Background

The species and habitat protected under the ESA extend to all aspects of our communities, lands, and waters. There are almost 2,400 species listed as threatened or endangered pursuant to ESA Section 4. Critical habitat for one or more species has been designated in all regions of the U.S. and its territories. Through the Section 7 consultation process and “take” prohibitions under Sections 9 and 4(d), the ESA imposes species and habitat protection measures on the use and management of private, federal, and state lands and waters and, consequently, on governmental and private activities.

These proposed rules reflect the Biden Administration’s continuing efforts to reform and revise the Services’ approach to ESA implementation that was adopted by the prior Administration. Pursuant to President Biden’s Executive Order 13990, the Services reviewed certain agency actions for consistency with the new Administration’s policy objectives. As part of that review, the Services identified five final rules related to ESA implementation that should be reconsidered. Previously, in 2022, the Services rescinded two of those final rules—the regulatory definition of “habitat” for the purpose of designating critical habitat and the regulatory procedures for excluding areas from critical habitat designations. While these proposed rules reflect the consummation of that initial effort, the Services are currently contemplating additional revisions to other ESA regulations and policies.

Proposed Revisions to the Regulations for Listing Species and Designating Critical Habitat

Section 4 of the ESA dictates how the Services list species as threatened or endangered, delist or reclassify species, and designate areas as critical habitat. The proposed rule would make several targeted revisions to these procedures. Notable changes would include:

• Evaluation of the “foreseeable future” for threatened species: The proposed rule would revise the applicable regulatory framework to state that “[t]he term foreseeable future extends as far into the future as the Services can reasonably rely on information about threats to the species and the species’ responses to those threats.” The Services note that this revision is intended to reflect that absolute certainty about utilized information is not necessary, just a reasonable degree of confidence in the prediction. The Services are also considering whether to rescind the framework for interpreting and implementing the “foreseeable future” in its entirety.
• Designation of unoccupied critical habitat: The proposed rule would revise the two-step process for determining when unoccupied areas may be designated as critical habitat. proposed rule addresses how specific areas that are unoccupied critical habitats are designated. In part, the Services would remove the requirement that they “will only consider” unoccupied areas to be essential when a designation limited to occupied critical habitat would be inadequate for the conservation of the species. The Services also would remove the provision that an unoccupied area is considered essential when there is reasonable certainty both that the area will contribute to the conservation of the species and that it contains one or more physical or biological features essential to the conservation of the species.
• Not prudent determinations for critical habitat designation: The proposed rule would remove the justification for making a not prudent determination when threats to a species’ habitat are from causes that cannot be addressed through management actions in a Section 7 consultation. The Services note that this is intended to address the misperception that a designation of critical habitat could be declined for species impacted by climate change.
• Factors for delisting species: The proposed rule would restore language that delisting is appropriate when the species “is recovered.” The Services would also clarify that the delisting analysis is not limited to the same specific factors or threats that led to the listing of the species.
• Economic impacts in classification process: The proposed rule would restore the regulatory condition that a species listing determination is to be made “without reference to possible economic or other impacts of such determination.”

Proposed Revisions to the Consultation Regulations

The ESA Section 7 consultation requirement applies to discretionary federal agency actions—including federal permits, licenses and authorizations, management of federal lands, and other federal programs. Federal actions that are likely to adversely affect a listed species or designated critical habitat must undergo a formal consultation review and issuance of a biological opinion evaluating whether the action is likely to jeopardize the continued existence of a species or result in the destruction or adverse modification of critical habitat. The biological opinion also evaluates the extent to which “take” of a listed species may occur as a result of the action and quantifies the level of incidental take that is authorized. The proposed rule would make the following notable changes to the applicable regulations:

