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 For example, FWS has withdrawn its 4(d) regulations that automatically extended to threatened species the protections afforded to endangered species.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.
Our team compiled a table that shows the status of the 37 proposals and ideas.
Did you find our analysis helpful? We welcome your feedback and support for this work.
