These include streamlining how federal agencies draft section 7 documents and expediting consultations for projects with minimal impacts on listed species. The final rule, however, does not mention “adverse modification” as a finding independent of jeopardy, even though that outcome is possible. In 2016, however, NMFS issued a climate change directive explaining that it "will consider proactive designation of unoccupied habitat...because of the function(s) it is likely to serve as climate changes." FWS can create a direct incentive by exempting a conservation practice, thus eliminating the burden of seeking an ESA permit for the activity. Most of the media coverage on the changes has focused on the most controversial elements, pronouncing them disastrous for wildlife but offering incomplete, inaccurate, or very biased support for these claims. It consists of: 1. the European Systemic Risk Board(ESRB) 2. No change from proposal No change from proposal Description of change The goal of concurrent initiation is to increase the efficiency of the consultation process. But under the final rule, the Services "may" (but are not required to) make a not-prudent finding based on any of five non-exhaustive factors. Not adopted No change from proposal may adopt "all or part of" a federal agency's initiation package or the Service's analysis for an ESA section 10 permit. Under past practice, the Services will conclude that critical habitat designation is not prudent (and thus not designate the habitat) if either of two conditions are met. Establish Services responsibilities during formal consultation Most of the changes are likely to improve conservation only marginally, but one change—creating an option for federal agencies to develop a more collaborative consultation process—could result in far better landscape-scale conservation, including project siting and avoidance of sensitive habitat. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”, “The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. Minor change Section 4, among other things, deals with adding species to or removing species from ESA protection and designating critical habitat; section 7 covers consultations with other federal agencies. These include clarifying the standards for starting section 7 consultations, describing the contents of biological opinions, and other arcane nuances of the consultation process that are not noteworthy to the general public. In August 2019, the Trump administration released its long-awaited changes to the Endangered Species Act regulations. Want to learn more about two of the most important changes—the foreseeable future and 4(d) rules? • Fourth, the final rule and its preamble raises the question of whether the reasonable certainty standard applies not only during formal consultation (which it always has) but also to informal consultation and the "no effect" / "may affect" determination. On top of the existing standard that the designated unoccupied habitat is essential to the conservation of the species, it must also, at the time of designation, contain one or more of the physical or biological features essential to the species’ conservation. 1. This story map was created with the Story Map Cascade application in ArcGIS Online. Minor change This same limitation, however, is already described on page 4-53 of the Section 7 Handbook. Positive Changes that depend mostly on agency implementation. Under past practice, the Services will conclude that critical habitat designation is not prudent (and thus not designate the habitat) if either of two conditions are met. Will the proportion of these findings increase? This scenario could arise when certain ongoing effects are considered as part of the baseline rather than the effects of the action. The final rule explains that a federal agency's request for formal consultation may include "a number of similar individual actions within a given geographical area, a programmatic consultation, or a segment of a comprehensive plan." In addressing these issues, the agency has tremendous discretion. Clarify Services responsibilities during formal consultation However, there is at least one major difference: under past practice, the but for and reasonable certainty tests applied only to indirect effects and cumulative effects; but under the new definition, both tests apply to all effects of a proposed action, including to what was previously called direct effects and interrelated/interdependent actions. The final rule adopts a "likely" standard to determine the extent of the foreseeable future. The "foreseeable future" is used to evaluate whether to list a species as "threatened." Negligible Negligible Although the final rule makes minor changes to the proposed rule, it will result in significant changes to past practice. No change from proposal Clarify contents of biological opinions generally Negative Through August 2019, about 50% of FWS threatened animal species had received a special 4(d) rule that reduces ESA protections compared to the default 4(d) rule. Establish factors for making discretionary not-prudent determination for critical habitat 7 consult. The need to protect habitat to help species deal with climate change is undisputed among conservation scientists. The Services sought comment on whether to revise the current definition of this phrase and declined to do so. How the withdrawals will affect conservation is a complex question: • Third, the final rule describes three situations that would not meet the reasonable certainty test, such as when the consequences of the federal action are very remote in time or location. But where the separation could make a difference is that effects considered as part of the environmental baseline do not require "reasonable and prudent measures" to minimize take because those effects are not part of the proposed action. 