On August 12, 2019 the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three final rules that are expected to significantly affect the 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.

Overall, the final rules appear to be consistent with the proposals that the Services released last summer (summarized here). However, there are several key areas where the final rules differ:

  • Directly in response to the Supreme Court’s holding in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018), requiring unoccupied critical habitat to have at least one or more physical or biological features that have been determined to be essential to the conservation of the species.
  • Revising the proposed definition of “foreseeable future,” to clarify that foreseeable future determinations for threatened species listings are limited to both actual (not potential) threats and a species’ response to those threats that are “more likely than not” to occur.
  • While, as proposed, adopting a definition for environmental baseline, providing additional clarity by adding a third sentence to highlight that the effects of ongoing actions over which the action agency does not have discretion should be considered part of the environmental baseline.
  • Adopting a 60-day timeline for informal consultations, with an additional 60 days available if an extension is needed.

The rules have been submitted to the Federal Register for publication and will become effective thirty days after being published.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these final changes appear directly responsive to negative court precedent 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. Challenges to the final rules are imminent, with the States of California and Massachusetts and numerous environmental groups already indicating a plan to file once the rules are published in the Federal Register.