Updated August 21, 2019
Final Rules Changing Endangered Species Act Regulations
On August 12, 2019, the Trump Administration finalized
threats and the species’ responses to those threats are
three rules that change the implementation of the
“likely,” interpreted by the Services to mean more likely
Endangered Species Act (ESA; 16 U.S.C. §§ 1531 et. seq.).
than not. The Services will determine the foreseeable future
The final rules concern Section 4 (listing of endangered and
on a case-by-case basis, based on the best data available,
threatened species) and Section 7 (consultation with federal
and need not identify a specific time period.
agencies) of ESA.
Factors Considered in Delisting a Species
The federal agencies that implement ESA include the U.S.
The final rule clarifies that the same criteria used to list a
Fish and Wildlife Service (FWS) and the National Oceanic
species will be used to delist a species. Under the final rule,
and Atmospheric Administration through the National
a listed species will be delisted if, using the best scientific
Marine Fisheries Service (NMFS). (FWS and NMFS are
and commercial data available, it is extinct, does not meet
referred to as the Services in this In Focus, and the term
the definition of an endangered species or a threatened
Secretary refers to the Secretary of the Interior or the
species, or is not a species as defined by ESA. The Services
Secretary of Commerce, as applicable). The final rules are
explain that this clarification addresses concerns that the
summarized below, including some of the Services’
standard for delisting a species is higher than the standard
explanations for the changes.
for listing a species.
Revision of the Regulations for Listing
Critical Habitat Designation
Species and Designating Critical Habitat
When a species is listed under ESA, the Secretary also must
This final rule addresses the listing of endangered and
designate critical habitat to the maximum extent prudent
threatened species and designation of critical habitat under
and determinable. Critical habitat, as defined under ESA,
Section 4 of ESA. Section 3 of ESA defines endangered
includes not only geographic areas occupied by the species
species as a species that is “in danger of extinction
at the time of listing but also areas outside that geographic
throughout all or a significant portion of its range.” A
area if the Secretary determines that such additional areas
threatened species is defined as a species that is “likely to
are essential for the conservation of the species. Federal
become endangered within the foreseeable future
agencies must ensure their actions and actions approved or
throughout all or a significant portion of its range.” The
funded by them are not likely to result in the “destruction or
Secretary determines whether a species should be listed
adverse modification” of critical habitat. Critical habitat
based on five factors related to threats to the species’
designations affect private land only if some federal action
continued existence. Listing determinations are to be made
(e.g., a license, loan, or permit) is also involved. Critical
solely on the basis of the best scientific and commercial
habitat is designated based on the best scientific data
data available.
available and after considering the economic or other
relevant impacts of the designation.
Identifying Economic Effects of Listing
The final rule removes “without reference to possible
The final rule revises the list of circumstances under which
economic or other impacts” from the regulation on listing
the Services might find it prudent not to designate critical
determinations (50 C.F.R. §424.11(b)). This change allows
habitat. It removes the circumstance that designating critical
the Services to reference the economic effects of listing
habitat would not benefit the species and replaces it with
decisions. The final rule specifically recognizes, however,
four other circumstances. For example, the Secretary could
that ESA prohibits the Services from considering economic
determine that designating critical habitat is not prudent
factors in listing decisions and that this rule does not alter
because no areas meet the definition of critical habitat or
the law to allow such factors to be considered in the
there are no habitat-based threats to the species (e.g., the
decision to list a species. The final rule states that this
conservation of a species threatened by sea level rise cannot
change “more closely align[s]” the rule to statutory
be addressed through habitat management).
language under ESA Section 4(b)(1)(A) and provides more
transparency to Congress and stakeholders on the economic
Critical Habitat in Unoccupied Areas
impacts of listing decisions.
The final rule clarifies when the Secretary may designate
unoccupied areas as critical habitat. Under ESA,
Foreseeable Future
unoccupied areas must be essential to the conservation of
The final rule creates a framework for how the Secretary
the species to be critical habitat. To determine if an
will evaluate the foreseeable future when making listing
unoccupied area is essential to the conservation of the
decisions on threatened species under ESA. The final rule
species, the Secretary must find that the occupied habitat of
interprets the foreseeable future as extending in time only
the species at the time of listing is inadequate to ensure the
as far as the Services can reasonably determine that future
conservation of the species. The Secretary also must
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Final Rules Changing Endangered Species Act Regulations
determine that it is reasonably certain the area will
Consultation Under Section 7 of ESA
contribute to the conservation of the species and that the
The final rule aims to clarify consultation procedures under
area contains at least one physical or biological feature
ESA. The final rule specifies requirements to include in a
essential to the conservation of the species, as defined in
request for formal consultation under Section 7 of ESA.
