USFWS releases changes to ESA rules

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service released final regulations making changes to their implementation of the Endangered Species Act. The changes, which were released in draft form last year, apply to sections of the act covering the listing and delisting process, designating critical habitat and consultations with other federal agencies.

“The Wildlife Society supports a strong and science-based Endangered Species Act,” said Caroline Murphy, AWB, government relations manager at The Wildlife Society. “We have several concerns about the regulatory changes, which we submitted to the U.S. Fish and Wildlife Service during the public comment period on the draft changes.”

The revised regulations remove language requiring that listing decisions be made “without reference to possible economic or other impacts of such determination.” While the inclusion of information on the economic effects of listing decisions may provide more context to the effects of decisions, TWS raised concern in its written comments about the change, stressing that listings must continue to be made solely on the basis of the best scientific and commercial data available, as required by the act.

The revisions include a list of situations in which critical habitat no longer needs to be designated at the time of listing. It also requires agencies to first evaluate occupied habitat before considering unoccupied habitat for designation, and it imposes a heightened standard for unoccupied areas to be designated as critical habitat. Unoccupied habitat must contain one or more of the physical or biological features essential to the species’ conservation to be designated as critical habitat.

The revised regulations also include changes to the consultation process, which requires federal agencies to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to ensure that federal government actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modify their critical habitat. The changes include a new “jeopardy” standard — which means that consultation will only be required  where the federal action causes “appreciable” harm to a listed species or its critical habitat, a change from previous regulations that were interpreted by the courts to mean that when a species is already in jeopardy, additional adverse impacts would be prohibited.

The new regulations also establish a new “expedited consultation” process, which allows agencies to streamline consultation if, based on previous consultation experience, the proposed actions will likely have minimal or predictable effects, and they establish a 60-day deadline for informal consultations.

One change, which was supported by The Wildlife Society, is to modify the regulations so that the same five factors considered in listing decisions would also be considered in delisting decisions. This revision provides clarity within the regulation and brings the statute in line with current practice.

Finally, the FWS also finalized the rescission of its “blanket 4(d) rule” under section 4(d) of the ESA. That rule had automatically provided threatened species with the same protections from “take” as endangered species, unless otherwise specified. With the blanket rule removed, the agency will now have to develop a specific Section 4(d) rule for each newly listed threatened species if it wishes to protect them from take.

TWS warned in its written comments that removing the blanket 4(d) rule could prevent newly listed threatened species from receiving protection from take under the ESA. While Section 4(d) rules allow regulations to be tailored to the specific biological needs and threats of a species, creating scientifically rigorous rules for every newly listed threatened species will require considerable effort on the part of the agency — which they may not have the capacity to provide. For every threatened species to receive protection with a special 4(d) rule, TWS said, USFWS would need to more than double its output of species-specific rules. If these rules are not created, the lack of regulatory protections could prevent species from recovering.

“We recommended that the blanket rule be retained,” said Murphy. “We are concerned that the agency won’t receive the funding or prioritize staff capacity in a manner that enables them to create scientifically rigorous 4(d) rules for all newly threatened species.”