ESA Regulatory Reform Package Crosses the Finish Line

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register.

On July 25, 2018, USFWS published a proposal to remove that agency’s blanket prohibition on “take” of species listed as threatened (hereafter, the Blanket 4(d) Rule) and to require species-specific rules addressing take.  The same day, USFWS and NMFS published proposals to revise regulations governing species listings, delistings, and designation of critical habitat (listing rules), and regulations governing interagency consultations under ESA section 7 (consultation regulations).

The Services received tens of thousands of comments on the proposed regulatory revisions, and the proposed revisions have been under review with the Office of Information and Regulatory Affairs (OIRA) pursuant to Executive Order (EO) 12866  since December 2018. On August 2, 2019, OIRA completed its EO 12866 review of USFWS’ revision to the Blanket 4(d) Rule, and the final rule was released to be published in the Federal Register.  On August 9, OIRA completed its EO 12866 review of the Services’ revisions to their listing rules and consultation regulations.

The ESA regulatory reform package arguably represents the most significant change in ESA implementation in recent memory. The final rules have been submitted to the Federal Register, but no publication date has been given.  Additional updates on this topic will appear here, when available.

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  • Rebecca Hays Barho

    Rebecca Hays Barho focuses her practice on natural resource law, with particular emphasis on the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA), the Clean Water Act ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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