July 24, 2021

Volume XI, Number 205

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Here We Go Again: Services to Re-Revise Endangered Species Act Regulations

In an anticipated move, the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the “Services”) have announced plans to again overhaul Endangered Species Act (ESA) regulations. In this latest example of “to the victor goes the spoils” on species issues, the Services are gearing-up to align the ESA regulations with Biden-Harris Administration policies and priorities, including addressing climate change. The proposals are still in the works but appear targeted to unwinding revisions the Services made under the Trump administration to promote transparency and predictability in ESA implementation. Those Trump-era regulations are currently being challenged in the Northern District of California. Unlike Executive Orders, guidance, or other steps by the prior administration, further proposed changes to regulations implementing the ESA will require notice and comment rulemaking and a satisfactory administrative record to justify the changes.

The most recent planned revisions, and the Services anticipated timeline for proposing these revisions, are outlined below.

 

Planned Revision to ESA Regulations

Anticipated Proposal Date

Automatically extending the ESA’s take prohibition to threatened species by reinstituting the “blanket 4(d) rule.” 

July 2021

Rescinding regulations governing exclusions from critical habitat designations.

July 2021

Promulgating new regulations for listing species and designating critical habitat under ESA Section 4.

September 2021

Rescinding regulations defining “habitat” for purposes of critical habitat designations.

September 2021

Revising ESA Section 7 consultation regulations, including redefining “effects of the action.”

December 2021

 

As the ESA regulatory landscape continues to change, it is critical that project proponents stay current on these developments to protect their ongoing and planned activities. With Services staff still trying to get their hands around the 2019 revisions to the ESA regulations, yet another new set of standards will inevitably create confusion, inconsistency, and delay in agency reviews and implementation of the regulations in general.  That could mean longer project timelines and more legal challenges. Understanding the current law and where it is going will help keep your project on track, build a defensible administrative record, and maintain compliance with the ESA. Project proponents should also make certain their voices are heard by submitting comments during the rulemaking process for each of these issues to ensure the Services continue working towards transparent, predictable, and streamlined ESA compliance.   

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 166
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About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

202-789-6009
Alexander Horning Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Alex helps clients solve product and project development problems.

His regulatory, compliance, and litigation practice involves product stewardship, reverse logistics, hazardous, medical, and solid waste, Federal Insecticide, Fungicide, and Rodenticide Act, Endangered Species Act, and National Environmental Policy Act issues. Alex works with clients in the pharmaceutical and medical device, pesticides, and energy industries and has extensive experience counseling nationwide coalitions addressing industry challenges.

Service Areas & Industries

  • Biotechnology...
202-789-6061
Katrina Krebs Environmental Litigation Attorney Beveridge & Diamond New York, NY
Associate

A careful listener and creative problem solver, Katrina identifies client needs to effectively advocate for their position.

Katrina brings a life-long interest in the natural environment to her law practice, which is focused on addressing National Environmental Policy Act (NEPA) issues, wetlands regulation, federal species protection laws, land use law, and litigation.

Prior to law school, Katrina worked for the U.S. Fish & Wildlife Service on national wildlife refuges in Arizona, Colorado, and Wyoming. As a Park Ranger, she educated visitors and...

212-702-5472
W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

202-789-6028
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