regulation. The latter criteria addresses the Supreme Court’s
These requirements include a description of the proposed
recent opinion in Weyerhaeuser Co. v. FWS, which held
action, efforts to offset effects of the action, a description of
that to be critical habitat, an area must first be habitat for
the effects of the action, and several other factors that relate
the species.
the action to the affected species. The final rule also sets
guidelines and deadlines for completing informal
Revision of Regulations for Interagency
consultations under ESA. Under the final rule, if there is a
Cooperation
request from a federal agency for concurrence with its
This final rule modifies definitions and procedures used in
determination that an action is not likely to affect a species,
implementing Section 7 consultations under ESA. Under
the Services must provide a written concurrence or non-
Section 7 of ESA, if federal actions or actions of nonfederal
concurrence to this request within 60 days of its receipt,
parties with a federal nexus might adversely affect a listed
unless there is a mutual agreement to extend the deadline up
species or its habitat, as determined by the Secretary, the
to 120 days from the receipt of the request. The final rule
federal agencies must consult with either FWS or NMFS to
includes provisions intended to streamline Section 7
ensure that their actions are “not likely to jeopardize the
consultations and exempts certain land management plans
continued existence” of any endangered or threatened
from reinitiation of programmatic consultation when new
species or to adversely modify critical habitat. This process
species are listed and new critical habitat is designated.
is referred to as a Section 7 consultation. The term action
includes any activity authorized, funded, or carried out by a
In formulating a biological opinion, the final rule states that
federal agency, including issuing permits and licenses.
the Services can consider proposed activities that will offset
the effects of the action.
Definitions
The rule revises the definition of destruction or adverse
Revision of the Regulations for
modification of critical habitat by adding the phrase as a
Prohibitions to Threatened Species
whole to the end of the definition and deleting a sentence
This final rule modifies FWS’s approach to extending
from the same definition that addressed effects from actions
prohibitions to threatened species. Section 4(d) of ESA
that alter physical and biological features essential for the
requires that species listed as threatened under ESA be
conservation of the species or delay the development of
regulated “to provide for the conservation of such species.”
such features. Adding as a whole to the definition is
Before the final rule, FWS implemented species-specific
intended to clarify the appropriate scale of the effect of the
4(d) rules, which can deviate from protections provided for
destruction or adverse modification of critical habitat. For
endangered species and be tailored to address the
example, according to the final rule, if a project affects a
conservation of the species, for a limited number of species.
portion of critical habitat, the Services would “place those
For most threatened species, FWS extended all prohibitions
impacts in context of the designation to determine if the
provided for endangered species to the threatened species
overall value of the critical habitat is likely to be reduced.”
through a default regulation known as the blanket 4(d) rule.
NMFS did not establish a blanket 4(d) rule and has
The final rule changes the definition of effects of the action
implemented species-specific 4(d) rules for all species
by combining direct and indirect effects into effects and
listed as threatened.
removing the reference to environmental baseline. Under
the final rule, effects of the action include all consequences
Under the final rule, the blanket 4(d) rule will no longer
to listed species or critical habitat that are caused by the
apply to species listed as threatened after the rule takes
proposed action. The definition specifies that a consequence
effect. Instead, species newly listed or reclassified as
is “caused by the proposed action if it would not occur but
threatened will have protective regulations only when FWS
for the proposed action and it is reasonably certain to
promulgates a species-specific 4(d) rule. This provision is
occur.” The Services provide a two-part test to identify a
not retroactive, so the blanket 4(d) rule will continue to
consequence: (1) whether the effect or activity would not
apply to threatened species listed before the rule takes
occur but for the action and (2) whether the effect or
effect, unless FWS promulgates a species-specific 4(d) rule
activity is reasonably certain to result from the action.
for the species. FWS’s rationale for changing its approach
is that eliminating the blanket 4(d) rule will more closely
The final rule defines programmatic consultation.
align FWS policy with that of NMFS and that species-
Programmatic consultation is a consultation that addresses
specific 4(d) rules will incentivize conservation, reduce the
multiple agency actions on a program, region, or other
need for permitting for certain actions, and streamline
basis. Such consultations allow federal agencies to consult
Section 7 consultation under ESA. FWS states that while it
with the Services on multiple, frequently occurring, or
expects to promulgate a 4(d) rule concurrently with listing
routine actions in a particular geographic area and on a
or reclassifying a species as threatened, requiring the
proposed program, policy, or regulation that would provide
simultaneous promulgation of such a rule is unnecessary.
a framework for future actions.
Pervaze A. Sheikh, Specialist in Natural Resources Policy
Erin H. Ward, Legislative Attorney
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Final Rules Changing Endangered Species Act Regulations

IF10944
R. Eliot Crafton, Analyst in Natural Resources Policy


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https://crsreports.congress.gov | IF10944 · VERSION 3 · UPDATED