OVERVIEW OF New Endangered Species Draft Regulations

On July 19, federal agencies released a comprehensive package of proposed regulations for the Endangered Species Act. In the interest of prompting a constructive dialogue, the Innovation Center has reviewed and summarized our initial perspectives on the proposals in the chart below and in this report. We counted 36 individual proposals and rated each one based on its effects on wildlife conservation.

Our initial conclusion is that nearly half of the proposals merely put current practice into regulations–in other words, they are not a change, just bookkeeping. Approximately eight proposals would likely hinder conservation, six would likely improve conservation, and the remaining three would likely have mixed results. This is only our initial analysis, as some of the proposals require further research. We will update the table as we learn more about the proposals.


Click on each row to expand it to see additional text. 

 

Summary of proposal Magnitude Most likely effect on conservation Comments Language from proposal Section
Redefines “destruction or adverse modification.” Clarifies or codifies current practice Negative
Although the “as a whole” requirement conflicts with the Services’ ability to evaluate cumulative adverse effects (the Services do not systematically track cumulative authorized take for most species), it simply codifies FWS’s longstanding practice. The proposed definition also removes the second sentence of the current definition, which provides an example of an appreciable alteration.
Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species
402.02
Clarifies reference to “director.” Clarifies or codifies current practice Negligible
None.
Director refers to the Assistant Administrator for Fisheries for the National Marine Fisheries Service, or his or her authorized representative; or the Director of the U.S. Fish and Wildlife Service, or his or her authorized representative.
402.02
Clarifies use of programmatic consultations Clarifies or codifies current practice Negligible
The definition of programmatic action is consistent with the Services’ 2015 rule that defines framework and mixed programmatic actions.
Programmatic consultation is a consultation addressing an agency’s multiple actions on a program, region, or other basis. Programmatic consultations allow the Services to consult on the effects of programmatic actions such as: (1) Multiple similar, frequently occurring or routine actions expected to be implemented in particular geographic areas; and (2) A proposed program, plan, policy, or regulation providing a framework for future proposed actions.
402.02
Clarifies requirements to initiate formal consultation Clarifies or codifies current practice Negligible
This is largely consistent with current practice.
Initiation of formal consultation. (1) A written request to initiate formal consultation shall be submitted to the Director and shall include: (i) A description of the proposed action, including any measures intended to avoid, minimize, or offset effects of the action. Consistent with the nature and scope of the proposed action, the description shall provide sufficient detail to assess the effects of the action on listed species and critical habitat, including: (A) The purpose of the action; (B) The duration and timing of the action; (C) The location of the action; (D) The specific components of the action and how they will be carried out; (E) Maps, drawings, blueprints, or similar schematics of the action; and (F) Any other available information related to the nature and scope of the proposed action relevant to its effects on listed species or designated critical habitat. (ii) A map or description of all areas to be affected directly or indirectly by the Federal action, and not merely the immediate area involved in the action (i.e., the action area as defined at § 402.02). (iii) Information obtained by or in the possession of the Federal agency and any applicant on the listed species and designated critical habitat in the action area (as required by paragraph (c)(1)(ii) of this section), including available information such as the presence, abundance, density, or periodic occurrence of listed species and the condition and location of species’ habitat, including any critical habitat. (iv) A description of the effects of the action and an analysis of any cumulative effects. (v) A summary of any relevant information provided by the applicant, if available. (vi) Any other relevant available information on the effects of the proposed action on listed species or designated critical habitat, including any relevant reports such as environmental impact statements and environmental assessments.
402.14(c)(1)
Clarifies biological assessment as prerequisite to formal consultation. Clarifies or codifies current practice Negligible
This is largely consistent with current practice.
Initiation of formal consultation….(3) Formal consultation shall not be initiated by the Federal agency until any required biological assessment has been completed and submitted to the Director in accordance with § 402.12.
402.14(c)(3)
Clarifies Services responsibilities during formal consultation Clarifies or codifies current practice Negligible
This is largely consistent with current practice.
Service responsibilities during formal consultation are as follows:…. (4) Add the effects of the action and cumulative effects to the environmental baseline and in light of the status of the species and critical habitat, formulate the Service’s opinion as to whether the action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.
