Endangered Species Law & Policy

On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies. Department of the Interior (DOI) entries on the Unified Agenda reveal a lengthy set of planned regulatory actions, some of which may have an impact on development and deployment of energy, construction and operation of transportation and other infrastructure, and various other economic activities.

Following is a list of some of DOI’s planned actions that may be of particular interest for the broader regulated community:

• Proposed rule covering permits issued under Endangered Species Act (ESA) section 10 (e.g., incidental take permits and enhancement of survival permits).
• Advanced notice of proposed rulemaking to address compensatory mitigation mechanisms under the ESA.
• Proposed rule covering listings, delistings, and designations of critical habitat under ESA section 4.
• Proposed rule covering interagency cooperation under ESA section 7.
• Proposed rule covering ESA protections for threatened species.
• Proposed revisions to the U.S. Fish and Wildlife Service’s (USFWS) and National Marine Fisheries Service’s (NMFS) Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the ESA’s definitions of threatened and endangered species.
• Proposed rule authorizing “take” of birds protected under the Migratory Bird Treaty Act.

The Unified Agenda also includes numerous planned actions to list and re-classify species under the ESA, including:

• Proposed rule to reclassify the whooping crane.
• Final rule to list the lesser prairie-chicken.
• Proposed rule to list the Sonoran desert tortoise.
• Proposed rule to list the northern long-eared bat and potentially propose critical habitat.
• Final rule to list several species of mussels in Central Texas.

Other anticipated actions set forth on the Unified Agenda that will likely draw significant attention include:

• Proposed rules by the Council on Environmental Quality revising National Environmental Policy Act implementing regulations.
• Final reissuance and modification of the U.S. Army Corps of Engineers’ (Corps) 2017 nationwide permits.
• Proposed reissuance and modification of the Corps’ 2021 nationwide permits.

Many of the anticipated actions set forth on the Unified Agenda are intended to rescind or significantly revise regulations put into place under the prior Administration, as we have previously reported on this blog.