Rebecca Hays Barho Comments on Proposed Species Permitting Merger

Rebecca Hays Barho was featured in the Bloomberg Government article, “Trump’s ‘Radical’ Species Permitting Merger Carries Legal Risks” (subscription required).

The article examines if the legal foundation for the Trump administration’s proposed merger of endangered species permitting under a single office is viable and explores if Congress needs to amend the law in order to allow the merger to move forward.

Currently, the Endangered Species Act (ESA) is administered by the Commerce Department’s National Marine Fisheries Service (NMFS) and the Interior Department’s U.S. Fish & Wildlife Service (USFWS). Under the proposal, which was unveiled through the FY 2027 budget proposed by the White House, ESA administration would rest with the Department of the Interior. In its budget justification for the merger, Interior wrote that the merger would allow USFWS to “take over the workload of listing, delisting and consulting on projects impacting endangered species and have sufficient funding to maintain marine mammal stock assessments.”

Under the ESA and a 1970 federal government reorganization plan, the Secretary of Commerce (acting through NMFS) oversees endangered and threatened marine and anadromous species while the Secretary of the Interior (acting through the USFWS) oversees terrestrial and freshwater species. The White House explained that consolidating ESA administration will streamline permitting since permitting by “separate agencies has created unnecessary red tape, increased costs, delayed approvals and produced inconsistent outcomes for permittees.”

Commenting on the issue, Rebecca said, “The law is explicit about the Secretary of Commerce having the authority to administer the ESA for species in its jurisdiction. The proposed budget does not provide the legal mechanism by which NMFS’ duties could be re-assigned to USFWS, and it’s unclear whether this could be done absent action by Congress.”