Major Endangered Species Act Regulations to Be Rescinded or Revised

The Biden administration has completed its initial regulatory review of several major Endangered Species Act rulemakings promulgated by the past administration. Based on this regulatory review, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) have announced the following:

• FWS will be (1) rescinding its recent regulations revising its process for considering exclusions from critical habitat designations, 85 Fed. Reg. 82,376 (Dec. 17, 2020); and (2) reinstating its blanket 4(d) rule, which was withdrawn by the previous administration, 84 Fed. Reg. 44,753 (Aug. 27, 2019).

• The Services will be rescinding their joint regulatory definition of the term “habitat,” 85 Fed. Reg. 81,411.

• The Services will be revising their joint regulations for listing species and designating critical habitat, 84 Fed. Reg. 45,020 (Aug. 27, 2019), to, among other things, reinstate past language providing that listing determinations are made “without reference to possible economic or other impacts of such determination[s].”

• The Services will be revising their regulations for interagency cooperation, 84 Fed. Reg. 44,976 (Aug. 27, 2019), to, among other things, amend the definition of “effects of the action” and associated provisions.

The Services have provided no information on when they intend to issue proposed rulemakings for these actions. However, interested persons should consult with their attorneys and plan on submitting comments when each proposed rulemaking is published in the Federal Register.

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