The U.S. Fish and Wildlife Service (Service) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) (collectively: The Services) have revised their regulations implementing the federal Endangered Species Act (ESA). These changes are focused on three aspects: 1) the standards under which listings, delisting, reclassifications, and critical habitat designations are made; 2) the manner in which protections are applied to threatened species; and 3) the parameters under which federal agencies must consult with the Services to ensure that their actions do not jeopardize the continued existence of listed species or destroy or adversely modify critical habitat.
Factual Background
The ESA provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The lead federal agencies for implementing ESA are the Service and NOAA Fisheries. Species include birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, and trees.
The ESA generally serves to accomplish these goals by way of two principle means. First, it prohibits any action that causes a “taking” of any listed species of endangered fish or wildlife. Likewise, the import, export, interstate, and foreign commerce of listed species are all generally prohibited. Second, the ESA requires federal agencies, in consultation with the Service and/or NOAA Fisheries, to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species.
Revisions to Regulations
Listing and Delisting of Species
The ESA prescribes certain standards for the listing and delisting of threatened and endangered species. Among other things, the ESA requires the Services to decide whether to list a species “solely on the basis of the best scientific and commercial data available.” The Services’ prior regulations provided that they would make listing decisions “without reference to possible economic or other impacts of such determination.” That phrase has now been deleted and would allow introduction of economic data (for informational purposes) into some listing decisions.
The ESA provides that a species may be listed as “threatened” if it:
“. . .is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”
The new regulations also now specify that:
“. . .[t]he term 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 Services will now:
. . .describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life-history characteristics, threat-projection timeframes, and environmental variability.
The rule also adds that “[t]he Services need not identify the foreseeable future in terms of a specific period of time.” The new regulations also address the delisting of species and clarify that: “. . .[t]he standard for a decision to delist a species is the same as the standard for a decision not to list it in the first instance.”
The Services stated that this is consistent with their existing practice and interpretation of the ESA.
Designating Critical Habitat
The ESA requires the Services to designate “critical habitat” for a listed species at the time of listing “to the maximum extent prudent.” A critical habitat designation increases the level of protection afforded a listed species from a jeopardy standard to a recovery standard. The new rules clarify the circumstances under which the Services can decline to designate critical habitat. In particular, they limit the Services’ ability to designate as critical habitat areas that are not currently occupied by a listed species—unoccupied habitat will be designated only if the Services determine that occupied critical habitat is inadequate for the conservation of the species.
The rules also add a 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 as potential critical habitat, and there must be a “reasonable certainty” that the land “will contribute to the conservation of the species.”
Protection of Threatened Species
While the ESA prohibits the “take” of species listed as “endangered,” this prohibition does not extend to species listed as “threatened” unless the Service or NOAA Fisheries adopts a rule extending that protection to such species. Historically, the Service has relied on a “blanket” rule that automatically extends these protections to threatened species. The new rules would rescind this blanket protection and permit the Service to extend protection on a species-by-species basis, consistent with the manner in which NOAA Fisheries has treated threatened species. The regulations do not alter any prohibitions for species already listed as threatened.
Agency Consultation
The new rules also change a number of definitions and procedural steps associated with the “Section 7” consultation process. These include, among other things: a simplified definition of “effects of the action”; a definition of “environmental baseline”; and a revision to the definition of “destruction or adverse modification.”
Conclusion and Implications
These new and very substantial revisions to the Endangered Species Act modify important standards and procedures under which the ESA is implemented and have been the source of considerable debate. The new regulations are available online at: https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html
(James Purvis)
