The Birds and the Bees - Update on Endangered Species Act Protections

January 15, 2019
Jonathan E. Rinde, Esq.
MGKF Special Alert - Federal Forecast 2019

The United States Fish and Wildlife Service has proposed a series of three changes to the Endangered Species Act’s implementing regulations with the intention of simplifying and clarifying certain procedures under the Act.  83 Fed. Reg. 35174-35201 (July 25, 2018)

One of the changes relates to the procedures for designating critical habitat for threatened and endangered species. The proposal would reinstate the requirement that the Service must first evaluate areas currently occupied by the species before considering whether unoccupied areas are essential to the conservation of the species, and provides a list of conditions where designation of an area for a particular species would not be prudent. The proposal would further remove a provision prohibiting the consideration of economic consequences when designating critical habitat.  While the Service states that decisions will continue to be made using biological information, economic concerns could also be raised.

The Service further proposes changes to the way in which a species may be designated as “threatened.”  The Act defines a threatened species as one that is likely to be in danger of extinction within the “foreseeable future.” The Service proposes to interpret the term “foreseeable future” to make it clear that both future threats and the species’ responses to those threats must be reasonably determined to be probable.  The proposal would also clarify that decisions to delist a species should be made using the same standard for listing species.

Finally, the proposed rule would simplify and clarify the definition of “destruction or adverse modification,” which is relevant to Section 7 consultations between federal agencies and the Service. The proposal would remove language the Service considers redundant and confusing and clarify whether and how the Service considers proposed measures to avoid, minimize, or offset adverse effects to listed species or their critical habitat. 

In addition to the aforementioned changes, the Service is proposing to rescind its blanket rule under Section 4(d) of the Act which automatically conveys protections for endangered species to threatened species unless otherwise specified. The proposed change would impact only future listings and would not apply to those species already listed as threatened. The Service would develop species-specific conservation rules for each threatened species determined in the future.