In the August 27, 2019 edition of the Federal Register, the Fish and Wildlife Service (FWS), National Oceanic and Atmospheric Administration (NOAA), and National Marine Fisheries Service (NMFS) adopted three rules finalizing major revisions to the Endangered Species Act (ESA) regulations found in 50 CFR 17, 402, and 424. The changes revise the regulations that implement sections 7 and 10 of the ESA and the regulations that automatically provide protections for threatened species. These changes become effective on September 26, 2019.
The major changes in the rules are as follows:
- 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 establishment of a new definition of “foreseeable future” as used when determining whether a species is threatened. According to the new rule, 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.
- Revision of § 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.
- Removal of 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 will still be permitted, but not required, to create species-specific rules for threatened species listed after the effective date.
- Changes to 50 CFR 402 to address coordination between multiple federal agencies during ESA consultations. The new rules become effective on September 26, 2019.
The changes were originally proposed on July 25, 2018 in 83 FR 35178, 35174, and 35193.