Proposed Changes to Endangered Species Act Regulations Would Create Efficiencies Without Changing Species Protections

Overview

On July 19, 2018, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS,” collectively the “Services”) jointly announced proposed revisions to the Endangered Species Act (“ESA”) regulations to improve the efficiency and effectiveness of the ESA. The proposed rules were published in the Federal Register on July 25, 2018. Comments are due by September 24, 2018.

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 the numerous judicial decisions relating to the ESA since that time. The proposed rules include clarifications to improve implementation of the ESA and address listing, delisting, and critical habitat designations. Of particular significance, the proposed rules make a change to critical habitat regulations by restoring the requirement that the Services evaluate areas that are occupied by a species when designating critical habitat, before considering areas that are unoccupied.

In addition, USFWS proposes to remove a blanket rule that automatically extends the ESA’s “take” prohibition to threatened species under USFWS’s management. USFWS proposes to instead decide on a species-by-species basis whether to apply the take prohibition, aligning USFWS’s practice with NMFS’s longstanding approach. This proposed rule would not affect existing listings, but in future listing decisions USFWS would prescribe the particular species-specific measures to protect the species.

Consistent with Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” USFWS solicited public comment on how the Department of Interior could improve implementation of regulatory reforms to increase efficiency and consistency. Similarly, NMFS published a notice entitled “Streamlining Regulatory Processes and Reducing Regulatory Burden.” The Services’ proposed rules incorporate some of the comments and are intended to improve and clarify the ESA listing and delisting process, the application of the take prohibition, and the Section 7 consultation process.

Contrary to some reports, the proposed rules would not reduce the substantive protections for threatened and endangered species but should result in meaningful benefits by making the implementation of the Section 4 listing/delisting and Section 7 consultation processes more efficient, straightforward, and focused. USFWS’s species-by-species approach to applying the take prohibition to threatened species will allow it to provide critical species-specific protections where appropriate while also improving regulatory efficiencies. Additionally, the new expedited consultation process and the inclusion of deadlines for informal consultation should provide efficiencies for those seeking federal approval, while providing the Services with more availability to focus on formal consultations. Similarly, clarifications around programmatic consultations and the trigger for re-initiation of consultation for existing programmatic land management plans should provide additional efficiencies.

Summary

Alignment of Services’ Policies for Threatened Species

In its enactment of the ESA, Congress applied a blanket prohibition against the “take” of an endangered species, but did not extend the blanket take prohibition to threatened species. 16 U.S.C. § 1538. Instead, section 4(d) of the ESA provides the Services with two regulatory tools to address threatened species. First, section 4(d) requires the Services to issue regulations that are “necessary and advisable to provide for the conservation of such species.” Second, the Services may issue regulations to prohibit, with respect to any threatened species, any act prohibited under section 9(a)(1) of the ESA, such as the take of the species.

Currently, USFWS and NMFS manage threatened species under section 4(d) differently. NMFS applies or limits the ESA’s take prohibitions on a species-by-species basis when listing a species as threatened. In contrast, USFWS adopted a blanket rule in 1975 that extends the ESA’s take prohibitions to all threatened species unless USFWS proactively adopts a special 4(d) rule to allow take of specific threatened species.

The proposed rules would eliminate USFWS’s blanket section 4(d) rule automatically prohibiting take of threatened species and align USFWS practice with that of NMFS. Going forward, both Services will implement take prohibitions for threatened species on a species-by-species basis.

This rule would be prospective, and the protections that currently apply to threatened species would remain in place unless and until USFWS adopts a species-specific rule. Thus, take of threatened species under USFWS’s purview would continue to be prohibited under the proposed rule absent USFWS’s adoption of a species-specific rule.

Listing, Delisting, and Reclassifying Species

Section 4(a) of the ESA dictates how species are listed as endangered or threatened, and are delisted and reclassified. The proposed rules include clarifications to improve implementation of the ESA.

Foreseeable Future

First, the proposed rules tighten the definition of “foreseeable future” in the definition of threatened species, which is “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” The lack of clarity regarding the term “foreseeable future” has resulted in confusion about the length of time over which the Services must analyze a species’ chances of survival. The proposed rules place some boundaries on the scope of the “foreseeable future” by requiring the Services to look “only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable.” This analysis would occur on a “case-by-case” basis, taking into account species’ life-history characteristics, threat-projection timeframes, and environmental variability.

Delisting Decisions

The Services propose to streamline their approach to delisting decisions by requiring that the Secretary of Interior or the Secretary of Commerce will delist a species when:

• the species no longer is endangered or threatened, based on the same standards that apply to an initial listing determination;
• the species is extinct; or
• the listed entity no longer meets the definition of “species,” based on “new information” or “new analysis of existing information.”

This is a shift from current practice, whereby a species may be delisted “only if” (1) a sufficient period of time has been allowed to show that the species is extinct, (2) the species is “no longer endangered or threatened” and is therefore recovered, or (3) the original data that supported classification of the species is shown to be in error.