402.14(g)(4)
Clarifies that Services will consider beneficial actions in formal consultation Clarifies or codifies current practice Negligible
This is largely consistent with current practice.
Service responsibilities during formal consultation are as follows:…. (8) In formulating its biological opinion, any reasonable and prudent alternatives, and any reasonable and prudent measures, the Service will use the best scientific and commercial data available and will give appropriate consideration to any beneficial actions as proposed or taken by the Federal agency or applicant, including any actions taken prior to the initiation of consultation.
402.14(g)(8)
Clarifies contents of biological opinion generally Clarifies or codifies current practice Negligible
This is largely consistent with current practice.
Biological opinions. (1) The biological opinion shall include: (i) A summary of the information on which the opinion is based; (ii) A detailed discussion of the effects of the action on listed species or critical habitat; and (iii) The Service’s opinion on whether the action is: (A) Likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a “jeopardy” biological opinion); or (B) Not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a “no jeopardy” biological opinion).
402.14(h)(1)
Clarifies contents of biological opinion with jeopardy Clarifies or codifies current practice Negligible
This is largely consistent with current practice. However, the proposed language does not mention “adverse modification” as a finding independent of jeopardy.
Biological opinions….(2) A “jeopardy” biological opinion shall include reasonable and prudent alternatives, if any. If the Service is unable to develop such alternatives, the Service will indicate that to the best of its knowledge there are no reasonable and prudent alternatives.
402.14(h)(2)
Clarifies that reinitiation of informal consultation is also possible Clarifies or codifies current practice Negligible
Clarifies that reinitiation on informal consultation is also possible by removing “formal” from current regulation. This affirms the breadth of the reinitiation requirement (clarifies a more protective standard).
Reinitiation of consultation. (a) Reinitiation of consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and….
402.16(a)
Establishes no requirement to reinitiate consultation on certain land management plans Clarifies or codifies current practice Negligible
Services explain that this proposal merely affirms/clarifies current practice. But the proposal conflicts with the Ninth Circuit’s Cottonwood Council decision. We agree with the Services that reinitiating a programmatic consultation on a forest plan in response to a new listing or critical habitat designation offers little for conservation. The only potential downside is that a reinitiation would allow the Service to better assess the cumulative effects of all projects covered by the programmatic action. But this assessment usually leaves a lot to be desired in the first place.

Reinitiation of consultation. (b) An agency shall not be required to reinitiate consultation after the approval of a land management plan prepared pursuant to 43 U.S.C. 1712 or 16 U.S.C. 1604 upon listing of a new species or designation of new critical habitat, provided that any authorized actions that may affect the newly listed species or designated critical habitat will be addressed through a separate action specific consultation.

402.16(b)
Establishes that the activities and effects of an action must be “reasonably certain to occur” Clarifies or codifies current practice Negligible
The reasonably certain to occur standard applies to both direct and indirect effects now, although this does not necessarily deviate considerably from current practice.
Activities that are reasonably certain to occur. To be considered reasonably certain to occur, the activity cannot be speculative but does not need to be guaranteed. Factors to consider include, but are not limited to: (1) Past relevant experiences; (2) Any existing relevant plans; and (3) Any remaining economic, administrative, and legal requirements necessary for the activity to go forward.
402.17(a)
Clarifies that the “reasonably certain to occur” standard does not apply to the proposed action Clarifies or codifies current practice Negligible
Whether the proposed action itself will be implemented does not need to undergo the reasonably certain to occur test–only the effects/activities of the proposed action do.
The provisions in paragraph (a) of this section apply only to activities caused by but not included in the proposed action and activities considered under cumulative effects.
402.17(b)
Rejects concept of “baseline jeopardy” Clarifies or codifies current practice Negative
Clarifies rejection of “baseline jeopardy” concept, in contradiction to some court decisions. Baseline jeopardy
concept could help the Services arrive at needed jeopardy findings more readily, although the actual frequency of such a situation is likely small.
While we acknowledge that for a species with a particularly dire status, a smaller impact could cause an alteration that appreciably diminishes the conservation value of critical habitat or appreciably reduces the likelihood of survival and recovery of the species, there is no “baseline jeopardy” status even for the most imperiled species.
