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Endangered Species Act Regulations

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Quick Take

The Trump administration’s issued five Endangered Species Act implementing regulations. The Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) rescinded the Trump administration’s definition of “habitat” for the purpose of critical habitat designation and the rule setting forth procedures for FWS critical habitat designations. The remaining three rules are still effective, though they are under agency review and in litigation.

Why it Matters

The Endangered Species Act provides protections for threatened and endangered species, but the level of protection given to each species and the amount of species protected depend on how agencies interpret the Act and apply it through regulations. The regulations contain detailed definitions and the steps that the FWS and the NMFS and other agencies need to take in order to apply the protections in the Act to species and their habitats. The regulations are the “how-to” guide that upholds the purpose of the Endangered Species Act, “to protect and recover imperiled species and the ecosystems upon which they depend.”

In 1973, Congress passed the Endangered Species Act (ESA) and designated two agencies to share responsibility for administering the Act: FWS in the Department of the Interior and NMFS in the National Oceanic and Atmospheric Administration in the Department of Commerce. In 1978, 1982, and 1988, Congress amended the ESA in significant ways but kept the framework of the Act and its key provisions in place.

Over the years, the U.S. Fish and Wildlife Service and National Marine Fisheries Service have issued numerous rules that form the regulations that the FWS and NMFS use to apply the Act and other agencies use to comply with it.

Under the Trump Administration, FWS and NMFS finalized five new endangered species regulations. In 2019, the administration released three rules. The first rule (the listing rule)  allowed agencies to consider the economic impacts of listing species and designating critical habitat. Another rule (the Blanket Rule Repeal) retracts some protections from threatened species, reserving them only for endangered species. The third rule (the Interagency Consultation rule) changes when other federal agencies are required to consult FWS and NMFS on ESA issues. FWS and NMFS finalized two more rules in 2020: one defining “habitat” to include only areas that are currently suited for listed species, and one revising the ways that FWS designates and excludes critical habitat.

Current Status

On Jan. 20, 2021, President Biden ordered FWS and NMFS to review the Trump-era ESA rules pursuant to his Executive Order on Public Health and the Environment, issued the same day. On June 4, 2021, the agencies announced a list of rules they intend to rescind, which included the Trump administration’s five ESA rules.

FWS and NMFS have been working on rescinding the two 2020 rules. In June 2022, NMFS and FWS issued a final a rule rescinding the Trump administration’s 2020 changes to the definition of “habitat” for the purpose of designating critical habitat. In July 2022, the FWS finalized a rule that will rescind Trump-era changes to how the FWS designates and excludes critical habitat. When that rule becomes effective in August 2022, neither of the 2020 ESA implementing regulations will be in effect.

The Northern District of California halted the three 2019 rules and sent them back to the agencies, but the Ninth Circuit stayed that decision, putting the rules back into place pending further review by the district court. In re: Washington Cattlemen’s Association, No. 4:19-cv-06013 (9th Cir.). The FWS and NMFS have announced their intention to review these rules and the unified agenda indicates that the agencies will release proposals to rescind, revise, or replace the rules between October 2022 and February 2023.

Trump administration
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July 25, 2018 The FWS and NMFS release a proposed rule , “Revision of the Regulations for Listing Species and Designating Critical Habitat.” Among other changes, the FWS and NMFS propose to introduce “economic and other impacts” into the process of listing, delisting, and reclassifying species. However, the proposed rule states that the actual determinations will continue to made, as the Act requires, “solely on the basis of the best scientific and commercial data available.” 

July 25, 2018 The FWS releases a proposed rule , “Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants.” The rule would shift from the standard practice of protecting all threatened species as endangered species upon their listing to a case-by-case (“species-specific rule”) for each threatened species to decide which protections they should be given.

