ESA Rules Changing under Biden-Harris Administration

As promised this summer, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“Services”) are working their way through their list of actions to revise, rescind or reinstate five Endangered Species Act (“ESA“) regulations that were finalized in the Trump Administration. The list of proposed actions is in alignment with the Executive Order 13990 which directed the federal agencies to review agency actions that conflict with the Biden-Harris Administration objectives for addressing climate change. The proposed actions include:

• Rescinding regulations that revised the FWS process for considering exclusions from critical habitat,
• Rescinding the regulatory definition of habitat,
• Revising regulations for listing species and designating critical habitat,
• Revising regulations for interagency cooperation and
• Reinstating protections for species listed as threatened under the ESA.

On October 26, 2021, the USFWS issued a proposed rule to rescind the December 2020 critical habitat exclusion regulations, and the Services issued a proposed rule to withdraw the December 2020 definition of “habitat.”  The deadline for comments on both rules is November 26.

USFWS’s proposal to rescind the critical habitat exclusion regulations would remove the 2020 additions that, among other things, required USFWS to exclude areas from critical habitat designations whenever the benefits of exclusion outweighed the benefits of inclusion. USFWS will return to previous language under 50 CFR 424.19 which provides discretion to consider the weight of such benefits but does not mandate exclusion as a result of the benefits analysis. The Services’ proposed withdrawal of the definition of habitat will allow the Service to construe habitat (and thus critical habitat) inclusive of areas that currently do not support a species but which may be necessary for its recovery.

These are the first two ESA rule revisions that USFWS and NMFS identified in its list of proposed actions. We anticipate more significant changes related to ESA section 7 regulations and designating unoccupied habitat in 2022.