Changes Coming to Endangered Species Act Implementation

Congress enacted the Endangered Species Act in 1973 to provide for the conservation of endangered and threatened fish, wildlife, plants and their natural habitats   Under the Act, agencies are required to insure that any action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined … to be critical.”

The “actions” which the agencies have to make sure do not harm threatened or endangered species include permitting.  When the agencies make decisions they must meet its obligations under the Endangered Species Act.

Like many environmental statutes, the controversies arise around the margins.  While there are probably a few holdouts somewhere, almost everybody agrees that we should protect endangered species.  The controversies arise over things such things as which species are considered “endangered,” procedures for deciding which species are endangered, how much habitat protection is considered, etc.

As often happens, the previous Presidential administration enacted regulations designed to restrict the Endangered Species Act.  While not directly attacking the core idea of the Act, it enacted regulations that undercut that idea.

Now that there is a new President, the U.S Fish and Wildlife Service and the National Marine Fisheries Service are proposing changes to regulations that were changed during the previous administration.  More specifically, the agencies have announced the following:

●      Rescind regulations that revised Fish and Wildlife Service’s process for considering exclusions from  critical habitat designations: On December 17, 2020, the Fish and Wildlife Service revised the process they would follow when considering whether to exclude areas from critical habitat designation under section 4(b)(2) of the ESA. FWS will propose to rescind this regulation (85 FR 82376) in its entirety and revert to implementation of the joint FWS/NMFS regulations at 50 CFR 424.19 and the joint 2016 policy on 4(b)(2) exclusions.

●      Rescind regulatory definition of habitat: The Services will propose to rescind the final rule that defined the term “habitat” for the purposes of critical habitat designation (85 FR 81411; December 16, 2020). A regulatory definition is not required for the Services to designate critical habitat in compliance with a 2018 Supreme Court decision.

●      Revise regulations for listing species and designating critical habitat : The Services will propose revising the final rule (84 FR 45020; August 27, 2019) to reinstate prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination,” along with other potential revisions also under discussion.

●      Revise regulations for interagency cooperation: The Services will propose revisions to the final rule (84 FR 44976; August 27, 2019) which revised the regulations governing section 7 consultation. The Services will propose to revise the definition of “effects of the action” and associated provisions to that portion of the rule, with other potential revisions also under discussion.

●      Reinstate protections for species listed as threatened under ESA: FWS will propose to reinstate its “blanket 4(d) rule,” which was withdrawn by the previous administration (84 Fed. Reg. 44753; August 27, 2019). The blanket 4(d) rule establishes the default of automatically extending protections provided to endangered species to those listed as threatened, unless the Service adopts a species-specific 4(d) rule.

            As with all regulations, these cannot be changed in an instant.  There will be a procedure that the agencies will have to follow, probably including an opportunity for public comment.  It is to be anticipated that, once the process is followed, the rules will be changed and the Endangered Species Act will go back to being administered as it was before.