New Endangered Species Act rules could change Alaska project reviews

Federal wildlife agencies have finalized Endangered Species Act rule changes that could affect future reviews of Alaska mines, roads, ports, timber projects, hydropower work and oil and gas development.

The rules do not approve or reject any specific Alaska project. Their effect is likely to show up later, in agency guidance, critical-habitat decisions, consultation disputes and litigation.

The U.S. Fish and Wildlife Service published two final rules July 21. Both take effect Aug. 20.

One removes the agency's “blanket rule” option for newly listed threatened species. Under the old approach, threatened species could receive broad default protections unless the agency wrote a species-specific rule. The new rule pushes the agency toward species-specific protections under Section 4(d) of the Endangered Species Act.

The second rule revises how the agency decides whether to exclude areas from critical-habitat designations. The agency must consider economic impacts, national-security impacts and other relevant impacts. It then decides whether the benefits of excluding an area outweigh the benefits of designating it as critical habitat.

A separate final rule, published July 14 by the Fish and Wildlife Service and the National Marine Fisheries Service, rescinds the regulatory definition of “harm” under the Endangered Species Act. That rule takes effect Sept. 14. The agencies said the change removes the definition from federal regulations in 50 CFR parts 17 and 222.

For Alaska, the practical question is how the changes will land on species and projects already tied to federal permitting and habitat disputes. That includes Cook Inlet belugas, polar bears, Steller sea lions, spectacled and Steller's eiders, listed whales and salmon-related habitat fights in Western Alaska and the Arctic.

The rules also arrive as the Trump administration presses agencies to speed permitting and expand resource development in Alaska. Alaska News has previously reported that federal permitting changes land hard in Alaska because so much development depends on federal land, federal waters, federal wetlands permits or consultation over protected species.

The first test may not be a high-profile approval. It may be a quieter agency decision: a 4(d) rule written more narrowly, a critical-habitat exclusion analysis that weighs project economics differently, or a lawsuit arguing that the agencies went too far.

The records to watch are the project-specific ones. Those include Federal Register notices, biological opinions, incidental-take authorizations, critical-habitat designations and court filings.