The U.S. Fish and Wildlife Service (USFWS) and Department of Commerce announced on March 28 the finalization of three revisions for the implementation of the Endangered Species Act (ESA). The agencies said the revised rules will restore protections for species and their habitats, strengthen the process for listing species and their habitat, and ensure a “science-based approach” to fulfill ESA responsibilities.
The revisions were initiated by one of President Joe Biden’s first executive orders upon assuming office in 2021, the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.
“We will continue to use the best-available science when implementing the ESA—including when making listing and delisting decisions, designating critical habitat, developing protective regulations for threatened species, and consulting on federal actions,” said USFWS Director Martha Williams in a statement.
In June 2023, USFWS and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service announced three proposed rules to revise the ESA. Nearly 470,000 comments were received during the public comment period.
The agencies have finalized two separate rules to revise joint ESA regulations regarding agency cooperation, listing determinations and critical habitat designations. In addition, the agencies finalized a third rule to reinstate the blanket rule option for protecting threatened species under Section 4(d) of the ESA.
Finalized rules
The revised regulations address the following:
• Classifying species and designating critical habitat.
• Interagency cooperation.
• Reinstating the blanket Section 4(d) rules.
The classification rule reinstates prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination.” In addition, the rule revises the foreseeable future regulation, clarifies the standard for delisting species, revises the circumstances for when critical habitat may not be prudent and revises the criteria for identifying unoccupied critical habitat.
The second rule regarding interagency cooperation clarifies the definition of “effects of the action” and “environmental baseline.” In addition, the rule removes 402.17 “Other provisions” in the Code of Federal Regulations, which includes activities that are reasonably certain to occur, consequences caused by the proposed action and required consideration. The rule also revises the definition of reasonable and prudent measures and the provisions related to reasonable and prudent measures in an incidental take statement.
Finally, the third rule reinstates the blanket Section 4(d) rules, which were in place prior to former President Donald Trump assuming office. This rule essentially means threatened and endangered species have the same protection. In addition, USFWS is also extending to Tribes the exceptions to prohibitions for threatened species to aid, salvage or dispose of threatened species.
Reactions
In a joint statement, Congressional Western Caucus Chairman Dan Newhouse (R-WA-04), Senate Western Caucus Chair Cynthia Lummis (R-WY) and House Natural Resources Committee Chairman Bruce Westerman (R-AR-04) condemned the final rules.
“These misguided changes won’t improve the ESA’s goal of recovering species but will instead further impede on private landowners’ rights,” Newhouse said.
Lummis added, “Beyond giving D.C. bureaucrats the power to infringe on property rights and shut down good paying jobs, the reforms reject common sense in favor of big government regulations.”
Conservation groups pushed the Biden administration to further strengthen ESA regulations.
“Of the 31 harmful changes made in 2019 to the Act’s regulations, only seven are fully addressed and corrected in today’s final rules,” the Center for Biological Diversity said in a statement. “The new final rules fail to undo changes made in 2019 to the consultation process that ignore cumulative impacts to listed species and in general make it far easier for industries to receive approval for projects that destroy the habitat of countless species nationwide.”
The final rules go into effect on May 5, 30 days after their publication in the Federal Register. — Anna Miller, WLJ managing editor
