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May 3, 2024  |  Written by Brittany K. Johnson, Krisha Yadav-Ranjan

Biden Administration’s Final Endangered Species Act Regulations Set to Take Effect on May 6

On March 28, 2024, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the “Services”) finalized revisions to regulations that implement Section 4 and Section 7 of the Endangered Species Act (ESA). Additionally, FWS reinstated its “blanket rule” under Section 4(d) that applies the ESA’s “take” prohibition to threatened species. The final rules conclude the Biden Administration’s review of the previous revisions to the ESA regulations completed in 2019. The final rules include no changes to the proposed revisions for the Section 7 consultation process published in June 2023; the Services did make changes in response to comments on the proposed rules that implement Section 4. The final rules become effective on May 6, 2024.

Background

On January 20, 2021, President Biden issued Executive Order 13990, directing the Services to evaluate and, where appropriate, revise or rescind environmental and public health related regulations that were issued during the prior administration which conflicted with the objectives set forth in the Order. Following the signing of Executive Order 13990, FWS announced its intent to rescind the Section 4(d) rule, and the Services announced their intent to further revise the regulations implementing Section 4 and Section 7. The 2019 ESA regulations were also the subject of litigation in the U.S. District Court for the Northern District of California, which had been stayed pending the rulemaking.

The 2024 Final Rules

Section 7 Consultation Procedures

Section 7 requires federal agencies to insure that the actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of their critical habitat. Federal agencies fulfill their obligations under Section 7 by consulting with FWS and NMFS. If, as a result of the consultation process, FWS or NMFS determines that an agency action will not result in jeopardy but that “take” of listed species is reasonably certain to occur, FWS or NMFS issues an incidental take statement. An incidental take statement specifies the reasonable and prudent measures (RPMs) necessary or appropriate to minimize the impact of the incidental take, and terms and conditions to implement those RPMs.

The Services have revised the regulations regarding incidental take statements to provide that RPMs “may include measures implemented inside or outside of the action area that avoid, reduce, or offset the impact of incidental take.” This change represents an expansion of the scope of activities that can be required as RPMs and may require federal agencies or applicants to implement compensatory mitigation, or offsets, as part of the Section 7 consultation process.

The Services also finalized “minor” changes to the definitions of “effects of the action” and “environmental baseline” that were published in the proposed rules in June 2023. The definitions of these terms were revised in 2019. The Services declined to return to the pre-2019 version of these sections and stated in multiple responses to comments that the revisions in 2019 to the definitions of “effects of the action” and the standalone definition of “environmental baseline” were intended to clarify longstanding past and current practice.

As part of the final rule, the Services also removed 50 C.F.R. § 402.17. Added in the 2019 revisions, this section cross-referenced the revised definition of “effects of the action.” In the 2024 revisions, the Services explained that removing the section simplified the definition of “effects of the action,” which is wholly located now in 50 C.F.R. § 402.02. Additionally, the Services removed the “clear and substantial information” standard from the definition. The Services explained that this standard conflicted with and confused the “best available scientific and commercial data” standard from the statute. In response to comments, the Services stated that the deletion of the “clear and substantial information” standard is not undermined or in conflict with the recent decision from the D.C. Circuit: Maine Lobstermen’s Association v. National Marine Fisheries Service, 70 F.4th 582 (D.C. Cir. 2023) (MLA). The Services distinguished the MLA case as concerning and rejecting a legal presumption that gave the benefit of the doubt to an endangered species in the face of uncertainty, as opposed to a scientific judgment to resolve uncertainty or ambiguity.

Reinstatement of Section 4(d) “Blanket Rule”

Section 4(d) of the ESA directs the Secretaries of the Interior and Commerce to issue regulations that are “necessary and advisable” for the conservation of threatened species, and leaves it to the Secretaries’ discretion whether to apply the protections and prohibitions under Section 9 of the ESA to threatened species. Decades ago, FWS adopted a “blanket rule” that extended the majority of protections to species listed as “threatened,” unless FWS adopted alternative protections for a particular species.

In 2019, FWS repealed the “blanket rule” for Section 4(d) of the ESA, and in doing so required species-specific regulations outlining the protections for each threatened species listed after 2019. In the 2024 final rule, FWS is reinstating the “blanket rule” for protecting newly listed threatened species and reserving the option to adopt species-specific protections.

The 2024 revisions also include federally recognized Tribes as entities that can provide aid to injured or diseased wildlife or plants, or salvage or dispose of dead individuals of threatened species without permits.

Section 4 Listing and Critical Habitat Regulations

Section 4 of the ESA prescribes how the Services list species as threatened or endangered, delist or reclassify species, and designate areas as critical habitat. In the final rules, the Services reversed the 2019 changes governing the factors for listing, delisting, or reclassifying species as threatened or endangered. Before 2019, the Services were prohibited from considering the economic impacts of their listing determinations, and instead were only allowed to focus on the available scientific and commercial information regarding a species’ status. In 2019, that prohibition was lifted, and the Services were permitted to assess the economic impacts of listing determinations even though, under ESA Section 4(b)(1), such information cannot affect the listing determination. The 2024 revisions reinstate prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination.” It also revises the set of circumstances for when critical habitat designations may not be prudent and revises the criteria for identifying unoccupied critical habitat.

Implications

The final rules become effective May 6, 2024. The Services indicated that next they will issue an updated “ESA Section 7 Consultation Handbook” to incorporate the changes to the regulations. The ESA Consultation Handbook provides guidance to federal agencies on conducting Section 7 consultations and examples that apply the regulatory language to hypothetical agency actions. It has not been revised since 1998. The Services did not provide a schedule, but stated the updated ESA Consultation Handbook would be available for public comment after the publication of the final rules.

Currently, the California Great Basin Region of the U.S. Bureau of Reclamation is engaged in two highly complex Section 7 consultations with the Services: the 2021 Reinitiation of Consultation for the Long-term Operations of the Central Valley Project and State Water Project, and the consultation for the operation of the Klamath Reclamation Project, which was reinitiated in 2019 and has continued during the implementation of interim operations plans ever since. The 2024 final rules operate prospectively, and the new Section 7 consultation procedures will govern these important consultations for water users in California.

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