A Guide to the Revised Endangered Species Regulations

Overview of 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 For example, FWS has withdrawn its 4(d) regulations that automatically extended to threatened species the protections afforded to endangered species.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.

 

Analysis of Regulations

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.

Description of change Magnitude of change Effect on conservation Change from proposed to final regulations
Click on each row for explanation
ESA section
Withdraw default 4(d) rules for threatened species Moderate or major change Depends on implementation No change from proposal

FWS withdraws its general 4(d) rules for animals and plants, which it adopted in 1975 and 1977 respectively. Those rules automatically extended to all threatened species the full section 9 protections for endangered species, unless FWS issued a "special" 4(d) rule to override the default protections. From now on, a newly-listed threatened species will get section 9 protections only if FWS issues a 4(d) rule specifically for that species. As part of the withdrawals, FWS explains that "the Secretary will still be required to make a decision about what regulations to put in place" for every newly-listed threatened species. The withdrawals do not apply to already-listed species. How the withdrawals will affect conservation is a complex question:
• 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

The final rule removes the reference to “without reference to possible economic or other impacts of such determination” as part of listing and reclassification decisions. The Services explain that they have the authority to compile and present this information publicly, provided it is not considered as part of those decisions. Even if this approach is upheld in court, it is bad practice because it will likely present only the economic impacts (rather than also any benefits) of listing and because it will encourage political pressure to influence whether to list a species (despite what many people believe, listing decisions have never been based "solely" on science; policy considerations are inescapable).
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

The "foreseeable future" is used to evaluate whether to list a species as "threatened." The final rule adopts a "likely" standard to determine the extent of the foreseeable future. The agencies explain that "likely" means "more likely than not," suggesting a 51% to 49% threshold. By contrast, the 2009 FWS legal opinion on foreseeable future used a "reliable" standard and the proposed rule used a "probable" standard. The Services claim, however, that the final language is "consistent with the Services' long-standing interpretation and previous judicial opinions." Whether or not this is true remains to be seen. We are reading every foreseeable future decision to determine whether the Services' interpretation of this phrase will change under the new definition. Visit our project website here.
The new rule also explains that the foreseeable future analysis must consider both the threats to a species and its response to those threats. This is not a new standard--plenty of past listing decisions have required both.
Listing
Modify standard for delisting species and require delisting if warranted in status review Minor change Negligible Minor change from proposal

The final rule states that the Service "shall" (instead of "will" as in the proposed rule) delist a species if it concludes that the species is extinct, is not threatened or endangered, or is not a species. This change will likely reduce the time between a Service recommendation to delist a species and the agency's issuance of a rule to carry out the delisting. The final rule also eliminates certain redundant language from the proposed rule about delisting "recovered" species or species listed in "error." Removing the "recovery" reference was controversial because some people interpreted the move to suggest that the Services would delist a species before it has met recovery criteria. The Services, however, have had the legal authority to do this for years (see Friends of Blackwater v. Salazar) and has used this authority in a handful of delisting decisions.
Listing
Adopt identical standards for listing and delisting Clarifies or codifies past practice Negligible No change from proposal

The standard and process for delisting species is identical to that for listing them. Historically, there has been some debate about whether the standards are identical.
Listing
Establish factors for making discretionary not-prudent determination for critical habitat Moderate or major change Depends on implementation Minor change from proposal

Although the final rule makes minor changes to the proposed rule, it will result in significant changes to past practice. Under past practice, the Services will conclude that critical habitat designation is not prudent (and thus not designate the habitat) if either of two conditions are met. But under the final rule, the Services "may" (but are not required to) make a not-prudent finding based on any of five non-exhaustive factors. These include the ability of section 7 consultations to address threats to the habitat, and the conservation value of US habitat for species that occur primarily in a foreign country. And there is a fifth catch-all factor that broadly allows the Services to conclude that critical habitat is not prudent based on the best available data.
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

The final rule increases the barriers to designating unoccupied critical habitat in three ways.
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