• Expanded scope of reasonable and prudent measures: The proposed rule would revise and expand the scope of RPMs that could be included as part of an incidental take statement in a biological opinion. In a change from their prior interpretation, and in addition to measures that avoid or minimize impacts of take, the Services would have discretion to include measures as an RPM that offset any remaining impacts of incidental take that cannot be avoided (e.g., for certain impacts, offsetting measures could include restoring or protecting suitable habitat). The Services also would allow RPMs, and their implementing terms and conditions, to occur inside or outside of the action area. Any offsetting measures would be subject to the requirement that RPMs may only involve “minor changes” to the action, must be commensurate with the scale of the impact, and must be within the authority and discretion of the action agency or applicant to carry out.
• Revised definition of “effects of the action”: In an effort to clarify that the consequences to listed species or critical habitat that are included within effects of the action relate to both the proposed action and activities that are caused by the proposed action, the proposed rule would add a phrase to the definition to note that it includes “the consequences of other activities that are caused by the proposed action but that are not part of the action.” In addition, the proposed rule would remove provisions at 50 C.F.R. § 402.17, added in 2019, which provide the factors used to determine whether an activity or a consequence is “reasonably certain to occur.”
• Revised definition of “environmental baseline”: The proposed rule would revise the definition in an effort to more clearly address the question of a federal agency’s discretion over its own activities and facilities when determining what is included within the environmental baseline. The Services note that it is the federal action agency’s discretion to modify the activity or facility that is the determining factor when deciding which impacts of an action agency’s activity or facility should be included in the environmental baseline, as opposed to the effects of the action. The Services also would remove the term “ongoing” from the definition in an effort to clarify that any continuation of a past and present discretionary practice or operation would be in the environmental baseline.
• Clarification of obligation to reinitiate consultation: The proposed rule would remove the phrase “or by the Service” to clarify that it is the federal agency, and not the Services, that has the obligation to request reinitiating of consultation when one or more of the triggering criteria have been met (and discretionary involvement or control over the action is retained).

Proposed Reinstatement of Blanket Protections for FWS Species Listed as Threatened

Pursuant to the ESA, threatened and endangered species are treated differently with respect to what are often called the “take” prohibitions of the Act. In part, ESA Section 9(a)(1) prohibits the unauthorized take—which is defined as an act “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect”—of an endangered species. In contrast, under Section 4(d) of the ESA, the Secretary may issue a regulation applying any prohibition set forth in Section 9(a)(1) to a threatened species. Historically, FWS applied a “blanket 4(d) rule” that automatically extended all ESA Section 9(a)(1) prohibitions to a threatened species unless a species-specific rule was otherwise adopted. In 2019, FWS revised its approach to align with NMFS’s long-standing practice, which only applies the ESA prohibitions to threatened species on a species-specific basis. The proposed rule would make the following notable changes to FWS’s approach under Section 4(d):

• Reinstate blanket 4(d) rule: The proposed rule would reinstate the general application of the “blanket 4(d) rule” to newly listed threatened species. As before, FWS would retain the option to promulgate species-specific rules that revise the scope or application of the prohibitions that would apply to threatened species.
• New exceptions for Tribes: The proposed rule proposed rule would extend to federally recognized Tribes the ability currently afforded to FWS and other federal and state agencies to aid, salvage, or dispose of threatened species. FWS is also considering an additional revision that would extend exceptions to the prohibitions to certain individuals from a federally recognized Tribe’s natural resource agency for take associated with conservation activities pursuant to an approved cooperative agreement that covers the threatened species.

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On July 1, 2014, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (both referred to herein as “FWS”) published a “Notice of Final Policy” interpreting the phrase “significant portion of its range” (“SPR”) in making listing decisions under the Endangered Species Act (“ESA”).  79 Fed. Reg. 37578 (July 1, 2014).  Beginning on July 31, 2014, FWS will use the new SPR Policy to list entire species as “endangered” or “threatened” when the species has experienced impacts in only a fraction of its range.  Though FWS avers that new listings based on the SPR policy will be “relatively uncommon,” in practice this significantly broadened agency discretion will have far-reaching impacts for project proponents and other regulated individuals.  For example:

• A FWS finding of threatened or endangered status in one particular area now may result in listing nationwide.  This will create new delays and restrictions for activities, ironically even more so in areas where the species is more abundant.
• FWS has lowered its threshold for determining that a portion of range is “significant.”  No minimum percentage is specified; rather, FWS relies on any of several “biological” factors or perceived risks which are undefined and thus difficult to challenge.  In turn, FWS may find that more activities on or near newly “significant” areas present a risk warranting listing of the species in its entirety.  Conservation efforts throughout much of a species’ range also may not obviate an ESA listing if FWS finds that a single portion is significant and remains unaddressed.
• The species’ “range” includes any area used anytime in the species’ life, even if not used regularly.  While lost historical range itself cannot be SPR, it may increase the likelihood that FWS will deem a portion of the reduced range as SPR.
• Increased listings under the SPR Policy may result in even broader application of the FWS’ pending proposals to expand its “critical habitat” jurisdiction.

This new avenue for ESA listings comes on the heels of two recent proposals and a draft guidance document on designation of critical habitat and a court-entered settlement for FWS to remedy a backlog of hundreds of species listing determinations.  Individually or collectively, these actions demonstrate FWS’s current trajectory towards more species listings and greater species protection, with consequently increased restrictions for surrounding projects, large or small, on either public or private lands.  As a result, entities in various sectors should ensure they are actively involved in these administrative proceedings, fully understand the proposed changes, and plan their projects accordingly.

Background

FWS must list a species as “endangered” if it is found to be “in danger of extinction throughout all or a significant portion of its range.”  16 U.S.C. §§ 1532(6), 1533(a).   Similarly, it must list a species as “threatened” if it is “likely to become endangered within the foreseeable future throughout all or a significant portion of its range.”  Id. §§ 1532(20), 1533(a).  But neither the statute nor regulations define what constitutes a “significant portion of [a species’] range.”  As a result, for years FWS simply interpreted that phrase on a case-by-case basis, resulting in inconsistent interpretations, confusion for the agency and the regulated community, and ultimately litigation.

FWS largely had not interpreted the SPR language in the ESA as independently operative.  The real inquiry was whether a species should be listed as endangered or threatened due to its status “throughout all” of its range.  Analysis of certain portions of a species’ range informed the agency’s broader analysis of the species’ status nationwide.  The Ninth Circuit rejected this so-called “clarification” interpretation in Defenders of Wildlife v. Norton, 258 F.3d 1136 (2001), prompting FWS to reconsider its approach.

In 2011, FWS issued a draft policy to standardize its interpretation of SPR.  76 Fed. Reg. 76987 (Dec. 9, 2011).  Under the draft policy, FWS said it would consider a species threatened or endangered if it meets those respective criteria throughout either “all of its range” or only “a significant portion of its range.”  FWS took public comment on the draft and instituted it as an interim policy while it worked to develop a final policy.  Nearly three years later, FWS has issued its SPR Policy which it deems “legally binding.”

Final SPR Policy

FWS asserts that the final SPR Policy merely clarifies its interpretation of “significant portion of its range” by elaborating on the key concepts of what constitutes a species’ “range” and what portions of that range are considered “significant,” as well as explaining how application of the SPR Policy will affect the Service’s listing determinations.  Each of these “clarifications” represents a significant policy interpretation under the ESA.

Species’ “Range”

The final SPR Policy defines “range” as the general geographical area within which the species can be found at the time FWS makes a status determination for listing the species.  Thus, “range” means those areas that a species uses at some point during its life, including areas that the species does not use on a regular basis.  While historical range areas now unoccupied cannot directly be SPR to prompt a listing, the reduced range, or the causes thereof, may affect the likelihood that FWS would find remaining range portions to constitute SPR.  Id. at 37583-84.  Moreover, once a species is listed under the SPR Policy, the geographical areas effectively subject to ESA protections may grow even larger via the FWS’ proposed expansion of designated “critical habitat” for that listed species.

“Significant” Portion of Range

The SPR Policy considers a portion of a species’ range as “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion’s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future throughout all of its range.  This substantially lowers the threshold for “significant” compared to the draft policy, which had looked only to whether the species would be in danger of extinction without that portion of its range.  In essence, FWS now may list a species based on SPR not only when FWS finds the species is “endangered” in that SPR, but also when the species is “threatened” in that SPR.  Id. at 37578-79.