In preamble
Rejects concept of a “tipping point” for jeopardy Clarifies or codifies current practice Negative
Clarifies rejection of “tipping point” concept, in contradiction to some court decisions. As with the baseline jeopardy concept, a tipping point could help the Services arrive at needed jeopardy findings more readily.
Neither the Act nor our regulations state any requirement for the Services to identify a “tipping point” as a necessary prerequisite for making section 7(a)(2) determinations. Section 7(a)(2) provides the Services with discretion as to how it will determine whether the statutory prohibition is exceeded. We have not interpreted that statutory language as requiring the identification of a tipping point.
In preamble
Clarifies definition of “foreseeable future” Clarifies or codifies current practice Negligible
Contrary to some media coverage on this issue, the proposed definition closely tracks the FWS’s 2009 opinion on foreseeable future (M-37021), which has been in use ever since then. Specifically, the language below from the opinion is near identical to the proposed definition: “The Secretary’s analysis of what constitutes the foreseeable future for a particular listing determination must be rooted in the best available data that allow predictions into the future, and the foreseeable future extends only so far as those predictions are reliable. ‘Reliable’ does not mean ‘certain’; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.” Note that the proposed rule seems to use “reliable” and “probable” interchangeable. This should be fixed in the final rule.
The term foreseeable future extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable. Under proposed section 424.11(d), as under current practice, the foreseeable future for a particular status determination extends only so far as predictions about the future are reliable. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction.
424.11(d)
Clarifies identical standards for listing and delisting Clarifies or codifies current practice Negligible
This should already be standard practice, and clarifying it in regulation is useful.
In section 424.11, we propose to redesignate current paragraph (d) as paragraph (e) and revise it to clarify that we determine whether a species is a threatened species or an endangered species using the same standards regardless of whether a species is or is not listed at the time of that determination.
424.11(e)
Simplifies definition of effects of action Minor change Negligible
Simplifies definition of “effects”–eliminates interdependent and interrelated approach. Adds “reasonably certain” standard to direct effects, although appears to be standard practice. Continue evaluating this proposed change for any other implications.
Effects of the action are all effects on the listed species or critical habitat that are caused by the proposed action, including the effects of other activities that are caused by the proposed action. An effect or activity is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include effects occurring outside the immediate area involved in the action.
402.02
Separates environmental baseline from effects of action Minor change Negligible
Environmental baseline is now a standalone definition, instead of part of the definition of effects of an action. The definition remains the same.
Environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.
402.02
Creates efficiency in drafting initiation package Minor change Positive
Reduces paper and analysis on part of action agency, without compromising quality of consultation (all elements of initiation package must still be met). Consultation Handbook already allows BiOp to reference description of action in NEPA documents.
Initiation of formal consultation….(2) A Federal agency may submit existing documents prepared for the proposed action such as NEPA analyses or other reports in substitution for the initiation package outlined in this paragraph (c). However, any such substitution shall be accompanied by a written summary specifying the location of the information that satisfies the elements above in the submitted document(s).
402.14(c)(2)
Allows concurrent initiation of multiple related actions Minor change Positive
Minor reduction in paperwork / process. Confirm this is a change from current practice.
Initiation of formal consultation….(4) Any request for formal consultation may encompass, subject to the approval of the Director, a number of similar individual actions within a given geographical area, a programmatic consultation, or a segment of a comprehensive plan. This provision does not relieve the Federal agency of the requirements for considering the effects of the action or actions as a whole.
402.14(c)(4)
Establishes Services responsibilities during formal consultation Minor change Negligible
Minor changes to accommodate the propose to separate “baseline” into its own definition.
Service responsibilities during formal consultation are as follows:…. (2) Evaluate the current status and environmental baseline of the listed species or critical habitat.
402.14(g)(2)
Establishes that conservation measures need not require specific plan or resource commitment Minor change Negative
Eliminates requirement for action agency to provide specific and binding plan with clear, definite commitment of resources (in Ninth Circuit). Because the Services have few resources for compliance monitoring, requiring action agency (or applicant) to establish specific plan and/or show resource commitment will help ensure the conservation measures are followed through.
Service responsibilities during formal consultation are as follows:….(8)….Measures included in the proposed action or a reasonable and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not require any additional demonstration of specific binding plans or a clear, definite commitment of resources.
402.14(g)(8)
Establishes biological opinion to adopt other documentation Minor change Positive
Efficiency measure to expedite biological opinion.
