Biden Administration to Review Species Rules and Related Frameworks

Nossaman LLP

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 17, 2020 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement listed several ESA implementing regulations that will undergo review, including:

Additionally, the initial list included review of a number of species-specific actions including:

  • The Service’s revision to critical habitat for the northern spotted owl (Strix occidentalis caurina);
  • The Service’s 12-month warranted but precluded finding on the monarch butterfly (Danaus plexippus);
  • The Service’s not warranted finding on 11 species;
  • Several Bureau of Land Management (BLM) resource management plans for the greater sage grouse (Centrocercus urophasianus); and
  • Delisting of the gray wolf (Canis lupus)

The initial list included certain activity-specific regulatory actions, including:

The EO also includes regulations and policies arising from the Trump Administration’s position that unintentional take of migratory birds is not prohibited under the Migratory Bird Treaty Act (MBTA), including:

Finally, the EO covers a number of actions from other departments, agencies, and bureaus that can impact ESA permitting and compliance, including:

While the precise outcome of Biden Administration review is unknown at this time, it is likely that many of the regulations and policies identified by the EO will be rescinded, repealed, or modified in the coming months and years. The EO notes that other regulatory actions not listed here may undergo review consistent with the Biden Administration priorities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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