07/27/2018 - Regulatory Tracker

Endangered Species Act Regulations

by EELP Staff

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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 the Act is interpreted and applied through its regulations. The regulations contain detailed definitions and the steps that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service 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.”

Current Status

Under the Trump Administration, FWS and NMFS finalized three new endangered species regulations in 2019. One allows agencies to consider the economic impacts of listing species and designating critical habitat. Another retracts some protections from threatened species, reserving them only for endangered species. The third changes when other federal agencies are required to consult FWS and NMFS on ESA issues. Environmental groups challenged the rules in court, but were denied standing. A group of states also challenged the rules. The states’ suit survived a motion to dismiss and is ongoing.

Separately, FWS petitioned the Supreme Court in 2019 to review a Ninth Circuit decision mandating the disclosure of certain draft ESA documents under the Freedom of Information Act. On March 4, 2021, in Justice Barrett’s first majority opinion (7-2), the Court reversed the Ninth Circuit and held that such drafts were exempt from FOIA requests.

FWS and NMFS also finalized in Dec. 2020 two more rules: 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.

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 intended to rescind.

History

In 1973, Congress passed the Endangered Species Act and recognized that our natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” Congress also expressed concern that many of our nation’s native plants and animals were in danger of becoming extinct. Congress designated two agencies to share responsibility for administering the Act: The U.S. Fish and Wildlife Service in the Department of the Interior, and National Marine Fisheries Service in the National Oceanic and Atmospheric Administration in the Department of Commerce.

In 1978, 1982, and 1988, Congress amended the Endangered Species Act 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.

Trump Era

July 25, 2018 The U.S. Fish and Wildlife Service and National Marine Fisheries Service 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. The FWS and NMFS say that this will be done only to inform the public about those impacts. 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 U.S. Fish and Wildlife Service releases a proposed rule, “Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants.” The FWS has traditionally extended all of the protections for endangered species to threatened species, as soon as they are listed. Now, FWS is proposing to make a case-by-case determination (“species-specific rule”) for each threatened species to decide which protections they should be given. FWS points to the NMFS which has long used this approach for each threatened species. However, the proposed rule does not address the fact that NMFS has jurisdiction over 161 species and FWS has jurisdiction over approximately 2,139 species.

July 25, 2018 The U.S. Fish and Wildlife Service and National Marine Fisheries Service 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.’’ This 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. Although the FWS and NMFS say that the change will not raise or lower the bar for whether a proposed action is likely to result in destruction or adverse modification, they are proposing to add the phrase “as a whole” into the definition which could be read to be a broader definition and thus, more difficult to meet. Additionally, the new rule proposes to outline a framework for when other federal agencies do not need to consult with the FWS and NMFS on potential species issues.

Dec. 21, 2018 The U.S. Fish and Wildlife Service sends two of the proposed rules, Revision of Regulations for Interagency Cooperation and Revision of the Regulations for Listing Species and Designating Critical Habitat to the White House Office of Management and Budget for review. This is generally the last step before final rules are published and go into effect.

Aug. 12, 2019 The U.S. Fish and Wildlife Service and National Marine Fisheries Service issue three final rules:

The rules are published in the Federal Register on Aug. 27, 2019 and effective Sep. 26, 2019.

Aug. 21, 2019 Environmental groups file a lawsuit challenging the three final rules released on August 12. The complaint alleges that “[t]he revised regulations violate the plain language and overarching purpose of the ESA; they also lack any reasoned basis and are arbitrary and capricious under the Administrative Procedure Act,” and 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 led by California and Massachusetts 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 U.S. Fish and Wildlife Service 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 as well. Animal Legal Def. Fund v. Bernhardt, No. 19-cv-06812 (N.D. Cal.).

Oct. 25, 2019 The U.S. Fish and Wildlife Service 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. The agency argues it does not have to disclose documents reflecting its deliberative process, particularly where the agency proposes an action and later modifies it. The Ninth Circuit held that exception does not apply to draft documents. Fish & Wildlife Serv. v. Sierra Club, No. 19-547.

Dec. 23, 2019 The U.S. Fish and Wildlife Service and the National Marine Fisheries Service submit a draft proposed rule to the Office of Management and Budget to add a definition of “habitat,” which is currently undefined, to the regulations for listing endangered and threatened species and designating critical habitat. The Supreme Court recently heard a case involving the issue of what qualifies as “habitat” under the ESA and remanded it to a lower court to determine a definition, but the case settled before a definition could be established. Weyerhauser Co. v. U.S. Fish and Wildlife Service, No. 17-71 (2018). 

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 U.S. District Court for the Northern District of California dismisses the case filed by environmental groups challenging the three rules finalized in August 2019. The court found that the environmental groups did not sufficiently demonstrate how they were affected by the new rules (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 it and finding that the states described in detail how they are harmed by the new rules. 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 proposed definition is: “The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.” The agencies have proposed an alternative definition as well and are seeking comments on both. The proposed rule is open for comment until Sep. 4, 2020 and comments may be submitted here.

Sep. 4, 2020 More than 100 Democratic Representatives submit a letter opposing the proposed habitat definition rule: “By narrowly defining ‘habitat,’ this rule does the exact opposite and will put more species at risk of extinction. For those reasons we oppose this proposed rule and urge you to withdraw it.”

Sep. 8, 2020 The FWS proposes a new rule for designating critical habitat. The proposal outlines instances when and how the agency would exclude certain lands from critical habitat, particularly projects that seek to build schools, hospitals and federal lands where non-federal entities have a permit, lease, contract or other authorization for use The proposed rule is open for comment until Oct. 8, 2020 and comments may be submitted here.

Sep. 8, 2020 Democrats in the House of Representatives send a letter to FWS opposing the new definition of “habitat.”

Sep. 21, 2020 Sen. John Barrasso (R-Wyo.) proposes new 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.

Nov. 12, 2020 The Office of Information and Regulatory Affairs receives the final critical habitat designation rule for review, one of the last steps before final rule publication. 

Nov. 17, 2020 The Office of Information and Regulatory Affairs receives the final habitat definition rule for review, one of the last steps before final rule publication. 

Dec. 16, 2020 FWS and NMFS finalize the rule defining “habitat” in their ESA implementing regulations, limiting its application to designating critical habitat. The final definition is: “For the purposes of designating critical habitat only, 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.” The rule is effective Jan. 15, 2021. 

Dec. 18, 2020 FWS finalizes a rule for designating critical habitat. The new rule establishes 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. The rule is effective Jan. 19, 2021.

Early Biden Actions

Jan. 20, 2021 President Biden orders the Fish and Wildlife Service and NOAA Fisheries to review several Trump-era ESA regulations pursuant to Executive Order on Public Health and the Environment, including the final critical habitat rule.

June 4, 2021 The Fish and Wildlife Service and NOAA Fisheries 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.