Listing Decisions

Finally, the proposed rules remove the phrase “without reference to possible economic or other impacts” from the listing regulations to allow the Services to include information about economic impacts in listing determinations. This would not change the current rule that requires listings to be made “solely on the basis of the best scientific and commercial data available”; the Services would “continue to make determinations based solely on biological considerations.” This change would simply permit the Services to inform the public of economic impacts of a listing determination.

Critical Habitat Designations

Not-Prudent Determinations

The ESA requires the Services to designate critical habitat “to the maximum extent prudent and determinable.” The current rules identify two situations in which designation of critical habitat is “not prudent”: first, if the species is threatened by human activity and the identification of critical habitat would likely increase that threat; and second, if the designation of critical habitat would not be “beneficial” to the species. The proposed rules retain the first exception for critical habitat designation (i.e., increased threat from human activity) and remove and replace the exception related to species benefit.

Specifically, the proposed rules replace the “beneficial” designation standard with a non-exhaustive list of circumstances in which “designation of critical habitat would generally not be prudent,” including circumstances where:

• no areas meet the definition of critical habitat;
• there is a lack of habitat-based threats to the species;
• threats to the species’ habitat stem solely from causes that cannot be addressed through the application of ESA section 7 consultations, such as melting glaciers, sea level rise, or reduced snowpack; and
• the species occurs primarily in areas outside of U.S. jurisdiction and no areas under U.S. jurisdiction contain features that are essential to conservation of the species.

The Services explain that not-prudent determinations would “continue to be rare” under the proposed rules. However, the rule changes are “intended to reduce the burden of regulation in rare circumstances in which designation of critical habitat does not contribute to the conservation of the species.”

Designating Unoccupied Areas

The proposed rules make a significant change to critical habitat regulations by restoring the requirement that the Services evaluate areas that are occupied by species when designating critical habitat, before considering areas that are unoccupied. This reverses a controversial 2016 rule in which the Services eliminated the requirement and raised concerns that the Services could potentially designate large swaths of unoccupied habitat.

The proposed rules also clarify when the Services may determine that unoccupied areas are “essential” for conservation of the species, and therefore appropriate for designation as critical habitat. Under the proposed rules, the Services only may consider unoccupied habitats to be “essential” when a critical habitat designation limited to occupied areas (1) would be inadequate to ensure species conservation, or (2) would result in “less efficient” conservation for the species. The Services describe “efficient” conservation as situations where “conservation is effective, societal conflicts are minimized, and resources expended are commensurate with the benefit to the species.”

Consultation Processes

Section 7 of the ESA governs interagency cooperation in the consultation process for any project or action with a federal nexus. The proposed rules include changes to multiple elements of the consultation process, including new definitions of “effects,” and “adverse modification” and “destruction” of critical habitat, among others. In addition, consultation processes themselves would be altered. The rules would create a new, expedited consultation process for projects that have predictable and minimal adverse effects, impose decision-making deadlines on informal consultation processes, and institute clearer guidelines for the initiation of formal consultation.

Clarification of When Consultation Is Required

The Services suggest that the final rule may clarify that formal consultation under 50 C.F.R. § 402.03 is not required for projects in which the federal agency does not anticipate a take, and (1) the proposed action would not affect a listed species or critical habitat; or (2) the only effects of the proposed action would manifest through global processes, likely including climate processes, that cannot be reliably predicted or measured at the scale of the species’ current range or would result in an insignificant impact on a listed species or critical habitat; or (3) the proposed action would result only in wholly beneficial effects for a listed species or critical habitat.

Effects Determinations

The Services currently categorize possible effects of a proposed project as direct, indirect, interrelated, and interdependent and require consideration of each of these potential effects. The proposed rule would eliminate these categories in favor of a two-prong causation test that combines the existing definition of indirect effects with the test defined by courts for identifying interrelated and interdependent activities.

First, the appropriate Service would analyze if an effect would not occur but for the proposed project or activity. Second, the Service would analyze whether the effect is reasonably certain to occur based on the best available scientific and commercial information. Both prongs must be met for the Service to consider the effect as part of its analysis. The Services state that this change is intended to help eliminate speculation and refocus effects determination on current, best available data.

Environmental Baseline

The existing definition of the environmental baseline is included as part of the Services’ definition of the “effects of the action.” This has caused confusion. The Services propose to create a standalone definition for “environmental baseline” that is similar to the existing definition. By making this a standalone definition, the Services intend to clarify that the baseline is a separate consideration that “sets the stage” for analyzing the proposed action, but is not part of the proposed action. The Service underscores that the baseline is “the state of the world absent the proposed action.” The proposed rule seeks comments on whether the Services should further modify this definition in the final rule to address consultations on ongoing federal actions.

Adverse Modification or Destruction Determinations

The proposed rule would modify the definitions of what constitutes “adverse modification” and “destruction” of critical habitat, as those terms are used in the ESA section 7 consultation process. The revised definitions are intended to clarify that final determinations would be based on whether proposed actions will result in “an alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.”

