Volume 26, Number 7 ● August 30, 2019
Endangered Species Act Changes
On August 12, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service released revisions to the regulations for implementing the Endangered Species Act. The U.S. Department of the Interior stated in its press release that the changes are intended to bring clarity to the standards for listing and reclassifying species, roll back “blanket” protection measures for threatened species, and improve upon the interagency consultation process. The changes are addressed in three Final Rules that culminate a process the Department of the Interior began on July 25, 2018 when they published the proposed changes in the Federal Register.
These changes will be effective September 26, 2019, 30 days after they were published in the Federal Register.
The final rule changes the process for determining critical habitat, limiting where it can be proposed (i.e., the critical habitat must be currently occupied by the species, not merely potential habitat for that species). In Virginia, critical habitat has only been declared in the far southwestern portion of the state, and is associated with several aquatic species. In Maryland, it has only been declared in the northeastern portion of the state, near Havre de Grace. Final and proposed critical habitat for the entire United States can be viewed here. Based on the limited critical habitat declarations (both final and proposed) in the area, we do not anticipate this change to have any impact to ongoing or proposed projects in the Virginia-Maryland region.
Prohibitions to Threatened Wildlife and Plants
The revisions include rescinding the “blanket rule” for Section 4(d) of the Endangered Species Act. Under the “blanket rule,” threatened species – with some exceptions - were provided the same protection as endangered species. Moving forward, any new species listed as threatened will need to have a final 4(d) rule published concurrent with their listing, which will detail protections for that species. Note that the August 2019 changes regarding threatened species do not apply to any species already listed as threatened. We will help our clients address any such listings as they occur.
Changes in this rule aim for a more efficient and consistent process during Section 7 consultation with agencies. The final rule includes revised definitions, clarifies the information needed for agency consultation, and provides a timeline for informal consultations.
To discuss the implications of these changes for your project, please contact Ben Rosner or Mark Headly in our Gainesville, Virginia office, Mike Klebasko in our Millersville, Maryland office, or Bob Kerr in our Virginia Beach, Virginia office.