Update: The final rule concerning the listing of the rusty patched bumble bee as endangered was originally slated to go into effect on February 10, 2017, as is described below. On February 9, the Fish and Wildlife Service published a notice in the Federal Register explaining that they would abide by the Trump Administration’s 60-day regulatory freeze and delay the effective date until March 21, 2017. The Federal Register entry is available here.
Will the bee's ESA listing stand, and how might it affect agriculture?
Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On January 11, 2017, the U.S. Fish and Wildlife Service (FWS) published a final rule designating the rusty patched bumble bee (scientific name Bombus affinis) as an endangered species, the first bee in the continental U.S. to receive this status. The rule was originally slated to go into effect on February 10, 2017. If the rule is allowed to stand, it will have a number of implications for federal agencies, farmers, and other private entities.
The final rule, found in the Federal Register at 50 CFR Part 17, includes a lengthy description of the rusty patched bumble bee. The bees have black heads, and the worker bees, as well as the male bees, have a “rusty reddish patch centrally located on the abdomen,” giving them their common name. Necessities for the species include “areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sights for hibernating queens.” Additionally, the bees prefer temperate areas. The rusty patched bumble bee was found in 31 states and provinces in the 1990s. From the year 2000 and on, the bumble bee has only been found in a diminished range of 14 states and provinces. The bumble bee has been found in Ohio since 2000, but following the overall trend, at much lower rates.
Possible reversal of the rule
Since the publishing of the final rule, the Trump Administration has instituted a regulatory freeze on administrative agencies which could push back effective dates for those regulations that have not yet gone into effect by at least 60 days. In the meantime, the Congressional Review Act (CRA) may also affect the final rule. The CRA gives Congress 60 legislative days from either the date a rule is published in the Federal Register, or the date Congress receives a report on the rule, to pass a joint resolution disapproving the rule. A signature by the President is the final step required to invalidate the rule. What is more, an agency cannot submit a rule after these steps are taken that is “substantially in the same form” as the overturned rule. Historically, the CRA has not been frequently used, as success is typically only possible when a number of events align:
- There is a new presidential administration;
- Congress and the President are members of the same party;
- The previous President was a member of the opposing party; and
- The timing of rule publication or rule reporting and Congressional calendars allow for a joint resolution within the 60-day limit.
The text of the CRA is available here. With the regulatory freeze and the possible use of the CRA, it is not clear when or even if the new rule will actually go into effect.
Importance of the rusty patched bumble bee
The rusty patched bumble bee is a pollinator species, meaning they, along with other pollinators, assist with the reproduction of flowers, crops, and grasses. According to a FWS fact sheet, in the United States, the rusty patched bumble bee and other insects’ pollination is worth $3 billion annually.
The Endangered Species Act
What exactly is the process for listing a species as “endangered?” The Endangered Species Act’s (ESA) definition of an endangered species is: “any species which is in danger of extinction throughout all or a significant portion of its range.” Accordingly, the ESA allows the FWS to designate species as endangered or threatened as long as one (or more) of five factors apply:
- (A) The present or threatened destruction, modification or curtailment of its habitat or range;
- (B) Overutilization for commercial, recreational, scientific, or educational purposes;
- (C) Disease or predation;
- (D) The inadequacy of existing regulatory mechanisms; or
- (E) Other natural or manmade factors affecting its continued existence. 16 USC 1533.
In the case of the rusty patched bumble bee, the FWS found that factors (A), (C), and (E) applied. For factor (A), which concerns loss of habitat and range, the FWS cited past encroachment by residential, commercial, and agricultural development. Additionally, agriculture has contributed to the replacement of plant diversity with monocultures, which has resulted in loss of food for the bees. What is more, the range of the rusty patched bumble bee has faced an 87% reduction, as well as an 88% drop in the number of recognized populations.
Concerning factor (C), FWS pointed to a number of diseases and parasites that have afflicted the rusty patched bumble bee. Finally, for factor (E), the FWS identified more numerous hot and dry periods, pesticide and herbicide use, and reproductive issues that have contributed to the reduction of the species. Due to its findings and the factors discussed, the FWS determined that the rusty patched bumble bee is “in danger of extinction throughout its range,” and therefore designated it as endangered.
Significance of ESA listing
After a species is labeled “endangered,” what happens next? In order to facilitate recovery of a species, the ESA also calls for, to the “maximum extent prudent and determinable,” a critical habitat designation to be made for the species. The term “critical habitat” does not apply to everywhere the species is found. Instead, “critical habitat” can be certain places both inside and outside the overall “geographical area occupied by the species” that are found to be “essential” to its preservation. In the case of the rusty patched bumble bee, the FWS has not yet determined its critical habitat.
