ESA Implementation Thrown Into Flux

Nossaman LLP

On June 4, 2021, the Biden Administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how the Service defines “habitat” in the context of designating critical habitat under ESA Section 4. The latter regulation was adopted by the Trump Administration following the U.S. Supreme Court’s decision in Weyerhaeuser v. U.S. Fish and Wildlife Service where the Court held that the Service must first find that an area actually contains habitat for the species at issue before it can include that area in a proposal to designate critical habitat for a listed species.

The Service also intends to revise regulations governing implementation of ESA section 7 consultations by revising the definition of “effects of the action,” as well as regulations governing how species are listed and delisted under ESA section 4.  The Service has not yet elaborated on the full extent of its proposed revisions.

Finally, the Service will propose to reinstate its “blanket 4(d) rule,” which previously applied the ESA section 9 “take” prohibition to all threatened species, unless a species-specific “4(d)” rule exempting take a specific area from the take prohibition was adopted. Under the current the 2019 listing regulation that this proposal would repeal, species listed as threatened are not subject to the ESA section 9 “take” prohibition, unless the Service adopts a specific 4(d) rule applying the take prohibition to that species in a specific area.

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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