Amendments to Endangered Species Act Rules Spark Litigation

The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (“the Services”) have issued three final rules amending the federal regulations implementing the Endangered Species Act (ESA). The changes constitute the most sweeping revisions to ESA rules in the statute’s history. The new rules change how species are listed as endangered or threatened, eliminate automatic protections for newly-listed species, change the standards for designating unoccupied critical habitat, and revise procedures for interagency cooperation.

Blanket Rule for Threatened Species

Under the prior version of the rule, a provision known as the “blanket rule” automatically gave threatened species the same protections as endangered species. The new rule, codified at 50 C.F.R. § 17.31, removes these protections for species listed as threatened after the rule’s effective date. Instead, the new rule requires USFWS to put in place for each newly-listed threatened species prohibitions, protections, or restrictions tailored specifically to that species.

Critical Habitat and Listing

When a species is proposed for listing as endangered or threatened, USFWS must consider whether there are areas of habitat believed to be essential to the species’ conservation. Those areas may be proposed for designation as critical habitat. The new rule, codified at 50 C.F.R. Part 424, changes how these areas are designated. Now, the Services will designate unoccupied habitat as critical only after determining that occupied habitat is inadequate for conservation of the species, and only if there is a “reasonable certainty” that it will contribute to the species’ conservation. In addition, the unoccupied habitat must contain at least one of the “physical or biological features essential to the conservation of the species.”

The ESA defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future.” The new rule redefines “foreseeable future” to mean “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” This change will likely give the government more discretion in how it assesses the impact of climate change on listed species.  

Consultations

Finally, section 7 of the ESA requires federal agencies to ensure that their actions (including those they fund or authorize) do not jeopardize the existence of any listed species. An agency must consult with either USFWS or NMFS to assess the impact of its proposed action on the listed species or its critical habitat. The new rule implements a 60-day time limit for informal consultation and adds a provision for expedited consultation on federal actions under certain circumstances.

Environmental advocacy groups staunchly oppose the amendments, which were finalized on August 27 and became effective on September 26, 2019. The Center for Biological Diversity, Sierra Club, Defenders of Wildlife, and the NRDC have already filed suit in the Northern District of California to block the final rules. Seventeen states, the District of Columbia, and the City of New York filed a similar suit in the same federal court. These groups are particularly concerned about how climate change will be considered by the Services moving forward. Ultimately, the outcome of these lawsuits, as well as how the Services choose to implement the new rules, will determine the magnitude of the rules’ impact.