On March 27, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) issued three sets of final rules revising the Endangered Species Act (ESA) regulations. The effective date of the regulations will not be known until the regulations are published in the Federal Register. In the meantime, the final regulations can be found on the FWS website.
The three final rules address (1) the protections for threatened species; (2) the listing process for species and critical habitat designations; and (3) the ESA Section 7 consultation process.
With respect to protections for threatened species, the Services reinstate the “blanket 4(d) rule,” which provides that threatened species receive the same protections as endangered species.
The changes to the listing regulations interpret the statute’s definition of threatened species. Under the ESA, threatened species are those that are likely to become endangered in the “foreseeable future.” The final rule provides that the “foreseeable future” extends “as far into the future as the Services can make reasonably reliable predictions.” The Services also remove the provisions in the 2019 rule establishing criteria for when unoccupied habitat can be designated as critical habitat.
Many of the changes in the final rules were expected and codified current agency practices or reflected a reversion to prior versions of the regulations. The major exception to that is the Services’ revised interpretation of Reasonably Prudent Measures (RPM) within the Interagency Cooperation Rule.
Section 7 consultation typically results in a biological opinion that includes an incidental take statement authorizing take so long as certain RPMs designed to minimize the amount of take are implemented. The Services change this in two fundamental ways. First, they expand the purpose of the RPMs to include offsetting impacts resulting from the take (rather than minimizing the amount of take). Second, they change the scope of RPMs to include onsite and offsite offsets or mitigation. This is a surprising departure from the Services’ longstanding position that mitigation cannot be required in the Section 7 consultation context. Rather, mitigation in the form of a reasonable and prudent alternative can be required as part of a jeopardy opinion, and mitigation is required as part of the ESA Section 10 permitting process. Because the ESA refers to minimization rather than mitigation in Section 7, the Services have focused RPMs on measures that avoid take or otherwise minimize the amount of take. Now, however, the Services conclude that minimization and mitigation are overlapping concepts, and mitigation can be required.
The final Section 7 revisions retain the existing language in the regulations providing that RPMs “cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.” Although cost is not addressed in the consideration of what is a “minor change,” the Services state that cost will be considered in determining whether the required offset is “reasonable and prudent.”
In addition to the substantive changes to the ESA regulations, the Services offer their perspective on the recent D.C. Circuit Court decision criticizing NMFS for giving the benefit of the doubt to the species in the absence of reliable data. See Maine Lobstermen’s Association v. NMFS, 70 F.4th 582 (D.C. Cir. 2023). In the preamble to the final Interagency Cooperation Rule, the Services assert that the Lobstermen’s Association decision will have limited impact on their implementation of Section 7 consultation. The Services note that the decision “does not address the Services’ discretion to resolve ambiguities in the best available scientific data generally,” and note that the Services will avoid the issue raised in the Lobstermen’s Association case by resolving uncertainty “through accepted scientific techniques.”
Considerable confusion remains about the final rules and how they will be implemented. The Services recognize this confusion, and indicate that an update to the ESA Consultation Handbook will provide greater clarity, guidance and specific examples. The Services highlight that certain key definitional terms, such as “effects of the action,” “environmental baseline,” and “RPMs”, will be addressed further in the Handbook. A public comment period will be provided on the updated Handbook, which is expected to be published shortly after the final rules appear in the Federal Register.