2019, c. 15, Sched. We strive to offer balanced and accurate analysis of the entire rulemaking, which is sorely missing from the current public dialogue. The outcome would improve conservation and save agency time and resources. This change will likely reduce the time between a Service recommendation to delist a species and the agency's issuance of a rule to carry out the delisting. The final rule clarifies that reinitiation on informal consultation is also possible by removing “formal” from the current regulation. Create efficiency in drafting initiation package The Services sought comment on whether to revise the current definition of this phrase and declined to do so. This is consistent with past practice and reduces Services workload without compromising on conservation. The final rule adopts a 60-day deadline for the Service to concur or not concur on a federal action agency's request for concurrence during informal consultation. You may first want to familiarize yourself with the section 7 process. Minor change And there is a fifth catch-all factor that broadly allows the Services to conclude that critical habitat is not prudent based on the best available data. Not adopted The final rule might limit the scope of those effects/actions during formal consultation, especially when combined with the new definition of reasonable certainty. As a result, conservationists will find it harder to argue that the Service should have found jeopardy for a particular federal action. The table below shows the status of the 37 proposals and ideas. The Services claim that all of these changes clarify rather than change existing practice. 7 consult. Once the regulations become lawful, they will ensure that, from 16 January 2019, existing claimants entitled to an award of an existing benefit that includes the SDP are prevented from naturally migrating to UC following a change of circumstances. Clarify use of programmatic consultations Critical habitat While this administration recognizes the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”. For these reasons, we rank this change as minor compared to past practice. Clarifies or codifies past practice In addition to the final joint regulations, the U.S. 7 consult. These changes, first proposed in July 2018, are expected to become effective in mid-September, 30 days following publication in … The new definition of foreseeable future uses a "likely" standard, meaning that predictions about the future must be "more likely than not," suggesting a 51%-49% threshold. As part of a Service's biological opinion, the agency, The definition of programmatic action is consistent with the Services’. As with the proposed rule, the final rule simplifies the definition of “effects of the action" by eliminating the longstanding concepts of interdependent and interrelated activities, and indirect and direct effects. FWS withdraws its general 4(d) rules for animals and plants, which it adopted in 1975 and 1977 respectively. Clarifies or codifies past practice For the remaining 40% of species, NMFS has concluded that section 9 protections are not needed at this time. Changes that retain past practices. Create expedited consultation process No change from proposal The final rule adopts a "likely" standard to determine the extent of the foreseeable future. Our overall view is that the regulations will have mixed results for conservation. This is a new option to streamline certain consultations, especially those with limited harmful effects on species. On July 25, 2018, the Service published proposed regulation revisions in the Federal Register (83 FR 35174) regarding section 4(d) of the Act and its implementing regulations in title 50 of the Code of Federal Regulations at 50 CFR part 17 setting forth the prohibitions for species listed as threatened on the Federal Lists of Endangered and Threatened Wildlife and Plants (lists). The agencies explain that "likely" means "more likely than not," suggesting a 51% to 49% threshold. All five changes in this category would, in fact, change how the ESA is administered, though some of those changes will likely only be minor. The 4(d) rules that exempt catch-and-release fishing of many threatened fish species enable recreational fishing in rivers, streams, and lakes that might otherwise be closed to fishing (because inadvertently catching a threatened fish would be unauthorized "take"). On August 12, 2019, the U.S. The change impacts only future threatened species’ listings or reclassifications from endangered to threatened status and does not apply to species already listed as threatened. The Services, however, have had the legal authority to do this for years (see Friends of Blackwater v. Salazar) and has used this authority in a handful of delisting decisions. The final rule adopts the new position that the "environmental baseline" in a section 7 consultation includes existing or ongoing activities that are not within a federal agency's discretion to modify. Sec. Major sections of the Services'. Negligible Create 60-day deadline for concurrence in informal consultation The background to the final rule explains that "the Services decline to limit the 'effects of the action' to only those effects or activities over which the Federal agency exerts legal authority or control." Because section 9 offers very limited protections to plants, we will monitor whether FWS regularly extends even those limited protections in the future. The current Section 7 Handbook already describes a process for both Services to coordinate on consultations for species under joint jurisdiction (e.g., sea turtles). Not adopted Minor change from proposal This approach could incentivize federal agencies to minimize the harmful effects of their projects as much as possible before initiating consultation, in order to take advantage of the expedited process. Fish and Wildlife Service and National Marine Fisheries Service under section 7 of the Act. No change from proposal Long-sought reforms to Endangered Species Act (ESA) implementation have arrived. No change from proposal Note that activities that are part of the environmental baseline do not require reasonable and prudent measures, whereas activities that are part of the action do. Not adopted This new position should not change the overall jeopardy/adverse modification analysis, which requires the Services to consider the effects of ongoing activities, regardless of whether they are part of the baseline or the effect of the action under consultation. The final rule could restrict critical habitat designations by narrowing the definition of "physical and biological features" in two minor ways. Although the final rule makes minor changes to the proposed rule, it will result in significant changes to past practice. Withdraw default 4(d) rules for threatened species, Remove prohibition on referencing economic impacts in listing decisions, Codify new definition of “foreseeable future”, Modify standard for delisting species and require delisting if warranted in status review, Adopt identical standards for listing and delisting, Establish factors for making discretionary not-prudent determination