By Mary Scott
On Friday, June 4, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their intent to review and revise recent changes to the Endangered Species Act (ESA). NACD has actively engaged in ESA reform and has worked with the National Endangered Species Act Reform Coalition (NESARC) in efforts to modernize and provide clarity to ESA.
While no formal timeline has been provided, we can expect to learn more about the proposed changes in the coming months. In a joint press release, the Services announced the Administration intends to “revise, rescind or reinstate” five critical ESA regulations. The agencies stated they will review the following:
- Rescind regulations that revised Fish and Wildlife Service’s process for considering exclusions from critical habitat designations: On December 17, 2020, the FWS revised the process they would follow when considering whether to exclude areas from critical habitat designation under section 4(b)(2) of the ESA. 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.
- Rescind 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.
- Revise 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.
- Revise 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.
- Reinstate protections for species listed as threatened under ESA: FWS will propose to reinstate its “blanket 4(d) rule,” which was withdrawn by the previous administration (84 Fed. Reg. 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 Service adopts a species-specific 4(d) rule.”
In February of 2021, NACD provided public comments responding to the federal notice on Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation. In the comments, NACD stated, “NACD supports FWS’s decision to enhance management by clarifying the ESA Section 7 consultation process. This will provide natural resource managers with the ability and confidence to carry out important work on the ground.”
NACD will continue to monitor the Administration’s efforts regarding ESA and will provide updates as available.