Key Points

• U.S. Fish & Wildlife Service proposes to reinstate the “blanket rules” option for newly listed threatened species, which affords threatened species the same protections as endangered species.
• Governor Newsom recently signed SB-147, which allows the California Department of Fish & Wildlife to authorize under the California Endangered Species Act the “take” of fully protected species for eligible infrastructure projects. The bill could fast-track major infrastructure construction throughout California.

U.S. Fish & Wildlife Service’s Proposed Rule

On June 22, 2023, the U.S. Fish and Wildlife Service proposed to reinstate the “blanket rules” option for protecting newly listed threatened species under section 4(d) of the federal Endangered Species Act. If finalized, this rule would grant newly listed threatened species the same protections afforded to listed endangered species.

Section 9 of the Endangered Species Act lists prohibitions for endangered species, but does not explicitly apply these same prohibitions to threatened species. Instead, section 4(d) of the Endangered Species Act requires the Secretary of the Interior to issue regulations necessary to provide for the conservation of threatened species. Historically, the U.S. Fish & Wildlife Service issued protective regulations that applied generally to all threatened species, known as the “blanket rules.” The blanket rules extended all prohibitions applicable to endangered species under section 9 of the Endangered Species Act, as well as additional exceptions to the prohibitions, unless the U.S. Fish & Wildlife Service issued an alternative species-specific rule extending specific protections to a particular species.

Under the Trump Administration, the U.S. Fish & Wildlife Service issued a rule ending the blanket rules option for newly listed threatened species. Under that rule, applying protections to newly listed threatened species required a species-specific rule.

The U.S. Fish & Wildlife Service is now reconsidering the Trump Administration’s rule, and proposes to reinstate the blanket rules. The U.S. Fish & Wildlife Service finds that the blanket rules furthers the Endangered Species Act and can prevent species extinction. For newly listed species, the Service explains, it often lacks a complete understanding of the causes of a species’ decline. Taking a precautionary approach to applying protections, according to the Service, would “proactively address potentially unknown threats.”

The proposed rule also would make two other changes. First, it would add federally recognized Tribes to those authorized to “aid, salvage, or dispose of” threatened species. Second, it would update the endangered and threatened plant regulations to mirror the 1988 statutory amendment, which made it unlawful to maliciously destroy an endangered plant on an area under Federal jurisdiction, or to destroy an endangered plant on an area not under Federal jurisdiction in knowing violation of the law or in the course of criminal trespass.

California SB-147

On June 29, 2023, Governor Newsom signed into law a package of bills that streamline large infrastructure projects and relax wildlife species protection. The bills are urgency statutes, which means they are effective upon signature.

The bill package includes SB-147, which, until December 31, 2033, conditionally authorizes the California Department of Fish and Wildlife to permit under the California Endangered Species Act the “take” of a “fully protected” species for specified infrastructure projects. The conditions for authorizing the take include, among other things, that take of a species is avoided, minimized, fully mitigated; that species are conserved; and that the project will not result in the species’ extinction. Eligible infrastructure projects include the maintenance, repair, and improvement of both the State Water Project and critical regional or local water agency infrastructure; certain transportation projects; and wind and solar photovoltaic projects. The bill would also remove the American peregrine falcon, the brown pelican, and the thicktail chub from the list of fully protected species.

In the last ten years, California has authorized the take of fully protected species only in seven instances. Unlike the federal Endangered Species Act, which allows wildlife agencies to grant permission to take or harm species, fully protected species normally cannot be taken (i.e., hunt, kill, pursue, catch, capture) under any circumstance except for scientific research, which must follow an approved Natural Community Conservation Plan. SB-147 therefore departs significantly from the status quo.

The bill would also require the California Department of Fish & Wildlife to develop a plan over the next year to assess the population status of each fully protected species. And over the next two years, the Department will prepare and report to the Legislature on how it has implemented these permits.

Federal and state laws protecting endangered and threatened species can be a significant consideration for public and private projects. So we recommend that project proponents stay apprised as these laws change. And should you have any questions or concerns about how these laws affect you, please contact our Environmental Law attorneys.