Implications for agriculture
Under the ESA, federal agencies and private entities have different responsibilities. Federal agencies generally must make sure that any action they are involved in will not do harm to an endangered species or its critical habitat. For the most part, private entities are not affected by critical habitat unless financial aid or approval is sought from a federal agency.
Even though critical habitat concerns do not explicitly apply to private entities, the ESA does contain provisions that prohibit the importing, exporting, possession, sale, delivery, transport, shipping, receiving, or carrying of an endangered species in the United States or in foreign commerce. What is more, the ESA prohibits the “taking” of endangered species within the United States or in the ocean. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” an endangered species, or to attempt to do so (emphasis added). It is important to note that “harm” is defined as “an act which actually kills or injures fish or wildlife…includ[ing] significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Thus, even though the designation of an endangered species and its critical habitat does not explicitly affect private entities, the definitions of “take” and “harm,” when read together, implicitly prohibit actions that are damaging to the species or its habitat. The FWS rule defining “harm” can be found here. The government can assess penalties against those who violate these provisions.
Farmers and other private entities should be aware of the designation of a species as endangered. In the case of the rusty patched bumble bee, if the rule is allowed to stand, private landowners, including farmers, would not be allowed to “take” or “harm” the bee or destroy its critical habitat. Given the important role pollinators like the rusty patched bumble bee play in making agriculture possible, we can assume that agriculture will want to protect the species. But due to the nature of this species, it will be difficult to ascertain when a farmer’s actions do “take” or “harm” a rusty patched bumble bee. The nature of the species and the future status of the rule create much uncertainty on how agriculture will address the rusty patched bumble bee going forward.
Transition Incentives Program aims to help new and disadvantaged farmers obtain land.
The Farm Bill's new Transition Incentives Program (TIP) is now available in Ohio. The addition to the Conservation Reserve Program (CRP) will provide rental payments to transition CRP land from a retired farmer to a beginning or socially disadvantaged farmer who returns the land to sustainable production. TIP received $25 million in funding from the 2008 Farm Bill. Program supporters hope the funds will enable beginning and socially disadvantaged farmers to obtain affordable land for agricultural production.
Here's how the program will work:
- The CRP landowner must be a "retired" or "retiring" landowner.
- The CRP contract must expire on or after September 30, 2010, but there is an exception for certain contracts that expired in 2008 and 2009.
- The landowner must enroll all or a portion of the CRP land in TIP by the enrollment deadline. Contracts expiring in 2010 and eligible 2008 and 2009 contracts must be enrolled by September 30, 2010. Later contracts must be enrolled during the last year of the contract.
- The new or socially disadvantaged farmer or rancher must develop a conservation plan for the TIP land.
- By October 1 of the CRP contract expiration year, the landowner must agree to sell or lease (for a minimum of five years) the land to a non-family "beginning" or "socially disadvantaged" farmer or rancher and must allow the farmer to make improvements on the land in accordance with the approved conservation plan.
- The beginning or socially disadvantaged farmer must return the land to production using sustainable grazing or crop production methods.
- The beginning or socially disadvantaged farmer will be eligible to enroll the land in continuous CRP, Conservation Stewardship Program or Environmental Quality Incentives Program, with a waiver of the provision requiring 12 months of continuous ownership.
- The landowner will receive up to two additional CRP annual rental payments if all TIP requirements are met.
A few important definitions:
- A "retired or retiring" owner is one who has ended active labor as a crop producer, or plans to do so within five years of the TIP arrangement.
- A "new or beginning farmer or rancher" is one who has been farming for less than ten years and who will materially participate in the operation of the TIP land. If an entity, at least 50% of the entity's members or stockholders must meet the ten year, material participation requirements.
- A "socially disadvantaged farmer or rancher" is a member of a group that has been subject to racial or ethnic prejudice. Examples include American Indians, Alaskan Natives, Asians, Asian-Americans, Blacks, African Americans, Hispanics. Unlike other federal programs, this definition does not encompass gender prejudice; hence, women do not qualify as socially disadvantaged for purposes of the TIP program.
A few questions arise when considering whether there will be interest in TIP. Are there sufficient incentives for the CRP landowner to transition the land, are there connections between CRP landowners and beginning or socially disadvantaged farmers, and how will the rental payment affect the purchase or lease price for the land? Ohio will soon have an indication of program interest, with the first enrollment deadline of September 30, 2010 quickly approaching.
For more information on TIP, visit the FSA site.