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UPDATE: Endangered Species Act Regulatory Reform is Coming Soon

On August 12, 2019, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the “Services”) announced that they have finalized revisions to the Endangered Species Act (ESA) implementing regulations.  The new rules will eliminate automatic protections for “threatened” species, reform the Section 7 consultation process, and change the species listing/delisting and critical habitat standards.  Although the new rules make a number of regulatory changes, the practical effects, particularly to the ESA consultation process that most project applicants rely on to secure a biological opinion and incidental take authorization, should be modest.

In 1978, the USFWS adopted a “blanket rule” extending the ESA’s take prohibition and other protections to “threatened” species.  The new rule will rescind this blanket rule, but it allows the USFWS to extend protections for threatened species on a species-by-species basis.  Under a second rule, the Services will change the criteria and procedures for listing and delisting species and designating critical habitat.  Most significantly, under the new rule, the Services may disclose the economic impact of a listing decision, but this information will be strictly for informational purposes.  The new rule continues to recognize that listing determinations will be based solely upon biological criteria.  This new rule also seeks to limit the Services’ ability to designate areas that are not currently occupied by a species as critical habitat, and consistent with the Supreme Court’s recent Weyerhaeuser decision, emphasizes that only land which contains one or more “physical or biological features essential to the conservation of the species” will be considered critical habitat.  These rules will not apply to species that are currently listed or already have designated critical habitat. 

A third rule will affect how the Services evaluate a proposed project’s effects to listed species during the Section 7 consultation process, and adds a new “expedited consultation” process for actions that have minimal or predictable effects to species.  While the Section 7 consultation process will remain much the same, the new rule changes the definition of several key terms, no longer distinguishes between direct, indirect and interrelated or interdependent effects (all of which will now be addressed collectively as “effects”), and defines the “environmental baseline” the Services will use to analyze the effects of a proposed project.  These changes may not affect the outcome of most Section 7 consultations, but they will require the Services to more clearly articulate their findings.

The Services issued drafts of these new rules in July 2018, and received tens of thousands of comments for and against them.  Litigation seems inevitable, and the scope of the changes therefore remains to be seen.  The final rules will be published in the Federal Register later this month, and they will go into effect 30 days following publication.  For a sneak peek at the final rules, go to https://www.fws.gov/endangered/improving_ESA/regulation-revisions.html

This posting is intended to summarize recent developments in the law for informational purposes only.  It is not intended, and does not constitute, legal advice.  We make no warranties of its completeness or accuracy.  Because questions regarding the application and interpretation of these and other laws require qualified legal analysis, we ask that you direct any such questions to us following an appropriate, formal retention.  For more information about the new Endangered Species Act regulations or to discuss how they may affect your project, please contact Shawn Zovod in Lubin Olson’s Natural Resources, Land Use and Real Estate Practice Group.

 

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