Agencies Propose Revisions of Endangered Species Regulations
The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) have proposed important revisions of their regulations implementing the Endangered Species Act (ESA). The Services would 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. The proposals address longstanding concerns of the regulated community that the current regulations impose unnecessary burdens on landowners and other stakeholders without providing proportionate benefits to wildlife.
Background
The ESA aims to protect and recover fish, wildlife, and plant species at risk of extinction. It calls upon 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 species without a permit and authorizes the Services to develop regulations for the protection of threatened species. Second, it 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 “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 proposed regulatory revisions with a press release on July 20, 2018, and published the proposals in three parts (listing species and designating critical habitat, consultation, and threatened species) in the Federal Register today, July 25, 2018, thus beginning a 60-day public comment period.
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’ current regulation elaborates that they will make listing decisions “solely on the basis of the best available scientific and commercial information regarding a species’ status, without reference to possible economic or other impacts of such determination.”
The Services now propose to delete that last phrase, explaining that they “will continue to make determinations based solely on biological considerations” in keeping with the Act, but “there may be circumstances where referencing economic, or other impacts may be informative to the public.” Contrary to many press reports saying the Services would consider economic consequences in deciding whether to list species, the Services emphasized they would do no such thing and explained: “While Congress precluded consideration of economic and other impacts from being the basis of a listing determination, it did not prohibit the presentation of such information to the public.”
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 current regulations describe the meaning of “foreseeable future.”
The Services propose to specify that “[t]he term foreseeable future extends 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.” Explaining that they “will avoid speculating as to what is hypothetically possible,” the Services say they will describe the foreseeable future on a case-by-case basis considering each species’ life-history characteristics, threat-projection timeframes, and environmental variability; they need not identify the foreseeable future in terms of a specific period of time.
Delisting Species. The Services propose to revise 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 criteria for listing as endangered or threatened, it should be delisted. The Services also propose to specify that a species should be delisted if it is found to be extinct or not to meet the statutory definition of a species.
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 now propose to set forth a non-exhaustive list of circumstances that may warrant a finding it is not prudent to designate critical habitat. They would retain the first situation identified in the current regulation and replace 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, 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, after analyzing the best scientific data available, the Services otherwise determine that designation of critical habitat would not be prudent.
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 propose to return to the two-step approach by restoring the requirement that the Services will first evaluate areas occupied by the species.
The Services also propose to specify that they may determine unoccupied areas are essential for the conservation of the species in two situations only: when a critical habitat designation limited to geographical areas occupied (1) would be inadequate to ensure the conservation of the species or (2) would result in less efficient conservation for the species.
Under the proposals, for an unoccupied area to be considered essential, the Services must determine that there is a “reasonable likelihood that the area will contribute to the conservation of the species.” For example, the Services note, they might conclude that an area is unlikely to contribute to the conservation of a species where “it would require extensive affirmative restoration that does not seem likely to occur such as when a non-federal landowner or necessary partners are unwilling to undertake or allow such restoration.” The U.S. Supreme Court is currently reviewing a case, Weyerhaeuser Company v. U.S. Fish and Wildlife Service, presenting that very issue.
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 propose to simplify the 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 effects on the listed species or critical habitat that are caused by the proposed action, including the effects of other activities that are caused by the proposed action.” The aim of this approach is to avoid quibbles about categorizing effects. The proposed definition also specifies that “[a]n effect or activity 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 propose a definition that “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 propose two revisions. First, they would add “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” 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 propose removing the second sentence because it is unnecessary and has caused confusion and controversy.
The Services also offer commentary on 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, whether the effects of the proposed action are “appreciable” even where a species already faces severe threats apart from the action. “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.”
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 largely extending the protections afforded endangered species to all threatened species, thus generally erasing the distinction between the two categories.
FWS now proposes a new rule that preserves application of the blanket provisions to species listed as threatened before the new rule and calls for FWS to adopt species-specific rules in the future that set forth all applicable prohibitions and exceptions for each threatened species.
Conclusion
These proposals, while technical in nature, would substantially change important standards and procedures by which the Services currently implement the Endangered Species Act. The Services emphasize that the proposed changes are prospective and would not require reevaluating any previous decisions based on the current regulations. The public has until September 24, 2018, to submit comments on the proposals. The Services naturally must consider those comments before issuing any final rules, so they likely will not be ready to act until late 2018 or 2019.
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
