On April 2, 2018, the U.S. Fish and Wildlife Service ("USFWS") submitted three proposed rules to the Office of Management and Budget ("OMB"), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register. These proposals, if implemented, will significantly change USFWS' implementation of the Endangered Species Act ("ESA").
Based on unofficial reports, it appears the first proposal would revoke the 1978 Blanket Section 4(d) Rule. 50 C.F.R. § 17.31. The text of the ESA only prohibits killing, capturing, or otherwise taking species listed as endangered. 16 U.S.C. § 1538(a)(1). In 1975, the USFWS issued a Blanket 4(d) Rule extending these protections to threatened species, and a judicial challenge to the Blanket 4(d) Rule was dismissed in a controversial D.C. Circuit opinion in 1993. Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993). If the Blanket 4(d) Rule is revoked, specific 4(d) rules would then need to be developed for threatened species for the ESA Section 9 "take" prohibition to apply to these species.
The second proposal would rollback the USFWS' current rules for listing/delisting species and designating critical habitat. See 50 CFR Part 424. Given past agency statements, this rollback will most likely be aimed at revoking the 2016 Critical Habitat Rule, which remains controversial and, up until recently, was the subject to multi-state litigation in federal court. The controversy regarding the Rule originates in its provisions that expand the USFWS's authority to designate land unoccupied by a listed species as critical habitat. Further, the Rule grants USFWS the authority to designate critical habitat even if the land does not yet contain the biological factors necessary to support the listed species.
According to the OMB notice, the third proposed rule will "revise" the agency's "interagency cooperation regulations," and "clarify and improve" Section 7 consultations. The USFWS issued new regulations concerning interagency cooperation in 2016, so the proposal could change those requirements. However, the exact subject for these changes remains unclear.
The text of the proposed rules has not yet been released, but should become available on or before the expiration of OMB's 90-day review period. After OMB's review and approval, the proposed rules will be published in the Federal Register, presumably with an opportunity for interested parties to comment.
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