On August 27, 2019, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) jointly announced approved revisions to the Endangered Species Act (ESA). Most of the new regulations associated with revisions to the ESA went into effect on September 26, 2019. Due to the amount of internal and external training required on the changes related to interagency consultation, the agencies have delayed the effective date of the Section 7 changes until October 28, 2019.
The changes come after the USFWS and NMFS published proposed rules in the Federal Register in 2018 and made revisions based on hundreds of thousands of comments. The approved changes are intended to make ESA listing decisions, critical habitat designations, and agency consultations more transparent and efficient while still protecting listed species by helping reduce the administrative backlogs and uncertainty increasingly associated with the ESA.
The changes cover components of the ESA’s Sections 4 and 7, which include the listing of species and critical habitat designations as well as interagency consultation. The changes only apply to any new listings or critical habitat designations, so any protections currently in place won’t change. Many of the changes are only minor word alterations or only serve to clarify or codify past practices by the agencies. The following five changes have received a lot of media attention, so we’re summarizing what you need to know.
Section 4: Species and Critical Habitat Designations (Effective September 26, 2019)
Section 4(d): Prohibitions for Threatened Wildlife and Plants
Under the previous regulations, the USFWS had issued a “blanket 4(d) rule” that automatically extended to threatened species the same prohibitions that endangered species get unless a species-specific 4(d) rule was put into place (typically to give specific protections to the newly listed species).
Under the new regulation, the USFWS has removed the blanket rule so that now every newly listed threatened species must have a species-specific 4(d) rule that defines prohibited actions and protections on a case-by-case basis.
This new regulation follows the pattern seen over the last few administrations, as there has been an increase in the number of listings that have included a 4(d) rule. For example, during the Obama administration, 52% of the threatened listings included a species-specific rule. Through August 2019, about half of all threatened species listed by the USFWS have a special 4(d) rule. The new regulation reflects the USFWS’s general practice of more consistently issuing a 4(d) rule and also places the USFWS in alignment with the NMFS, which doesn’t have a blanket rule.
As a result of this new regulation, the process for listing new threatened species—or reclassifying from endangered to threatened—will likely be a slower, more time-consuming process. The goal for the agencies is that the special 4(d) rules will better focus agency resources on activities that are threats to species survival and to species in greatest need of protection. The consequences from the new regulation will largely depend on what protections are included and what activities are exempted in the future listings. This may result in more allowable activities, especially those related to conservation efforts to aid in species recovery.
Defining “Foreseeable Future”
The ESA defines “threatened species” as “species that are likely to become endangered within the foreseeable future” without defining the term “foreseeable future” until now. Under the new regulation, “foreseeable future” is defined as “extending only so long as the Services can reasonably determine that the future threats and species’ responses are likely,” which is a definition that has been in use within the USFWS since it was first published in a 2009 memorandum. Due to the variability in species life histories and the threats to them, a blanket timeframe wouldn’t be appropriate, so “the foreseeable future” will be described on a case-by-case basis and will rely on the best available data.
Economic Impacts of Listing Decisions
As part of the new rule, the USFWS and NMFS can now publish economic impact information with their decisions, whereas they previously were not allowed to do so. While this doesn’t change the requirement for decisions to be based solely on the best available science, it does provide more transparency to the public about the economic impacts of these decisions.
Critical Habitat Designation
The (unchanged) definition for “critical habitat” includes areas that are both occupied and unoccupied by the species. Under the new regulation, the agencies are required to first assess occupied lands before looking at any unoccupied areas. The new regulation also places a greater burden on the agencies to justify the inclusion of any unoccupied areas, including proving that an occupied area is inadequate and that an unoccupied area contains physical or biological features essential to the species’ conservation. This change is in response to a recent Supreme Court decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service et al. (2018), wherein the court stated that only land habitable by the species can be designated as critical habitat. This revision adds the requirement that, at a minimum, an unoccupied area must have one or more of the physical or biological features essential to the conservation of the species in order to be considered potential critical habitat. While unoccupied habitat currently makes up only about 3% of critical habitat, this may result in a small decrease in the amount of habitat that is protected going forward.
Section 7: Informal Consultation (Effective October 28, 2019)
As a whole, Section 7 of the ESA establishes the procedural regulations governing interagency cooperation. Federal agencies are required to consult with the USFWS or NMFS if there may be impacts to listed species or critical habitat. Informal consultation is required if it’s determined that a federal action is likely to affect a species or critical habitat in a manner that wouldn’t be adverse (i.e., either minor or beneficial). Because the informal consultation process is generally easier and quicker than formal consultation, there is incentive for the project proponent to reduce impacts upfront.
Under informal consultation, the lead federal agency on a project issues its affect determination to the USFWS or NMFS; in turn, it receives a concurrence or non-concurrence letter. Before the proposed new regulation, there was no mandated timeframe for concurrence to be received, but most offices made an effort to respond within 30 days.
The new regulation requires the USFWS or NMFS to provide a written concurrence or non-concurrence determination within 60 days of receiving a written request that meets prescribed criteria, with the option to extend to 120 days if all parties agree.
Project proponents become weary of processes with a lack of a regulated timeframe, so this new regulation removes the ambiguity about how long it can take and encourages proponents and agencies to pursue the informal consultation process.
It will likely be a few years before the impacts of these new regulations are realized as new listing decisions are made and consultation efforts are carried out. During this time, an adjustment period on both the agency and proponent side will exist, but the intent is to streamline and improve the predictability of the process for species listings and critical habitat designations.