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), which lists the regulatory and deregulatory actions that federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the coming year. According to the Unified Agenda, the western United States can expect a number of proposed and final rules to list species as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat. Following is a sampling of potential ESA-related actions identified by the Service in the Unified Agenda that may be of particular interest to project proponents in the western United States. For the full list of anticipated ESA-related actions, please refer to the Unified Agenda.

Final Listing Rules

• Final rule to list the silverspot butterfly (Speyeria nokomis nokomis) as threatened (anticipated November 2023). This butterfly is found in Colorado, New Mexico, and Utah.
• Final rule to list the longfin smelt (Spirinchus thaleichthys) as endangered and designate critical habitat for the species (anticipated January 2024). This fish is found in California.
• Final rule to list two distinct population segments (DPS) of the California spotted owl (Strix occidentalis occidentalis)—the Coastal-Southern California DPS as an endangered species and the Sierra Nevada DPS as a threatened species (anticipated February 2024). This bird is found in California and Nevada.
• Final rule to list the Penasco least chipmunk (Neotamias minimus atristriatus) and designate critical habitat for the species (anticipated April 2024). The chipmunk is found in New Mexico.
• Final rule to list the Bi-State DPS of the greater sage-grouse (Centrocercus urophasianus), located in California and Nevada (anticipated May 2024).
• Final rule to list the northwestern pond turtle (Actinemys marmorata) and the southwestern pond turtle (Actinemys pallida) as threatened with a Section 4(d) rule (anticipated September 2024). The northwestern pond turtle is found in Washington, Oregon, Nevada, and northern and central California, and the southwestern pond turtle is found in California and Mexico.
• Final rule to list the tricolored bat (Perimyotis subflavus) as an endangered species (anticipated September 2024). This bat is found throughout the United States.

Proposed Listing Rules

• Proposed rule to list the red tree vole (Arborimus longicaudus) and designate critical habitat for the species (anticipated January 2024). The red tree vole is found in Oregon.
• Proposed rule to list the northern bog lemming (Synaptomys borealis) and potentially designate critical habitat for the species (anticipated March 2024). The northern bog lemming is found in Alaska, Idaho, Maine, Minnesota, Montana, New Hampshire, and Washington.
• Proposed rule to list the western bumble bee (Bombus occidentalis) and possibly designate a critical habitat for the species (anticipated June 2024). The western bumble bee is found throughout the western United States.
• Proposed rule to list the Rio Grande chub (Gila pandora) and Rio Grande sucker (Catostomus plebeius) and designate critical habitat for each species (anticipated July 2024). The fish are found in New Mexico, Colorado, and Mexico.
• Proposed rule to list the little brown bat (Myotis lucifugus) and potentially designate critical habitat for the species (anticipated September 2024). This bat is found throughout the United States.
• Proposed rule to list the monarch butterfly (Danaus plexippus plexippus) and potentially designate critical habitat for the species (anticipated September 2024). The monarch butterfly is found throughout the contiguous United States.

Final Critical Habitat Designations

• Final rule to designate critical habitat for the Southern Sierra Nevada DPS of fisher (Pekania pennanti) (anticipated November 2023), found in California.
• Final rule to designate critical habitat for the coastal DPS of the Pacific marten (Martes caurina), currently listed as threatened (anticipated February 2024). The Pacific marten is found in coastal California and Oregon.
• Final rule to designate critical habitat for the Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti), currently listed as endangered (anticipated August 2024). This butterfly is found in New Mexico.

Proposed Critical Habitat Designations

• Proposed rule to designate critical habitat for the Dixie Valley toad (Bufo williamsi), found in Nevada (anticipated February 2024).
• Proposed rule to designate critical habitat for the foothill yellow-legged frog (Rana boylii) (anticipated February 2024). This frog is found in California and Oregon.
• Proposed rule to designate critical habitat for the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) (anticipated September 2024). The bird is found in Arizona, Texas, and Mexico.