The final rule could restrict critical habitat designations by narrowing the definition of "physical and biological features" in two minor ways. First, those features must now be "essential" to support the life-history needs of a species. Second, those features must now be tied to "specific areas" rather than exist in general. Exactly how specific these areas must be remains unclear.
Critical habitat
Modify definition of "geographical area occupied by the species" Not adopted Not adopted Not adopted

The Services sought comment on whether to revise the current definition of this phrase and declined to do so.
Critical habitat
Redefine “destruction or adverse modification.” Clarifies or codifies past practice Negligible No change from proposal

As with the proposed rule, the final rule requires the Services to evaluate destruction or adverse modification based on how an action will affect a species' entire critical habitat, not just the particular area affected by a federal action. Unfortunately, this problematic approach reflects the Services' longstanding practice and was explicitly affirmed in the Obama administration's 2016 revised definition of adverse modification. Thus, the final rule does not change the outcome of consultations; it only solidifies past practice, which was bad for conservation because the Services have never adopted a system to track whether the amount of cumulative harm to critical habitat rises to the level of adverse modification. Further, the Services have largely viewed adverse modification as offering limited value beyond the jeopardy prohibition, as evident from this study and from the paucity of adverse modification findings without a jeopardy finding at FWS and NMFS. Without a meaningful prohibition on adverse modification, it matters little how much critical habitat exists, as the ESA offers no other legal protection for critical habitat.
Sec. 7 consult.
Reject “tipping point” and "baseline" concepts in jeopardy analysis Moderate or major change Negative No change from proposal

The Services abolish the concepts of a (1) "tipping point" beyond which a species cannot recovery from adverse effects and (2) "baseline" conditions that put a species in jeopardy under section 7, in contradiction to some court decisions. As a result, conservationists will find it harder to argue that the Service should have found jeopardy for a particular federal action. We think this is one of the most problematic changes, because the Services already lack a national system to track the amount of incidental take they have authorized. As a result, it is very difficult for the agencies to know when a species' status has deteriorated to the point where recovery options are foreclosed or extinction becomes very likely. Read more about this topic here.
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

This is one of the more complex regulatory changes to understand, with four major elements. You may first want to familiarize yourself with the section 7 process.
• 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

Whether the proposed federal action itself will be implemented does not undergo the "reasonably certain to occur" causation test (or the "but for" test)–only the "consequences" of the proposed action do. Note that "consequence" is now defined in the definition of "effects of the action."
Sec. 7 consult.
Simplify definition of "effects of the action" Moderate or major change Depends on implementation Minor change from proposal

This definition is used during formal consultation to identify effects subject to a jeopardy/adverse modification analysis. As with the proposed rule, the final rule simplifies the definition of “effects of the action" by eliminating the longstanding concepts of interdependent and interrelated activities, and indirect and direct effects. All of these concepts are now replaced by the new, catch-all concept of "all consequences" of the proposed agency action on listed species and critical habitat. The final rule also explains that the "consequences" of a proposed action must not occur "but for" the action and must be "reasonably certain to occur." The Services claim that all of these changes clarify rather than change existing practice. However, there is at least one major difference: under past practice, the but for and reasonable certainty tests applied only to indirect effects and cumulative effects; but under the new definition, both tests apply to all effects of a proposed action, including to what was previously called direct effects and interrelated/interdependent actions. The final rule might limit the scope of those effects/actions during formal consultation, especially when combined with the new definition of reasonable certainty. But it is too early to make strong predictions about the effects of these changes on conservation. Major sections of the Services' Section 7 Handbook will now require updating.
Sec. 7 consult.
Separate "environmental baseline" from "effects of the action" Minor change Negligible No change from proposal

