ESA Law Alert - First comprehensive revisions in 33 years: revised ESA regulations released

On August 12, 2019, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (together the “Services”) jointly announced final revisions to their regulations for listing and delisting species, making critical habitat designations, and undertaking consultations with federal agencies under the Endangered Species Act (“ESA”). These rules become effective on October 28, 2019.

The last comprehensive revisions to the ESA implementing regulations were in 1986, and the Services have gained significant experience and knowledge from implementing the ESA and from numerous judicial decisions relating to the ESA since that time. Contrary to some reports, the final rules do not reduce the substantive protections for listed species but should result in meaningful benefits by making the implementation of the listing, delisting, and interagency consultation processes more efficient. Throughout the final rules, the Services emphasize the importance of relying on the best scientific and commercial data available.

The USFWS released a final rule that withdraws its blanket rule automatically extending the ESA’s “take” prohibition to threatened species under USFWS’s management. Section 4 of the ESA prohibits take of endangered species without authorization, but allows the Services to extend that protection to threatened species on a case-by-case basis. The withdrawal of USFWS’s blanket rule will allow the agency to make a finding for each newly listed threatened species, aligning its practice with NMFS’s longstanding case-by-case approach, and allowing the agency to tailor application of the take prohibition in consideration of the specific circumstances and conservation needs of the species. This rule does not apply retroactively to threatened species for which the take prohibitions already apply.

The final rules clarify that the Services will utilize the same five statutory factors in making a decision to list a species as well as to delist a species under Section 4 of the ESA. Of particular significance, the final rules restore a requirement for the Services to first evaluate whether areas that are occupied by a species are sufficient to support recovery before designating as critical habitat areas that are currently unoccupied. The Services also clarify that an area cannot be designated as critical habitat if it does not, at the very least, have the kind of habitat that is essential to that species’ conservation at the time of designation. In addition, the final rules clarify that, in listing a species as threatened, the Services will consider only those future threats that are “likely” to occur – meaning “more likely than not.” This codifies existing practice and will provide consistency across threatened species listings.

The final rules also modify the Services’ regulations implementing the ESA’s Section 7 interagency consultation requirements to provide definitions to clarify and provide consistencies in the consultation process. For example, the Services provide a new definition for “effects of the action” to simplify previously overlapping and sometimes redundant definitions of direct, indirect, interrelated, and interdependent effects. The new definition adopts a “but for” test for all effects of the action to be considered in the consultation, meaning that “but for” the proposed action, a consequence would not occur. The final rules also provide new guidance on what effects are “reasonably certain to occur” as a result of a proposed action or cumulative effects, clarifying that an activity does not need to be guaranteed to occur in order to be reasonably certain to occur, but cannot be merely speculative. Importantly, the final rules make it clear that the Services are not required to obtain binding plans or other such documentation or assurances prior to evaluating the effects of a proposed mitigation action, but can assume it will be implemented as proposed by the applicant or federal agency.

The final rules create a stand-alone definition of the “environmental baseline,” which creates clarity in places but leaves other situations to a “case-by-case specific analysis” to be undertaken by the Services and federal agency. Specifically, the final definition preserves the existing definition of the environmental baseline as encompassing past and present impacts of activities in the action area, proposed actions that have already undergone ESA Section 7 consultation, and contemporaneous state and private activities. However, it adds that consequences “from ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modify are part of the environmental baseline.” (Emphasis added.) Where an agency clearly lacks the authority to remove or modify a structure or take a different action than proposed, this additional language will create consistencies and clarify the scope of both the environmental baseline and, by comparison to it, the proposed action. In other circumstances, however, this additional language may raise questions regarding the extent of an agency’s discretion and how ongoing activities and existing structures should be treated relative to the proposed action and environmental baseline.

Finally, the final rules provide clarity around the Services’ analysis of proposed conservation measures, confirm the Services’ existing practice of considering impacts to critical habitat across the entire area that has been designated, create an expedited consultation pathway for actions or classes of actions with expedited timelines agreed to by the agencies, provide a 60-day deadline for the Services to respond to a request for concurrence with a “not likely to adversely affect” finding, and expand the scope of the reinitiation requirements so that they apply to such concurrences.

These final rules preserve the discretion that Congress intended the Services to have under the ESA and will provide important clarity and consistency across the listing, delisting, and consultation processes. Ultimately, however, the potential for the final rules to create real efficiencies and improvements in these processes will depend on how both new and unchanged regulations are implemented at the regional and national levels.