Practice Areas
Revisions to Endangered Species Act Regulations
Final revisions to the federal Endangered Species Act’s implementing regulations were published by the U.S. Fish and Wildlife Service (USFWS) in August 2019. 84 Fed. Reg. 45020. The recent changes primarily involve four significant revisions:
Consideration of Economic Impacts
Before the recent rule changes, the Endangered Species Act (ESA) regulations required that the USFWS base its decision on whether to list a species as threatened or endangered on the best currently available scientific and commercial data “without reference to possible economic or other impacts of such determination.” Under the revised regulations, this “economic impacts” clause has been removed. Some have interpreted this deletion to mean that USFWS is now permitted to consider economic impacts when making listing determinations.
Defining “Foreseeable Future” to Potentially Limit What is a Threatened Species
A threatened species is “any species that is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” The phrase “foreseeable future” was previously undefined. In the revised regulations, this phrase has been defined so as to extend “only so far into the future as [USFWS] can reasonably determine that both the future threats and the species’ responses to those threats are likely.”
Loss of Blanket Protections for Threatened Species
Section 9 of the ESA prohibits the “taking” of endangered species. To “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Section 9 also includes several other protections for endangered species, including prohibitions on importing, possessing, or selling an endangered species. These protections used to also be automatically extended to threatened species under the ESA’s blanket rule, but this no longer applies, and newly-listed threatened species will each get species-specific conservation rules.
Designation of Unoccupied Critical Habitat
In the last of these significant changes, the USFWS is reverting to a two-step process for designating unoccupied critical habitat. Now (as was the case until 2016), when designating critical habitat, USFWS will first evaluate areas that are currently occupied by the species. If the occupied critical habitat is found to be inadequate, then unoccupied critical habitat can be considered.
