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Recently, the United States Fish and Wildlife Service ("FWS") proposed significant changes to the Endangered Species Act ("ESA") and its compliance requirements. These changes would relax restrictions imposed on landowners and developers.
As further discussed below, the three most impactful proposed changes are: 1) FWS would allow project proponents to conduct their own risk assessment on the need for an incidental take permit; 2) revocation of the so-called Blanket 4(d) Rule to require individual rulemaking for each threatened species rather than blanket treatment; and 3) revised criteria for critical habitat designations.
1. Guidance on Incidental Take Permits
Recently, FWS issued guidance prohibiting its employees from advising potential project proponents that they must obtain an incidental take permit. The guidance requires project proponents to conduct their own risk assessment and apply their own judgment on whether to apply for the permit. Incidental take permits allow for otherwise prohibited takings if such takings are "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Under the ESA, "take" is to harass, harm, pursue, hunt, shoot, or to attempt to engage in any of this conduct on an endangered or threatened species.
A risk assessment would still be necessary in many instances because citizens and environmental groups can sue project developers if their projects modify a habitat, without an incidental take permit, and the modification results in actual death or injury of endangered or threatened wildlife.
2. Individual Rulemaking for Threatened Species
A proposed amendment to the ESA would revoke the 1975 4(d) Rule, which extends "prohibitions for activities involving endangered species to threatened species." The 4(d) Rule states that the Secretary of the Interior may, by regulation, prohibit killing, capturing, or taking of a threatened species. These blanket protections were issued because the rest of the ESA only prohibits those activities for endangered species.
By revoking the 4(d) Rule, threatened species will only have protective regulations if FWS promulgates a species-specific rule. However, only 10% of threatened species are protected under species-specific rules, with the other 90% having blanket protections under the 4(d) Rule.
This amendment was proposed to parallel the National Marine Fisheries Service's ("NMFS") interpretation of the 4(d) Rule. Instead of adopting the same prohibitions for endangered and threatened species, NMFS chooses whether to add prohibitions, protections, or restrictions to each individual species.
If the revocation becomes effective, landowners will face fewer regulatory burdens if their land is home to a threatened species, unless that specific species is extended protections by FWS. It is also important to note that this proposed amendment would only affect species listed as threatened after the rule becomes effective. The proposed rule has not yet been officially published in the federal register for comment.
3. Changes to Critical Habitat Designations
In 2016, the Obama Administration extended how "critical habitat" designations under the ESA were applied. Specifically, the rule allows FWS and NMFS to deem an area unoccupied by an endangered or threatened species as critical habitat when it is "essential for the conservation of the species." This rule was criticized for being "over-reaching," and "vague," prompting twenty states to sue FWS and NMFS. Their complaint alleged that the rule permitted FWS and NMFS to designate land as critical habitat even if the land does not presently contain the necessary biological factors to support the endangered or threatened species.
This year, the Trump Administration settled with the twenty states, which agreed to drop their suit so long as FWS and NMFS reconsider the Obama Administration's critical habitat regulations. In April 2018, FWS and NMFS sent the Office of Management and Budget two proposed rules reconsidering critical habitat designation criteria. The details of the proposals are not yet publicly available. Moving forward, pursuant to the settlement agreement, if the states, FWS, and NMFS are unable to resolve their dispute over the critical habitat regulations, the states can file a new action.
A case still pending based on these critical habitat rules is Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which is scheduled for hearing in the U.S. Supreme Court's fall term. The center of this dispute is the Mississippi dusky gopher frog, a critically endangered frog species. Under the Obama Administration's critical habitat rule, FWS designated 1,500 acres of a Louisiana property as critical habitat, even though the frog has not been seen in Louisiana since 1967. The property owner sued after an economic study estimated a $34 million long-term devaluation of the property from loss of commercial development because of the designation. We will follow this important case.
Our Land Development, Zoning & Environmental team has extensive experience advising clients on all matters related to protected species and critical habitat.
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