Wildlife Agencies Announce Proposed Endangered Species Act Regulations

by John M. Simpson

On July 19, 2018, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced three proposed rulemakings that would revise the regulations pursuant to which the Services have implemented the Endangered Species Act (ESA).  These initiatives were the result of public comments solicited by the Services in response to Executive Order 13777, 82 Fed. Reg. 31576 (July 7, 2017), which sought comments on how federal agencies could improve the effectiveness and efficiency of federal regulations and the regulatory process.  

The proposed rules fall into three categories:

1.  Proposed rules to adjust how FWS and NMFS decide to remove, add or reclassify species on protected lists pursuant to Section 4 of the ESA and to designate critical habitat.  The proposals in this initiative include the following:

♦   Clarifying that, while the Services will continue to base determinations solely on biological information, there are situations in which the public are appropriately apprised of economic or other impacts of the determination.

♦  Clarifying that the Services will determine endangered/threatened status using the same standards regardless of whether the species is listed at the time; the standard for delisting shall be the same as the standard for listing in the first place.

♦  Clarifying that “foreseeable future” as to threatened species determination will be case-by-case and will extend only so far as the Services can reasonably determine that the circumstances are probable.

♦  Proposing a non-exhaustive list of situations when it is not prudent to designate critical habitat.  As to unoccupied areas, the Services will first evaluate the areas occupied by the species and then determine whether designation of unoccupied areas is essential for conservation of the species; there must be a reasonable likelihood that the unoccupied area will contribute to conservation.

2.   A proposed rule that would rescind the current rule that automatically extends the protections of ESA section 9 to species listed or reclassified as threatened.  Under this proposal, the prohibitions in section 9 of the ESA (which include the “taking” prohibition) would continue to apply to threatened species listed as such as of the effective date of the rule.  For species listed or reclassified as threatened after that date, the prohibitions will apply only if the FWS publishes a species-specific rule.  This approach was described as consistent with the approach currently followed by NMFS for threatened species.

3.   Proposed rules to simplify the consultation process that federal agencies must go through with FWS or NMFS under Section 7 of the ESA to ensure that administrative actions do not jeopardize protected species.  Proposals here include:

♦  Revised definitions of “destruction or adverse modification of critical habitat;” “effects of the action;” “environmental baseline;” and “programmatic consultation.”

♦  Revisions to the rule as to when agencies are not required to consult under section 7.

♦  A 30-day deadline for informal consultation.

♦  Clarification as to when it is necessary to initiate formal consultation.

♦  Clarification of the responsibilities of the Services during formal consultation.

♦  An amendment that the Services can adopt all or part of an agency’s initiation package in the Service’s biological opinion.

♦  A new provision for expedited consultation.

♦  Revisions to the provision on re-initiation of consultation.

The proposed rules will be published in the Federal Register on July 25 and the deadline for comments is September 24.


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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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