FWS and NMFS Propose Major Revisions to Endangered Species Act

In the July 25, 2018 Federal Register, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) issued three proposed rules to revise Endangered Species Act (ESA) regulations:

  • Revise regulations that implement section 7 of the ESA;
  • Revise regulations that implement section 4 of the ESA; and
  • Revise regulations that automatically provide protections for threatened species.

The Services propose amending 50 CFR 402 to address coordination between multiple federal agencies during ESA consultations.

FWS and NMFS propose permitting the calculation and publication of costs when determining whether to list, delist, or classify a species. The agencies state that determinations will still be made solely according to biological criteria, but the public may be interested in the costs associated with a listing. The agencies also propose defining “foreseeable future” as used when determining whether a species is threatened. The foreseeable future “extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction . . . are probable.” This will be made on a case-by-case basis. FWS and NMFS propose revising § 424.12 to establish a list of examples where the Services could decide not to designate an area as a critical habitat as well as to revise the method of designating unoccupied critical habitat.

The proposed rule will remove the protections of section 9 of the ESA for species listed as threatened after the effective date of the final rule. Currently, both endangered and threatened species are both automatically protected against actions listed in section 9 of the ESA, including takes. Threatened species currently listed before the effective date of the final rule will still be protected. FWS wil still be permitted, but not required, to create species-specific rules for threatened species listed after the effective date.

Public comments will be accepted through September 24, 2018.

Source:

FWS and NMFS, Proposed Rule, Endangered and Threatened Wildlife and Plants; Revision of Regulations for Interagency Cooperation, 83 FR 35178, July 25, 2018

FWS and NMFS, Proposed Rule, Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat, 83 FR 35193, July 25, 2018 

FWS, Proposed Rule, Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants, 83 FR 35174, July 25, 2018