Here We Go Again: Services to Re-Revise Endangered Species Act Regulations

Beveridge & Diamond PC

In an anticipated move, the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the “Services”) have announced plans to again overhaul Endangered Species Act (ESA) regulations. In this latest example of “to the victor goes the spoils” on species issues, the Services are gearing-up to align the ESA regulations with Biden-Harris Administration policies and priorities, including addressing climate change. The proposals are still in the works but appear targeted to unwinding revisions the Services made under the Trump administration to promote transparency and predictability in ESA implementation. Those Trump-era regulations are currently being challenged in the Northern District of California. Unlike Executive Orders, guidance, or other steps by the prior administration, further proposed changes to regulations implementing the ESA will require notice and comment rulemaking and a satisfactory administrative record to justify the changes.

The most recent planned revisions, and the Services anticipated timeline for proposing these revisions, are outlined below.

Planned Revision to ESA Regulations Anticipated Proposal Date
Automatically extending the ESA’s take prohibition to threatened species by reinstituting the “blanket 4(d) rule.”  July 2021
Rescinding regulations governing exclusions from critical habitat designations. July 2021
Promulgating new regulations for listing species and designating critical habitat under ESA Section 4. September 2021
Rescinding regulations defining “habitat” for purposes of critical habitat designations. September 2021
Revising ESA Section 7 consultation regulations, including redefining “effects of the action.”

December 2021

As the ESA regulatory landscape continues to change, it is critical that project proponents stay current on these developments to protect their ongoing and planned activities. With Services staff still trying to get their hands around the 2019 revisions to the ESA regulations, yet another new set of standards will inevitably create confusion, inconsistency, and delay in agency reviews and implementation of the regulations in general.  That could mean longer project timelines and more legal challenges. Understanding the current law and where it is going will help keep your project on track, build a defensible administrative record, and maintain compliance with the ESA. Project proponents should also make certain their voices are heard by submitting comments during the rulemaking process for each of these issues to ensure the Services continue working towards transparent, predictable, and streamlined ESA compliance.   

We will keep you posted as these proposals advance.

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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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