The final rule adopts a standalone definition of "environmental baseline," thus separating it from the definition of "effects of the action." This separation does not affect the jeopardy/adverse modification analysis, which must still consider the status of the species, the environmental baseline, the effects of the action, and the cumulative effects. But where the separation could make a difference is that effects considered as part of the environmental baseline do not require "reasonable and prudent measures" to minimize take because those effects are not part of the proposed action. This scenario could arise when certain ongoing effects are considered as part of the baseline rather than the effects of the action.
Sec. 7 consult.
Define "environmental baseline" to include ongoing activities Moderate or major change Depends on implementation Minor change from proposal

The final rule adopts the new position that the "environmental baseline" in a section 7 consultation includes existing or ongoing activities that are not within a federal agency's discretion to modify. Thus, those activities would not be considered part of the "effects of the action." The Services have lacked a consistent approach to dealing with ongoing actions. This new position should not change the overall jeopardy/adverse modification analysis, which requires the Services to consider the effects of ongoing activities, regardless of whether they are part of the baseline or the effect of the action under consultation. By implication, ongoing activities for which a federal agency retains discretion would be part of the effects of the action--even if those activities were previously consulted on. Note that activities that are part of the environmental baseline do not require reasonable and prudent measures, whereas activities that are part of the action do. Finally, the Services clarify that for discretionary ongoing actions, all effects will be evaluated during a consultation, even effects from parts of the action for which the federal action agency is not proposing any change. Because this regulatory change adopts two new approaches--separating the baseline from the effects of the action, and treating ongoing non-discretionary activities as part of those effects--it is difficult to predict how the change will affect conservation.
Sec. 7 consult.
Create 60-day deadline for concurrence in informal consultation Moderate or major change Negligible Moderate change from proposal

The proposed rule sought comment on whether a deadline should apply to informal consultations. The final rule adopts a 60-day deadline for the Service to concur or not concur on a federal action agency's request for concurrence during informal consultation. This deadline may be extended to 120 days with the consent of the federal agency and any applicant. The new deadline applies only to the concurrence process during informal consultation, not to the entire consultation process, which remains without an overall deadline.
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

The final rule exempts certain land management plans under NFMA and FLPMA from reinitiation of consultation when a species is listed or critical habitat is designated, provided that any activity authorized under those plans will undergo its own site-specific consultation. 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 reinitation requirement in this context has also created political risk for the ESA (in response to Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015)), prompting at least one bill to reduce the perceived regulatory burden.
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 

The final rule is largely consistent with the proposed rule on the position that conservation measures in a section 7 consultation are not required to demonstrate they are supported by binding plans (e.g., clear resource commitments); the Services will presume the measures will occur, in the same way that they will assume the harmful effects of an action will occur. This position conflicts with certain case law in the Ninth Circuit and recently arose in the NMFS consultation on the Federal Columbia River Power System. Nonetheless, conservation measures must still be described in enough detail for the Services to assess their beneficial effects.
Sec. 7 consult.
Create optional collaborative consultation process Minor change Positive No change from proposal

The final rule includes the "optional collaborative consultation" process, which allows an action agency to better coordinate with the Services to develop analysis and documentation to help the Services draft their biological opinions. Under past practice, the Services could already have incorporated by reference or adopt an action agency’s analysis as part of a biological opinion (e.g., the "optional formal consultation" process under the ESA-FIFRA counterpart rule that was upheld in Washington Toxics v. USFWS). For federal agencies to use the new optional collaborative consultation option effectively, the Services should issue supplemental guidance on how to pursue that option.
Sec. 7 consult.
Create expedited consultation process Minor change Positive No change from proposal 

This is a new option to streamline certain consultations, especially those with limited harmful effects on species. This approach could incentivize federal agencies to minimize the harmful effects of their projects as much as possible before initiating consultation, in order to take advantage of the expedited process. The outcome would improve conservation and save agency time and resources.
Sec. 7 consult.
Create efficiency in drafting initiation package Minor change Positive No change from proposal 

