The U.S. Interior and Commerce departments expect to finalize some pending changes to their Endangered Species Act regulations in November, the agencies indicated in their fall unified agenda.
The Interior's Fish and Wildlife Service and the National Marine Fisheries Service, or NMFS, which is under Commerce's National Oceanic and Atmospheric Administration, in July proposed two rules streamlining their environmental review processes and regulations for listing endangered and threatened species, designating critical habitat and consulting with other agencies on related decisions. The Fish and Wildlife Service at that time also proposed a rule to extend to threatened species most of its prohibitions for activities involving endangered species. The comment period for those proposals ended in September.
Additionally, the services effectively proposed to give businesses more input and certainty over what land could be designated as critical habitat under the law.
In the Trump administration's fall unified agenda posted on the Office of Management and Budget website on Oct. 17, Interior and Commerce listed the expected date for final action on the proposed rules as November. The agendas typically do not offer many policy details but can provide a tentative time frame for actions on major agency rules and other policy initiatives.
Under the Endangered Species Act, or ESA, marine species fall under the jurisdiction of the NMFS and all other species fall under the Fish and Wildlife Service's purview.
Changes to ESA implementation have wide-reaching implications for infrastructure development, including energy. Would-be developers often try to avoid areas where species are, or are likely to be, listed because the law requires developers to mitigate any potential impacts of the project on species, which can be time-consuming and costly.
The services have had trouble over the years keeping up with the requirements of the ESA to process listing and delistings of endangered or threatened species within specific time frames. The ESA also is a frequent target of proposed legislation from lawmakers aimed at limiting the law's impact on their districts.
One of the rules also looks to clarify a policy that is related to a case — Weyerhaeuser Co. v. U.S. Fish and Wildlife Service; No. 17-71 — on which the U.S. Supreme Court heard oral arguments in early October involving the Fish and Wildlife Service's designation of critical habitat for an endangered frog. One big question in that case is whether the service may impose ESA special protections on a location to preserve a threatened or endangered species even if the area is not currently occupied by that species or a suitable habitat for it.