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Significant Changes in the Works on Endangered Species Act Regulations

By Jane C. Luxton, Amanda L. Tharpe / Aug 06, 2018

On July 25, 2018, the Department of the Interior published three proposed rules that would substantially alter implementation of Section 4 of the Endangered Species Act (“ESA”), which governs listing and designation of critical habitat, use of the “4(d) rule,” regarding identification of threatened species, and the interagency cooperation and consultation process required by Section 7 of the ESA.  This proposal represents a potentially major revision of the ESA, a cornerstone – and often controversial – environmental law that affects land use and other projects throughout the nation.  The proposed rules offer an important opportunity for interested parties to provide input on these significant changes.  Comments are due by September 24, 2018.

The Endangered Species Act was passed in 1973 and provides a regulatory framework for identifying species that are endangered or threatened with endangerment.  The ESA aims to provide protections for the species and their habitat that will allow for their conservation and recovery.  Many have criticized the ESA for overly bureaucratic processes and a low rate of success.  Currently 1464 species are listed, while 85 have been delisted due to recovery or extinction.  Others argue that the ESA has been successful in recovering some of the most threatened species.  The proposed rules aim to modernize the implementation of the EPA and improve collaboration, efficiency, and effectiveness.

The first proposed rule, “Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat,” would modify the way the U.S. Fish and Wildlife Service (“FWS”) and National Oceanic and National Marine Fisheries Service (“NMFS”) make listing, relisting, and reclassification decisions.  The two “Service” agencies are proposing to make the economic impacts of listing, delisting, or reclassification decisions publicly available.  In order to address criticisms that the Services have been overly speculative in determining whether a species is likely to become endangered in the “foreseeable future,” the Administration is proposing that the term “foreseeable future” be considered “only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction . . . are probable.”  Additionally, this rule proposes to use the same standard for deciding whether to delist a species as is used to make a listing decision.  It would also require the Services to consider all areas occupied by a species before designating any unoccupied area as critical habitat necessary for the survival or recovery of the species.

The second proposed rule, “Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants,” would repeal the Services’s use of the “blanket 4(d) rule.”  Section 4(d) of the ESA directs the agency to issue regulations for the conservation of species listed as threatened.  This rule has increasingly been used by agencies to automatically extend many of the same protections for endangered species to species listed as threatened.  The proposed rule would rescind use of the “blanket 4(d) rule,” with the goal of tailoring protections for threatened species to the individual needs of that particular species.  This proposal would not be retroactive, but would apply only to future listings.

The last proposed rule, “Endangered and Threatened Wildlife and Plants; Revision of Regulations for Interagency Cooperation,” would clarify and improve the interagency consultation process required by Section 7 of the ESA.  That provision requires consultation between federal agencies to ensure that any agency action will not jeopardize the existence of any endangered species or destroy or adversely modify the species’ habitat.  This process has often been the subject of court cases, the holdings in which have led to more confusion over standards for agency consultation.[1]  The agency is now proposing to clarify that in analyzing potential destruction or adverse modification to habitat, the land “as a whole” be considered.  This proposal would also create an “expedited consultation” process that would streamline review for actions that will have minimal or predictable adverse impacts.  The proposal also seeks to clarify criteria for analyzing the effects of a proposed action to focus on activities that are “reasonably certain to occur,” to ensure the analysis does not spill over into the realm of speculative impacts.

The effectiveness and efficiency of the Endangered Species Act have continuously been a topic of debate and these proposed rules will undoubtedly receive considerable attention from stakeholders.  Interested parties should use this opportunity to engage on these significant reforms and offer suggestions for how the ESA can better achieve its goals.

Clark Hill attorneys are experienced in working with clients to develop effective legal strategies and advocacy approaches to address regulatory and deregulatory initiatives. For more information, please contact Jane C. Luxton at jluxton@clarkhill.com | (202) 572-8674, Amanda L. Tharpe at atharpe@clarkhill.com | (202) 772-0913, or another member of Clark Hill's Environment, Energy & Natural Resources practice group.

[1] See Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001) and Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004).