Blog By: Kaitlyn Willis

Pursuant to the goals of the Endangered Species Act (ESA, 16 U.S.C. § 1531 et seq.), the Fish and Wildlife Service (FWS) has introduced a promising rule which, if finalized, would reinforce voluntary conservation efforts by refining incidental take permit requirements and survival permit requirements.[i]

The purpose of the Endangered Species Act (ESA, 16 U.S.C. 1531 et seq.) is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions.”[ii] The regulations fulfilling the ESA are found in title 50 of the Code of Federal Regulations (CFR).[iii] Section 10 of the ESA regulates the issuance of incidental take permits that is “incidental to, but not the purpose of, carrying out otherwise lawful activities, provided the application meets the statutory issuance criteria.”[iv] The ESA defines “take” as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species.”[v] Harm includes significant habitat modification which kills or injures a listed species through “impairment of essential behavior,” such as nesting or reproduction.[vi]

From 2019 to 2020, the Trump administration — alongside FWS and the National Marine Fisheries Service (NMFS) — finalized five novel regulations for endangered species.[vii] The 2019 rules allowed agencies to consider economic factors for listing species as endangered or threatened as well as designating critical habitats, recanted some protections given to threatened species, and altered when other federal agencies were obliged to refer to FWS and NMFS on ESA matters.[viii] The 2020 rules redefined “habitat” to only include areas that were home to listed species and changed how FWS designated and excluded critical habitat.[ix]

In consonance with his Executive Order on Public Health and the Environment, President Biden instructed FWS and NMFS to review the Trump-era rules in January 2021.[x] Just a few months later, in June 2021, the agencies announced their decision to begin the process of rescinding a host of rules, including the five Trump-era ESA rules.[xi] The 2020 ESA rules were officially rescinded in June 2022, restoring the ESA’s pre-Trump definition of “habitat” for critical habitat designation.[xii] In July 2022, the 2019 rules were vacated by the U.S. District Court for the Northern District of California in Center for Biological Diversity v. Haaland, et. al. but the court made no determination as to whether or not the rules were lawful.[xiii] In November 2022, the U.S. Court of Appeals for the Ninth Circuit stayed the District Court’s order, concluding that there was clear error in the decision to vacate the 2019 rules without consideration of legality.[xiv] FWS and NMFS disclosed that prospective revisions to the 2019 Rules would be completed on or before May 2023, and that final revisions would be complete by May 2024.[xv] Therefore, the 2019 rules are still in place pending agency action.[xvi]

Recently, in February 2023, FWS proposed a new rule under Section 10 of the ESA that would apply to all future permit applications.[xvii] The rule would combine Candidate Conservation Agreements and Safe Harbor Agreements into one provision — the Conservation Benefits Agreement — and would allow FWS to issue agreements and permits for non-listed species, even in circumstances where no listed species are present.[xviii] The rule would also require applications for incidental take permits to include a Habitat Conservation Plan (HCP), consisting of measurable biological goals, anticipated take, conservation measures, monitoring measures, and an adaptive management plan.[xix]

The purpose of the proposed rule is to reinforce voluntary conservation efforts and increased participation in the permitting process.[xx] FWS theorizes that the proposed rule will reduce costs and time associated with the permitting process as well as encourage individuals and companies to engage in conservation.[xxi] Comments on the proposed rule closed on April 10, 2023.[xxii]

Consistent with the purpose of the ESA, the proposed rule under Section 10 of the ESA would reinforce protection for threatened and endangered species through appropriate process while also mitigating the financial and administrative burden on those seeking permits.[xxiii] In light of Haaland and the resurgence of the 2019 Trump-era rules, strengthening the fifty-year-old ESA is crucial for executing the intended purpose of the ESA and voluntary conservation.[xxiv] Therefore, the proposed rule should be finalized.

[i] Endangered Species Act Regulations, Harv. Env’t & Energy L. Program, https://eelp.law.harvard.edu/2018/07/endangered-species-act-regulations/ [https://perma.cc/CA3M-7C49] (last visited Apr. 12, 2023).

[ii] 16 U.S.C. § 1531 et seq. (1973).

[iii] 50 C.F.R. § 17 (2023).

[iv] 16 U.S.C. § 1531 et seq. (1973).

[v] Id.

[vi] Id.

[vii] Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45020 (Aug. 27, 2019) (amending 50 C.F.R. § 424).

[viii] Id.

[ix] Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 85 Fed. Reg. 81411 (Dec. 16, 2020) (amending 50 C.F.R. § 424).

[x] Endangered Species Act Regulations, supra note i.

[xi] Id.

[xii] Id.

[xiii] Samantha Savoni, Court Vacates Trump-Era ESA Regulations, Nossaman Endangered Species L. & Pol’y (Sept. 6, 2022), https://www.endangeredspecieslawandpolicy.com/court-vacates-trump-era-esa-regulations [https://perma.cc/4HEF-F3HK].

[xiv] Rebecca Hays Barho, 9th Circuit Puts ESA Rules Vacatur on Hold, Nossaman Endangered Species L. & Pol’y (Sept. 21, 2022), https://www.endangeredspecieslawandpolicy.com/9th-circuit-puts-esa-rules-vacatur-on-hold [https://perma.cc/KE5F-NQXE].

[xv] Id.

[xvi] Rebecca Hays Barho, Court Sends Endangered Species Act Regulations Back to the Agencies, Nossaman Endangered Species L. & Pol’y (Nov. 17, 2022), https://www.endangeredspecieslawandpolicy.com/court-sends-endangered-species-act-regulations-back-to-the-agencies [https://perma.cc/Z4A4-FKRW].

[xvii] Endangered and Threatened Wildlife and Plants; Enhancement of Survival and Incidental Take Permits, 88 Fed. Reg. 8380 (Feb. 9, 2023) (amending 50 C.F.R. §§ 13, 17).

[xviii] Morgan Gerard, Fish and Wildlife Service Proposes New Section 10 Regulations Under the Endangered Species Act, Troutman Pepper Env’t L. & Pol’y Monitor (Feb. 24, 2023), https://www.environmentallawandpolicy.com/2023/02/fish-and-wildlife-service-proposes-new-section-10-regulations-under-the-endangered-species-act/#:~:text=Section%2010%20of%20the%20ESA,to%20an%20otherwise%20lawful%20activity [https://perma.cc/E27G-GMJA].

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Interior Department Takes Action to Strengthen Endangered Species Act, U.S. Dep’t of the Interior (Feb. 8, 2023), https://www.doi.gov/pressreleases/interior-department-takes-action-strengthen-endangered-species-act [https://perma.cc/YU4V-59WD].

[xxiv] Proposed Regulations Help Kick Off 50th Anniversary Celebration of Landmark Conservation Law, U.S. Fish & Wildlife Serv. (Feb. 8, 2023), https://www.fws.gov/press-release/2023-02/interior-department-takes-action-strengthen-endangered-species-act [https://perma.cc/7KLX-M6YW].