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USFWS, NOAA Fisheries Propose Revisions To Regulations Implementing Endangered Species Act
Posted on Friday, July 27, 2018 (PST)

The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration's National Marine Fisheries Service have jointly proposed revisions to regulations that implement portions of the Endangered Species Act.

 

The agencies propose changes “to some of the parameters under which other federal agencies must consult with the Service and NOAA Fisheries to ensure their actions do not jeopardize the continued existence of listed species, or destroy or adversely modify critical habitat. The agencies also propose various measures to clarify and improve some of the standards under which listings, delisting, and reclassifications, and critical habitat designations are made.”

 

In addition, the Service, the agencies said in a joint announcement, “independently proposes a change in its approach to applying protections to threatened species that would align its practice with NOAA Fisheries so the two agencies are consistent in their application of this provision of the ESA. The Service proposes to remove its blanket rule under section 4(d) of the ESA that automatically conveys the same protections for threatened species as for endangered species. This change will not affect the protections for species currently listed as threatened, but will ensure that species listed as threatened in the future receive the protections tailored to the species' individual conservation needs.”

 

The ESA defines a threatened species as one that is likely to become in danger of extinction within the “foreseeable future.” For the first time, the agencies are proposing an interpretation of “foreseeable future” to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable.

 

Several proposed changes relate to section 4 of the ESA, which deals with procedures for listing species, recovery and designating critical habitat (areas essential to support the conservation of a species). First, the agencies propose to revise the procedures for designating critical habitat by reinstating the requirement that they will first evaluate areas currently occupied by the species before considering unoccupied areas. Second, the agencies propose to clarify when they may determine unoccupied areas are essential to the conservation of the species.

 

“While the agencies recognize the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. Accordingly, they are proposing a non-exhaustive list of circumstances where they may find that designation for a particular species would not be prudent. The agencies anticipate that such not-prudent determinations will continue to be rare and expect to designate critical habitat in most cases,” said the agencies in a press release.

 

For more details, see the proposed rule published in the federal register Tuesday, July 25: https://www.federalregister.gov/documents/2018/07/25/2018-15812/endangered-and-threatened-wildlife-and-plants-revision-of-regulations-for-interagency-cooperation

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