Agencies propose reforms to Endangered Species Act regulations

In July, the United States Fish and Wildlife Service and the National Marine Fisheries Service proposed revisions to their regulations that implement the Endangered Species Act. The Federal Register almost never makes for light reading, and that has never been truer than with the services latest regulatory proposals. These reforms, however, have the potential to make ESA compliance incrementally more efficient and effective for both federal agencies and private actors.

Under the ESA, the services must determine whether to list any species as threatened or endangered and designate such species' critical habitats. 16 U.S.C. Section 1533. The ESA protects listed species in two major ways. First, Section 7 of the ESA requires federal agencies to, among other things, ensure that any action they authorize, fund or carry out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of their critical habitat. Id. at Section 1536(a)(2). Second, Section 9 of the ESA prohibits any person from "taking" an endangered species by harassing, harming, pursuing, capturing, or collecting it. See id. at Section 1538(a)(1)(B). Even unintentional violations of Section 9 may result in substantial civil or criminal penalties. See id. at Section 1540.

Federal agencies' compliance with Section 7 of the ESA can also have enormous consequences for non-federal parties seeking a permit or government funding. Federal agencies comply with Section 7 by engaging in a process known as "consultation" with one or both of the services, depending on which species may be affected by a proposed federal action. The consultation process requires federal agencies to first evaluate whether their proposed actions may adversely affect listed species and their critical habitat. Id. at Section 402.14.

If the agency determines that the proposed federal action may have such effects, the action agency initiates "formal consultation" and the service prepares a biological opinion analyzing the effects of the proposed action. Id. A biological opinion that determines jeopardy or the destruction or adverse modification is likely to occur is called a jeopardy opinion. Jeopardy opinions must identify reasonable and prudent alternatives to the proposed action that the agency can take to ensure that its proposed action will not violate Section 7(a)(2). The Supreme Court has recognized that a jeopardy opinion's reasonable and prudent alternatives exert a "powerful coercive effect on the action agency." Bennett v. Spear, 520 U.S. 154, 169 (1997). Those coercive effects are frequently passed onto non-federal parties with an interest in a federal action, such as permit applicants.

The services proposed regulatory reforms propose to alter the landscape of ESA compliance and enforcement in three fundamental areas: (1) listing and delisting endangered species, and designating their critical habitat, under section 4; (2) providing new procedures for Section 7 consultations; and (3) harmonizing the services' treatment of threatened species under Section 9.

For example, in the context of listing determinations, the services would only be able to list a species as threatened if the services can reasonably determine that the conditions potentially posing a risk of extinction in the future are probable. 83 Fed. Reg. 35195. This reform thus prevents the possibility that the services could list a species as threatened based on possible future conditions that are unlikely to occur. Similarly, changes to 50 C.F.R. Section 424.11 will clarify that the standards for delisting a threatened or endangered species are the same as the standards for listing them as threatened or endangered, potentially making it easier for the Services to delist species sooner than they otherwise might have. See id. at 35196. Also, when the services list a species as threatened or endangered, they are also required to designate its critical habitat, which is then subject to Section 7's no-jeopardy compliance requirement. See 15 U.S.C. Section 1533, 1536. The proposed revisions will likely make it easier for the services to decline to designate areas as critical habitat, particularly when threats to such habitat are posed by large-scale climate change impacts such as sea level rise. See 83 Fed. Reg. 35197. The proposed revisions would also constrain the services' discretion to designate areas as critical habitat that are not occupied by a listed species at the time of designation. Id. at 35201.

Reforms to the Section 7 compliance process may also result in shorter and less onerous consultations for federal agencies and interested private parties. A new definition of "programmatic consultation" may encourage federal agencies to address multiple actions in a particular geographic area in a single consultation, potentially reducing costs for agencies and their non-federal partners. See id. at 35184-5. And the services' proposal to overrule a judicially created standard for determining whether a federal agency is sufficiently committed to carrying out measures included in a proposed action that are intended to benefit listed species may make it easier to avoid the issuance of a jeopardy opinion. See id. at 35187.

However, the Fish and Wildlife Service's revision of its "blanket take" rule for threatened species may be the most meaningful reform of all. Although Section 9 applies only to endangered species, Section 4(d) permits the services to extend some or all of its prohibitions to threatened species. Currently, the Fish and Wildlife Service applies Section 9's protections to threatened species by default. See 50 C.F.R. Sections 17.31, 17.71. In contrast, the National Marine Fisheries Service takes the opposite approach, evaluating whether Section 9 protections should apply to threatened species on a case-by-case basis. The Fish and Wildlife Service believes that by abandoning the "blanket take" rule and aligning its practices with the National Marine Fisheries Service, both threatened species and the regulated community can benefit through more efficient uses of resources and regulations tailored to the unique needs of listed species. See 83 Fed. Reg. at 35175. The Fish and Wildlife Service's revision of the "blanket take" rule is expected to be particularly significant because it regulates substantially more threatened species than the National Marine Fisheries Service.

Major environmental groups condemned the proposals in public statements following their release, with the Natural Resources Defense Council characterizing them as "a short-sighted attempt to appease developers and polluters" and the Center for Biological Diversity slamming them as "a massive attack on imperiled wildlife."

Representatives of the regulated community, however, are cautiously optimistic. Organizations such as the California Farm Bureau Federation and the U.S. Chamber of Commerce, for example, have submitted generally supportive comments, but have urged the Services to go even further in reforming the ESA's implementing regulations.

The comments of these groups and others like them demonstrate that, despite the hard lines drawn by many influential environmental groups, the services' proposed rules are more like incremental reforms than a wholesale revolution of the ESA. With the comment period on the proposed rules having closed on Sept. 24, lawyers on both sides of the environmental bar await the services' adoption of the final rules.