Endangered Species Law & Policy

On June 22, 2023, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services), issued three sets of proposed revisions to their Endangered Species Act (ESA) regulations addressing: (1) interagency consultations under ESA section 7; (2) the procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and (3) reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all species listed as threatened under the statute unless USFWS issued a species-specific rule.  

Nossaman previously reported that, in July 2022, the District Court for the Northern District of California (District Court) remanded and vacated the Services’ 2019 final rules revising the ESA regulations without making a determination on the merits as to whether the rules were unlawful.  Following the District Court’s decision, the U.S. Court of Appeals for the Ninth Circuit stayed the vacatur and required the District Court to reevaluate its decision.  On November 16, 2022, the District Court issued a new decision remanding the 2019 final rules back to the Services for reconsideration.  The remand was made at the request of the Services, who had long been working on revising regulations adopted under the previous administration.  

Comments on the proposed revisions are due to the Services no later than August 21, 2023.  The Federal Register notices and supporting documents are available at regulations.gov, under Docket Numbers FWS-HQ-ES-2021-0104 (section 7), FWS-HQ-ES-2021-0107 (section 4), and FWS-HQ-ES-2023-0018 (section 4(d)).