FWS will assess the “biological” significance of the portion of the species’ range using viability factors from conservation biology.  Id. at 37592.  FWS will assess whether, without the portion of range in question, the species would have an increased vulnerability to threats to the point that the overall species would become endangered  or threatened.  Id.  In that event, the portion of the range is significant and the analysis moves on to consider the threats to the species absent that range to determine whether the entire species should be listed as endangered or threatened.  Id.  FWS offers the following examples of scenarios in which it might find that a portion of a species’ range is “significant.”  Id. at 37583.

• If the population in the remainder of the range without the SPR might not be large enough to be resilient to environmental catastrophes or random variations in conditions;
• If the viability of the species depends on the productivity of the population in the SPR, and the population in the remainder of the range might not be able to maintain a high-enough growth rate to persist in the face of threats without that portion;
• If without the population in the SPR, the spatial structure of the entire species could be disrupted, resulting in fragmentation that could preclude individuals from moving from degraded habitat to better habitat; or
• If the population in the SPR contains important elements of genetic diversity without which the remaining population may not be genetically diverse enough to adapt to changing environmental conditions.

How the SPR Analysis Works

FWS provides examples and flow charts within its SPR Policy to illustrate how the analysis will work within the listing decision process.  The first inquiry is whether a species is endangered or threatened throughout its entire range; if so, the entire species is listed, and SPR is irrelevant.  Otherwise, if “substantial information” exists warranting further consideration, FWS examines whether there are any portions of the species’ range that are significant and whether the species is endangered or threatened within that area.  The two inquiries may proceed in either order.  If both conditions are met, again the entire species is listed as endangered or threatened, as appropriate.  If not, the species would not be listed at all.  FWS states that it will continue to list a valid Distinct Population Segment (“DPS”) of the species as a DPS rather than list the entire taxonomic species or subspecies based on SPR.  Id. at 37585-87.

Consequences of SPR Listing

Once FWS decides that a portion of a species’ range is significant and lists the species as endangered or threatened, ESA protections fully apply to all individuals of that species, wherever they are found – not just to the individuals of the species found within the SPR.  Therefore, questions of total range or SPR are relevant only to whether FWS decides to list the species.  Additionally, federal protection extends to all populations and individuals regardless of how the species’ range changes over time.  Thus, in effect, the SPR analysis simply provides another avenue for species listing.  Once listed, all other aspects of the Act, such as designation of critical habitat, promulgation of § 4(d) rules, the § 7 consultation process, the § 9 “take” prohibition, and recovery planning and implementation apply in the same manner that they would for species listed prior to the SPR Policy based on total range.  Id. at 37583.

On one hand, FWS attempts to minimize the impact of its SPR Policy, estimating that it “may list a few more species with important populations that are facing substantial threats.”  Id. at 37579.  FWS opines that the SPR Policy will tend to result in the same status determinations as would have been made without it, except for a few, limited situations.  Id. at 37609.  These effects may be understated.  The policy gives FWS greater latitude to make nationwide listing decisions based on individual portions of a species’ range, which are likely to lead to more targeted, case-by-case protections not otherwise available absent this Policy.  Indeed, FWS acknowledges that threats, population trends, and relative importance of species recovery often vary across the range of species, especially as recovery efforts progress.  Id. at 37610.  Yet, FWS may now make a sweeping listing decision based on a narrower look at a particular area.

At the same time, FWS affirmatively claims its SPR Policy will result in positive changes and improve conservation of species.  According to FWS, listing a species when it is endangered or threatened throughout a SPR before it is at risk throughout all of its range may allow FWS to protect and conserve species and ecosystems upon which they depend before large-scale decline occurs.  Id. at 37609.  FWS further believes the Policy will result in greater consistency, saving the agency time, money, and resources.  Id. at 37581.  Whether these benefits occur, as opposed to simply more listings, remains to be seen.

The SPR Policy will officially take effect on July 31, 2014, 30 days after its publication.

