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Biden Administration Proposes To Strengthen Endangered Species Act

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Biden administration announced plans Friday to strengthen the Endangered Species Act/NPS file

The Biden administration announced plans Friday to strengthen the Endangered Species Act/NPS file

Plans by the Biden administration to reverse steps President Trump took to alter the Endangered Species Act in ways critics said would weaken protections for threatened and endangered species were applauded Friday by conservation groups.

Changes the Trump administration developed late last year included redefining "critical habitat" for a species as only areas physically occupied by a threatened or endangered species. Outside of those areas, what constitutes critical habitat would be left to the Interior secretary to determine. The changes also would require federal agencies such as the Fish and Wildlife Service to take into account economic impacts resulting from the designation of critical habitat before making such a designation.

Across the National Park System, the plan to revise how critical habitat for threatened and endangered species is determined and to lessen protections for species under the act stands to impact migratory species as well as those species that need ESA protections to prevent them from sliding to "endangered" from "threatened" status.

Species that rely on habitat in and around national parks that could be impacted by that new definition range from the Greater Yellowstone Ecosystem grizzly bears, which in 2019 regained threatened status after a federal judge said the Fish and Wildlife Service erred in delisting the bears, to Kemp's ridley sea turtles, the smallest of sea turtles and which are considered critically endangered.

On Friday the Biden administration announced that the U.S. Fish and Wildlife Service would work to "revise, rescind, or reinstate five ESA regulations finalized by the Trump administration." Those changes would:

● Rescind regulations that revised Fish and Wildlife Service’s (FWS’) process for considering exclusions from critical habitat designations: On December 17, 2020, the FWS revised the process they would follow when considering whether to exclude areas from critical habitat designation under section 4(b)(2) of the ESA. FWS will propose to rescind this regulation (85 FR 82376) in its entirety and revert to implementation of the joint FWS/NMFS regulations at 50 CFR 424.19 and the joint 2016 policy on 4(b)(2) exclusions.

● Rescind regulatory definition of habitat: The Services will propose to rescind the final rule that defined the term “habitat” for the purposes of critical habitat designation (85 FR 81411; December 16, 2020). A regulatory definition is not required for the Services to designate critical habitat in compliance with a 2018 Supreme Court decision.

● Revise regulations for listing species and designating critical habitat: The Services will propose revising the final rule (84 FR 45020; August 27, 2019) 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 revisions to the final rule (84 FR 44976; August 27, 2019) which revised the regulations governing section 7 consultation. 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.

● Reinstate protections for species listed as threatened under ESA: FWS will propose to reinstate its “blanket 4(d) rule,” which was withdrawn by the previous administration (84 Fed. Reg. 44753; August 27, 2019). The blanket 4(d) rule 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.

“The U.S. Fish and Wildlife Service is committed to working with diverse federal, Tribal, state and industry partners to not only protect and recover America’s imperiled wildlife but to ensure cornerstone laws like the Endangered Species Act are helping us meet 21st century challenges,” said Fish and Wildlife Service Principal Deputy Director Martha Williams.

At Defenders of Wildlife, President and CEO Jamie Rappaport Clark said species covered by the ESA "scored a big win today as the Biden administration stepped up to protect vital habitat. Thank you to the Biden administration for its commitment to saving biodiversity and addressing the impacts of climate change on our public lands and imperiled species. With 1 million species threatened with extinction in the coming decades, this is a welcome decision for our nation’s wildlife.”

At the Endangered Species Coalition, Executive Director Leda Huta called the new administration's plans "a victory for imperiled species, their habitat, and the conservation community and comes at a critical time. We are in an extinction crisis—scientists estimate one million species of plants and animals could become threatened with extinction, leading to devastating impacts on humans globally. The Endangered Species Act is a crucial tool to combat species extinction and hailed as one of the most important conservation acts ever passed. Its strong implementation will benefit biodiversity and improve the health and safety of communities.”

U.S. Rep. Raúl Grijalva, D-Arizona, who chairs the House Natural Resources Committee, also supported the administration's tack. He said the five steps as a whole are critical to protecting biodiversity and restoring the public's confidence in the nation's efforts to prevent the extinction of threatened and endangered species.

“This is an important down payment on preventing the collapse of our ecosystems, and I’m glad to see the administration updating these broken standards quickly,” Grijalva said. “With climate change bearing down on us and no serious doubt remaining about the consequences of inaction, we should take this opportunity to update all federal standards as thoroughly as possible to prevent habitat destruction and biodiversity loss before it’s too late. This is a good start, and I’m looking forward to working with the administration to keep this movement going.”

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