Biological opinions. (3) The Service may adopt all or part of: (i) A Federal agency’s initiation package; or (ii) The Service’s analysis required to issue a permit
under section 10(a) of the Act in its biological opinion.
402.14(h)(3)
Establishes no consultation requirement for “global processes” such as many greenhouse gas emitting activities Minor change Negative
This appears only in the preamble, not the proposed 402.03. This is largely from the 2008 rule finalized during the final days of the George W. Bush administration (73 Fed. Reg. 76272). It is reasonable to avoid spending time consulting on global greenhouse gas emission activities if no take is anticipated and the effects are minor or not measurable. It is also difficult to imagine the Services spending their resources completing such consultations given current funding levels and scrutiny from Congress. However, one could argue that the proposal should not allow an action agency to make that no effect determination on its own. Either way, the change from the status quo is likely negligible (the Services were generally not consulting on these types of actions anyway), but out of an abundance of caution we have rated this proposal as negative.
More specifically, the Services seek comment regarding revising § 402.03 to preclude the need to consult when the Federal agency does not anticipate take and the proposed action will: (1) not affect listed species or critical habitat; or (2) have effects that are manifested through global processes and (i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or (ii) would result at most in an extremely small and insignificant impact on a listed species or critical habitat, or (iii) are such that the potential risk of harm to a listed species or critical habitat is remote, or (3) result in effects to listed species or critical habitat that are either wholly beneficial or are not capable of being measured or detected in a manner that permits meaningful evaluation.
The Services have learned through time that such actions are far removed from any potential for jeopardy or destruction or adverse modification of critical habitat, and that consultation on these actions does little to accomplish the intent of section 7(a)(2) of the Act—to ensure that any action authorized, funded, or carried out by a Federal agency is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.
In preamble (affects 402.03)
Clarifies standard for delisting species and establishes that delisting follows from status review that triggers the standard Minor change Negligible
Generally no change to current practice, but the “will delist” reference suggests that the Services will automatically proceed with a proposed delisting rule after the status review. Clarify this.
The Secretary will delist a species if the Secretary finds that, after conducting a status review based on the best scientific and commercial data available: (1) The species is extinct; (2) The species does not meet the definition of an endangered species or a threatened species. In making such a determination, the Secretary shall consider the same factors and apply the same standards set forth in paragraph (c) of this section regarding listing and reclassification; or (3) The listed entity does not meet the statutory definition of a species.
424.11(e)
Establishes factors for making discretionary not-prudent determination for critical habitat Minor change Negligible

The Services would no longer be required to issue a not-prudent determination if specific factors are met. Rather, the agencies “may” issue such a determination if any of a non-exhaustive list of circumstances exist. Thus, there may be less certainty about when a designation is not prudent, but the Services rarely issue such findings in the first place (we found only 19 such findings by FWS from 2000-18). With few exceptions (see below), the non-exhaustive list of circumstances appears consistent with current practice for not-prudent determinations. By not pursing designations that provide little to no conservation value, the Services can use their resources for other actions that offer higher value (the cost of each critical habitat rulemaking is about $150k – $300k). From this perspective, the proposal might benefit conservation in some circumstances. The proposal does include two new factors for not prudent determinations: evaluating the benefits of section 7 consultations, and considering the conservation value of US habitat for transboundary species.  Note that courts have generally not upheld FWS’s not-prudent determinations based on the agency’s claim that designation would not benefit a species.

The Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) After analyzing the best scientific data available, the Secretary otherwise determines that designation of critical habitat would not be prudent.
424.12(a)(1)
Defines environmental baseline to include ongoing impacts Moderate or major change Mixed
This requires further analysis, but we initially believe the results will be mixed. For many consultations, the difference will likely be negligible, as the complexities of ongoing actions do not arise. For other consultations, the proposed definition appears consistent with how the Services sometimes address ongoing actions as part of the baseline. But the inclusion of ongoing actions in the baseline definition, combined with separating the baseline from the effects of the action, raise questions about whether the scope of RPMs or any RPAs might change.  This is one of the most technically complex proposals to evaluate, and we will provide further analysis in the coming weeks.
