Biden Administration Proposes New Rules To Strengthen ESA; Says Economic Impacts Not To Be Considered With Listing Decisions

The U.S. Fish and Wildlife Service and NOAA Fisheries are proposing regulations the agencies say will restore protections for species, strengthen consultation and listing processes, and “reaffirm the central role science plays” in decisions that guide the protection and recovery of endangered and threatened wildlife.

Two separate proposed rules address the responsibilities that the Service and NOAA Fisheries share regarding interagency cooperation, species classification, and critical habitat designations under the Endangered Species Act. A third proposed rule, issued by the U.S. Fish and Wildlife Service, addresses the protections afforded to species listed as threatened.

The agencies are jointly proposing the following changes to the implementing regulations with the intent to improve both agencies’ ability to fulfill their responsibilities under the ESA to protect and recover listed species. The two joint rules include:

•         Improve the interagency consultation process. Revising language, definitions, and responsibilities that would further clarify and improve the federal interagency consultation processes, including revising the scope of reasonable and prudent measures in an incidental take statement to improve conservation outcomes.

•         Clarify standards for listing, delisting, and reclassifying species, and revising some criteria for critical habitat designations. Reinstating prior language reflecting congressional intent that listing, reclassification, and delisting determinations must be made “without reference to possible economic or other impacts of such determination” to make clear that any economic impacts stemming from the listing, reclassifying, or delisting of a species are not considered when making classification decisions, along with other changes to improve the transparency of the listing process and revising some of the criteria or designating critical habitat.

The third rule, addressing protections for threatened species, is proposed by the Service:

•         Reinstate protections for species listed as threatened under the ESA. Reinstating the blanket 4(d) rule will provide a base level of protection (a “safety net”) for all species listed as threatened while retaining the option for the Service to adopt a species-specific 4(d) rule.

Both agencies say they “are committed to applying the best available science when implementing the Endangered Species Act — including when making listing and delisting decisions, designating critical habitat, developing protective regulations for threatened species, and consulting on federal actions.”

“The Endangered Species Act is the nation’s foremost conservation law that prevents the extinction of species and supports their recovery,” said U.S. Fish and Wildlife Service Director Martha Williams. “These proposed revisions reaffirm our commitment to conserving America’s wildlife and ensuring the Endangered Species Act works for both species and people.”

“Through the Endangered Species Act, we take a science-based approach to protect threatened and endangered species and their habitats,” said NOAA Fisheries Assistant Administrator Janet Coit. “These proposed regulatory updates will help ensure the Act continues to serve as an effective conservation tool in the face of continued challenges, including biodiversity loss and climate change.”

The Endangered Species Act has been successful in preventing the extinction of over 99% of the species it has protected over its 50-year history.

The proposed rules will be subject to public review and comment, and all comments will be carefully considered before a final rule is published.

The agencies encourage any interested parties to provide input and substantive comments on each of the three separate proposed rules during the 60-day public comment period from June 22, 2023 to Aug. 21, 2023. The notice will be available in the Federal Register on June 22, 2023. The proposed rules will be placed on public inspection on June 21, 2023 at

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