August 8, 2018
Description of Proposed Changes to Implementation of the
Endangered Species Act
On July 25, 2018, the Trump Administration proposed three
Factors Considered in Delisting a Species
rules that would change implementation of the Endangered
The proposed rule states that the same criteria used to list a
Species Act (ESA; 16 U.S.C. 1531 et. seq.). The proposed
species will be used to delist a species. Specifically, a listed
rules are open for public comment until September 24,
species will be delisted if, using the best scientific and
2018. The federal agencies that implement ESA include the
commercial data available, it is extinct, does not meet the
U.S. Fish and Wildlife Service (FWS) and the National
definition of an endangered or threatened species, or cannot
Oceanic and Atmospheric Administration through the
be defined as a species under the law. The proposal states
National Marine Fisheries Service (NMFS). FWS and
that this clarification would address concerns that the
NMFS are referred to as action agencies in this In Focus,
standard for delisting a species is higher than the standard
and the term Secretary refers to the Secretary of the Interior
for listing a species.
unless otherwise stated. The proposed rules are summarized
below without an analytical discussion, although some
Critical Habitat Designation
Administration explanations of the changes are included.
When a species is listed under ESA, the Secretary also must
designate critical habitat. Critical habitat, as defined under
Listing Species and Designating Critical
ESA, includes not only geographic areas occupied by the
Habitat
species at the time of listing but also areas outside that
The first proposed rule addresses the listing of species and
geographic area, if the Secretary determines that such
designation of critical habitat under Section 4 of ESA. A
additional areas are essential for the conservation of the
species may be designated as either endangered or
species. Federal agencies must avoid “destruction or
threatened, depending on the severity of its decline and
adverse modification” of critical habitat, either through
threats to its continued survival. Under Section 3 of ESA,
their direct action or activities that they approve or fund.
an endangered species is defined as a species that is “in
Private land is affected by critical habitat designation only
danger of extinction throughout all or a significant portion
if some federal action (e.g., a license, loan, or permit) also
of its range.” A threatened species is defined as a species
is involved. Critical habitat is designated on the basis of the
“likely to become endangered within the foreseeable future
best scientific data available and after taking into
throughout all or a significant portion of its range.” The
consideration the economic or other relevant impacts of the
determination of whether a species should be listed is based
designation.
on several scientific factors related to a species and threats
to its continuance. Listing determinations are to be made
The proposed rule provides a list of circumstances under
only on the basis of the best scientific data available.
which the action agencies might find it prudent not to
designate critical habitat. This could occur, for example, if
Identifying Economic Effects of Listing
designating critical habitat would result in a greater chance
The proposed regulation would allow the action agencies—
of the species being harmed by human activity because its
in their listing decision and at their discretion—to include
habitat is identified (e.g., by encouraging vandals or
an analysis of the economic effects of the listing. The
poachers), if areas do not meet the definition of critical
proposed rule specifically states that this change would not
habitat, or if there are no habitat-based threats to the
allow economic factors to be considered in the decision to
species.
list the species. The proposed rule states that this change
would “more closely align” the rule to statutory language
Critical Habitat in Unoccupied Areas
under ESA Section 4(b)(1)(A).
The proposal would allow the Secretary to designate
unoccupied areas as critical habitat if the occupied habitat
Foreseeable Future
of the species at the time of listing is inadequate to ensure
The proposed rule would create a framework for how the
the conservation of the species or results in less efficient
Secretary would consider the foreseeable future in making
conservation of the species than habitat that includes
listing decisions regarding threatened species under ESA.
unoccupied areas.
The proposal interprets the foreseeable future as extending
in time only as far as the action agencies can reasonably
Under the proposal, for an unoccupied area to be essential
determine that conditions that potentially could put a
for the conservation of the species, the Secretary is to
species in danger of extinction are probable and can be
determine that there is a likelihood that the area would
reasonably determined or are reliable. Under the proposal,
contribute to the conservation of the species, according to
the foreseeable future would be determined on a case-by-
the proposal. In this coming 2018-2019 term, the Supreme
case basis based on the best data available.
