The proposed regulations announced on July 19 by the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic Atmospheric Administration (NOAA) respond to the Trump Administration’s directive to improve the clarity and efficiency of existing regulatory programs.

“One thing we heard over and over again was that ESA implementation was not consistent and often times very confusing to navigate. We are proposing these improvements to produce the best conservation results for the species while reducing the regulatory burden on the American people,” said USFWS Principal Deputy Director Greg Sheehan.

Among the major issues at stake are: (1) concerns by landowners and other stakeholders that critical habitat designations often draw into federal regulation broad areas of land and water that have little or no current demonstrated value to the species, resulting in costly burdens without proportionate benefits to the species, and (2) that ESA section 7 consultations on federal agency actions (like permits) often evolve into broad evaluations of activities that extend beyond the regulatory jurisdiction and control of the agency, leading to lopsided project restrictions and uneconomic outcomes. In meetings with Acting Deputy Director Gould, FLA has urged the USFWS to ensure that when an area of land or water is designated as critical habitat, it is truly critical to the species at the time of designation. Concerns about theoretical future habitat need be held for future revisions to the designation, as contemplated by Congress in the statute.

Rescinding the Blanket Rule

The Blanket Rule applies all protections that endangered species receive to those species listed as threatened. Rescinding this rule will mean that the USFWS will craft species-specific 4(d) rules for each future threatened species, determining whether the heightened protection that endangered species receive are necessary and advisable for the conservation of the species. This change would not be retroactive but would apply to all species listed as threatened in the future.

“No two species are the same, and so by crafting species-specific 4(d) rules for threatened species, we can tailor appropriate protections using best available science according to each species’ biological needs,” said Sheehan. “By creating a clearer regulatory distinction between threatened and endangered species, we are also encouraging partners to invest in conservation that has the potential to improve a species’ status, helping us work towards our ultimate goal: recovery.”

Clarifying the Standard for Getting Species off the List

Another proposed rule clarifies that decisions to delist a species are made using the same standard as decisions to list species. In both cases, that standard is whether a species meets the established ESA definition of an endangered species or threatened species. Contrary to the opinion of some courts, this rule clarifies there is not a higher standard for delisting a species than there is for listing a species. Once a species no longer meets the definition of threatened or endangered, it can be legally delisted.

New Definition for Threatened Species

Right now, “threatened species” are those at risk of becoming endangered in the “foreseeable future.” The agencies are clarifying what “foreseeable future” means, limiting the term so that it “extends only so far into the future as the [agencies] can reasonably determine” that the risk of extinction is probable.

Limiting Designation of Critical Habitat  

The proposed rules revise the procedures for designating critical habitat by reinstating the requirement that federal agencies must first evaluate areas currently occupied by the species before considering unoccupied areas. Currently, an area can be considered important for recovery even when it is not occupied by the species in question. Under the new proposal, designation of unoccupied critical habitat will occur only when the occupied areas are inadequate to ensure the conservation of the species or if the inclusion of unoccupied areas would yield certain other specified benefits.

Inter-agency Consultation

Under the ESA, other federal agencies consult with the USFWS and NOAA Fisheries to ensure their actions are not likely to jeopardize the continued existence of any listed species. The proposed rules clarify when this consultation process is required, with a goal of “to help timely decision making for infrastructure and economic development,” according to Sheehan.

Notably, the agencies are proposing to strike language that instructs officials to ignore economic impacts when determining how wildlife should be protected.  “We propose to remove the phrase ‘without reference to possible economic or other impacts of such determination’ to more closely align with the statutory language,” he states the proposed rule. “The act requires the secretary to make determinations based ‘solely on the basis of the best scientific and commercial data.'”

60-Day Comment Period

The proposed rules will be published in the Federal Register and open to the public for comment.  FLA will submit comments to the Federal Register on these proposed rules, following consultation with our members who are affected by the ESA.  We will also publish the link to submit comments by landowners on the proposed rules.