The Biden administration on Friday announced its intent to replace Trump-era changes to Endangered Species Act regulations that farm and other business groups welcomed as inserting “common sense” into ESA implementation.
The administration said it will rescind some rules and propose changes to others, but didn't provide a timeline for the revisions. Environmental groups say the Trump administration's rules undermined the landmark law.
The Trump administration implemented a definition of “habitat” under the law, changed the way the Fish and Wildlife Service and National Marine Fisheries Service list species and designate critical habitat, and revised regulations governing how federal agencies “consult” on the effects of federal actions that may harm listed species.
Friday's announcement came in response to an executive order issued by President Joe Biden requiring agencies to review the previous administration’s regulations.
FWS and NMFS said they would begin rulemaking “in the coming months.”
Among the changes, both agencies said they would:
- Rescind the regulatory definition of “habitat.” “A regulatory definition is not required for the services to designate critical habitat in compliance with a 2018 Supreme Court decision,” FWS said in a news release.
- Revise regulations for listing species and designating critical habitat. “The services will propose revising the final rule to reinstate prior language affirming that listing determinations are made ‘without reference to possible economic or other impacts of such determination,’ along with other potential revisions also under discussion.”
- Revise regulations for interagency cooperation. “The services will propose to revise the definition of ‘effects of the action’ and associated provisions to that portion of the rule, with other potential revisions also under discussion.”
FWS will act on its own to address two other regulations it had promulgated. The service said it would rescind regulations that revised the service’s process for considering exclusions from critical habitat designations: FWS plans to scrap that rule and revert to joint FWS/NMFS regulations already in place and a 2016 policy on critical habitat exclusions.
Lastly, FWS will propose reinstating protections for species listed as “threatened” under the ESA. The Trump administration withdrew the “blanket 4(d) rule,” which FWS said “establishes the default of automatically extending protections provided to endangered species to those listed as threatened, unless the service adopts a species-specific 4(d) rule.
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Kaitlynn Glover, executive director of natural resources for the National Cattlemen's Beef Association's and executive director of Public Lands Council, said the changes "will not improve outcomes – they will just make the ESA more burdensome on the people actually working to restore habitat and protect biodiversity. We are disappointed to see the Biden administration take such a major step backwards on measures that facilitated significant on-the-ground progress by livestock producers, state governments, and advocates in recent years. Frankly, the motivation behind this rollback is out of touch with how federal regulations impact rural communities and seems to have more to do with partisanship than the protection and recovery of wildlife.”
Earthjustice, an environmental law firm, said the changes came in response to lawsuits it filed challenging them on behalf of conservation organizations. “We are grateful the Biden administration is moving to protect the most imperiled species by reversing the Trump-era rules, but time is of the essence,” the group said. “Each day that goes by is another day that puts our imperiled species and their habitats in danger.”
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