Court will address, among other things, whether ESA
prohibits FWS from designating private land as unoccupied
https://crsreports.congress.gov
Description of Proposed Changes to Implementation of the Endangered Species Act
critical habitat essential for the conservation of the
proposal, is a Section 7 consultation that addresses multiple
endangered dusky gopher frog based solely on the multiple
agency actions on a program, region, or other basis. It
breeding sites on the land. The Court is scheduled to hear
allows federal agencies to consult with FWS or NMFS, for
oral argument for this case, Weyerhaeuser Co. v. FWS, on
example, on multiple, frequently occurring, programmatic
October 1, 2018.
actions in a geographic area and on a proposed program,
policy, or regulation that would provide a framework for
Regulations for Interagency Cooperation future actions. The proposal also seeks comment on
The second proposed rule would modify definitions and
instances when federal agencies would not be required to
procedures used in the implementation of Section 7
consult under Section 7 of ESA. These instances, as
consultations under ESA. The proposal addresses the
discussed in the proposal, are when (1) the federal agency
definitions of some terms and phrases, notably the
does not anticipate “take” and the action does not affect
definition of destruction or adverse modification and effects
listed species and habitat; (2) there are effects that are
of the action.
manifested in global processes that cannot be reliably
predicted, result in insignificant effects, or have potential
Definitions
risk to the species that is remote; or (3) there are effects that
Under Section 7 of ESA, if federal actions or actions of
are beneficial or not capable of being measured or detected.
nonfederal parties might adversely affect a listed species or
The term take under ESA means “to harass, harm, pursue,
its habitat, as determined by the Secretary, the federal
hunt, shoot, wound, kill, trap, capture, or collect, or to
agencies must consult with either FWS or NMFS to ensure
attempt to engage in any such conduct.”
that their actions are “not likely to jeopardize the continued
existence” of any endangered or threatened species or to
The proposal seeks comment on setting a deadline for
adversely modify critical habitat. This is referred to as a
informal consultations under Section 7 of ESA and clarifies
Section 7 consultation. Action includes any activity
what is necessary to initiate formal consultation. Further,
authorized, funded, or carried out by a federal agency,
the proposal includes provisions that would streamline
including permits and licenses.
consultations to reduce the time it takes to complete them.
The proposal also includes changes to the procedures
The proposed rule would revise the definition of destruction
addressing the reinitiation of programmatic consultation for
or adverse modification by adding the phrase as a whole to
certain land management plans when new species are listed
the end of the definition and deleting a sentence from the
and new critical habitat is designated.
same definition that addresses effects from actions that alter
physical and biological features essential for the
Regulations for Threatened Species
conservation of the species and delay the development of
Section 4(d) of ESA requires that species listed as
such features. The addition of as a whole to the definition is
threatened under ESA are regulated “to provide for the
intended to clarify the appropriate scale of the effect of the
conservation of such species.” FWS generally regulates
destruction or adverse modification of critical habitat,
threatened species by extending most of the prohibitions on
according to the proposal. For example, if a project affects a
activities that are provided for endangered species, unless
portion of critical habitat, the action agencies would “place
FWS promulgates a species-specific 4(d) rule that can
those impacts in context of the designation to determine if
deviate from this standard. Extending prohibitions for
the overall value of the critical habitat is likely to be
endangered species to threatened species is referred to as
reduced,” according to the proposal.
the blanket 4(d) rule.
The proposal also would change the definition of effects of
Under the third proposed rule, FWS would no longer
the action by modifying the definition to combine direct
implement the blanket 4(d) rule. Instead, FWS would
and indirect effects into effects and removing the reference
determine appropriate protective regulations for each
to environmental baseline in the definition. Further, the
species listed as threatened on a case-by-case basis.
proposed definition would include a new sentence: “An
Species-specific rules would be required for all species
effect or activity is caused by the proposed action if it
newly listed or reclassified if the rule is finalized.
would not occur but for the proposed action and it is
According to the proposed rule, FWS states that issuance of
reasonably certain to occur.” This sentence, according to
species-specific rules would align FWS policy with that of
the proposal, would provide a two-part test for an effect
NMFS, which shares responsibility for implementing ESA
caused by the action to be evaluated: (1) whether the effect
with FWS. FWS also postulates that switching to a species-
or activity would occur regardless of the action and (2)
specific approach would “better tailor protections to the
whether the effect or activity is certain to occur as a result
needs of the threatened species while still providing
of the action.
meaning to the statutory distinction between ‘endangered
species’ and ‘threatened species.’”
Consultation Under Section 7 of ESA
The proposal contains several provisions that aim to clarify
Pervaze A. Sheikh, Specialist in Natural Resources Policy
interagency consultation under Section 7 of ESA and save
R. Eliot Crafton, Analyst in Natural Resources Policy
time and costs associated with consultation, according to
Linda Tsang, Legislative Attorney
the Administration.
IF10944
The proposed rule would define a new term: programmatic
consultation. Programmatic consultation, under the
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Description of Proposed Changes to Implementation of the Endangered Species Act
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https://crsreports.congress.gov | IF10944 · VERSION 2 · NEW