Federal Agencies Revise Endangered Species Regulations to Reduce Burdens on Regulated Community

The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) have revised their regulations implementing the Endangered Species Act (ESA).  The new rules hardly “gut” the ESA, as some hyperbolic headlines have suggested.  Rather they address longstanding concerns that the previous regulations imposed unnecessary burdens on landowners and other stakeholders without providing proportionate benefits to wildlife.  The revisions accordingly tweak technical aspects of the Services’ regulatory processes with the aim of reducing regulatory burdens without appreciably reducing protection of listed species.  The Services change four aspects of their regulations:  (1) the way they list and delist threatened and endangered species, (2) the way they designate critical habitat of listed species, (3) the way federal agencies consult with the Services about the effects of their actions on listed species, and (4) the way threatened species are protected.

Background

The ESA aims to protect and recover fish, wildlife, and plant species at risk of extinction. It calls on NMFS (for marine species) and FWS (for all other species) to list species found to be “threatened” or “endangered.” A species may be listed as “endangered” if it “is in danger of extinction throughout all or a significant portion of its range” or “threatened” if it “is likely to become an endangered species within the foreseeable future . . . .” The Act also directs the Services to designate “critical habitat” for each such species, including “the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical and biological features . . . essential to the conservation of the species and . . . specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the [Service] that such areas are essential for the conservation of the species.”

The ESA generally protects listed species and their habitat in two ways. First, it prohibits any person from “taking” endangered wildlife species without a permit and authorizes the Services to develop regulations for the protection of threatened species. (Listed plants are protected somewhat differently.)  “Take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” or attempt any such conduct.  Second, the ESA calls on federal agencies to ensure that actions they authorize, fund, or carry out are not likely to “jeopardize” the continued existence of any listed species or result in the “destruction or adverse modification” of the designated “critical habitat” of any such species. Toward this end, whenever a federal agency finds that its action, e.g., issuance of a permit for a project, “may affect” listed species or critical habitat, it must “consult” with the pertinent Service about that action. The consultation generally leads to the Service issuing a “biological opinion” whether the action would jeopardize a species or destroy or adversely modify its critical habitat. The Service also assesses whether the action would result in taking members of the species, and, if so, it includes an “incidental take statement” prescribing measures to minimize the effect of the take. If the federal agency and its permittees act in compliance with those measures, then any take resulting from those activities is not prohibited.

The Services previewed their regulatory revisions with a press release on August 12, 2019, and published the revised regulations in three parts (listing species and designating critical habitat, consultation, and threatened species) in the Federal Register today, August 27, 2019.  The new rules become effective on September 26, 2019, and establish only prospective standards, meaning they do not affect any earlier actions of the agencies and apply only to their decisions after that date.

Listing and Delisting Species

Economic Impacts. The ESA requires the Services to decide whether to list a species “solely on the basis of the best scientific and commercial data available.” The Services’ prior regulation added that they will make listing decisions “without reference to possible economic or other impacts of such determination.”

The Services have deleted that phrase from their regulation, explaining that the ESA makes clear that “listing determinations must be made solely on the best scientific and commercial data available,” but it “does not prohibit the Services from compiling economic information or presenting that information to the public, as long as such information does not influence the listing determination.”  Noting that the phrase “could be construed to not allow the Services to inform the public of the economic implications of the Services’ listing decisions,” the Services said that by removing it, they “are responding to strong and growing interest by some members of Congress and the public for increased transparency regarding the economic impacts of regulations.”

Contrary to assertions in some media, the revised regulation does not allow the Services to consider economic impacts in deciding whether to list a species.  The Services indeed have emphasized as much in their explanation of the new rule.  That said, publication of the economic impacts of listings may well have political significance, and that apparently is what some hope and others fear.

Foreseeable Future. The ESA provides that a species may be listed as “threatened” if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Neither the Act nor the earlier regulations described the meaning of “foreseeable future.”

The Services have now specified by regulation that “[t]he term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.”  Noting that “listing decisions cannot be based on speculation” of what the future may bring, the Services provide in their regulation that they “will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life-history characteristics, threat-projection timeframes, and environmental variability.”  The rule adds that, in doing so, the Services “need not identify the foreseeable future in terms of a specific period of time.”

Critics have voiced concern that the Services, in considering whether to list species as threatened, may find they are unable to “reasonably determine” that certain future effects of climate change are “likely,” and thus refrain from factoring climate change into their decision-making.  As already considerable evidence and understanding of climate change and its regional and local effects improve, though, one may just as reasonably surmise that the Services will find they can consider such effects under this rule at least in some circumstances.  Only time will tell how the Services actually address climate change in their future listing decisions under this rule.

