On June 4, 2021, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS), together the "Services," announced a plan to improve and strengthen implementation of the Endangered Species Act (ESA). The plan includes a set of proposed actions that follow Executive Order 13990, and will ensure the ESA effectively addresses 21st century conservation challenges.
The actions proposed by the Services will revise, rescind, or reinstate five ESA regulations that were finalized during the last four years and conflict with Biden-Harris Administration objectives, such as addressing. The proposed actions include:
- Rescinding regulations that revised the FWS process for considering exclusions from critical habitat designations: On December 17, 2020, the FWS revised the process it would follow when considering whether to exclude areas from critical habitat designation under section 4(b)(2) of the ESA. The FWS will propose to rescind this regulation (85 FR 82376) in its entirety and revert to implementation of the joint FWS/NMFS regulations at 50 CFR 424.19 and the joint 2016 policy on 4(b)(2) exclusions.
- Rescinding regulatory definition of habitat: The Services will propose to rescind the final rule that defined the term “habitat” for the purposes of critical habitat designation (85 FR 81411; December 16, 2020). A regulatory definition is not required for the Services to designate critical habitat in compliance with a 2018 Supreme Court decision.
- Revising regulations for listing species and designating critical habitat: The Services will propose revising the final rule (84 FR 45020; August 27, 2019) to reinstate prior language affirming that listing determinations are made "without reference to possible economic or other impacts of such determination," along with other potential revisions also under discussion.
- Revising regulations for interagency cooperation: The Services will propose revisions to the final rule (84 FR 44976; August 27, 2019) which revised the regulations governing section 7 consultation. The Services will propose to revise the definition of "effects of the action" and associated provisions to that portion of the rule, with other potential revisions also under discussion.
- Reinstating protections for species listed as threatened under ESA: The FWS will propose to reinstate its "blanket 4(d) rule," which was withdrawn by the previous Administration (84 FR 44753; August 27, 2019). The blanket 4(d) rule establishes the default of automatically extending protections provided to endangered species to those listed as threatened, unless the FWS adopts a species-specific 4(d) rule.
The proposed actions will follow a transparent public process, resulting in regulations that are clear and will be effective in protecting and recovering America's imperiled wildlife.