Series 2: Species and Critical Habitat Listing and Prohibitions on Take for Threatened Species
By Patricia Valcarcel, Senior Biologist and ESA Specialist
On July 25, 2018, the U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration Fisheries (collectively, Services) published three proposed revisions to Endangered Species Act (ESA) regulations, and on August 12, 2019, the Services announced the final rules on these revisions. The first of this two-blog series highlights the consultation process revisions, and the effective date of this interagency coordination rule has been delayed to October 28, 2019 for additional training on implementation (84 FR 50333). The second focuses on the two rules affecting (1) listing of species and critical habitat and (2) prohibitions for threatened species under the ESA. These two rules apply towards future listing decisions and are not retroactive. No changes to species currently listed as threatened or existing designated critical habitat will occur as a result of these revisions.
Summary of Proposed Changes for Future Species Listing
1) Regulations for Prohibitions to Threatened Wildlife and Plants (USFWS only). This revision is also known as “Rescinding the blanket 4(d) rule”. Section 4(d) of the ESA ensures that the Services may extend any prohibited actions that apply to federally endangered species (defined in Section 9 of the ESA) to threatened species. The USFWS blanket 4(d) rule automatically extended all take prohibitions to federally threatened species. This final rule removes the blanket protection for all species listed in the future as threatened and for any species that are down-listed from endangered to threatened. In addition, take prohibitions for threatened species would have to be implemented via species-specific rules at the time of listing or reclassification. This is similar to how National Marine Fisheries Service approaches threatened species and outlines prohibited actions in the listing decision. We expect to see more proposals from the Service to downgrade endangered species to threatened and define a restricted set of prohibited actions. This rule does not remove the requirement of federal agencies to consult with the Services on effects to listed species that require biological assessments to be prepared by applicants.
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” was not defined. The rule provides a framework for the Services to determine what “foreseeable future” means. The foreseeable future would be determined on a case-by-case basis and would “extend only so far into the future as the Services can reasonably determine that both the future threats and the species’ response to those threats are likely.” This phrase and definition only apply to future listing processes for determining if a species meets the criteria to be listed as a threatened species.
3) Clarifying the factors for delisting a species. The final rule clarifies the factors used to determine whether a species can be delisted, and that those factors should be the same standards as those used for listing a species as threatened or endangered. This is consistent with the statute, but there have been misinterpretations for delisting criteria. The changes intend to remove any confusion. There is also a change which removes the phrase “without reference to possible economic or other impacts of such determination” from 50 CFR 424.11(b) on listing determinations. The Services state determinations will be based solely on biological considerations; however, there may be occasions where referencing economic or other impacts may be informational. The removal of this phrase has caused much controversy and is cited in recently filed lawsuits on the final rules.
4) Clarifying criteria for designating Critical Habitat. The final rule expands the list of circumstances when the Services would not be required to designate Critical Habitat for a species. In addition, the rule requires that the Services first evaluate areas currently occupied by the species when designating Critical Habitat before considering unoccupied areas. In addition, if unoccupied areas are proposed, the Services must determine there is reasonable certainty that the area will contribute to conservation of the species and that the area contains one or more of the physical and biological features essential to the conservation of the species. These revisions are intended to help clarify critical habitat designations and based on recent Supreme Court cases.
The final rule will be effective on September 26, 2019. Recently filed lawsuits that include both the listing and prohibitions rules may result in injunctions and there may be changes to the effective date on portions or all of these final rules. Below are links to the final rules with more specific language and examples.
What to Watch For
WRA’s regulatory staff anticipate to see more petitions for species to be protected under the California Endangered Species Act (CESA) and more involvement by California Department of Fish and Wildlife (CDFW) in reviewing permits both under the CESA and potential Lake and Streambed Alteration Agreements or during California Environmental Quality Act review. Oversight by California regulatory agencies has been increasing and this is likely to continue under the Trump administration deregulation emphasis. It will be important for applicants to work more closely with CDFW. Our team are working on a number of projects where we are seeing how CDFW and USFWS staff are responding to these changes; and we can assist you in interpreting these complicated and nuanced issues and help you through a changing regulatory environment.