By Adam Pugh
With the ongoing efforts to modernize the Endangered Species Act (ESA) fully under way, August in Washington, D.C., was quite busy this year despite the Congressional recess. On August 27, 2019, the Departments of the Interior and Commerce (known as the “Services”) moved forward as they published final versions of the proposed Section 4, 4(d) and 7 rules of the ESA. In the meantime, the Congressional Western Caucus prepared to introduce its legislative package to modernize the ESA and bring the act into the 21st century.
The Section 4, 4(d) and 7 rules will only apply to newly listed species and do not amend existing recovery plans for species already protected under the ESA.
All three rules face a long future in the judicial system. The Services published the final regulations on August 27. Almost a week before the final regulations went public, a coalition of groups filed a complaint challenging the rules in the U.S. District Court for the Northern District of California. On September 25, 17 states filed a separate complaint against the revisions to Section 4, 4(d) and 7 regulations. On September 26, Section 4 and 4(d) rules were implemented, and the challenging does not automatically prevent these rules from going into effect.
The Services announced in the Federal Register on September 25, 2019, that they are delaying the implementation of the Section 7 rule to October 28, 2019. The Services will utilize this additional time to adequately educate and train staff and coordinate with the affected federal agencies on the proposed regulatory revisions.
The final rule revises the listing process and critical habitat designations for petitioned species by adopting a framework to determine the “foreseeable future” for the species, analysis of the occupied critical habitat, and requirements for designating unoccupied critical habitat. On a case-by-case basis, the Services will determine “foreseeable future” as the time period that they can reasonably determine future threats and the species’ responses to those threats that are likely to occur.
When a recovery plan incorporates an unoccupied area, it will need to contain one or more physical or biological features essential to the conservation of the species. The Services will also consider “landowner willingness” to engage in the preservation of the petitioned species on private land. NACD will continue to advocate for adequate financial and technical assistance to help landowners and land managers comply with the legal requirements of an ESA determination.
This rule requires the Services to go through the same scientific process to add or remove protections for species listed under the ESA. The Services emphasized that delisting cannot solely be contingent on achieving the goals within a recovery plan. To delist a species, the Services must certify that a species is extinct, no longer meets the definition of endangered or threatened, or no longer meets the definition of the protected species.
Additionally, the rule allows for the Services to publish the economic impact of a listing determination. The Services are explicitly clear in that all listing decisions are made solely on the best available scientific and commercial information available and will not consider the economic impact. The ESA does not statutorily preclude the Services from compiling economic information regarding a listing determination or making that information public.
NACD supports the new delisting process and the consideration of economic impacts to private landowners and the community before the implementation of a recovery plan for a threatened or endangered species.
This final rule removes the blanket “4(d) rule” which provides the same protections for threatened species and endangered species. Under this rule, the Services will provide a rationale for how they intend to manage any newly listed species. This approach aligns the U.S. Fish and Wildlife Service with the long-standing practice of the National Marine Fisheries Service.
It is essential to recognize the statutory difference between threatened and endangered status: Under 16 U.S.C. 1532, endangered species means “any species which is in danger of extinction throughout all or a significant portion of its range.” Threatened species means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” NACD supports the Services moving away from the one-size-fits-all approach to improve the conservation of our threatened and endangered species, as these populations can necessitate different management practices or approaches to unique recovery plans.
The Section 7 rule formalizes the consultation process between the Services and other federal agencies on whether a proposed, discretionary federal action will jeopardize the existence of a threatened or endangered species. The consultation process will review the proposed impacts to environmental baseline conditions, effects of the action, and cumulative effects on the protected species. Further, by setting deadlines for the Services’ concurrence on informal determinations, these efforts should expedite the environmental review analysis.
On September 24, the Congressional Western Caucus held its roundtable on modernizing the ESA. In support of the caucus’ efforts, NACD President Tim Palmer sent a letter to Chairman Paul Gosar (R-Ariz.). The letter emphasizes that voluntary and locally-led conservation must play a critical role in modernizing the ESA. “NACD appreciates the members of the Western Caucus seeking to develop programs that incentivize landowners to encourage species recovery on private lands,” Palmer said. Throughout the roundtable, the Congressional Western Caucus discussed ways to better protect private property rights and encourage voluntary conservation of protected species.
In the House, Natural Resources Subcommittee on Water, Oceans, and Wildlife Chairman Jared Huffman (D-Calif.) led a hearing in September to advance H.R. 4348, which would terminate the aforementioned rules on Section 4, 4(d) and 7. Without the necessary statutory changes to the underlying act, these rules will likely become extremely partisan and will ultimately be subject to change with every presidential administration. At that point, there may be more harm done to the endangered and threatened species as well as private landowners.
NACD will continue to monitor the implementation and litigation of these rules to provide you with the most relevant, up-to-date information.