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Trump’s Regulatory Reform Initiatives Meet the Endangered Species Act

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by Michael C. Ford

The U.S. Fish and Wildlife Service and NOAA Fisheries jointly announced via conference call this morning the publication of proposed revisions to portions of their regulations that implement key sections of the Endangered Species Act (ESA).  The proposed regulations respond to the Trump Administration’s directive to solicit public input on ways to improve the clarity and efficiency of existing regulatory programs.  The agencies received a high volume of comments, resulting in the proposed changes.  The call was run by representatives from the Department of Interior, Fish and Wildlife Service, and National Oceanic and Atmospheric Administration.

The proposed changes were described as technical modifications to portions of the agency regulations implementing key sections of the ESA, specifically sections 4 and 7 of the ESA, to improve clarity.  Issues addressed include rescinding ESA rules regarding the application of ESA section 4(d) protection to threatened species; codification of the definition of “foreseeable future” that the agencies have been using for a decade; clarifying that the standards for delisting a species are the same as those for listing (contrary to some court holdings); the designation of unoccupied habitat areas versus critical habitat areas;  clarification of the information needed to support the consultation process; and clarification of the definition of “destruction or adverse modification” (without changing the substance).

Links to the press release and pre-publication versions of the proposed rules can be found here:  A 60-day public comment period will follow Federal Register publication, and is sure to generate a great deal of comments over what will likely be very contentious issues under the ESA.