The final rule clarifies that the Services may consider documents prepared for NEPA and other purposes as part of a package for initiating formal consultation, provided those documents meet minimum standards specified in the final rule. This is not a new approach, as the Section 7 Consultation Handbook already allows biological opinions to reference descriptions of actions in NEPA documents. This change will improve the efficiency of the consultation process.
Sec. 7 consult.
Allow concurrent initiation of consultation on related actions Minor change Positive No change from proposal

The final rule explains that a federal agency's request for formal consultation may include "a number of similar individual actions within a given geographical area, a programmatic consultation, or a segment of a comprehensive plan." The goal of concurrent initiation is to increase the efficiency of the consultation process.
Sec. 7 consult.
Allow biological opinions to adopt other documents Minor change Positive No change from proposal 

As part of a Service's biological opinion, the agency may adopt "all or part of" a federal agency's initiation package or the Service's analysis for an ESA section 10 permit. This is consistent with past practice and reduces Services workload without compromising on conservation.
Sec. 7 consult.
Clarify use of programmatic consultations Clarifies or codifies past practice Negligible No change from proposal

The definition of programmatic action is consistent with the Services’ 2015 rule that defines framework and mixed programmatic actions.
Sec. 7 consult.
Clarify requirements to initiate formal consultation Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice.
Sec. 7 consult.
Clarify biological assessment as prerequisite to formal consultation Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice.
Sec. 7 consult.
Clarify Services responsibilities during formal consultation Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice.
Sec. 7 consult.
Clarify reference to “director.” Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice.
Sec. 7 consult.
Clarify that Services will consider beneficial actions in formal consultation Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice.
Sec. 7 consult.
Clarify contents of biological opinions generally Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice.
Sec. 7 consult.
Clarify contents of jeopardy biological opinions Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice. The final rule, however, does not mention “adverse modification” as a finding independent of jeopardy, even though that outcome is possible.
Sec. 7 consult.
Clarify that reinitiation of informal consultation is possible Clarifies or codifies past practice Negligible No change from proposal

This is consistent with past practice. The final rule clarifies that reinitiation on informal consultation is also possible by removing “formal” from the current regulation. This affirms the breadth of the reinitiation requirement (more protective standard). Note that 50 CFR 402.16(a) specifies four triggers for reinitiating consultation. One of them has been updated to address an inadvertent omission in the past regulations: reinitiation is also required if a federal action is modified in a way that was not considered in a "written concurrence" during informal consultation.
Sec. 7 consult.
Establish Services responsibilities during formal consultation Minor change Negligible No change from proposal

The final rule describes past practice for Services responsibilities during formal consultation.
Sec. 7 consult.
Establish no consultation requirement for “global processes” such as many greenhouse gas emitting activities Not adopted Not adopted Not adopted 

The Services declined to adopt this very controversial concept, which it sought comment on in the proposed rules. This is noteworthy because the Trump administration has, by omission, preserved the potential requirement for section 7 to cover greenhouse gas emitting activities.
Sec. 7 consult.
Limit scope of consultation to actions within jurisdiction of agency Not adopted Not adopted Not adopted 

The Services declined to adopt this concept that would seriously undermine conservation by limiting the types of effects that must be considered during consultation. The background to the final rule explains that "the Services decline to limit the 'effects of the action' to only those effects or activities over which the Federal agency exerts legal authority or control." Elsewhere in the background, the Services note that they will "ensure that a reasonable and prudent measure assigned to a Federal action agency does not exceed the scope of a Federal action agency's authority." This same limitation, however, is already described on page 4-53 of the Section 7 Handbook.
Sec. 7 consult.
Combine consultations affecting species under joint jurisdiction Not adopted Not adopted Not adopted 

The current Section 7 Handbook already describes a process for both Services to coordinate on consultations for species under joint jurisdiction (e.g., sea turtles).
Sec. 7 consult.

 

Special Topics: Foreseeable Future and 4(d) Rules

Will the "foreseeable future" change?

To better understand how the Services have interpreted 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.

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."

 

Which species have tailored 4(d) rules?

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.