Weakening of endangered species protections will face Hawaii legal and Congressional pushback

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Changes to the Endangered Species Act could put Hawaii plants and animals at risk, while giving more weight to economics and developments affecting habitats. Always Investigating found out Hawaii environmental advocates are already preparing to go to court, while some in Hawaii’s congressional delegation aim to block the changes.

The U.S. Department of the Interior said this week it is changing how the nearly 50-year-old Endangered Species Act is enforced. A cost-benefit analysis will now go into deciding whether a species should be saved. And anything classified in the future as threatened will be stripped of protections that currently mirror endangered species.

“This will ensure that ESA implementation is more clear and consistent across agencies,” said Secretary David Bernhardt, head of the Department of the Interior. “I cannot stress enough, that a more efficiently implemented act is more effective.”

Always Investigating has found out that legal and congressional challenges from Hawaii are already being teed up to challenge the new rules.

“We’re going to be headed back to court,” said David Henkin, an attorney with the Hawaii office of Earthjustice. “We’re combing through them making sure we line up the best, the strongest arguments to point out to the court why many of these proposals have already been ruled by the courts to be illegal, to be contrary to the letter of the law”

Hawaii’s congressional delegation aims to take on the changes from another angle, pushing for reversal of the rule changes.

“The Trump administration, they don’t have the power to overrule the will of congress,” Henkin said. “They can’t change the law. The quicker we can get the rules off the books, the better it’s going to be for Hawaii’s more than 500 endangered and threatened species. We are the endangered species capital of the nation, and if we don’t protect our natural heritage here, we’re going to lose it forever.”

Some of the biggest risks are to plants and animals that are troubled but haven’t yet been classified as endangered, hanging on by a thread as “threatened” classifications.

“These are species like our green sea turtles, species like the newel shearwater,” Henkin said. “Right now, those species have protection the same as endangered species. You can’t kill them, you can’t harm them, you can’t harass them. Under the Trump proposal, any species in the future that is listed as threatened will have no protection at all.”

“The change impacts only future threatened species’ listings or reclassifications from endangered to threatened status and does not apply to species already listed as threatened,” the U.S. Department of the Interior explained. “The U.S. Fish and Wildlife Service will craft species-specific rules for each future threatened species determination as deemed necessary and advisable for the conservation of the species, as has been common practice for many species listed as threatened in recent years.”

The rule changes also have the potential to encroach on or eliminate areas where species live, breed and feed without the current mandate to replace it — similar or better — elsewhere.

“Basically, you could destroy any portion of this essential recovery habitat,” Henkin explained. “Let’s say our beaches, which are threatened by climate change and rising ocean levels. That harms our monk seals, which need those beaches to pull up on to have their pups. It harms our threatened and endangered sea turtles, which need those beaches to lay their eggs.”

As for impacts on situations where growth and development collide with environmental concerns, the new rules would let economics play a role.

“Whether a species is endangered or threatened is a scientific decision,” Henkin said. “It’s based on the science, not based on economics, not based on a popularity contest. Once you start throwing the dollars and cents around you create a whole different way of looking at protecting species where they’re on the auction block and how much do you care about it to save it?”

“The revisions finalized with this rulemaking fit squarely within the president’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”

The state Department of Land and Natural resources told Always Investigating: “We are obviously concerned…Though we are uncertain of the potential impacts of these changes to the federal law, Hawaii has some of the most protective endangered species state laws… and these protections will not be affected.”.

The new rules at the federal level come just as critical environmental reviews in Hawaii are underway that affect Hawaii’s endangered native bats.

Two different Maui windfarm companies say the devices are on pace to kill or harm far more Hawaiian hoary bats than originally projected before the facilities were built.

Both Kaheawa Wind Power II (Lahaina) and Auwahi Wind (Makawao) are seeking to raise the allowable kill limits four and five times above the state-approved level. Kaheawa is asking to be allowed 38 incidental “takes” of the bats, instead of 11 originally projected, according to its draft supplemental EIS. Auwahi Wind is seeking 140 incidental takes instead of the original 21, based on its final supplemental EIS.

“Based on the mitigation efforts, no adverse impacts to either species is anticipated,” Kaheawa Wind Power II’s draft supplemental EIS says, adding that the project will “provide a net benefit to the species.”

Auwahi Wind’s final supplemental EIS states: “current and pending actions…are expected to fully mitigate for their take and provide a net benefit to the species.”

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