Endangered Species Act Regulation Revisions

On March 28, 2024, the U.S. Department of the Interior Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration National Marine Fisheries Service (NMFS) finalized three rules that increase Endangered Species Act (ESA) protections for plants and animals. The rules, which had been rescinded or changed under the Trump administration, focus on increasing protections for threatened species under the 4(d) blanket rule, increasing the processes for listing species, restoring habitat protections and designating of critical habitat, and increasing cooperation with other federal agencies. The services received approximately 468,000 public comments collectively across the three rules.

1. The Blanket 4(d) Rule: revised regulations for protecting endangered and threatened species (50 CFR 17)

Section 9 of the ESA provides a list of prohibitions for endangered species but does not provide these same prohibitions for threatened species. Instead, Section 4(d) requires the Secretary to issue regulations that are “necessary and advisable” to provide for the conservation of threatened species and allows the Secretary to extend prohibitions with respect to endangered species protections to threatened species — the 4(d) rules. The Secretary’s subsequent “blanket rule” extended the majority of endangered species protections to threatened species, with certain exceptions. The blanket rule applied before being rescinded in 2019. In this 2024 rule, FWS “reinstates the general application of the ‘blanket rule’ option” with the continued option to promulgate species-specific rules.

In addition, the final rule extends to federally recognized tribes the exceptions to prohibitions that the regulations currently provide to the employees or agents of the FWS and other federal and state agencies to aid, salvage, or dispose of threatened species and also updates certain endangered plant regulations. The new rules are schedule to be published on April 5, 2024.

2. The Joint Interagency Rule: revised regulations for interagency cooperation (50 CFR 402)

The Secretaries of the Interior and Commerce share responsibilities for implementing most of the provisions of the ESA, with authority to administer the ESA delegated to FWS and NMFS. Together in the 2024 rule, the FWS and NMFS clarified some key definitions and some of the services’ responsibilities regarding when and how they consult with other federal agencies. Specifically, the rule clarifies the definition of “effects of the action” and “environmental baseline,” removes “other provisions,” clarifies responsibilities regarding reinitiation of consultation between FWS and NMFS, and revises the definition of reasonable and prudent measures. The new rules are scheduled to be published on April 5, 2024.

3. The Habitat Rule: revised regulations for classifying species and designating critical habitat (50 CFR 424)

FWS and NMFS revised their joint regulations regarding listing and reclassification of species and designation of critical habitat. The rule changes the way species are listed, delisted, or reclassified by reinstating prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination.” It also revises the set of circumstances for when critical habitat may not be prudent and revises the criteria for identifying unoccupied critical habitat. The new rules are scheduled to be published on April 5, 2024.

Industry and Environmental Groups Respond

While the two agencies say these rules will better protect species and their habitats, the rules have received criticism from across the political spectrum. Some environmental groups have questioned whether the Biden administration has gone far enough in these rules, because they merely returned the ESA to the status quo. Other critics contend the rules will overly burden industry and property owners, as industry had noted in comments on the proposals.

As the three rules reimpose stricter ESA rules that reverse some of the last administration’s more controversial environment-related initiatives, in an election year, these issues will likely continue to be a matter of debate.

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.