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C o g r s i o a R e e a c S e r v i c
Updated August 21, 2019
Final Rules Changing Endangered Species Act Regulations
On August 12, 2019, the Trump Administration finalized
three rules that change the implementation of the
Endangered Species Act (ESA; 16 U.S.C. §§1531 et. seq.).
The final rules concern Section 4 (listing of endangered and
threatened species) and Section 7 (consultation with federal
agencies) of ESA.
The federal agencies that implement ESA include the U.S.
Fish and Wildlife Service (FWS) and the National Oceanic
and Atmospheric Administration through the National
Marine Fisheries Service (NMFS). (FWS and NMFS are
referred to as the Services in this In Focus, and the term
Secretary refers to the Secretary of the Interior or the
Secretary of Commerce, as applicable). The final rules are
summarized below, including some of the Services'
explanations for the changes.
Revision of the Regulations for Listing
Species and Designating Critical H abitat
This final rule addresses the listing of endangered and
threatened species and designation of critical habitat under
Section 4 of ESA. Section 3 of ESA defines endangered
species as a species that is in danger of extinction
throughout all or a significant portion of its range. A
threatened species is defined as a species that is likely to
become endangered within the foreseeable future
throughout all or a significant portion of its range. The
Secretary determines whether a species should be listed
based on five factors related to threats to the species'
continued existence. Listing determinations are to be made
solely on the basis of the best scientific and commercial
data available.
Identifying Economic Effects of Listing
The final rule removes without reference to possible
economic or other impacts from the regulation on listing
determinations (50 C.F.R. §424.11(b)). This change allows
the Services to reference the economic effects of listing
decisions. The final rule specifically recognizes, however,
that ESA prohibits the Services from considering economic
factors in listing decisions and that this rule does not alter
the law to allow such factors to be considered in the
decision to list a species. The final rule states that this
change more closely align[s] the rule to statutory
language under ESA Section 4(b)(1)(A) and provides more
transparency to Congress and stakeholders on the economic
impacts of listing decisions.
Foreseeable Future
The final rule creates a framework for how the Secretary
will evaluate the foreseeable future when making listing
decisions on threatened species under ESA. The final rule
interprets the foreseeable future as extending in time only
as far as the Services can reasonably determine that future
threats and the species' responses to those threats are
likely, interpreted by the Services to mean more likely
than not. The Services will determine the foreseeable future
on a case-by-case basis, based on the best data available,
and need not identify a specific time period.
Factors Considered in Delisting a Species
The final rule clarifies that the same criteria used to list a
species will be used to delist a species. Under the final rule,
a listed species will be delisted if, using the best scientific
and commercial data available, it is extinct, does not meet
the definition of an endangered species or a threatened
species, or is not a species as defined by ESA. The Services
explain that this clarification addresses concerns that the
standard for delisting a species is higher than the standard
for listing a species.
Critical Habitat Designation
When a species is listed under ESA, the Secretary also must
designate critical habitat to the maximum extent prudent
and determinable. Critical habitat, as defined under ESA,
includes not only geographic areas occupied by the species
at the time of listing but also areas outside that geographic
area if the Secretary determines that such additional areas
are essential for the conservation of the species. Federal
agencies must ensure their actions and actions approved or
funded by them are not likely to result in the destruction or
adverse modification of critical habitat. Critical habitat
designations affect private land only if some federal action
(e.g., a license, loan, or permit) is also involved. Critical
habitat is designated based on the best scientific data
available and after considering the economic or other
relevant impacts of the designation.
The final rule revises the list of circumstances under which
the Services might find it prudent not to designate critical
habitat. It removes the circumstance that designating critical
habitat would not benefit the species and replaces it with
four other circumstances. For example, the Secretary could
determine that designating critical habitat is not prudent
because no areas meet the definition of critical habitat or
there are no habitat-based threats to the species (e.g., the
conservation of a species threatened by sea level rise cannot
be addressed through habitat management).
Critical Habitat in Unoccupied Areas
The final rule clarifies when the Secretary may designate
unoccupied areas as critical habitat. Under ESA,
unoccupied areas must be essential to the conservation of
the species to be critical habitat. To determine if an
unoccupied area is essential to the conservation of the
species, the Secretary must find that the occupied habitat of
the species at the time of listing is inadequate to ensure the
conservation of the species. The Secretary also must
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