U.S. Wildlife Agencies Propose Rules to Reinstate Longstanding Endangered Species Act Regulations

On June 22, the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration published a series of proposed rules pursuant to the Endangered Species Act (the Act), seeking to clarify or reverse implementing regulations issued in 2019 during the Trump administration. The agencies jointly proposed two rules—one revising Section 7 regulations, related to interagency consultations, and a second revising Section 4 regulations, related to listing decisions and critical habitat designations. The Fish and Wildlife Service independently proposed a third rule to reinstate the general application of “blanket rule” options for protecting newly listed threatened species pursuant to Section 4(d) of the Act.

 Project developers and other interested stakeholders should closely review the proposal, which would reverse or narrow Trump-era reforms to ESA regulations and revert to more traditional, expansive interpretations of the Act to promote the recovery of threatened and endangered species.

Among proposed Changes to Section 7 Regulations (88 Fed. Reg. 40,753):

• Revise definition of “effects of the action” and “environmental baseline,” clarifying when the two-part causation test applies to activities for purposes of analyzing “effects of the action”
• Remove Section 402.17, “Other Provisions,” consistent with proposed amendments to the definition of “effects of the action”
• Clarify that the responsibility and obligation to reinitiate consultation lies with federal agency that retains discretionary involvement or control over its action
• Revise definition of “reasonable and prudent measures” and clarify scope of reasonable and prudent measures within an incidental take statement

Among proposed Changes to Section 4 Regulations (88 Fed. Reg. 40,764):

• Restore the previously deleted phrase “without reference to possible economic or other impacts of such determination” to 40 C.F.R. 424.11(b) to affirm that agencies must not consider economic (or other) impacts of a listing decision
• Revise 40 C.F.R. 424.11(d) to clarify the meaning of “foreseeable future” consistent with the 2009 opinion from the Department of the Interior, Office of the Solicitor (M–37021, Jan. 16, 2009)
• Revise factors considered for delisting a species and providing additional flexibility to agencies
• Amend criteria for designating critical habitat, clarifying that climate-change impacts may continue to be considered in identifying and designating critical habitat
• Provide more flexibility in designating unoccupied critical habitat

Reinstatement of Blanket 4(d) Rules (88 Fed. Reg. 40,742):

• Amend Section 4(d) to reinstate the previously rescinded “blanket rule” that automatically extends protections for endangered species to threatened species
• Provide option to craft species-specific rules where more appropriate than blanket rule protections

Comments on the proposed rules are due August 21, 2023.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.