Federal Agencies Propose to Rescind ESA Regulations

On October 27, 2021, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “Services”) proposed to rescind two Endangered Species Act (“ESA”) rules: (1) their definition of “habitat” for purposes of designating critical habitat (“Habitat Rule”); and (2) their section 4(b)(2) rule, which requires the Services to consider the impacts of designating critical habitat and allows them to exclude particular areas (“Impact Analysis Rule”). Comments on both proposed rules are due by November 26, 2021.

The Services Propose to Rescind Their Definition of “Habitat.”

For purposes of designating critical habitat under ESA Section 4, the Habitat Rule provides that “habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”  In proposing to rescind the Habitat Rule, the Services reason that this definition: (1) improperly would constrain the Services’ ability to designate areas meeting the ESA’s definition of “critical habitat,” including areas that “do not currently or periodically contain the requisite resources and conditions” but that “could meet this requirement in the future after restoration activities or other changes occur”; (2) conflicts with the broad definition of “conservation”; (3) is disconnected from scientific literature; and (4) is not required by the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. FWS, 139 S. Ct. 361 (2018). The Services are not proposing a replacement definition at this time.

The Services Propose to Rescind Their Rule Governing Impact Analyses and Exclusions from Critical Habitat.

The Impact Analysis Rule was codified at 50 C.F.R. § 17.90 and implements ESA Section 4(b)(2). That Section requires the Services to consider relevant impacts of designating areas as critical habitat and provides the Services with discretion to exclude certain areas from the designation if “the benefits of exclusion outweigh the benefits of inclusion and exclusion would not result in extinction of the species.”  The Services reason that rescission of the Impact Analysis Rule is appropriate because, among other things, the Rule unduly constrains their discretion in administering the ESA and could limit or undermine their role as expert agencies charged with furthering the conservation of endangered and threatened species through the designation of critical habitat.  The Services are not proposing any replacement regulations at this time.

The Services Will Be Taking Additional Actions to Amend Their Joint and Individual ESA Regulations.

In addition to these two proposals, the Services have expressed their plans to amend their much broader 2019 rulemakings implementing ESA Sections 4 and 7. The Fish and Wildlife Service also has indicated that it plans to reinstate its 4(d) rule.

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If you have any questions about these proposals or other issues related to the ESA, please contact Good Steward Legal at jared@goodstewardlegal.com.

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