U.S. Fish and Wildlife Service and National Marine Fisheries Service Issue Proposed Endangered Species Act Regulations Regarding Interagency Consultation, Threatened Species, and Critical Habitat

On June 22, 2023, the U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) published three proposed rules related to implementation of the Endangered Species Act (“ESA”). The proposed revisions are made in response to President Biden’s Executive Order 13990, which directed the Services to review and revise certain agency actions taken between January 2017 and January 2021. The first proposed rule would revise regulations regarding interagency consultation, including broadening the scope of the Services’ conditioning authority. The second proposed rule would reinstate a blanket protection for threatened species managed by FWS. The third proposed rule would clarify any misconceptions created by the Trump administration when it removed language in 2019 referencing economic impacts within the context of the classification process and would change the Services’ critical habitat designation rule regarding not-prudent determinations and unoccupied areas.

Incidental Take Statements and Consultation: https://www.federalregister.gov/d/2023-13054

The Services propose expanding their authority to impose conditions in a no-jeopardy biological opinion to allow for offsite mitigation. While the existing regulations provide that the Services may impose measures to minimize the impact of any incidental take, the proposed rule would allow the Services to impose measures that offset any incidental take, including through offsite mitigation funding. The regulations do not explain how the Services might calculate required mitigation. This could be a significant increase in the scope of the Services’ conditioning authority for even those projects with few adverse impacts to listed species. This element of the proposed rule has no clear statutory basis and, if finalized, is almost certain to draw legal challenges.

The proposal also removes Trump-administration definitions regarding foreseeability and consequences that arguably limited the Services’ evaluation of uncertain climate change impacts. Specifically, the proposed rule would remove a section added in 2019 that lays out the nature of the information that must be considered by the Services in determining whether certain effects are reasonably certain to occur.

Finally, the proposal would update the definition of “Environmental Baseline” to clarify that the action agency’s discretion to modify the activity or facility is key in deciding which impacts should be included in the baseline. Because the Services claim they have already been interpreting the current definition in this manner, the Services do not expect their practices in consultations to change. However, the updated definition may result in existing structures that fall within an agency’s authority to remove being analyzed in the effects analysis, rather than as part of the baseline, even if the existing structures’ removal is not currently being considered as part of the agency action.

The proposed rule is prospective, meaning previously issued biological opinions and informal concurrences are not impacted by these proposed revisions. However, ongoing consultations will be subject to the new regulations, once a final rule is issued.

Threatened Species: https://www.federalregister.gov/d/2023-13055

FWS proposes reinstating its “blanket rule” which automatically extends the ESA’s section 9 take prohibition to newly listed threatened species under section 4(d) of the ESA, with an option for FWS to craft species-specific rules. Species protected under the earlier version of the blanket rule or species-specific rules that cross-reference sections affected by the proposed changes would receive updated protections. The proposed changes also would apply a blanket rule to threatened plants. NMFS will continue to craft species-specific take protections and does not have a blanket rule.

Listing Species and Critical Habitat: https://www.federalregister.gov/d/2023-13053

First, the Services propose changes to rules regarding listing, delisting, or reclassifying species to clarify any misconceptions created by the removal of language referencing economic impacts from the regulations in 2019 to remain consistent with the legislative mandate that classification determinations must be made solely on the basis of the best scientific and commercial data available. The proposal to restore clear language that the Services may not consider the potential economic impacts stemming from the classification determination is not novel in practice because such information was never considered by the Services as part of the classification decision beyond assessing economic data when relevant to help understand the threats to species. In addition, the Services propose revisions to the delisting rules that simply state more explicitly the same standards that have been in practice for delisting a species, such as finding that a species has recovered or that the circumstances and other factors show that a species no longer meets the definition of threatened or endangered. The proposal also updates the definition of “foreseeable future” in threatened species listing determinations to those predictions the Services have a reasonable degree of confidence in. Although vague in nature, the proposed change to the foreseeable future framework indicates that the Services are looking prospectively to species classifications based on potential climate change impacts as science and data continue to develop on this matter.

Second, the Services propose changes to rules as to the potential circumstances under which the Secretary may determine that it would not be prudent to designate critical habitat and expands the Services’ ability to designate unoccupied areas as critical habitat. For example, the proposed changes would remove 2019 language suggesting that anticipated climate change impacts should not be considered in critical habitat designations. In addition, the proposal modifies the criteria for designating critical habitat in unoccupied areas by removing references to occupied areas, and instead reiterates that unoccupied areas designated as critical habitat must be essential to a species’ conservation. Likewise, the proposed rule removes the requirement that unoccupied areas contain one or more physical or biological features essential to conservation. These changes are apparently intended to make it easier for the Services to designate unoccupied areas as critical habitat. This rule would not apply retroactively.

The Services are soliciting comments on all three rules. Comment periods close on August 21, 2023.