Note to TAS members: Please comment here before May 19 on the proposed rule by USFWS discussed below.
On May 2, to perhaps not enough fanfare, the Balcones Canyonlands Conservation Plan (BCCP) celebrated its 29th birthday. Next year, at age 30, it will need to renew its permit. Recall that the BCCP is the reason that large swaths of our region have been preserved as habitat for endangered species, including, chiefly, the Golden-cheeked Warbler and Black-capped Vireo. Those of us who are newer to Austin are lucky to have places like Travis Audubon’s Baker Sanctuary, which is included in the Balcones Canyonlands Preserve (aka BCP—not to be confused with the BCCP itself; the former is 33,000 acres of protected lands, the latter a 500-page document). We can thank those that made the BCCP possible back in 1996.
Now the permit renewal comes at an interesting crossroads moment for the warbler. Earlier this year, USFWS made two key announcements specifically regarding golden cheeks: first, it said that it was initiating a formal 12-month review process on a petition for delisting submitted by the Texas Public Policy Foundation (the result of years-long litigation discussed previously on this blog). Second—potentially mooting the first action, but running separately and in parallel—it stated that based upon the latest 5-year species status assessment, the warbler should be downlisted to threatened.
The bird remains listed as endangered, for now, as any downlisting or delisting would have to go through the lengthy formal rulemaking process: the agency would publish a proposed version of the regulation, followed by a public comment period, and then a final rule—which hasn’t happened. That was the state of play up until just a few weeks ago.
On April 17, however, USFWS did propose a rule that would affect not just the warbler, but all endangered species. It announced its plan to redefine a decades-long interpretation of the term “harm” under the Endangered Species Act: back in 1995 the U.S. Supreme Court upheld the Service’s definition of harm to include habitat modification. In other words, it’s just as much of a violation of federal law to destroy the places endangered species rely on as it is to kill an endangered species directly.
Now USFWS wants to reverse course and limit take only to an intentional act directed against a particular animal. This is an almost impossibly high standard of proof, and would severely kneecap enforcement of the Act. It would also eliminate the need to get a permit for anyone who, for instance, wants to clear Golden-cheeked Warbler habitat on their property. So it would effectively make the whole process of delisting vs. downlisting irrelevant.
If the proposed rule becomes final, even if the warbler remained fully listed as endangered, its protections would be hollowed out entirely. Within the BCP, the city and county’s obligations to maintain golden cheek habitat persist in perpetuity; but outside of the BCP, we could expect to see widespread habitat removal. And the City of Austin and Travis County would lose out on mitigation fees paid by developers who would no longer need coverage under their incidental take permit. Thankfully, they have other more secure and robust financing mechanisms in place, but it would nevertheless be a negative outcome.
What FWS has proposed is taking a wrecking ball to the ESA as it is currently understood and implemented. The future of the Golden-cheeked Warbler, already uncertain and under attack from many angles, could depend on people standing up and voicing their opposition.
