Major changes proposed to endangered species regulations

[Fern Davies]

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With the GOP in control of both the House and the Senate as well as the White House, it was inevitable that the Endangered Species Act (ESA) would come under attack. In recent years, sporadic attempts have been made by the GOP in Congress to weaken the ESA, including attacks on the scientific bases for decision-making. None of these bills succeeded. Now, since the November 2016 election, two dozen or more bills to gut or even revoke the ESA have been introduced. On 2 July 2018, John Barrasso, chair of the Senate committee on Environment and Public Works, released a draft discussion of a comprehensive bill that is likely to be the legislation that the GOP will try to enact.

Meanwhile, the Department of the Interior has proposed a series of regulatory changes that would drastically reduce the ability of the U.S. Fish and Wildlife Service to protect species under the current law. In other words, even if the legislative proposals fail, the regulatory changes would render the ESA ineffective in many regards.**The proposed rules are scheduled to be formally released for public comment on 25 July 2018.**

Comments for each notice must be received within 60 days, by September 24, 2018. All comments will be posted on http://www.regulations.gov. This generally means any personal information provided through the process will be posted.

Update 7/25: the formal notices have now been posted. The links to regulations.gov are as follows:

 

Listing habitat and designated critical habitat

Changes to prohibited acts

Interagency cooperation

 

The specific changes proposed are as follows:

1. Listing and critical habitat designation

(Note - everything in this section is prospective only).

There are a number of specific sections that would change but this one is of particular concern:

The USFWS is seeking public comment for additional potential changes to 50 CFR 424 (the joint USFWS and NOAA provisions for listing species and for designating critical habitat. "We seek public comments recommending, opposing, or providing feedback on specific changes to any provisions in part 424 of the regulations, including but not limited to revising or adopting as regulations existing practices or policies, or interpreting terms or phrases from the Act.In particular, we seek public comment on whether we should consider modifying the definitions of “geographical area occupied by the species” or “physical or biological features” in section 424.02. Based on comments received and on our experience in administering the Act, the final rule may include revisions to any provisions in part 424 that are a logical outgrowth of this proposed rule."

a) The current regulation defines geographical area as "Geographical area occupied by the species. An area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals)."

b)  The USFWS proposes to remove the phrase, “without reference to possible economic or other impacts of such determination [determination = listing, delisting, or reclassifying]. "In removing the phrase, the Services will continue to make determinations based solely on biological considerations. However, there may be circumstances where referencing economic, or other impacts may be informative to the public....While Congress precluded consideration of economic and other impacts from being the basis of a listing determination, it did not prohibit the presentation of such information to the public."

2. Changes to prohibited acts (new listings only)

The ESA allows the USFWS and the National Marine Fisheries Service (NMFS) to apply to threatened species the same protections from prohibited acts as those afforded to endangered species. The USFWS has done that but NMFS has not. NMFS applies the prohibited acts provision on a species-by-species basis. The proposed rule - which is prospective only - would do likewise. This would also apply to experimental populations.

3. Interagency cooperation

This proposed change is prospective only.  It pertains to the way agencies coordinate in the evaluation of activities that affect listed  species. Specific changes:

a) Adding the phrase “as a whole” to the definition of habitat modification or destruction. The USFWS explains that it intends to clearly indicate that the final destruction or adverse modification determination is made at the scale of the entire critical habitat designation. Smaller scales can be very important analysis tools in determining how the impacts may translate to the entire designated critical habitat, but the final determination is not made at the action area, critical habitat unit, or other less extensive scale.

b) Deleting this sentence entirely. “Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life history needs of the species for recovery.”

c) Definition of "effects of the action."  The USFWS collapsed the various concepts of direct and indirect effects, and the effects of interrelated and interdependent actions into the new definition. It also limits the analysis to effects of the proposed action. Activities that might result from that proposed action (i.e., BLM building a dam is an action; thousands of people boating on the lake that forms is an activity) would be considered only if they would not occur but for the action and are reasonably certain to occur.

d) Environmental baseline - The USFWS is considering this definition: "Environmental baseline is the state of the world absent the action under review and includes the past, present and ongoing impacts of all past and ongoing Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions in the action area which are contemporaneous with the consultation in process. Ongoing means impacts or actions that would continue in the absence of the action under review.”

e) The USFWS plans to formally recognize the concept of programmatic consultation. "They can be used to evaluate the effects of multiple actions anticipated within a particular geographic area; or to evaluate Federal agency programs that guide implementation of the agency’s future actions by establishing standards, guidelines, or governing criteria to which future actions will adhere. By consulting on the program, plan, policy, regulation, series, or suites of activities as a whole, the Services can reduce the number of single, project-by-project consultations, streamline theconsultation process, and increase predictability and consistency for action agencies."

f) Eliminating the consultation requirement  - in essence the USFWS proposes to allow other agencies to determine that the proposed action will: (1) not affect listed species or critical habitat; or (2) have effects that are manifested through global processes and (i) cannot be reliably predicted or measured at the scale of a listed species ’ current range, or (ii) would result at most in an extremely small and insignificant impact on a listed species or critical habitat, or (iii) are such that the potential risk of harm to a listed species or critical habitat is remote, or (3) result in effects to listed species or critical habitat that are either wholly beneficial or are not capable of being measured or detected in a manner that permits meaningful evaluation

g) Establish a deadline for informal consultations - the USFWS and NMFS seem to be struggling to complete these consultations as quickly as some might like.

h) Clarify in the regulations what is needed to initiate consultation.

i) Clarify the analytical steps the Services undertake in formulating a biological opinion. These changes are intended to better reflect the Services’ approach to analyzing jeopardy and adverse modification as well as address revisions to the definition of “effects of the action.” In summary, these analytical steps are: (1) review all relevant information, (2) evaluate current status of the species and critical habitat and environmental baseline, (3) evaluate effects of the proposed action and cumulative effects, (4) add effects of the action and cumulative effects to the environmental baseline, and, in light of the status of the species and critical habitat , determine if the proposed action is likely to jeopardize listed species or result in the destruction or adverse modification of critical habitat. This would include any elements of the proposed action that would avoid, minimize, or offset effects of the proposed action, even if there are no “specific and binding plans,” “a clear, definite commitment ofresources”, or meet other such criteria.

j) Biological opinion - would allow the USFWS to adopt information from the action agencies into the USFWS biological opinion. The USFWS proposes a collaborative process to facilitate the Federal agency’s development of an initiation package that could be used as all or part of the Service’s biological opinion. First, the Federal agency and the Service must mutually agree that the adoption process is appropriate for the proposed action. Subsequently, the Services and the Federal agency may develop coordination procedures that would facilitate adoption. This agreement must be explained in the Federal agency’s initiation package and acknowledged in the Services’ biological opinion. The purpose of the collaboration is to bring the information and expertise of both the Federal agency and the Service (and any applicant) into the resulting initiation package to facilitate a more efficient and effective consultation process.

k) Expedited consultations - the USFWS proposes to add a new provision titled “Expedited consultations”at § 402.14(l) to offer opportunities to streamline consultation, particularly for actions that have minimal adverse effects or predictable effects based on previous consultation experience. This consultation process is proposed to provide an efficient means to complete formal consultation on projects ranging from those that have a minimal impact, to those projects with a potentially broad range of effects that are known and predictable, but that are unlikely to cause jeopardy or destruction oradverse modification.

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