The Department of the Interior’s U.S. Fish and Wildlife Service (USFWS) has released additional final rules for Endangered Species Act (ESA) guiding regulations.
The revised rules will change the administration of sections 4(d) and 4(b)(2) of the ESA, which relate to the “blanket rule” option and the “critical habitat” designation.
The move comes shortly after revising the definition of “harm” under the ESA to exclude habitat modification.
“For too long, the Endangered Species Act has been weaponized to stop almost any new project in America, driving up costs for families, weakening our competitiveness, and undermining our national security,” said Secretary of the Interior Doug Burgum.
He continued, “At the same time, results have fallen short. Nearly 97 percent of species ever placed on the list remain there today. Success should be measured by species recovery and delisting, not by adding more species to the list.”
The Interior said USFWS is returning to the best implementation of the ESA that was established under the first Trump administration.
Final rules
The first final rule revises regulations concerning the protections for threatened species. The USFWS is removing the blanket rule option for newly listed threatened species under Section 4(d) of the ESA. The blanket rule created a default for all threatened species that essentially treated them as endangered unless an exception was made with a specific 4(d) rule, the Interior said.
Under the first Trump administration, in August 2019, USFWS issued a final rule to remove the blanket rule for applying Section 9(a) prohibitions.
“Under the 2019 rule, we applied protections to a species newly listed as threatened only through issuance of a species-specific rule setting out the protective regulations that are necessary and advisable for that species,” the agency said.
In April 2024, the agency reinstated the blanket rule option during the Biden administration. The 2024 rule is still subject to pending litigation from the Rocky Mountain Elk Foundation and Property and Environment Research Center.
Moving forward, a threatened species will be “appropriately treated” as such rather than endangered, the service said. USFWS also has the authority to customize a 4(d) rule to better suit each species, it said.
“This approach ensures that the Service will thoughtfully consider the protections that are necessary and advisable for the conservation of each threatened species,” USFWS said. The new rule will also reduce permitting burdens, the agency said.
Removing the future use of the blanket rule option will not result in immediate changes to protections for currently listed threatened species. For every species listed as threatened when the new rule takes effect, and those reclassified in the future, USFWS will comply with Section 4(d) and issue necessary protective regulations, the agency said.
The second final rule will require the consideration of the economic impact, the impact on national security and any other relevant impact when classifying “critical habitat.” The new rule will allow for the exclusion of area from critical habitat if the benefits of excluding the area outweigh the benefits of designating it as critical habitat.
In 2016, USFWS developed a policy to provide direction on how the agency would exercise discretion to exclude areas from critical habitat designations. In 2020, USFWS finalized regulations that set a process for excluding areas of critical habitat, which superseded the 2016 policy. Just two years later, in 2022, the agency rescinded those regulations. Now, USFWS is again revising the regulations.
“We have concluded that reinstating our FWS-only regulations will be more effective in guiding agency activities and will provide greater transparency and certainty to the public and stakeholders and is our preferred approach,” the agency said in its recent Federal Register notice.
Differences from the 2016 policy include:
• An information standard for when USFWS undertakes a discretionary weighing analysis.
• Clarification of how considerations for exclusions will be conducted for federal lands.
• An approach for giving weight to the benefits of inclusion or exclusion of any particular areas designated as critical habitat.
The Pacific Legal Foundation (PLF) applauded the repeal of the blanket rule.
“The Endangered Species Act simply does not authorize the indiscriminate extension of the ‘take’ prohibition to threatened species,” said Charles Yates, PLF attorney. “Despite that, for many years federal bureaucrats have viewed it as a blank check to control land use across the country.”
Environmental groups condemned the new rules, saying they “won’t let this dangerous giveaway go unchallenged.”
“The Trump administration is turning the law on its head by letting extractive industries dictate where critical habitat can be destroyed,” Earthjustice attorney Elizabeth Forsyth. “This prioritization of industry interests over science is fundamentally at odds with the clear purpose of the Endangered Species Act.”
The finalized rules will go into effect on Aug. 20. — Anna Miller Fortozo, WLJ managing editor