Delisting Species. The Services have revised the regulation regarding delisting species to clarify that “[t]he standard for a decision to delist a species is the same as the standard for a decision not to list it in the first instance.” In other words, if a listed species no longer meets the statutory criteria for listing as endangered or threatened, e.g., the threat of disease or predation has abated or the species’ habitat is no longer curtailed or threatened with destruction, it should be delisted. The Services also specify that a species should be delisted if it is found to be extinct or not to meet the statutory definition of a species.

The Services rejected suggestions to establish a higher standard for delisting species, maintaining that the ESA and courts interpreting it, have confirmed that decisions to delist species should be made in accordance with the same factors the ESA prescribes for listing.

Designating Critical Habitat

Determinations that Designation of Critical Habitat Is Not Prudent. The ESA calls on the Services, “to the maximum extent prudent,” to designate the “critical habitat” of a listed species. The current regulation identifies two situations in which designation of critical habitat would not be prudent: (1) if a species is threatened by taking or other human activity and identification of critical habitat is expected to increase that threat, or (2) if the designation would not be beneficial to the species.

The Services have now set forth a non-exhaustive list of circumstances that may warrant finding that designation of critical habitat is not prudent because it would not benefit the species. They have retained the first situation identified in the current regulation and replaced the second, which the Services say is unnecessary and courts have construed in unintended ways, with four new categories: (1) present or threatened modification or curtailment of habitat is not a threat to the species, or threats to habitat stem solely from causes that cannot be addressed through management actions developed from consultations under the ESA, e.g., melting glaciers, sea level rise, or reduced snowpack, (2) areas within U.S. jurisdiction provide no more than negligible conservation value for a species occurring primarily outside U.S. jurisdiction, (3) no areas meet the definition of critical habitat, or (4) a catch-all category where the Services otherwise determine that designation of critical habitat would not be prudent based on the best scientific data available.

Designating Unoccupied Areas. In 2016, the Services amended their regulations to eliminate a provision stating that they “shall designate as critical habitat outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” The Services said then that the “rigid step-wise approach” prescribed in that provision may not be the best conservation strategy for a species and in some circumstances may result in a designation that is geographically larger, but less efficient as a conservation tool.

The Services now say that owing to perceptions that, by eliminating that earlier provision, they intended to designate as critical habitat expansive areas of unoccupied habitat, they are returning to the two-step approach by restoring the requirement that the Services first evaluate areas occupied by the species.  They also provide by regulation that they will consider unoccupied areas to be essential only where a critical habitat designation limited to geographical areas occupied by a species would be inadequate to ensure the conservation of the species.

Under the new rule, for an unoccupied area to be considered essential, the Services must determine that there is a “reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.”  Acknowledging that the ESA’s definition of “critical habitat” refers to “physical or biological features” only in the provision regarding occupied habitat, the Services observed, based on the ESA, its legislative history, and the reading of courts, that Congress intended the test for designating unoccupied critical habitat to be more demanding than that for occupied habitat.  Accordingly, the Services say, their regulation’s reference to “physical or biological features essential to the conservation of the species” serves to further congressional intent.  That reference also addresses, the Services add, the Supreme Court’s recent ruling in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, 139 S.Ct. 361 (2018), that an area must at a minimum be “habitat” before it can be considered as potential “critical habitat.”  In that case, the U.S. Fish and Wildlife Service had designated critical habitat for the dusky gopher frog that included areas that were not only unoccupied, but absent substantial changes could not be occupied, by the frog.  The Court rejected the designation, reasoning that critical habitat is necessarily a subset of the larger category of habitat.

Agency Consultation with Services

Of the many proposed revisions of the regulations governing federal agencies’ consultation with the Services regarding the effects of their actions on listed species and critical habitat, three are most notable.

Effects of the Action. The Services simplified the regulatory definition of “effects of the action” by dispensing with categorizing effects as direct or indirect and separately accounting for effects of interrelated and interdependent actions, and instead collapsing all of these aspects into a new definition that encompasses “all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action.” The aim of this approach is to avoid quibbles about categorizing effects. The definition also specifies that “a consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur.”

Environmental Baseline. The effects of a proposed action are measured from the “environmental baseline.”  Determining that baseline is sometimes complicated by how to account for ongoing or changing actions over time and other actions that may be the subject of past or future consultations. The Services have defined “environmental baseline” to mean “the condition of the listed species or its designated critical habitat, without the consequences to the listed species or designated critical habitat caused by the proposed action.”  They add that this baseline “includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.”

