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Trump Administration Acts to Modernize Broken ESA Processes

Adding or removing species from the Act’s protections and designating critical habitat.


Today, the U.S. Department of the Interior, the U.S. Fish and Wildlife Service and the National Oceanic Atmospheric Administration (NOAA) Fisheries announced three final rules that will modernize Endangered Species Act (ESA) regulatory requirements in order to improve collaboration, efficiency, and effectiveness.

The ESA is more than 45-years-old and has a 3% recovery rate. It is far past time that we bring the ESA into the 21st Century. Congress last reauthorized the ESA in 1988.

Last Congress, the Congressional Western Caucus introduced a bipartisan ESA modernization package comprised of nine bills that was endorsed by 170+ stakeholders throughout the country. Click for Western Caucus Report Click here for USFWS Summary

Courtesy of the Department of the Interior:


Rescinding the Blanket 4(d) Rule

● The ESA provides protections that distinguish between endangered species and threatened species. Full protections are automatically applied to endangered species, but the Services can tailor protections for threatened species by means of species-specific “4(d) rules.” These protections will specifically address the specific threats to the species. ● FWS has long had a “blanket 4(d)” rule that automatically applies all the ESA’s protections in cases where FWS has not developed a species-specific 4(d) rule. To be more consistent with the ESA and its intended system of tiered protection, FWS is rescinding this blanket 4(d) rule. ● This reform is not retroactive and will affect only future listings and down listing from endangered status to threatened status.

Definition of “Foreseeable Future”

● This is the approach we have been using for about a decade and is not a change from our now long-established practice. However, by codifying our approach in regulation, it will make us more transparent to everyone. ● We are clarifying that the foreseeable future extends only so far as we can reasonably determine that both future threats and the species’ responses to those threats are likely.

Clarifying that the Standard for Listing and Delisting are the Same

● The ESA is clear in its requirement that when a species is in danger of extinction, either now or in the foreseeable future, it should receive the Act’s protection. Likewise, when the ESA has done its job and the species is no longer in danger of extinction, it should be delisted. To provide consistency, the standard under the law for listing and delisting must be the same, i.e., whether the species meets the ESA’s definitions of an endangered species or a threatened species.

● When some of our delisting decisions have been challenged, courts have sometimes appeared to set a higher bar for removing a species from the list than for adding a species to the list (i.e., gray wolves and bald eagles). ● Keeping species on the list when they no longer face the threat of extinction takes valuable resources away from species that still need ongoing protection under the ESA and discourages the kind of state and private partnerships essential to conserve plants and wildlife that genuinely need our help.

Occupied versus Unoccupied Critical Habitat

● Critical habitat plays a valuable but often misunderstood role in species’ recovery. Critical habitat designations describe the areas that are important for recovery…We are providing clarity in the final rules by explaining that we designate unoccupied critical habitat only when occupied areas are inadequate to ensure the conservation and recovery of the species. In addition, for an unoccupied area to be considered essential, we must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more physical or biological features essential to the conservation of the species.


Federal Consultation

● Interagency consultations are a cornerstone of the ESA that help ensure federal actions are not likely to jeopardize the continued existence of our most at-risk wildlife. ● This final rule affirms our authority to use such streamlining methods that we have developed through experience since we last undertook a revision of our consultation regulations. ● Streamlining the consultation process helps with timely decision-making on critical infrastructure and other projects important for job creation and economic development without compromising the conservation purposes of the section 7 consultation process.

Minimizing/Offsetting Adverse Effects

● As part of their actions, federal agencies often include measures to avoid, minimize or offset adverse effects to ESA-listed species or critical habitat. ● Courts have sometimes appeared to set a higher standard for certainty of implementing mitigation actions than for implementing the development activity itself. Our rule clarifies that these mitigation measures should be held to the same standard of certainty as the associated development action.

Clarifying the Information Needed for Consultations

● A lack of clarity in what information we need to initiate formal consultations with federal agencies has led to frequent confusion and a loss of valuable time while we work with the agencies to compile the necessary information. ● By clarifying what we need to initiate consultation, we will shorten the time it takes for consultations and ensure taxpayer dollars are spent wisely and efficiently.

Definition of “Destruction or Adverse Modification”

● We are removing confusing language from the existing definition without changing the substance of the standard.

Definition of “Effects of the Action”

● Clarifying the definition of “effects of the action” will reduce confusion about terms in the existing definition and help decrease the resources needed for federal agencies and applicants to describe the effects of their actions to listed species or critical habitat when engaged in section 7 consultation.

Definition of “Environmental Baseline”

● Establishing “environmental baseline” as its own definition makes it clear that establishing the baseline for a consultation is a separate consideration from describing the effects of the action. ● Clarifying the environmental baseline with respect to ongoing agency activities or existing agency facilities addresses issues that have caused confusion in the past, particularly with regard to impacts from ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modify.

Programmatic Consultations

● Programmatic consultations are useful in evaluating the effects of multiple related actions within a particular geographic area and in assessing federal agency programs that establish standards, guidelines or governing criteria for future actions. Increased use of programmatic consultations will streamline the consultation process, increase predictability and consistency for federal agencies and applicants, and improve conservation outcomes.

Deadline for Informal Consultation

● Establishing a deadline for informal consultation will help ensure informal consultations are completed in a timely fashion and provide regulatory certainty to federal agencies and applicants.

Re-initiation of Consultation

● Amending the regulations with respect to re-initiation of consultation on land or resource management plans of the BLM or Forest Service aligns them with existing practice and congressional action.

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