Trump Administration Issues Revised Endangered Species Act Regulations

The US Department of Interior (DOI) and the US Department of Commerce (DOC) jointly issued final revisions to the regulations implementing the Endangered Species Act (ESA).  DOI’s US Fish and Wildlife Service and DOC’s National Marine Fisheries Service both administer the ESA.

An August 12, 2019 DOI press release announced the issuance of the final revisions.  The press release says the revisions will ease regulatory burden without sacrificing ESA’s protection and recovery goals.

These regulations affect implementation of Sections 4 and 7 of the ESA.   Section 4 deals with adding or removing species from the threatened or endangered list and with designating critical habitat.  Section 7 addresses how federal agencies are to consult on ESA issues.

More Flexibility on Listing and Protections
The revised regulations require DOI to use only the “best available scientific and commercial information” to determine to list or delist a species.  DOI is to use the same criteria to delist as it uses to list. 

The regulations will probably allow DOI more flexibility to refuse to list or to delist species.  In defending future decisions not to list or to delist in court challenges, DOI will argue it correctly gave no credence to contradictory information, because it was not “best available.”

The revisions also revoke DOI’s policy, which DOC had never adopted, of giving threatened species the same protection as endangered species.

Fewer Acres of Critical Habitat
A key issue in implementing the ESA is the extent of “critical” habitat.  Under the revisions, DOI will have discretion, where special circumstances exist, not to designate as “critical” areas that generally meet the criteria for the designation.  DOI predicts these circumstances will be rare.  Also, the revisions make it less likely DOI will designate as “critical” habitat areas where the species under consideration is not actually found. 

Publication and Expected Challenges
The regulations will become final 30 days after publication in the Federal Register.  A number of states, Indian tribes, and environmental organizations have indicated they expect to challenge the regulations in court, once they become final.

To see the press release, which includes a link to the final regulations that will be submitted to the Federal Register, https://www.doi.gov/pressreleases/endangered-species-act

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