Destruction or Adverse Modification. Since the ESA obligates federal agencies to ensure that their actions are not likely to result in the “destruction or adverse modification” of critical habitat, the meaning of that phrase is critical, and it has been the subject of much litigation. In 2016, the Services revised their regulatory definition to state:  “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.  Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.”

The Services have now revised their definition in two ways.  First, they have added “as a whole” to the first sentence to clarify that the appropriate scale for determining destruction or adverse modification is the effect on the entire critical habitat designation and not some smaller scale, e.g., the action area or a portion of the designated critical habitat.  Just as a determination of “jeopardy” of a species is made at the scale of the entire listed species, the Services explain, so too a determination of destruction or adverse modification should be made at the scale of the entire critical habitat designation.  Second, the Services removed the second sentence because it is unnecessary and has caused confusion and controversy.  The revised regulation largely solidifies the Services’ longstanding practices.

The Services also confirmed their earlier commentary on the proposed revisions regarding what it means to “appreciably diminish” the value of critical habitat, explaining that this determination depends on the proposed action’s effect on the value of the entire critical habitat.  Moreover, the analysis must always consider, they said when proposing the revisions, whether the effects of the proposed action are “appreciable” even where a species already faces severe threats apart from the federal agency action prompting the consultation.  “It is sometimes mistakenly asserted,” they added, “that a species may already be . . . ‘in jeopardy’ . . . by baseline conditions, such that any additional adverse impacts must be found to meet the regulatory standards for [jeopardy] or ‘destruction or adverse modification.’” Pointing to several court decisions that did just that, they declared “[t]hat approach is inconsistent with the statute and our regulations.”

In order to alleviate confusion, the Services offered further explanation in their preamble to the final rule:  The consultation process entails several stages of evaluation of effects on critical habitat.  First, the federal agency must determine whether its proposed action, e.g., approval of a project, “may affect” critical habitat, thus triggering the obligation to consult with the pertinent Service.  Second, the Service must determine whether the action “has an adverse effect on the critical habitat within the action area.”  After effects are determined at the action-area scale, they are next analyzed with regard to the critical habitat as a whole.  In doing so, the Services look at the adverse effects, evaluate their impacts, and assess “whether the effects diminish the role of the entire critical habitat designation.”  “Even if it is determined that the effects appear likely to diminish the value of the critical habitat,” the Services note, “a determination of ‘destruction or adverse modification’ requires more than adverse effects that can be measured and described.”  The Services must evaluate whether the adverse effects “will diminish the conservation value of the critical habitat in such a considerable way that the overall value of the entire critical habitat designation to the conservation value of the species is appreciably diminished.”  “It is only when adverse effects from a proposed action rise to this considerable level that the ultimate conclusion of ‘destruction or adverse modification’ of critical habitat can be reached.”

Protection of Threatened Species

In the ESA, Congress prohibited the taking of endangered species and authorized the Services to adopt regulations specifying protections for threatened species. For each species NMFS has listed as threatened, it has routinely adopted regulations prescribing prohibitions, protections, or restrictions tailored to that species.  The FWS on the other hand adopted a blanket regulation that largely extended the protections afforded endangered species to all threatened species, thus generally erasing the distinction between the two categories.

FWS has now adopted a revised rule that preserves application of its earlier blanket regulation to species listed as threatened before the effective date of this new rule.  For species listed as threatened in the future, the FWS may adopt species-specific rules as provided in the ESA, and any such species-specific rule will set forth all prohibitions and exceptions applicable to that threatened species.

Critics object that no longer providing blanket protection for species listed as threatened puts those species at greater risk.  The new rule though merely restores the approach Congress prescribed in the ESA distinguishing between threatened and endangered species, calls on FWS to adopt species-specific rules as NMFS has done without controversy for decades, and leaves FWS free to adopt a species-specific rule for any particular threatened species that effectively affords that species the same protections provided for endangered species.

Conclusion

The Services’ regulatory revisions, while technical and detailed, substantially change some important standards and procedures by which the Services currently implement the ESA.  The Services emphasize that the changes are prospective and do not require reevaluating any previous decisions based on the prior regulations.  They maintain as well that the changes are designed to simplify and otherwise improve regulatory procedures and decision-making in order to reduce unnecessary regulatory burdens without compromising the ESA’s promise of protecting listed species and their habitat.  Widespread concerns about these changes reflect the ESA’s importance and popularity in our society.  They also reflect, in some instances, misunderstanding and misinformation about the new rules.  The ultimate effects of these rules will largely depend on how the Services interpret and implement them case-by-case in their future decisions.

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
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