Administration releases new ESA rules

[Laura Bies]

The U.S. Fish and Wildlife has finalized three rules regarding implementation of the Endangered Species Act. The rules, which address changes to the ESA put in place during the previous administration, cover (1) listing/delisting and designation of critical habitat, (2) the “blanket” 4(d) rule, and (3) interagency consultation.

Changes to the listing, delisting, and critical habitat process include rolling back revisions introduced in 2019 that made it more difficult for the USFWS to designate areas outside a species’ current and historic range as “critical habitat.” These new changes give the agency the ability to designate as critical habitat those areas outside a species’ current range that could serve as future habitat, in light of landscape-level changes from climate change. The USFWS also clarified that, when determining whether a species is likely to become endangered in the “foreseeable future,” the “foreseeable future extends as far into the future as the Services can make reasonably reliable predictions” regarding threats to species. The previous rule required that the agency find that those impacts were “likely.”

The second change involves the “blanket” 4(d) rule. For some 40 years leading up to the Trump administration, this rule automatically extended the same protection to threatened species that endangered species received under the ESA, while allowing the USFWS to draft special species-specific rules as needed to permit activities that could harm the threatened species. The previous administration revoked this rule, but this week’s final rule puts it back in place.

The changes to interagency consultation would allow the agency to impose mitigation as a condition in “no-jeopardy” biological opinions to offset unavoidable take of listed species. Mitigation will be used only after avoidance and minimization measures are applied, in cases where there is remaining, unavoidable take. The rule also removed a provision added in 2019 that described when an effect or consequence of an action would be “reasonably certain to occur” based on “clear and substantial” information. The agency stated that this new provision created confusion when considered alongside the  long-standing “best available science” requirement.

Read the USFWS Press Release here.

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