On August 12, 2019, the U.S. Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”) (collectively “Services”) jointly announced three rules that significantly revamp regulations implementing the federal Endangered Species Act (“ESA”).  With the last comprehensive revisions to ESA regulations occurring in 1986, the Trump Administration’s trio of new rules herald a new era for the ESA with a species-specific protections approach for “threatened” species, renewed clarification on species listing/delisting and the designation of critical habitat, and updated definitions and procedures for the interagency consultation process.

Background

The ESA was signed into law in 1973 and requires FWS and NMFS to identify and protect species facing the risk of extinction. Under the ESA, if a species is listed as endangered or threatened, FWS and NMFS can prohibit people from hunting or harvesting those species or damaging certain areas of those species’ habitat.  Since the ESA’s enactment, 1,650 animal and plant species have been listed, with 85 species later removed because they recovered or (in the case of 11 species so far) went extinct.

Section 4(d) Rule: Rescission of FWS Blanket 4(d) Rule for Threatened Species

Section 4(d) of the ESA authorizes FWS and NMFS to issue regulations “necessary and advisable” for the conservation of threatened species.  In prior regulations, FWS issued what has been called a “blanket” rule that imposes the same prohibitions on take of endangered species to all threated species unless otherwise specified.

The first of the new rules withdraws FWS’s prior Section 4(d) “blanket rule” and allows FWS to make species-specific findings for each newly listed threatened species.  FWS’s approach is now aligned with NMFS, which does not have a similar blanket rule for its administered list of threatened marine species.  In lieu of the “blanket rule,” FWS will now craft species-specific Section 4(d) rules concurrently with a final threatened species listing or reclassification determination on a case-by-case basis.  Threatened species will be subject to “take” prohibitions and treated as endangered only if FWS promulgates a species-specific rule to ensure that applicable prohibitions, protections, and restrictions are tailored specifically to that species’ conservation needs.

FWS’ rule applies only to future decisions to list a species as threatened or to reclassify a species from endangered to threatened, and does not impact the existence of the prior rules applying take prohibition to species already listed as threatened.  Because historically each year approximately four species are listed as threatened species, FWS anticipates developing four species-specific 4(d) rules per year and finalizing an average of two species-specific 4(d) rules per year.

Section 4 Rule: Clarification on Listing/Delisting Species and Designation of Critical Habitat

Section 4 of the ESA guides the Services’ determination on whether a species is an endangered or threatened species and the designation of critical habitat for such species.  The second joint rule clarifies relevant definitions and factors for listing or delisting a species, and imposes a more demanding test for designating unoccupied critical habitat.

• Listing Determinations: The rule removes an existing prohibition against referencing the economic and other impacts on landowners resulting from a listing decision and now allows for “compiling economic information and presenting that information to the public.” However, Section 4 itself still prevents a listing decision from being based on economic or other impacts.  The rule also defines the term “foreseeable future” (which is part of the statutory definition of a “threatened species” to be “any species which is likely to be become an endangered species within the foreseeable future”) to “extend 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.”  Finally, the rule requires that, when considering to delist a species, the Services must “consider the same factors [in Section 4(a)] and apply the same standards” used in making an affirmative listing decision, which confirms the Services’ practice and the decision in Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012) (holding that a decision to delist must be made in accordance with the same five statutory factors when determining whether a species is endangered).
• Designating Critical Habitat: The rule provides that an area unoccupied by a species may be considered for a critical habitat designation only if the occupied area is “inadequate to ensure the conservation of the species” and “there is a reasonably certainty” both that the area will contribute to the species’ conservation and contains one or more physical or biological features essential the species’ conservation.  This change is based on the U.S. Supreme Court’s recent decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), which rejected expansive definitions of critical habitat to any unoccupied areas and held that an area must be habitat before that area meets the narrower category of “critical habitat,” regardless of whether that area is occupied or unoccupied.  In addition, the rule provides a non-exhaustive list of circumstances where the Services may find that designating critical habitat for a species is not prudent—e.g., the identification of critical habitat would exacerbate the risks posed to the species, no area meets the definition of critical habitat, or it is otherwise determined that the critical habitat designation is not prudent based on the best scientific data available.

Section 7 Rule: ESA’s Interagency Consultation Procedures

Section 7 of the ESA requires a federal agency that undertakes, funds, or approves an action that may affect a listed species or its designated critical habitat to consult with FWS or NMFS (depending on the species) to ensure that the action will not jeopardize the species’ continued existence or result in the destruction or adverse modification of the species’ designated critical habitat.  The third joint rule makes key changes to definitions and procedures governing the interagency consultation with the intent to “improve and clarify interagency consultation” without compromising conservation of listed species.

• “Effects of the Action”: The rule revises the definition of “effects of the action” to “all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action.” Causation is based on a “but for test” where “a consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur.” The effects of the action “may occur later in time and may include consequences occurring outside the immediate area involved in the action.”  The revised rule is intended to simply the definition by using the term “consequences” in lieu of the various types of effects, i.e., direct,” “indirect,” interrelated,” and “interdependent,” previously articulated in the regulations, and applying a two-part test of “but for” and “reasonably certain to occur” to determine whether a given consequence should be considered an effect of the proposed action that is under consultation.
• “Destruction or Adverse Modification”: The rule revises the definition of “destruction or adverse modification” by adding the phrase “as a whole” and removed the latter part of the definition that provided examples of prohibited habitat alterations. According to the Services’ responses to comments, the use of “as a whole” reflects the Services’ longstanding interpretation and existing practice that the destruction or adverse modification determination is made at the scale of the entire critical habitat designation.
• “Environmental baseline”: The rule creates a stand-alone definition of “environmental baseline” that “refers to the condition of the listed species or its designated critical habitat in the action area, without the consequences to the listed species or designated critical habitat caused by the proposed action.” The rule is intended to clarify that “environmental baseline” is a separate consideration from “the effects of the action” and should be used to compare the condition of the species and the designated critical habitat in the action area with and without the effects of the proposed action.
• “Programmatic Consultation”: The rule codifies the use of a process to evaluate similar frequently occurring or routine actions within a particular geographic area, or broad agency programs that guide the implementation of future actions by establishing standards, guidelines, or governing criteria for such future actions. These programmatic consultations are intended to provide the Services with greater flexibility and avoid redundant consultations.
• Section 7 Consultations: The rule sets forth the required information to initiate a formal consultation and permits the Services to adopt all or part of the initiation package in a biological opinion. The rule also permits a new “expedited consultation” process for actions with a minimal or predictable effects based on previous consultation experience. For the reinitiation of consultation based on new circumstances or information, the rule does not impose a formal consultation requirement nor does it impose a duty to reinitiate for an existing programmatic land management plan when a new species is listed or new critical habitat is designated.

Conclusion

The ESA rules are intended to streamline and provide clarity across the Services’ implementation of the ESA.  This is particularly true for the changes to the Section 7 consultation process, which aims to provide the Services with more flexibility, help expedite project development, and avoid duplicative consultation.  Yet other changes such as the FWS species-specific protection approach for “threatened” species will undoubtedly spur additional petition activity and litigation.

Although the ESA rules are set to take effect thirty days after their publication in the Federal Register, their legal status is far from assured.  Environmental advocacy groups, including the Natural Resources Defense Council and Earthjustice, and the attorney generals for California and Massachusetts have already indicated that they plan to file lawsuits challenging the rules.  Thus, whether the new rules can accomplish their intended goals will remain to be seen as anticipated litigation will usher in a prolonged period of uncertainty for some time.

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