The Nickel Report

On August 12, 2019, the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) (together, the Services) signed final rules instituting the first comprehensive revisions to the Endangered Species Act (ESA) regulations in 33 years. The Services made substantial and broad revisions to their regulations concerning the process and standards for listing species and designating critical habitat, the scope of protections for threatened species and the process for consultation with federal agencies.

Overall, the final rules are generally consistent with the proposed rules that were released in July 2018, with a few key differences. For a detailed summary of those proposed rules, see The Nickel Report’s "Services Propose Highly Anticipated Revisions to ESA Regulations on Critical Habitat Designation, Section 7 Consultation, and Protected and Threatened Species" by Andrew J. Turner and Karma B. Brown.

Below are key components of the three final rules:

• Section 4 – Species Listing/Delisting Decisions: The final rules direct that determinations to add or remove species from the threatened or endangered lists be based solely on the best available scientific and commercial information but also provide that listing decisions can reference economic and other factors. They clarify that the Services will utilize the same five statutory factors in making a decision to delist or reclassify a species as they do to list a species. In addition, in order to list a species as threatened (a species threatened with becoming an endangered species within the foreseeable future), the final rules clarify that the listing must be based on actual (not potential) threats and on the species’ response to those threats. Both must be established by the best available scientific and commercial information to be “more likely than not” to occur.
• Section 4 – Critical Habitat Designation: When designating critical habitat, the final rules reinstate the pre-2016 requirement that the Services first evaluate whether designation of areas that are occupied by a species as critical habitat is sufficient to support recovery before designating areas that are currently unoccupied as critical habitat. In addition, in response to the Supreme Court’s holding in Weyerhaeuser Co. v. FWS, 139 S. Ct. 361 (2018), the final rules require that unoccupied habitat can be designated as critical habitat only where it is essential to the conservation of the species and has at least one or more physical or biological features that have been determined to be essential to the conservation of the species.
• Section 7 – Interagency Consultation: The final rules modify the Services’ regulations implementing the ESA Section 7 interagency consultation requirements to clarify certain definitions, streamline the process and provide consistencies. For example, the final rules provide a new definition of “effects of the action” that adopts a “but for” standard to determine the effects of the agency action under consultation. That test, which the Services explain in the preamble, “adopts analogous principles to those identified by courts for proximate causation,” attributes effects to an agency action if those effects would not occur but for the action and are reasonably certain to occur. The preamble explains that, “if the agency fails to take the proposed action, and the activity would still occur, there is not ‘but for’ causation.” They also provide a new definition of “destruction or adverse modification,” which clarifies that an adverse modification determination is made at the scale of the entire habitat designation. The rules establish a stand-alone definition of the “environmental baseline,” which preserves the existing definition and adds that consequences “from ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modifyare part of the environmental baseline.” The final rules also make clear that Services can evaluate the effects of a proposed mitigation action and presume that such measures are implemented. They are not required to obtain binding plans or other such documentation. The final rules provide clarity on what documents and descriptions are necessary to initiate formal consultation, and they permit NEPA documents or other reports to be submitted as the initiation package. They also establish a deadline for informal consultations to provide greater certainty for federal agencies and applicants of timely decisions.
• Section 4(d) – Protective Regulations for Threatened Species: Previously, the USFWS automatically extended the ESA’s section 9 take prohibition (which applies to endangered species) to threatened species—known as the “blanket § 4(d) rule.” The final rules remove the USFWS blanket § 4(d) rule and, instead, for species listed in the future as threatened, the USFWS will promulgate species-specific regulations to put in place prohibitions, protections or restrictions tailored specifically to the species as warranted. The new rule makes the USFWS approach consistent with that of NMFS.

The rules will become effective thirty days after publication in the Federal Register.

Two state Attorneys General as well as several environmental groups have signaled an intent to challenge the final rules. In addition, the rules may face opposition in Congress. New Mexico Senator Tom Udall has proposed using the Congressional Review Act (CRA) to overturn the rules, which would require a resolution that is not vetoed by the President.

For more information, please contact Karma Brown at kbbrown@huntonAK.com, Lauren Bachtel at lbachtel@huntonAK.com, Andrew Turner at aturner@huntonAK.com or Kerry McGrath at KMcGrath@huntonAK.com.