The Trump Administration recently approved changes to rules governing the Endangered Species Act ("ESA"). Following the changes, fewer lands will be encumbered by ESA regulations, which will lower the threat of liability towards private entities. In response, certain environmental groups have filed suit against the administration. However, such efforts are unlikely to bring about any reversal of the current course.

The Department of the Interior's ("Department") change to Section 4(d) of the ESA concerning the classification of threatened species is one of the most controversial. This change will give the Department the ability to make a case-by-case determination regarding the level of protection afforded to a threatened species instead of automatically extending threatened species the full protection afforded to endangered species ¹, as was previously the case. For example, strict prohibitions on taking or harming the species or its environment will no longer automatically extend to every threatened species. This change will reduce the threat of liability to entities that develop or operate on or near lands inhabited by certain threatened species.

Another change will reverse a rule developed by the Obama Administration allowing the Secretary of the Interior ("Secretary") to set aside certain geographic areas as critical habitats that were not currently occupied by species listed as either endangered or threatened (listed species). Under the new rule, the Secretary can only set aside an area uninhabited by a listed species if limiting the protection to areas actually occupied by that listed species would be inadequate or less efficient in ensuring that species' conservation. The Secretary will make the determination whether to set aside unoccupied areas based on two criteria: (1) there must be a reasonable certainty that the area will contribute to the conservation of the species; and (2) the area must contain one or more of those physical or biological features essential to the conservation of the species. This change will heighten the standard under which the Secretary can set aside unoccupied land, which means land currently unoccupied by a listed species bears less of a threat of being subject to future federal regulation under the ESA.

Finally, the recent changes to the ESA will heighten the threshold for designating unoccupied areas as critical habitat, which formerly received additional protections under the ESA. The proposed changes only allow Fish and Wildlife Services ("FWS") to designate unoccupied areas as critical habitat if that habitat faces a threat in the foreseeable future. What constitutes a threat in the "foreseeable future" will now be determined on a case-by-case basis. This will mean the FWS will have to make determinations for each area based on the potential threat to the species living on or near those areas. Many believe this will result in fewer areas that will be designated as critical habitat. Again, this change will mean property bears less of a threat of being subject to federal regulation under the ESA going forward.

The members of our Land Development, Zoning & Environmental Practice Group and our Government & Administrative Law Group have extensive experience in advising clients on the impact new regulations will have on their business. For more information, please contact us.

¹For reference, an "endangered species" is one that is in danger of extinction throughout all or a significant portion of its range, whereas a "threatened species" is one that is likely to become endangered within the foreseeable future.