On June 4, 2021, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS), together the "Services," announced a plan to improve and strengthen implementation of the Endangered Species Act (ESA). The plan includes a set of proposed actions that follow Executive Order 13990 (Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis) and will ensure the ESA effectively addresses 21st century conservation challenges, such as .
On June 22, 2023, the Services proposed two joint rules, one to clarify and improve how the agencies make listing, delisting, reclassification decisions and critical habitat designations under section 4 and the other to improve and clarify interagency cooperation under section 7, both of which were last revised in 2019. Additionally, the FWS proposed reinstating the 4(d) “blanket rule” option that was in place before 2019 for protecting threatened species. A 60-day public comment period for each rule followed. The Services received approximately 468,000 public comments collectively across the three rules from stakeholders and interest groups. The Services reviewed the public comments received and have now finalized these rules.
These three final rules include the following:
- Revised regulations for classifying species and designating critical habitat (50 CFR 424): This final rule revises the Services’ joint regulations regarding listing and reclassification of species and designation of critical habitat. The rule reinstates prior language affirming that listing determinations are made "without reference to possible economic or other impacts of such determination," revises the foreseeable future regulation, clarifies the standards for delisting species, revises the set of circumstances for when critical habitat may be not prudent, and revises the criteria for identifying unoccupied critical habitat.
- Revised regulations for interagency cooperation (50 CFR 402): This final rule clarifies the definition of "effects of the action" and “environmental baseline,” removes 402.17 “Other Provisions,” clarifies the Services’ responsibilities regarding reinitiation of consultation, and revises the definition of reasonable and prudent measures and the provisions related to reasonable and prudent measures in an incidental take statement.
- Revised regulations protecting endangered and threatened species (50 CFR 17): This final rule reinstates the FWS’ "blanket” 4(d) rules, which had been available prior to our 2019 regulation revisions. FWS also extended to federally recognized Tribes the exceptions to prohibitions that the regulations currently provide to the employees or agents of the FWS and other Federal and State agencies to aid, salvage, or dispose of threatened species and updated the endangered plant regulations at 50 CFR 17.61(c)(1) to match the language in amendments to section 9 of the ESA, enacted in 1988.
Prior final actions include:
- Rescinding regulatory definition of habitat: On June 24, 2022, the Services published a final rule (87 FR 37757) rescinding the December 16, 2020, regulation that had defined the term “habitat” for the purposes of critical habitat designations. A regulatory definition is not required for the Services to designate critical habitat in compliance with a 2018 Supreme Court decision.
- Rescinding regulations that revised the FWS process for considering exclusions from critical habitat designations: On July 21, 2022, the FWS published a final rule (87 FR 43433) rescinding the December 17, 2020, regulation that had revised the process it would follow when considering whether to exclude areas from critical habitat designation under section 4(b)(2) of the ESA in its entirety and has reverted to implementation of the joint FWS/NMFS regulations at 50 CFR 424.19 and the joint 2016 policy on 4(b)(2) exclusion.
