Long-sought reforms to Endangered Species Act (ESA) implementation have arrived. On August 27, 2019, the U.S. Fish and Wildlife Service (FWS) and U.S. National Marine Fisheries Service (NMFS) finalized regulations (the 2019 Regulations) intended to make ESA listing decisions, critical habitat designations, and agency consultations more transparent and efficient while still protecting listed species. Already the target of litigation, the 2019 Regulations should benefit both project proponents and species by helping reduce the administrative backlogs and uncertainty increasingly associated with the ESA. The 2019 Regulations will take effect on September 26, 2019.

Although the 2019 Regulations largely track the Services’ proposals in 2018 (see our prior alert), early media reporting reflects widespread misunderstanding about their scope and implications. Here is what the 2019 Regulations mean for projects and species. 

ESA Section 4: Species Listings and Critical Habitat Designations

The 2019 Regulations aim to improve the predictability of the often contentious processes for species listings and critical habitat designations under ESA Section 4, including by: 

• Clarifying that the Services may estimate the economic impacts of listing decisions and summarize that information in their decisions. Regularly misrepresented in the press, this revision is for transparency purposes only, and does not alter the ESA’s requirement to make species listing decisions based only on the best available science. 

• Defining “foreseeable future” for threatened species listings. Under the ESA, a threatened species must be likely to become endangered within the “foreseeable future.” The Services now define “foreseeable future” as extending only so long as the Services can “reasonably determine” that the future threats and species’ responses are likely. The prior lack of definition led to concerns about speculative listing decisions, particularly in the context of potential climate change impacts.

• Requiring that a species’ designated critical habitat already be a habitat for that species. The Services now may only designate uninhabited areas as critical habitat if (1) the designation of all occupied areas as critical habitat is inadequate to ensure the conservation of the species, (2) it is reasonably certain that the unoccupied habitat will contribute to the species’ conservation, and (3) it is reasonably certain that the unoccupied area contains physical or biological features essential to the species’ conservation. The 2019 Regulations restore the Services’ earlier interpretation and respond to the recent Supreme Court decision in Weyerhaeuser Co. v. FWS, 139 S Ct. 361 (2018), thereby addressing criticism that the Services restricted broad swaths of land-based on unsupported speculation. 

• Applying the same standards to listing or delisting a species as threatened or endangered.

• Clarifying situations where designating critical habitat is “not prudent.”

• Redefining the phrase “physical or biological features essential to the conservation of the species” to provide greater certainty in critical habitat designations.

ESA Section 4(d): Prohibitions for Threatened Wildlife and Plants

The 2019 Regulations restore the ESA’s distinction between endangered and threatened species within FWS’s purview. Previously, unlike NMFS, FWS through a blanket “4(d) rule” had automatically extended the ESA’s endangered species “take” prohibition to threatened species. For newly-listed threatened species, if FWS determines that a take prohibition or other protection is necessary, it will promulgate a species-specific rule establishing that prohibition or protection. Otherwise, take of a species newly listed as threatened after September 26, 2019, is not prohibited. Take of already-listed threatened species still requires the Services’ prior authorization.

While this change is controversial from a policy standpoint, it is intended to create consistency with NMFS’ longstanding practice, reduce the regulatory burden on landowners and project proponents, and better focus agency resources on the species in greatest need of protection. However, the rule may engender more litigation associated with threatened species listings.

ESA Section 7: Agency Consultations

Although the subject of fewer headlines, project proponents should benefit most immediately from revisions to the ESA Section 7 regulations governing the Services’ consultation and incidental take authorization for federal agency actions. Confusion over the scope and legal standards for ESA Section 7 consultation regularly delays project development when the Services consider activities outside of their jurisdiction, “federalizing” these private activities. Consultations also drag-out when they focus on speculative “what if” scenarios. The 2019 Regulations address these issues by:

• Redefining “effects of the action” to include consequences caused by a proposed action that would not occur “but for” the proposed action and are “reasonably certain to occur.” This definition does away with the prior ambiguous formulation requiring the Services to analyze “direct,” “indirect,” “interrelated,” and “interdependent” effects.

• Establishing a framework for determining whether activities or effects are “reasonably certain to occur” and should be considered in consultation. These determinations rely on “clear and substantial information,” meaning there must be a “firm basis” to find that a consequence of an action is “reasonably certain to occur.”

• Defining the “environmental baseline” against which the effects of the action are evaluated to include the consequences of ongoing agency activities or existing agency facilities not within the agency’s discretion to modify. 

In addition to questions about scope, other stumbling blocks in the Section 7 consultation process routinely bog down project development. The regulations seek to smooth these problems by: 

• Requiring the Services to provide written concurrence or non-concurrence with an agency determination in informal consultation within 60 days of receiving a written request for concurrence that meets prescribed criteria.

• Clarifying the information necessary to initiate formal consultation or request concurrence in informal consultation. A document prepared for other purposes (e.g., NEPA) may meet these standards. 

• Requiring that the Services consider minimization and mitigation measures included as part of the proposed action like any other aspect of the proposed action. This provision responds to court decisions requiring “binding plans” or other assurances that minimization and mitigation measures will occur before the Services can consider them. 

• Providing expressly that the Services’ biological opinion may adopt all or part of an action agency’s initiation package.

Further, the 2019 Regulations codify a framework for considering the “environmental baseline” in biological opinions, promote programmatic consultations, establish an expedited consultation framework, and clarify that consultation must be reinitiated whenever new information emerges that would warrant either informal consultation or formal consultation. 

Conclusion

Agency resource limitations and endless litigation have strained the Services’ ESA implementation for years, including listing decisions and critical habitat designations under ESA Section 4 and agency consultations under ESA Section 7. This status quo disserved species and project proponents, as species conservation efforts languished while project budgets and timelines increased. The 2019 Regulations streamline ESA implementation and harmonize it with other permitting requirements to address these challenges. If implemented consistently by the Services, ESA modernization may become a reality.

The ESA Section 4 species listing and critical habitat designation rule is available here.

The ESA Section 4(d) prohibitions for threatened wildlife and plants rule is available here.

The ESA Section 7 agency consultations rule is available here.