July 25, 2018 The FWS and NMFS release a proposed rule , “Revision of Regulations for Interagency Cooperation.” Among other changes, the FWS and NMFS propose to revise the definition of “destruction or adverse modification” to add the phrase “as a whole”, which could be read to broaden the definition and make the standard more difficult to meet. The definition is a key part of Section 7(a)(2) requiring federal agencies to consult with the FWS and NMFS to ensure they do not jeopardize the continued existence of a threatened or endangered species or cause the “destruction or adverse modification” of habitat of such species.

Aug. 12, 2019 The FWS and NMFS issue three final rules:

Aug. 21, 2019 Environmental groups file a lawsuit challenging the three final rules released on August 12. The complaint alleges that the rules violate “the plain language and overarching purpose of the ESA” and the Administrative Procedure Act. It also alleges the agencies violated NEPA when creating the regulations. Center for Biological Diversity, et. al. v. Bernhardt, et. al., Case No. 3:19-cv-05206 (N. D. Cal.).

Sep. 25, 2019 A coalition of 17 states, the District of Columbia, and New York City file a lawsuit challenging the three final rules released in August 2019. State of California, et. al. v. Bernhardt, et. al., No. 4:19-cv-06013 (N. D. Cal.).

Oct. 7, 2019 The FWS announces its findings that twelve species, including plants and animals, did not warrant listing protections under the Endangered Species Act. These decisions are some of the first to be made in accordance with the agency’s new rule, Revision of the Regulations for Listing Species and Designating Critical Habitat.

Oct. 21, 2019 The Animal Legal Defense Fund files a lawsuit challenging the three final rules. Animal Legal Def. Fund v. Bernhardt, No. 19-cv-06812 (N.D. Cal.).

Oct. 25, 2019 The FWS petitions the Supreme Court to review a Ninth Circuit order compelling the agency to disclose draft documents, under the Freedom of Information Act (FOIA), from an ESA Section 7 consultation process. Fish & Wildlife Serv. v. Sierra Club, No. 19-547.

Feb. 24, 2020 The Supreme Court agrees to review the FOIA case related to the ESA Section 7 consultation process. Fish and Wildlife Serv. v. Sierra Club, U.S., No. 19-547.

May 18, 2020 The District Court for the Northern District of California dismisses the case filed by environmental groups challenging the three rules finalized in August 2019 for lack of standing. Center for Biological Diversity, et. al. v. Bernhardt, et. al., Case No. 3:19-cv-05206 (N. D. Cal.). The court allows the case filed by the coalition of states to continue, denying the motion to dismiss. State of California, et. al. v. Bernhardt, et. al., No. 4:19-cv-06013 (N. D. Cal.).

Aug. 5, 2020 The FWS and NMFS propose a new rule to add a definition of “habitat” to their ESA implementing regulations. The agencies have proposed an alternative definition and are seek comments on both.

Sep. 4, 2020 More than 100 Democratic Representatives submit a letter opposing the proposed habitat definition as too narrow, arguing that it will put more species at risk of extinction.

Sep. 8, 2020 The FWS proposes a new rule for designating critical habitat, outlining instances when and how the agency would exclude certain lands from critical habitat.

Sep. 21, 2020 Sen. John Barrasso (R-Wyo.) proposes legislation overhauling the Endangered Species Act. The bill would require species recovery plans be developed with input from state officials and parties with interest in the land, provide states the opportunity to lead recovery planning, block judicial review of a determination to delist a threatened or endangered species, and require reports on costs of implementation of the ESA.

Dec. 16, 2020 The FWS and NMFS finalize the rule defining “habitat” in their ESA implementing regulations, limiting its approach to designating critical habitat.

Dec. 18, 2020 The FWS finalizes a rule for designating critical habitat, establishing a process for excluding areas of critical habitat along with a non-exhaustive list of categories of potential impacts FWS will consider when determining whether to exclude an area.

Biden Administration
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Jan. 20, 2021 President Biden orders the FWS and NMFS to review several Trump-era ESA regulations pursuant to Executive Order on Public Health and the Environment, including the final critical habitat rule.

