A Guide to the Revised Endangered Species Regulations
In August 2019, the Trump administration released its long-awaited changes to the Endangered Species Act regulations. Most of the media coverage on the changes has focused on the most controversial elements, pronouncing them disastrous for wildlife but offering incomplete, inaccurate, or very biased support for these claims. We strive to offer balanced and accurate analysis of the entire rulemaking, which is sorely missing from the current public dialogue. Our overall view is that the regulations will have mixed results for conservation. Among the 37 discrete changes that we found in the proposed regulations last summer, four were not adopted in the final regulations. The remaining 33 changes fell into four categories. Changes that undermine conservation. These changes are mostly or entirely bad for conservation. They include publishing the economic impacts of listing decisions, limiting the designation of unoccupied critical habitat, and eliminating standards that would help determine when a federal agency is “jeopardizing” a species. All five changes in this category would, in fact, change how the ESA is administered, though some of those changes will likely only be minor. The change in the jeopardy analysis is the most problematic in our opinion because it would hamper the ability to determine when a species has passed a "tipping point" beyond which recovery options become very difficult. We also found a handful of other changes that affirm past practice that was problematic. Because those changes don’t alter past practice, we assigned them to the last category below. Changes that depend mostly on agency implementation. Some of the most controversial changes fall into this category because their effects on conservation will depend mostly on how the two wildlife agencies--the U.S. Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS)--interpret and apply the revised regulations. For example, FWS has withdrawn its 4(d) regulations that automatically extended to threatened species the protections afforded to endangered species. How the withdrawal affects species will depend on how often FWS issues species-specific 4(d) rules in the future, how quickly the agency can finalize those rules, and activities the rules prohibit, and what incentives the rules create for voluntary conservation. In addressing these issues, the agency has tremendous discretion. Five other changes belong to this category, including the definition of “foreseeable future,” the factors to decide if critical habitat designation is “prudent,” and several changes to the standards for section 7 consultations between federal agencies. Changes that should improve conservation. It wasn’t all bad news. We found five changes that should enhance the efficiency of the section 7 consultation process without compromising on conservation. These include streamlining how federal agencies draft section 7 documents and expediting consultations for projects with minimal impacts on listed species. Most of the changes are likely to improve conservation only marginally, but one change—creating an option for federal agencies to develop a more collaborative consultation process—could result in far better landscape-scale conservation, including project siting and avoidance of sensitive habitat. Changes that retain past practices. This category describes regulatory changes that will result in no or very minor alterations to ESA practice. These include clarifying the standards for starting section 7 consultations, describing the contents of biological opinions, and other arcane nuances of the consultation process that are not noteworthy to the general public. But the changes also codify several problematic and longstanding practices within the wildlife agencies. Chief among these is a new definition of “destruction or adverse modification” of critical habitat that cements the agencies’ practice of deemphasizing this prohibition—an approach that the Obama administration expressly endorsed in 2016. The summary above only scratches the surface of the final regulations, which are complex and cannot be well understood without reading the over 300 pages of supplemental background on the regulations. We've done that work and discuss all the changes in the "Analysis of Regulations" tab. Want to learn more about two of the most important changes—the foreseeable future and 4(d) rules? We’ve been carefully analyzing these issues for months. The effects of both changes on conservation will depend mostly on how the wildlife agencies implement the revised regulations. What better way to answer that question than to track every future ESA decision that’s made under those regulations and compare the results to past practice, which we’ve already analyzed. See our "Special Topics" tab to learn more. Did you find our analysis helpful? We welcome your feedback and support for this work.
Which regulatory proposals and ideas made it into the final regulations? The table below shows the status of the 37 proposals and ideas. You can sort the second, third, and fourth columns by clicking the down arrows. Click on any row to see our full analysis. You can also download a PDF version of this table here.
