Background
Recently, the Biden Administration released three final rules that significantly revised regulations which implement several sections of the Endangered Species Act (ESA). The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) finalized regulations that amend several components of the ESA. The species and habitat protected under the ESA extend to all aspects of our communities, lands, and waters. There are almost 2,400 species listed as threatened or endangered pursuant to ESA Section 4. Critical habitat for one or more species has been designated in all regions of the U.S. and its territories. The ESA imposes species and habitat protection measures on the use and management of private, federal, and state lands and waters. Additionally, because of the protection of those regions, it also extends to governmental and private activities.
Executive Order
Pursuant to President Biden’s Executive Order 13990, the FWS and NMFS reviewed certain agency actions taken under the prior administration. Through this review, they identified five final rules related to ESA implementation that should be reconsidered. In 2022, they rescinded two of those final rules: first, the regulatory definition of habitat for the purpose of designating critical habitat. Second, they rescinded the regulatory procedures for excluding areas from critical habitat designations. While the three final rules recently released reflect the consummation of that initial effort, the FWS and NMFS are preparing additional revisions. The ESA dictates how the FWS and NMFS list species as threatened or endangered, delist or reclassify species, and designate areas as critical habitat.
Revisions
The final rule revises all of the following provisions of the ESA. First, it revises the FWS and NMFS ability to determine the length of the foreseeable future. Stating that the foreseeable future extends as far into the future as they can reasonably make reliable predictions about the threats to the species. Next, it revises the process for determining when unoccupied areas may be designated as critical habitat. Third, it removes the justification for making a not prudent determination when a species’ threats are from causes that cannot be addressed through management actions. Fourth, it clarifies that a species will be delisted if it no longer meets the definitions of endangered or threatened species. Finally, it allows the FWS and NMFS to restore that a species listing determination is to be made without reference to possible economic impacts.