for critical habitat, Modify sequence and standard for designating unoccupied critical habitat, Modify definition of "physical and biological features" for critical habitat, Modify definition of "geographical area occupied by the species", Redefine “destruction or adverse modification.”, Reject “tipping point” and "baseline" concepts in jeopardy analysis, Define “reasonably certain to occur” and modify when it applies to "effects of the action", Clarify that “reasonably certain to occur” does not apply to proposed agency actions, Simplify definition of "effects of the action", Separate "environmental baseline" from "effects of the action", Define "environmental baseline" to include ongoing activities, Create 60-day deadline for concurrence in informal consultation, Eliminate requirement to reinitiate consultation on land use plans, Establish that section 7 conservation measures do not require additional binding plans, Create optional collaborative consultation process, Create efficiency in drafting initiation package, Allow concurrent initiation of consultation on related actions, Allow biological opinions to adopt other documents, Clarify use of programmatic consultations, Clarify requirements to initiate formal consultation, Clarify biological assessment as prerequisite to formal consultation, Clarify Services responsibilities during formal consultation, Clarify that Services will consider beneficial actions in formal consultation, Clarify contents of biological opinions generally, Clarify contents of jeopardy biological opinions, Clarify that reinitiation of informal consultation is possible, Establish Services responsibilities during formal consultation, Establish no consultation requirement for “global processes” such as many greenhouse gas emitting activities, Limit scope of consultation to actions within jurisdiction of agency, Combine consultations affecting species under joint jurisdiction. One of them has been updated to address an inadvertent omission in the past regulations: reinitiation is also required if a federal action is modified in a way that was not considered in a "written concurrence" during informal consultation. Critical habitat And there is a fifth catch-all factor that broadly allows the Services to conclude that critical habitat is not prudent based on the best available data. The current Section 7 Handbook already describes a process for both Services to coordinate on consultations for species under joint jurisdiction (e.g., sea turtles). The remaining 33 changes fell into four categories. From now on, a newly-listed threatened species will get section 9 protections only if FWS issues a 4(d) rule specifically for that species. Not adopted Critical habitat Eliminate requirement to reinitiate consultation on land use plans This is noteworthy because the Trump administration has, by omission, preserved the potential requirement for section 7 to cover greenhouse gas emitting activities. As part of the withdrawals, FWS explains that "the Secretary will still be required to make a decision about what regulations to put in place" for every newly-listed threatened species. Depends on implementation Moderate or major change Critical habitat For federal agencies to use the new optional collaborative consultation option effectively, the Services should issue supplemental guidance on how to pursue that option. Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS)--interpret and apply the revised regulations. But the changes also codify several problematic and longstanding practices within the wildlife agencies. Effect on conservation The Services claim that all of these changes clarify rather than change existing practice. Positive An endangered red wolf. This is noteworthy because the Trump administration has, by omission, preserved the potential requirement for section 7 to cover greenhouse gas emitting activities. Modify definition of "geographical area occupied by the species" As with the proposed rule, the final rule simplifies the definition of “effects of the action" by eliminating the longstanding concepts of interdependent and interrelated activities, and indirect and direct effects. We found five changes that should enhance the efficiency of the section 7 consultation process without compromising on conservation. Clarifies or codifies past practice • On the whole, the final regulation will probably reduce ambiguities about how to interpret the reasonable certainty standard, but may well limit the types of harmful effects that must be considered during a consultation. By contrast, the. Establish no consultation requirement for “global processes” such as many greenhouse gas emitting activities The new definition of foreseeable future uses a "likely" standard, meaning that predictions about the future must be "more likely than not," suggesting a 51%-49% threshold. 7 consult. The same was true for similar species, suggesting that many factors--explicit and implicit, objective and subjective--go into a foreseeable future analysis. The final rule could restrict critical habitat designations by narrowing the definition of "physical and biological features" in two minor ways. Laws for minimum wage, overtime, holidays, job-protected leaves, vacations, hours of work, earnings, youth workers and termination. Changes that undermine conservation. For example, FWS has withdrawn its 4(d) regulations that automatically extended to threatened species the protections afforded to endangered species. Negligible No change from proposal Alberta employment standards rules. No change from proposal Reject “tipping point” and "baseline" concepts in jeopardy analysis • A more meaningful baseline for comparison is the contents of the rules, especially what types of activities the rules exempt. 208/Monday, October 27, 2008/Rules and Regulations 63835 qualify assistance animals to the phrasing used in 24 CFR part 960, subpart G. This change does not alter the substance of the part 5 requirements, but is designed to bring greater uniformity and clarity to HUD’s pet ownership regulations. Put differently, the definition sets the standard (reasonable certainty) that establishes which effects of a federal action must be considered during consultation. Sec. Which regulatory proposals and ideas made it into the final regulations? For example, FWS has withdrawn its 4(d) regulations that automatically extended to threatened species the protections afforded to endangered species. 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