Endangered Species Law & Policy

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.