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