22 August 2019

Trump Administration Updates Endangered Species Act Regulations

Three new rules issued by the Trump Administration may allow project developers to better plan future projects, and may encourage preservation and conservation efforts for both private and federal landowners. These rules, issued by the U.S. Fish and Wildlife Service, National Marine Fisheries Service and the National Oceanic and Atmospheric Administration, revise how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act.

The U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration (NOAA) (the Agencies), have issued three rules revising how the federal government will address critical habitat designations, protections for threatened species and interagency coordination under the Endangered Species Act (ESA). The Agencies’ decisions have not yet been published in the Federal Register, but prepublication versions can be found here. The regulations will become effective 30 days after publication.

Key Elements

Case-by-case evaluation of protections for threatened species. FWS is changing its practice of automatically extending the same protections for endangered species to threatened species. FWS’s previous approach, commonly referred to as the blanket 4(d) rule, did not distinguish between endangered and threatened species. Instead, as a default, FWS extended most of the prohibitions for activities involving endangered species to threatened species. FWS will now consider appropriate protections for threatened species on a case-by-case basis. FWS likely will issue these species-specific rules concurrent with its listing determination for a species. This approach should inform the public about the primary drivers of the species status, which a blanket rule generally has not. Further, FWS predicts that this approach will incentivize landowners to take steps to improve the status of endangered species so that they can be moved to the list of threatened species. Notably, this means that FWS could replace already-issued blanket rules with species-specific protection rules in the future. FWS’s revised approach is now more closely aligned with that of NMFS.

Revise method for designating critical habitat and listing criteria. The Agencies also revised the manner in which they designate critical habitat and the criteria for listing or removing a species from the Lists of Endangered and Threatened Wildlife and Plants. In particular, the Agencies clarified that areas unoccupied by listed species could be designated as critical habitat under certain conditions. First, the occupied area must itself be inadequate to ensure species conservation. Second, the Agencies must determine that there is a reasonable certainty that (1) the unoccupied area will contribute to the conservation of the species and (2) the area contains one or more of those physical or biological features essential to the conservation of the species. The second prong results from the Supreme Court’s 2018 decision that an area must first be a habitat for an endangered species before it can be a “critical habitat,” regardless of whether it is currently occupied or unoccupied by that species. Weyerhaueser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018). The Agencies further justify the second prong as supported by the statutory language, legislative history and congressional intent.

Revise Section 7 consultation process. The Agencies amended regulations governing ESA Section 7 consultation. The revisions are aimed at making the interagency consultation process more efficient and consistent by providing alternative consultation mechanisms and establishing deadlines for informal consultation process. For example, the Agencies imposed a 60-day deadline to respond to an informal consultation request from another federal agency’s Lists of Endangered and Threatened Wildlife and Plants, in which the Agencies must provide a written concurrence or nonconcurrence with the federal agency’s determination. That deadline may be extended, but only for an additional 60 days.

Other Procedural and Technical Changes

The Agencies made other revisions to their regulations that affect various ways in which they implement ESA Sections 4 and 7. For example, the rules revise the formal consultation process in an effort to expedite it. The Agencies will also now be able to compile data on the economic or other impacts of a listing determination to present to the public during the listing evaluation. The Agencies explain that the ESA does not prohibit collecting or sharing the economic impacts of a listing determination so long as the Agencies do not consider such data in making their decision.

These changes are all prospective, so prior listing determinations and other related agency actions remain in effect and the rules are certain to be challenged in court. Practically, several aspects of the revisions will allow project developers to better plan future projects and may encourage preservation and conservation efforts for both private and federal landowners.

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