To better understand how the Services have interpreted We were surprised to find that the average length of the foreseeable future was largely stable over the last decade (45 years for FWS and 46 years for NMFS). Similar types of threats, however, often had very different foreseeable future timeframes. The same was true for similar species, suggesting that many factors--explicit and implicit, objective and subjective--go into a foreseeable future analysis. The new definition of foreseeable future uses a "likely" standard, meaning that predictions about the future must be "more likely than not," suggesting a 51%-49% threshold. While this standard might constrain some future listing decisions, it also seems more permissive than how FWS has interpreted the foreseeable future in a handful of decisions we've read. We suggest the Services develop guidance on how to apply this new standard, especially how to address the varying degrees of scientific uncertainty inherent in determining whether the impacts of climate change, and a species' response to those impacts, are "likely." Will FWS's new approach to 4(d) rules depart considerably from the agency's past practice? To answer this question, we looked at every listing of a threatened species in the history of the ESA and every 4(d) issued for a threatened species. Explore the data with our interactive dashboard, which we will periodically update to track which species get 4(d) rules in the future and what protections the rules offer. FWS has a longstanding practice of tailoring protections for threatened species. Through August 2019, about 50% of FWS threatened animal species had received a special 4(d) rule that reduces ESA protections compared to the default 4(d) rule. NMFS has never issued a default 4(d) rule and has extended ESA protections to about 60% of its threatened species. For the remaining 40% of species, NMFS has concluded that section 9 protections are not needed at this time.Overview of Regulations
Analysis of Regulations
Description of change
Magnitude of change
Effect on conservation
Change from proposed to final regulations
Click on each row for explanationESA section
Withdraw default 4(d) rules for threatened species
Moderate or major change
Depends on implementation
No change from proposal
• The outcome will depend largely on how often FWS issues species-specific 4(d) rules, how soon after a listing the agency issues the rules, and the contents of those rules, including whether they facilitate conservation and reduce uncertainty. No one knows the answers to those questions yet. But a historical perspective is helpful.
• FWS has issued a species-specific 4(d) rule for about 50% of the threatened animal species it listed before 2019, with the Obama administration issuing a rule for about 52% of the 71 threatened animal species it listed, while the remaining 48% of species got the full protections of section 9. This is one coarse baseline against which to assess how often FWS issues 4(d) rules in the future.
• A more meaningful baseline for comparison is the contents of the rules, especially what types of activities the rules exempt. Past rules have exempted a wide range of activities, some that impede conservation and some that advance it. Moving forward, FWS should strive for rules that incentivize conservation. FWS can create a direct incentive by exempting a conservation practice, thus eliminating the burden of seeking an ESA permit for the activity. FWS can also create an indirect incentive that increases social support or tolerance for conservation. The 4(d) rules that exempt catch-and-release fishing of many threatened fish species enable recreational fishing in rivers, streams, and lakes that might otherwise be closed to fishing (because inadvertently catching a threatened fish would be unauthorized "take"). Allowing fishing in these areas supports conservation investments such as purchase of easements on streams. The withdrawal of the default 4(d) rule for animals will likely cause FWS to be more thoughtful and deliberate about deciding which activities to regulate for threatened species. We will assess the content of those rules and whether they create incentives for private parties, minimize uncertainty for regulated entities, and facilitate conservation.
• Neither agency has ever issued a species-specific rule for a plant, which are not protected by the "take" prohibition and which make up 57% of all US listed species (though only 18% of plants are threatened). Because section 9 offers very limited protections to plants, we will monitor whether FWS regularly extends even those limited protections in the future.Listing
Remove prohibition on referencing economic impacts in listing decisions
Minor change
Negative
No change from proposal
We do not yet know how often the Services will gather and release economic data, so the real-world impacts on conservation are speculative at this point. Further, if the potential economic impacts of listing a species are notable, the Services and the public are almost always already aware of those impacts, often because private parties complete and publish their own economic analyses (e.g., sage grouse, lesser-prairie chicken). For these reasons, we rank this change as minor compared to past practice.Listing
Codify new definition of “foreseeable future”
Minor change
Depends on implementation
Minor change from proposal
Listing
Modify standard for delisting species and require delisting if warranted in status review
Minor change
Negligible
Minor change from proposal
Listing
Adopt identical standards for listing and delisting
Clarifies or codifies past practice
Negligible
No change from proposal
Listing
Establish factors for making discretionary not-prudent determination for critical habitat
Moderate or major change
Depends on implementation
Minor change from proposal
The Services have rarely issued not-prudent findings (we found only 19 such findings by FWS from 2000-18). Will the proportion of these findings increase? That will depend on how diligently the Services designate critical habitat and how they apply the five non-exhaustive factors.Critical habitat
Modify sequence and standard for designating unoccupied critical habitat
Moderate or major change
Negative
Major change from proposal
• First, in determining whether unoccupied habitat is "essential" to conserving a species, the Services have removed their earlier proposal to consider whether it would be "less efficient" to designate occupied habitat before unoccupied habitat. Thus, the only remaining basis for unoccupied habitat to precede occupied habitat is if the latter is "inadequate" to conserve a species.
