On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26:
Eliminate the automatic extension of protections to threatened (as opposed to endangered) species;
Revise the provisions for designating critical habitat and listing and de-listing species under ESA Section 4; and
Revise the procedures for interagency consultation under ESA Section 7.
Environmental advocacy groups have decried the new regulations as undermining protections for imperiled species, and a coalition that includes Center for Biological Diversity, Sierra Club, Defenders of Wildlife and the NRDC, among others, have already filed suit in federal court in the Northern District of California to block the rules. The attorneys general for California and Massachusetts have indicated they also plan to challenge the rulemakings.
While the amendments are undeniably controversial and, in some cases, significant, their real impact will depend in large measure on how current and future administrations implement the new rules.
Rescission of the Blanket 4(d) Rule
The USFWS revised its prior “blanket” rule, issued under ESA Section 4(d), which extended the “take” prohibition to all threatened wildlife species by default and most other protections that apply to endangered species under ESA Section 9. In the future, those protections will apply to species that USFWS lists as threatened only to the extent the USFWS makes them applicable through a species-specific rulemaking. The change applies to species listed after the rulemaking takes effect and does not affect protections for species already listed as threatened. The NMFS already follows a similar approach for the species it regulates.
Amendments to Listing and Critical Habitat Rules
The Services jointly revised the regulations under which they decide to list or de-list species and designate critical habitat for listed species under ESA Section 4. Among other changes of note, the amended rules include a new definition of “foreseeable future” that could limit the designation of species as threatened based on long-term predictions of climate change impacts. Under the ESA, a threatened species is “any species which is likely to become an endangered species within the foreseeable future.” Under the new definition, the foreseeable future “extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” The change follows criticism of the Services’ recent listing of several species based on projections that their habitat – especially sea ice – would be greatly reduced by global warming over periods of 50 years or more.
The changes to the critical habitat rules include a new requirement that areas currently unoccupied by listed species be considered for designation as critical habitat only after occupied areas have been considered and deemed inadequate to ensure the species’ conservation, and only if there is “reasonable certainty” that the area will contribute to the species’ conservation. The Services cited the Supreme Court’s recent opinion in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), as the impetus for this change.
The amendments also remove language from the rules that required the Services to make listing decisions “without reference to possible economic or other impacts of such determination.” The purpose of the change is unclear, since the Services have acknowledged that the ESA itself prohibits consideration of economic factors in listing decisions.
Changes to Section 7 Consultation Regulations
Revisions to the Section 7 consultation regulations include “clarifying” changes to the definition of “effects of the action,” technical revisions to the procedures for formal and informal consultation, and a new “expedited consultation” process for actions with minimal or predictable adverse effects on listed species.Lexology