ESA rules will be changed under new administration

The U.S Fish and Wildlife Service and the National Marine Fisheries Service plan to make a series of changes to the regulations implementing the Endangered Species Act, regarding topics such as listing decisions and definition of habitat, in response to changes made during the previous administration.

During the first days of his administration, President Biden called on all federal agencies to review agency actions taken during the previous four years that conflict with new administration’s priorities as part of an executive order. That review prompted the Services to develop their newly announced plan. In the coming months, the Services will revise, rescind or reinstate five ESA regulations that the prior administration finalized.

“We are glad to see that the Services are taking a hard look the implementation of the Endangered Species Act,” said Caroline Murphy, AWB®, government relations manager at The Wildlife Society. “The Wildlife Society is vested in ensuring ESA regulations are based in science. We expressed serious concerns about many of those changes, and we look forward to working with the agencies to enhance implementation moving forward.”

The agencies will rescind the final definition of the term “habitat” finalized in December 2020. That regulation was prompted by a 2018 Supreme Court decision, but according to the Services in last week’s press release, a regulatory definition of habitat is not needed to comply with that court decision. The Wildlife Society submitted comments last year on the proposed definition, calling it “too narrow and lacking appropriate consideration of the diverse ecological and broader legal considerations that must be examined when defining habitat.” The Services made some changes to the proposal before releasing the final definition

The agencies will also rescind another set of regulations finalized in December 2020, which codified the process for considering exclusions from critical habitat designations. The Wildlife Society also expressed concerns about those changes when they were proposed, noting that they allowed too much leeway for excluding areas from critical habitat. This rule will be entirely revoked, and the previous process for designating critical habitat will be put back in place.

The agencies will revise several regulations finalized in August 2019, including the regulations for listing species and designating critical habitat. Those regulations will be revised to reinstate the previous interpretation, calling for listing determinations to be made “without reference to possible economic or other impacts of such determination.”

The Services will also reinstate the “blanket 4(d) rule,” which the previous administration withdrew in August 2019. Under the blanket 4(d) rule, species listed as threatened are automatically protected from all take as are endangered species. Species-specific 4(d) rules require the agencies to develop tailored regulations that can permit take under certain conditions.

Finally, the regulations dealing with interagency cooperation will also be revised to include an updated definition of “effects of the action,” as well as other possible changes.

The Wildlife Society submitted comments in September 2018 on the proposed changes finalized in August 2019, expressing concerns about the proposal to eliminate the blanket 4(d) rule, as well as the changes to interagency consultation.

The Services did not provide a timeline for the coming changes, other than to indicate they will be published in the coming months.

Read TWS’ Standing Position on Threatened and Endangered Species in the U.S. and Position Statement on the U.S. Endangered Species Act