• Second, in the final rule (but not the proposed rule), the Services have added the requirement that unoccupied critical habitat contain "physical or biological features" (PBFs) essential to conserving the species. The ESA applies this requirement only to occupied critical habitat, but the Services have added this requirement based on their analysis of the ESA legislative history and their interpretation of the 2018 Weyerhaeuser v. USFWS decision that all critical habitat must be habitat to begin with. Although this requirement is new on paper, it is not entirely new in practice. Several past designations of unoccupied critical habitat have identified PBFs. For example, the 2003 critical habitat rule for five Hawaiian plants identifies unoccupied habitat based largely on specific PBFs needed for recovery. The 2012 designation for the western snowy plover likewise explains that "for both the occupied and unoccupied areas...critical habitat designation identifies...those [PBFs] essential to the conservation of the species (such as space, food, cover, and protected habitat)." In these and other examples we found, FWS was not required to identify PBFs but did so anyway.
• Third, the Services must now have "reasonable certainty" (instead of the less stringent "reasonable likelihood" from the proposed rule) that unoccupied habitat will both contribute to conserving the species and contain the physical and biological features discussed earlier.
Historically, the Services have designed very little unoccupied critical habitat (0.6% of all FWS terrestrial critical habitat, 3.1% of all FWS aquatic critical habitat, and 0% of all NMFS critical habitat in recent years, according to the agencies). In 2016, however, NMFS issued a climate change directive explaining that it "will consider proactive designation of unoccupied habitat...because of the function(s) it is likely to serve as climate changes." The need to protect habitat to help species deal with climate change is undisputed among conservation scientists. But because the ESA protects critical habitat only through the destruction / adverse modification prohibition, which the Services rarely apply, there remains considerable debate about the conservation value of critical habitat. Critical habitat
Modify definition of "physical and biological features" for critical habitat
Minor change
Negative
Minor change from proposal
Critical habitat
Modify definition of "geographical area occupied by the species"
Not adopted
Not adopted
Not adopted
Critical habitat
Redefine “destruction or adverse modification.”
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Reject “tipping point” and "baseline" concepts in jeopardy analysis
Moderate or major change
Negative
No change from proposal
Sec. 7 consult.
Define “reasonably certain to occur” and modify when it applies to "effects of the action"
Moderate or major change
Depends on implementation
Minor change from proposal
• First, the final rule establishes a new definition of "reasonably certain to occur," which is used to determine the "effects of the action" during consultation. Put differently, the definition sets the standard (reasonable certainty) that establishes which effects of a federal action must be considered during consultation.
• Second, a reasonable certainty conclusion must now be based on "clear and substantial information," which requires a "firm basis to support a conclusion" of reasonable certainty and a "degree of certitude." This is a new and stricter standard for evaluating the effects of an action.
• Third, the final rule describes three situations that would not meet the reasonable certainty test, such as when the consequences of the federal action are very remote in time or location. These situations were not in the proposed rule.
• Fourth, the final rule and its preamble raises the question of whether the reasonable certainty standard applies not only during formal consultation (which it always has) but also to informal consultation and the "no effect" / "may affect" determination. The Consultation Handbook does not mention the reasonable certainty standard applying to the latter. If the final rule changes that, the outcome will be one of the most significant changes under the entire rulemaking. The "may affect" and "likely to adversely affect" standards would be more difficult to reach when cabined by the requirement of reasonable certainty. This outcome would broadly affect the entire consultation program, considering that~93% of FWS consultations and ~80% of NMFS consultations are informal. Further, "no effect" findings do not require Service concurrence, which means that federal agencies could use the restrictive reasonable certainty test to exclude harmful effects that would have previously been considered during consultation. We will continue looking into this issue and update our analysis when we get a clear answer.
