Updated September 25, 2019
Final Rules Changing Endangered Species Act Regulations
On August 27, 2019, the Trump Administration published
as far as the Services can reasonably determine that future
three final rules that change the implementation of the
threats and the species’ responses to those threats are
Endangered Species Act (ESA; 16 U.S.C. §§1531 et. seq.).
“likely,” interpreted by the Services to mean more likely
The final rules concern Section 4 (listing of endangered and
than not. The Services will determine the foreseeable future
threatened species; effective September 26, 2019) and
on a case-by-case basis, based on the best data available,
Section 7 (consultation with federal agencies; effective
and need not identify a specific time period.
October 28, 2019) 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
Secretary of Commerce, as applicable.) The final rules are
Services explain that this clarification addresses concerns
summarized below, including some of the Services’
that the standard for delisting a species is higher than the
explanations for the changes.
standard 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 (84 Federal Register 45020) addresses the
designate critical habitat to the maximum extent prudent
listing of endangered and threatened species and
and determinable. Critical habitat, as defined under ESA,
designation of critical habitat under Section 4 of ESA.
includes not only geographic areas occupied by the species
Under Section 3 of ESA, an endangered species is defined
at the time of listing but also areas outside that geographic
as a species that is “in danger of extinction throughout all or
area if the Secretary determines that such additional areas
a significant portion of its range.” A threatened species is
are essential for the conservation of the species. Federal
defined as a species that is “likely to become endangered
agencies must ensure their actions and actions approved or
within the foreseeable future throughout all or a significant
funded by them are not likely to result in the “destruction or
portion of its range.” The Secretary determines whether a
adverse modification” of critical habitat. Critical habitat
species should be listed based on five factors related to
designations only affect private land if some federal action
threats to the species’ continued existence. Listing
(e.g., a license, loan, or permit) is also involved. Critical
determinations are to be made solely on the basis of the best
habitat is designated based on the best scientific data
scientific and commercial 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 to not 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, the Secretary must find that
decisions on threatened species under ESA. The final rule
the occupied habitat of the species at the time of listing is
interprets the foreseeable future as extending in time only
inadequate to ensure the conservation of the species. The
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Final Rules Changing Endangered Species Act Regulations
Secretary also must determine that it is reasonably certain
Consultation Under Section 7 of ESA
the area will contribute to the conservation of the species
The final rule aims to clarify consultation procedures under
and that the area contains at least one physical or biological
ESA. The final rule specifies requirements to include in a
feature essential to the conservation of the species, as
request for formal consultation under Section 7 of ESA.
defined in regulation. The latter criterion addresses the
These requirements include a description of the proposed
Supreme Court’s 2018 opinion in Weyerhaeuser Co. v.
action, efforts to offset effects of the action, a description of
FWS, which held that to be critical habitat, an area must
the effects of the action, and several other factors that relate
first be habitat.
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 (84 Federal Register 44976)
determination that an action is not likely to affect a species,
definitions and procedures used in implementing Section 7
the Services must provide a written concurrence or
consultations under ESA. Under Section 7 of ESA, if
nonconcurrence to this request within 60 days of its receipt,
federal actions or actions of nonfederal parties with a
unless there is a mutual agreement to extend the deadline up
federal nexus might adversely affect a listed species or its
to 120 days from the receipt of the request. The final rule
habitat, as determined by the Secretary, the federal agencies
includes provisions intended to streamline Section 7
must consult with either FWS or NMFS to ensure that their
consultations and exempts certain land management plans
actions are “not likely to jeopardize the continued
from reinitiation of programmatic consultation when new
existence” of any endangered or threatened species or to
species are listed and new critical habitat is designated.
adversely modify critical habitat. This process is referred to
as a Section 7 consultation. The term action includes any
In formulating a biological opinion, the final rule states that
activity authorized, funded, or carried out by a federal
the Services can consider proposed activities that will offset
agency, including issuing permits and licenses.
the effects of the action.
Definitions
Revision of the Regulations for
The rule revises the definition of destruction or adverse
Prohibitions to Threatened Species
modification of critical habitat by adding the phrase as a
This final rule (84 Federal Register 44753) modifies FWS’s
whole to the end of the definition and deleting a sentence
approach to extending prohibitions to threatened species.
from the same definition that addressed effects from actions
Section 4(d) of ESA requires that species listed as
that alter physical and biological features essential for the
threatened under ESA be regulated “to provide for the
conservation of the species or delay the development of
conservation of such species.” Before the final rule, FWS
such features. Adding as a whole to the definition is
only implemented species-specific 4(d) rules, which can
intended to clarify the appropriate scale of the effect of the
deviate from protections provided for endangered species
destruction or adverse modification of critical habitat. For
and be tailored to address the conservation of the species,
example, according to the final rule, if a project affects a
for a limited number of species. For most threatened
portion of critical habitat, the Services would “place those
species, FWS extended most of the prohibitions that are
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 species listed as
by combining direct and indirect effects into effects and
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 6 · UPDATED

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