Services Propose Significant Reforms to Endangered Species Act Implementation
On Thursday, May 26, 2011, the Secretary of the Interior announced a joint effort between the U.S. Fish and Wildlife Service ("USFWS") and the National Oceanic and Atmospheric Administration National Marine Fisheries Service ("NMFS") (collectively, "the Agencies") to identify and implement administrative reforms to the regulatory process used to implement the Endangered Species Act ("ESA").
The action is a part of the Obama Administration's larger effort to review and improve the regulatory processes employed by all federal agencies under Executive Order 13563, Improving Regulation and Regulatory Review,1 with the ultimate goal of improving the effectiveness of the program while reducing bureaucratic waste. The Executive Order calls for, among other things, the retrospective analysis of existing regulations in order to identify those that “may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”
On February 25, 2011, the Department of the Interior ("DOI") published a request for comments and information in order to facilitate the retrospective regulatory review.2 Following the collection and review of those comments, DOI issued its Preliminary Plan for Retrospective Regulatory Review ("Preliminary Plan"), which identifies a number of prospective rules up for review over the next two years, including a number of ESA regulations. The objective is “to ensure that key operational aspects of the ESA are up-to-date, clear, and effective.”
The joint USFWS/NMFS ESA reform will focus on four issues that were identified in the Preliminary Plan:
Conservation Agreements. The Agencies intend to revise the current process for the development and approval of conservation agreements with landowners, including habitat conservation plans, safe harbor agreements and candidate conservation agreements. The Agencies seek to alter and streamline the current process, which is often lengthy, and provide greater clarity about the overall impact of undergoing such a process on the landowner’s ESA compliance.
Critical Habitat. The Agencies intend to revise the process for designating critical habitats under the ESA. Specifically, the Agencies aim to replace the written descriptions of critical habitat boundaries in Federal Register notices with map and Internet-based descriptions, and to review and update the process for designating critical habitat in order to design a more efficient, defensible and consistent practice.
Destruction or Adverse Modification. In 2004, the Ninth Circuit invalidated the current regulatory definition of “destruction or adverse modification of critical habitat” because it equated “recovery” with “survival.” Since then, the Agencies have managed the critical habitat program without a clear guideline for actions on designated lands. The Agencies plan to clarify the definition in order to provide clear and defensible guidance about what actions can and cannot be conducted in designated critical habitats.
Incidental Take Statements. The Agencies intend to clarify the content and scope of incidental take statements, which, along with biological opinions, are a component of the Section 7 formal consultation process. Incidental take statements specify the impact of an authorized taking of a listed species that is incidental to an otherwise permitted activity, and provide the reasonable and prudent measures that are necessary to minimize those impacts. The Agencies seek to allow greater flexibility in the quantification of anticipated incidental takes in order to reduce the burden of developing and implementing biological opinions without losing any of the benefits of conservation.
The Agencies’ planned revisions to the ESA's implementing regulations do not propose or require Congress to make any statutory amendments; rather, the revisions would operate within the existing statutory framework. Any regulatory changes will be promulgated pursuant to the administrative rulemaking process under the Administrative Procedure Act, and the proposed changes will be available for public review and comment. No formal proposals have yet been published in the Federal Register. Interested parties should be aware of this ongoing regulatory process and may wish to comment on any revisions that may be proposed.
1 Executive Order 13563 of January 18, 2011, Improving Regulation and Regulatory Review, 76 Fed. Reg. 3,821 (Jan. 21, 2011).
2 76 Fed. Reg. 10,526 (Feb. 25, 2011).