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USFWS Proposes Changes to Endangered Species Rule

The U.S. Fish Wildlife Service (USFWS) and the National Marine Fisheries Service (NOAA Fisheries) published proposed revisions that would significantly affect applicability and implementation of the Endangered Species Act (ESA).  The most noteworthy changes are those that are focused on shrinking the scope of the ESA and responding to negative court precedent.  If finalized as proposed, these regulatory revisions would:

  • Rescind the blanket “take” prohibition from species that are simply “threatened”.
  • De-emphasize the role of unoccupied habitat in critical habitat designations by reversing 2016 regulations.
  • Define when a species is likely to become endangered within the “foreseeable future” and to warrant a “threatened” listing. To make clear that the meaning of this term only extends so far into the future as the threat.
  • Identify economic impacts but not considered in listing decisions.
  • Narrow the definition of adverse modification. The rule would add “as a whole” to the end of the definition, such that the term would mean “a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole…”.
  • Make clear that the environmental baseline is not part of the action to be evaluated as part of Section 7 consultations and better explain how to perform consultations for continuing actions.

USFWS is considering creating exceptions whether federal agencies must consult with the USFWS.  For example, no consultation would be required if the federal “action agency” concludes that there is no anticipated “take” and the proposed action will not affect the listed species or critical habitat, result in beneficial or insignificant effects to listed species, or have effects caused by global processes that cannot be reliably predicted or measured (i.e. global climate change).  Comments are due by September 24.  (Source, Industry Council of the Environment) (Nihoa-Millerbird photo by Mark MacDonald)