Endangered Species Law & Policy

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement listed several ESA implementing regulations that will undergo review, including:

• The U.S. Fish and Wildlife Service’s (Service) recently finalized definition of “habitat” in the context of designating critical habitat;
• The Service’s recently finalized regulations setting forth the process for excluding areas from critical habitat under ESA section 4(b)(2);
• The Service’s 2019 regulations dealing with listing species and designating critical habitat; and
• The Service’s 2019 regulations governing interagency cooperation under ESA section 7.

Additionally, the initial list included review of a number of species-specific actions including:

• The Service’s revision to critical habitat for the northern spotted owl (Strix occidentalis caurina);
• The Service’s 12-month warranted but precluded finding on the monarch butterfly (Danaus plexippus);
• The Service’s not warranted finding on 11 species;
• Several Bureau of Land Management (BLM) resource management plans for the greater sage grouse (Centrocercus urophasianus); and
• Delisting of the gray wolf (Canis lupus)

The initial list included certain activity-specific regulatory actions, including:

• The October 2019 Service Biological Opinion for the Reinitiation of Consultation on the Coordinated Operations of the Central Valley Project and State Water Project; and
• The related October 2019 National Marine Fisheries Service Biological Opinion on Long Term Operation of the Central Valley Project and the State Water Project.

The EO also includes regulations and policies arising from the Trump Administration’s position that unintentional take of migratory birds is not prohibited under  the Migratory Bird Treaty Act (MBTA), including:

• The Service’s recently finalized regulations governing take of migratory birds; and
• The Department of the Interior Solicitor’s Opinion M-37050.

Finally, the EO covers a number of actions from other departments, agencies, and bureaus that can impact ESA permitting and compliance, including:

• The Council on Environmental Quality’s update to National Environmental Policy Act (NEPA) implementing regulations;
• The U.S. Army Corps of Engineer’s reissuance and modification of the nationwide permitting program under Clean Water Act section 404 and Rivers and Harbors Act section 10;
• The BLM’s NEPA implementing procedures; and
• The Environmental Protection Agency’s Navigable Waters Protection Rule defining “waters of the United States.”   

While the precise outcome of Biden Administration review is unknown at this time, it is likely that many of the regulations and policies identified by the EO will be rescinded, repealed, or modified in the coming months and years.  The EO notes that other regulatory actions not listed here may undergo review consistent with the Biden Administration priorities.