Endangered Species Act Rulemakings on the Horizon

The Obama Administration was largely quiet during its first term on regulatory fronts under the Endangered Species Act (ESA). This picture is quickly changing during the Administration's second term. One final ESA rulemaking emerged in August 2013. Also in August, OMB's Office of Information and Regulatory Affairs cleared three proposed ESA rules for publication. See http://www.reginfo.gov/public/. One of those proposed rules was published in early September 2013. Further illustrating this Administration's push on ESA regulatory reform are U.S. Fish and Wildlife Service (FWS) websites on "Improving ESA Implementation through Regulation Review" and "Improving ESA Implementation." See http://www.fws.gov/endangered/improving_esa/index.html. Thus, over the next year, the community regulated by the ESA will face a period of heightened activity on ESA rulemaking comments.

FWS and the National Marine Fisheries Service (the Services) recently finalized one set of pending ESA rules at 78 Fed. Reg. 53058 (Aug. 28, 2013). The completed rulemaking concerns the timing and content of the ESA § 4(b)(2) economic analysis of the impacts of designating areas to be critical habitat for a particular endangered or threatened species.

The September 2013 proposed rulemaking concerns the ESA § 7(b)(4) incidental take statement (ITS). See 78 Fed. Reg. 54437 (Sept. 4, 2013). A Service issues an ITS, which states the conditions under which the unintentional take of some individual animals is lawful, when a biological opinion concludes that the proposed federal action is not likely to jeopardize the entire listed species. The Ninth and Eleventh Circuits have interpreted 50 C.F.R. § 402.14(i) to require that ITSs be limited to a specific number of listed animals that can be lawfully taken, and have invalidated ITSs that fail to do so. The Services are attempting to cure this problem by amending § 402.14(i) to allow the use of "surrogates" (e.g., number of acres that can be disturbed) in more circumstances, thus avoiding the "considerable expense" in attempting to monitor for and locate a few deceased members of a listed species. 78 Fed. Reg. at 54438. The proposed ITS rulemaking also addresses programmatic ITSs on programmatic federal actions (e.g., issuance of a regulation or a federal land use plan), to overcome some other adverse Ninth Circuit case law. Comments on the ITS rulemaking are due November 4, 2013.

There also may be proposed rules later this year on two contentious aspects of critical habitat. OMB has cleared proposed rules that: (1) define when a federal agency action is barred under ESA § 7 because it would "adversely modify critical habitat"; and (2) amend the ESA § 4 process for designating critical habitat and clarify critical habitat's role under the ESA. See http://www.reginfo.gov/public/. 

The first rule, defining what "adverse modification of critical habitat" means for purposes of ESA § 7(a)(2) compliance, is needed to finally replace a regulatory definition that was declared invalid by the Ninth Circuit in the 2004 Gifford Pinchot decision. An important point for the regulated community will be to preserve the principle that "adverse modification of critical habitat" allows some temporary and limited-acreage degradation of a few critical habitat areas. This has been allowed under the case law. And it is consistent with Service policy that critical habitat does not create an inviolate wildlife sanctuary. The other proposed critical habitat rulemaking may shed some light on distinguishing essential critical habitat from non-critical habitat, and on critical habitat's role in the administration of the ESA. 

FWS's "Improving ESA Implementation" website lists two other subjects that may result in rules or policy statements. First, the Services may finalize policy guidance on what a "significant portion of its range" means for purposes of deciding whether a species should be listed because it is endangered or threatened in a significant portion of its range. The Services sought public comment on a draft policy in 2011 and 2012. See http://www.fws.gov/endangered/improving_esa/spr.html.

Second, the Services may issue a proposed rule to provide better landowner incentives to assist in protection of imperiled wildlife through habitat conservation plans, candidate conservation agreements, and other conservation initiatives. See http://www.fws.gov/endangered/improving_esa/landowner_incentives.html. The Services published an advance notice of proposed rulemaking to solicit comments on how to improve such incentives in 2012. See id.

It is unclear at this time whether the Obama Administration will propose broader ESA regulatory reforms in its final years. The Administration sought and obtained public comment on other needed regulatory reforms during President Obama's first term, but has not yet acted on those suggestions. Yet, at least in the areas identified above, the Obama Administration is poised to leave its mark, and its marker, on ESA regulatory reform.