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US: FWS, NMFS, and NOAA Finalize Major Revisions to Endangered Species Act Regulations
- 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.