Environmental baseline is the state of the world absent the action under review and includes the past, present and ongoing impacts of all past and ongoing Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions in the action area which are contemporaneous with the consultation in process. Ongoing means impacts or actions that would continue in the absence of the action under review.
402.02
Limits scope of consultation to actions within jurisdiction of agency Moderate or major change Negative
Regardless of legality, limiting the scope of consultations would reduce the number of actions subject to consultations. The 2016 NMFS consultation on FEMA’s flood insurance program is an example of such a consultation.  Limits on the scope of consultation also arise in some Army Corps of Engineer consultations on Clean Water Act section 404 dredge and fill permits for wetlands.  If finalized, this proposal would likely have serious negative effects for some species.
In prior consultations under section 7(a)(2), agencies with regulatory authority have consulted on actions that include effects to listed species or designated critical habitat that occur outside of the specific area over which they have regulatory jurisdiction. We also seek comment on whether the scope of a consultation under section 7(a)(2) should be limited to only the activities, areas, and effects within the jurisdictional control and responsibility of the regulatory agency.
402.03
Creates optional collaborative consultation process Moderate or major change Positive
Allows action agency to better coordinate with the Services on developing analysis and documentation to facilitate Service’s BiOp. The Services can already incorporate by reference or adopt an action agency’s analysis.
Biological opinions. (4) A Federal agency and the Service may agree to follow an optional collaborative process that would further the ability of the Service to adopt the information and analysis provided by the Federal agency during consultation in the development of the Service’s biological opinion to improve efficiency in the consultation process and reduce duplicative efforts. The Federal agency and the Service shall consider the nature, size, and scope of the action or its anticipated effects on listed species or critical habitat, and other relevant factors to determine whether an action or a class of actions is appropriate for this process. The Federal agency and the Service may develop coordination procedures that would facilitate adoption. The end result of the adoption consultation process is expected to be the adoption of the initiation package with any necessary supplementary analyses and incidental take statement to be added by the Service, if appropriate, as the Service’s biological opinion in fulfillment of section 7(b) of the Act.
402.14(h)(4)
Creates expedited consultation process Moderate or major change Positive
Proposal suggests focus on expediting recovery action BiOps (although current practice already largely allows that). This can create incentives for action agency to strive for a net benefit or recovery standard. But this approach can also be abused if the Services are too permissive in overlooking adverse effects. Note that 402.14(l) is already taken–maybe Services meant 402.14(m)?
Creates expedited consultation process. Expedited consultations. Expedited consultation is an optional formal consultation process that a Federal agency and the Service may enter into upon mutual agreement. To determine whether an action or a class of actions is appropriate for this type of consultation, the Federal agency and the Service shall consider the nature, size, and scope of the action or its anticipated effects on listed species or critical habitat and other relevant factors. Conservation actions whose primary purpose is to have beneficial effects on listed species will likely be considered appropriate for expedited consultation. (1) Upon agreement to use this expedited consultation process, the Federal agency and the Service shall establish the expedited timelines for the completion of this consultation process. (2) Federal agency responsibilities: To request initiation of expedited consultation, the Federal agency shall provide all the information required to initiate consultation under paragraph (c) of this section. To maximize efficiency and ensure that it develops the appropriate level of information, the Federal agency is encouraged to develop its initiation package in coordination with the Service. (3) Service responsibilities: In addition to the Service’s responsibilities under the provisions of this section, the Service will: (i) Provide relevant species information to the Federal agency and guidance to assist the Federal agency in completing its effects analysis in the initiation package; and (ii) Conclude the consultation and issue a biological opinion within the agreed-upon timeframes.
402.14(l)
Creates deadline for informal consultation Moderate or major change Mixed
The effects on consultation depend largely on when the deadline would start (the Services are asking for comment on this issue). Regardless, a 60-day deadline applied to the official start of informal consultation would not affect most FWS consultations, as most are under 60 days. But it would affect more NMFS consultations. The proposal does not mention the implications of no mutual consent to extend informal consultation. Our initial view is that the clock should start ticking when an action agency has submitted the required documents to initiate consultation.
The Services are considering whether to add a 60-day deadline, subject to extension by mutual consent, for informal consultations. We seek comment on (1) whether a deadline would be helpful in improving the timeliness of review; (2) the appropriate length for a deadline (if not 60 days); and (3) how to appropriately implement a deadline (e.g., which portions of informal consultation the deadline should apply to [e.g., technical assistance, response to requests for concurrence, etc.], when informal consultation begins, and the ability to extend or “pause the clock” in certain circumstances, etc.).
