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 (Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis) and will ensure the ESA effectively addresses 21st century conservation challenges, such as .
We have reviewed and are now proposing to revise three final rules issued in 2019 that address responsibilities that the Services share under sections 7 and 4 of the ESA. The proposed revisions are intended to improve and clarify the interagency consultation processes under section 7 and how the Services make listing, delisting and reclassification decisions, and how the Services will designate critical habitat. The FWS also proposes to reinstate the 4(d) “blanket rule” options, that were in place before 2019, for protecting threatened species. This will allow for greater efficiencies when we find the “blanket rule” protections are appropriate. The proposed rules will now besubject to public review and comment, and we will carefully consider those comments prior to finalizing any changes. The currently proposed actions include:
Revising regulations for interagency cooperation: On June 22, 2023, the Services proposed to revise the 2019 final rule regarding the regulations governing section 7 consultation. The proposed revisions include clarifying the definition of "effects of the action" and “environmental baseline;” removing 402.17 “Other Provisions;” clarifying the Services’ responsibilities regarding reinitiation of consultation; and revising the provisions related to reasonable and prudent measures in an incidental take statement.
Revising regulations for listing species and designating critical habitat: On June 22, 2023, the Services proposed to revise the 2019 final rule regarding listing and reclassification of species and designation of critical habitat. The revisions propose to reinstate prior language affirming that listing determinations are made "without reference to possible economic or other impacts of such determination"; revise the foreseeable future framework; clarify the standards for delisting species; and revise when and how critical habitat is designated through revisions to the criteria for when critical habitat may be not prudent and criteria for designation of unoccupied critical habitat.
Reinstating a protection option for species listed as threatened under ESA: On June 22, 2023, the FWS proposed to reinstate its "blanket” 4(d) rules, which were withdrawn in 2019 . The blanket 4(d) rules provide an option to extend most protections provided to endangered species to those listed as threatened, unless the FWS adopts a species-specific 4(d) rule.
Prior final actions include:
Rescinding regulatory definition of habitat: On June 24, 2022, the Services published a final rule (87 FR 37757) rescinding the December 16, 2020, regulation that had defined the term “habitat” for the purposes of critical habitat designations. A regulatory definition is not required for the Services to designate critical habitat in compliance with a 2018 Supreme Court decision.
Rescinding regulations that revised the FWS process for considering exclusions from critical habitat designations: On July 21, 2022, the FWS published a final rule (87 FR 43433) rescinding the December 17, 2020, regulation that had revised the process it would follow when considering whether to exclude areas from critical habitat designation under section 4(b)(2) of the ESA in its entirety and has reverted to implementation of the joint FWS/NMFS regulations at 50 CFR 424.19 and the joint 2016 policy on 4(b)(2) exclusions.