February 9, 2021 The parties agree to stay the case challenging the three 2019 ESA rules given that President Biden has directed agencies to review the rules. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.). 

June 4, 2021 The FWS and NMFS announce plans to begin rulemaking processes under the ESA to (1) rescind Trump-era rules revising FWS’s process for considering exclusions from critical habitat designations; (2) rescind rules defining “habitat”; (3) revise rules for listing species and designating critical habitat; (4) revise rules for interagency cooperation; and (5) reinstate FWS’s blanket 4(d) rule, which automatically extended protections for endangered species to those listed as threatened in the absence of a species-specific rule.

October 7, 2021 Ruling from the bench, the court lifts the stay in the case challenging the three 2019 ESA rules because time has passed and the rules have not been revised. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.). 

October 14, 2021 Parties file a joint proposed motion to restart the summary judgment briefing. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.).

Oct. 27, 2021 NMFS and FWS propose rescinding 2020 changes to the definition of “habitat” and how the FWS makes designation of “critical habitat” in the ESA.

Dec. 10, 2021 The federal government asks the court to remand the three 2019 rules to the agencies without vacating them. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.). 

December 23, 2021 The environmental plaintiffs oppose the federal government’s motion, asking the court to vacate the three 2019 rules and remand them to the agencies. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.).

Jan 19, 2022 The House Natural Resources Committee votes to advance H.R. 2773,“Recovering America’s Wildlife Act,” designed to protect biodiversity and mitigate threats to endangered species.

Mar. 8, 2022 OIRA receives for review the final rule that would restore old critical habitat designations.

Apr. 12, 2022 EPA releases a comprehensive work plan for protecting endangered species from pesticides in accordance with the Endangered Species Act, as well as the Federal Insecticide, Fungicide, and Rodenticide Act. The document outlines the Agency’s vision of a more successful process, including discussion of moving from a reactive to a proactive approach to mitigating harm to threatened species facing the greatest risk from pesticides.

June 14, 2022 The Recovering America’s Wildlife Act passes the House of Representatives. The bill is now pending before the Senate, where it has 16 Republican co-sponsors. Among other protective measures, the bill would increase funding for conservation of certain species, including endangered and threatened species. 

June 23, 2022 FWS and the NMFS finalize a rule that rescinds the regulatory definition of “habitat” established by the Trump administration’s Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat.

July 5, 2022 The Northern District for the District of California vacates the three 2019 ESA rules and remands them to the FWS and NMFS. Animal Legal Defense Fund v. Department of Interior, No. 4:19-cv-06812 (N.D. Cal.). 

July 21, 2022 FWS finalizes the rule rescinding the Trump administration’s 2020 changes to how the agency excludes areas of critical habitat under the ESA. Intervenor defendant organizations file a motion to stay Northern District of California’s Order. The same day, intervenor defendant states and other organizations file a notice of appeal to the Ninth Circuit. Animal Legal Defense Fund v. Department of Interior, No. 4:19-cv-06812 (N.D. Cal.). 

Sep. 22, 2022 The Ninth Circuit stays the District Court’s order vacating the three 2019 ESA rules, finding that the lower court erred in vacating the rules without ruling on their merits. The Trump administration’s three 2019 rules are now back in effect while the Northern District of California reviews the case again. In re: Washington Cattlemen’s Association, No. 4:19-cv-06013 (9th Cir.).

Nov. 16, 2022 The Northern District of California issues an order granting plaintiff environmental groups’ and states’ motion to alter the court’s July 2022 judgment. This order will allow the parties to continue litigating the merits of the case before the District Court. Center for Biological Diversity v. Department of Interior, No. 19-cv-05206-JST (N.D. Cal.); California v. Department of Interior, No. 4:19-cv-06013-JST (N.D. Cal.); Animal Legal Defense Fund v. Department of Interior, No. 4:19-cv-06812-JST (N.D. Cal.).