This means that the final determination about a project’s potential to adversely modify or destroy critical habitat will be made at the scale of the entire critical habitat designation, not just the project area. However, the Services explain that the size or proportion of the affected area would not necessarily be determinative of its impact on the value of the critical habitat as a whole. In some cases, impacts to a smaller area could result in a determination of destruction or adverse modification, while impacts to a larger geographical area may not result in such a finding.

The amended definition also clarifies that there is no “baseline jeopardy” status for any species, and that, consistent with the language in the current regulations, effects analyses will be made by evaluating the effects of the proposed action in light of the overall status of the species, the baseline conditions within the action area, and any cumulative effects within the action area. The proposed rule also clarifies that there is no requirement for the Services to identify a “tipping point” beyond which a species would be unable to recover. These changes are intended to clarify confusion about how the Services will treat proposed actions when the baseline is already degraded, confirming that baseline conditions alone cannot lead to a jeopardy or adverse modification determination, but that the baseline is an important consideration in evaluating a proposed action’s anticipated impacts.

Informal Consultation Deadlines

Informal consultation under 50 C.F.R. § 402.13 is an optional process used to determine whether formal consultation must occur. If performed effectively, informal consultation can help avoid formal consultation, or save resources and time if formal consultation ultimately is required. Under the current rules, however, there is no timeframe within which the Services must complete informal consultation. To improve the timeliness of review, the proposed rules would establish a 60-day deadline for completion of informal consultation, subject to extension. A shorter informal consultation process may save time and resources in project planning efforts. To ensure projects can be evaluated within the shorter timeframe, ongoing communication and cooperation with the relevant federal agencies would be required.

Expedited Consultation

The proposed rule adds a new provision entitled “expedited consultations” at 50 C.F.R. § 402.14(l) to streamline consultation for actions that are known to have predictable or minimal adverse effects. This new process would differ from informal consultation, which typically involves actions that are unlikely to adversely affect listed species or critical habitat, and instead would be available for proposed actions that would otherwise go through the formal consultation process and require an incidental take statement. To be eligible for this form of consultation, the Services must decide that such proposed actions are appropriate for the expedited process, and the initiation package must provide all the information required for the Service(s) to prepare a streamlined consultation process.

Clarify Requirements for Initiation of Formal Consultation

Delayed initiation of formal consultation under 50 C.F.R. § 402.14 can be frustrating, costly, and can result in indefinite uncertainty about the ability of projects to move forward. A key contributor to delayed consultation is disagreement between the action agency or applicant seeking consultation and the Services about what information is required in the “initiation package.” The proposed revisions would clearly describe the categories of information required to start the formal consultation process, including a description of the proposed action; measures intended to avoid, minimize, or offset effects; a description of the action area; species and critical habitat information; and a description of potential effects of the action.

Re-initiation of Consultation

The proposed changes to 50 C.F.R. § 402.16 would broaden the requirement to re-initiate consultation from formal consultations to include informal and expedited consultations. Importantly, it also clarifies that new species or critical habitat listings would no longer trigger the duty to re-initiate consultation for existing programmatic land management plans prepared under the Federal Land Policy Management Act or the National Forest Management Act, which already undergo regular updates. While a completed programmatic land management plan would not require re-initiation upon the listing of new species or critical habitat, any on-the-ground subsequent actions taken pursuant to the plan must be subject to a separate Section 7 consultation if those actions may affect the newly listed species or critical habitat.

Allow Adoption of Other Federal Analyses in Biological Opinion

In an effort to streamline the process and avoid duplicate federal reviews, the proposed rule explicitly provides for the Services to adopt all or part of the action agency’s initiation package into their biological opinions when appropriate, and to rely on their own prior analyses and findings when conducting section 7 consultation on their own issuance of scientific research and conservation permits under ESA section 10. While nothing currently prevents this, the proposed rule would encourage this behavior.

Clarifying Services’ Responsibilities

Consistent with the Services’ joint consultation handbook, the proposed rule is intended to better reflect the manner in which the Services integrate and synthesize their analyses of effects of the action with cumulative effects, the environmental baseline, and the status of the species and critical habitat to reach determinations regarding whether a proposed action jeopardizes a species or adverse modifies or destroys critical habitat. The proposed rule also clarifies that the Services’ role is to assume that the proposed action will be implemented and proceed to analyze the effects of that proposed action. This proposed revision codifies the Services’ longstanding position and distinction between the distinct responsibilities of the action agency and the consulting agency. As a result, the Services are not be required to analyze the likelihood of whether proposed measures to avoid, minimize, or offset adverse effects will, in fact, be implemented.

Programmatic Consultations

The Services propose adding a definition of “programmatic consultation” consistent with their current practice of grouping similar activities together in one ESA section 7 consultation. The definition clarifies that optional programmatic consultations can be undertaken for: (1) multiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas (e.g., regional road maintenance by state departments of transportation); or (2) national or regional programs, regulations, or plans where federal agencies are not yet able to provide detailed specificity, but can conduct a generalized review of effects that can then be incorporated by reference in subsequent consultations when “may affect” determinations have been made (e.g., land management plans).