Rebecca Barho Quoted on ESA Rule Changes

08.13.2019
Law360

Rebecca Barho, a Partner in the Environment & Land Use Group, was quoted in the Law360 article, “4 Takeaways From The Trump Administration’s ESA Changes.”  The article provides an overview of the impact of the Trump Administration’s revisions to rules governing Endangered Species Act (ESA) implementation—which the Administration hopes will clarify and streamline how the ESA is administered.  Despite reports that the new rules are a boon for industry, many of the rules simply adopt long-standing practice by the agencies charged with carrying out the ESA. 

In one of the rule changes, the U.S. Fish and Wildlife Service (FWS) removed an automatic “blanket” rule that automatically prohibited “take” of most species of wildlife listed as threatened.  Previously, the FWS used a “blanket rule” that gave threatened species the same protections given to endangered species.  Under the new rules, when the FWS lists a species as threatened, the agency will be required to issue a species-specific 4(d) rule that tailors restrictions necessary and appropriate to the given species.  Unlike the FWS, the National Marine Fisheries Service (NMFS) has long required species-specific 4(d) rules for threatened species, and does not use a blanket rule.  Commenting on this change, Rebecca said that the “change brings the [FWS’s] practice more in line with congressional intent to reserve more stringent protections for endangered species.”  She added that “complying with the take prohibitions can be very burdensome and private entities [and] governmental entities can be subject to lawsuits where the regulations are not clear.” 

Another change to the rules impacts how FWS and the NMFS Service are to conduct required analyses during “consultation” with federal agencies.  Rebecca stated that “there's an important change in the FWS and NMFS' new Section 7 consultation rule regarding how the Services determine the environmental ‘baseline’ for impacts to a species.”  The new rules require that impacts from ongoing agency activities or facilities that are not within the agency’s discretion to modify are part of the species’ baseline.  Rebecca noted that in such a circumstance, “a new activity's impact will be assessed on its own, independent of what's already going on in the area.”

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