• On the whole, the final regulation will probably reduce ambiguities about how to interpret the reasonable certainty standard, but may well limit the types of harmful effects that must be considered during a consultation. It is too early to understand how the new changes will be applied.Sec. 7 consult.
Clarify that “reasonably certain to occur” does not apply to proposed agency actions
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Simplify definition of "effects of the action"
Moderate or major change
Depends on implementation
Minor change from proposal
Sec. 7 consult.
Separate "environmental baseline" from "effects of the action"
Minor change
Negligible
No change from proposal
Sec. 7 consult.
Define "environmental baseline" to include ongoing activities
Moderate or major change
Depends on implementation
Minor change from proposal
Sec. 7 consult.
Create 60-day deadline for concurrence in informal consultation
Moderate or major change
Negligible
Moderate change from proposal
To start the 60-day clock, the federal action agency must provide enough information about its proposed action to allow the Service to decide whether it can concur. This deadline on the concurrence process is not a new idea--the Services already have a 30-day deadline to respond to biological assessments for "major construction activities." We think that a 60 to 120 day deadline should be workable for the Services, considering that (1) the median duration of the entire informal consultation process for FWS was 13 days from 2008-2015 and (2) the deadline clock does not start until the Service agrees that the action agency has provided enough information. For these reasons, we rank this rule change as having negligible effects on conservation, particularly because meeting a deadline is several steps removed from on-the-ground conservation outcomes.Sec. 7 consult.
Eliminate requirement to reinitiate consultation on land use plans
Minor change
Negligible
Minor change from proposal
Under the final rule, one potential problem for conservation 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 often leaves a lot to be desired in the first place. Because the requirement for a site-specific consultation remains, we ranked this change as having a minor effect on conservation.Sec. 7 consult.
Establish that section 7 conservation measures do not require additional binding plans
Moderate or major change
Negative
Minor change from proposal
Sec. 7 consult.
Create optional collaborative consultation process
Minor change
Positive
No change from proposal
Sec. 7 consult.
Create expedited consultation process
Minor change
Positive
No change from proposal
Sec. 7 consult.
Create efficiency in drafting initiation package
Minor change
Positive
No change from proposal
Sec. 7 consult.
Allow concurrent initiation of consultation on related actions
Minor change
Positive
No change from proposal
Sec. 7 consult.
Allow biological opinions to adopt other documents
Minor change
Positive
No change from proposal
Sec. 7 consult.
Clarify use of programmatic consultations
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify requirements to initiate formal consultation
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify biological assessment as prerequisite to formal consultation
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify Services responsibilities during formal consultation
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify reference to “director.”
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify that Services will consider beneficial actions in formal consultation
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify contents of biological opinions generally
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify contents of jeopardy biological opinions
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Clarify that reinitiation of informal consultation is possible
Clarifies or codifies past practice
Negligible
No change from proposal
Sec. 7 consult.
Establish Services responsibilities during formal consultation
Minor change
Negligible
No change from proposal
Sec. 7 consult.
Establish no consultation requirement for “global processes” such as many greenhouse gas emitting activities
Not adopted
Not adopted
Not adopted
Sec. 7 consult.
Limit scope of consultation to actions within jurisdiction of agency
Not adopted
Not adopted
Not adopted
Sec. 7 consult.
Combine consultations affecting species under joint jurisdiction
Not adopted
Not adopted
Not adopted
Sec. 7 consult.
Special Topics: Foreseeable Future and 4(d) Rules
Will the "foreseeable future" change?
this phrase and whether that interpretation will change under the new rules, we've reviewed every ESA decision from the last decade that analyzed the foreseeable future. For our full commentary, including an infographic and interactive data visualizations, view our page on this project.
Which species have tailored 4(d) rules?