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Latham & Watkins Environment, Land & Resources Practice
August 21,
2018 | Number 2366
Agencies Consider 16 Key Reforms to the Endangered
Species Act Regulations
FWS and NMFS propose significant changes to the Endangered Species Act regulations as
part of the Trump administration’s regulatory reform agenda.
Key Points:
The three proposed rules would:
• Amend parts of the Services’ regulations implementing Section 7 of the ESA concerning
interagency consultations.
• Rescind the FWS’ so-called blanket rule, which currently extends regulatory prohibitions under
Section 9 of the ESA for endangered species to threatened species.
• Amend certain procedures under Section 4 of the ESA relating to the listing of species and the
designation of critical habitat.
Background
The United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)
(collectively, the Services) recently announced three related proposed rules that together represent the
most significant proposed changes to the Endangered Species Act’s (ESA) implementing regulations in
nearly 30 years. The Services announced the proposed rules on July 19 in response to the Trump
administration’s Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which directed
federal agencies to identify ways in which to streamline regulatory processes and reduce regulatory
burdens.
The proposed rules are certain to be controversial, with some early comments describing these proposals
as an attempt by the Trump administration to dismantle species and habitat conservation under the ESA.
However, many of these proposed regulatory changes present opportunities to clarify and streamline the
Section 7 consultation process for projects requiring federal approvals, as well as to alleviate regulatory
restrictions under certain circumstances. Accordingly, these proposed rules are consistent with other
actions the Trump administration has taken to streamline and accelerate the federal environmental review
and permitting processes for energy and other infrastructure projects, including Executive Order 13807,
“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for
Infrastructure Projects”; Secretarial Order 3355, “Streamlining National Environmental Policy Act Reviews
and Implementation of Executive Order 13807”; and Memorandum of Understanding Implementing One
Federal Decision Under Executive Order 13807.
