A bald eagle looks for food from its perch in a tree above the Mohawk River in February in Cohoes. Endangered species in New York will mostly remain protected despite changes to the federal Endangered Species Act because of overlapping state law, though significant gaps exist.
Lori Van Buren/Times Union
A fisherman releases a fish he caught in the Hudson River near the Troy Dam in 2012. Many sturgeon were seen jumping from the river. A regional environmental group is concerned about the endangered fish’s well-being after the Trump administration rolled back parts of the Endangered Species Act.
Philip Kamrass/Times Union
WASHINGTON — For the past several months, the Trump administration has been finalizing major changes to a federal law protecting endangered species of plants and animals, further limiting enforcement of activities that could harm them.
Changes to the Endangered Species Act began back in April. The landmark law protects 36 species in New York, including the bald eagle, eastern massasauga, and the New England cottontail. What will happen to them under the Trump administration’s new rules?
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Before, it was illegal not only to harm a species listed under the act, but also its habitat. This prevented activities like logging or drilling near where the protected species lives.
But the Trump administration changed the act’s language so that only the listed plants and animals are shielded from harm. Then, on Sept. 16, the New York Times revealed an internal memo distributed by the administration to U.S. Fish and Wildlife personnel stating that the accidental killing of endangered species would no longer be considered illegal under the act; there has to be intent to kill the species.
Natural Resources Defense Council Senior Vice President Andrew Wetzler said in a statement the Trump administration “is telling every industry in America that killing endangered wildlife is fine as long as it wasn’t their primary goal.”
“But unintentional harm is exactly what is driving many species toward extinction,” he continued. “Whales get hit by ships. Bats lose the trees they roost in. Sea turtles drown in nets. Pesticides drift onto pollinators’ habitats. Limiting the law’s scope to intentional harm, like hunting, would utterly gut (the Endangered Species Act) protections and put countless species on a path to extinction — all to line the pockets of industry executives.”
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Endangered species in New York will mostly remain protected because of overlapping state law, though significant gaps exist.
“People should not take advantage (of the federal changes) and start destroying habitats,” said Drew Gamils, senior attorney at the environmental nonprofit Riverkeeper. “There are laws to protect them.”
New York protects a broader swath of critters from harm than the federal government, listing 54 species it considers endangered. State law prohibits intentionally killing these species and limits accidental killing of these animals by construction or other activities with incidental take permits, according to the DEC.
For instance, before the Gov. Mario M. Cuomo Bridge was built over the Hudson River, the project had to get an incidental take permit in case it accidentally killed Atlantic sturgeon during construction, Gamils said. The project could only accidentally kill a specific number of sturgeon during construction.
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“We were constantly getting pictures of dead fish and trying to figure out: were they killed by the construction process, like a vessel strike or equipment, or did they just die of natural causes?” Gamils said.
However, state laws are inferior in a major way: they do not allow “citizen suits.”
Before the change in federal law, anyone could sue a party in federal court if they suspected a violation of the Endangered Species Act. Riverkeeper relies on this provision in its numerous lawsuits, including two against Coeymans-based Carver Companies over alleged Clean Water Act violations. The lawsuits were settled in August.
With the change in federal law, Riverkeeper could not act directly against a party it believed was violating state endangered species law. Instead, the groups would need to bring the issue to the state Department of Environmental Conservation and rely on the agency to enforce it, Gamils said.
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Gamils wrote in a blog post that “even if a project does not directly kill a fish, destroying the habitat it depends on can still lead to injury, death, and long-term population declines. That is exactly why habitat protection has long been a cornerstone of the (Endangered Species Act).”
The attorney said she was also concerned about the bald eagle, which is federally endangered and has been increasingly found along the Hudson River in recent decades.
On Sept. 9, state Attorney General Letitia James and 20 other attorneys general announced they filed two lawsuits in federal court challenging the changes to the federal act.
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Congress passed the Endangered Species Act in 1974, with only four of its 447 members voting against it. It was signed into law by President Richard Nixon.
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