GM 18-033

Changes Proposed for Endangered Species Act Regulations

On July 25, 2018, three proposed rules were published in the FEDERAL REGISTER to make changes in the regulations implementing the Endangered Species Act (ESA). The ESA is administered by two different agencies: the Fish and Wildlife Service (FWS) in the Department of the Interior, and the National Marine Fisheries Service (NMFS) in the Department of Commerce. (NMFS has jurisdiction over marine and anadromous species, FWS over everything else.) Two of the proposed rules were jointly published by both Services; the other proposed rule was published by FWS. One of the jointly published rules would revise the regulations for listing species as endangered or threatened and for designating critical habitat (83 Fed. Reg. 35193), and the other would change the regulations for interagency consultation pursuant to ESA section 7 (83 Fed. Reg. 35178). The proposed rule published by FWS alone would change the FWS regulations regarding prohibited activities affecting threatened wildlife and plants (83 Fed. Reg. 35174). The deadline for filing comments on each proposed rule is September 24, 2018. The notices can be found here: (interagency cooperation) (designating critical habitat) (threatened wildlife and plants)

Issues of Concern for Tribes. Two of the proposals expressly include tribes among the entities from which comments are being sought and all three include the obligatory reference to Executive Order 13175 on “Consultation and Coordination with Indian Tribal Governments.” Other than that, however, none of the proposed rules include any specific reference tribes, or to issues of particular concern for tribes, in either the preamble or the proposed regulatory text. Many tribes have experiences relating to the ESA, and some listed species have major cultural and/or economic importance. In 1997 the two Departments issued Joint Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” The proposed rule on listing species and designating critical habitat mentions the Secretarial Order and says that the Services “are considering possible effects of this proposed rule on federally recognized Indian Tribes. We will continue to collaborate/coordinate with tribes on issues related to federally listed species and their habitats.” Both of the joint proposed rules express willingness to consider comments raising issues that are not expressly addressed in the proposal, as “the Services are comprehensively reconsidering the processes and interpretations of statutory language” (proposed rule on listing and critical habitat, 83 Fed. Reg. 35194; proposed rule on interagency consultation, 83 Fed. Reg. 35179).

One set of issues that occurs to us is how to better define the role of tribal governments in consultation pursuant to section 7 of the ESA for situations in which tribal agencies, through self-determination contracts and/or self-governance compacts, administer programs that would otherwise be the responsibility of the Bureau of Indian Affairs (BIA). The existing regulations on section 7 consultation (50 C.F.R. Part 402) do not even mention tribes. The proposal to revise Part 402 is an opportunity to advocate for changes that would provide appropriate recognition of the sovereign status of tribal governments and their roles in implementing BIA programs.

Overview of the ESA. Congress enacted the ESA in 1973 to establish a program to conserve endangered and threatened species as well as to conserve the ecosystems on which such species depend. 16 U.S.C. §§ 1531 – 1544. An “endangered species” is a “species which is in danger of extinction throughout all or a significant portion of its range,” and a threatened species” is one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20) (emphasis added). The program authorized by the ESA includes listing species as endangered or threatened, prohibiting the “take” of listed species, designating critical habitat, and requiring federal agencies to consult with the Services in order to avoid jeopardizing the continued existence of any listed species or causing destruction or adverse modification of critical habitat. “Take” is statutorily defined as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). In some circumstances there are exceptions to the take prohibition. For federal actions, a biological opinion issued by one of the Services in the consultation process typically includes an incidental take statement. For non-federal entities, incidental take may be permitted in conjunction with a habitat conservation plan.

The Threatened Species Proposed Rule. In the FWS proposal to change its regulations regarding threatened species (this proposed rule that is not a joint proposal), FWS would adopt the approach that NMFS uses. Section 9 of the ESA sets out a list of activities that are prohibited with respect to endangered species. Section 4(d) authorizes the Services to establish prohibitions for threatened species through regulations. The FWS approach has been to use the authority of section 4(d) to render most of the section 9 prohibitions also applicable to threatened wildlife species. 50 C.F.R. §§ 17.31, 17.71. The NMFS has taken a different approach; rather than extending the section 9 prohibitions to all threatened wildlife species, NMFS has used the section 4(d) authority, in some cases, to adopt species-specific protective regulations. FWS says in the preamble of the proposed rule that an emphasis on species-specific regulations will allow FWS to make “better use of our limited personnel and fiscal resources.”

The Listing, Delisting, and Critical Habitat Proposed Rule. ESA section 4 directs each of the Secretaries (Interior and Commerce) to determine whether any species is endangered or threatened. The statute provides that determinations of whether to list any species as endangered or threatened “shall” be made “solely on the basis of the best scientific and commercial data available.” The regulations add the phrase “without reference to possible economic or other impacts of such determination.” 50 C.F.R. § 424.11(b). One of the proposed changes would delete this added phrase. As a rationale for this change, the Services say, “While Congress precluded consideration of economic and other impacts from being the basis of a listing determination, it did not prohibit the presentation of such information to the public.”

