On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration.

The package of proposals includes a number of provisions that are intended to streamline and clarify the scope of the ESA, including the ability to use programmatic consultations and proposing to include an expedited consultation process under Section 7. Nevertheless, the most significant and controversial changes likely are those that are focused on shrinking the scope of the ESA, rolling back Obama-era revisions, and responding to negative court precedent. If finalized as proposed, among other changes, these regulatory revisions would:

  • Remove the blanket “take” prohibition from threatened species;
  • De-emphasize the role of unoccupied habitat in critical habitat designations by reversing 2016 regulations implemented by the Obama Administration;
  • Establish a framework for and limit the scope of the “foreseeable future” for purposes of threatened species listings;
  • Allow economic impacts to be identified – though not considered – in listing decisions;
  • Narrow the definition of adverse modification to further de-emphasize unoccupied critical habitat in the Section 7 consultation process; and
  • Clarify that the environmental baseline is not part of the action to be evaluated as part of Section 7 consultations and to propose a limiting definition that would better explain how to perform consultations for ongoing actions.

These changes, if finalized as proposed, would represent a significant departure from historical application and scope of the ESA, especially to threatened species. The changes also are intended to clarify and explain the Section 7 consultation process as well as the listing and critical habitat designation process, which could provide additional certainty and clarity to the regulated community on these important issues to project development. Comments on all three proposals will be due 60 days after the proposals are published in the Federal Register.