On July 19, 2018, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS, and collectively with FWS, the Services) announced several proposed changes to the regulations implementing the Endangered Species Act (ESA). Some of the proposed rules will undo Obama-era regulatory revisions. But in a few key areas—including species delisting, Section 4(d) special rules, and the consultation provisions—the Services are proposing watershed changes that will significantly alter how key provisions of the ESA are implemented. The Services are soliciting public comments through September 24, 2018.
The changes are within three proposed rulemakings. The Services propose Revisions of Regulations for Interagency Cooperation (i.e., the Section 7 consultation regulations) and Revisions to Regulations for Listing Species and Designating Critical Habitat. FWS is also proposing a Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants. The salient changes are discussed below.
Proposed Revisions of Regulations for Interagency Cooperation
The ESA requires federal agencies to consult with the appropriate Service (generally FWS for terrestrial species and NMFS for marine species) prior to taking or approving actions that could affect listed species or their designated critical habitat. ESA consultation is a long-standing part of the approval process for almost all federal permits and approvals. The Services now propose several important changes to the consultation substance, scope, and process. According to the proposal, these changes are only the beginning of a “comprehensive” evaluation of the consultation regulations, and the public is encouraged to provide comments on the process generally, in addition to the changes specifically proposed.
Proposed Changes to the Scope of Consultation
Exemptions from Consultation. The Services propose to affirmatively exempt from consultation certain activities that, in the Services’ experience, are “far removed from any potential for jeopardy or adverse modification of critical habitat.”1 The Services would exempt three categories of activities, two of which—those that will not affect listed species and those that result in effects to listed species that are either entirely beneficial or not capable of being “measured or detected in a manner that permits meaningful evaluation”2 —are relatively non-controversial. The third, however, is likely to generate opposition from environmental groups and, if adopted and then relied upon to exempt a project approval from ESA consultation, would likely be challenged.
The third proposed exemption would exclude activities that “have effects that are manifested through global processes” (i.e., climate change) if those effects (i) cannot be reliably predicted or measured at the scale of the species’ current range, or (ii) would result in very small or insignificant impact on the species or critical habitat, or (iii) “are such that the risk of harm to a listed species or critical habitat is remote.”3 If adopted and upheld, such an exclusion could decrease the regulatory burden of ESA listings that are driven by climate change because the consultation obligation would be triggered by the impacts of the proposed action, not the overall impacts of climate change. This proposal follows, but builds further upon, initial agency guidance and policy adopted with the initial ESA listing of climate-affected species such as the polar bear and other arctic and sub-arctic species.
Treatment of Land Management Plans. In a separate section, the Services assert discretionary authority to exclude another type of activity from the reinitiation of consultation.4 Where the federal action agency retains discretionary control over a project, it has an ongoing ESA obligation such that, if certain changes occur, it must “reinitiate” consultation with the Services after the project has begun. The Services assert that federal land management plans developed under the Federal Land Policy and Management Act and the National Forest Management Act are not “affirmative discretionary actions” and thus should not be considered ongoing actions that are open to reinitiation.5 The Services explain that federal land use plans developed under these statutes are required to be regularly updated and that any on-the-ground actions approved under these plans are subject to separate ESA consultation; thus, the Services argue that reinitiation of consultation on these plans “does little to further” the goals of the ESA and “often results in impractical and disruptive burdens.”6
The Services’ position appears at some level to be potentially inconsistent with established Ninth Circuit case law in this area holding that such federal public lands plans are ongoing agency actions subject to the ESA’s consultation requirement.7 If the proposed regulation is adopted and upheld, it will reduce the regulatory burden on the federal agencies because they would not have to reinitiate plan-level consultations when a new species is listed or critical habitat designated in the plan area. This streamlining could also be beneficial to project applicants in those areas, although project-specific ESA consultations would still be required. However, as with the climate-change exclusion, this position will likely be challenged, and environmental groups may challenge projects approved under land management plans that they believe should have been subject to reinitiated consultation.
Proposed Changes to the Process of Consultation
The Services propose several changes to the consultation process. These changes, some of the first substantial revisions since the consultation regulations were adopted during the Reagan administration (other than those issued at the end of the George W. Bush administration that were soon thereafter withdrawn by the Obama administration), should reduce the administrative burden on regulated entities and provide the Services with greater flexibility in consultation approaches. Many of these changes, such as establishing a deadline to complete informal consultation, may streamline consultation without significant controversy.
Initiation of Consultation. The Services propose to revise the regulations “to clarify what is necessary to initiate formal consultation.”8 These new regulations would establish what the action agency must provide in the “initiation package,” clarify that the contents of the initiation package may be provided in another document (such as an environmental analysis under NEPA), and expressly allow for a summary of information from the applicant. Similarly, the new regulations would allow the Services to streamline the production of a biological opinion by adopting by reference parts of the initiation package. The Services go so far as to “propose a collaborative process to facilitate” the development of the initiation package...
