DOI and Commerce Department Finalize ESA Regulation Changes

DOI and Commerce Department Finalize ESA Regulation Changes

In an announcement on Monday August 12, Secretary of the Interior David Bernhardt released final revisions to the Endangered Species Act (ESA) implementing regulations related to listing decisions, critical habitat designations, and consultations with other federal agencies. According to the Administration, the changes will increase the transparency and effectiveness of the Act. The revisions will only apply to future listing decisions.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Bernhardt. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

The revisions maintain the threshold that listing decisions be based on the best available scientific information, but commercial information about economic impacts will also be considered. There are also changes to the “foreseeable future” definition 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. The Services will 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 Services need not identify the foreseeable future in terms of a specific period of time.” In addition, the changes clarify the standards for delisting or reclassifying species to consider the same five factors that are used in the original listing decision. According to the Department this will ensure that these decisions use the same analysis process to determine if species still meet the statutory definition of threatened or endangered.

Regarding critical habitat designations, the new regulations emphasize the inclusion of habitat where listed species are currently found before considering unoccupied areas and imposes a higher standard for unoccupied areas to be designated as critical habitat by requiring that these areas contain “one or more of the physical or biological features essential to the species’ conservation.” Unoccupied critical habitat will only be designated if the occupied habitat is inadequate for the conservation of the species and if there is “reasonable certainty” that the unoccupied habitat will contribute to conservation.

In addition, the revised regulations codify alternative consultation mechanisms in which federal agencies are required to consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 7 of the Act. The changes would establish deadlines for informal consultations and revise definitions of “destruction or adverse modification,” “effects of the action,” and “environmental baseline” to make the process more efficient and to clarify the consultation process. Finally, the final regulations rescind the “blanket 4(d) rule” used by the FWS under section 4 of the ESA that gave threatened species the same protections as listed species. The NMFS had not used a similar blanket rule, so the change makes the regulations more consistent.

The proposed changes have met with mixed reactions from the conservation community. The Association of Fish and Wildlife Agencies noted that it “appreciates the Departments’ due diligence in managing this important federal law through the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.” Ed Carter, president of the Association, and Executive Director of the Tennessee Wildlife Resources Agency noted that “State fish and wildlife agencies are on the front lines of managing, restoring, and conserving federally listed threatened and endangered species. We look forward to working with our federal partners to achieve continuing success unto that end.”

However, Collin O’Mara, president and CEO of the National Wildlife Federation stated: “Unfortunately, this deregulatory package, on balance, will make it more difficult to protect and recover species on the brink. The changes remove blanket protections for threatened species without requiring sufficiently protective alternative measures, create a more bureaucratic process from extensive economic analyses (which legally cannot be considered in the final decision-making), and limit the consideration of climate impacts that are escalating all around us… This final package creates more certainty for industry without any corresponding enhancements that would help hasten the recovery of the imperiled species which the Endangered Species Act was designed to protect.”

August 16, 2019