In preamble (affects 402.13)
Combines consultation affecting species under joint jurisdiction Moderate or major change Positive
Although there are differences between the quality of certain FWS and NMFS consultations (see Evansen et al. 2017. Same law, different results: comparative analysis of Endangered Species Act consultations by two federal agencies), we think that the greater efficiency gains from collaborating on a single biological opinion outweigh the potential compromises in the quality of the opinion.
While not reflected in any proposed changes to our regulations at this time, we also seek comment on the merit, authority, and means for the Services to conduct a single consultation, resulting in a single biological opinion, for Federal agency actions affecting species that are under the jurisdiction of both FWS and NMFS
In preamble (affects 402)
Removes prohibition on referring economic impacts Moderate or major change Negative
It is difficult to prevent economic analysis from influencing final listing decision (remember that listing decisions are not actually based solely on science, despite what the ESA and its regulations state–See Holly Doremeus’s 1997 article on why better science isn’t always better policy under the ESA).
We propose to remove the phrase, “without reference to possible economic or other impacts of such determination”, from paragraph (b) to more closely align with the statutory language.
424.11
Modifies order and standard for designating unoccupied critical habitat Moderate or major change Negative
There are three proposals here: evaluating occupied habitat before evaluating unoccupied habitat; identifying the two situations when unoccupied habitat is deemed “essential”; and requiring a “reasonable likelihood” that unoccupied area contribute to conserving the species (although the preamble confusingly states that a lower standard may also be used). The main problem with forcing the Services to evaluate occupied habitat first is that it creates the risk of overlooking unoccupied habitat that may be more effective or less costly at recovering a species. But the proposed language tries to address this concern by allowing unoccupied habitat to be designated if doing would result in more “efficient conservation.” Also note that FWS might not have designated the unoccupied unit for the dusky gopher frog in the Weyerhaeuser v. USFWS Supreme Court case if it had to find a “reasonable likelihood” that the area will contribute to conservation. A person’s view of this proposal depends largely on whether he or she believes in the value of critical habitat. For the sake of argument, we adopt a precautionary approach to conservation by assuming that critical habitat has meaningful conservation value (as the Services do) and arrive at a “negative” rating for this proposal in light of that assumption.
The Secretary will designate as critical habitat, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species only upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species or would result in less efficient conservation for the species. Efficient conservation for the species refers to situations where the conservation is effective, societal conflicts are minimized, and resources expended are commensurate with the benefit to the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable likelihood that the area will contribute to the conservation of the species.
424.12(b)(2)
Withdraws general section 4(d) rule Moderate or major change Mixed
The withdrawal of the general 4(d) rules for wildlife and plants will likely have mixed results, depending largely on when and how FWS issues species-specific 4(d) rules. For many species, the withdrawal will likely have negligible effects because, under the Obama administration, FWS was already issuing species-specific 4(d) rules for many of its threatened animal species. The withdrawal will likely hinder conservation where FWS does not issue a species-specific rule and doing so would have helped conserve the species. The cost for FWS to issue 4(d) rules is unclear at this point, particularly rules that are detailed enough to substitute for the conservation measures that would have flowed from section 10 agreements for the species. Further, approximately 56% of US listed species are plants, and FWS has never issued a species-specific 4(d) rule for any threatened plant. If the agency does not plan to start doing so, then the discrepancy between protections for endangered and threatened plants becomes real (at least on paper–the section 9 habitat-based protections for endangered species are very limited).
On the other hand, forcing FWS to purposefully identify activities covered by a 4(d) rule may lead to better conservation in some instances, such as by excluding activities for which applying the take prohibition does not advance recovery.
We, the U.S. Fish and Wildlife Service, propose to revise our regulations
extending most of the prohibitions for activities involving endangered species to threatened species. For species already listed as a threatened species, the proposed regulations would not alter the applicable prohibitions. The proposed regulations would require the Service, pursuant to section 4(d) of the Endangered
Species Act, to determine what, if any, protective regulations are appropriate for species that the Service in the future determines to be threatened.
17.31 & 17.71