ESA Law Alert: Federal Agencies Plan Changes to ESA Regulations

On May 26, 2011, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration Fisheries Service (the "Services") launched a joint effort to identify and implement administrative changes to regulations promulgated under the Endangered Species Act ("ESA"). According to the Services, the effort is aimed at accelerating the recovery of threatened and endangered species, enhancing on-the-ground conservation efforts, and better engaging the Services' and their partners' resources to meet ESA goals. This includes enhancing efficiency, clarity, and consistency in agency regulations and actions, and encouraging innovative and cooperative solutions to ESA challenges.

The Services have indicated that the ESA reform effort intends to, at a minimum, (i) modify critical habitat designations and move away from written critical habitat designations toward map- and internet-based descriptions; (ii) revise the critical habitat process to promote efficiency and consistency; (iii) clarify and expedite the development and approval of conservation agreements, habitat conservation plans, safe harbor agreements, and candidate conservation agreements; (iv) encourage state engagement in ESA implementation, especially in listing decisions; (v) clarify the phrase "destruction or adverse modification" as it applies to critical habitat; and (vi) clarify the scope and content of incidental take statements. Because of the scope of the intended reforms, the effort is likely to affect a range of the ESA concerns relevant to a variety of commercial and industrial sectors.

The Services have provided no estimate of the timeline for their reform efforts; however, the changes are specifically proposed pursuant to Executive Order 13563 – President Obama's January 2011 order to improve regulation and regulatory review nationwide. Any proposed policies or regulations will be published in the Federal Register and subject to public comment and analysis under the National Environmental Policy Act.

Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on habitat conservation plans, critical habitat issues, destruction and adverse modification findings, and issues regarding incidental take statements. Our Environmental and Natural Resources attorneys will be closely tracking the Services' reform efforts.

If you have questions about any of the issues raised in this alert, please contact a key contributor.