Federal Agencies Propose Major Changes to the Endangered Species Act

On July 19, 2018, the U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration Fisheries (collectively, Agencies) announced proposed revisions to Endangered Species Act (ESA) regulations. The proposed changes have the potential to affect ESA permit timelines, delisting of species, designation of Critical Habitat, and whether species listed as threatened in the future will even receive take protection, to name a few. Given the breadth of potential impacts that the proposed rule changes may have for many of our clients and strategic partners, we have prepared the following summary to help you understand the implications that the proposed rule changes may have for your projects.

Summary of Proposed Changes for Future Species Listing

Four of the proposed revisions include changes to future species listing, Critical Habitat designation, and recovery actions including:

1) Rescinding the blanket 4(d) rule (USFWS only). The 4(d) rule instated in 1975 ensures that the take prohibitions that apply to federally endangered species also apply to federally threatened species in a blanket manner. Without this, federally threatened species would not have the same level of protection as endangered species. The proposed rule change removes this blanket protection for all future species listed as threatened (species previously listed as threatened would retain their current level of protection) as well as for species that are down listed from endangered to threatened in the future. Under the rule change, take prohibitions for threatened species would have to be implemented via species-specific rules at the time of listing or reclassification.

2) Providing an interpretation of the term “foreseeable future”. Section 3(20) of the ESA defines a “threatened species” as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range”; however, “foreseeable future” is not defined. The proposed rule change provides a framework for the Agencies to determine what the “foreseeable future” means. The foreseeable future would be determined on a case-by-case basis and would extend only as far into the future as the Agencies can reasonably determine that the factors potentially affecting the existence of a species are probable to occur.

3) Clarifying the factors for delisting a species. The proposed rule changes clarify that the factors used to determine whether a species can be delisted should be the same standards as those originally used to list the species. This is consistent with the statute, but in practice, the proposed rule language notes that examples that were provided in the current regulatory text were sometimes misinterpreted as criteria for delisting. The proposed changes would remove that confusion and provide other clarifications.

4) Clarifying criteria for designating Critical Habitat. The proposed rule changes would augment the list in Section 424.12(a)(1) of circumstances when the Agencies would not be required to designate Critical Habitat for a species. In addition, the rule change proposes to revise Section 424.12(b)(2) to require that the Agencies first evaluate areas currently occupied by the species when designating Critical Habitat before considering unoccupied areas. In addition, if unoccupied areas are proposed, the Agencies must clarify why they are essential to the conservation of the species.

Summary of Proposed Changes for Agency Efficiency

Three of the proposed rule changes are aimed at improving the efficiency of Agency processing and delivery of Section 7 Biological Opinions that are sometimes required when seeking permits or authorizations from Federal agencies (e.g., Clean Water Act permits from the U.S. Army Corps of Engineers):

1) Clarifying the definition of “destruction or adverse modification” as it relates to Critical Habitat. The proposed rule changes state that the current definition of “destruction or adverse modification” is redundant and confusing. The proposed rule changes aim to rectify this by removing redundant and confusing language and adding clarification. The words “as a whole” are proposed to be added to ensure the rule is clear in the scale that should be assessed when determining whether a project would affect Critical Habitat. The sentence in question would then read: “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.” Under this change, a project that affects a portion of designated Critical Habitat but that does not affect the entirety of that species’ designated Critical Habitat may not result in a determination of “adverse modification”. In addition, the second sentence in the adverse modification definition (“such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features”) will be removed entirely.

2) Revising the definitions of effects of the action. The proposed rule changes include major revisions to how effects are analyzed. Of note, direct and indirect effects and the effects of interrelated and interdependent actions are collapsed into simply “effects”. In addition, the term “activity” is added to differentiate indirect effects resulting from ancillary aspects of the project from direct effects resulting from the formal “action” that is being permitted.

3) Clarifying the information necessary to initiate formal consultation.  In an effort to facilitate a more streamlined consultation process with reduced need for back-and-forth between applicants and Agencies, the proposed rule changes provide clarification on what information is needed by the Agencies to initial formal consultation. The proposed changes indicate that the goal is not to request additional information, but to simply provide better guidance for what information is needed to shorten consultation timelines.

Additional Information

Below are links to the proposed rules with more specific language and examples.  We hope this brief summary aides our clients and teaming partners in understanding the general topics and scope of the proposed new rule. Organizations that feel certain topics are pertinent to their specific area of business are encouraged to review the more detailed descriptions in the corresponding sections of the proposed rule changes.

The proposed rule changes will be published in the Federal Register in the coming days and will provide detailed information on how the public can submit written comments and information concerning these revisions. Comments for each notice must be received within 60 days of the publishing date.

WRA’s regulatory staff can assist in interpreting these complicated and nuanced specialty areas. For additional information or assistance in interpreting the proposed rules, contact WRA’s senior regulatory specialist Ken Sanchez.