Today, the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) finalized three rules reversing Endangered Species Act (ESA) reforms made during the previous administrations. House Committee on Natural Resources Chairman Bruce Westerman (R-Ark.) issued the following statement in response:

"The Biden administration continues to take two steps back without even taking one step forward. We know the Endangered Species Act is an outdated piece of legislation that has repeatedly failed its primary goal of recovering listed species, yet Biden is now undoing crucial reforms and issuing new regulations that will not benefit listed species. As with virtually every policy from this administration, these rules are at best political posturing and at worst will negatively impact the species we work so hard to conserve and protect. That’s one of the reasons why I’ve introduced the America’s Wildlife Habitat Conservation Act, because our rich diversity of wildlife deserves better than failing, unscientific policies kept in place by bureaucrats who think they know what’s best. The House Committee on Natural Resources is committed to bringing the 50-year-old regulations of the ESA into the modern age and codifying long-term, science-based solutions for America's wildlife rather than simply reverting to a process that we already know is seriously broken."

Background

The final rules announced by the USFWS and NMFS would reverse several important reforms to the implementation of the ESA implemented by the Trump administration. 

The rule entitled “Endangered and Threatened Wildlife and Plants; Revision of Regulations for Interagency Cooperation” makes changes to how federal agencies must consult with the Services under Section 7 of the ESA. Of particular concern with this rulemaking is it will significantly increase the discretion of both the Services to potentially require reasonable and prudent measures outside the action areas of a project to offset any remaining impacts of the incidental take of listed species, which is a departure from decades of regulatory precedent. In addition, the rule removes the framework that determines whether a consequence of a proposed project is “reasonably certain to occur,” which will remove important considerations from the consultation process. 

The rule entitled “Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat” makes sweeping changes to how critical habitat can be designated and the process for listing and delisting species under Section 4 of the ESA. Under the proposed changes, the Services would remove the need, when designating unoccupied critical habitat, that “it contains one or more of the physical or biological features essential to the conservation of the species.” This will remove vital certainty for stakeholders as to what may be considered critical habitat. 

The rule entitled “Endangered and Threatened Wildlife and Plants; Regulations Pertaining to Endangered and Threatened Wildlife and Plants,” which was only proposed by USFWS, reinstates the so-called “blanket 4(d) rule.” This goes against the intent of Congress in the ESA that threatened and endangered species should be treated differently because the “blanket rule” gives the USFWS the ability to treat threatened species the exact same way as endangered species. As former U.S. Sen. John Tunney (D-Calif.) stated during Senate debate on the ESA in 1973, Congress intended regulations for threatened species to be “tailored to the needs of the animal” and give states wide latitude to aid in the recovery of threatened species. The blanket rule was rescinded by the Trump administration in 2019 and has never been implemented by NMFS.