Bugs, Bunnies, and the Blanket Rule: A Brief Overview of Key Endangered Species Act Rule Revisions

By Lauren Thomas

The Endangered Species Act (“ESA”), the United States’ leading federal legislation for the protection of endangered and threatened species, underwent three major rule revisions over the past few months. These revisions stand to alter the way in which species are listed, delisted, and reclassified, and how affected entities can advocate for or against certain federal decisions on species classification. This article explores these three critical ESA changes: (i) the repeal of the so-called “blanket rule,”(ii) the added provisions for species-specific rules, and (iii) the removal of the “economic impact” language.

The ESA affects federal, state, and local governments, as well as private parties, such as individual property owners and developers. In Texas, there are over 100 species classified as threatened or endangered under the ESA, as administered primarily by the U.S. Fish & Wildlife Service (“FWS”). See Federally Listed, State Listed, and Candidate Species in Texas Datasheet.

The first rule revision is the repeal of the “blanket rule.” Under the ESA, when a species is listed as endangered, parties are prohibited from taking certain actions, such as causing harm, killing, or stressing species in ways that might affect them or their habitat. Historically, however, the FWS automatically extended the prohibitions available to species listed as “endangered” to species that were classified as “threatened,”but the National Marine Fisheries Service (“NMFS”) would not. Because the FWS has jurisdiction over terrestrial and freshwater organisms, and the NMFS has jurisdiction over marine organisms, there are differences between the levels of regulatory protection available to the species at issue. 16 U.S.C.A. 1533(d). Now, because the FWS will no longer apply a blanket rule to threatened species, both the FWS and the NMFS will implement the prohibitions in the same way. However, this revision will only apply to species that are listed as threatened after September 26, 2019. Thus, species designated as “threatened” before September 26, 2019 will retain their blanket rule protections.

With the repeal of the blanket rule, the second major rule revision becomes significant; instead of the blanket rule, the FWS and NMFS may opt to implement species-specific rules. Species-specific rules, also known as § 4(d) rules, are special regulatory rules that FWS and NMFS are allowed to implement for endangered species. If the FWS and NMFS promulgate a species-specific rule, then the species-specific rule controls. 16 U.S.C.A. 1536(a); Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. at 44,760. Notably, this revision impacts future threatened species listings and downlistings of species from endangered to threatened status.

Species-specific rules are not new. As of May 2016, 49% of threatened animal species listed by FWS have species-specific rules, and 61% of threatened animal species listed by NMFS have species-specific rules. Defenders of Wildlife ESA Policy White Paper Series, Section 4(D) Rules: The Peril and the Promise, 5 (Jan. 2019). Notable species with species-pecific rules include the polar bear, the Preble mouse, and the San Marcos salamander. To create a species-specific rule, the FWS and NMFS must go through the rulemaking notice and comment process pursuant to the federal Administrative Procedure Act. 15 U.S.C. § 553. Species-specific rules have not followed a consistent pattern or framework, which is why the latest agency comments to the 2019 revisions states that guidance is forthcoming with regard to species-specific rules for threatened species. See Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg. at 44,757. A prudent stakeholder would be prepared to comment on upcoming species-specific rule related proposed regulations.

The third major revision is the removal of the “economic impact” language. Before the current rule revisions, the ESA required the FWS and NMFS (the “Services”) to make decisions regarding whether a species will be listed or reclassified based solely on the best available scientific and commercial information and “without reference to possible economic or other impacts of such determination.” 50 C.F.R. § 424.11(b) (current through September 25, 2019). Now, economic impact information regarding the proposed action may be presented to the Services when the Services are making listing decisions, although the information is not supposed to influence the Services’ listing determination.

In addition to the three significant changes discussed above, the recent ESA revisions address an array of other topics. The implications for political subdivisions and businesses alike may be substantial, particularly with regard to various water and other infrastructure projects that impact real property in areas where certain species are present, or where such species’ habitat is located. Although the rules listed above will be subject to ongoing litigation and regulatory follow up, planning ahead can help position entities to address ESA issues directly.

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Lauren C. Thomas is an Associate in the Firm’s Water Practice Group. If you would like additional information about this article or other matters, please contact Lauren at 512.322.5856 or lthomas@lglawfirm.com.