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The end of February saw a flurry of news regarding the status of the Polar Bear under the Endangered Species Act.  On February 20, the US Fish and Wildlife Service reissued its so-called “4(d)” rule regarding the Bear, outlining the rules “necessary and advisable” to protect it.  Nine days later, the U.S. Court of Appeals for the DC Circuit upheld FWS’s listing of the Polar Bear as a “threatened” species under the ESA.   Each development is significant in its own right; together, they offer solid guidance as to where FWS is heading on using the ESA to address climate change and how climate change is affecting the listing of potentially endangered species.

Endangered v. Threatened

The latter question was at the heart of the litigation decided by the DC Circuit.  There, the court faced the question of whether FWS correctly identified the Polar Bear as “Threatened”, rather than “Endangered”.  Under the ESA, the difference between the two is essentially whether the species is currently in danger of extinction (Endangered) or whether it is likely to become endangered in the foreseeable future (Threatened).

The Polar Bear’s Listing

The Polar Bear is heavily dependent on sea ice, and climate change is decreasing the amount of arctic sea ice.  FWS’s decision that the Bear was Threatened, rather than Endangered, was based, essentially, on the Service’s view of how quickly climate change was causing arctic sea ice to melt.  If it is happening “quickly,” FWS would list the Bear as Endangered.  If it is happening very slowly, FWS wouldn’t list the Bear at all.  FWS took the middle path, deciding that climate change is happening fast enough that those species face the threat of extinction in the foreseeable future.  Given the limitations of climate science, FWS chose 45 years as the “foreseeable” future and the Court upheld FWS’s use of this timeframe.

What the Listing Shows about FWS’s View of Climate Change’s Impact on Species

The Court upheld FWS’s listing decision, doing so in the face of challenges on both sides of the decision –  some argued that the Bear shouldn’t be listed at all and others argued that it faces an imminent risk of extinction and should be considered Endangered, not just Threatened.   The takeaways from FWS’s listing decision and the court’s refusal to strike it down are that, at least for the ESA:

• climate change is occurring
• it will have significant adverse impacts to species in the foreseeable future
• those impacts are still reversible

The 4(d) Decision

So, since FWS has determined that climate change is adversely affecting species, will it use the ESA to regulate climate change?  That question was at the heart of the other major development: FWS’s issuance of the “4(d)” rule for the Polar Bear.  At a very high level, a 4(d) rule outlines the steps FWS believes are necessary and advisable to protect a Threatened species.  These steps can include either restrictions on public action, such as limitations on development in the species’ habitat, or the allowance of otherwise prohibited activity, such as permitting certain specified, limited adverse impacts to the species.

What the Polar bear 4(d) Decision Means for Using the ESA to Regulate Climate Change

For the Polar Bear’s 4(d) rule, the main public policy question was how to address activities outside of the Bear’s range that increased the potential for climate change.  Since we know the Polar Bear needs sea ice to survive and that climate change is reducing arctic sea ice, would FWS’s 4(d) rule attempt to protect the Bear from further reductions in sea ice by addressing activities that affect the climate change? Boiled down to its core, would the 4(d) rule require greenhouse gas-emitting projects far from the Polar Bear’s range to obtain an ESA permit for those emissions?  FWS’s rule says no.

The Takeaways

The rule is consistent with FWS’s prior 4(d) rule for the Polar Bear, issued in 2008 and struck down by US District Court for the District of Columbia in 2011.  The rule is also consistent with Bush Administration guidance addressing how FWS should examine the ESA impacts of GHG emissions.  It is therefore a reliable and useful marker as to FWS’s view of the ESA.  The new 4(d) rule is more likely to be upheld than the prior one – the prior one was struck down for largely procedural reasons and for a few inadequate findings which FWS appears to have since corrected.

The takeaway here is that FWS has taken a consistent position over time on the use of the Act to regulate GHGs. The Service has used and will continue to use the Act to protect species affected by climate change, but only from actions taken against them directly or in their range – it will not use the ESA to regulate GHGs on a national or global level.

© 2013 Bracewell & Giuliani LLP

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