Stand up for Endangered Species!

Section 7 Interagency Consultations

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These revisions would affect projects that require federal authorization, receive funding, or occur on federal lands. This joint proposed rule by the Services would:

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• Modify the definition of “effects of the action” and reinstate, with additions, Part 402.17 of the regulations to clarify the meaning and application of “reasonably certain to occur” for activities and consequences that are to be analyzed as effects of the action. These modifications are intended to reduce speculative analyses.

• Modify the definition of “environmental baseline” to emphasize reliance on the best available information at the time of the consultation, the intent to analyze effects of the action in comparison to the environmental baseline, and consideration of non-discretionary ongoing federal actions as part of the environmental baseline (not effects of the action subject to consultation).

• Modify the definition and application of “reasonable and prudent measures” to remove the Services’ ability to prescribe compensation, offsets, or mitigation for impacts of incidental take on listed species.
   

Protections for Threatened Species
 

The USFWS proposes to withdraw its “blanket” rule that automatically assigns all ESA prohibitions for endangered species to threatened species. Instead, the USFWS intends to use species-specific rules to assign prohibitions to threatened species, subject to finding that the prohibitions are necessary and advisable.

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Notably, to address recent case law, the USFWS would consider economic factors when considering which prohibitions are necessary and advisable for the conservation of threatened species.

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The USFWS indicated that it intends to craft a species-specific rule for each threatened species that is currently subject to a blanket rule. Until a species-specific rule goes into effect, threatened species would continue to receive protections under the “blanket rule.”

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The NMFS is not proposing changes to its treatment of threatened species because it does not use blanket rules.

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Species Listings and Critical Habitat Determinations

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The Services jointly propose to revise the regulatory language for determining whether a species should be listed as threatened or endangered and whether critical habitat should be determined. This proposed rule would:

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• Remove language prohibiting the consideration of economic impacts in listing determinations. This change does not alter the factors that must be evaluated in listing decisions, which are dictated by statute, but could open the door to the Services’ conducting and publishing economic impact analyses of listing proposals for public information purposes.

• Modify the definition of “foreseeable future” as it pertains to the designation of threatened species. The changes would emphasize that predictions of the foreseeable future are to be based on the occurrence of future threats and species’ responses to those threats; both threats and responses must be determined likely to occur before they contribute to the foreseeable future.

• Reinstate a list of three circumstances in which it is appropriate to delist a species (i.e., extinction, it does not meet the definition of endangered or threatened, and it does not meet the definition of a species).

• Modify language regarding the circumstances in which the Services may determine that designating critical habitat is not prudent, including when threats stem solely from causes that cannot be addressed by management actions in Section 7 consultations.

• Modify language for designating unoccupied areas as critical habitat to emphasize that it is appropriate only when occupied areas are insufficient for the conservation of a species and when the unoccupied area is actually habitat for the species.

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Exclusions from Critical Habitat

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The USFWS proposes to reinstate regulatory language that articulates a framework for critical habitat exclusion analyses.

 

The USFWS proposes the following:

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• Adding a non-exhaustive list of circumstances that may illustrate various “economic impact, national security, and any other relevant impacts,” such as jobs, community infrastructure, and wildfire/pest risk.

• Acknowledging that federal lands and non-federal conservation lands (such as established by habitat conservation plans) may be excluded from critical habitat if the benefits of exclusion outweigh the benefits of inclusion. Potential benefits of excluding non-federal conservation lands may include maintaining cooperative relationships with non-federal partners.

• Introducing a “credible information” standard for initiating a discretionary exclusion analysis: either when a proponent submits reliable information about meaningful impacts, or when the Secretary elects to evaluate an area for exclusion.​​​​​​​​​​​​​​

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The NMFS is not part of this proposed rule. The NMFS follows separate regulations pertaining to critical habitat designations.

 

Source: SWCA Regulatory Alerts. Endangered Species Act Regulation Changes Proposed

 

https://www.swca.com/news-insights/endangered-species-act-regulation-changes-proposed​​​​​​​​​​​​​