The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the "Services") this week published proposed revisions to key portions of the Endangered Species Act's (the "Act") implementing regulations. The proposals represent significant potential changes to the regulations governing federal agency consultations (Section 7), the criteria by which species are listed or delisted and critical habitat is designated (Section 4), and the protections covering threatened species (Section 4(d)). The preambles to the proposed rules indicate that they are intended to increase clarity, improve consistency, and address conflicting or problematic judicial interpretations.
The proposed rules come during a month in which draft legislation to overhaul the Act has been introduced in both houses of Congress. The legislative proposals include a House bill that would make it far easier to delist species and a Senate bill that would give states a much bigger role in species protection. While these congressional efforts face the usual obstacles to passage, the Services' rule-making represents an easier path to significantly reform the implementation of the Act.
The Services' proposed regulatory revisions fall into four categories, each a crucial component to implementation of the Act: (1) listing determinations, (2) criteria for designating critical habitat, (3) protections for threatened versus endangered species (i.e., the "blanket 4(d)" rule) and (4) agency consultation. Below, we summarize some of the most critical proposed revisions and offer our take on what it means for developers and other stakeholders.
(1) Listing Determinations. The proposals include the following important revisions to the factors the Services may consider when determining whether a species is endangered or threatened:
Economic Impacts. The current regulations specify that the determination of whether a species is endangered or threatened must be made "solely on the basis of the best available scientific and commercial information . . . without reference to possible economic or other impacts of such determination." The Services propose to remove the prohibition on referencing economic impacts in order to have the flexibility to reference economic or other impacts when doing so would better inform the public. Removing the prohibition on consideration of economic impacts would introduce into the Services' listing determinations an option of using the type of cost-benefit analysis used by the Environmental Protection Agency (EPA) when, for example, it proposes or revises a National Ambient Air Quality Standard under the Clean Air Act. If controversy surrounding the regulatory impact analysis...