With respect to delisting, the existing regulations, which allow for delisting on the basis of recovery, include the statement: “The principal goal of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service is to return listed species to a point at which protection under the Act is no longer required.” The proposed rule would provide that delisting determinations will be made by applying the same criteria that are used in listing determinations. Coincidentally, this set of changes would result in the “principal goal” statement being deleted.

With respect to the criteria for designating critical habitat (50 C.F.R. § 424.12), the proposed rule would add circumstances in which the Services could determine that designation of critical habitat would not be prudent. The proposed rule would also make changes in the provision authorizing the Services to include specific areas outside the geographical area occupied by the species that are essential for its conservation. As proposed, such a determination would include consideration of “societal conflicts” and of whether the expenditure of resources would be “commensurate with the benefit to the species.”

The Proposed Rule on Interagency Consultation. Section 7 of the ESA requires each federal agency to consult with the relevant Service to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” This requirement is implemented through joint regulations which provide that consultation can be either “informal” or “formal” (50 C.F.R. §§ 402.13, 402.14). The process typically begins with the federal agency (or the agency’s designated non-federal representative) preparing a “biological assessment” to determine whether any listed species or critical habitat are likely to be adversely affected by the action. Informal consultation is an optional process that may result in a determination by the federal agency, with concurrence by the Service, that “the action is not likely to adversely affect listed species or critical habitat,” and that, therefore, formal consultation is not required. Formal consultation involves the preparation, by the Service, of a “biological opinion” on whether or not the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a “jeopardy” opinion or a “no jeopardy” opinion. A “no jeopardy” opinion may include statements authorizing incidental take. The proposed rule would make a number of changes in the Part 402 regulations. This memorandum notes only a few of the changes.

Destruction or adverse modification. One proposed change is in the definition of the term “destruction or adverse modification.” In 2016, a sentence was added to this definition stating that among the kinds of alterations that fit the definition are “those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.” The Services propose to delete this sentence, although they assert that this change neither raises nor lowers the bar for whether a proposed action would result in destruction or adverse modification of critical habitat, and that the practice of the Services in carrying out section 7 consultation will not change as a result of this change in a defined term. We note, however, that the preamble devotes more than three Federal Register pages to explaining the rationale for changing the regulatory text of this definition.

Applicability. The Services suggest revising the regulations to specify circumstances in which federal agencies would not be required to consult with the Services, and to authorize federal agencies to determine for themselves when such circumstances apply. This suggestion is discussed in the preamble; no regulatory text is proposed.

Programmatic consultation. The proposed rule would add language authorizing “programmatic consultation,” an approach that the Services say can be used in either informal or formal consultation. Under this approach, consultation can address categories of actions, or proposed programs or policies, at a generalized level before site-specific is known. The Services promote this concept as a way to streamline the consultation process.

Deadline for informal consultation. Another way to streamline the process, the Services suggest, would be to establish a deadline for informal consultation. There is a deadline in the existing regulations for formal consultation, a deadline based on the statutory text: the process is supposed to be completed within 90 days from initiation of the process, with an extension of 60 days allowed by mutual agreement. There is no prescribed timeframe for informal consultation. The Services say that they are considering setting a 60-day deadline for informal consultation, though the proposed rule does not include any regulatory text on this point. The Services ask for comments on whether such a deadline would be helpful, whether 60 days is the appropriate time frame, when the clock should begin to run, and when to allow extension of the deadline.

Formal consultation. The proposed rule would make several changes in formal consultation intended to streamline the process. One change would “clarify” the information to be included in the package submitted by a federal agency to initiate formal consultation. One proposed new paragraph says that a federal agency “may submit existing document prepared for the proposed action such as [National Environmental Policy Act] analyses or other reports in substitution for the initiation package” (emphasis added). The preamble adds that documents prepared for compliance with state laws may be used. Arguably, documents prepared for compliance with tribal laws should also be acceptable. Tribes could ask the Services to clarify this point in the final rule. Another change would authorize the relevant Service, in preparing its biological opinion, to adopt all or part of the federal agency’s initiation package.

Mitigation measures. Another proposed clarification addresses the level of certainty that mitigation measures will in fact be implemented for the Services to consider such measures in issuing a “no jeopardy” opinion. The proposed rule says, in effect, that the Services will simply assume that an action agency will implement mitigation measures described in the package it submits to initiate formal consultation. The preamble explicitly disagrees with a ruling by the Ninth Circuit Court of Appeals holding that the Services can only consider mitigation measures that are supported by a “clear, definite commitment of resources.” Tribes may want to seek assurance that the same assumption will apply to tribal commitments to mitigation measures.

Please let us know if we may provide additional information regarding the Endangered Species Act proposed rules, or if you would like our assistance in preparing comments.