Endangered Species Law & Policy

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations (given the upcoming presidential election at the end of 2024). Following is a list of some of the most significant actions the U.S. Fish and Wildlife Service (Service) plans to implement pursuant to the Endangered Species Act (ESA). For the full list of anticipated ESA-related actions, please refer to the Unified Agenda.

• Final rule addressing threatened species protections under the ESA (anticipated April 2024). This rule would reinstate the general “blanket rule” option for protecting newly listed threatened species pursuant to section 4(d) of the ESA.
• Final rule addressing procedures for listing species and designating critical habitat under ESA section 4 (anticipated April 2024). This rule would revise the regulations at 50 CFR part 424 that implement section 4 of the ESA.
• Final rule addressing ESA section 7 consultation regulations (anticipated April 2024). This rule would revise the regulations at 50 CFR part 402 that implement section 7 of the ESA.
• Final rule addressing ESA section 10 regulations for enhancement of survival and incidental take permits (anticipated February 2024). This rule would revise the regulations at 50 CFR part 17 that implement section 10 of the ESA.
• Proposed rule to revise general permitting regulations, including amendments to ESA permit application processing fees (anticipated April 2024). In addition to permits issued pursuant to the ESA, this proposed rule would impact permits issued under the Lacey Act, Migratory Bird Treaty Act, Wild Bird Conservation Act, Marine Mammal Protection Act, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
• Proposed rule addressing ESA compensatory mitigation mechanisms (anticipated January 2024). This proposed rulemaking will address the National Defense Authorization Act for Fiscal Year 2021, which requires regulatory standards and criteria to aim to maximize available credits and opportunities for mitigation, provide flexibility for characteristics of various species, and apply equivalent standards and criteria to all mitigation banks.
• Proposed policy revising interpretation of the phrase “significant portion of its range” under the ESA (anticipated December 2024). This proposed policy would revise the way the Service interprets a key phrase contained in the text of the ESA.