Final Rules Changing Endangered Species Act Regulations

Final Rules Changing Endangered Species Act Regulations

Updated July 11, 2022
Final Rules Changing Endangered Species Act Regulations
On August 27, 2019, the Trump Administration published
decisions on threatened species under ESA. The final rule
three final rules that change the implementation of the
interprets the foreseeable future as extending in time only
Endangered Species Act (ESA; 16 U.S.C. §§1531 et. seq.).
as far as the Services can reasonably determine that future
The final rules concern Section 4 (listing of endangered and
threats and the species’ responses to those threats are
threatened species; effective September 26, 2019) and
“likely,” interpreted by the Services to mean more likely
Section 7 (consultation with federal agencies; effective
than not. The Services will determine the foreseeable future
October 28, 2019) of ESA. On July 5, 2022, a federal
on a case-by-case basis, based on the best data available,
district court vacated and remanded all three rules to the
and need not identify a specific time period.
Services. Accordingly, the rules can no longer be enforced.
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 [FR] 45020) addresses
designate critical habitat to the maximum extent prudent
the 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
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Final Rules Changing Endangered Species Act Regulations
the occupied habitat of the species at the time of listing is
Consultation Under Section 7 of ESA
inadequate to ensure the conservation of the species. The
The final rule aims to clarify consultation procedures under
Secretary also must determine that it is reasonably certain
ESA. The final rule specifies requirements to include in a
the area will contribute to the conservation of the species
request for formal consultation under Section 7 of ESA.
and that the area contains at least one physical or biological
These requirements include a description of the proposed
feature essential to the conservation of the species, as
action, efforts to offset effects of the action, a description of
defined in regulation. The latter criterion addresses the
the effects of the action, and several other factors that relate
Supreme Court’s 2018 opinion in Weyerhaeuser Co. v.
the action to the affected species. The final rule also sets
FWS, which held that to be critical habitat, an area must
guidelines and deadlines for completing informal
first be habitat.
consultations under ESA. Under the final rule, if there is a
request from a federal agency for concurrence with its
Revision of Regulations for Interagency
determination that an action is not likely to affect a species,
Cooperation
the Services must provide a written concurrence or
This final rule modifies (84 FR 44976) definitions and
nonconcurrence to this request within 60 days of its receipt,
procedures used in implementing Section 7 consultations
unless there is a mutual agreement to extend the deadline up
under ESA. Under Section 7 of ESA, if federal actions or
to 120 days from the receipt of the request. The final rule
actions of nonfederal parties with a federal nexus might
includes provisions intended to streamline Section 7
adversely affect a listed species or its habitat, as determined
consultations and exempts certain land management plans
by the Secretary, the federal agencies must consult with
from reinitiation of programmatic consultation when new
either FWS or NMFS to ensure that their actions are “not
species are listed and new critical habitat is designated. In
likely to jeopardize the continued existence” of any
formulating a biological opinion, the final rule states that
endangered or threatened species or to adversely modify
the Services can consider proposed activities that will offset
critical habitat. This process is referred to as a Section 7
the effects of the action.
consultation. The term action includes any activity
authorized, funded, or carried out by a federal agency,
Revision of the Regulations for
including issuing permits and licenses.
Prohibitions to Threatened Species
This final rule (84 FR 44753) modifies FWS’s approach to
Definitions
extending prohibitions to threatened species. Section 4(d) of
The rule revises the definition of destruction or adverse
ESA requires that species listed as threatened under ESA be
modification of critical habitat by adding the phrase as a
regulated “to provide for the conservation of such species.”
whole to the end of the definition and deleting a sentence
Before the final rule, FWS only implemented species-
from the same definition that addressed effects from actions
specific 4(d) rules, which can deviate from protections
that alter physical and biological features essential for the
provided for endangered species and be tailored to address
conservation of the species or delay the development of
the conservation of the species, for a limited number of
such features. Adding as a whole to the definition is
species. For most threatened species, FWS extended most
intended to clarify the appropriate scale of the effect of the
of the prohibitions that are provided for endangered species
destruction or adverse modification of critical habitat. For
to the threatened species through a default regulation
example, according to the final rule, if a project affects a
known as the blanket 4(d) rule. NMFS did not establish a
portion of critical habitat, the Services would “place those
blanket 4(d) rule and has implemented species-specific 4(d)
impacts in context of the designation to determine if the
rules for species listed as threatened.
overall value of the critical habitat is likely to be reduced.”
Under the final rule, the blanket 4(d) rule will no longer
The final rule changes the definition of effects of the action
apply to species listed as threatened after the rule takes
by combining direct and indirect effects into effects and
effect. Instead, species newly listed or reclassified as
removing the reference to environmental baseline. Under
threatened will have protective regulations only when FWS
the final rule, effects of the action include all consequences
promulgates a species-specific 4(d) rule. This provision is
to listed species or critical habitat that are caused by the
not retroactive, so the blanket 4(d) rule will continue to
proposed action. The definition specifies that a consequence
apply to threatened species listed before the rule takes
is “caused by the proposed action if it would not occur but
effect unless FWS promulgates a species-specific 4(d) rule
for the proposed action and it is reasonably certain to
for the species. FWS’s rationale for changing its approach
occur.” The Services provide a two-part test to identify a
is that eliminating the blanket 4(d) rule will more closely
consequence: (1) whether the effect or activity would not
align FWS policy with that of NMFS, and that species-
occur but for the action and (2) whether the effect or
specific 4(d) rules will incentivize conservation, reduce the
activity is reasonably certain to result from the action.
need for permitting for certain actions, and streamline
Section 7 consultation under ESA. FWS states that while it
The final rule defines programmatic consultation.
expects to promulgate a 4(d) rule concurrently with listing
Programmatic consultation is a consultation that addresses
or reclassifying a species as threatened, requiring the
multiple agency actions on a program, region, or other
simultaneous promulgation of such a rule is unnecessary.
basis. Such consultations allow federal agencies to consult
with the Services on multiple, frequently occurring, or
Pervaze A. Sheikh, Specialist in Natural Resources Policy
routine actions in a particular geographic area and on a
Erin H. Ward, Legislative Attorney
proposed program, policy, or regulation that would provide
a framework for future actions.
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Final Rules Changing Endangered Species Act Regulations

IF10944

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