders who are constantly navigating 
hurdles within the law. Interior and Commerce issued these 
final rules after completing the necessary public review 
process as required by law and should be applauded for their 
efforts to provide more regulatory certainty to an otherwise 
complex and onerous law.
    Paragraph 1 voids the final rule promulgated by the 
Secretary of the Interior entitled ``Endangered and Threatened 
Wildlife and Plants; Regulations for Prohibitions to Threatened 
Wildlife and Plants'' (84 Fed. Reg. 44753 (August 27, 2019)). 
This rule involves species-specific ESA section 4(d) rules 
being issued concurrently with listing or reclassification 
determinations for threatened species. In an effort to 
streamline administration of rules, improve efficiency and 
transparency the rule rescinds the blanket protections of 
previous regulations in favor of allowing species-specific 4(d) 
rules concurrently with any listing or reclassification.
    Paragraph 2 voids the final rule promulgated by the 
Secretary of the Interior and the Secretary of Commerce 
entitled ``Endangered and Threatened Wildlife and Plants; 
Regulations for Interagency Cooperation'' (84 Fed. Reg. 44976 
(August 27, 2019)). This rule clarifies measures within the ESA 
section 7 consultation process which regulates interagency 
cooperation.
    Paragraph 3 voids the final rule promulgated by the 
Secretary of the Interior and the Secretary of Commerce 
entitled ``Endangered and Threatened Wildlife and Plants; 
Regulations for Listing Species and Designating Critical 
Habitat'' (84 Fed. Reg. 45020 (August 27, 2019)). This rule 
modifies portions of procedures and criteria for listing or 
delisting animal or plant species as threatened or endangered 
as well as designating critical habitat.
    At a September 24, 2019, Subcommittee on Water, Oceans and 
Wildlife hearing on the bill, a representative from the U.S. 
Fish and Wildlife Service testified in opposition to the bill 
and reiterated the Administration's commitment to ensuring that 
``the ESA works for the American people and for the species it 
protects.'' The Administration witness went on to clarify the 
recently finalized rules ``seek to improve implementation of 
the ESA by increasing transparency and the effectiveness of the 
law. The rules ensure that delistings are not held to a higher 
standard than listings, allow a reasonable approach to critical 
habitat designations, allow economic information to be included 
to increase transparency for the public, allow a tailored 
approach to get the level of protection for threatened species 
right, and clarify our regulations for consultations.'' The 
finalized rules are in line with the ultimate goal of the ESA, 
species recovery. The legislation would gut a noble proposal by 
the Trump Administration to encourage collaborative 
conservation actions from a broad range of partners, which 
would ultimately make the ESA more effective in reaching the 
fundamental goal of species recovery and eventual return of 
management of recovered species to the States. The proposed 
legislation would do nothing but continue to halt the Trump 
Administration's progress at making the ESA actually work as 
intended. For these reasons, many Republicans oppose H.R. 4348.

                                   Rob Bishop (UT).
                                   Louie Gohmert.
                                   Tom McClintock.
                                   Paul A. Gosar.